Insights into litigation, sports law, media and legal culture

The Australian’s review of Bell Shakespeare’s Othello is so negative, is it actionable?

A negative review called A Dour Night at The Troubadour provided my first bird’s eye experience of a court room. There I was in the County Court of Victoria, in the early 1990s, having secured a summer clerkship with a preeminent defamation team, witnessing the author trying to justify his written word.

Back in the day, The Troubadour was a popular Brunswick Street acoustic music venue where you could also get a bite to eat. According to the review, the food was bad, the music was bad, the whole night was bad. However, when applying fingers to typewriter, our reviewer had failed to reveal that he had apparently been asked to leave the venue due to his intoxication and loutish behavior.

The lawsuit was defamation, the defence was fair comment and the plaintiff alleged no defence because the review was actuated by malice.

The lesson I took from that experience is that being a reviewer does not offer you an automatic legal free pass.

A couple of days ago I was confronted by this headline in The Australian: Plug should be pulled on Bell Shakespeare Company’s Othello.

Now that was an attention grabber.

The author, Chris Boyd, left no one in doubt about his view of the production:

In 1991, when Bell brought its debut production to Melbourne, the company cut its losses and closed after four shows. It was a woeful Hamlet: diffident and substandard.

 Though more evenly and competently acted than the 1991 Hamlet, Bell’s latest is so shockingly bad, one wishes that the plug could be pulled on it rather than allowing it to trudge on to 25 more venues, disillusioning countless thousands of theatregoers and dragooned students in the process.

The review was striking on two fronts. First, it’s been a long time, if ever, since I’ve seen such a call to action from the reviewer, namely, stop the production! The conclusion also tells audiences what to do, “You have until December to miss it“.

In other words, the reviewer has told people not to go see Othello. If people were to take his advice, the production could close early, making a financial loss and putting actors’ jobs into jeopardy, and potentially that of the company itself. This is the reasonably foreseeable consequence of providing such a recommendation, and extends beyond the typical review in which a person simply writes their impressions of the play (good or bad).

Secondly, having just seen the production myself, I have never seen a review more at odds with my own impressions. I had just told my family and friends that this Bell Shakespeare production could be the BEST I had ever seen!

This is what I wrote the morning after I saw Othello:

The laws have changed since A Dour Night at The Troubadour.  Negative comments about a company with more than 10 employees, such as The Bell Shakespeare Company Ltd., are no longer actionable. It follows that, no matter how negative the review, or even if it contains a demand to “pull the plug”, so long as the comments are directed at the theatre company not the person, a defamation claim is not there.

Affected companies now seek to rely on the tort of injurious falsehood when seeking compensation for damaged business reputation.  However, this is harder to win than a defamation claim.  The company must show that the statement was maliciously made and false. For example, a disgruntled former employee might make false claims about a company to customers, causing them to go somewhere else. The tort of injurious falsehood is unlikely to apply to a negative review, and certainly not to this one.

Of course, if the target is a person (e.g. an actor or director), the defamed person remains able to bring a defamation claim for a negative review. The process remains similar to that in the Troubadour case, although the language has changed a bit, courtesy of the Defamation Act 2005 (s.31):

  • the plaintiff has to show the defendant published a review about the plaintiff capable of causing reasonable people to think less of him or her;
  • the reviewer can defend the claim on the basis that it was an ‘honest opinion’; and
  • the defence is defeated if the plaintiff proves that the opinion was not honestly held.

For a reviewer to rely on the honest opinion defence, the matter must be an opinion (not a statement of fact), it must relate to a matter of public interest, and it must be based on ‘proper material’.  Here, proper material means the opinion must be based on material that is substantially true.

Chris Boyd’s review does, to a degree, play the man, suggesting that the new director “stumbles at every hurdle”.  The likely defamatory sting is that he is a hopeless director, particularly when the next sentence is that the update is an “epic fail”. But is it honest opinion, such that the defence applies?  The answer could go either way. Mr Boyd’s review is clearly about a matter of public interest, and there is no question that he attended the play on which his opinion is based.

Defamation lawyers could have a field day as to whether much of the review is incapable of being honest opinion because it constitutes statements of fact, but we will put that debate to one side. I also note for the record that there is no suggestion that the defence of honest opinion is capable of being defeated for improper purpose.

Yet, the evidence supporting the allegation that the director is at fault is pretty thin. An observation that Othello is an unbearable play is irrelevant. One can’t put the blame at the director’s feet that Mr Boyd thinks the play is “1600s torture porn”.  So too, to be frank, is the author’s complaint about the “modern clothes” since this has been a Bell Shakespeare trade mark since the company’s inception.

What appears to trouble the author most, in that it is “the gravest fault of this production” is that the actor playing Othello, “a person of colour”, performs like a monkey as the character is increasingly wracked by jealousy. Intriguingly, Chris Boyd suggests that the actor, Ray Chong Nee, could not have done this voluntarily, claiming that in a bewildering lapse of judgment the director has asked a person of colour to perform like a monkey.

Now consider this. What if there was no such request? What if the actor volunteered to play the character in this way or it was the product of collaboration?  If that were the case, then there would be no substantial truth to the basis for the opinion, and the evidence for the defamatory conclusion (‘stumbles at every hurdle’) would be essentially non-existent. It follows that the honest opinion defence might not apply.

The above analysis is intended to show why, even if one is a reviewer with a fair degree of latitude, it is important to be precise with language when offering a negative review. Precision equates to appropriate legal protection.

Precision also displays courtesy to the people who have put blood, sweat and tears into the production you hate, but that others might like.

Coming from the perspective of someone who has seen quite a lot of Shakespeare but never Othello, I loved this production.  Let me explain why:

  • I understood the language. Consider that. How many times have you listened to arcane words from centuries ago knowing you are meant to appreciate them, but not really doing so. The eyelids droop and you wish you were at home watching a movie. Contrast this to the conversational ease with which the characters spoke to each other in this production. It was like we were in the room with them.
  • It was a taut psychological thriller. The domesticity of the scenario added to the sense of claustrophobia. In terms of movie atmospheres, think Panic Room.
  • Spoiler alert: I knew there was something nasty in store involving Desdemona and a pillow. However, I never envisaged the rawness of her demise. It was horrifying. The actors are brave to commit themselves to this experience, night after night.
  • In the specific context of domestic violence, I was angry and upset that Shakespeare’s observations about the games men play, and the women who suffer accordingly, have changed little in the hundreds of years since he’s written the play. The play had such a contemporary message, and an awful one at that.
  • The contemporary presentation added to the sense of currency in relation to domestic violence issues.
  • Despite everything, the play had a satisfying conclusion, particularly the manner in which the villain, Iago, received his comeuppance.
  • I cannot recall feeling so shattered after leaving a production, in the sense of wanting to think about it, and reflect on its message and the motivations of the characters. There was not much small talk after I left the theatre.

It is certainly true that this production of Othello has polarized reviewers in a way I have not seen for a while. Brian McFarlane for the Australian Book Review gives it four stars, referring to it as a “brilliantly intelligent production” noting that the speaking of Shakespeare’s verse is outstanding, is never declamatory, and the effect is to create characters that are intensely real.

The Herald Sun regards it as an “inventive production” that captures the emotional intensity of Othello.

Australian Stage provides a mixed report, referring to parts that were completely traumatic and entirely thrilling, spectacular passion between Othello and Desdemona, but also suggesting a lack of creativity and imagination in the production.

The Daily Review is negative, offering only two stars and critical of what the reviewer calls “an even production” without colour and shade, peaks and troughs. It is, according to the reviewer, dull.

The mixed reports have certainly played out in the comments to Chris Boyd’s review. Here are two contrasting examples:

Screenshot 2016-07-20 16.02.39

 

Screenshot 2016-07-20 16.03.45

There is no point to a water cooler if there is nothing to discuss and debate. Such opposing reactions illuminate the subjective nature of our human experience.

However, even in Australia, one cannot be indifferent to legal risk, particularly where free speech is capable of causing harm. Chris Boyd referred in his review to modern day social media shaming (in apparent support of somehow incorporating this into his preferred version of Othello). Shaming, whether or not on social media, means one has moved ever closer to that legal line.

Of course, such controversy is likely to lead to the opposite of The Australian’s headline. Rather than ‘pulling the plug’, the Melbourne season of Othello is sold out. For those planning to attend, make up your own mind.

Disclosure: The author has previously donated to Bell Shakespeare.

 

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