Can you really take someone up to court for calling you gay or a puff?
Monday 24 September 2012 - 10:35 by
Joseph Carmel Chetcuti
Words are defamatory when they expose a person to hatred, contempt or ridicule, but poking fun at someone is often inconsequential and seldom libellous.
Hurting one's feelings does not necessarily give rise to a cause of legal action although there is no denying that calling someone a 'puff' is hardly an inviting subject for polite conversation. Even so, is it defamatory to call someone 'a puff'? More specifically, can such a designation give rise to a cause of action?
The meaning of 'puff'
I doubt that, so far, Malta's courts have turned their minds to the consideration of such a pressing matter. Assuming the absence of relevant case law on the subject, a presumption I make with some degree of hesitation given the ease with which some Maltese have recourse to the law, I suppose the ordinary dictionary meaning of the word is as good a starting point as any. And what better place to begin our search than with what Serracino-Inglott's Il-Miklem Malti has to say about the word: "kelma b'tifs. ta' dwejjaq ta' min ikun xaba' fejn ikun, anki għax ikun xamm xi ntiena, ħass xi sħana, egħluq żejjed eċċ; qbbl. pu; iff; piff". Moving onto another authoritative dictionary (Aquilina's Maltese-English Dictionary), we come upon a comparable explanation: "1. Interj. (i) provoked by a bad smell, (ii) expressing contempt, ridicule, 'pooh!'. 2. N. also - A child's word for 'excrement'....."
Of course there is always the risk of failing to differentiate between 'puff' and 'pufta': 'pufta' generally taken to mean a homosexual, particularly one who is or is depicted as the passive partner. Aquilina's Dictionary lists and explains both words but one will search in vain in Il-Miklem Malti for the meaning of 'pufta', leaving us all to speculate what Serracino-Inglott really thought of 'pufta'!
On bad smells and poop
Being put side by side with poop is scarcely gratifying unless you happen to have a fetish for scatophilia. Equally less gratifying is being lumped together with a bad smell. I must confess to conservative sexual tastes although I have to plead guilty to having contributed, moderately of course, to the deterioration of the earth's atmosphere, chiefly after having consumed not so moderate portions of cabbage.
Enough of bad smells and poop!
Is 'puff' defamatory?
Put simply, words are defamatory when they expose a person to hatred, contempt or ridicule. Not just any kind of ridicule for we have all ridiculed and been ridiculed at some stage of our lives. Poking fun at someone is often inconsequential and seldom libellous. Ridicule can also be part of the territory of being a public figure however unfair such ridicule may be. For this reason, courts have tended to develop a stricter test and a more contemporary explanation of what constitutes defamation ... words are defamatory if, in the opinion of the reasonable man or woman, they tend to damage a person's reputation. Sometimes a person's reputation is so damaged that there is little room to damage it further.
Trying to work out what a reasonable man or woman thinks can be a challenging task. I dare not hazard to think what the reasonable Maltese would make of someone being relegated to a bad smell or poop. Some insight into what this reasonable person might think may be gleaned from the official opening of a Strait Street lavatory, a site once of significance to gay men. The inauguration of the lavatory attracted a gathering of Malta's finest citizens, among them Minister Chris Said, Mayor Alexiei Dingli and the late Professor Peter Serracino-Inglott. The women who descended on the lavatory were in their best attire. These fine Maltese citizens were the first to inspect the holy of holies, the rest of us, those relegated to the Third or Fourth Estate, left with no choice but to follow on the heels of these outstanding citizens of Malta.
I doubt any of these fine citizens have any trouble with bad smells and poop!
Is 'pufta' defamatory?
I know of no recorded case on the subject. Or, to be more accurate, I have not had the opportunity or inclination to look into it. There have been many rulings over whether the word 'homosexual' is defamatory. Not so long ago, accusing someone of homosexuality tended to have far-reaching consequences including but not limited to the loss of a job, the loss of a security clearance, the loss of business, the loss of a visa and social ostracization. Homosexuality also tended to be linked to acts of sodomy, acts that were criminal in many countries. Courts commonly ruled that a false and malicious claim that a person was homosexual was in and of itself defamatory. Nowadays, society is more open and less likely to think less of a person who is homosexual, hence the reluctance of courts to view the word as defamatory.
During the 1970s, in Sydney, we relished being called 'poofters'. We took pride in our sexuality however it was labelled. It was our way of disarming our opponents. Even some of our bars, owned and managed by gay men and lesbians, proudly displayed the labels poofters and dykes on the doors of toilets. Of course, some of our detractors continue to use the word with venom but its use tells us more about who they are and where they stand towards gay men and our liberation. For most us, it's like water off a duck's back but this is not to deny that it impacts adversely on those who are still struggling to come to terms with their sexuality particularly, in Australia at least, the children of migrants. And to be clear, that includes our own community.
The problem with seeking legal redress
Every now and then, I have come across clients who have been 'ridiculed' although no one has yet approached me after being called 'smelly' or 'shitty'. Nor has anyone come to me because he or she had taken offence at being labelled a homosexual. Those who have called on me are often unwavering in their intention to take the matter to court ... until they start to appreciate how much it is going to cost them.
In Australia, taking someone to court for defamation is serious business. It costs money, plenty of money. John Robert Marsden, prominent Sydney-based Australian solicitor, a former President of the Law Society of New South Wales and a high profile gay solicitor, took the Seven Network to court after that Network accused him of having had sex with minors. Marsden and Seven Network reached a confidential out-of-court settlement, estimated by various parties to be anywhere between A$6 million and A$9 million. Marsden died of stomach cancer four years after reaching this settlement. He did not live to enjoy his new wealth!
Not everyone has the necessary funds to seek redress in a court of law. Worse still, defamation action can be self-defeating, often a sure way of attracting unwanted attention and sensationalising the alleged defamatory words. At the end of it day, only one question remains - is it all worth it?
Joseph Carmel Chetcuti is enrolled in the Victorian Supreme Court Roll of Barristers and Solicitors and, as a solicitor, by the High Court of Australia. This article is not intended to provide legal advice. No one should act or rely on any information contained in this article.