Nobody wants their dirty laundry aired on telly, least of all Gina Rinehart. So it wasn’t surprising that she took issue with Nine’s TV miniseries House of Hancock.

A couple of weeks back she sought an urgent injunction to get hold of the second episode before it aired, on the grounds that it was likely to defame her. Nine eventually agreed to edit some scenes and include a disclaimer saying that some events were fictionalised.

That’s not the end of it though.  Rinehart is continuing action against Nine to seek damages based on a number of alleged falsities in the miniseries.

Mixing fact and fiction is a dangerous game, defamation-wise.  And disclaimers won’t necessarily get you off the hook.  Here is the deal.

  • Claiming that a publication is obviously false or fictitious (and therefore not defamatory) is not a great defence.  It might work for the most literal imputations but probably not for the broader ones.  E.g. when the Chaser guys published a fake picture of a journalist getting it on with a dog, the Court accepted that nobody would actually think the journalist got it on with dogs, but said it was arguable that people would think he was a generally contemptible person.
  • A disclaimer saying that a publication is fictitious won’t necessarily improve your position.  Whether a defamatory meaning remains is ultimately a question of balance, looking at the whole publication.  E.g. Triple J couldn’t avoid an injunction to stop it playing ‘Backdoor Man’ by Pauline Pantsdown (a satirical song about Pauline Hanson) by warning listeners that the song was satirical and not meant to be taken seriously.

Nine might have a tough time with this claim. Whatever the outcome, if it gets to a judgment it will be an important precedent for publishers.