The extraordinary tale of a News Limited writer who sued the ABC over a silly joke – and how the case raises serious questions about free speech in Australia

The ABC has capitulated to Chris Kenny. Apologies have been offered and cash will be paid to the News Limited journalist. The Chaser boys are forbidden to mock the ABC’s grovelling. News Limited and the national broadcaster’s many enemies in government ranks are enjoying a sweet victory.



A brief scene in an almost empty courtroom in Sydney on Friday was the last episode in this nine-month brawl over a lame joke. The ABC’s lawyers expressed sorrow at the distress the Chaser skit caused Kenny and his family, a skit that was “triggered by criticism of the ABC” that “falls short of the quality demanded by the ABC’s audiences”.

Kenny also spoke through his lawyers. He assured the court that protecting his reputation was only one reason he sued the ABC. “The second – counter-intuitively to some people perhaps – was in defence of free speech.”

As an associate editor of the Australian with a perch on Sky Television, Kenny has a loud voice to reply to the Chaser’s taunts. Instead he sued. Late on Friday, he told Guardian Australia: “To the extent that I am remembered for this, I’ll be remembered as the journalist called a dog fucker who stood up for his rights.”

What a jury would have made of the Kenny skit we will never know. The last big name to take a joke to a jury was Harry Seidler 30 years ago. At stake was a brilliant, abusive cartoon by Patrick Cook. The architect lost and made a fool of himself. But Seidler didn’t have what Kenny has: the brass band backing of News Limited and the endorsement of a prime minister.

The Hamster Decides Episode 5, broadcast a few days after Abbott’s election victory, was all mockery. The Chaser team mocked the new prime minister, the defeated Kevin Rudd, Cory Bernardi, Kerry O’Brien, Peter Hartcher of the Fairfax press, the ABC, Nine and Seven. Craig Emerson “sang”. Hapless candidate Jaymes Diaz mocked himself. Phillip Adams and I starred in a grainy black and white newsreel of chardonnay socialists fleeing Abbott’s Australia.

Ten minutes into that melee Chas Licciardello gave the “boring pundit” Chris Kenny a serve: “I enjoyed the way he took almost an hour after Tony Abbott’s victory speech before he started demanding cuts to the ABC.” And there was Kenny on the screen with urgent advice for the new government: “They need to actually start to question the $1.1 billion they throw to the ABC for instance…”

Andrew Hansen agreed: “They’ve just got to cut ABC funding. This is a network that broadcasts images of Chris Kenny strangling a dog while having sex with it.” There were better jokes and better laughs that night but the studio audience let out a happy roar when Kenny’s head appeared crudely pasted on a man with his pants down mounting a Labradoodle. A sign said: “Chris ‘Dog Fucker’ Kenny”.

“Disgusting,” said Licciardello. “Very childish,” added Hansen. “I mean they have got to be cut, they’ve got to be cut.”

The Chaser saw it as a joke against the ABC as much as Kenny, a self-defeating joke about an outfit so wasteful and silly it would lash out like this against one of its most relentless critics. Licciardello explained to Guardian Australia: “It was meant to be about poking the bear in the most over-the-top, ill-advised way.”

The ABC lawyers had cleared the skit. The show was watched by 1,323,000 people. The ABC received only one complaint. It wasn’t from Kenny. Licciardello had assured the team there would be no trouble from him. He knew Kenny as a thick-skinned pro with a robust sense of humour.

The dog joke has form. After an Indonesian paper depicted Howard and the foreign minister Alexander Downer in 2006 as humping dingoes – their crime was to give 42 West Papuan independence campaigners temporary protection visas – the Australian retaliated with a cartoon of President Yudhoyono as a dog having sex with an unhappy Papuan.

John Howard was unfazed by the Indonesian effort: “I've been in this game a long time. If I got offended by cartoons – golly heavens above, give us a break.” President Yudhoyono shrugged off Bill Leak’s reply. “It's in poor taste,” said his spokesman. “Sometimes the media . . . both in Indonesia and other countries, resort to poor taste, which actually demonstrates the level of their quality.”

Guardian Australia asked the Australian’s editor-in-chief, Chris Mitchell, if he ever apologised for the Leak and what he saw as the difference between that cartoon and the image of Kenny and the dog. He replied: “Bill’s cartoon was in response to one published about Alex Downer on page one of the tabloids in Indonesia.”

The furore over those 2006 cartoons quickly faded. But they featured the prime minister of Australia and the president of Indonesia. The Chaser had mocked Chris Kenny.

For a few days Licciardello’s assessment of Kenny seemed justified. He responded the morning after the broadcast as a hardboiled journalist might after being roughed up by a bunch of comedians: he joked back. “Betrayed by @ChasLicc,” he tweeted. “Heartbroken. Chas, I’ve left your dog suit on the porch.”

On Sky next night, Kenny was hurt but still managed to laugh: “They have had their fun with me,” he said. “I take their point: I will never criticise the ABC again. They have now silenced me. I am only joking of course. I’ll keep criticising the ABC and it will be fun to see what they do next. What can they do next? They have defamed me. They have shown me up a dog. What will they do next, next time I criticise the ABC? We’ll see. Keep watching.”

His son Liam swiftly contradicted his claim that the Kenny children would be hurt to find the skit on the net. “Kenny is a staunchly neo-conservative, anti-progress, anti-worker defender of the status quo,” the son wrote on the Junkee website. “He is an unrelenting apologist for the Liberal party. He was one of Alexander Downer's senior advisers at the time of the Iraq War … and it's a jokey picture of a bestial embrace that I should be afraid of discovering online?”

Kenny senior tweeted: “I am proud of my children, love them deeply, and encourage them to think for themselves.”

But the News Limited journalist’s mood darkened. He wanted someone from the ABC to ring. “I was astonished that there was no response from the ABC to reach out and say they had gone too far,” he told Guardian Australia. He had watched the show with his young, pregnant wife. “It’s not just about you but whoever you’re sharing your bed with. I saw it as a horrible slur on her as well as me.”

Kenny had allies. The shock jocks were marshalling behind him. Complaints began arriving at the ABC in bulk: 188 in all. Andrew Bolt wrote a column not intended to be funny that began: “I am nervous. I saw what the ABC did last week to a friend who called for balance…”

Though Bolt has campaigned hard for his right to offend, insult, humiliate and intimidate light-skinned Aboriginal people, he now weighed in on Kenny’s behalf: “Yes, the graphic was clearly fake. But the issue is that it was obscene, humiliating and viciously abusive…”

When Media Watch condemned the skit, the Chaser Team offered a picture of Paul Barry mounting a pig. Same legs and backyard. Different animal. “Of course I am not going to sue,” said the Media Watch host as he put the picture to air. “But what would happen if Chris Kenny decided to do so?”

The lawyers’ letter came three days later. Whatever has since been said about Kenny wanting no more than an apology, let this be clear: he was asking for money on day one – for an apology, removal of the picture from the ABC website and payment of “an amount in compensation for the damage caused”. The figure he would put on his hurt and pain was $95,000.

News Limited was hammering Mark Scott and the ABC. The themes were familiar: an organisation out of control, politically biased and wasteful. Scott’s critics were provoked rather than mollified by his admission that he personally found the Chaser skit tasteless and undergraduate. But Scott continued to defend its broadcast. “It was over the top,” he told the Age. “However, our editorial policy is to give very broad licence around comedy and satire, and properly so.”

A few weeks after the broadcast, the ABC’s audience and consumer affairs division dismissed the complaints against the show. Though “likely to offend” the skit was deemed legitimate satire with “a clear editorial purpose and was ultimately considered to be justified in the context”. That decision was then appealed to the Australian Communications and Media Authority, ACMA.

By this time, three teams of lawyers were investigating the old intractable question: how do jokes work? Why we laugh is a mystery that’s never likely to be solved. But why jokes offend is much easier to decide: in life and at law jokes most often come unstuck when they can be taken literally.

From start to finish, Kenny’s solicitor, the leading Sydney defamation specialist Patrick George, claimed the Chaser boys were suggesting Kenny actually had sex with animals and was the sort of lowlife who engaged in bestiality of a most perverted kind.

The ABC’s lawyers were absolutely confident no jury would believe that. The image was obviously fake, a clumsy digital mock-up that could not to be taken literally, especially in the context of a satirical show. They saw the skit being, at worst, on the margins of defamation. Though they believed a judge would let it through to a jury, they saw a number of strong defences available to the ABC: comment, contextual truth and qualified privilege.

When the broadcaster refused to retract, apologise or pay, Kenny decided, “Bugger them, I am going to fight this.” He does not deny he had News Limited’s financial backing to take the ABC to court. “I don’t want to go into that,” he said. “I could not have asked my employers – both at News and Sky – to be more supportive of me.”

Journalists can sue for defamation. There is no rule of the trade that says they can’t defend their reputations in court. Though rare, it happens. When it does, journalists tend to look for some big reason to overcome their commitment to the freest possible speech. Kenny claimed – not as a joke any longer – that the ABC was out to silence its critics.

Not that he let up. Since the Chaser skit went to air Kenny has continued to attack the ABC with all his familiar energy. On his list have been salaries paid to ABC executives and presenters; Barrie Cassidy’s appointment as (unpaid) chair of the Old Parliament House museum; and the deplorable collaboration with Guardian Australia to report the Yudhoyono phone taps which, he said, showed none of the maturity required by “an organisation with the charter obligations and public funding of the ABC”.

Kenny has continued to belittle the ABC’s coverage of climate change, accuse the national broadcaster of being out of touch with the taxpayers and lately claimed the ABC is dividing the nation by promoting “a progressive or green left world view that sets it against mainstream Australia”.

So they haven’t silenced him? “No. But this sort of extreme ridicule can only have a chilling effect. We should be able to have full and robust debate without retaliation of this kind.” You would say the same about critics of News Limited? “Of course.”

A few days before Christmas, ACMA gave the ABC the thumbs down. The broadcasting regulator had come to a preliminary finding that “the high level of offence” given by the skit “was disproportionate to the satirical purposed advanced … and therefore its inclusion was not editorially justified.”

The ABC insisted, in reply, on its right to make shows for particular audiences: “We know from the feedback we receive from our audience that viewers falling outside the target audience can find programs like The Hamster Wheel, Ja’mie Private Schoolgirl or The Elegant Gentleman’s Guide to Knife Fighting baffling, shocking and deeply offensive. But the response from target audiences is strikingly different…”

The regulator was still reconsidering its verdict when Kenny v the ABC reached the NSW Supreme Court in March this year. The opening round of a defamation case sees a judge sitting alone deciding what claims can later be put to a jury. Justice Robert Beech-Jones clearly loathed the skit, which he condemned as “a massive exercise in ridicule”.

But he dealt Kenny’s case a perhaps fatal blow. The picture of the reporter and the Labradoodle could not, he decided, be taken literally. “The reasonable viewer, in my view, could not possibly have considered that such a lightweight show as this would be the forum for exposing actual instances of bestiality.”



That left Kenny only able to claim the Chaser boys had shown him to be, in the words of the judge, “a contemptible person”. The right jury and a powerful barrister could bring that home for Kenny. But the verdict would depend largely on how he withstood a wide-ranging – and inevitably hostile – cross-examination about the ins and outs of his long career.

Kenny appealed. His lawyers clearly regarded it as vital that he be able to stand before a jury and say: The Hamster Decides showed him literally having sex with – and strangling – dogs. Both sides appeared to understand that without that Kenny’s chances of success were slim.

But politics were coming to matter far more than the law. Kenny and News Limited had a remarkable ally. In the aftermath of Beech-Jones’s decision, Tony Abbott had intervened, giving his view of a yet-to-be-decided court case and, at the same time, delivering an unveiled threat to Mark Scott and the ABC.

“Government money should be spent sensibly,” the prime minister told Ben Fordham of Sydney radio station 2GB. “And defending the indefensible is not a very good way to spend government money. And next time the ABC comes to the government looking for more money, this is the kind of thing that we would want to ask them questions about.”

Abbott’s threats worked. Left to choose between defending satire or the budget of the ABC, Scott went with the budget. A few days after the prime minister’s comments, Kenny had a call from Scott, who gave the journalist a long and expansive apology that was followed up in writing and published widely by News Limited papers and elsewhere.

The case had travelled into uncharted territory. Scott’s apology was delivered without any quid pro quo. Normally apologies are not made until a settlement is thrashed out between the parties. That hadn’t happened. The ABC had lost no legal advantage by making the apology, but it was now politically impossible to fight Kenny in court.

The Chaser team marked the apology by posting a fresh buggery joke online: this time Scott was shown mounting an enormous hamster. He didn’t threaten to sue. “He did exactly the right thing,” remarked the Chaser’s Julian Morrow. “He showed he was above it. Perhaps we should have used a hamster all along.”

News Limited celebrated with editorials and triumphant commentary. This was a big victory in their long campaign against the ABC and its managing director. An editorial in the Australian deplored how long it had taken to get to this point. “But ABC managing director Mark Scott’s apology to The Australian’s Chris Kenny is welcome. Mr Scott finally bowed to public pressure and decency.”

Miranda Devine pulled out all stops in the Telegraph: “This wasn’t mere satire, this was demanding silence with obscene menaces. This was Scott giving the green light to vicious Chaser executive producer Julian Morrow, 39, and anyone else at the ABC to defame and vilify critics of the taxpayer-funded media outfit. This was a terminally weak leader outsourcing defence of his organisation to bovver boys, like Putin is outsourcing his Ukraine invasion to bikers and military ‘tourists’.”

The fight had now come down to money. With the apology made, the ABC proposed the case be dropped with each side paying its own costs. Kenny wouldn’t have it. “They dug in and spat in my face,” he told Guardian Australia. “They are so belligerent I’m disappointed it didn’t end up in court.”

But it didn’t. Two months of negotiations led to another version of Scott’s apology being broadcast on ABC 1 before the latest episode of Jonah from Tonga, a couple of dismissive tweets from the Chasers – attacked in a fresh editorial in the Australian – and then Friday’s little ceremony in the NSW Supreme Court.

We asked the Australian’s editor-in-chief, Chris Mitchell: “How does your support for Kenny square with your call for overhauling the Racial Discrimination Act? Why do light skinned Aborigines have to suck it up in the name of free speech when they are offended, insulted, humiliated etc, but when Kenny is offended etc he has a right to an apology and damages?”

Mitchell replied: “Silly question. Our point on 18C is precisely that other remedies – the defamation law for instance – exist.”

Kenny is happy enough with the outcome. He says he doesn’t regret suing even though “the last thing you want to do is appear wounded and show they’ve hit the mark”. From sources, Guardian Australia understands a cheque for $35,000 is on the way. “I’ll take my wife to dinner,” said Kenny.

ACMA will report in the next week or so. It is expected to condemn the ABC.

The Chaser team cannot speak freely about the outcome. They are not parties to the settlement but have promised not to “detract” from the ABC’s apology. They have not had to apologise themselves, but they have given up any dream of fighting on. As far as they are concerned it’s over.

Asked what the lesson of the case is, Morrow paused for a moment and ventured: “That the culture war hasn’t got beyond a joke.”