Naming real people in a play or comedy set.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.

A performer can be sued for defamation for what they say on stage in the same way as for anything published anywhere else. The uniform Defamation Act 2005, enacted in each state and territory, sets a single national test. A person can sue if matter is published to at least one other person, the matter is defamatory, the matter identifies them, and the publication has caused or is likely to cause serious harm to their reputation. A live performance to an audience is a publication. So is a filmed set uploaded later, or a script handed to a producer.

Matter is defamatory if it would lower the person in the eyes of ordinary reasonable members of the community, or lead people to shun, avoid or ridicule them. Comedy does not change that test. A joke can carry a serious sting, and an audience can take a punchline as an assertion of fact about the person named. The question is not whether the room found it funny. The question is what ordinary reasonable people would understand the words to mean about the person.

Can you be sued for naming a real person on stage?

Yes. Naming a real person, or describing them so that the audience knows who is meant, is the most direct way to attract a claim. The 2021 defamation reforms added a serious harm element, now found in section 10A of the Act in New South Wales and most jurisdictions, with Western Australia and the Northern Territory adopting the model later. A plaintiff must prove the publication caused, or is likely to cause, serious harm to reputation. A court can decide that question early, before a full trial, which weeds out trivial claims. It does not protect a performer who makes a real and damaging allegation about a named person.

There is also a gate before any case starts. Under section 12B a person cannot begin defamation proceedings without first giving the proposed defendant a concerns notice that sets out the imputations they complain of. That gives the writer or performer a chance to respond, and to make an offer to make amends. Ignoring a concerns notice is a mistake. It removes an early exit and can add to the cost if the matter runs.

How does the law decide a character is really you?

A performer does not have to use a real name to be sued. The test for identification is whether ordinary reasonable people, with the knowledge they have, would understand the character or the words to refer to the plaintiff. The High Court applied that approach in Lee v Wilson & Mackinnon (1934) 51 CLR 276, where the question was who a published statement pointed to. If enough detail lines up, the job, the suburb, the family, the well-known incident, the audience will make the link, and the law treats the person as identified.

Fiction is not a shield on its own. In the classic English case E Hulton & Co v Jones [1910] AC 20, a newspaper invented a character with a name that turned out to match a real barrister, and the real person recovered damages even though the writer never meant to refer to him. Intention to target someone is not required. A composite character built from several real people can still identify one of them if the identifying features point clearly enough to that person.

Does satire or comedy have its own defence?

No. Australian defamation law has no standalone defence of satire, parody or comedy. A performer cannot avoid a claim simply by calling the material a joke. What matters is how the ordinary reasonable audience would understand it. If a comic dresses a factual allegation as a gag, and the audience takes it as a claim that the person really did the thing, the joke can defame just as a straight statement would.

Where comedy does get protection is through the general defences, and honest opinion is the one that fits satire best. Comment that is plainly opinion rather than a statement of fact, on a matter of public interest, and based on facts that are true or stated, can be defended. That is why sharp commentary about a public figure’s public conduct is safer ground than an invented smear about their private life. The protection comes from the opinion being recognisable as opinion and resting on real facts. The humour adds nothing to it.

What defences can a writer or performer rely on?

The main defences sit in the Act. Justification under section 25 protects a statement that is substantially true. If the thing said about the person really happened, and it can be proved, truth is a complete answer. Contextual truth under section 26 helps where some imputations are true and others are not, and the true ones mean the false ones do no further harm to reputation.

Honest opinion under section 31 protects opinion, as opposed to fact, that is on a matter of public interest and based on proper material, meaning facts that are true or privileged and are set out or well enough known. The public interest defence in section 29A protects a publication about a matter of public interest where the maker reasonably believed publishing it was in the public interest. These defences reward material that is grounded in real, checkable facts. They give little help to an allegation a performer cannot back up.

Do fiction disclaimers actually work?

A line such as “any resemblance to real persons is coincidental” has limited legal effect. If an ordinary reasonable audience would still identify a real person from the character, the disclaimer does not undo the identification. Courts look at what the audience would understand, not at a form of words in the program. A disclaimer that is contradicted by obvious real-life detail can even look like an attempt to have it both ways.

Disclaimers still have a place, because they can support a genuine claim that a work is not about anyone real, and they set the audience’s expectations. They work best when the work is in fact fictional and the identifying detail has been changed. The stronger protection is in the writing: change names, blur or combine identifying features, and avoid pinning a specific, damaging and false allegation onto a person the audience can recognise.

What about naming a company, or someone who has died?

Most companies cannot sue for defamation. Under section 9 of the Act a corporation can only sue if it is an excluded corporation, meaning it is not for profit or employs fewer than 10 people. A large company named in a show usually has no defamation claim, though it may have other legal options, and the individuals behind it can still sue in their own names if they are identified and defamed.

You cannot defame the dead. A defamation action does not survive for the benefit of a deceased person’s estate, so a historical figure or a person who has died cannot be defamed in the legal sense. Care is still needed, because living people connected to the story, a surviving spouse, a business partner, a child, can be identified and defamed by what is said about the events, and they can sue in their own right.

What a writer or performer should do before opening night.

Treat a script or set that names or draws on real people as a legal question, not just a creative one. Work through each real person the work identifies and ask what is said about them, whether it is fact or opinion, and whether the facts can be proved. Keep the sources for anything presented as true. Where the material is opinion, make sure the facts it rests on are true and clear to the audience, so the honest opinion and public interest defences are available.

For a biographical show, a documentary theatre piece, or a set built around a named public figure, get the script reviewed before it is locked and before it is filmed. A filmed set that goes online is published again to a wider audience, which raises the stakes. Advice at the drafting stage is far cheaper than a concerns notice after the season has sold out. Our notes on defamation and the performing arts, the serious harm threshold, and the honest opinion defence go into these points in more detail.

Frequently asked.

Can I be sued for a joke about a real person?

Yes. Australian defamation law has no special defence for comedy or satire. If an ordinary reasonable audience would understand a joke as a claim of fact that lowers a real person's reputation, it can be defamatory even though it was meant to be funny. The safer ground is opinion that is clearly opinion, on a matter of public interest, and based on facts that are true and stated. A punchline that asserts a false fact about a named person carries real risk.

Do I have to name someone for them to sue?

No. The test is whether ordinary reasonable people would understand the character or words to refer to the plaintiff. If the job, location, relationships or a well-known incident line up, the audience can identify the person without a name. In the classic case of E Hulton and Co v Jones, even an invented character was found to identify a real person, and the writer's intention to refer to them was not required.

Is satire a defence to defamation in Australia?

There is no standalone satire or parody defence. Satire is protected only to the extent it fits a general defence, usually honest opinion under section 31 of the Defamation Act 2005. That defence covers material that is opinion rather than fact, on a matter of public interest, and based on proper material that is true or stated. Comment on a public figure's public conduct is safer than an invented allegation about their private life.

Does an 'any resemblance is coincidental' disclaimer protect me?

Only to a limited degree. If an ordinary reasonable audience would still identify a real person from the work, a disclaimer does not remove the identification, because courts look at what the audience understands rather than a form of words. Disclaimers help most when the work is genuinely fictional and identifying details have been changed. The stronger protection is in changing names and features so no real person is recognisable.

What must someone prove to sue me for defamation?

Since the 2021 reforms, a plaintiff must show that matter was published to a third person, that it was defamatory, that it identified them, and that it caused or is likely to cause serious harm to their reputation under section 10A. They must also give a concerns notice under section 12B before starting proceedings. A performer can defend a claim with truth, contextual truth, honest opinion or the public interest defence, depending on the facts.

Can I put a real, living public figure in my show?

You can, but with care. A public figure can sue like anyone else, and being well known does not remove their reputation. The safer path is to keep the material to their public conduct, to present criticism as opinion based on facts that are true and stated, and to avoid false factual allegations about their private life. For a biographical or controversial show, have the script reviewed before it is locked and before it is filmed.

If you are a performer, producer, venue, or independent practitioner and this raises a question about your own situation, Aaron Kernaghan and the team at Brady & Associates Lawyers can give you tailored guidance. Call 0421 717 019 or contact the firm.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship. It reflects the law in Australia as at 26 September 2026, with a focus on Commonwealth law and New South Wales and ACT practice. The law changes and applies differently to every set of facts. Written by Aaron Kernaghan, Brady & Associates Lawyers.

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