Any person who cringes at the very mention of our commercial ‘current affairs’ programs, will enjoy reading yesterday’s High Court’s decision relating to a ‘Today Tonight’ broadcast.
The High Court, in a 4-1 majority (Justice Heydon dissenting), held that Channel Seven broadcasters had, through its stories on Today Tonight, engaged in misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act: ACCC v Channel 7 Brisbane Pty Ltd  HCA 19. In particular, the Court held that Channel Seven was not entitled to rely on the ‘publisher’s defence’ in s 65A of the Act.
The broadcast in question took place in late 2003 and early 2004 and related to a ‘property investment training program known as “the Wildly Wealthy Women”‘ (WWW). The ACCC alleged that Channel Seven broadcasters had made ‘misleading representations that one of the WWW principals was a millionaire and the other owned in excess of 60 properties when this was not the case.’ The Principals were offering to ‘teach women how to become wealthy through investments in real estate’ – naturally for a fee of approx $3,000 per person.
The Court held that ‘in circumstances where the broadcaster had entered an arrangement or understanding with a third party and endorsed or adopted the misleading representations of that third party in its publication it was liable for any misrepresentations made’. (See ACCC Press Release)
The case was initiated in 2005 and in 2007 Justice Bennett found in favour of the ACCC. In response to Justice Bennett’s original decision, Graeme Samuel stated: “This judgment is a warning to broadcasters who rely on promoters or public relations firms for stories: If you adopt their spin as your own and your broadcast is false or misleading, you may be breaching the Trade Practices Act.” (see 2007 press release)
Channel Seven then successfully appealed this decision – the Full Federal Court held that, although the representations made by Channel Seven broadcasters were misleading, they were protected by the s 65A exemption. The High Court has now – thankfully – re-instated the decision of Justice Bennett, finding that there was an ‘exception to the exemption’ applicable here, preventing Channel Seven relying on protection from s 65A.
Unfortunately, I am not optimistic that it will raise the quality of current affairs programming on our commercial networks … but we can live in hope.