The media exemption from sections 52, 53, 53A, 55, 55A or
59 under section 65A of the Trade Practices Act is wide.
But doesn't apply if they are promoting goods and
services of the kind that they supply themselves.
Media in Australia enjoy a safe harbour in the Trade
Practices Act, in section 65A. This says that the prohibitions
on publishing "misleading" information in sections
52, 53, 53A, 55, 55A or 59 generally don't apply to
"a prescribed publication of matter by a prescribed
information provider" (such as a newspaper).
But what does this mean? Last week the Full Federal Court
found that the media safe harbour is quite wide indeed, in
Channel Seven Brisbane Pty Limited v Australian Competition
& Consumer Commission and Alan Bond v Paul Barry.
In the ACCC case, Seven's show "Today
Tonight" made two separate broadcasts with items on a
mentoring program marketed under the name 'Wildly
Wealthy Women'. Unfortunately the Women running it made
Wildly Inaccurate claims about the efficacy of the mentoring
program and, indeed, their own financial success. The ACCC
alleged that Seven had breached section 52 by its presentation
of the mentoring program.
In the Bond case, the freelance journalist Paul Barry
emailed a draft article about Bond's business interests
to the editor of the Sunday Telegraph, who then emailed it to
other News Ltd editors. The article was published in various
News Ltd papers. Bond argued that Barry, the editor, and News
Ltd all breached section 52 TPA.
How far does the exemption go?
According to the Full Bench, the exemption applies not only
to "prescribed information providers" (which is
defined in the Act) but also to any licensee of a radio or
television station in relation to any broadcast, unless it
falls within an exception.
There are exceptions to this general exemption; it can be
lost if the prescribed information provider makes a publication
of matter in connection with goods or services, or interests in
in relation to the prescribed information provider;
on behalf of, or pursuant to a contract, arrangement or
understanding with a person (or a body corporate) who
supplies goods or services of that kind, or who sells or
grants interests in land of that kind.
What does this mean? As the Full Federal Court explained, it
means that if the media outlet makes representations about
goods and services of the kind it supplies
itself, or gets someone else to make them, then the
exception doesn't apply.
The flipside of this is that it can enjoy the exemption when
it is referring to goods and services of a kind that it does
not supply - say, mentoring services for women.
How far in the media chain does this apply? The Full Federal
Court in Bond held that it went at least as far as Mr
Barry's email to a news organisation.
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The Federal Court decision is likely to encourage the ACCC to maintain unconscionable conduct as an enforcement priority.
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