Key Points

  • 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 land:

  • in relation to the prescribed information provider; or
  • 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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