In June 2008, we reported on the Federal Court's decision
in Bond v Barry, which upheld a defence to a claim of
misleading and deceptive conduct based on s 65A of the Trade
Practices Act (TPA). Section 65A provides a
"safe-harbour" for "prescribed information
A "prescribed information provider" (a person who
carries on the business of providing information) has a defence to
a claim for misleading and deceptive conduct provided that the
publication was made in the course of carrying on a business of
providing information, most notably, media outlets. In Bond v
Barry, the defence was extended to draft publications authored
by freelance journalist Paul Barry.
The s 65A defence has recently been considered by the High
Court in a claim brought by the Australian Competition and Consumer
Commission (ACCC) against Today Tonight. The High Court
determined that Today Tonight could not rely on that
defence because it was not providing "information".
Instead, it had an arrangement in place with a supplier of goods
and services to effectively "sell" or advertise those
goods or services in its broadcast.
ACCC v Channel Seven Brisbane Pty Ltd  HCA
In ACCC v Channel Seven Brisbane Pty Ltd  HCA 19,
the ACCC alleged that in late 2003 and early 2004 Channel 7's
Today Tonight broadcast and thereby effectively adopted
misleading representations about the benefits of the services
offered by a property investment training program, Wildly Wealthy
The broadcasts resulted from an agreement, brokered by a
marketer, between Today Tonight and WWW, pursuant to which
the marketer would receive a commission for every woman who signed
up to the WWW investment program.
Channel 7 did not dispute that untrue representations were made
about the success of WWW, nor that they were misleading and
deceiving. However, it sought protection for its misleading and
deceptive conduct under s 65A of the TPA.
The High Court upheld the primary judge's findings that s
65A of the TPA did not provide a defence to Today Tonight.
It was held that the "safe-harbour" does not apply to
situations in which a media outlet, pursuant to an arrangement with
a supplier of goods or services, publishes and, by adoption or
otherwise, makes representations of a misleading or deceptive
character in relation to those goods or services.
The Court acknowledged that the media "safe-harbour"
provided for in s 65A of the TPA is important in order to maintain
a vigorous free press, but that an effective and enforceable TPA is
Media outlets should be aware, that where an arrangement has
been made with a supplier of goods and services to effectively
"sell" or advertise those goods or services in a
broadcast, the broadcaster itself can face liability for misleading
and deceptive conduct, and will not be able to rely upon s 65A of
the TPA for protection.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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