The High Court has handed down a decision about the scope of
what is sometimes called the "media safe-harbour"
protecting media outlets from liability for misleading or deceptive
conduct under section 52 the Trade Practices Act.
Section 65A of that Act exempts "prescribed information
providers" from the application of section 52, except in
certain circumstances. Television broadcasters holding licences
under the Broadcasting Services Act 1992 are "prescribed
Prescribed information providers do not have the benefit of the
exemption where a misleading or deceptive publication concerns the
supply or possible supply of goods or services and is made pursuant
to a contract, arrangement or understanding with a person who
supplies good or services "of that kind".
In a majority decision the High Court allowed an appeal by the
ACCC against a decision of the Full Court of the Federal Court,
which found that the media exemption under section 65A applied to
members of the Channel Seven network.
The High Court was required to determine what was meant by goods
or services "of that kind". The case concerned the
broadcast of two episodes of Today Tonight containing segments
about a business offering training for women in the arts of
There was no dispute about whether the relevant Today Tonight
episodes contained untrue claims about the wealth and assets of the
two women who were offering the training or whether certain
representations made in the episodes were misleading and
The main question to be determined was whether section 65A
exempted the television stations which carried the broadcast from
the operation of section 52.
The ACCC argued that because of the arrangement made between the
television stations and the two women to broadcast the program, the
broadcast was not covered by the section 65A exemption.
The primary judge had held that the television channels were not
exempt from the operation of section 52 in these circumstances.
The Full Court of the Federal Court, on the other hand, held
that the benefit of the exemption did apply to the
On 14 November 2008, the appellant was granted special leave to
appeal to the High Court from that part of the judgment of the Full
Court which held that the exemption from liability for
contravention of s 52 of the TPA, contained in s 65A(1) of that
Act, applied to the conduct of the respondents.
The High Court allowed the ACCC's appeal, set aside the Full
Court's orders and restored the orders made by the primary
judge. They found that the exemption conferred by section 65A does
not apply to situations in which a media outlet publishes matter in
relation to goods or services where the publication is pursuant to
an arrangement with a supplier of goods or services.
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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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