The ACCC has emerged victorious in a long-running battle against the Seven Network, with the High Court last week ruling that stories broadcast on Today Tonight had breached the Trade Practices Act 1974.
The case related to a series of Today Tonight stories broadcast in late 2003 and early 2004 about a get-rich-quick scheme - a property investment program called Wildly Wealthy Women (WWW). Today Tonight - through a marketing consultant - had struck a deal with WWW to run the series of exclusive stories about the program.
The ACCC alleged that the stories contained untrue representations - in breach of section 52 of the TPA - namely that the WWW principals had made millions through property investments.
While not denying that their representations had been misleading, Seven tried to rely on the so-called "media safe-harbour" found in section 65A of the TPA, which exempts areas of the media from liability for publishing misleading material.
However, Seven's argument, which had succeeded before full Federal Court, was knocked down by a 4:1 High Court majority on this appeal. The High Court held that the media safe-harbour, which is designed to ensure the media is not unduly restrained, did not apply in situations such as this in which the media organisation had contracted with a third party to promote its product or services.
The High Court ordered Seven to pay the ACCC's costs for the Full Court and High Court appeals.
ACCC chairman Graeme Samuel welcomed the win, saying: "Where publishers enter into arrangements with others and adopt their representations they risk breaching the [TPA] and, like every business, must check their facts," he said.