THE High Court today handed down a decision about the scope of the so-called ‘media safe-harbour’ that protects media outlets from liability for misleading or deceptive conduct under the Trade Practices Act. 

Today a majority of the High Court allowed an appeal by the Australian Competition and Consumer Commission (ACCC) against a decision of the Full Court of the Federal Court, which found some media exemptions applied to members of the Channel Seven network. 

The case concerned two episodes of Today Tonight, which contained segments concerning a business called ‘Wildly Wealthy Women’, which offered to train women to make money out of real estate investment.  

In the High Court case, there was no dispute that the Today Tonight episodes contained untrue claims. Nor was it in dispute that some representations made in the episodes were misleading and deceptive.

Section 52 of the Trade Practices Act prohibits a corporation from engaging in misleading or deceptive conduct, but Section 65A of the Act exempts “prescribed information providers” from the application of Section 52 in some circumstances. The High Court allowed the appeal on the Federal Court’s decision that the media exception applied to some Channel Seven broadcasters. 

Last year the Seven Network won the appeal against the ACCC, leading Minter Ellison partner Peter Bartlett to tell The Australian Financial Review that the decision clarified the scope of the media defence in the Trade Practices Act.

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The primary judge today 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 broadcasters.

The High Court granted special leave to the ACCC to appeal the decision of the Full Court.