A full bench of the Federal Court has reversed an earlier decision by a single judge of the court that Channel Seven had contravened section 52 of the Trade Practices Act 1974 during broadcasts of Today Tonight in late 2003 and early 2004 in stories about a property investment program known as 'the Wildly Wealthy Women mentoring program'.
Channel Seven had appealed against the October 2007 decision of Justice Bennett which found that Channel Seven had made misleading representations that one of the principals of the WWW mentoring program was a millionaire and the other owned in excess of 60 properties when in fact this was not the case. Justice Bennett also found that the Channel Seven broadcasters were unable to rely on the so-called 'publisher's defence' in s65A of the Act, which would have exempted them from the reach of s52.
The Full Court agreed that Justice Bennett was entitled to find that the representations were made by the Channel Seven broadcasters and that those representations were misleading. However, the Full Court did not agree with Justice Bennett's construction of s65A and found that section did exempt Channel Seven's conduct from s52.
Critical to the outcome was the statutory construction of s65A of the Act which sets out the parameters of the publisher's defence.
The ACCC is seeking advice on the Full Court's decision and is considering its implications for the application of the Act to the conduct of broadcasters and publishers.
The Full Court's decision does not affect the consent orders made by Justice Bennett against the WWW principals on 12 October 2007.
