Case: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: applied
The Seven Licensees are not liable for these representations unless they were made by the Seven Licensees themselves ( Australian Ocean Line Pty Limited v West Australian Newspapers Limited (1985) 58 ALR 549 at 586 per Toohey J) or unless the Seven Licensees have adopted, endorsed or approved of the women's claims such that those claims become those of the Seven Licensees. It is not in dispute that a corporation may contravene s 52 for disseminating erroneous information supplied by a third party ( Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [113] per McHugh J). Relevant to determining whether a contravention of s 52 has occurred, one important factor is whether the corporation has assumed responsibility for or adopted or endorsed the information so that it would be reasonable for a recipient to rely on the confirmation. If the corporation makes it apparent that it is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity and is merely passing on the information for what it is worth, the corporation does not contravene s 52. Another factor is whether the corporation expressly or implicitly disclaims personal responsibility or a belief in the truth or falsity of the information ( Butcher at [115] per McHugh J). If there were such a disclaimer, the corporation does not contravene s 52. This will not, however, apply where statements of fact are made by the corporation itself. 26 The Commission likens these statements to ' a little footnote at the bottom of the sales pitch which has no real effect on what is being enlivened in the mind of the viewer '. It says that the bookends did no more than ' dangle a carrot out for the viewers ' and that, properly construed, the bookends amount to an encouragement to viewers to watch further items on Today Tonight involving the Mentoring Program. That is said to be insufficient to "modify" the earlier conduct of the reporter ( Butcher at [152] per McHugh J). 27 The reasonable viewer does not have access to a transcript. The degree of analysis to which the Court was taken is not one which would commonly be conducted by viewers of the program. Relevant to the determination of whether the Seven Licensees made the Wildly Wealthy Women representations is the effect on the compere's disclaimer on the representations of the reporter. The question is whether the compere's comments change the overall impression of the first episode, which includes the effect of the representations made by the reporter, such that the reasonable viewer would not consider the fourth, fifth and sixth representations to have been made by the Seven Licensees. Does the compere's disclaimer leave the viewer with the impression that the Seven Licensees have dissociated themselves from the reporter's representation? 28 The Commission submits that the disclaimer and disassociation by the compere are insufficient to counteract the effect of the Wildly Wealthy Women representations by the reporter or to make it clear that the Seven Licensees were not adopting them. The disclaimer, the Commission submits, extends only to the Mentoring Program representations and does not affect or relate to the Wildly Wealthy Women representations made by the reporter. 75 Seven submits that the contract, arrangement or understanding must be one to publish the actual matter which would otherwise attract the statutory prohibition upon misleading or deceptive conduct. It points out that almost every publication or report will invariably involve at least some "arrangement or understanding" with persons which "in a general sense" is in connection with the subject matter of the publication. Seven contends that, if a bare agreement to be interviewed or an agreement to be interviewed on a given topic was to attract the exception to the exemption, s 65A would not fulfil the purpose of its inclusion as outlined in the Second Reading Speech on the introduction of s 65A into the Act ('the Second Reading Speech'). The purpose was described by the High Court in Butcher (at [114] per McHugh J) as operating to exclude media providers, such as television stations, from liability for misleading or deceptive conduct within the meaning of s 52 ' in relation to editorial stories and news '. 76 There are a number of factors that militate against Seven's submissions: &#8226; Paragraph (a) refers to "publication of matter ". It does not specify the publication of "statements" or "representations". "Matter" is a term of broad description; it may, for example, mean the substance of a discourse (Macquarie Dictionary Revised Third Edition). &#8226; The publication may be made " pursuant to " a contract, arrangement or understanding which does not necessarily denote that the matter the subject of the publication be the subject of that arrangement. It may be "according to" or "conformable with" the arrangement (Macquarie Dictionary Revised Third Edition). &#8226; The publication may be made on behalf of the third person and not pursuant to a contract, arrangement or understanding with that person. &#8226; Paragraph (a) refers to the publication of matter in connection with, relevantly, the supply of services. Subparagraph (vi) does not mirror that the publication be "of matter" or refer back to the "publication of matter" in paragraph (a). Once there is a publication of matter in connection with the services, all that is required by subparagraph (vi) is that the publication itself be made on behalf of or pursuant to an arrangement with the third person. &#8226; Paragraph (a) concerns the "matter", the subject of the publication. Subparagraph (vi) concerns the source of the publication, not the subject of the publication. Where the subject of the publication is provided for, the section specifies it: "publication of matter" in paragraph (a) and "publication of an advertisement" in paragraph (b). 77 Subparagraph (a)(vi) refers to "the publication". It is not necessary or appropriate to read into that provision the words "of matter". Subparagraph (vi) does not operate to require that the matter be the subject of the contract, arrangement or understanding between the prescribed information provider and the third person. It is sufficient for the publication to be in connection with the supply of goods or services pursuant to an arrangement with persons who supply goods or services of that kind; it does not have to extend to the actual words spoken in the broadcast. It is the publication that is made on behalf of the third person or pursuant to a contract, arrangement or understanding with that third person. This construction does not do violence to the language of the section nor is it contrary to the purpose of its inclusion into the Act. The alternative construction advanced by Seven requires reading into subparagraph (vi) words that are not there ("of matter") and ignoring the effect of words that are there ("on behalf of").