Case: Carlovers Carwash Ltd v Sahathevan [2000] NSWSC 947
Outcome: cited
The term "freelance journalist" is not explained in the statement of claim. It may be taken to include a person who writes articles for publication in media outlets on the basis that he or she will be paid for articles so published by the relevant media organisation. A freelance journalist is necessarily a person working on his or her own account and not as an employee of a particular media organisation. A person who carries on business as a freelance journalist is plainly within the class of persons described in s 65A as a "prescribed information provider": see Carlovers Carwash Ltd v Sahathevan [2000] NSWSC 947 at [36] (Levine J). 36 In written submissions filed on behalf of Mr Bond and Lesotho Diamond it was argued that "chequebook journalism" is not covered by the s 65A exemption. "Chequebook journalism" is not a term of any statutory significance. It is generally used to describe the practice of media organisations paying non-journalists who happen to have undergone particular experiences to tell the story of their experiences exclusively to the paying organisation for publication by it. So a person who has been involved in some notorious or tragic event or scandal may make himself or herself available, for a fee, to be interviewed exclusively by a particular media organisation who may then publish the interview or a story based upon it. It can be said that selling the story amounts to providing information. That does not however constitute "carrying on the business of providing information". Payment to freelance journalists cannot be equated with the practice of chequebook journalism. 37 The exemption under s 65A applies only to a "prescribed publication of matter". That is a publication by the prescribed information provider "in the course of carrying on a business of providing information". There is a question whether the transmission by a freelance journalist to a media outlet of an article for publication itself constitutes publication. 40 Where more than one construction is open on the statute, that construction should be adopted which is consistent with its purpose. The purpose of s 65A was clearly stated in the Second Reading Speech. To exclude from the exemption the supply of information by freelance journalists to media organisations is to partially defeat that purpose. The communication of news articles to media organisations by freelance journalists is so plainly within the intended purpose of the section that a construction covering it should be adopted provided that construction is open. In my opinion, as stated above, such communication is within the natural and ordinary meaning of publication as publication to the world at large. And even if transmission of an article by a freelance journalist to the editor of a media organisation were to be construed as merely one-to-one communication, the concept of such communication as publication is familiar in the area of defamation law. In Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331 Isaacs J said (at 363): To publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle. In Krahe v Freeman (1988) ATPR 40-871 at 49,430, Rogers J, in a passage cited with approval by Levine J in Carlovers [2000] NSWSC 947 at [44] , said: ... the Fair Trading Act was never meant to be a substitute for actions for defamation. The Parliament has made that clear by the enactment of s 60. In my respectful view, the Court, should be astute not to allow utilisation for a purpose for which it was never intended.