Defamation on the Television

Whilst defamatory matter that is in the written form can be read by a reader at his or her leisure, re-read at a later date, and copied and provided to others, a television broadcast cannot be. Furthermore, a television viewer may not see the whole television broadcast and may not watch it as attentively as perhaps someone may read a newspaper or magazine article. A television broadcast is said to be in transient form because it is not published in a permanent form. 

“What is relevant is the context in which the ordinary, reasonable viewer or listener would consume the matter.  The ordinary, reasonable listener or viewer is intended to embody the reaction of the original audience of the matter, not the reaction of those who might seek out the matter at some later time or date.”¹

Often television broadcasts are national so that they can create a question for the aggrieved as to which jurisdiction to commence his or her proceedings in. The national, uniform defamation laws in Australia provide that the jurisdiction in which proceedings should be commenced is the jurisdiction “with which the harm occasioned by a publication of matter has its closest connection”. Usually, this is the jurisdiction in which the aggrieved has the best or most well-known reputation².

To bring a defamation claim, there are three elements that the defamatory material must contain. They are:

1. The material must be defamatory;
2. The material must identify the Plaintiff; and
3. The material must have been published to a third party.

“Defamatory matter is the publication of matter which tends to lower a person’s reputation in the estimation of his or her fellows by making them think less of that person, usually by bringing the person into hatred, contempt or ridicule”: Parmiter-v-Coupland (1840) 6 M & W 105.

It is not necessary that a viewer of a television broadcast know the aggrieved’s name, so long as there are sufficient particulars to identify the person from others such as their address as was the case in Channel Seven Sydney Pty Ltd-v-Parras³.

There have been many cases regarding defamation in television broadcasts.  Below appear some of them.

Pahuja v TCN Channel Nine Pty Ltd [2018] NSWSC 893

In this case, the Plaintiff brought proceedings against Channel Nine for a broadcast in its “A Current Affair” program in which he was portrayed as having been part of an immigration scam whereas what had actually occurred was that he had innocently attended the office of a migration agent with his housemate and was secretly filmed whilst there. Parts of that film appeared in the broadcast of “A Current Affair”. The Defendant, Channel Nine, sought to run a defence of truth (or also called justification). In the broadcast, the Plaintiff was named and part of the secretly filmed video of him at the migration agent’s office with his friend, was aired. The jury found that the broadcast was defamatory of the Plaintiff and he was awarded $300,000 in damages.

Sands v Channel Seven Adelaide Pty Ltd & Anor [2009] SASC 215

The Plaintiff brought proceedings against Channel 7 for the promotion of a segment in its “Today Tonight” program in which it alleged that he had accompanied his South Australian MP girlfriend on an overseas trip that was funded by taxpayers and that he was the suspect in a murder case. The South Australian MP girlfriend successfully sought an injunction to stop the broadcast of the segment but, in any event, the Plaintiff brought defamation proceedings in relation to the advertisements that appeared on the television, radio and internet promoting the program. 

The Plaintiff pleaded that the defamatory imputations included that he was a murder suspect and that there were reasonable grounds to suspect him. Channel 7 raised the defences of justification and qualified privilege. A third defence, that the publication constituted fair comment on a matter of public interest, was struck out on the grounds that the statement made could not be classified as a “comment” and that the matters pleaded as material upon which the ‘comment’ was based extended beyond the matters that an ordinary viewer could be aware of. 

Justice Belby stated at [124] that the question of whether the broadcast was defamatory must be decided “on one’s initial impression” given the fact that some viewers may have only seen the broadcast advertisements for the program once. He noted a comment by Kirby P in TCN Channel 9 Pty Ltd-v-Mahony:

“Above all, it would preserve the integrity of the trial by requiring that the primary question be decided upon initial impressions (as would be the case of the ordinary viewer or listener) rather than by extended re-examination and repeated viewing and listening to the offending program (not ordinarily available to the viewing and listening public).”

The Court found that Channel Seven’s defence of justification succeeded and that the Second Defendant, the ABC was also successful with its defence of fair and accurate report of public proceedings.  Therefore, the claim failed.

Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90

The Plaintiff, Mr Holt lived on the Gold Coast in Queensland with his wife Mrs Holt and their three sons. Mrs Holt was diagnosed with cancer and subsequently died from that illness in late December 2009. Prior to her death Mrs Holt obtained a divorce from Mr Holt. On 28 July 2009 Channel Nine broadcast a segment on its “A Current Affair” program about Mr and Mrs Holt. Mr Holt claimed that he was defamed in the “A Current Affair” program. The broadcast criticised Mr Holt’s conduct towards Mrs Holt while she was ill.   

At first instance, in the Supreme Court, Mr Holt was awarded damages of $4,500 plus $400 interest. The Court found that the broadcasted program carried the following imputations about him, that he:

• Abandoned his wife to die in  hospital;
• Behaved disgracefully by refusing his dying wife to return to her own home from a hospital”
• Had treated his wife like a dying animal;
• Had treated his wife in an appalling manner;
• Wanted his wife to die”;
• Callously withheld money from his dying wife which had been paid out to her pursuant to an insurance policy in respect of her terminal cancer; and
• Had misused thousands of dollars which had been paid to his wife .

He appealed the decision to the Court of Appeal, but the appeal was dismissed.  It was held that the award of damages to him was reasonable and not manifestly inadequate.

Nicole Cornes v Channel Ten [2011] SASC 104

This case was tried in the Supreme Court of South Australia.  The Plaintiff was a journalist who had also stood as a Labor Party candidate in State elections. She is married to a prominent AFL footballer. The defamatory material was said to be published by comedian Mick Molloy who appears on an AFL football show on Channel Ten called “Before the Game”. During a live interview with Stuart Dew, a prominent AFL footballer talk turned to Dew’s sex life and his (by then) previous relationship with the actress, Teresa Palmer. A panel member then recounted that the Plaintiff had written an article stating that she loved Dew because he had a rose garden which he had tended. Another panel member, the now Defendant Molloy, then stated in a very clear voice: “[a]nd apparently you slept with her, too.” The plaintiff sued. She was successful in being awarded damages of $85,000.00. The Defendant unsuccessfully argued that Mick Molloy is a well-known comedian and he made the comment in jest and, had the comment been taken in that context, the ordinary reasonable viewer would have realized that the statement was not true. An apology was read by Mick Molloy on a subsequent airing of the program “Before the Game” but the Plaintiff said that she did not believe that he was genuine in making that apology.

Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182

The Plaintiff, Dr Haertsch, a plastic surgeon sued Channel Nine in relation to a segment on its “A Current Affair” program. The jury found that the broadcast program imputed, among other things, that he was an incompetent plastic surgeon. The defences of truth and contextual truth failed. In the program, complaints about the surgeon had been made by a Miss Andrea Chia, a 23 year old, who had consulted Dr Haertsch for breast augmentation and enlargement of her breasts by way of silicone implants. She developed complications post-surgery and had to have one of the implants replaced twice. Complaints were also made by a woman by the name of “Anne” who had asked Dr Haertsch to remove both of her breasts as she wanted to be flat chested. Dr Haertsch performed the surgery and was later disciplined by the Medical Board of Queensland for not either referring her for psychiatric assessment prior to the operation or giving her a cooling off period. Evidence was given in the case of the excellent reputation of Dr Haertsch. Following the airing of the program, Dr Haertsch became withdrawn, depressed, was hurt and angered. In awarding aggravated damages, Nicholas J made the following comment at [62]:

“His reaction to this piece of gutter journalism would surprise nobody. The defendants’ conduct manifestly lacked bona fides, was improper and unjustified in the circumstances. It attracts an award of aggravated damages.”

Damages for non-economic loss were awarded to the Plaintiff in the sum $251,700.00. Damages for economic loss were also awarded and were assessed at $16,219.

Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632

In this case, the Plaintiff was a Deputy Mayor at Shellharbour City Council. The television broadcast was on the news and an article about it was also made available on the internet. The news and article alleged that the Plaintiff had mishandled the implementation of new technology at the Shellharbour City Council. The Plaintiff complained that the imputations asserted that she took a bribe and was corrupt. The Defendant pleaded justification, contextual truth, and qualified privilege defences. The Plaintiff in this case was successful and was awarded $200,000.00 including aggravated damages.

Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2013] NSWSC 1651

The Plaintiff in this case brought an action for defamation and injurious falsehood in relation to a program that was broadcasted on Channel Nine that alleged that there were defects in a baby device called, Babywedge, that assists when babies have reflux and colic. The broadcast was a news item that included a United States Federal Drug Administration and United States Consumer Product Safety Commission warning not to use baby positioners such as Babywedge as they can put babies in dangerous positions. Babywedge was not named in the broadcast but it was shown with its distinctive shape and orange colour.  Following the broadcast, numerous customers sought refunds and many enquiries as to whether the product was dangerous to babies were made to the Plaintiff. The Court found that none of the alleged defamatory imputations were carried by the broadcast. The Court also found that the defences of truth and contextual truth were made out because the Babywedge device could be dangerous to babies in that it provides a suffocation risk.  Accordingly, judgment was given in favour of the Defendant.

Fisher v Channel Seven Sydney Pty Ltd (No. 4) [2014] NSWSC 1616

The Plaintiff sued for defamation as a result of the broadcast of a segment, entitled “Bus-ted Driver” on the television program “Today Tonight“ on 6 June 2011 which accused the Plaintiff of misconduct as a driver of a bus, carrying school children. The Defendants relied on the defences of truth, contextual truth, innocent dissemination, and honest opinion (or also known as fair comment). The Defendants were ordered to pay compensation of $125,000.00, even though it was held by the jury that some of the defamatory imputations about the bus driver were in fact true.

Poniatowska v Channel Seven Sydney Pty Ltd (No. 4) [2016] SASC 137

This was a defamation case that arose because of a segment on Channel Seven’s “Today Tonight” program about the Plaintiff failing to declare income received as a sales consultant to Centrelink for which she had been criminally convicted by a Court. The convictions were set aside on appeal. The Defendants pleaded the defence of justification (truth), fair report of proceedings, and qualified privilege. The Plaintiff claimed that the program falsely imputed that she had defrauded Centrelink. The Court found in favour of the Defendants and dismissed the Plaintiff’s claim.

Conclusion

As illustrated by the abovementioned cases, defamation on television can amount to defamation if the element can be proven. Most of the time, shows such as “A Current Affair” and “Today Tonight” have a large audience, so defamatory statements and stories on these shows can be arguably more detrimental than other means of publication.