Defamation v code complaint
In 2019 the ABC’s 7.30 program ran a report on the ‘wastage’ of thoroughbred racehorses, revealing that horses were ending up at abattoirs despite an industry policy on rehoming. The report was hard hitting – and in parts, hard to watch. While its focus was on what happened to the horses, including the practices at a particular abattoir in Queensland, it included comments from Peter V’landys, then head of Racing NSW, that state’s regulator of thoroughbred horse racing.
V’landys sued for defamation but his claim was rejected by Justice Wigney in the Federal Court and then, last week, by the Full Court in a judgement delivered by Justice Rares. In rejecting the plaintiff’s arguments about the meanings conveyed by the program, the Full Court found that the program did not present V’landys as lying about his knowledge of the slaughter of racehorses or of turning a blind eye to animal cruelty, as he claimed. The court drew a clear distinction between meanings of that kind and those which it said would have been conveyed to the ordinary, reasonable viewer of 7.30 – namely, ‘that he might have been, or probably was, incompetent as a regulator’.
It’s here that we can see the importance of the decision because – despite its disapproval of the way in which V’landys’ comments were incorporated into the program – it affirms the important role of investigative journalism and, specifically, the role of 7.30 and programs like it – in questioning the conduct of public officials and holding them to account. Because this decision was based on a rejection of the meanings (‘imputations’) that the plaintiff said were conveyed by the program, it isn’t a full exploration of the public interest in investigative journalism – as we might see in the ABC’s use of the new ‘public interest defence’ in the action brought by Heston Russell. But it is a decision that effectively limits a plaintiff’s attempts to recast legitimate points of criticism that emerge from investigative reporting.
It’s a bit disappointing, then, that the significance of the decision seems to have been overlooked in favour of comments about how the interview with V’landys was incorporated within the program. In a paragraph right at the end of the 50-page judgement, after delivering his decision that comprehensively rejected all aspects of the appeal, Rares J commented on the way in which the V’landys comments were presented. The reporter had not shown V’landys the damning footage taken at the Queensland abattoir when asking him questions on practices within the industry, and the program had spliced this footage and comments from other interviewees – critical of the regulator – between V’landys’ comments. Rares J described this as ‘not high quality journalism or fair or decent treatment of him’.
So here we have a comment on ethical standards, separate from the decision on whether, at law, the program defamed V’landys. If the program were to be examined under the ABC’s Code of Practice, presumably it would involve the obligations to ‘provide a fair opportunity to respond’ and to not ‘misrepresent any perspective’. I’m not sure Justice Rares’ criticisms would support a breach finding, but it would clearly be reasonable for the matter to be considered under the Code. And a well designed code with an effective complaints scheme is itself a reasonable alternative to legal action.
Derek Wilding, CMT Co-Director
This article is from our fortnightly newsletter published on 2 June 2023.
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