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Australia – Supreme Court Of NSW Prevents “Today Tonight” From Broadcasting Story Regarding Alleged Extremists.

21 May, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Dispute Resolution

 

Khalid v Channel Seven Sydney Pty Ltd [2014] NSWSC 9

 
What You Need To Know

 

  • The Supreme Court of New South Wales has restrained Channel Seven Sydney Pty Ltd and two of its employees from broadcasting a story on Today Tonight depicting two persons as having been recruited by extremists to fight in the ongoing conflict in Syria. 
  • The Court found that there was a serious question to be tried as to whether the broadcast would breach an alleged “contract” between Channel Seven and the plaintiffs, the critical term of which provided that the plaintiffs were contractually entitled to an advance showing of, and in effect a veto over, any story using footage of them from their interviews. 
  • In reaching its decision, the Court made clear that the free speech considerations that dominate the discussion in cases as to whether an interlocutory injunction is available in respect of a defamatory publication do not apply to a breach of contract claim. 

 
The Facts

 
On 20 January 2014, Justice Beech-Jones of the Supreme Court of New South Wales heard an urgent application for injunctive relief in respect of a television broadcast due to occur at 6.30pm that evening.

 
The two plaintiffs, Sulyman Khalid and Khadijah Alexander, had both had their passports cancelled on security grounds and had instructed a lawyer, Zali Burrows, to challenge the cancellations in the Administrative Appeals Tribunal. The first defendant was Channel Seven Sydney Pty Ltd (Channel Seven) which is responsible for the television programme Today Tonight. The second defendant, Vanda Carson, is a producer of Today Tonight, while the third defendant, David Eccleston, is a journalist who works on the programme.

 
The plaintiffs submitted that they believed that Channel Seven was going to broadcast a story that evening on Today Tonight depicting them as having been recruited by extremists to take part in the ongoing conflict in Syria. The plaintiffs alleged that this was in breach of a “contract” they claimed to have with Channel Seven in relation to the circumstances in which they agreed to be interviewed.

 
In particular, it was alleged that Ms Burrows had agreed, on behalf of her clients, that they would be interviewed for the purpose of a story which it was thought would depict the unfairness of the process that led to the cancellation of their passports. According to the affidavit evidence of Ms Burrows, the plaintiffs were promised editorial control over the story, including the opportunity to have “final say” over what was to be broadcast.

 
The Court noted that the defendants had not yet had any opportunity to give evidence as to their version of events.

 
The Judgment

 
Justice Beech-Jones noted that the test for an interlocutory injunction is well known, and that the Court must consider:

 

  • whether there is a serious question to be tried as to whether the plaintiffs are entitled to relief;
  • whether it has been shown that the plaintiffs are likely to suffer injury for which damages would not be an adequate remedy; and 
  • otherwise, whether it is shown that the balance of convenience favours the granting of an injunction.

 
His Honour was satisfied, based on the material before him, that there was a serious question to be tried as to whether the plaintiffs had an entitlement to contractual relief on the basis that there was a reasonably arguable case that, if Ms Burrows version of events was accepted, then an agreement came into existence.

 
Insofar as the balance of convenience and questions of adequacy of damages were concerned, his Honour found that the potential harm to the plaintiffs’ reputation from the possible depiction of them as extremists or dupes of extremists was reasonably significant.

 
In the circumstances, the Court was persuaded that the balance of convenience favoured granting an injunction for a limited period sufficient to enable the parties to consider the matter further and for Channel Seven to have the opportunity to put on further evidence of its own.

 
The Free Speech Issue

 
One matter raised on behalf of Channel Seven was whether free speech considerations that dominate the discussion in cases as to whether an interlocutory injunction is available in respect of a defamatory publication are equally applicable to a breach of contract claim.

 
With respect to this issue, the Court held that if the plaintiffs claim to have a contractual entitlement to have “final say” over the story was made out then, by its very nature, that legal interest was one which was difficult to reconcile with broader notions of free speech which the discussion in the area of defamation is directed towards. If Channel Seven had agreed to such a term then, according to his Honour, it had, in effect, contractually precluded itself from promoting free speech and similar interests.

 
The Relief Granted

 
The orders ultimately made were that, upon the plaintiffs giving the usual undertakings as to damages, the defendants were to be restrained up to and including 23 January 2014 from broadcasting or publishing the recorded images or spoken words of the plaintiffs obtained during any interview of them by the second or third defendants.

 

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For further information, please contact:

 

Sophie Dawson, Partner, Ashurst

sophie.dawson@ashurst.com

 

James Hoy, Ashurst
james.hoy@ashurst.com

 

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