Talkback radio thrives on exposing bad behaviour. But how far can a ’shock jock’ go before their colourful language becomes malicious comments, actionable at law as injurious falsehood?

This question was answered by Justice Davies in the decision of Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873 [2019] NSWSC 1576 (15 November 2019) Supreme Court of New South Wales.

The tort of injurious falsehood

The Court stated these legal principles:

  • In order to succeed on a claim for injurious falsehood the plaintiff must establish that the defendants have made a false statement concerning the plaintiff’s property or business or goods and that the statement was published maliciously.

The Court quoted with approval what Brereton J said about malice in AMI Holdings v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395:

  • Unlike in defamation, in injurious falsehood malice is also an essential element of the cause of action, to be proved by the plaintiff.
  • Malice is commonly proved by inference. Malice may be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed”.
  • Although mere carelessness or lack of honest belief in the truth of what is published is not conclusive of malice, reckless indifference as to the truth of what is published, as well as knowledge of its falsity, will justify an inference of malice.

Factual Background

Ray Hadley, is a popular broadcaster who has a morning show on radio station 2GB which airs from 9:00 am to midday weekdays in the Greater Sydney Metropolitan area and elsewhere.

In the week of 29 October 2019, Hadley broadcast an exposé upon Omega Plumbing.

Omega Plumbing provides rapid response plumbing, electrical and air conditioning services in the Greater Sydney region. When contacted though its call centre, Omega sends a service technician to the customer’s property promptly to assess the issue and scope of the problem for a call out fee of $79.00. On site, the service technician prepares an Option Sheet with a number of options, each with a scope of work and a fixed price. The price quoted to re-line a blocked drain can be more than $10,000. If the customer signs up, the service technician takes a deposit and contacts the dispatch team to carry out the work.

The broadcasts

Observe how the language became more “colourful” over the four days of the broadcasts:

Day 1 – 29 October: The Court observed that on that day Hadley adopted a “balanced tone … where he fairly quoted from the written response provided by [Omega] to questions asked by [2GB and Hadley]”. In the broadcast, Hadley said:

  • People have raised concerns about overcharging, underqualified staff even doing unnecessary work. Omega Home Services have denied any wrongdoing, saying “we regularly have to give our customers bad news, the repair can run to thousands of dollars”. They’ve been excluded from the Master Plumbers Association, even though their website indicates they are members. You need to be careful because they trade under many, many names.

Day 2 – 30 October: The Court observed that on this and “in the days following the allegations escalated by the use of highly colourful language”. In the broadcast, Hadley said:

  •  I’ve been inundated with a series of complaints about overcharging … they’re thieves. This Omega mob, they go by other names … this is done to dupe people. At the end of the day, if they’re stealing off our listeners we’ve got to identify them and try to do something about it. They’ve been ripping people off for a number of years … 90-year-olds are being ripped off by this organisation.

On its website, 2GB posted:

  • ‘This is crap!’ Ray Hadley exposes more shonky plumbers ripping off listeners … A dodgy plumbing business overcharging customers by thousands of dollars. Omega is trading under 13 different company names, making it even more difficult to avoid their shonky practices. Give them all their money back, because you did bloody nothing … you’re just thieves.

Day 3 – 31 October: In the broadcast Hadley said:

  • I also told you about an elderly lady who’s been fighting to get a refund for a deposit she paid twice to Omega Plumbing. Do you [the staff of Omega] really need to be associated with a company that allegedly preys on the elderly? Preys on immigrant families in wealthy areas who don’t have English as their first language.
  • [Questions he would like to ask the proprietor of Omega]: “Well, mate, how do you feel about being a bloke who duds the elderly and charging them 10, 20 and 30 times more than a job’s worth?” And make a statement: “You know, having you in the studio makes my skin crawl.”

On its website, 2GB posted:

Ø Omega Plumbing silences the victims of their rorts. Ray Hadley can reveal cowboy plumbers Omega Home Services are coercing dissatisfied customers into non-disclosure agreements.

Day 4 – 1 November: In the broadcast, Hadley said:

  •  Omega actively target the elderly and affluent immigrant communities.

On its website, 2GB posted:

  • Omega Plumbers employees making millions by targeting the elderly and immigrants. Whistle blower ‘Paul’ tells Ray Hadley, Omega employees earn hundreds of thousands in bonuses by giving customers the illusion of choice.

After sending a letter of demand to radio station 2GB to remove the articles and audio recordings from their website (which they refused), on 4 November Omega commenced proceedings, and sought an interlocutory injunction to prevent further publication pending final hearing.

Was the “colourful language” malicious?

The Court found that in this case “a number of matters establish that the plaintiff demonstrates a prima facie case of malice in relation to the publications”:

1. Reckless indifference to the truth: membership of the Master Plumbers Association had not been renewed; not refused because Omega was ripping customers off.

2. Gratuitous statement made without positive belief in its truth: none of the complaints made were that Omega used various names to dupe people.

3. Recklessness: there was no material to support the statement that Omega had charged the elderly “10, 20 or 30 times more than the job was worth”.

4. Recklessness: there was no material to support the statement that Omega was targeting and preying upon the elderly or immigrant families in wealthy areas.

5. No positive belief in the truth: there was no material to support the statement that Omega had taken a deposit twice or had not done anything.

The Court said that balance of convenience strongly favoured making the orders because:

  • The defendants are only minimally disadvantaged by being prevented from publishing negative comments and allegations concerning the plaintiff. There is no shortage of other information and issues about which the defendants can broadcast.

Conclusions

Colourful language will cross the line and become malicious if there is none or insufficient fact checking, as in this case. It appears that the complaints 2GB received were from members of the public who were shocked at the high prices quoted and did not go ahead with the work.

The remedies for the tort of injurious falsehood are both injunction (as in this instance) and damages (which will be awarded at a final hearing). Damages could be substantial if the statements lead to a loss of revenue for the business.