Seven News successfully appeals ACMA decision confirming that commercial broadcasters are free to report on tobacco related issues provided they do not intend to publicise or promote smoking or tobacco products

The Full Court of the Federal Court of Australia today  has reversed an earlier judgment in support of the Australian Communications and Media Authority’s (ACMA’s) decision that Seven News had broadcast a report in contravention of the Tobacco Advertising Prohibition Act 1992 (Cth) (TAPA) and therefore breached the terms of its licence granted under the Broadcasting Services Act 1992 (Cth) (BSA).

The judgment is the second in a week where the Full Court has overturned a decision made by the ACMA involving allegations that broadcasters had breached criminal laws.  The Court last week held that the ACMA had no power to find that 2DayFM had committed any criminal offences under the Surveillance Devices Act, as such a question is reserved solely for a court exercising criminal jurisdiction.

Today’s judgment means that an additional layer of proof is required in the ACMA’s decision making processes regarding broadcasts which are alleged to constitute “tobacco advertisements” in breach of the TAPA.  One of the Federal Court judges in particular recognised that the Court should be reluctant to restrict the freedom of communication which is exercised by broadcasters such as Seven News when reporting on tobacco related matters.

Background: broadcasting a “tobacco advertisement”

The case relates to a 2010 news report broadcast on Seven News in Adelaide concerning the availability of cheap tobacco imports at Coles supermarkets.  The report included images of cigarette brands, packaging and people smoking, as well as explicit references to the detrimental effect of cheap imports on the vulnerable and young, together with an anti-smoking message from the lobby group Action on Smoking and Health.  Acting on a single complaint, the ACMA launched an investigation into the news report and found that it constituted a “tobacco advertisement” in contravention of the TAPA.  It followed that Seven News had also breached one of its licence conditions in the BSA.

Pursuant to section 13 of the TAPA, a person “must not broadcast a tobacco advertisement “except as permitted under the Act.

The phrase “tobacco advertisement” is defined (s9) as “any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is intended to promote” a range of items, including smoking or the purchase or use of tobacco products.

The Criminal Code (Cth) applies to offences under the TAPA.  Relevantly, the Criminal Code required the Court and the ACMA to identify each physical element of the offence and to establish, for each such physical element, that the relevant fault (or mental) element  had been proven.

Seven sought judicial review of the ACMA’s original decision, arguing amongst other things that it should be set aside because the ACMA had not properly considered whether Seven News had intended to broadcast a tobacco advertisement, in the sense of publicising or promoting smoking or tobacco products.  The primary judge dismissed Seven’s application.

Relevant test of intention

The Full Court rejected the ACMA’s decision and the supporting judgment of the primary judge that Seven News had contravened the TAPA merely because it intended to broadcast the material in the news report, which had the character of a tobacco advertisement as defined, regardless of whether Seven News also intended to publicise or promote smoking or tobacco and whether or not Seven News was aware that the material fell within the terms of section 9 of the TAPA.

The majority of the Full Court (Tracey and Robertson JJ) found that the offence contained in section 13 of the TAPA consists of a single physical element (conduct) and that intention is the fault element for that physical element in accordance with s5.6(1) of the Criminal Code.  On that basis, the majority did not accept the ACMA’s reasoning that the offence is complete when any material is broadcast.  Rather, they held that it is also necessary to show that the broadcaster intended for its broadcast to give publicity to, or otherwise promote, relevantly, smoking or the purchase or use of a tobacco product. In the case of the Seven News report, there was no evidence of such intention.

Justice Flick also found in favour of Seven, but on the basis that a contravention of s13 of the TAPA requires proof of two separate elements, namely:

  1. The conduct of broadcasting an advertisement, for which the relevant mental element is intention; and
  2. The result that the broadcast promoted smoking, for which the relevant mental element is recklessness.

His Honour held that by not requiring proof of the consequence or result of the advertisement being broadcast, the ACMA and the primary judge had impermissibly construed the offence under the TAPA and did so in a manner which went well beyond the objects sought to be achieved under the Act.  His Honour further found that to do so would unjustifiably restrict freedom of speech or freedom of communication.

The result is that the ACMA’s decision has been set aside.

Whilst it was not a matter argued in this instance, the decision of the Full Court in last week’s 2DayFM case will also be relevant to what future consideration is given by the ACMA to complaints that a broadcaster has contravened the TAPA.  Applying the reasons in the 2DayFM case, only a court exercising criminal jurisdiction, and not the ACMA, is empowered to determine such matters.