Aboriginal group launches defamation case against Channel 7
11th Jul 2019
On 13 March 2018, the Channel Seven Sunrise Breakfast program broadcast a segment with the title, Aboriginal Adoption: Proposal for White Families Should Take in Abused Kids. The segment, hosted by Samantha Armytage, was widely condemned and provoked protest for its lack of Aboriginal voices, the tone of the discussion, and panellist Prue MacSween’s suggestion of a second stolen generation. The segment featured background footage of Aboriginal people, including children, from the community of Yirrkala (a Yolngu community of approximately 850 people on the East Coast of the Gove Peninsula in the Northern Territory). Although a filter was applied to the footage to create a slight blurring effect, the images of the people filmed remained readily identifiable.
Disturbingly, the footage was originally filmed with the consent of those featured for the purpose of promoting Aboriginal health in the Yirrkala community. No permission was given for Channel Seven to use it for any other purpose. O’Brien Criminal & Civil Solicitors represents 15 plaintiffs, including 6 children, who have sued Channel Seven in the Federal Court of Australia for defamation, breach of the Racial Discrimination Act 1975 (Cth), and breaches of confidence, privacy and Australian consumer law. The community of Yirrkala remains extremely unhappy that its people were depicted in such a negative manner.
The defamatory imputations imply that the plaintiffs who feature in the footage had abused, assaulted or neglected children, were incapable of protecting their children, were members of a dysfunctional community and had participated in a harmful culture. The breaches of confidence, privacy and the consumer law relate to the unauthorised use of the footage. The breaches of the Racial Discrimination Act flow from the nature of the coverage, the substance of the commentary and the deliberate use of pictures of ordinary Aboriginal men, women and children who are unconnected to the disturbing narrative.
In June, the television network attempted to argue in the Federal Court that the Yirrkala community members’ Statement of Claim should be struck out. The application by Channel Seven was wholly unsuccessful.
One argument raised by Channel Seven was that the complainants had not provided particulars of identification. However, the Court noted that NT Aboriginal communities are extremely integrated. Identification could be inferred because everyone knows everyone else in these communities. Channel Seven then attempted to say that the ordinary reasonable person would not ‘shun and avoid’ a person because that person had been subjected to abuse. The Court noted that this was not necessarily so and that while the ordinary, reasonable person would be sympathetic there was also the possibility that they may shun and avoid a traumatised person because that person may be manifesting psychological problems rooted in trauma.
Channel Seven attempted to argue that breach of confidence did not arise as the complainants had not specified what it was that was confidential. The Court noted that the complainants stated that they had given permission for people to film them on their land for a specific purpose, that being Aboriginal health. In contrast, Channel Seven had used the footage for a completely different purpose not agreed to by them, and it was noted by the Court that this could be seen as a breach of confidence. It was further noted that no information had yet been provided as to how Channel Seven came to possess the footage in the first place.
Channel Seven further attempted to argue that a breach of privacy action could not succeed. Justice Rares noted that while there was no case where that action had succeeded in Australia, it was not a foreclosed question and it was an issue that could be properly argued at trial. Finally, Channel Seven argued that the complaints pursuant to Australian consumer law be struck out. The Court noted that it was arguable that Channel Seven had used random footage of Aboriginal people, who were totally unrelated to the story, for ruthless commercial purposes and that this was capable of being classed as unconscionable.
At O’Brien Criminal and Civil Solicitors, we pride ourselves on providing strong advocacy and legal services for Aboriginal and Torres Strait Islander people. Our core values revolve around equity and social justice, empowerment of individual rights and respect for our clients. If child sexual and physical abuse were being discussed in a non-Aboriginal context, it is inconceivable that children from a Sydney suburb would have been randomly depicted. Our Aboriginal clients should not have been depicted in this manner in the context of this program, just because they are Aboriginal. Therefore, we were very satisfied with the result of the strike out application hearing. And, with our clients, we remain ready and eager to continue the fight against this injustice at trial.
Peter O’Brien is the founder of O’Brien Criminal and Civil Solicitors. He has over 20 years of experience representing clients in civil and criminal matters around Australia, and is an Accredited Specialist in criminal law. He is co-author of Intentional Tort Litigation in Australia and his civil practice largely centres on intentional torts. He acts for plaintiffs in claims involving police misconduct, false imprisonment, assault, battery, malicious prosecution and institutional abuse. He is a highly accomplished advocate and regularly appears as solicitor advocate for clients including in Royal Commissions, ICAC, inquiries, and at trial.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).