Channel 9, 60 Minutes “Forced Marriage” Program: unsuccessful in defamation
Thursday, May 23, 2019
Channel Nine, 60 Minutes “Forced Marriage” Program: couple unsuccessful in defamation.
In 2014, Channel Nine broadcast the 60 Minutes program, “Forced Marriage: An extraordinary story of kidnap, survival, escape and hiding.” The program featured an interview with Nadia Tabbaa; a woman who was sent by her family from Australia to Egypt at 13 years of age and forced to live with her paternal grandmother in Syria for five years. During this time Tabbaa was beaten, forced into an arranged marriage, and made to undergo a virginity test at a Jordyn hospital, before returning to Australia at 18 years of age.
Following the broadcast in 2015, the woman’s father commenced two defamation claims against Channel Nine. The first was against an early news broadcast and the other was in relation to the 60 Minutes broadcast. The woman’s mother also commenced proceedings against the 60 Minutes broadcast.
The Court heard the matters in November and December 2017. The jury found that Channel Nine’s assertions in the program were defamatory. However, the defence of truth was upheld in relation to most of the facts, and the remaining facts were held to be matters of opinion (and therefore protected from defamation also). The trial judge entered Judgment for Channel Nine in relation to the 60 Minutes broadcast. While the trial judge then entered Judgment for the woman’s father in relation to the early morning news broadcast, no damages were awarded.
Recently, the mother and father (“the Applicants”) applied to the New South Wales Court of Appeal to overturn the 2017 Judgments. The three main issues the Court had to consider on appeal were:
Issue A: Reasonable apprehension of bias
The Applicants alleged that the Judge’s conduct in the proceedings gave rise to a reasonable apprehension of bias and that the Judge consequently should have disqualified himself from continuing to hear the matter.
A ‘reasonable apprehension of bias’ refers to the standard the Court must ask itself - whether an ordinary observer may reasonably think that the Judge might not be impartial when making a decision. Judges are not fact finders in a jury trial, but have powers to regulate and supervise proceedings. This power can sometimes subtly influence a jury’s attitude in a trial, so parties need to be protected where a Judge is not acting impartially.
The Appeal Judge held that the Trial Judge presented the case without emotion or partiality, as is appropriate.
The Appeal Judge dismissed this ground.
Issue B: Defence of “honest opinion”
Channel Nine at trial successfully raised the defence of “honest opinion.” Under the Defamation Act 2005 (NSW) it is a defence to the publication of defamatory matter if the defendant can prove:-
- the matter was an expression of opinion; and
- the opinion related to a matter of public interest; and
- the opinion is based on proper information or documents the opinion-maker has at hand.
The Applicants alleged that the judge failed to consider the element of ‘public interest’ properly.
The Appeal Judge dismissed this ground as the Applicants as the opinions expressed by Nadia related to a matter of public interest.
Issue C: Refusal to award damages to Mouhammad Tabbaa
The father challenged the Court’s finding that he should not receive any damages. The Court’s reason for awarding no damages at the trial centred on the fact that he had already received compensation in relation to another publication of substantially the same matter in an amount which exceeded the primary judge’s assessment. In other words, he had already received sufficient compensation.
These grounds were dismissed by the judge.
On 11 April 2019 the Court rejected all of the above grounds and the appeal was dismissed.
The Applicants were ordered pay Channel Nine’s costs.