Australia

This was an application by Channel Seven for judicial review of the decision of the Australian Communications and Media Authority (ACMA) that a segment on its evening news program constituted a "tobacco advertisement" in contravention of s13 of the Tobacco Advertising Prohibition Act 1992 (Cth) (the TAP Act).

On 18 July 2010 Channel Seven broadcast a segment entitled "Cheap Cigarette Imports", concerning the importation from Germany and sales by Coles supermarkets of budget brand cigarettes. The segment reported that Coles was selling the imported cigarettes cheaper than the local equivalent products. The segment included visual images of people smoking, audible and visual messages about tobacco products available at Coles, and visual images of brands.

The ACMA decided that the segment was a "tobacco advertisement" and that it gave publicity to and promoted tobacco products in contravention of the TAP Act. It did not accept Channel Seven's submission that "publicity" must mean "positive publicity". It also rejected Channel Seven's argument that the segment fell within the exceptions in the legislation for political discourse or anti-smoking advertisements. The ACMA further rejected the argument that, to the extent that the segment constituted a tobacco advertisement, it was incidental to the remaining parts of the news report. The ACMA found that the fault element of intention was present in the broadcast.

Channel Seven appealed the ACMA's decision to the Federal Court on the grounds that it involved errors of law and a constructive failure to exercise jurisdiction. The Federal Court upheld the ACMA's decision that the segment constituted an unlawful "tobacco advertisement" in contravention of s13 of the TAP Act and dismissed Channel Seven's application.

Channel Seven additionally submitted that s13 of the TAP Act was constitutionally invalid to the extent that it applies to communications that do not comprise positive publicity. It argued that, so applied, the provision would impermissibly burden the constitutionally protected freedom of communication about government or political matters. It was not necessary for the Court to determine this question to decide the case.

Note: this decision was overturned on appeal, see Channel Seven Adelaide v. Australian Communications and Media Authority [2014] FCAFC 32 (21 March 2014).