In the case of Born Brands v Nine Network Australia ( NSWSC 1651) the defendant, the Nine Network comprehensively won a defamation and injurious falsehood case brought against it by three plaintiffs who created and sold the baby “sleep positioner” Babywedge.
NSW Supreme Court Justice Christine Adamson (pic) failed the defamation case at the threshold, finding the meanings contended by the plaintiffs were not conveyed.
Her Honour went on to find that if they had been conveyed, they were not defamatory. She upheld the defences of truth and contextual truth, but found Nine’s defence of qualified privilege was not established.
Sisters Haley Birtles-Eades and Sally Birtles and their company Born Brands sued the Nine Network over a news report broadcast on October 1, 2010.
The report was based on a joint press release issued by the US Food and Drug Administration and the US Consumer Product Safety Commission on September 29, 2010.
It urged consumers to stop using baby “sleep positioners” and cited 12 instances of infant death due to suffocation in the previous 13 years.
The plaintiffs pleaded four imputations for the one-minute report:
(a) They sold and offered for sale a baby product known as Babywedge which had been subject to recall.
(b) They sold and offered for sale a potentially dangerous product known as Babywedge which could harm or even kill babies.
(c) They sold and offered for sale a baby product known as Babywedge which is supposed to promote safe sleeping, but has been linked to 12 deaths in the United States.
(d) They sold and offered for sale a baby product known as Babywedge which should be pulled from the shelves because they could cause a child to suffocate.
Nine pleaded truth to imputations (b), (c) and (d). It also pleaded two contextual imputations and common law qualified privilege in defence.
In response, the plaintiffs alleged malice on the part of Nine and its journalists.
Justice Adamson began by noting that “the broadcast is concerned with the products, not their vendors” and that an orange Babywedge was “shown fleetingly”, along with other sleeping devices. No brand was named.
She also noted the press release received widespread coverage from other media outlets, including The Sydney Morning Herald, ABC radio and The Courier Mail.
Justice Adamson dismissed Born Brands’ defamation case against Nine on the grounds that it had failed to prove it was an excluded corporation i.e. it employed fewer than ten people.
After reviewing the brief and transient nature of the broadcast, Justice Adamson was not satisfied that the ordinary reasonable viewer would necessarily link the “pejorative imputations” to the plaintiffs, Haley Birtles-Eades and her sister Sally.
Her Honour distinguished the words “subject to recall” in imputation (a) and the actual words of the broadcast – “is being withdrawn from sale in the United States and Britain”.
Although not required to do so, Justice Adamson went on to consider all the issues raised by the case, stating:
“Some of my findings may reflect the advantage enjoyed by a trial judge of seeing and hearing witnesses.”
She found none of the imputations – had they arisen – capable of defaming the two plaintiffs.
“There is no suggestion in the broadcast that the makers of these various products had any knowledge, appreciation, or even inkling that they could be dangerous.”
Justice Adamson had no difficulty finding the defence of truth established for imputations (b), (c) and (d).
This was on the basis of evidence given by the Marks Chair of Pathology in Anatomy and Pathology at the University of Adelaide Medical School, Professor Roger Byard (pic) an expert on SIDS and accidental infant childhood suffocation.
“I am satisfied, for the reasons given by Professor Byard, that Babywedge is relevantly indistinguishable from the sleeping devices the subject of the US warning.”
The plaintiffs called no countervailing expert evidence, leading Her Honour to conclude:
“Although I accept that the plaintiffs believed in the falsity of the imputations, they have failed to prove that any are in fact false.”
Justice Adamson found neither of the two pleaded contextual imputations was conveyed by the broadcast.
(i) They sold and offered for sale a baby product known as Babywedge which should be subject to recall because it was a type of product that could harm or even kill babies.
(ii) They sold and offered for sale a baby product known as Babywedge which falsely promoted safe sleeping for babies but in fact could harm or kill babies.
However, if they had, she found them to be true.
“The only one of the plaintiff’s imputations that has not been justified by truth is imputation (a) … In my view, imputation (a) cannot further injure the plaintiffs’ reputations.”
Justice Adamson rejected the defence of common law qualified privilege on the basis that it was not available to the mass media “unless it reports what a third person has a duty to impart”.
“It was not suggested that the US CPSC had a duty to warn people outside the US of the dangers of sleep positioners.”
Her Honour would not have found malice on the part of the defendants, had the defence of qualified privilege been made out.
Both plaintiffs failed to impress the judge.
“In my view, Hayley’s steadfast refusal to accept that she was concerned about the adverse publicity because she knew that the public might not differentiate her product, the Babywedge, from the other products was disingenuous.”
“I do not accept either Hayley or Sally as reliable witnesses, although they may well have been telling the truth as they now believe, or would like, it to be. Their responses impressed me as tactical and forensic, rather than truthful or reliable.”
Justice Adamson dismissed the injurious falsehood claim because the plaintiffs failed to prove falsity, malice and that any loss of business was attributable to the Nine broadcast alone.
“I do not accept that a potential purchaser or user of Babywedge would have desisted from the purchase or use as a result of the depiction of the precise product but would not have desisted in any event as a result of the balance of the broadcast… such persons would have considered that Babywedge fitted the description of baby devices in respect of which the defendants were warning.”
Her Honour entered judgment for the defendants.
This case report was originally published in the Gazette of Law and Journalism, Australia’s leading online media and law publication.