Avoiding Infringement of Section 52 - Misleading or Deceptive Conduct - Media Entities - Reconciling the Information Provider's Defence and the Conduit Defence
Macquarie Law Working Paper No. 2008-28
23 Pages Posted: 8 Nov 2008
Date Written: November 5, 2008
Abstract
This article analyses the information provider's defence (also known as the media safe harbour defence) enacted by s65A of the Australian Trade Practices Act. The defence is usually raised in relation to s52 actions, although it is available in cognate actions. The scope of the defence has been clarified in recent decisions. The parallel conduit defence, which has been created by way of statutory construction of s52 of the Trade Practices Act, is also reviewed. The two defences are compared and contrasted. The question is posited: given the entrenchment upon the absolute liability associated with s52 and its cognates by the creation of these two defences, one by the legislature and one by a process of legislative interpretation, is it time to enact a general defence of honest and reasonable mistake applicable to s52 (and cognate) actions?
Keywords: Australia, media, Trade Practices Act , Trade Practices Act section 52, misleading or deceptive conduct - Trade Practices Act section 65, information provider's defence, media harbour defence, information provider, prescribed publication, conduit defence
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