A critical appraisal of the media safe harbour in the Australian Consumer Law

Since 1984, commercial information providers (essentially, media organisations) have been exempt from laws prohibiting misleading or deceptive conduct. This article examines the background, scope and rationale for this significant gap in the consumer protection provisions in the Australian Consumer Law (ACL), and compares the exemption with other areas of speech regulation. By examining defences in defamation law, a rational structure for balancing free speech considerations with other interests is revealed. Although media freedoms are important, the media exemption in the ACL is uncertain in its operation and provides a blanket exemption rather than the context-sensitive approach adopted in defamation law. This article concludes that the media exemption requires substantial reform, specifically by granting immunity only when the publication involves a matter of public interest and is done reasonably in all the circumstances.