The application resulted from comments by Demetriou in an interview with the Herald Sun in connection with SingTel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34 noted here. Optus noted Demetriou's comments that Optus was engaging in conduct that was akin to stealing and 'lifted' content owned by sporting bodies. The court noted comments such as
The thought of Optus deciding to lift our content and not pay for it, and pretend and purport to be doing it for the consumer, is a complete disgrace. ...Optus claimed the comments amounted to misleading and deceptive conduct.
They are not paying for it; they are lifting it. It is akin to stealing and all it will do is that if sports can't rely on that revenue, they will slug the consumers. ...
I think they [politicians] are looking for a way for the legislation to catch up with technology ... It would be far more preferable if Optus just dropped this shenanigans and into the real commercial world and starting just paying for things.
The court disagreed, finding that Optus' application was misconceived because Demetriou's statements were not made in trade or commerce and - even if the statements amounted to conduct in trade or commerce - were not likely to mislead or deceive. There was no contravention of s 18 of Schedule 2 of the Australian Consumer Law.
Edmonds J stated that -
The statements complained of were part of a wide-ranging interview with Mr Demetriou covering a variety of topics, not all of them having to do with the AFL at all. To the extent that they concerned the AFL’s commercial interests, they consisted of statements of opinion by Mr Demetriou about the health and governance of the game and the member clubs of the AFL. To the extent that they concerned Optus, they were value judgments about the integrity and conduct of Optus in relation to the recording of content in respect of which the AFL owned the copyright.Edmonds J went on to state, in relation to the finding that any conduct was not “misleading or deceptive or likely to mislead or deceive”, that -
The comments made by Mr Demetriou were part of an on-going narrative about media rights to sporting events in the context of ongoing technological change. They were a part of a narrative in which Optus itself is a participant, along with other organisations, commentators, politicians, legal professionals and academics. Mr Demetriou is engaged in a campaign to try and persuade all sides of the political framework, as well as harness support from as wide a spectrum of Australian sporting bodies as is possible, that the Copyright Act 1968 (Cth) ought to be amended in the light of the decision in Optus v NRL.
Notwithstanding, they are not “in trade and commerce” as that phrase must be understood following Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17; (1990) 169 CLR 594. This is best summed up in the plurality judgment at 603, 604:
[I]n the context of Pt V of the Act with its heading ‘Consumer Protection’, it is plain that s. 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. In some areas, the dividing line between what is and what is not conduct ‘in trade or commerce’ may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character.”
... the issue in this proceeding is not the truth of the statements that Optus’ behaviour is “akin to stealing”, or the statement that Optus is “lifting” content owned by sporting bodies. The issue is whether the conduct of Mr Demetriou in making those statements is likely to mislead or deceive; to lead one into error. This requires a characterisation of the conduct as a whole, taking into account all relevant circumstances and not the taking of particular words out of context.One student aptly commented that the various parties would be better occupied developing superior product rather than reaching for barristers.
The statement that Optus is “lifting” content owned by AFL was the opinion of Mr Demetriou and no doubt it was honestly held. In the circumstances of this case, such a statement is incapable of constituting misleading and deceptive conduct: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180; (1984) 2 FCR 82 at 88; Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at 318–321, 341–342.
Alternatively, it was nothing more than, and could be understood as nothing more than, a vernacular or shorthand description of what Optus is incontrovertibly doing. On any view, Optus has established an infrastructure that (at the request of a customer) records the broadcast of an AFL game and then (at the request of the same customer) replays it. The fact that Rares J held that, for the technical purposes of particular provisions of the Copyright Act, it is the customer and not Optus that “makes” a cinematographic film and it is the customer and not Optus who then “communicates” that film, does not alter the fact that Optus’ equipment records, and Optus’ equipment then streams to its customers, the broadcast of games in which AFL holds the copyright.
The statement that Optus’ behaviour is “akin to stealing” is not misleading or deceptive for the following reasons:
(a) it was clearly a statement of Mr Demetriou’s opinion and, again, was honestly held. It was not and did not purport to be a statement of fact;Read as a whole, in the context of the interview given, and in light of the manner in which Optus’ TV Now service operates, Mr Demetriou’s statements are not misleading or deceptive.
(b) the basis for the opinion was clearly set out in the surrounding words that provide the context in which the statement must be considered. That context includes the fact that Optus’ equipment records, and Optus’ equipment then streams to its customers, the broadcast of games in which AFL holds the copyright. It also includes the fact that Optus does not pay anything to the AFL for the content that Optus makes available for its own commercial gain to its customers.
