The decision in Thurston v Fox Sports Australia Pty Limited [2025] FCA 54 not only impacts media organisations and their reporting practices but also underscores the importance of addressing racial vilification in sport.
Introduction
In 2020, at an NRL game between the Penrith Panthers and the New Zealand Warriors, a group of young men were ejected for allegedly making racist remarks towards an Indigenous Australian player, Brent Naden, a Wiradjuri man, who at the time played for the Penrith Panthers.
Three of the men ejected from the game, William Thurston, Cherokee Townsend, and Joshua Renner (the applicants), brought claims against three major Australian media organisations (Fox Sports, Channel 9, and Channel 7 and the Seven Network (jointly, Channel 7)) for the subsequent coverage of the story. The applicants argued that the broadcasts conveyed false and damaging imputations about their character, namely that “each of them is racist and had racially vilified or racially abused, or made vile racist remarks towards, Mr Naden.”
This proceeding required careful consideration of both the objective assessment of what conduct can be characterized as racial vilification or racial abuse and the responsibilities of media organisations in reporting such allegations.
Ultimately, the Court dismissed the claims against Fox Sports and Channel 9. However, the applicants were successful in their claim against Channel 7 with each applicant being awarded AU$200,000 in damages for non-economic loss.
This case demonstrates how different approaches to reporting the same incident can lead to vastly different legal outcomes. Despite covering the same event and utilizing essentially the same footage, the broadcasters' varying approaches to qualification, tone, and presentation determined whether they faced liability.
Legal Issues
The key legal issues tackled included:
- Were the broadcasts defamatory of the applicants?
- If the broadcasts were defamatory, do any legal defences apply?
- What constitutes racial abuse in the context of spectator conduct at sporting events?
- How should damages for non-economic loss be assessed?
Decision
Were the broadcasts defamatory?
When assessing whether particular statements (or broadcasts) are defamatory, defamation law (both in New Zealand and Australia) requires the Court to determine what an ordinary reasonable person would understand from the publication and what impression that publication creates in their mind. Once that is established, the Court then determines if the publication conveys one or more of the defamatory meanings alleged by the applicants.
Following Justice Bromwich's approach in Molan v Dailymail.com1, the Court emphasised that determining whether conduct is racist requires both objective and evaluative assessment against contemporary community standards. As the coverage differed between each of the media organisations, the Court treated each broadcast as a distinct publication.
Ultimately, the Court determined that the coverage by Channel 7 and Fox Sports conveyed several defamatory imputations through a combination of factors including use of a judgmental tone, unqualified statements, and on-screen text stating: "Fans ejected for racial abuse aimed at Brent Naden" and "No tolerance" while showing footage of the applicants being ejected by police. The Channel 7 coverage went further, by also referring to a "sickening new video" purportedly showing "vile racist remarks" (despite no such video existing).
In contrast, the Court found that the Channel 9 broadcast did not convey any of the pleaded defamatory imputations. The overall impression created by the Channel 9 broadcast was different to the other broadcasters, as it conveyed that there was suspicion of racial abuse and this was being investigated, rather than definitive statements that racial vilification or abuse had occurred. The broadcast repeatedly used terms like "alleged" and "allegedly," with presenter Andrew Johns stating, “We don’t want these sort of people in the NRL and if they’re found guilty, they should be banned for life”.
Do any legal defences apply?
Since the Channel 9 broadcast was found not to be defamatory, Channel 9 did not need to establish any defences. The remaining respondents, Fox Sports and Channel 7, pleaded the defences of qualified privilege, honest opinion, and truth. At a high-level each defence protects statements where:
- Qualified Privilege: the publisher has a duty or interest to communicate the information, and the recipient has a corresponding interest in receiving it. The defence requires that the publication be reasonable in the circumstances, considering factors like public interest, the seriousness of the allegations, and whether the publisher sought a response from the person defamed and included their viewpoint for contrast and balance.
- Honest Opinion: the statement is an expression of opinion rather than fact, provided the opinion is based on true facts and relates to a matter of public interest.2 The opinion must be one that a person honestly holds based on true facts known at the time of publication.
- Truth: protects statements, where the publisher is able to prove that the defamatory meanings are substantially true. This means demonstrating the truth of the "sting".
The only defence accepted by the Court was honest opinion pleaded by Fox Sports. The statements made by the Fox Sports presenters were genuinely held opinions related to a matter of public interest. The defence succeeded because the opinions were based on true facts, including footage of the applicants' ejection.
Fox Sports' attempts to establish the truth and qualified privilege defences were dismissed. With respect to the truth defence, the Court stated there was insufficient evidence to prove that the applicants in fact engaged in racial vilification or abuse, noting that while there was “vigorous sledging,” statements such as Naden had a “bad haircut” and “couldn’t catch a ball” did not amount to racial abuse or vilification.
The Court also found that the Fox Sports broadcasts did not meet the reasonableness requirement for qualified privilege, as it had not independently verified the allegations, and the coverage shown conveyed guilt (rather than simply reporting allegations). In particular, the Court determined that the footage shown by Fox Sports of the applicants being ejected was particularly unnecessary and prejudicial in that Fox Sports could have reported the incident:
- without showing footage,
- without identifying the men,
- without depicting them being ejected from the stadium by New South Wales police officers,
- without the words “Fans ejected for racial abuse aimed at Brent Naden” and “No tolerance” prominently displayed on the visual feed.
None of the defences raised by Channel 7 and the Seven Network were successful. In contrast to the other broadcasters, the incident was said by the Court to have been reported without any qualifications, used a judgmental tone and emotive language (e.g., referring to a “sickening video” and “"vile racist remarks"), and in the Courts view, was exclusively directed at guilt not suspicion of guilt.
Damages
Each applicant was ultimately awarded compensatory damages of AU$200,000 against Channel 7 for the harm to their reputations and personal distressed suffered. The Court found that the publications significantly injured the applicants' character, credit, and personal and workplace reputation, bringing them into public hatred, ridicule, and contempt.
The Court emphasised the serious harm caused by these imputations, particularly given contemporary community standards and the applicants' close connections with Indigenous Australian culture, and extensive coverage which created a "grapevine effect" amplifying the harm.
Underscoring its intention to provide a significant and meaningful remedy to the applicants, when awarding the damages, the Court commented that “an award of AU$200,000 for each applicant is a substantial sum of money that is sufficient for any ordinary person to understand that the imputations were not true and should never have been published by Channel 7 and Seven Network.”
The applicants also sought aggravated damages on the grounds that the publishers had knowledge of the falsity of their statements. However, the Court determined that the respondents' knowledge of the falsity of the imputations was more properly taken into account when assessing compensatory damages.
Conclusion
Thurston v Fox Sports Australia Pty Limited [2025] FCA 54 serves as a critical reminder of the responsibilities that media organisations bear when reporting on sensitive issues such as racial vilification. The Court's findings highlight the importance of distinguishing between allegations and proven facts, using qualifiers, and ensuring that even when reporting with live footage, the associated commentary and on-screen text are accurate and fair.
While the claims against Fox Sports and Channel 9 were dismissed, the successful claims against Channel 7 underscore that despite covering the same incident and utilising the same footage, the outcomes for different broadcasters varied significantly. Context, tone, and presentation determine the acceptability and impact of a report.
For New Zealand media organisations, this decision is particularly relevant as it provides valuable guidance on the importance of qualification, tone, and presentation, particularly when reporting unproven allegations in breaking news situations, even where relying on footage.
If you have any questions about the matters raised in this article, please get in touch with the contacts listed or your usual Bell Gully adviser.
[1] Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004[2] We note this is dissimiliar to New Zealand defamation law, where the subject matter is no longer required to be in the public interest.