Couldn’t happen to a nicer bloke:
In what is believed to be a world first, David Jones begins a legal case tomorrow in which it is suing the left-leaning think tank the Australia Institute and its executive director, Clive Hamilton, over claims the giant retailer’s advertising eroticised and sexually exploited children
The case, in the Federal Court in Sydney, is thought to be the first time a court will consider the sexualisation of children in advertising.
The retailer is suing under the Trade Practices Act, claiming the institute engaged in misleading and deceptive conduct. The avenue of suing for defamation was closed to big companies after the introduction of uniform defamation laws in January 2006.
The case stems from a media release in October titled “Corporate paedophilia - sexualising children by advertising and marketing”, which announced the launching of a discussion paper. The release named retail chains such as David Jones and Myer as having “jumped on the bandwagon” in eroticising children in the interests of the bottom line.
It’s about time we had this conversation. A forensic analysis of just what advertising can and can’t do is sorely needed, and if ever a case is destined to be a ‘battle of the experts’, it’s this one. Oliver James, Clive Hamilton and others like them have made large claims about the capacity of advertising to achieve non-sales outcomes (and, by extension, negative consequences). However, various small studies seem to indicate that advertising is good at raising product profile and sales, but doesn’t actually do much else. Cultural studies theorist Greg Dening had this to say about one particularly well known advertising campaign:
Some years ago, the Commonwealth Government tried to educate the Australian public to the dangers of AIDS by creating some theatre in a television clip. Death, the Grim Reaper, was shown as a figure playing ten-pin bowling. The bowling pins were men, women and children. They bounced and clattered away randomly as death scored. There was some alarm expressed at the time at the brutal starkness of the advertisement. Many felt it was too shocking. It was overkill, some said. Then we learned in the weeks that followed that the chief effect of the advertisement was a sharp drop in the membership of ten-pin bowling clubs. It is a depressing story for anyone who thinks that writing history is theatre. How does one produce the effects one wants in one’s stories? Presumably, if one knew that, one could rule the world or at least sell a lot of something. Maybe the answer is that one can never be sure of producing the effects one wants.
Interestingly, David Jones have wheeled out section 52. This is the classic ‘misleading and deceptive conduct’ provision, and is more typically deployed by weaker parties against those in stronger bargaining positions. It has come to operate as a stand-in for contractual misrepresentation at common law, mainly because the remedies available for breach (under sections 80, 82 and 87 of the act) are more wide-ranging and better able to be tailored to individual litigants’ requirements. It is a major part of Australia’s consumer protection law, and has been effective in a Hayekian jurisprudential sense because it mimics the abstract, end-independent qualities of the common law.
Of course, the usual lawyerly caveats about ‘giving them oxygen’ apply. If the Australia Institute report in question was well known before the suit, it is exceptionally well-known now. However, as someone with a long-term interest in the capacity - first articulated in Plato - of visual stimuli to shape peoples’ minds (and particularly those of children) more generally, I know that much of the debate around censorship turns on a detailed understanding of just what things like advertisements can do.
Now all parties are put to the proof. It should be interesting.
UPDATE: After a lively discussion on this thread, I have to say I’m now less sanguine about using the courts to solve these sorts of knotty problems for us. It’s not that the courts can’t provide good answers. It’s more that they shouldn’t, because that’s not their role. The fact that we are shovelling so much at the legal system suggests that other institutions (notably the media) are failing to hold up their end of the bargain.
UPDATE II: The benefits of having a tech geek in the house. The full PDF version of the report is now available for download from here.
Crossposted at Thoughts on Freedom.
63 Comments
Hairshirt Hamilton chows down on a writ sandwich, folks
I can’t wait. Noticed the idiot has been quiet for a while.
Not sure this was a wise move - writs like this have a habit of biting back. Worst case - finding for Hamilton, increased pressure for advertising standards. Best case - Hamilton gets more publicity, goes broke to pay off claim and then gains martyr status.
Not sure what the upside for DJs is.
How can you spin losing a court case if in fact Hamilton’s dopes lose the case, Andrew?
DJ’s aren’t idiots either, they will have an army of PR people plugging away on their behalf. Hamiton was a complete fool. He put DJ’s back to the wall forcing them to sue or they would be splattered as being evil child molestors. If they succeed they will come out of this ok as long as they manage the PR after the case.
That’s the ‘giving them oxygen’ argument I referred to, and had I been counsel for DJs, it’s the line I’d have pushed - very, very hard, too.
I think what tipped DJs over the litigation line is the header. Corporate Paedophilia is an extraordinarily loaded term, and whoever subs for the Australia Institute needs their bum kicked.
yuk
Should be
How can you spin losing a court case if in fact Hamilton and the other dopes lose the case, Andrew?
Victim / martyr complex, JC. Have a look over at LP - it has already started.
The court finding will not matter that much to the crowd that is already convinced of the rightness of the cause or the evilness of the corporation. Politically, this looks to me like a step down the more regulation path.
“However, various small studies seem to indicate that advertising is good at raising product profile, but doesn’t actually do much else.â€
You are blowing hot air out your arse, Skeptic.
Type “advertising effectivenessâ€, “advertising consumer behaviour†or a similar search phrase into Google Scholar and you will find literally hundreds of studies that demonstrate the effectiveness of advertising.
Incidentally, plenty of studies also demonstrate the efficacy of not-for-profit adverts re community health, charity fund-raising and so on.
Globally over $US100 billion is spent annually on advertising. Savvy corporations don’t spend big money on adverts for a frolick and a giggle.
Nah I don’t like it tactically and I don’t support it either. I am no fan of Hairshirt Hamilton but this is the thin edge of the wedge for intellectual critique. DJ should have let it go and just hammered him intellectually instead.
Andrew one is never going to convince certain elements no matter if DJs won the case 3 times over.
There comes a time when you have no alternative but fight and and this one of those times. They have a franchise to protect and by allowing a bunch of disgusting leftists to denigrate the name would be a blatent omission of duty. I’m glad they are doing this.
If anything it causes Hamilton not to sleep well at night thinking he has a freight train coming after him.
Being called a chilld molester in public is possibly the worst sin for any corporation.
I hope they go after him.
Hamilton will have a shocking time defending himself. In any event there are limits how far you can go even for evil leftist twits like Hamilton. He slandered and libelled DJs good name. He needs to go down.
It about friggen time corporations fought back.
Just wondering what you people think of the issue it raises: the sexualising of children?
I remember a few years back one of the 60 Minutes crew (yuk) interviewed a pedophile (also yuk) and one of the things he said was that it was a bad idea for parents to let little girls wear “anything sexual”. By that he specified attire more becoming adult women - “revealing” clothing, make-up, blah blah.
There’s a street sense that children are getting sexual at younger and younger ages. I don’t know whether the phenomena is actually demonstrable but I feel that people would generally agree.
Now let’s just say (hypothetically) that this is true and that advertising, pop culture, hip-hop videos and Britney Spears/Paris Hilton are responsible.
How does a libertarian approach that?
PS: Advertising does work, sometimes.
The marketing suits would be loathe to pay us arty-farty types such obscene amounts of money otherwise.
The Corporate Paedophilia thingie was over the top but is there any evidence it hurt DJ’s bottom line?
If anyone should be suing AI it is the parents of the kiddies featured in AI’s pamphlet. If I was them I’d be extremely pissed off.
I’m hoping for some good evidentiary findings, though, Jason. There have been repeated attempts to draw clear lines between - say - violence in cinema and violent behaviour. I think it’s pretty safe to say that advertising sells stuff. Which is fine - that’s what it’s meant to do.
But is it capable of ’sexualising children’ or ‘inducing sexually responsible behaviour’? That interests me, and if DJs are willing to spend a bucket of money on the necessary research, I’m curious about the findings.
But yes, ‘giving them oxygen’ is always a bad idea.
Mel
Advertising is a private action. The money belongs to the firms and indirectly to the shareholders. “Wasting money” has nothing to do with people outside of the management, board of directors and the shareholders.
If you think firms are spending too much, buy their stock and take it up at the next AGM or try to get the board and management overturned by proxy.
Otherwise, just as I don’t have a right to tell you how to spend your money, no one has a right to tell Corps how to spend theirs.
It would be a lonely old time for people who couldn’t afford TV if there were no advertising.
I certainly think the issues are debatable, Adrien which is why I think Hamilton’s paper is within fair comment. It’s hard to see what the loss is here. If DJs can quantify it and demonstrate, then sure, they’re welcome to try.
He could have made more indirect allusions but that is just a matter of phraseology. As it is we now have courts sitting as tribunals of truth on a social issue to determine a monetary settlement. I don’t like this at all.
SL
I ain’t a lawyer, but I would have thought DJ’s plan of attack is to prove they have not done anything illegal either through the advertising or to the kids they used. If they do this they have won the case. It doesn’t sound too difficult to me.
They’ll have to prove damage, although accusations of criminal offences are generally frowned upon in the courts.
Frankly I’m glad this has been removed from the realm of defamation under our new national defo laws. Defo has the effect - often - of reversing the onus of proof, and is a very effective ’shutup you face’ legal manoeuvre. Section 52 doesn’t do that. It asks whether the information misleads - a very different concept from ‘untrue’ and ‘not in the public interest’.
Jason
A owns a toy shop and uses kids to advertise. Bob Brown hates toys or anyone having fun and accuses A of being a child molester. A has a very good case of taking the matter to court and winning a case.
Don’t forget Hamilton explicitly used DJ’s name in order to damage them.
If the court reasons that DJs did nothing wrong, Hamilton has a very nasty suit on his hands.
One other thing. DJs may not actually be looking to win monetary damages. They may be looking to win and send these bastards broke.
The course of action could be a good one. Can you imagine Hamilton turning round to his supporters and looking for money after this momumental fuck up. Even if I was on that side of the political fence (heaven forbid) I would think twice before offering more money to a guy who lost a pile through legal costs as a result of a losing lawsuit.
In other words he’s potentially fucked.
“is there any evidence it hurt DJ’s bottom line?
They’ll have to prove damage, although accusations of criminal offences are generally frowned upon in the courts. ”
———————————————————–
I would be happy to testify that Hamilton’s action stopped me from going to DJs and buying a couple of Ralph Lauren T-shirts.
I was quite disturbed by the attack.
There’s also the possibility the whole matter could settle based on the sort of consent orders often worked though in defo cases - an apology and retraction. This means DJs would have succeeded in shutting them up, but we miss out on the lively legal debate. On the other hand, this outcome would prevent us using the courts as ‘tribunals of truth on social issues’ (as Jason points out).
When I covered the Irving trial in the UK, it was clear that a court of law was being used to resolve a historical debate in the ‘court’ of ‘public opinion’. It’s become more common in the last thirty years as the quality of our newsmedia has degraded through bias, lack of accountability and general intellectual sloppiness. People turn to the courts - where evidence is thrashed through and teased out to a very high standard - to do something they were never intended to do.
Joey says:
“I was quite disturbed by the attack.”
I bet.
Interestingly, it appears as though the report is much harder on Myer than DJs, although admittedly I can’t view all of it.
I read the report. It was a beat up (especially the title), though one or two of the photos looked unnecessarily suggestive. But only if it had been pointed out or you were looking for it.
Have you still got it, ff? I wouldn’t mind a gander. Send it through to catallaxy AT yahoo DOT com if you do.
The title is what’s going to hang Hamilton in this. The rest of it is by the by, and frankly something that (as a litigator) I’d be steering DJs well away from. But a criminal offence that attracts a life penalty and (in Qld) post-prison supervised release? That’s nuts.
Sorry, SL, I don’t. I followed a link from smh.com.au, didn’t download the pdf.
If they had stuck to the oft-cited (especially by Concerned Parent A and conservative columnists) phenomenon of the ’sexualisation’ of children’s clothes and toys, they would have got away with it. But of course, not garnered quite so much press.
I found bits funny, about the models “pouting” which apparently means “not having their mouths closed”. It read like something from Family First, not the Oz Institute.
For the benefit of us non lawyers who are curious, SL, can you please explain how trade practices law can encompass this sort of action? Obviously since DJs no longer has a remedy in terms of defamation, this is being floated as an alternative remedy. But I don’t see how the Institute, which wasn’t seeking to profit from the study, can be said to be engaging in deceptive conduct in a commercial sense.
FWIW, I don’t find the methodology of the Australia Institute paper at all robust. My experience of a lot of work from that Institute and academics associated with it is that the same problems are present, viz:
(a) methodological sloppiness;
(b) looking for evidence to confirm ideological predilections rather than letting the data speak for itself.
That’s not necessarily a comment on whether or not there are links between the sexualisation of children in advertising and negative individual or societal outcomes. There may be - I haven’t looked at any other studies myself. I just don’t think the conclusion that there are is supported by the AI study.
I can also understand how using a phrase like “corporate pedophilia†which is highly inflammatory would provoke a response.
Having said that, I disagree with DJ’s actions in suing. These matters should be resolved through debate and argument not legal tactics.
There are two central legal issues here. The obvious one is whether describing advertising as ‘corporate paedophilia’ is misleading or deceptive under s 52. That will turn on evidence, and is likely to boil down to a ‘battle of the experts’. The other legal issue - and the one of most interest to you - is the requirement that the misrepresentation be ‘in trade or commerce’. Now I don’t know (and don’t wish to speculate) on how much money the AustInst makes from its research work, but as a general rule there is no requirement for profit making; the mere presence of a corporation that is sustained at least in part by money making activities is sufficient. Courts typically draw a distinction between conduct which is of the essence of a corporation’s ‘core business’ and conduct that is merely incidental to it. The Australia Institute is in the business of publishing its reasearch on at least a break-even basis and actively seeks comment on same.
That said, if I were Clive Hamilton’s lawyer, my advice would be (seriatim):
1. Settle on a non-monetary basis, including the most public retraction of the ‘paedophilia’ line possible.
2. Fight on the ‘trade or commerce’ point if the organisation is genuinely charitable (as opposed to merely non-profit).
Andrew Norton’s take:
http://andrewnorton.info/blog/2007/02/05/david-jones-vs-clive-hamilton/
I’d agree with that.
And yes, my instincts as a litigator would be to leave this one alone - the ‘giving them oxygen’ point I made earlier. At the moment, it looks like a big nasty corporation picking on a little NGO (even though the NGO has a potty mouth). That never goes down well.
And as I mentioned earlier, I wish we would stop using the courts to answer complex questions we seem unwilling to solve via debate. I have faith in the ability of the courts to answer those questions, of course. But that’s not their job.
SL
Djs strategy may be to win in a different way.
This is going to cost a great deal of money: money Clive’s little setup doesn’t have.
His donors are going to be seriously pissed the idiot lost it all on one big bet - a court case.
Next time around they will be unlikely to dip into their pockets again. He is a dead man walking - but doesn’t realize it just yet.
Donors will go where they think the money is better spent next time.
Every so often these strange uses of section 52 of the TPA seem to crop up. I seem to recall that Ian Plimer (possibly along with others) tried to use s52 against a group of creationists. I think that attempt failed on the grounds that the behaviour in question was deemed not to be in trade or commerce. It seems reasonably clear that these types of actions are NOT what s. 52 of the TPA was designed to address.
I’m good friends with the counsel who appeared for Plimer in that case, and yes, he fell over on the ‘trade or commerce’ point. Mind you, by contrast with the AustInst, the creationists in question were a remarkably amateur outfit.
Yeah I agree, Damien. It sounds to me like these frivolous uses of s. 52 can be a great impediment to free speech - which should only be qualified to the extent that ultimately it leads to people inflicting a loss or quantifiable damage of some sort, no ‘psychic externality’ and all that bullshit.
I wouldn’t even want s 52 used against astrologers even though objectively they are ripping people off.
Thanks, SL.
Presumably the AI does have charitable status as it appears donations are tax deductible:
http://www.tai.org.au/index.php?option=com_virtuemart&page=shop.product_details&flypage=shop.flypage&product_id=177&Itemid=47
So in light of what you say, it would presumably be reasonably easy to defend the action?
On Damien’s point, and I’m not familiar with the defamation laws, but presumably the intent of removing the right of corporations to sue was there for a reason. It does seem clear that the TPA isn’t designed to become effectively corporate defamation law.
What next? use it against gaming machine operators?
I’m not so sanguine about this provision. It would seem to have wide repercussions for academic freedom, economic freedom, including advertising.
I’d want to see this provision cut back or clarified.
It depends on how sophisticated they are - the ‘trade or commerce’ element is construed broadly.
No, they’re in trouble, which is why they need to settle, and quickly, before it costs them money. I think JC’s suggested ‘DJ’s strategy’ sounds quite plausible.
The problem isn’t s52, it’s the presence of a whole raft of legislation on the books, both state and federally, that legitimises constraints on speech. These range from anti-vilification laws to defamation to misuse of s52. The real problem is the silly belief that we should be able to protect people from offence.
What we need is one law - either s 52 OR defamation OR something else. But not multiple legal speech killers. All they do is allow clever lawyers (of which I am one - I admit it) to mount arguments in the alternative.
One would hope that if a case went to the High Court, such an obvious distortion of legislative intent would be cleared up. But any one who’s following recent HC jurisprudence wouldn’t be sanguine about that either.
SL,
That is, of course, if one (or more) of your learned friends do not act on a pro bono basis. The AI, if it lost, could just go into liquidation and then re-open under a new corporate structure a little while later with Hamilton now officially “out of the picture” for a while at least.
Does the AI really have that many assets that the donors would be losing much?
I still see no real upside for DJs. They will look like the bad guys whatever way this comes out.
If on your assessment DJs can win this case despite despite there being little evidence so far that DJ has suffered a commercial loss, then I think there is a problem. And more so given how broadly ‘trade and commerce’ has been interpreted.
DJs don’t deserve to win on the basis of a hyperbolic characterisation that no one took seriously enough to lead to a loss.
It depends on how the court construes ‘damage’, and what the evidence turns up. The crucial issue on this point is the ‘corporate paedophilia’ tagline. DJ’s should have difficulty proving loss, but I’m now officially flying blind as I haven’t seen any discovery. And nor has anyone else!
I must add of course I’m analysing this from the perspective of efficiency. I don’t see what inefficiency or market failure is being tackled here by a broad ranging law which can apparently be used frivolously against creationists (though at least that failed) and against people engaging in hyperbole. These things are better sorted out in the intellectual marketplace.
Laws against genuine fraud are efficient for the same reason that laws against theft are efficient - they facilitate more trades and provide an element of certainty in property rights and contracting. Other consumer protection laws fill in contracting gaps, and help reduce transaction costs.
I just don’t see what social efficiency is served in this case. If anything, frivolous lawsuits promoted by this provision add to transaction costs and may have a chilling effect, including ironically on advertising itself!
In case anyone is interested, the Productivity Commission is currently conducting a public inquiry into Australia’s consumer policy framework:
http://www.pc.gov.au/inquiry/consumer/index.html .
I think the law potentially serves an important purpose. I suspect that its intent is to prevent suppliers from trying to induce customers to buy a product by presenting it as something it is not (either in terms of price, quality or some other characteristic). That can potentially reduce transaction costs by reducing consumer uncertainty about the nature of the product.
The last sentence in my previous comment (number 44) should read:
That can potentially reduce transaction costs by reducing consumer uncertainty about the nature of the product.
Fixed, Damien. And yes, some of the investigations conducted into part IV TPA are interesting, in that allegations will have to be proven, rather than simply amounting to per se anti-competitive behaviour.
Thanks SL. I think s52 is in part V of the TPA (but I could be wrong), but I think you are probably right about some of the Part IV cases being quite interesting as well.
Sorry Damien, I wasn’t being clear. Section 52 is Part V, but the per se anti-competitive provisions the productivity commission is going through now are all in part IV. I don’t know if the PC is planning to go beyond part IV, though.
A quick comment on this since I’m meant to be working.
* I think DJ’s should have stayed out of the courts on this one. It’s definitely going to give the AI more publicity than they deserve.
* AI should have just stuck to the phrase about “sexualisation”. Paedophilia is such an emotive hot button in our current social-political climate that it’s bound to bring about a response of some sort.
* The most obvious ‘loss’ that DJ’s can claim is, imho, the brand damage. There is bound to be some research paper somewhere that ties brand equity to company value and/or sales.
Yes Damien I am aware that s.52 is intended to work as an anti-fraud provision of sorts. I’m just wondering given its apparent broad applicability whether it is adequately tailored for that purpose. Or rather I see no efficiency benefit in s. 52 being used as a tool to drag media content creators’ feet through the coals.
The way you have said s. 52 was meant to be used sounds fine.
It’s pretty much the whole basis of trade mark law, so yes. It’s the paedophilia tag-line that has generated most of the angst.
What is it about leftist males of “a certain age?” Why are they are all so damned depressing?
I seem to remember reading somewhere that sec 52 of the TPA was the most litigated legislation provision in Australia.
I’ve seen the same thing, RL, so I think we’re talking about the same study! I’m really torn on this one. On one hand it’s a great opportunity to get to the bottom of a particular intellectual conundrum; on the other it represents abuse of the court system in order to solve social questions we should be able to consider without calling in the lawyers.
Breaches of the Trade Practices Act can be remedied by a series of full page full colour public ads saying “sorry, I told a lie” and undergoing a course on “how to not tell lies”. Plus ensuing publicity about court case.
I know of one clown who went thru this process, well and truly took the wind out of his sails, havent heard a peep since.
bring.it.on DJ
Truth in labelling, that is what this law is about.
That’s true, although it’s a pity it’s come to this.
Similar cases have come before the courts before, interestingly. The RSPCA got itself into hot water in this matter, although wriggled out from under the s 52 claim as the statements had not been made ‘in trade or commerce’. They were made on a radio and TV interview. It will be interesting to see what effect the AustInst’s sale of its research will have on the trade or commerce requirement.
Anna
There is a terrible snobbery and anger towards working class people working their way out of materially-bereft existences. The venom with which the luvvies treat “the aspirationals” is a real worry.
Do the luvvies really think they can build a large enough coalition to govern on their own, or for their own values and bigotry to triumph? When we consider that the intellectual horse-power of the luvvies is centred on such bourgeois abominations and snobs as the 3 Davids (Williamson, Marr, and Stratton) you are painting yourselves into a very lonely corner.
Oh, for the ALP of old where, as Neville Wran said with such perspicacity, “the best thing about the working class is climbing out of it!”
I think the luvvies are anxious that the Westies might be persuaded by political ideas generated from sources the luvvies can’t control; so the luvvies in a spasm of self-preservation try to cut off any avenues the Westies might mozey along. And this is why the plasma TV has become so iconic in Luvvie-land.
Latham had some very profound insights into how a strong liberal political economy could be married with genuine working class aspirations. Unfortunately, he was a nutcase, and too pussy-whipped by the teacher’s unions.
I don’t think Kevin and Julia will make the same mistake. But they really should limit the influence of the luvvies to Maxine McKew. And for god’s sake under no circumstance ever take a call from Bob Ellis, Phillip Adams, or the 3 Davids!!
Are you sure this is the right thread John? It’s a great comment, and germane, but I think it may be orphaned from its original post
skeptic
Shit, you’re right. What a silly tit, I am. Are you able to pop it where it should go?
Looks like you’ve found the right spot for it, John. And I’ll keep it here too because it’s a valid point in the context of Hamilton’s faux monasticism.
SL, the PC is looking at Pt V but not Pt IV (also looking at, among other things, Pt IVA, unconcsiable conduct). Terms of Reference.