Channel 7 vs Amber Harrison: when PR should sometimes trump the law

May 10, 2018 Roger Blow

The latest Court offering served up by the long running and very public legal dispute between Amber Harrison and Channel 7 serves as a timely reminder that sometimes technically correct (and indeed in this case successful) legal actions should still not be pursued for the sake of a company's reputation and wider commercial interests.

As you may recall, Ms Harrison had a very public liaison dangereuse with one of her former colleagues, the CEO of Channel 7 Tim Worner. That affair became the subject of a settlement agreement between Harrison and Ch7 which Harrison alleged was breached by Ch7 (including the failure to pay agreed sums of money) and that Ch7 alleged Harrison breached by failing to comply with confidentiality provisions. Ch7 then obtained a very widespread 'gagging order' from the Court preventing Harrison from saying anything publicly about Ch7.

Ch7 Executives, no doubt relying on the extensive gagging order, then came out swinging, in public, against Harrison. The plan back-fired. Harrison refused to be gagged whilst being publicly attacked, and responded in kind.

Fast forward to this week, and we have the Supreme Court finding that whilst Harrison clearly breached the Court gagging order and needs to be found guilty of contempt, there appears to be no other penalty or punishment imposed and no costs ordered in favour of the Ch7 shareholders. Even more damaging for Ch7, the judgment also overtly displays substantial sympathy for Harrison's position, and Justice Pembroke repeatedly stresses that the Court was required to find her guilty of contempt, whilst setting out at length in the Judgement all of the circumstances that led Harrison to respond in the manner that she did. Reading between the lines, it was a bad strategic call by Ch7.

And that is perhaps the take away: whilst technically Harrison was gagged and unable to respond to the public attacks levelled at her by the Ch7 Executives, such events are, at least initially, played out in the public domain well before they darken the door of any Courtroom. The general public will not accept or fully understand the legal intricacies involved in a gagging orders or contempt proceedings and are merely going to see a lone female employee going toe to toe with a large and very well resourced company. In a media/PR sense, it is never going to be a fair fight and Ch7 needed to recognise that, regardless of the weight of its legal argument. The decision to then bring contempt proceedings was highly unlikely to bring any commercial or PR benefit to Ch7, but they still pressed the button. Its a great example of where a legal argument or position needs to be strategically viewed in the wider commercial context - otherwise you may just be headed for a very expensive (if not damaging) pyrrhic victory.

Harriet Wran - Flexible justice or the Courts overstepping the mark?

September 6, 2016 Roger Blow

The relationship between the media and the Courts has always been a difficult one. One is seeking to achieve justice and the other, at its heart, is a business trying to sell papers, website subscriptions or advertising.

This tension has been recently highlighted within comments made by Justice Ian Harrison in the Supreme Court of NSW in his sentencing decision for Harriet Wran, daughter of former NSW premier Neville Wran, who was prosecuted for robbery and accessory to murder.

Given the identity of Wran's father, her case attracted intense media attention and led, in Justice Harrison's words, to an "ill informed" and "sustained and unpleasant campaign" against her by several NSW newspapers, resulting in "immense psychological distress".

A Judge delivering a withering critique of the media's coverage of criminal proceedings is of course nothing new, but what makes this case different is His Honour's acknowledgement that he had taken into account the damage caused by the media's treatment of the accused in deciding the sentence to be imposed. In other words, the suffering caused by the media would appear to have directly reduced the punishment inflicted by the Court's sentence - similar to a custodial sentence taking into account time already spent in prison awaiting trial.

This has certainly led to some robust debate between the legal and media sectors, including a bold response from the Sydney newspapers identified in the Judgment as being the main protagonists, who bluntly suggested that it was not the court's role to consider questions of 'media taste'. So was this a Judge being flexible in achieving justice by having regard for the impact that a negative media campaign can have on an individual, or the Courts trying to wade into an arena outside of their jurisdiction?

A cynical observer might reflect that a Judge attacking newspapers operating at the tabloid end of the spectrum for sensationalism and unreasonable attacks on those in the public glare merely adds more fuel to their sales figures and will not ultimately have any impact on the decisions made by those controlling the editorial content. On the flip side, for how long will newspapers and in particular 'social' magazines be able to justify their content, however base, invasive or damaging to the individual, with the argument that it is up to the public whether they choose to consume?