A recent Federal Court decision, Thurston v Fox Sports Australia Pty Limited [2025] FCA 54, has offered critical insights into the operation of defamation laws for media outlets, particuarly in cases involving allegations of racial vilification.
Background
The case concerns an incident at a NRL match in August 2020 between the Penrith Panthers and the New Zealand Warriors. Three men - William Thurston, Cherokee Townsend, and Joshua Renner (the Applicants) - were ejected from the game for allegedly racially vilifying NRL player Brend Naden, a Wiradjuri man. Multiple media outlets, including Fox Sports, Channel 7, and Channel 9 (the Publishers) reported on the incident in varying degrees of detail and tone. Subsequently, the Applicants claimed each of the Publishers had defamed them by conveying false and damaging imputations about their characters, specifically that “each of them is racist and had racially vilified or racially abused, or made vile racist remarks towards, Mr Naden”.
Key Findings
The Court held that Channel 7 unlawfully conveyed defamatory imputations through the employment of 'judgemental' tones, unqualified statements and on-screen text that suggested guilt in its reporting. In contrast, Channel 9 and Fox Sports avoided liability for defamation by using the qualifier “alleged”, presenting the incident as an ongoing investigation rather than a definitive, confirmed event, and by clarifying that statements made by reporters were genuinely held opinions with a factual basis.
Fox Sports successfully raised the defence of honest opinion, as the statements published were based on genuinely held opinions grounded in facts. However, the defence of truth failed for both Channel 7 and Fox Sports, as there was insufficient evidence that the Applicants engaged in racial vilification, noting that statements like Naden “couldn’t catch a ball” did not amount to racial abuse. The defence of qualified privilege was also unsuccessful as it was found that their coverage lacked independent verification and conveyed a sense of guilt rather than objective reporting.
Although the claims against both Fox Sports and Channel 9 were dismissed, the successful defamation proceeding against Channel 7 highlights that despite covering the same incident, the context, tone, presentation and language choice employed by the publishers will be determinative factors as to whether defamatory imputations are able to be carried.
As a result, each of the Applicants were awarded non-economic damages in the amount of $200,000 against Channel 7 for the harm caused to their reputations.
Implications for Media Outlets
This case presents several important implications for media outlets to understand:
1.Careful wording
Publishers must exercise caution with their choice of words, particuarly when reporting on allegations rather than proven facts. By employing the words “allegedly” and “alleged” in the coverage, Channel 9 were not found to have conveyed any of the pleaded defamatory imputations. This is because unlike Channel 7 and Fox News, the broadcaster merely conveyed that there was a suspicion of racial abuse which was being investigated.
Read here more about Defamation and Racial Vilification in Media Reporting
