Were Australian Football League (AFL) CEO Andrew Demetriou's comments on Optus' TV Now misleading, just part of public discussion or simply "anger management"? The Federal Court yesterday thrashed out what Demetriou actually meant when he said TV Now was "akin to stealing".
Optus has sought an interlocutory injunction against Demetriou to prevent him from making such claims about Optus' TV recording app, TV Now, following the sporting code's initial loss of a copyright dispute against Optus in the Federal Court at the beginning of February.
Optus counsel JM Hennessy told Justice Richard Edmonds that Demetriou made "definitive statements" without qualification in the Herald Sun on 19 February that could lead consumers to believe that the TV Now product was stealing content from the AFL. He said that this was "misleading and deceptive" conduct under Australian Consumer Protection law.
Hennessy pointed to comments made by readers of the online version of the article that indicated that they would switch telcos based on Demetriou's advice.
"Our interest is the fact that there is plain evidence of people ... accepting it as a matter of truth [and] them acting on it," he said, adding that a number of the commenters were "falling in line with the battle cry of Mr Demetriou" for Optus customers to flock to Telstra.
On Tuesday, Hennessy said, Demetriou appeared on Triple M to again urge Optus customers to switch to Telstra. During this interview, the host, Eddie McGuire, claimed that the TV Now app was "akin to piracy".
AFL counsel said, however, that Demetriou's comments were part of a wider public debate about the TV Now app.
"There's a public debate out there, your honour. Not only contributed to by Mr Demetriou but also the CEO of Optus," he said. "The material relied upon does not lead to the conclusion that Mr Demetriou's utterances have the requisite tendency to lead someone into error."
He said just 17 of the 122 comments posted on the article were of Optus customers announcing intentions to leave the telco and in any case, seeking to prevent Demetriou from making comments that the TV Now app is "akin to stealing" would not stop him from telling people to switch telcos.
"It would be a futile exercise ... when there are others in the community that seek to share his opinion."
Edmonds joked that it was a decision between whether Demetriou's comments were misleading or "sort of anger management" following the loss in the Federal Court.
Edmonds reserved his judgment and said a decision may be handed down today.