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.
2.Media Responsibilities when Commenting on Racial Vilification
The case further underscores the critical responsibilities media outlets have when covering sensitive topics like racial vilification. Importantly, the decision serves as stark reminder that reporting must be careful and nuanced to prevent liability. Publishers can do so by clearly differentiating between allegations and established facts when reporting on such sensitive matters and presenting multiple perspectives to ensure fair coverage. By being cautious when reporting, media outlets can simultaneously fulfil their duty to inform the public whilst minimising their risk of inadvertently misrepresenting situations involving alleged racial vilification.
3.Distinguishing Opinion from Fact
Media outlets should clearly delineate between factual reporting and opiniated commentary to minimise liability in defamation. In this respect, the Court found that Channel 7's reporting, which include statement to the following effect, “fans ejected for racial abuse aimed at Brent Naden” and “No tolerance”, was classified to as opiniated commentary which could not be alleviated by the defences of qualified privilege, honest opinion, or justification.
BlackBay’s Commentary
"This decision serves as a powerful reminder that in defamation law, context, tone, and language are just as critical as the facts themselves. Media outlets must tread carefully, ensuring allegations are presented as such and not as established truths. The case highlights that while freedom of the press is vital, so too is the responsibility to report fairly and accurately—especially on sensitive matters like racial vilification. Striking this balance not only protects reputations but also upholds public trust in journalism." – Monica Allen (Special Counsel).
ABOUT THE AUTHOR
Isabella Tziolis assists as a paralegal in commercial, defamation, employment and general matters and is committed to supporting BlackBay Lawyers mission of delivering exceptional legal services. Her work focuses on assisting in providing comprehensive legal support, conducting extensive research, and offering strategic guidance to clients.
Isabella is currently studying a Bachelor of Laws and a Bachelor of Arts, majoring in Politics and International Relations at the University of New South Wales. Her academic and professional experience has fostered her high attention to detail and strong analytical skills which allows her to efficiently handle high-pressure situations and contribute to effective legal strategies.
