Sunday, 7 February 2010

Stop Exposing Our Children to Pokies in NSW Clubs

Have a look at the advertisement that Peter Newell and ClubsNSW did not want readers of the Illawarra Mercury to see. Their solicitor, David Kennedy of Colin Biggers & Paisley has stated, on behalf of his clients, that the ad is defamatory. I don't think it is. Given that Mr Kennedy has knocked back my request to simply reproduce his communications to me, I'll do my best to reproduce their concerns and explain how I have accommodated them.The first thing to explain is why am I paying good money to publish this advertisement. The goal is to urge NSW Clubs to adopt the national principle that children should not be exposed to pokie gambling within a pokie venue. As the Productivity Commission pointed out in their draft report (Page 8.41); this could be done by prohibiting the entry of children into the venue (my preferred option) or imposing venue design standards.

NSW hotels have suitable requirements in place. NSW clubs should have the same requirement. This is how the goal can be implemented i.e. the same laws for both clubs and pubs. This levelling out of this requirement across clubs and pubs is consistent with the national principles for the conduct of responsible gaming machine activity in clubs and hotels.

There is history behind this ad. The ad you see is the last version. The 1st version was submitted to the Mercury. I was informed that it was looked at by their legal department. It was approved for publication.

In my past interaction with Woolworths regarding what I intended to say at their Annual General Meeting, I have forwarded a copy of what I intend to say in advance. Similarly, with Wesfarmers / Coles, I forwarded a copy of the advertisement I intended to run. I did the same for Mr Newell and ClubsNSW as a matter of courtesy. The following email was sent around noon on Friday, 29 January anticipating publication on Monday, 1 February.
"Dear Mr Newell,

As a matter of courtesy, I have attached a pdf file of the advertisement scheduled to appear in the Illawarra Mercury on Monday, 1 February 2010.

My objective is that pokie clubs voluntarily adopt the same standard that protects children from the sights and sounds of pokies as exists with respect to NSW pokie pubs. You would agree that Clubs' status as mutuals is not an excuse for the conduct of irresponsible pokie gambling activity.

I would be grateful for the opportunity to meet with you to discuss a plan whereby the standard can be implemented.

At such time, I would also like to discuss the immediate measure urged by the Productivity Commission to bring in the $1 button push / $120 per hour loss restriction and $20 cash acceptor limit. This measure will target addicted gamblers and, as you are likely aware, there is substantial research that supports the fact that recreational gamblers will not be affected.

Sincerely,"
Around 3PM, Mr Kennedy sent an email. Since I have been declined permission to reproduce it, I will try to paraphrase Mr Kennedy's concerns. He indicated that there were several defamatory imputations in the ad although he expressed only one. The publication would be likely to damage Mr Newell's and Club NSW's reputations. The most serious imputation being that Mr Newell and Clubs NSW permit children to gamble on pokies. I was called upon not to publish the ad otherwise they would seek an injunction in the NSW Supreme Court.

This alleged imputation surprised me. It was never contemplated, let alone, intended. At no time in nearly two years of this campaign have I ever indicated that any operator permits children to gamble on pokies. I did not believe that the advertisement, as then written, gave rise to implication. I had no reservations about ensuring that implication could not be drawn by altering the advertisement using clear language.

I telephoned Mr Kennedy and stated that I would insert such language and asked him to express any other concerns so I could address them. He declined to provide particulars. Mr Kennedy informed me that Mercury had informed them that the ad would not be published on Monday. The ad was re-done by adding the words "While neither Mr Newell nor Clubs NSW permit children to gamble on the pokies". An email was sent to the Mercury:
"Please note that I reject the imputations made by the solicitors for Clubs NSW. The headline in the ad could not be clearer that the message is about exposure rather than children actually gambling. The word 'Exposing' appears in the headline of the advertisement. The word 'exposed' appears again with reference to the national principles. This ad is about stopping exposure rather than stopping children pokie gambling. Because the imputation that has caused concern was never intended, I have altered the advertisement. Please note that this is the only expressed concern. I have attached a pdf of that revised ad.

As you are aware, your own legal department examined the advertisement over some period of time and with a minor alteration found it to be acceptable.

I was informed by Mr Kennedy that the ad will not be published on Monday. While this is disappointing I request that the ad be published on the following Monday, 8 February. This conforms to the 7 day notice requested by Mr Kennedy. Please inform me of any further issues.

While my relationship regarding publication remains with your newspaper, please note that I copied this email as a matter of courtesy to Mr Kennedy."
Mr Kennedy emailed again on 3 February. Mr Kennedy characterised my action as a threat. He was not satisfied that the addition made to the ad had fixed the problem. He cited the Federal Court decision of ACCC v Target Australia Pty Limited [2001] FCA 1326. Click here to read that decision. Further, he felt that by the ad implied that Mr Newell was acting contrary to the law, that Mr Newell was responsible for the legislation and that Mr Newell had a interest in the matter that somehow allowed him to profit from the issue.

The ad did not state nor imply any of the above. The ad did not represent that either Mr Newell nor ClubsNSW either acted contrary to the NSW Gaming Machines Act nor that Mr Newell has an interest in the issue that somehow allowed him to profit. While Mr Newell does state in the 2008 /09 Annual Report of Clubs NSW is "engaged in areas covering policy and government", the advertisement does not state or imply anything with respect to the NSW state legislation.

Notwithstanding, I sincerely wanted to address Mr Kennedy's concerns and redrafted the ad. Here's the email I wrote to Mr Kennedy attaching the re-draft:
Dear Mr Kennedy,

I refer to your email of 3 February.

1.

Your use of the word "threatened" in the first paragraph is ill-founded. At no time have I threatened any action. On two occasions I have supplied advertisements to your client that I intended to have published as a matter of courtesy. In the first instance I also asked for the opportunity to discuss two matters and set out the objectives of that discussion. I continue to believe that such a meeting would be beneficial.

In the conduct of my campaign, I have extended the same courtesy to both Woolworths Limited and Coles/Wesfarmers.

With respect to Woolworths, I forwarded them a list of all issues I intended to raise at the annual general meetings I attended. A similiar practice was adopted with the 249P Statement. The result, in each instance, has been frank but constructive meetings with Woolworths and ALH senior executives. On a substantial matter, I joined with Woolworths in advocating a shared view and I have publicly commended certain of their practices.

The advertisement that was published with respect to Wesfarmers / Coles was also forwarded prior to publication. Coles acknowledge that as a result of our joint efforts, a child was rescued from a parked car by their pokie venue staff. Other instances of potential physical harm to children have also been averted. Coles have also adopted the National Principle that children should not be exposed to pokie gambling within their venues and have altered a number of their premises accordingly, with my input.

The reaction of your client is a clear contrast.

2.

The heading of the advertisement could not be plainer in its reference to the matter of exposure. Your client is aware that my concerns relate to exposure of pokie gambling to children. Mr Newell wrote about this in his editorial in Club Life published in August 2009. Members of your client have publicly reacted to the same matter and their reactions were televised on 4 November 2009 during the nationally broadcast 7:30 Report. The ABC reporter, Ms Murray reported "clubs say they've got no plans to change their policy regarding minors". During my own visits to registered clubs in NSW, I observed that children are exposed to pokie gambling inside the venue. This is the circumstance that I am urging Mr Newell to change.

To suggest that it is my intention to infer that either Mr Newell or ClubsNSW support or endorse children gambling on pokies whether it is to their harm, or otherwise is wrong.

In the Reasons for Judgement in the matter of ACCC v. Target Australia Pty Ltd [2001] FCA 1326 there is reference to 3 different newspaper advertisements. Two advertisements related to discounts on clothing and housewares where it was not sufficiently disclosed by those advertisements that the price of some items would not be so reduced. There were also advertisements where there was a failure to "sufficently disclose by those advertisements that no 'rainchecks' were available". With respect to the clothing advertisement, the Federal Court noted that the qualifying words were printed in typeface of not less than two millimetres in height. With respect to the houseware goods advertisement, the respondent admitted that certain houseware goods were not reduced. With respect to the raincheck advertisements, the court noted, having regard to the statement of raincheck policy on the Target website; "With respect to the advertisements which included the simple statement "no rainchecks", it is likely, considering the size of the qualifying advice in the context of the whole advertisement, that the advice would have been overlooked. It is also to be borne in mind that with Target's promotion of its "raincheck" policy, consumers would have expected that notification of exclusion of a "raincheck" would have been prominent and specific."

The case you brought to my attention appears to be about insufficient disclosure caused by the use of small print. There is no suggestion in your letter of insufficient disclosure brought about by my use of small print. On the contrary, the concept of exposure is in the headline of the advertisement in the largest typeface used in the artwork. There is no statement in the ad alleging that children gamble on pokies in NSW Clubs either to their harm or otherwise. In fact, a contrary statement appears. This statement is less qualified than your own expression.

Notwithstanding, I have altered the advertisement by moving the 4th paragraph to become the 1st paragraph and have revised words so that there is a 3rd mention relating to 'exposure'.

3.

It is a matter of fact whether NSW Clubs comply with the first National Principle "for the conduct of responsible gambling" or not. As mentioned above, it was reported that there are "no plans to change their policy regarding minors". That conduct is irresponsible in the light of the ministerial statement issued. Additionally, it is my opinion that is that such conduct is irresponsible. I have made it clear that this advertisement expresses my opinions.

There is no reference to NSW legislation either express or implied in the advertisement. No imputation with respect to NSW legislation was contemplated. The imputation you draw is wrong. Notwithstanding, I have added another reference to 'principle' to make the reference to the ministerial statement even clearer. I have also added the word 'more' in the large type sub-heading.

4.

Finally, you raise the issue of "plays the man and not the ball". Mr Newell is the chairman of ClubsNSW and its figurehead. There is no personal reference other than to Mr Newell in that capacity. I have attached a publication aimed at the former NSW Treasurer, Mr Egan. This publication was produced and distributed by your client. In that ad, your client personalises intentions by Mr Egan using descriptive expressions like "grab", "mean" and "gets away with it". The ClubNSW publication sets out 'end-of-the-world' type speculative options personally consequent upon Mr Egan's own action. Such events or options may have never eventuated although expressed as a certainty by use of the word "will". Your client's own publication "plays the man" in harsher terms than my advertisement targeted to the issue of child exposure to pokie gambling inside NSW clubs.

I have submitted the revised advertisement for publication in the Mercury. A copy is attached.

As your email expressly prohibits unauthorised use, I seek your authorisation to reproduce your letter of 3 February to the readers of my blog and, as a result visitors to my two web sites. I would do so without editing your words. It is my intention to reproduce your email for Monday's blog so that people who see the ad and visit PokieAct.org can read your concerns firsthand. So that I can proceed with this use, I look forward to your positive response by 5PM on Friday, 5 February 2010.

Sincerely
Mr Kennedy emailed again indicating, among other things, that the ad did not fix their concerns. He expressly mentioned the inclusion of Mr Newell's name in the top line. Again, while not agreeing with his concerns, Mr Newell's name was deleted from the top of the advertisement. Mr Kennedy was emailed the ad that appears in this blog. In that email, I respectfully acknowledged that there were issues that could not be agreed upon and stated my appreciation for him setting them out.

Those of you who have read this very long blog may be curious in seeing the publication of ClubsNSW referred to in point 4 above. Here it is:It's my intention to keep readers informed of progress as I try to achieve the goal of stopping children being exposed to pokies in NSW clubs.

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