A Federal court has ordered Ten Network to pay indemnity legal costs and publish a clarification prominently, in connection with the defamation complaint lodged by a US blogger over the coverage of his Australian partner’s death.

The court passed its order on Monday in a plea filed by the blogger that Ten had “buried” the clarification that was agreed as part of the settlement of the defamation proceedings in April 2020.  The clarification has to be now posted on the landing page of The Project on 10Play’s website for 14 days.

Dylan Hafertepen had sued for defamation following the channel’s story about the death of his partner Tank Hafertepen, known earlier as Jack Chapman, who died in October 2018 from injecting silicone into his genitals. Tank had died from a lung ailment caused by silicone embolism.

Channel Ten’s The Project hosted by now Q&A host Hamish Macdonald aired a story in November 2018, Justice For Jack. The story was an account of the blogger couple who lived in Seattle and were in a dominant/submissive relationship, with Hafertepen being the ” master” and Tank one of his “pups”. The Project episode featured a segment with a confrontation between Tank’s mother Linda and Hafertepen  who was visiting to hand over her son’s ashes.

 The defamation complaint alleged that The Project imputed among other things that Hafertepen had caused Tank’s death “in order to inherit his estate which had been bequeathed to him in Jack’s (Tank was named by his original name in the petition) will, signed only three weeks before his death”. The program remained on the website for 10 months and was removed on the day it received Hafertepen’s notice.

Following mediation proceedings, Channel Ten and Hafertepen settled the case in April 2020. The terms of settlement said that the channel had agreed to provide Hafertepen with a private apology, post a clarification on the Channel Ten 10Play website for a period of 14 days that said: “Network 10 did not intend to suggest and does not suggest that Mr Hafertepen had anything to do with that death. If anyone took it to mean that, then Network 10 unreservedly retracts any such suggestion.”

The channel also agreed to send clarification letters to global media organisations and Google and also to pay legal costs incurred by Hafertepen capped at $75,000.

Earlier this year, Hafertepen filed an interlocutory application against the channel for not complying properly with the settlement terms. The channel, he alleged, had posted the clarification at the bottom of the ‘Terms of Use’ page. Hafertepen’s lawyers argued that the channel had acted in bad faith as the positioning of the clarification meant that “it was extremely unlikely, if not impossible, for it to come to the attention of any viewers of the original story on The Project.”

 “Ten’s behaviour was unreasonable from the outset,” the court observed. Justice Anna Katzmann of the Federal court agreed that by posting the clarification at the bottom of the Terms of Use page, the channel had “breached” the agreement and was an “act of bad faith.” Speaking about the lawyer who instructed the digital team to post the apology, the judge said: “The most rational explanation for his choice of location was that he thought it was in Ten’s best interests to bury it where it was unlikely to be found.”

Sally Webber, Senior Solicitor at Atkinson Vinden Lawyers, who represented Hafertepen, said in a statement that the order was “the best possible outcome” for her client.

“This is the best outcome for Mr Hafertepen, now he can move forward and focus on repairing the damage to his reputation here in Australia and internationally as a result of the broadcast on The Project.”

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