Network Ten has been grilled in court over its decision to bury a correction related to The Project at the bottom of its terms of use webpage.
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American fetish master Dylan Hafertepen settled with Ten earlier this year over a November 2018 report he said portrayed him as being involved in the death of his boyfriend, Melbourne man Jack "Tank" Chapman.
The 12-minute report about Mr Chapman, whose enlarged scrotum was a feature of his public kink relationship with Mr Hafertepen, was republished to Ten's catch-up service and The Project's Facebook and Twitter pages.
The terms of the American man's confidential settlement with Ten involved the network covering his legal costs, writing a private apology he could show family and employers, and a clarification being placed on the 10play website for 14 days, the Federal Court was told on Friday.
There was no payment of damages.
But, with the deed of settlement not explicit on where to place the website clarification, Ten ran it at the bottom of its terms of use page.
Myles Farley, a senior legal counsel at Network Ten, repeatedly denied acting in bad faith.
"How many people are reading the exciting terms of use?" Mr Hafertepen's barrister, Sue Chrysanthou, asked.
"I don't know," Mr Farley replied.
Justice Anna Katzmann noted people don't even read the terms of use when required to agree to them.
"I do not understand how anyone who had seen that broadcast on The Project could be motivated to click on the terms of use, let alone to scroll down it," the judge said.
"The only purpose of publishing the clarification is for it to be brought to the attention of viewers."
Brenda Tronson, acting for Ten, said the video-based nature of the 10play website and its geo-blocking on all videos made the text clarification at the bottom of the terms of use appropriate.
Further, the structure of the settlement showed it wasn't as important as the private clarifications, she said.
Appearing at times bewildered by Ten's defence of its conduct, Justice Katzmann said Ms Tronson had done a "valiant job" advancing a case for Ten.
"But it's beyond me," the judge said.
Ms Chrysanthou said the correction was her client's "only form of real public vindication" given the settlement explicitly forbade the private apology being posted online or being distributed.
"It's frankly likely absolutely no one read this," she said.
Mr Farley said he was concerned about Ten's reputation but his primary thought was about whether he'd complied with the settlement terms, which just said "website".
"I understood (terms of use) to be for legal notices."
The settlement also required Ten to send letters of correction to media organisations that had republished The Project's claims.
But when asking for proof, Mr Hafertepen's lawyers say they were sent a photograph in which the text of the letters was "illegible".
"Invisible would perhaps be more accurate," Justice Katzmann said.
Despite Mr Farley saying he had no intention of producing an illegible photo, Ten resisted providing Mr Hafertepen's lawyers copies of the letter until after Justice Katzmann said Ten's opposition "beggars belief".
Justice Katzmann will determine if the settlement has been complied with orders at a later date.
Australian Associated Press