Investigation Report No. 2688

File No. / ACMA2011/1622
Licensee / Radio 2UE Sydney Pty Ltd
Station / 2UE
Type of Service / Commercial radio broadcasting
Name of Program / Afternoons with Michael Smith
Date of Broadcast / 28 June 2011
Relevant Code / Clauses 1.1(e) and 5.5 of the Commercial Radio Australia Codes of Practice 2010
Decision /
  • Breach of clause 5.5 (complaints handling)
  • No breach of clause 1.1(e) (inciting hatred)

The complaint

The Australian Communications and Media Authority (the ACMA) received a complaint regarding an edition of the program Afternoons with Michael Smith broadcast by the licensee of Sydney commercial radio station 2UE, Radio 2UE Sydney Pty Ltd (the licensee), on 28June 2011.

The complainant alleged that comments made during this program by presenter Michael Smith incited hatred against Muslims. The complainant also alleged that he did not receive a response from the licensee to his complaint.

The program

Afternoons with Michael Smith, which is no longer part of 2UE’s format, wasa news, current affairs and talkback-style program broadcast between midday and 3.00 pm on weekdays.

The relevant comments were made during an interview with the founder of an Islamic organization, MyPeace. On its website[1], MyPeace states that:

MyPeace came about to address the many misconceptions about Islam, to educate fellow Australians on Islam and invite them to ask any questions that they might have.

At the time of the interview,MyPeace had recently erected several billboards around Sydney with the message: “Jesus, a prophet of Islam”. These billboards were the main focus of the interview. The interview covered the reasons for the erection of the billboards, the controversy that they had created, the role of Jesus Christ and other Biblical figures in the Islamic religion, the fact that the Advertising Standards Bureau had determined that the billboards had not breached any advertising regulations or codes, and the MyPeace organization itself.

The interview lasted approximately 10 minutes. A transcript of the relevant comments is at Attachment A.

Assessment

This investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.

The ordinary, reasonable listener

In assessing content against the Commercial Radio Australia Codes of Practice 2010 (the Code), the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable listener’.

Australian courts have considered an ‘ordinary, reasonable listener’ to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.[2]

The ACMAasks what the ordinary, reasonable listener would have understood the broadcast to have conveyed. In doing so, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any).

Once this test has been applied to ascertain the meaning of the broadcast material, the ACMAwill determine whether the material has breached the Code.

Issue 1: Whether the broadcast incited hatred against a group of persons because of religion

Relevant code clause

Clause 1.1(e) of the Code states:

1.1A licensee must not broadcast a program which, in all of the circumstances:

[…]

(e)is likely to incite hatred against, or serious contempt for, or severe ridicule of, any person or group of persons because of age, ethnicity, nationality, race, gender, sexual preferences, religion, transgender status or disability.

Finding

The licenseedid not breach clause 1.1(e) of the Code.

Reasons

The ACMA adopts the general approach set out below in applying clause 1.1(e) of the Code.

‘Likely’

Clause 1.1(e) states that a licensee must not broadcast a program which is ‘likely’ to have an effect indicated in that clause. The term ‘likely’ has been interpreted to convey the notion of a real and not remote possibility; something which is probable.[3]

‘Person or group of persons’

Clause 1.3(e) of the Code refers to the likelihood of incitementof hatred againsta ‘person or group of persons’. The issue raised by the complainant concerns incitement of hatred against Muslims.

‘Incite hatred’

The Macquarie Dictionary (fifth edition) includes the following definitions:

incite

to urge on; stimulate or prompt to action.

hatred

the feeling of someone who hates; intense dislike; detestation.

Clause 1.1(e) sets a high threshold for the likely effect of prohibited material. The above definitions indicate that the Code contemplates a very strong reaction and that it is not sufficient that the broadcast was likely to only incite a moderately negative response.

The ACMA has assessed the complainant’s concerns in the context of the segment as a whole, including the content, tone and language used.

For the following reasons the ACMA is of the view that the comments by Michael Smith regardingMuhammad and the age of his wife when his marriage to her was consummated was not so sustained or extreme as to be likely to incite hatred against Muslims because of their religion:

  1. The relevant comments were brief in terms of the interview as a whole (which lasted for approximately 10 minutes), were not dwelt upon by either the program’s presenter or the interviewee, and were not the main focus of the interview, which was the issues surrounding the MyPeace billboards.
  2. The relevant comments did not contain any element of incitement and listeners were not ‘urged on, stimulated or prompted to action’.
  3. The interview, which involved the program’s presenter, Michael Smith, and the founder of the Islamic organization MyPeace, was conducted in a reasonable and amicable fashion. Mr Smith allowed the interviewee to fully express his views and to provide information regarding MyPeace and the role of Jesus Christ and other Biblical figures in the Islamic religion.
  4. The nature and overall tone of the interview was not consistent with program material that would be likely, in all of the circumstances, to incite hatred against Muslims because of their religion.

The ACMA appreciates the complainant was personally offended by the broadcast and that the relevant comments may also have caused offence to members of the public, including members of the Muslim community.

However, applying the threshold test outlined above, including the requirement to consider ‘all the circumstances’ of the broadcast, it is unlikely the comments made during the segment were so harsh or extreme that they would have incited hatred against the Muslim community on the grounds of religion.

The ACMA is therefore of the view that, in all of the circumstances, the comments complained about have not breached clause 1.1(e) of the Code.

Issue 2: Whether the complaint was responded to by the licensee in accordance with the requirements of the Code

Relevant code clause

Clause 5.5 of the Code states:

5.5Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45 business days of receiving the complaint.

Background

In his complaint to the ACMA regarding the broadcast of 28 June 2011 the complainant stated that he had not received a response to his complaint to the licensee of 2UE. The complainant had faxed a complaint to 2UE on 19 July 2011 using the commercial radio listener complaints form. The complainant sent another fax to 2UE on 12 September 2011 reminding it that he had still not received a response to his original complaint, which he also attached. The complainant then lodged a complaint with the ACMA on 19 September 2011.

After seeking information from the licensee regarding the circumstances surrounding its handling of the complaint made to it regarding the broadcast of 28 June 2011, the ACMA was verbally informed by the licensee that it had not received the complaint lodged with it on 19July 2011 but that it had responded on 21 September 2011 to the complainant’s fax sent on 12 September 2011, informing the complainant that 2UE would not be substantively responding to his complaint as it was lodged outside of the timeframe required by the Code.[4]

Licensee’s submission

After seeking written comments from the licensee regarding its compliance with clause 5.5 of the Code, the licensee, in a letter dated 13 October 2011, stated that:

I have since been instructed that we did receive [the complainant’s] complaint on 19 July 2011. On behalf of 2UE I sincerely apologise for not responding to this complaint. Had we recognised that we had received a new complaint from [the complainant], we would have responded to it. We made a genuine error and we sincerely apologise for this. […]

Although we acknowledge that we would have responded to [the complainant’s] complaint had we recognised our error sooner, we still believe that we were not in breach of clause 5.5. This is because we believe that we were not obliged to respond to the complaint under the Codes.

At this stage I would like to refer to clause 5.8, which provides that:

The licensee must make every effort to resolve complaints made in accordance with this Code, except where the complaint is, in the reasonable opinion of the licensee, frivolous, vexatious or an abuse of the complaint process under the Code.

We submit that [the complainant’s] complaint on 19 July 2011 was substantively the same complaint as the complaint that we received on 7 July 2011[5]. As such, we submit that we were not obliged to respond to it according to clause 5.8. In our reasonable opinion the complaint that [the complainant] made on 19 July 2011 was an abuse of the complaint process under the Complaints Code.

[The complainant’s] complaint on 7 July 2011 referred only to the broadcast on 5 July 2011 and omitted reference to the broadcast on 28 June 2011, which was clearly related to his complaint. It is unclear why [the complainant] omitted to refer to this broadcast in his original complaint, given that the broadcast raised exactly the same concerns. In [the complainant’s] complaint on 7 July 2011 he expressed the view that Michael Smith’s comments about Prophet Muhammad were inciting hatred against Muslims and were untrue. In [the complainant’s] complaint on 19 July 2011 he expressed exactly the same concerns but referred to a different broadcast.

In our reasonable opinion, we had already addressed the concerns that he expressed in his complaint on 19 July 2011 in our letter to him dated 7 July 2011. Because we believe that [the complainant] submitted more than one complaint about exactly the same issue it is our reasonable opinion that the second complaint on 19 July 2011 was an abuse of the complaint process under the Code.

Finding

The licensee breached clause 5.5 of the Code.

Reasons

For the following reasons the ACMA is of the view that the licensee of 2UE did not comply with the provisions of clause 5.5 of the Code:

  1. The complaint lodged on 19 July 2011, which was in relation to the broadcast of 28June 2011, was done so in accordance with the requirements of the Code. It was made in writing by fax, it was signed by the complainant who provided his name and address, it adequately identified the material being complained about and it adequately identified the nature of the complaint.
  2. The licensee has acknowledged that it did, in fact, receive the complaint on 19 July 2011, which was within the 30 day timeframe required by the Code.
  3. The complaint was about matters covered by the Code and was not, in the opinion of the ACMA, frivolous, vexatious or an abuse of the complaint process.
  4. Although the comments made by Michael Smith in the broadcast of 28 June 2011 regarding the consummation of his marriage to Aisha were similar to those made by him during the broadcast of 5 July 2011, they were not identical and were made in a different context.
  5. Although the complaint of 19 July 2011 was about comments that were similar to those made by the same program presenter in abroadcast on 5 July 2011 and complained about by the same complainant on 7 July 2011, the complaint of 19July2011 was in relation to a separate broadcast, namely the broadcast of 28June 2011. It was a separate, distinct, complaint made specifically about a particular broadcast and should have been treated as such and responded to accordingly and as required by the Code.
  6. There is no provision in the Code allowing for the dismissal of complaints merely because they relate to issues that are similar to those that have previously been covered by responses to other complaints about different broadcasts.

The opinion of the licensee that the complaint of 19 July 2011 was an abuse of the complaint process is therefore, in the ACMA’s view, without basis andnot a ‘reasonable opinion’.

Accordingly, as the licensee did not respond substantively and within the required timeframe to the complaint made to it on 19 July 2011, the licensee has breached clause 5.5 of the Code.

Attachment A

TRANSCRIPT OF RELEVANT EXTRACT FROM INTERVIEW

Caller (Founder of MyPeace): In Islam, Jesus Christ is a prophet. It’s a fact of Islam.

Michael Smith (MS): What if someone wacked up billboard and said, well, I think it’s a fact that because Muhammad was married to an eleven, or, you know, was consummating a marriage with an eleven year old, by these standards he’s a paedophile.

Caller: No, no, no, that’s a completely different topic.

MS: Well, how’s it different?

Caller: It’s very different. I’m stating a fact that in Islam …

MS: Now hang on a sec, isn’t it a fact that Muhammad was married to, and consummated a marriage with, an eleven year old?

Caller: Yes it is.

MS: So by today’s standards, well by any standards, that’s …

Caller: No, no … (inaudible) … people say that Islam was spread by the sword, but I say in the Bible Jesus says, whoever doesn’t follow me, bring them here and chop their heads off.

ACMA Investigation Report – Afternoons with Michael Smith broadcast by 2UE on 28 June 2011 1

[1]

[2]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167

[3]See the discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD 773 at 778–779.

[4]Clause 5.7 of the Code states that if a complaint is made more than 30 days after the broadcast of the material on which the complaint is based, the licensee is not obliged to comply with the complaints handling provisions of the Code. As the relevant program material was broadcast on 28 June 2011, in this instance the 30 day timeframe required by the Code for the lodging of a complaint expired on 28 July 2011.

[5]The complaint of 7 July 2011 referred to by the licensee related to a complaint made to by the complainant regarding comments made by presenter Michael Smith during an edition of the program Afternoons with Michael Smith broadcast by 2UE on 5 July 2011. These comments also referred to Muhammad’s marriage to Aisha and the consummation of that marriage when Aisha was eleven years old. The ACMA’s Investigation Report 2627 at refers.