Investigation Report No. 2821

File No. / ACMA2012/782
Broadcaster / ABC
Station / ABN NSW
Type of Service / National broadcaster
Name of Program / Lateline
Date of Broadcast / 22 March 2012
Relevant Code / Clauses 2.1, 2.2 and 4.1 of the ABC Code of Practice 2011
Date Finalised / 12 July 2012
Decision / No breach of clause 2.1 (accuracy)
No breach of clause 2.2 (accuracy)
No breach of clause 4.1 (impartiality)

The complaint

On 7 June 2012, the Australian Communications and Media Authority (the ACMA) received a complaint regarding a segment of the program, Lateline, broadcast by the Australian Broadcasting Corporation(ABC) on22 March 2012.

The complainant was concerned thatthe segment contained factual inaccuracies and was biased.

The complaint has been investigated under clauses2.1, 2.2 and 4.1 ofthe ABC Code of Practice 2011(the Code).

The program

Latelineis a current affairs program broadcast weeknights on ABC TV at 10:30pm. The program discusses Australian and international news and events and is presented by Tony Jones and Emma Alberici.

On 22 March 2012, the program included a segment entitled, ‘Sri Lankan dissenters still living in fear’. The segment was filed by ABC correspondent, Richard Lindell from Sri Lanka. The presenter introduced the segment as:

The United Nations is tonight debating a resolution calling on Sri Lanka to investigate alleged war crimes in the final months of the civil war. The end of the bloody conflict with the Tamil Tigers that claimed 100,000 lives has brought greater security to most, but it’s come at the expense of democratic freedoms and human rights. Dissenters are routinely threatened and Amnesty International reports that 32 activists have disappeared in the past six months.

The segment included interviews with:

SR, Tamil National Alliance;

JK, wife of a missing man;

JP, National Peace Council;

AS, wife of former Tamil political leader;

GC, Governor of the Northern Province;

RM, protestor; and

RF, human rights activist.

A full transcript of the segmentis at Attachment A.

Assessment

The assessment is based on:

a recording of the broadcast provided by the broadcaster;

the complainant’s submission;

the broadcaster’s submission; and

publicly available information, the source of which is relevantly identified.

Ordinary, reasonable viewer

In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable viewer’.

Australian courts have considered an ‘ordinary, reasonable viewer’ 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.[1]

The ACMA asks what the ‘ordinary, reasonable viewer’ would have understood the program to have conveyed. It 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, it is for the ACMA to determine whether the material has breached the Code.

Issue 1: Accuracy

Relevant Code clauses

The relevant clauses of the Code are 2.1 and 2.2:

2.1Make reasonable efforts to ensure that material facts are accurate and presented in context.

2.2Do not present factual content in a way that will materially mislead the audience. In some cases, this may require appropriate labels or other explanatory information.

The considerations which the ACMA generally applies in determining whether or not a statement complained of was compliant with the ABC’s obligations to make reasonable efforts to ensure that material facts are accurate and presented in context are set out at Attachment B.

Complainant’s submission

The complainant submitted to the ABC:

[...]

The statements, “But here in Jaffna, the battle scars remain, as does the Army, and locals say the peace dividend is largely going to the Sinhalese majority of the south”; and “The military intrusion into daily life suggests the Army is here to stay”, insinuates that the Sri Lankan Army shouldn’t be present in the North of the country. There is absolutely no basis for such a suggestion given that there are military camps ALL over the country. This has been the case since independence and is no different to the establishment of camps of the Australian military all over Australia. Why does the reporter suggest that it is wrong for the Sri Lanka Army, which is the national army of Sri Lanka and not a foreign army, to be present in the North of Sri Lanka?

The statement, “The Army is also crowding out local business with interests in hotels, restaurants and farming”, is a gross exaggeration of the actual situation. The Army runs one holiday resort in the North and in comparison to the number of rooms available in privately run guest houses, lodges and houses and the rooms that will be available in the proposed hotels is miniscule.

As for farming the Army does have a farm which is ONLY 90 acres (36 Hectares) in extent. Please see As of June 2011 there were 15,900 hectares under cultivation in Jaffna ( It is obvious that the Army’s 36 Hectare farm is miniscule in comparison to the 15,864 hectares that are [being] cultivated privately.

As for restaurants the army has small shops selling refreshments along the main highway (A9) running to Jaffna. It runs none in the Jaffna peninsula itself.

Having visited Jaffna myself in Dec 2011, I saw only a very limited military presence on the roads and towns which is as per the military’s presence in all parts of Sri Lanka.

The ABC reporter has either been very slipshod in his investigation or has deliberately distorted the true situation to fulfil the biased agenda of the ABC.

The statement, “The government has defended the Army's final thrust, but the ABC has obtained these previously unpublished pictures taken during the last days of the war. They appear to add to an already considerable body of evidence of heavy civilian casualties in areas that still remain off-limits”, is a gross exaggeration.

The pictures do not show even a dozen casualties and apart from unsubstantiated allegations there isn’t any mounting body of evidence to suggest that there were heavy civilian casualties. Could the ABC please substantiate this allegation by pointing to this so called body of evidence?

The statement, “Some of these high-security zones are military bases or uncleared minefields, but there's deep suspicion that some of these areas must contain the bodies of the 40,000 civilians the UN estimates were killed in the last months of the war”, is speculation on the part of some people and is a gross exaggeration.

The UN does not have any estimate on the possible civilian casualties as articulated by Sir John Holmes the head of the UN office for the coordination of humanitarian affairs (OCHA). He said that, "The truth is we simply don't know. It doesn't reflect any estimate we made for ourselves. We did have our own internal estimate until the end of April. After that, we didn't have anyone on the ground". (

The statement, “After initially denying large-scale civilian casualties, the government now says 8,000 were killed. The real number may never be known and many still don't know what happened to their loved ones”, again is a misrepresentation of the facts. The government of Sri Lanka conducted an enumeration in the Northern province and it was found that 8,998 people had died between Jan and May 2011 and out of the numbers who dies and whose cause of death doesn’t fall under the categories Old/ Sick, Natural disaster and Accident, Homicide, Suicide is 7442. It also DOES NOT specify that ALL these people are civilians ( Furthermore the report states that 6858 people who died have their cause of death categorised as other and out of that 6858 the number of deaths recorded in May 2009 is 849.

[...]

The programme states that, “For now most Sri Lankans appear willing to give up some of their democratic rights to a government that crushed the Tamil Tigers and ended the bloody civil war.” What are the democratic rights that Sri Lankans have given up? The very fact that ALL those interviewed were openly critical of the government is a testament to the prevailing democracy in Sri Lanka.

[...]

Broadcaster’s submission

The broadcaster submittedin its response to the complainant:

[...]

Latelineis a news and current affairs program that provides context and analysis of current political issues. We believe it was accurate and in context for the reporter to note that “But here in Jaffna, the battle scars remain, as does the Army, and locals say the peace dividend is largely going to the Sinhalese majority of the south” and “The military intrusion into daily life suggests the Army is here to stay and there's no mistaking who's now in charge”. We are satisfied that the analysis was backed by demonstrable evidence and was based on the reporter’s first-hand experience and the testimony of those locals he spoke to.

The reporter has explained that he witnessed a large number of bases along the A9, the main road into Jaffna, as well as others in and around the city. He also witnessed many checkpoints on that road and in the city with soldiers patrolling many streets and corners. We are satisfied that it was relevant for the reporter to note these facts within the context of this report. We cannot agree with your interpretation that the reporter “insinuates that the Sri Lankan Army shouldn’t be present in the North of the country.” He did nothing of the sort.

The reporter also observed many army restaurants along the A9 as well as army farms and a hotel. Locals described to the reporter that they believed this was unfair and one hotelier said that the army had the advantage of government backing and money. Complaints about competition from the army was an issue raised by local business people directly with the reporter.

We cannot agree that the reporter’s statement that “the ABC has obtained these previously unpublished pictures taken during the last days of the war. They appear to add to an already considerable body of evidence of heavy civilian casualties in areas that still remain off-limit” is a “gross exaggeration” or that “there's deep suspicion that some of these areas must contain the bodies of the 40,000 civilians the UN estimates were killed in the last months of the war” is a “gross exaggeration”.

The pictures featured in the report do “appear to add to an already considerable body of evidence of heavy civilian casualties”. The ABC is aware that the Sri Lankan government estimates that 8-9000 died in the final months of the war, but denies indiscriminate shelling as outlined in the UN report. The original UN report says "tens of thousands lost their lives" and that report is available at the attached link;

Other publications by the UN say that up to 40,000 may have been killed - please see this link

The ABC understands that the 40, 000 number has also been published by other credible, independent rights groups including Human Rights Watch, Amnesty International and the International Crisis Group. In the report, this figure is clearly referred to as an estimate and then the government's estimate is also noted. We are satisfied that it was made clear to the audience that this number is contested. It is true that the UN cannot calculate an exact figure and the UN, along with other human rights agencies, say that this is the case because there has been no credible or transparent investigation into alleged war crimes in the final months of the war.

[...]

In regard to the issue of “democratic rights”, as you may be aware the media is not free to report in an open and transparent manner in Sri Lanka. Thirty four journalists have been killed since 2005, editors are threatened and media property has been destroyed over recent years. I am advised by ABC News management that the editors and journalists the program spoke to recounted the enormous difficulties and dangers of doing independent work. The reporter argues this is demonstrably true and is clearly reflected in Sri Lanka's English press.

Amnesty International reports 32 disappearances since last October of activists and dissenters, with locals spoken to by the program acknowledging that this sends a strong message as to what happens to those that speak out, which was highlighted by the analyst in the report. It is indeed noteworthy that in a state with a strong police and military presence that not one of these (or previous) abductions and murders have been solved. Moreover, all the people interviewed by the program talked about the fear of government retribution. One woman said that she was harassed by police after speaking before the government's own Lessons Learnt and Reconciliation Commission. It should also be noted that there were many other people the program tried to interview who were too afraid to talk. Latelineobserved the climate of fear and intimidation experienced by the few individuals willing to speak out first hand. It is also clear that President Rajapaksa is very popular and commands a strong majority - hence the conclusion that Sri Lankans appear willing to give up free speech and a free media to a government that ended the civil war.

[...]

Finding

The ABC did not breach clauses 2.1 or 2.2 of the Code.

Reasons

The ABC has an obligation to ensure that the gathering and presentation of news and information is accurate according to the recognised standards of objective journalism. The ABC accuracy standards apply to assertions of fact, not expressions of opinion.

The complainant has allegedthat the following statements made by the reporter were inaccurate:

1 / But here in Jaffna, the battle scars remain, as does the Army, and locals say the peace dividend is largely going to the Sinhalese majority of the south. [...] The military intrusion into daily life suggests the Army is here to stay.
2 / The Army is also crowding out local business with interests in hotels, restaurants and farming.
3 / The government has defended the Army's final thrust, but the ABC has obtained these previously unpublished pictures taken during the last days of the war. They appear to add to an already considerable body of evidence of heavy civilian casualties in areas that still remain off-limits.
4 / [T]here’s deep suspicion that some of these areas must contain the bodies of the 40,000 civilians the UN estimates were killed in the last months of the war.
5 / After initially denying large-scale civilian casualties, the government now says 8,000 were killed. The real number may never be known and many still don't know what happened to their loved ones.
6 / For now most Sri Lankans appear willing to give up some of their democratic rights to a government that crushed the Tamil Tigers and ended the bloody civil war.

Statements 1, 2 and 6

The ACMA considers that the ordinary, reasonable viewer would have understood statements 1, 2 and 6 as the reporter’s opinion based on:

observations made by the reporter while in Sri Lanka regarding the military presence; and

information provided to the reporter by Sri Lankan people concerning their experiences with the government.

As indicated at Attachment B below, inferences of a factual nature made from observed facts qualify as opinion where the inference is of a judgmental or contestable kind. The use of language such, ‘locals say’, ‘intrusion’, crowding out’ and ‘appear willing’, would have indicated to the ordinary, reasonable viewer that the reporter’s statements were contestable and inconclusive. In this regard, the ACMA considers that the reporter’sstatement were opinion based on the circumstances presented.

As the statements are opinions they are not subject to the accuracy requirement in the Code.

Statement 3

The relevant statement is:

[The previously unpublished pictures taken during the last days of the war] appear to add to an already considerable body of evidence of heavy civilian casualties in areas that still remain off-limits.

The ACMA considers that the ordinary, reasonable viewer would have understood statement 3 as a combination of fact and opinion. The factual component of the statement is that the relevant photos add to an existing body of evidence of heavy civilian casualties in areas that still remain off-limits. Even though the statement that the photos ‘appear’ a certain way would in some cases be an expression of opinion, the tenor and tone used in this statement, including the accompanying footage, suggest that this was presented as a statement of fact.

The component that amounts to an opinion is that the body of evidence is ‘considerable’. This aspect of the statement is inherently subjective and cannot be independently tested and as such is not subject to the accuracy provisions of the Code.