Investigation Report No. 2931

File No. / ACMA2012/1695
Broadcaster / Australian Broadcasting Corporation
Station / ABV
Type of service / National broadcaster
Name of program / Lateline
Date of broadcast / 20 September 2012
Relevant code / Standards 2.1, 4.1 and 4.5 of the ABC Code of Practice 2011
Date finalised / 3 April 2013
Decision / No breach of clause 2.1 [ensure material facts are accurate]
No breach of clause 4.1 [present news and information with due impartiality]
No breach of clause 4.5 [do not unduly favour one perspective]

The complaint

On 30 November 2012, the Australian Communications and Media Authority (ACMA) received a complaint regarding a segment of the program,Lateline,broadcast on 20September 2012 by the Australian Broadcasting Corporation (ABC).

The complainant was concerned that the segment was partial and contained factual inaccuracies.

The ACMA has investigated the ABC’s compliance with standards 2.1, 4.1 and 4.5 of the ABC Code of Practice 2011 (the Code).

The program

Lateline is a current affairs program broadcast on weeknights at 10:30pm on ABC TV.It is described on the ABC’s website as:

[...] a unique nightly news analysis program bringing you up-to-the-minute coverage of Australian and international news and events….[1]

On 20 September 2012, the program included a segmentwhich ran for approximately seven minutes and reported on a documentary made by two Sri Lankan journalists about the Sri Lankan civil war. The segment was introduced as follows:

Many of the most recent asylum seekers arriving in Australia by boat are from Sri Lanka. Whilst the Federal Opposition claims they're economic refugees and should be sent back, two Sri Lankan journalists tell a different story. In a new documentary they say Sri Lanka's asylum seekers are escaping human rights abuses committed in the wake of their nation's recently-ended civil war.

The segment included interviews with the two journalists, BA and AL, the Sri Lankan High Commissioner to Australia, TS, and a former diplomat to Sri Lanka, BH.

A transcript of the segment is at Attachment A.

Matter not pursued

The complainant identified the title of the segment, ‘Sri Lanka Still Unsafe’, as being misleading. The title was not broadcast as part of the segment but rather appears as the segment’s title on Lateline’s website. The ACMA’s jurisdiction in relation to accuracyfor the purposes ofthe Code is limited to material broadcast on radio and television. As such, the title was not considered in the course of this investigation.

Assessment

This investigation considered the complainant’s letter of complaint to the ABC (Attachment B), the ABC’s response to the complainant (Attachment C), and a copy of the broadcast provided to the ACMA by the ABC. Other sources have been identified where relevant.

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

Australian courts have considered an‘ordinary, reasonable reader' (or listener or 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.[2]

The ACMA examines what the ‘ordinary, reasonable viewer’ would have understood the segment to have conveyed. It considers the natural, ordinary meaning of the language, context, tenor, tone and 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 there has been a breach of the Code.

Issue 1: Accuracy

Relevant Code standard

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

The Code requires that the standards are interpreted and applied in accordance with the Principles applying in each Section.Relevant Principles in relation to factual accuracy provide that:

Types of fact-based content include news and analysis of current events, documentaries,factual dramas and lifestyle programs. The ABC requires that reasonable efforts mustbe made to ensure accuracy in all fact-based content. The ABC gauges those effortsby reference to:

  • the type, subject and nature of the content;
  • the likely audience expectations of the content;
  • the likely impact of reliance by the audience on the accuracy of the content; and
  • the circumstances in which the content was made and presented.

The ABC accuracy standard applies to assertions of fact, not to expressions of opinion.An opinion, being a value judgement or conclusion, cannot be found to be accurate orinaccurate in the way facts can. The accuracy standard requires that opinions be conveyedaccurately, in the sense that quotes should be accurate and any editing should not distortthe meaning of the opinion expressed.

The efforts reasonably required to ensure accuracy will depend on the circumstances.Sources with relevant expertise may be relied on more heavily than those without.Eyewitness testimony usually carries more weight than second-hand accounts. Thepassage of time or the inaccessibility of locations or sources can affect the standardof verification reasonably required.

The ABC should make reasonable efforts, appropriate in the context, to signal to the audience gradations in accuracy, for example by querying interviewees, qualifying bald assertions. Supplementing the partly right and correcting the plainly wrong.

The considerations which the ACMA generally applies in assessing whether particular broadcast material is factual in character are set out at Attachment D.

In applying standard 2.1 of the Code the ACMA usually adopts the following approach:

  • Was the particular material (the subject of the complaint) factual in character?
  • Did it convey a ‘material’ fact or facts in the context of the relevant segment?
  • If so, were those facts accurate?
  • If a material fact was not accurate, (or its accuracy cannot be determined) did the ABC make reasonable efforts to ensure that the ‘material’ fact was accurate and presented in context?

Submissions

The submissions of the complainant and the ABC are at Attachments B and C respectively.

Finding

The ABC did not breach standard 2.1 of the Code.

Reasons

The complainant identified the following statements as being inaccurate and/or misleading:

  1. Presenter:In a new documentary they say Sri Lanka's asylum seekers are escaping human rights abuses committed in the wake of their nation's recently-ended civil war.
  2. Reporter:… where up to 40,000 Tamil civilians who'd been herded into no-fire zones in 2009 are believed to have been deliberately killed by the Sri Lankan military.
  3. Sri Lankan journalist BA: There was something people used to call cluster shells. It causes multiple explosions. It rains over the people. They were quite a lot of burning and it looks like some kind of a chemical effect, some kind of a chemical explosive.
  4. Sri Lankan journalist BA: 146,000 people are unaccounted for and no-one knows what happened to these people.
  5. Reporter: Three years after the war, independent journalists aren't allowed into the so-called "killing fields".
  6. Sri Lankan journalist BA:I think the situation has actually worsened for the Tamil people.
  7. Reporter: Despite the glowing report, more Tamils are leaving their homeland.

Statements 3 and 6

The ACMA considers statements 3 and 6 to be expressions of opinion, as opposed to statements of fact. As such, they are not subject to the accuracy provisions of the Code.

Statement 3

As indicated above, the program reported on a documentary made by two Sri Lankan journalists regarding the Sri Lankan civil war.Statement 3 (in bold) was made by journalist BA in the following context:

Reporter: These two journalists have documented the bloody events of a civil war. [AL] was the last Tamil reporter in Sri Lanka's north, where up to 40,000 Tamil civilians who'd been herded into no-fire zones in 2009 are believed to have been deliberately killed by the Sri Lankan military.

BA: So they were attacked from air, they were attacked by the ground forces and they were attacked by the naval forces from the sea. There was something people used to call cluster shells. It causes multiple explosions. It rains over the people. They were quite a lot of burning (inaudible) and it looks like some kind of a chemical effect, some kind of a chemical explosive.

It is noted that BA’scommentsfollowed a description by the reporter of the documentary and a reference to the civilians killed during the war. The comments were also accompanied by footage of what appeared to be victims of the so-called ‘cluster shells’.

As indicated at Attachment D below, the ACMA considers that inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.

Taking into account the context in which they were made, the ACMA considers that the commentsamount to inferences from observed facts of a contestable kind. The reference to ‘looks like some kind of a chemical effect’ and the description of the effect of the so-called ‘cluster shells’, indicate personal observations which could differ from individual to individual.

Accordingly, the ACMA finds that the comments amount to expressions of opinion.

Statement 6

In regard to statement 6 -‘I think the situation has actually worsened for the Tamil people’ -the ACMA is satisfied that the comment amounts to an opinion given the reference to ‘I think…’ which conveys a personal belief as opposed to a factual statement.

Statements 1, 2, 4, 5 and 7

The ACMA considers that statements 1, 2, 4, 5 and 7 are statements of fact in context,as the language, tenor and tone used are unequivocal and do not allude to individual opinion.

Statement 1

The complainant is concerned that the following statement (in bold) was inaccurate:

Presenter: Many of the most recent asylum seekers arriving in Australia by boat are from Sri Lanka. Whilst the Federal Opposition claims they're economic refugees and should be sent back, two Sri Lankan journalists tell a different story. In a new documentary they say Sri Lanka's asylum seekers are escaping human rights abuses committed in the wake of their nation's recently-ended civil war.

The complainant submitted that ‘factual and anecdotal evidence provided by a number of TV programs …and other sources proved beyond any doubt that the SL asylum seekers areeconomic refugees’.

The ACMA considers that the presenter’s statement would have conveyed to the ordinary, reasonable viewer that the documentary states that Sri Lankans are applying for asylum following the endof the civil war on the grounds ofhuman rights abuses. The statement conveyed a material fact about the focus of the documentary.

The ACMA notes the following description of the documentary, Silenced Voices, on its website:

Silenced Voices is a film about freedom of speech and messengers of truth. It shows how much individuals are willing to risk to bring information to light. The film focuses on personal encounters with exiled journalists from Sri Lanka who have been "silenced" and targeted for assassination because they exposed corruption, massacres of civilians and other war crimes committed by the state. As the treatment demonstrates, Sri Lanka ranks as one of the worse countries in Asia with respect to freedom of the press. Over the past few years, many outspoken journalists have been tortured or killed. Others have simply disappeared. At least 50 have fled the country.[3]

Having regard to the description above, the ACMA is satisfiedthat the relevant statement was accurate. The ACMA considers that the documentary does in fact explorethe issue of Sri Lanka's asylum seekers ‘escaping human rights abuses’, which extends to Sri Lankan journalists escaping alleged torture and assassination.

Accordingly, the ABC complied with standard 2.1 of the Code.

Statement 2

The complainant’s concern relates to the following statement (in bold):

Reporter: These two journalists have documented the bloody events of a civil war. [L] was the last Tamil reporter in Sri Lanka's north, where up to 40,000 Tamil civilians who'd been herded into no-fire zones in 2009 are believed to have been deliberately killed by the Sri Lankan military.

The ACMA considers that the reporter’s statement would have conveyed to the ordinary, reasonable viewer that ‘up to’ 40,000 Tamil civilians are ‘believed’ to have been deliberately killed within no-fires zones by the Sri Lankan military. The statement conveyed a material fact about civilian causalities during the Sri Lankan civil war, which was central to the documentary.

The ACMA has reviewed the United Nations Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka’s (the UN Report)and notes that, in relation to civilian casualties,it states:

In the limited surveys that have been carried out in the aftermath of the conflict, the percentage of people reporting dead relatives is high. A number of credible sources have estimated that there could have beenas many as40,000civilian deaths. Two years after the end of the war, there is still no reliable figure for civilian deaths, but multiple sources of information indicate that a range of up to40,000civilian deaths cannot be ruled out at this stage. Only a proper investigation can lead to the identification of all of the victims and to the formulation of an accurate figure for the total number of civilian deaths [emphasis added by the ACMA].[4]

The complainant submitted that the relevant statement was an ‘unsubstantiated allegation’ and refers to the UN Report’s estimate of 40,000 civilians killed as ‘based on a vague assumption’. In contrast, the complainant referred to two surveys which indicated that ‘no more than 8,000 people died in the period from January 2009 to May 2009’, including a UN Country Team Report of 2009 which ‘placed killings at 7,721 and injured at 18,479 from August 2008 to May 13 2009’.

The ABC submitted:

... there is no definitive figure for the number of civilian dead. The highest independent figure cited in the UN report was75,000, although they concluded that 40,000 was the most crediblenumber. The report concluded that the 7,721 estimate was too low evenfor the limited period it surveyed. Some of those killed were likelykilled by the LTTE. However the Lateline report does qualify the numberas being the upper level of an uncertain estimate. As such, it was notmisleading.

The ACMA notes that the UN report did in fact dismiss the figure of 7,721:

The United Nations Country Team is one source of information; in a document that was never released publicly, it estimated a total figure of 7,721 killed and 18,479 injured from August 2008 up to 13 May 2009, after which it became too difficult to count….

The number calculated by the United National Country Team provided a starting point, but is likely to be too low…

Given that the figures provided in the UN report are estimates, the ACMA is not able to definitely decide the accuracy of the statement. However, the ACMA is satisfiedthat the ABC made reasonable efforts to ensure the accuracy of the relevant statement by relying on a UN source and qualifying the statement with use of ‘believed’ and ‘up to’ 40,000 Tamil civilians were killed. It is not inconsistent with the UN report which estimates ‘as many as’ and ‘up to’ 40,000 civilian deaths.

Accordingly, the ABC complied with standard 2.1 of the Code.

Statement 4

Statement 4 (in bold) was made by journalist BA in the following context:

Reporter: Before escaping to India, [AL] witnessed these scenes, some footage not seen before. [BA], a Sinhalese newspaper editor who advocated a political solution to the conflict, says he fled for his life after a source was gunned down in Colombo. He was granted asylum in Germany.

BA: 146,000 people are unaccounted for and no-one knows what happened to these people.

The complainant submitted that the ABC should have challenged ‘such exaggerated figures’ to ensure accuracy.

The ACMA considers that BA’s statement would have conveyed to the ordinary, reasonable viewer that 146,000 people are unaccounted for and no-one knows what happened to them. The statement conveyed a material fact about missing Tamil civilians during the Sri Lankan civil war.

The ABC submitted that BA ‘was relying on the figure provided by leading Sri Lankan Catholic Bishop (the Bishop) who formally asked the Sri Lankan Government to clarify what happened to 146,679 Tamil citizens of Jaffna he says are unaccounted for in post-war Sri Lanka’.[5] The ABC quoted a statement made by the Bishop to the Sri Lanka's Lessons Learned and Reconciliation Commission (the Commission):

Due clarification should be made regarding what happened to 146,679people, which is the discrepancy between the number of people who cameto government controlled areas between October 2008 -- May 2009 and thepopulation reported to be in Vanni in early October 2008.

The ACMA is satisfied that the ABC made reasonable efforts to ensure the accuracy of the relevant statement. BA’s reliance onthe Bishop’s statement was reasonable given the Bishop’s formal statement to the Commission questioning what happened to 146,679 missing Tamil citizens.

On this basis, the ACMA finds that the ABC complied with standard 2.1 of the Code.

Statement 5

The complainant is concernedthat the following statement was‘misleading’ on the basis that a number of journalists continue to visit the former war zone:

Reporter: Three years after the war, independent journalists aren't allowed into the so-called "killing fields"…

The ACMA understands the complaint to be that the above statement was inaccurate.

The ACMA considers that the reporter’s statement would have conveyed to the ordinary, reasonable viewer that independent journalists are not permitted into the ‘so-called’ killing fields. In the context of the segment, the statement conveyed a material fact about Tamil asylum seekers.