Investigation Report No. 2399

File No. / 2010/751
Licensee / Channel Seven Sydney Pty Ltd
Station / ATN
Type of service / Commercial television broadcasting
Name of program / Today Tonight
Date of broadcast / 23 December 2009
Relevant Code / Clauses 4.3.1, 4.3.7, and 4.3.11 of the Commercial Television Industry Code of Practice 2004
Date Finalised / 14 September 2010
Decision / No breach of clauses 4.3.1, 4.3.7 or 4.3.11 of the Commercial Television Industry Code of Practice 2004


The complaint

On 18 March 2010, the Australian Communications and Media Authority (the ACMA) received an unresolved complaint about a segment of the program Today Tonight broadcast on 23 December 2009 by Channel Seven Sydney Pty Ltd, the licensee of ATN.

The complainant stated that it was an operator of two on-line (i.e. internet) dating sites and alleged that ‘the report incorrectly and unfairly portrayed our online dating service’ and unfairly grouped on-line dating sites with ‘defamatory’ on-line sites.

The complainant also alleged that the licensee did not correct significant errors.

The ACMA has investigated the complaint against clauses 4.3.1 [factual accuracy], 4.3.7 [unfair identification], and 4.3.11 [correction of significant errors] of the Commercial Television Industry Code of Practice 2004 (the Code).[1]

Matter not pursued

The complaint also alleged that the program had defamed the complainant.

However, in a telephone conversation on 22 March 2010 the ACMA advised the complainant that, as defamation is not a matter covered by the Code, it was outside the ACMA’s jurisdiction and, consequently, the ACMA would not be investigating this aspect of the complaint.

The program

Today Tonight is a current affairs program broadcast nationally on weeknights from 6.30 pm to 7.00 pm.

The edition of the program broadcast on 23 December 2009 included a segment called ‘Predator’, which presented a report on ‘cyber attacks’.[2] The report concerned the issues of the on-line harassment of individuals, the creation of fake profiles on on-line dating sites and on-line defamation. The report also commented on the limitations of Australian law with respect to these issues.

The report consisted of interview segments with two women (referred to in this report as CB and MA) who talked about their experiences of harassment after their personal details were used to create fake profiles on dating sites. The report also included interview segments with a legal practitioner who commented on Australian law (referred to in this report as PD), and a brief interview with a person connected with a website described in the segment as a ‘defamatory site’ (referred to in this report as WD.

These interview segments are interspersed with the reporter’s commentary and brief footage displaying the websites of several on-line dating sites.

Assessment

This investigation is based on:

·  the complainant’s submissions, which include correspondence between the complainant and the licensee;

·  the licensee’s submissions to the ACMA; and

·  a DVD recording of the broadcast of 23 December 2009 provided to the ACMA by the licensee.

Other consulted sources are identified where relevant.

Issue 1: Whether the licensee ‘presented factual material accurately’

Relevant code

News and Current Affairs Programs

4.3  In broadcasting news and current affairs programs, licensees:

4.3.1  must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;

The ACMA generally applies the following considerations when determining whether a statement complained about is compliant with the broadcaster’s obligations under clause 4.3.1:

·  The meaning conveyed by the relevant statement is assessed according to what an ‘ordinary, reasonable viewer’ would have understood the program to have conveyed. Australian courts have considered the ‘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.[3]

·  The ACMA must assess whether the relevant statement would have been understood by the ordinary reasonable viewer to be a statement of fact or an expression of opinion.

·  The primary consideration would be whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material presents as a statement of fact or an expression of opinion.

·  In that regard, the relevant statement must be evaluated in its context, i.e. contextual indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable viewer.

·  The use of language such as, ‘it seems to me, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgement is required as to how the substantive nature of the statement would be understood by the ordinary reasonable viewer, and the form of words introducing the relevant statement is not conclusive.

·  Inferences of a factual nature made from observed facts would usually still be characterised as factual material, subject to context. To qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be an inference of a judgemental or contestable kind.

·  The identity of the person making the statement would not, in and of itself, determine whether the statement is factual material or opinion. In other words, it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.

Complainant’s submissions

In a letter of complaint to the licensee the complainant submitted that:

Although [complainant’s name] appreciates the confirmation that a fake profile of [CB] was placed on [the complainant’s website], that fact does not justify [Channel Seven] making false factual claims in relation to [the complainant’s business]. [Channel Seven] failed to clarify the facts with my client before publishing its program.

[The complainant] does not display private information to the public. Any private information which was exchanged (such as phone numbers) can only be exchanged between the fake account holder and other members talking to that person in their own private on-line conversations. [The complainant] cannot control events such as where one person in a private on-line conversation, gives the phone number of a second person to a third person, without the permission of the second person.

[Channel Seven’s] broadcast that ‘names and addresses and phone numbers are put on public display’ is misleading the general public and totally incorrect. By selecting only to publish a few dating sites in your client’s program (including the site owned by [the complainant]), and not all of them, the public was left to assume that it was only those dating sites which were ‘guilty’ of this behaviour.

[Channel Seven] did not check the facts to see which of the sites it published actually undertook this activity, or it was reckless in its regard for the truth and did not care whether the facts were correct or not when that statement was broadcast. [The complainant’s] reputation was tarnished as a result.

[The complainant] takes down any fake profile as soon as it is notified as being fake.

[The complainant] was wrongly portrayed as one of the dating sites that do not help victims of fake profiling. [Three dating sites including the complainant were shown]. However, [MA’s] comments, ‘it’s very scary’ and ‘I was very angry’ ‘I’ve wrote to them three times … but they haven’t done anything’, came right after these three logos were shown. General consumers would not be able to tell which dating site or sites she was referring to. The inference is that all were guilty of this conduct.

Posting someone else’s profile without that person’s permission happens on various kinds of websites … [Channel Seven] chose to push its story on ‘Adult’ dating sites to merely sensationalise the story.

In its letter of complaint to the ACMA the complainant submitted that:

We operate online dating sites [name of complainant]. This segment … portrayed [complainant’s website] as if it is our website’s irresponsibility that is causing the issues of people [sic] are left to live in fear after someone else created fake profile on dating sites. The segment showed, 1) the private information is placed on public display on adult dating sites, 2) customer support of adult dating sites are not assisting the victim of fake profiles, 3) labelling adult dating sites as ‘defamatory sites’, bundling adult dating sites together with such site [WD] which purpose is to defame people and our website, 4) It gave an impression that only adult dating sites are to blame for that issue to happen, failing to mention that any social networking sites, blogs, forums, conventional dating sites can be MISUSED and [the complainant’s name] was used as if one of the adult dating sites that causes an issue.

To clarify the facts,

-  [complainant’s name] does not place private information on public display.

-  [complainant’s name] takes down any fake profiles immediately when reported or found whichever first.

-  [complainant’s name] was misused by public with malicious intentions and it is not defamatory in nature.

-  Channel Seven did not contact [complainant’s name] to verify the facts before broadcasting the segment.

Licensee’s submissions

The licensee submitted in its letter to the complainant dated 2 February 2010 that:

Factual position

The model featured in the Story [model’s name] did, as a matter of fact, have her photos and details placed on [complainant’s website] by an unknown person. [CB] has received unwelcome contact as described in the Story.

[…]

Injurious Falsehood

The Seven Network does not agree that the program gives rise to the ‘disparaging assertions’ outlined in your letter.

[…]

The Code

Further, given the factual position outlined above, it is entirely acceptable for the Seven Network to identify [the complainant] given that the Seven Network is satisfied that the appearance of the [complainant’s] homepage is in its proper context.

Finding

The licensee did not breach clause 4.3.1 of the Code in its broadcast of Today Tonight on 23 December 2009.

Reasons

The complainant alleges that the segment provides false and misleading information about on-line dating agencies. The complainant is concerned that the segment conveys ‘wrongful assumptions’ about on-line dating sites and blames on-line dating sites for the creation of fake profiles on their sites; as well as on-line defamation.

The complainant alleges the broadcast conveys the following incorrect information:

1.  Private information is placed on public display by on-line dating sites, leading to fake profiles being posted that in turn lead to on-line harassment.

2.  On-line dating sites do not assist victims of fake profiles that have been posted onto these sites.

3.  On-line dating sites are to blame for on-line defamation, and adult dating sites are incorrectly linked to ‘defamatory sites’.

The following table identifies the program material that corresponds to the above claims of incorrect information being broadcast.

allegation / Statement in the broadcast
private information is placed on public display by on on-line dating sites / Presenter: There are women living in genuine fear tonight because of someone’s idea of payback. Stalked, harassed and abused by internet predators after their names, addresses and phone numbers are put on public display.
Worst of all, if it happened to you, there’s little you can do about it.
[…]
CB: Basically, I have someone who is using my images for dating – adult dating sites. She’s using them to, I guess, get some guy’s attention.
Reporter: [CB] often features in magazines, although on the internet she has a large following.
CB: Well, I have websites everywhere with my images, including MySpace, Facebook and Model Mayhem.
Reporter: But she started to get unwanted phone calls and messages after someone hijacked her image and began posting it on adult sex dating websites.
The visual image of the complainant’s website and two other on-line dating sites is displayed here.
CB: I get phone calls all hours of the day and night from men all around the world, abusing me, basically calling me a liar and different names because I'm not acknowledging that I know them.
allegation / Statement in the broadcast
on-line dating sites do not assist victims of fake profiles / Reporter: mother of three [MA] too is a victim of internet revenge. Someone with a grudge has posted her personal details on another sex dating site. There’s even fake provocative photos. She’s since been inundated with lewd requests.
[visual image of the fake profile is displayed on screen]
MA: I was very angry, you know, I was very shocked as well because it – so far this has gone way beyond control, you know. I mean, how could anybody just make things like this without even, you know, you without even knowing, and there before you know it there’s someone knocking on your door asking for this from you and you have no idea what’s happening.
Reporter: [MA’s] attempts to take her details, which include her phone number and address off the web, have so far been ignored by the American based site.
MA: I’ve wrote to them three times already asking them that if they don’t make any – or give me any – show me any proof that I’ve been asking them, you know, I will legally take them to court and everything like that, but they haven’t done anything.
allegation / Statement in the broadcast
on-line dating sites are responsible for on-line defamation, and adult dating sites are ‘defamatory sites’ / PD: We’ve got a real problem with the law in Australia. [Visual image of the website WD is displayed during PD’s comments] And the real problem is, in the 21st century, how do we cope with people being libelled and defamed on the internet?
Reporter: PD QC says when many of these defamatory sites are located in the US … Australian law has no jurisdiction, as was the case with the website, [WD] …
[a visual image of an on-line dating website is displayed after this comment, as well as a visual image of the WD website]

The broadcast material relating to on-line dating sites consists of verbal and visual elements.

The visual material includes brief images of various on-line dating websites. These are displayed a number of times throughout the segment but are not verbally identified or commented on in any way. The verbal material includes the statements made by the interviewees, as well as the reporter’s commentary.