Investigation Report No. 2791

File No. / ACMA2012/491
Broadcaster / Channel Seven Sydney Pty Ltd
Station / ATN Sydney
Type of Service / Commercial Television
Name of Program / Australian Open
Date of Broadcast / 28 January 2012
Relevant Code / Clause 1.9.6 of the Commercial Television Industry Code of Practice 2010
Date Finalised / 10 April 2012
Decision / No breach of clause 1.9.6 (dislike, contempt or ridicule)

Background

·  The complaint concerns the program The Australian Open, broadcast on 28 January 2012 by Channel Seven Sydney Pty Ltd, licensee of ATN.

·  The Australian Open is one of the four international Grand Slam tennis tournaments, broadcast annually by the licensee.

·  After the female singles champion, Ms Victoria Azarenka, had won the 2012 tournament, the two presenters of the program entered into a discussion about the player’s career up until that point. This was accompanied by footage of Ms Azarenka posing for the media on centre court with her newly-won trophy.

·  During this discussion, the presenters mentioned that Ms Azarenka had previously had issues with her temperament on the court (including “screaming abuse at the player’s box” and “throwing her racquets round”) and that this aspect of her game had improved dramatically. One of the presenters, Ms Joanna Griggs, then stated:

I think she was telling the press the other day, she said ‘Look at me’ - in her words - she said ‘I used to be a mental case’.

·  The discussion then continued for some 45 seconds before the second presenter stated of Ms Azarenka that:

She won her first ever title, I believe, in Brisbane a few years ago ... and she was a bit of a mental case when she won there! They were quite entertained by her.

·  The complainant was concerned that the use of the phrase “mental case” in this context was “deeply offensive and qualifies as hate speech towards people with neurological and mental disorders and their families”. He added that “the term ‘mental case’ is disparaging and not acceptable in public discourse, especially on national TV during a PG rated program”. He then stated that “the innocence and light-heartedness of the segment translates to severe ridicule given the commentators [sic] utter oblivious disposition” and that “it is their fostering of the use of disparaging language towards people with mental health and neurological disorders that is causing the damage to dignity to this group of people [sic]”.

·  This investigation has considered the licensee’s compliance with clause 1.9.6 of the Commercial Television Code of Practice 2010 (the Code), which reads as follows:

Proscribed Material

1.9 A licensee may not broadcast a program ... which is likely, in all the circumstances, to:

1.9.6 provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference.

·  The complainant has also asserted that the use of the phrase was “not acceptable in public discourse, especially on national TV during a PG rated program”. This aspect of the complaint has not been considered in this investigation given that sports broadcasts, including The Australian Open, are exempt from classification.

·  This assessment is based on a recording of the segment in question supplied to the ACMA by the licensee, submissions from the complainant and correspondence between the licensee and the complainant. Other sources have been identified where relevant.

Issue: Was the Program Likely to Provoke or Perpetuate Intense Dislike, Serious Contempt or Severe Ridicule against Persons on the Grounds of Disability?

Finding

The licensee did not breach clause 1.9.6 of the Code.

Reasons

·  Clause 1.9.6 of the Code establishes a high threshold for proscribed material, in that the content of the broadcast must be likely, in all the circumstances, to provoke or perpetuate intense dislike, serious contempt or severe ridicule (emphasis added). The inclusion of the adjectives ‘serious’, ‘intense’ and ‘severe’ contemplates a very strong reaction to the prohibited behaviours. It is not sufficient that the behaviours induce a mild or even strong response.

·  In assessing this provision, consideration has been given to the following:

o  The word “likely” is taken to mean something that is a real and not remote possibility, or something which is probable.[1]

o  The test is based on an “ordinary reasonable viewer’s” perception of the program material in question.

·  Courts have defined an “ordinary, reasonable viewer” as:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable listener 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 considers that the use of the phrase “mental case” in the context of the broadcast was not, in all the circumstances, likely to have provoked or perpetuated intense dislike, serious contempt or severe ridicule as outlined in clause 1.9.6. There is no “real possibility” that the utterance of the phrase would have provoked or perpetuated the reactions contemplated in clause 1.9.6 in an ordinary reasonable viewer.

·  In this regard, it is noted that the first comment quoted Ms Azarenka directly. Ms Griggs prefaced the comment by stating that Ms Azarenka was a mental case “in her words”. This served to soften the impact of the statement, as well as (arguably) providing a recognition by Ms Griggs that the term was not the ideal manner of describing Ms Azarenka’s previous on-court behaviour. The second presenter used the phrase in this context, a mere 45 seconds after Ms Griggs had said the initial comment as opposed to using the term in isolation.

·  It is also noted that the comments were brief and not used in a sustained manner throughout the broadcast.

·  In these circumstances, the ACMA considers that the phrase was not used maliciously and was not intended to be derogatory to those with mental health issues.

·  It is accepted that the use of the phrase “mental case” is generally used to refer to those with mental health issues and that the use of the phrase would do little to improve community awareness for those suffering from such conditions. Ms Griggs’ quoting of Ms Azarenka in this way could be described as careless or insensitive.

·  The ACMA acknowledges that the complainant was deeply offended by the comment. When examined in the context of the broadcast, however, the comment falls considerably short of meeting the threshold required by Clause 1.9.6.

·  Accordingly, the ACMA is of the view that the material complained about has not breached Clause 1.9.6.

ACMA Investigation Report 2791 – The Australian Open – Channel 7 – 28 January 2012

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

[2] Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at pp 164-167