Investigation Report No. 2925

File No. / ACMA2012/1561
Broadcaster / Network TEN (Melbourne) Pty Ltd
Station / ATV (Channel Eleven) Melbourne
Type of Service / Commercial Television
Name of Program / Couch Time
Date of Broadcast / 12 October 2012
Relevant Code / Clause 1.9.6 of the Commercial Television Code of Practice 2010
Date Finalised / 13 February 2013
Decision / No breach of clause 1.9.6[provoke or perpetuate intense dislike, serious contempt or severe ridicule on the grounds of religion]

Background

  • On 11 November 2012, the Australian Communications and Media Authority (the ACMA) received a complaint concerning an episode of Couch Time, broadcast on ATV (Channel Eleven) by Network TEN (Melbourne) Pty Ltd (the Licensee).
  • Couch Time(the Program) is light-hearted in nature and features in brief, five-minute slots on Channel 11. It is described on its website in the following terms:

Kick back with [L] and [S] as they present television's greatest comedy hits! Including trivia, competitions and guest interviews, Couch Time is like drive time radio - for your TV![1]

  • In a number of episodes of the Program, one of the presenters of the program (L) was seen to be wearing a necklace with an inverted crucifix on the end of it (the Necklace). An image of L wearing the Necklace in a broadcast can be seen below:
  • The complainant submitted that this was ‘blatantly an anti Christian emblem’, ‘an offence to followers of that religion’, and that this was ‘unacceptable conduct in a multicultural society’. He also stated that ‘were I in this individual’s position and wore a KKK item that was identifiable, or an anti Muslim item, or an anti Jewish or Asian religion item, they would have reacted long ago.’
  • In his letter to the Licensee of 14 September 2012, the complainant did not give a specific date on which he had seen L wearing the Necklace, instead stating that he had seen it on the Program ‘two weeks ago’. In subsequent correspondence to the ACMA on 26 November 2012, the complainant submitted that he had seen L wearing the Necklace ‘every day’ since he had first made contact with the Licensee. The ACMA has been able to ascertain that footage of L wearing the Necklace was broadcast during the program on 12 October 2012. This date shall therefore be treated as the date of the broadcast for the purposes of this investigation.

  • The investigation has considered the Licensee’s compliance with clause 1.9.6 of the Commercial Television Industry Code of Practice 2010 (the Code):

Proscribed Material

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

1.9.6provoke 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.

  • This assessment is based on submissions from the complainant and correspondence between the Licensee and the complainant. Other sources have been identified where relevant.
  • Clause 1.9.6 of the Code is to be assessed according to what the ‘ordinary reasonable’ viewer would have understood the relevant material to have conveyed. Courts have defined an ‘ordinary, reasonable’ reader (listener or 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 clauseestablishes 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 broadcast induce a mild or even strong response.
  • Material which merely conveys negative reactions towards a person or group is not ‘provocation’. There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.
  • The word ‘likely’ is taken to mean something that is a real and not remote possibility, or something which is probable.[3]
  • The Licensee submitted in response to the complainant that the Necklace was:

...one of [L]’s personal items. No attention is drawn to the necklace or any reference made to the necklace during the program. There is no intention to offend Christians or promote anti-Christian sentiments. Overall, we consider the item is unlikely to provoke or perpetuate intense dislike, serious contempt or severe ridicule against Christians.

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

Finding

  • The Licensee did not breach clause 1.9.6 of the Code.

Reasons

  • The ACMA is satisfied that the relevant group for consideration is Christians and the relevant ground is religion.
  • The ACMA notes that the inverted crucifix has a number of different symbolic meanings. In modern times it has, as submitted by the complainant, often become associated with Satanist[4] groups.[5] Traditionally, however, the inverted cross is known as the Cross of StPeter, and remains a revered symbol of worship in many parts of the Christian church, in particular amongst Catholics;[6] the Pope himself hasbeen known on occasion to sit on thrones with an inverted cross adorning them.[7]
  • As such, the ACMA is not persuaded by the complainant’s submission that the Necklace was ‘blatantly’ an anti Christian emblem. While it is often used and interpreted as an anti-Christian symbol, this is by no means a universal interpretation, and manyin fact see it is a religiousitem. The ACMA is accordingly not satisfied that the ordinary, reasonable viewer would necessarily have interpreted the Necklace in the manner alleged by the complainant.
  • To the extent that the Necklace may have been interpreted by some as an anti-Christian symbol, it is considered that merely wearing the Necklace, and not otherwise drawing attention to it, falls considerably short of the powerful reaction contemplated in the wording of clause1.9.6 of the Code. It is noted in this respect that the program did not discuss religion or draw attention to the Necklace in any way.
  • The ACMA appreciates that the complainant was offended by the broadcast. However, for the reasons outlined above, the ACMA is of the view that, in all the circumstances, the material complained about was not likely to have provoked or perpetuated intense dislike, serious contempt or severe ridicule against Christians on the grounds of their religion.

ACMA Investigation Report 2925 – Couch Time – ATV – 12 October 20121

[1]

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

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

[4] Generally, groups who admire Satan and reject the teachings of Christianity.

[5]

[6] This stems from Christian folklore (i.e. does not appear in the Bible), whereby St Peter considered himself unworthy to be killed in the same manner as Christ, and therefore requested that he be crucified upside down. This comes from the writings of Tertullian and Origen, from Eusebius, Church History II: A number of articles and blogs discussing the original meaning of the symbol and the manner in which it has been distorted can be found here: h

[7]