Attachment B
Investigation Report No. 3060
File no. / ACMA2013/890Licensee / Channel Seven Sydney Pty Ltd
Station / ATN Sydney
Type of service / Commercial television
Name of program / Today Tonight
Date/s of broadcast / 11 and 12 March 2013
Relevant Code / Clauses 1.9.6, 4.3.1, 4.3.6, 4.3.7, 4.3.10 and 4.5 of the Commercial Television Industry Code of Practice 2010
Date Finalised / 30 May 2014
Decision / No breach of clause 1.9.6 [provoke or perpetuate intense dislike, serious contempt or severe ridicule on the grounds of religion];
Breach of clause 4.3.1 [factual accuracy];
Nobreach of clause 4.3.1 [fair representation of viewpoints];
No breach of clause 4.3.6 [sensitivity in broadcasting images of or interviews with bereaved relatives];
No breach of clause 4.3.7 [unfairly identifying a single person when commenting on the behaviour of a group];
No breach of clause 4.3.10 [portray group of persons in a negative light by placing gratuitous emphasis on religion]; and
Breach of clause 4.5 [factual accuracy of news and current affairs promotions]
The complaints
In June 2013, the Australian Communications and Media Authority (the ACMA) commenced an investigation in response to two complaints about a segment of the program Today Tonight, broadcast on 12 March 2013 by Channel Seven Sydney Pty Ltd, the licensee of ATN, and the promotions for the segment.
The first complaint was made on behalf of the Danthonia Bruderhof Community of New South Wales (first complainant) and the second on behalf of Dr Christopher Maendel (second complainant), both of whom featured in the segment.
The complaints were in similar terms, and both submitted that the licensee breached the following clausesof the Commercial Television Industry Code of Practice 2010(the Code):
1.9.1 [simulating news or events in such a way as to mislead or alarm viewers];
1.9.6 [provoke or perpetuate intense dislike, serious contempt or severe ridicule on the grounds of religion];
4.3.1 [factual accuracy and fair representation of viewpoints];
4.3.6 [exercise sensitivity in broadcasting images of or interviews with bereaved relatives];
4.3.10 [portray group of persons in a negative light by placing gratuitous emphasis on religion];
4.4 [fair and impartial presentation of news];
4.5 [factual accuracy of news and current affairs promotions].
Further, the first complainant submitted that the licensee had breached 4.3.7 [unfairly identifying a single person when commenting on the behaviour of a group].
The second complainant also submitted that the licensee had breached the following two clauses of the Code:
4.3.3 [appropriate regard to the feelings of relatives and viewers when including images of dead or seriously wounded people]; and
4.3.11 [correction of significant errors of fact].
In this report, any issues raised by both complaints have been considered together. Given that the complaints were almost identically worded, in cases where both complainants have raised the same issue, the first complainant’s submissions have been extracted, and elements of the second complainant’s submissions added where appropriate.
Matters not pursued
For the reasons outlined below, the ACMA has not investigated concerns raised by the complainants about:
clauses 1.9.1, 4.3.3, 4.3.11 and 4.4 of the Code;
website material; and
alleged references to a particular individual.
Clauses 1.9.1, 4.3.3, 4.3.11 and 4.4 of the Code
The complainants submitted that the licensee breached clause 1.9.1 of the Code by broadcasting inaccurate information that ‘misled viewers’.
Clause 1.9.1 deals with circumstances where news or events are simulated in such a way as to mislead or alarm viewers. As the complainants’ concerns are primarily about the accuracy of information (including information conveyed by dramatisations) rather than the simulation of news or events, clause 1.9.1 has not been considered in this investigation. However, the complainants’ concerns about factual accuracy have been assessed against clause 4.3.1 [factual accuracy] at Issue 2 below.
In relation to clause 4.3.3, the ACMA notes that the segment included some images of Mrs Maendel that were either:
taken well before her illness and showed her in good health; or
were clearly a dramatisation, with the role of Mrs Maendel performed by an actress.
Clause 4.3.3 applies where images of ‘dead or seriously wounded people’ are shown. In this case, images in the segment that fit this description were of an actress portraying a deceased member of the Bruderhof community, the late Mrs Irene Maendel, in dramatisations. These dramatisations were identifiable as re-creations given the appearance of the word ‘DRAMATISATION’ in the top right-hand corner of the screen and the production techniques employed: use of a different colour tone, slow motion, and blurred or shaky images.
The ACMA is satisfied that the ordinary reasonable viewer would have appreciated that this footage was a dramatisation and that the woman in question was an actress.
While the images that appeared in the dramatisation may have caused some distress to Mrs Maendel’s family, given that they were clearly identifiable as staged and not images of the real Mrs Maendel the ACMA is satisfied that clause 4.3.3 does not apply.
The second complainant alleged a breach of clause 4.3.11, which provides that licensees must make reasonable efforts to correct significant errors of fact at the earliest opportunity. In this case, the licensee has submitted that the segment did not contain any significant errors of fact and that it came under no obligation to correctunder clause 4.3.11. In all of the circumstances, the ACMA has decided not to pursue the complaint regarding this clause.
The complainants also submitted that the licensee breached clause 4.4 of the Code [fair and impartial presentation of news]. However, clause 4.4 applies only to ‘news programs’. As Today Tonight is a current affairs program, it is not subject to the requirements in clause 4.4 of the Code and the ACMA has not examined the licensee’s compliance with the clause.
Website material
The complainants submitted that a related promotion on the licensee’s website was inaccurate. The ACMA does not have jurisdiction to investigate the complainants’ concerns about accuracy of material on the licensee’s website, as online material is not covered by the Code.
References to a particular individual
The first complainant submitted that a particular individual (particular individual 1) was inaccurately referred to in the broadcast as ‘someone who exercised behavioural control over members of the Danthonia Bruderhof Community’.[1]
Upon review of the segment, the ACMA is satisfied that particular individual 1 is not named or referenced in the broadcast, nor is there any suggestion that he is ‘someone who exercised behavioural control over members of the Danthonia Bruderhof Community’.
The ACMA has therefore not considered these aspects of the complaints further in the investigation.
The broadcasts
The segment
Today Tonight is a 30 minute current affairs program which was formerly broadcast to most cities and regional areas across Australia on weeknights on the Seven Network at 6.30pm. It is currently only broadcast in South Australia and Western Australia.
On 12 March 2013, the relevant segment (11 minutes in length) was introduced as follows:
...they are called the ‘Bruderhof’. A little-known religious group originally from the United States who’ve set up an outpost in rural Australia. Little is known about them. But when one of their flock fell ill, the spotlight was shone on the Bruderhof for all the wrong reasons. [Reporter’s name] reports.
The segment, ‘Death of a Believer’, reported on the death in March 2010 of Mrs Irene Maendel, a member of the Bruderhof from the United States. At the time, she was visiting the Danthonia Bruderhof community (the community), located near Inverell in northern NSW. Mrs Maendel was treated by her son, Dr Christopher Maendel (another member of the community). Dr Maendel’s treatment of his mother was the subject of a decision made by the Medical Tribunal of NSW (the Medical Tribunal) on 8 March 2013.[2]
The segment featured interviews withother relatives of Mrs Maendel(particular individuals 2, 3 and 4) and members of the community, as well as former members of the Bruderhof including a descendant of the Bruderhof’s founder (particular individual 5). The segment also featured an interview with Dr Maendel as he was leaving the Medical Tribunal. In addition, the segment featured several dramatisations in which actors recreated events.
A transcript of the segment is reproduced at Attachment A.
The promotions
There were two promotions for the segment:
a 20-second promotion, broadcast on 11-12 March 2013 (the first promotion); and
a 10-second promotion, broadcast on 12 March 2013 (the second promotion).
The first promotion included images of actors portraying Mrs Maendel being treated by Dr Maendel, with other members of the community sitting by her side in a sparse, rustic room, described by the complainants as a ‘barn’. It included a close-up shot of an actress portraying a Bruderhof member in prayer. It also featured brief images of Dr Maendel himself, [particular individual 2] and the Danthonia Bruderhof community from a distance.
It was accompanied by the following dialogue:
Narrator – Playing God... the cult and their doctor. They prayed for six days, instead of seeking medical help for a dying woman.
Reporter – What happened in this remote compound will shock you.
[Particularindividual 2]– Why is everyone giving up on [Mrs Maendel] so soon?
Narrator – A special investigation, on Today Tonight.
The second promotion was an abbreviated version of the first promotion. It featured some of the same footage, but did not include the comments ‘They prayed for six days, instead of seeking medical help for a dying woman’ or ‘Why is everyone giving up on [Mrs Maendel] so soon?’
Assessment
This investigation is based on submissions on behalf of each of the complainants, submissions by and on behalf of the licensee, correspondence between the licensee and the complainants and their lawyers, and a copy of the broadcast provided by the licensee. Other relevant sources have been identified where used.
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[3].
In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).
Once the ACMA has applied this test to ascertain the meaning of the material broadcast, it then determines whether or not that material has breached the Code.
Issue 1: Provoke or perpetuate intense dislike, serious contempt or severe ridicule
Relevant Code clause
Proscribed Material
1.9 A licensee may not broadcast a program, program promotion, station identification or community service announcement 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.
Complainants’ submissions
The complainants each stated that the licensee has breached clause 1.9.6 because the segment portrayed the Bruderhof in general, the Danthonia Bruderhof Community, its members and Dr Maendel in a negative light on the grounds of their religion:
Whilst the Offending Program purported to be dealing with the death of Mrs Maendel, it actually placed a gratuitous focus on the religion of the Danthonia Bruderhof Community and its members [and Dr Maendel]...
These implications were likely to provoke or perpetuate intense dislike, serious contempt and severe ridicule of the Bruderhof in general [and Dr Maendel], and/or the Danthonia Bruderhof Community in particular, [on the grounds ... of religion...].
Licensee’s submissions
The licensee submitted in its responses to the complainants that:
...the Report does not set out to convey an overall tone of dislike or contempt against the Danthonia Bruderhof Community and its members on any ground. In fact, the Report makes reference on multiple occasions to the attributes of the Danthonia Bruderhof Community which many would regard as highly admirable. This includes, for instance, a reference to the fact that members... take a vow of poverty.
Also, some of the individuals who are involved in the report and who are critical of the medical treatment received by Irene Maendel expressly acknowledge that their grievance is not with the religion observed by Danthonia Bruderhof Community. For instance, [particular individual 2] says ‘we’ve…never had a problem with [Mrs Maendel]’s religion. I do have a problem with substandard medical care’.
Any critical views which are expressed in [the segment] and relate to the Bruderhof are, in context, statements of opinion held by those people based on facts which were presented to the NSW Medical Tribunal... While an ordinary viewer might draw their own conclusions as to the adequacy of medical care provided in the case of Mrs Maendel, they would not then have the requisite negative reaction to the Bruderhof Community as a whole because of their religion.
Moreover, in relation to the portrayal of Dr Maendel in the report, any criticism of Dr Maendel in the report clearly relates to the medical treatment he provided to his mother and not his religion. In that regard, as you are aware, Dr Maendel’s conduct was the subject of disciplinary proceedings in the Medical Tribunal of NSW in which he was held to have engaged in unsatisfactory conduct and was therefore legitimately the subject of criticism in the report...
Finding
The licensee did not breach clause 1.9.6 of the Code.
Reasons
In determining whether the licensee has breached clause 1.9.6, consideration must be given to the following:
identification of the relevant person or group and the relevant ground; and
whether the broadcast provoked intense dislike, serious contempt or severe ridicule against the relevant individual/group on that ground.
The ACMA’s interpretation of clause 1.9.6 of the Code is outlined at Attachment B.
The relevant person or group of persons and the relevant ground
The Bruderhof describe themselves as ‘an international communal movement of families and single men and women who seek to put into action Christ’s command to love God and neighbour’.[4]
The segment referred repeatedly to the Bruderhof and its beliefs. It was made clear in the segment that the community was by its nature a religious one. It was also central to the segment that Mrs Maendel and her son, Dr Maendel, were members of the community, and that Mrs Maendel was treated on the Danthonia community’s property.
Therefore, the ACMA is satisfied that the relevant group is the Bruderhof and the relevant groundis religion for the purposes of clause 1.9.6 of the Code. Dr Maendel, as a clearly-identified member of the Bruderhof, was also a relevant person for the purposes of the clause.
Provoke or incite
The complaints are that the segment portrayed the Bruderhof, the Danthonia community and Dr Maendel in a negative light because of their religion and that these ‘implications’ gave rise to a breach of clause 1.9.6 of the Code.
The ACMA considers that implications are insufficient to found a breach and that the requisite element of provocation or incitement was absent from the segment.There was no inflammatory language and there were no explicit terms of condemnation or engagement with the audience appealing to it to respond to the Bruderhofor Dr Maendel with hatred, contempt or ridicule on the basis of their religion or practices.
‘intense dislike, serious contempt or severe ridicule’
Further, clause 1.9.6 sets a high threshold for the likely effect of proscribed material. The definitions of ‘intense dislike’, ‘serious contempt’ and ‘severe ridicule’, as outlined at Attachment B, indicate that the Code contemplates a very strong reaction to the impugned material.
While the segment suggested that the community had treated Mrs Maendel with prayer and several of those interviewed sought to present the Bruderhof and Dr Maendel in a negative light, the ACMA does not consider that these factors reach the high bar of ‘provoking’ ‘intense’ dislike or ‘serious’ contempt.
The ACMA is not satisfied that the segment was likely to have provoked intense dislike, serious contempt or severe ridicule against members of the Bruderhof, including members of the Danthonia community or Dr Maendel, on the basis of religion. Therefore, the ACMA finds that the licensee did not breach clause 1.9.6 of the Code.
Issue 2: Factual accuracy
Relevant Code clause
News and Current Affairs Programs
4.3 In broadcasting news and current affairs programs, licensees:
4.3.1 must broadcast factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;
4.3.1.1 An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.
The considerations which the ACMA generally applies in assessing whether particular broadcast material is factual in character are set out at Attachment C.
Submissions
Extracts of submissions on factual accuracy are at Attachment D (complainants’ submissions) and Attachment E (licensee’s submissions) respectively.
Findings
The licensee breached clause 4.3.1 of the Code in relation to factual material representing that Dr Maendel and the community treated Mrs Maendel with prayer and hymn singing as a substitute for medical care.
The licensee did not breach clause 4.3.1 of the Code in relation to the remaining material identified by the complainants.
Reasons
Background - Medical Tribunal’s decision
The ACMA notes that the segment was broadcast four days after the Medical Tribunal made a decision concerning Heath Care Complaints Commission proceedings arising from Dr Maendel’s conduct with respect to the treatment of his mother.
The Medical Tribunal found Dr Maendel guilty of unsatisfactory professional conduct, the particulars of which included that: after rendering emergency care he continued to treat the patient notwithstanding his close familial and personal relationship to her; he failed to consult with specialists; he failed to arrange for her to be transferred to hospital; he failed to arrange an independent investigation or tests including CT scan or assessment by specialist emergency medicine or neurosurgical practitioners; and he failed to have her clinical and neurological state closely monitored or assessed by himself or nursing staff.