Investigation Report 2871
File No. / ACMA2012/1210Licensee / Channel Seven Sydney Pty Ltd
Station / ATN Sydney
Type of Service / Commercial Television
Name of Program / Today Tonight
Date of Broadcast / 11 July 2012
Relevant Code / Clauses 4.3.3, 4.3.5 and 4.3.6 of the Commercial Television Industry Code of Practice 2010.
Date Finalised / 20 February 2013
Decision / No breach of clause 4.3.3 (appropriate regard)
No breach of clause 4.3.5 (privacy)
No breach of clause 4.3.6 (exercise sensitivity)
The complaint
On 3 September 2012, the Australian Communications and Media Authority (the ACMA) received an unresolved complaint about a segment of Today Tonight broadcast on 11 July 2012 by ATN Sydney, the licensee of Channel Seven Sydney Pty Ltd.
The complainant alleges that the segment, which featured a story about the complainant’s late husband, was ‘confronting and unnecessary’ and was in breach of her privacy.
The complainant referred the matter to the ACMA for investigation.[1]
The complaint has been assessed in accordance with clauses 4.3.3 [regard to feelings of relatives], 4.3.5 [privacy] and 4.3.6 [exercise sensitivity in broadcasting images of bereaved relatives] of the Commercial Television Industry Code of Practice 2010 (the Code).
The program
Today Tonight is a half-hour current affairs program broadcast on weeknights on the Seven Network.
The segment complained about, ‘Mass flu outbreak’, reported on an outbreak of the flu and described the dangers of the flu and the methods of preventing the spread of infection. The four-minute segment featured a 55 second story about the death of the complainant’s late husband, X, who died of the flu. The segment included an interview with the parents of X, and included images of the complainant and X on their wedding day. While the images were shown, the reporter stated:
[X] was 44 and had been in the United Kingdom with his wife [Complainant’s name]. He thought he just had a bad cold, but 24 hours after landing back in Sydney, he was on life support. The virus was ravaging his body. [X] lost the fight.
A full transcript of the segment is at Attachment A.
Assessment
The assessment is based on a recording of the broadcast provided by the licensee; and submissions provided by the complainant (Attachment B) and the licensee (Attachment C).
Other sources are identified where relevant.
‘Ordinary, reasonable’ viewer test
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’ 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 considers the natural, ordinary meaning of the language, context, tenor, tone, 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: Appropriate regard to feelings of relatives when including images of dead or seriously wounded people.
Relevant provision
4.3.3 In broadcasting news and current affairs programs, licensees should have appropriate regard to the feelings of relatives and viewers when including images of dead or seriously wounded people. Images of that kind which may seriously distress or seriously offend a substantial number of viewers should be displayed only when there is an identifiable public interest reason for doing so.
Finding
In relation to the broadcast of Today Tonight on 11 July 2012, the licensee did not breach clause 4.3.3 of the Code.
Reasons
Clause 4.3.3 establishes a two-part test to determine whether material is in breach:
1. licensees are required to have appropriate regard to the feelings of relatives and viewers when including images of dead or seriously wounded people; and
2. licensees may only display images of that kind which may seriously offend a substantial number of viewers when there is an identifiable public interest reason for doing so.
Did the licensee have appropriate regard to the feelings of relatives and viewers?
The ACMA understands the complainant’s concern to be that showing images of her late husband, together with the graphic description of him while in ICU, was ‘sensationalist’ and ‘confronting’ for her while she was still grieving. In other words, the licensee did not have appropriate regard to her feelings.
The complainant also submitted that the licensee, in broadcasting the story and including an interview with the mother of X, who was ‘clearly distraught’, did not have regard to the mother’s feelings:
Today Tonight made the editorial decision to use the description (of X in ICU) made by a clearly distraught mother and as [X’s] next of kin, sensitivity was not exercised towards the feelings of a bereaved relative.[3]
Clause 4.3.3 of the Code applies to ‘images of dead or seriously wounded people’. It does not apply to audio material such as the accompanying description of X in hospital.
To the extent that the complainant’s concern relates to the images shown of X, the ACMA considers that such images do not portray ‘images...of dead or seriously wounded people’ in the sense contemplated by this clause.
Were the images of a kind which may seriously offend a substantial number of viewers?
As set out above, the images shown were not of ‘dead or seriously wounded people’ as contemplated by clause 4.3.3.
While the complainant was distressed by the images of X, particularly when accompanied by the description of him in ICU, the ACMA is satisfied that they were not of a kind that would have seriously distressed or seriously offended a substantial number of viewers.
Accordingly, the licensee did not breach clause 4.3.3 of the Code for the broadcast of the segment dated 11 July 2012.
Issue 2: Material relating to a person’s personal or private affairs, or which invades an individual’s privacy.
Relevant provision
4.3.5 In broadcasting news and current affairs programs, licensees must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast.
4.3.5.1 Subject to the requirements of clause 4.3.5.2, a licensee will not be in breach of this clause 4.3.5 if the consent of the person (or in the case of a child, the child’s parent or guardian) is obtained prior to the broadcast of the material.
The Macquarie Dictionary (Online) provides the following definitions:
Personal: of or relating to a particular person; individual; private [...]
Private: relating to or affecting a particular person or a small group of persons; individual; personal [...]
Affairs: matters of interest or concern; particular doings or interests [...]
Privacy: the state of being private; retirement or seclusion [...]
Finding
In relation to the broadcast of Today Tonight on 11 July 2012, the licensee did not breach clause 4.3.5 of the Code.
Reasons
In assessing compliance with clause 4.3.5 of the Code, the ACMA must determine whether:
· a person was identifiable from the broadcast material; and if so,
· the broadcast material related to a person’s personal or private affairs or invaded a person’s privacy.
If the answer to both of the above questions is yes, then there is a potential breach of clause 4.3.5 of the Code, unless there is an identifiable public interest reason for broadcasting the material, or the material was broadcast with the consent of the person concerned (or in the case of a child, a parent or guardian).
Whether a person was identifiable from the broadcast material
There can be no dispute that the complainant was identifiable from the broadcast material. During the interview with the late X’s parents, photos were shown of the complainant and X on their wedding day. The complainant was also named.
Whether material was used that related to a person’s personal or private affairs, or invaded a person’s privacy
Clause 4.3.5 comprises two tiers, only one of which need be satisfied by the broadcast material; it must relate to a person’s personal or private affairs- for example by disclosing personal information or invade a person’s privacy, for example by intruding upon their seclusion.
In this case, the broadcast did not use material of the complainant such as footage of her in a private space or grieving in circumstances where she would have had an expectation that she would not be observed by others.
However, it did use photographs of the complainant with her husband on their wedding day.
The ACMA’s Privacy Guidelines for broadcasters 2011 state that:
Personal information can include facts about a person’s health, personal relationships, financial affairs, sexual activities, and sexual preferences or practices. It can also include information about a person’s racial or ethnic origin, political opinions, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a professional or trade association, membership of a trade union, criminal record and other sensitive personal matters.
The ACMA considers that the wedding photos of the complainant were personal to her. Together with the identification of her by name, and in the context of a broadcast concerning the death of her husband, they disclosed facts or information about the complainant relating to her personal or private affairs, including her personal relationships.
The licensee submitted:
In this instance, the photographs were very simple wedding photographs of the kind that many people would have publicly displayed. They were not images of an intimate, embarrassing, distressing or morbid nature and did not portray the complainant or the deceased in a negative light. The images were only displayed briefly in the report and did not convey any sensitive or personal information about the complainant or the deceased, other than they were married. The images were used in the context of a report that was sympathetic to both the complainant and the deceased. They were not used in an offensive or derogatory manner such that it could be reasonably anticipated by Seven that their use would cause the complainant emotional harm or distress.
The ACMA considers that images do not need to be of an intimate, embarrassing, distressing or morbid nature, or display parties in a negative light in order to use personal information. Nor do they need to be secret or confidential or disclose secret or confidential facts.
Here, the photos were not displayed so briefly that the complainant’s personal information, including her identity and the fact of her marriage and her husband’s death were not revealed.
In further submissions the licensee argued that broadcasting a person’s name and the fact that they were married should not, on any view, be considered material which falls within the confines of clause 4.3.5. The ACMA considers this to be quite separate from the use of personal photographs without consent. The use of family wedding photographs could be, depending on the circumstances, a use of material relating to a person’s personal and private affairs and there could be a reasonable expectation that the bride’s image would not be made available to the public at large via a broadcast.
Whether consent was obtained from the person
The complainant submitted that she did not give consent to the photos being broadcast.
The licensee submitted:
In this instance, at the time of the broadcast Seven reasonably believed that its use of the photographs was consistent with the complainant’s wishes. [The deceased’s parents] were willing participants in the report and they provided Seven with their permission to film and broadcast the relevant photographs from their album. Seven’s reporter did ask [the deceased’s mother] whether her daughter-in-law would be okay with the use of these images in the report and was assured that she would, because like them, she would want the message getting out about the importance of having flu shots.
The ACMA does not accept this submission. Clause 4.3.5.1 clearly concerns the consent of the person whose personal information is used (or in the case of a child parental consent) and not any other party. In this case, there is no evidence that any attempt was made to obtain permission from the complainant to use her image. The ACMA considers that it was not reasonable to assume that the use of the photos was consistent with the complainant’s wishes.
Material in the public domain
In its further submissions the licensee stated that the photos broadcast were publicly available as a result of the complainant having previously authorised their publication and further details about herself and her marriage to the media and other public organisations:
As can be seen from the screen shots taken from publically accessible websites [the complainant]
(a) authorised the publication of photos of herself, her wedding photos and another photo of her together with [X] in the Mosman Daily newspaper in an article which she describes her [X]’s decision to become organ donors and the donation of [X]s kidneys at the time of his death from swine flu [citation provided].
(b) Authorised the publication of a photo of her and [X] and their organ donation story for publication in the DonateLife Book of Life publication [citation provided].
The ACMA notes that the article in the Mosman Daily newspaper (accessed by the ACMA on 30 January 2013), dated 3 March 2012, contains an image of the complainant, holding up a photo album on a page showing various photos of the couple on their wedding day, including at least one of the photographs that was broadcast. It also refers to the circumstances of the death of the complainant’s husband. This material was publicly available without any restriction to access.
The ACMA acknowledges the complainant’s concern that images of her were broadcast without her consent, however, in this case the personal information used in the broadcast of the photographs, including the facts about the marriage of the complainant, any identifying details of the complainant and her husband X, and the circumstances of his death were already in the public domain.