Investigation Report No. 2507

File No. / ACMA2010/2137
Licensee / TCN Channel Nine Pty Ltd
Station / TCN Sydney
Type of Service / Commercial television
Program / A Current Affair
Dates / 11/8/10 and 19/8/10
Relevant Code / Commercial Television Industry Code of Practice 2010
Clause7.11
Date finalised / 21/12/10
Decision / Breach of clause 7.11 (provide substantive response)

The complaint

On 21 August 2010, the complainant wrote a letter to the licensee of STW complaining about what he termed the ‘constant vilification’ of Islam on the programA Current Affair. He cited three recent broadcasts in particular:

  • an interview with a spokesman for the organisation Hizb Ut-Tahrir;
  • a segment about Muslim marriage guidance booklets which included the views of the New South Wales politician and Christian clergyman the Rev Fred Nile; and
  • a segment about a court ruling requiring a witness to appear without a burqa.

A Current Affair is broadcast throughout Australia on Nine Network and affiliate stations. Thesegments complained of were produced at the Sydney Nine Network station TCN. Thelicensee of STW forwarded the complaint to the licensee of the Sydney station TCN for response to the complainant. The licensee of STW was entitled to do this under clause 7.13 of the Commercial Television Industry Code of Practice 2010:

7.13If the material complained of was provided on broadcast relay by another licensee, or was otherwise the responsibility of another licensee, the first licensee may refer the complaint to that licensee within 10 working days of receipt of the complaint for written response direct to the complainant.

On 14 September 2010, the licensee of TCN responded to the complainant. The response commenced:

Thank you for your correspondence regarding our story concerning the Islamic Group Hizb Ut-Tahrir as well as our recent story involving the Rev Fred Nile.

The response then went on to address the complainant’s concerns about the Hizb Ut-Tahrir segment. There was no further reference to either of the other segments.

On 30 September 2010, the complainant referred the matter to the Australian Communications and Media Authority (the ACMA) as he considered the response he had received inadequate. His letter of referral included:

You will notice that I singled out [the presenter]’s A Current Affair program for her constant and unbridled attack upon anything Muslim. There are [at] least three incidents which I noticed in recent times – and these were the subject of my complaint to Channel 9. Channel Nine has only responded to one of these, and even that response is no justification for her obviously biased reporting.

The complainant’s concerns about the broadcasts themselves are being examined, in a separate investigation, in relation to the licensee of STW, since that was the station on which the complainant viewed the material and to which he addressed his original complaint. The present investigation examines only the complainant’s concerns about the handling of his complaint. This matter is examined in relation to the licensee of TCN, as the entity which provided the response.

Matter not pursued

This investigation does not examine the licensee’s response to the complaint about the Hizb Ut-Tahrir segment. This segment was broadcast on 6 July 2010,[1] which is more than 30 days before the complainant made his complaint, dated 21 August 2010, to STW. Under clause 7.2 of the code, a complaint made more than 30 days after the relevant broadcast is not a valid complaint. Under clause 7.3.1 of the code, a licensee is not obliged to respond to such a complaint.

Assessment

The investigation is based onsubmissions from the complainant, including a copy of his complaint to the licensee of STW and a copy of the response sent to him by the licensee of TCN.[2] Other sources used have been identified where relevant.

Relevant code clause

Commercial Television Industry Code of Practice 2010

Section 7: Handling of Complaints to Licensees

Time Limits on Responses to Code Complaints

7.11Subject to clause 7.15, a licensee must provide a substantive written response to a complaint that satisfies the requirements of clause 7.2.

Finding

The licensee’s response to the complainant was not ‘substantive’ because it did not address the complainant’s concerns about the marriage guidance booklet segment and the burqa ruling segment.

Accordingly, the licensee breached clause 7.11 of the code.

Reasons

The licensee’s response of 14 September 2010 did not address the complainant’s concerns about the marriage guidance booklet segment or the burqa ruling segment. The issue is whether the licensee thereby failed to provide a ‘substantive’ response.

A licensee is obliged to provide a ‘substantive’ response to a complaint that satisfies the requirements in clause 7.2. This obligation, however, is subject to clause 7.15. Accordingly, consideration has been given to:

  • whether the complaints about the marriage guidance booklet segment and the burqa ruling segment satisfied the requirements of clause 7.2; and
  • whether the complaintsabout these segments fell into the exception at clause 7.15.

Did the complaints aboutthe marriage guidance booklet segment and the burqa ruling segmentsatisfy the requirements of clause 7.2?

Clause 7.2 of the code provides:

7.2The main requirements of this section apply to any complaint about a matter covered by the code which:

7.2.1is received by a licensee, or lodged in accordance with clause 7.5.3, not more than 30 days after the relevant broadcast;

7.2.2is in the form specified in clause 7.5, and

7.2.3identifies, in sufficient detail:

7.2.3.1the material broadcast (including by reference, if possible, to the date and time of broadcast of the material, or in the case of a television program series, the particular episode of the series the subject of the complaint);

7.2.3.2the nature of the complaint; and

7.2.3.3the identity of the complainant.

The complaint included:

In recent times I have become concerned by the constant vilification of my faith … [The program presenter] seems to have the Muslim community and the Muslim faith in her sights.

This raised a matter covered in clause 1.9.6 of the code, ie the provocation or perpetuation of negative feelings against a group of persons on the grounds of religion. This statement appeared at the beginning of the complaint and in context can be seen to be meant to apply to all three of the segments which were specified in the part of the complaint that followed. The complaints about the marriage guidance booklet segment and the burqa ruling segment were therefore about ‘a matter covered by the code’.

Further:

  • The marriage guidance booklet segment was broadcast on 11 August 2010 and the burqa ruling segment was broadcast on 19 August 2010.[3] The complaint is dated 21 August 2010, which is within 30 days of the dates of broadcast of these segments. The complaints therefore met clause 7.2.1.
  • The complaint, as a single document, was sent by mail to the licensee of STW. The complaint, including the complaints about the marriage guidance booklet segment and the burqa ruling segment,was in a form specified in clause 7.5[4]and accordingly met clause7.2.2.
  • The complaint had the name of the program (A Current Affair) in the subject heading of the letter and included the following in the body of the text:

Last week [the program presenter] went in quest of two booklets addressed to Muslim married couples. I think that it was titled the ‘Perfect Muslim Wife’ and the ‘Perfect Muslim Husband’. For this exercise she invited that arch Muslim hater, the Rev Nile. She found a passage in the booklet about a husband beating a disobedient wife. And of course there was an old video by a person, whom we doubt has any significantMuslim scholastic training, about the question of wife beating. It was stated in the video that the wife should not have any wounds after the ‘beating’.

Last night, she was at it again. This time it was the ‘so called’ Burqa (pronounced BOORRKA). This time we were told that we had to obey ‘our’ laws, and of course she had a number of like-minded people whom she introduced into the program, to give weight to her statements.

This was sufficient detail to identify the marriage guidance booklet segment and the burqa ruling segment. The complaints about these segments therefore met clause 7.2.3.1.

  • As noted above, the complaint included:

In recent times I have become concerned by the constant vilification of my faith … [The program presenter] seems to have the Muslim community and the Muslim faith in her sights.

Later in the letter, the complainant raised more specific concerns about each of the segments. In relation to the marriage guidance booklet segment, he raised issues about the translation and interpretation of the word ‘beat’; the general doctrines of Islam with respect to the position of women; and the incidence of violence against women in the Muslim community. In relation to the burqa ruling segment, he raised issues about the principles behind Muslim women’s dress and Islamic teachings about observance of ‘the laws of the land in which we live’.

This was sufficient detail to identify the nature of the complaints about the segments. The complaintsabout the marriage guidance booklet segment and the burqa ruling segment therefore met clause 7.2.3.2.

  • The complaint, as a single document, included the complainant’s name and address. The complaint, including the complaints about the marriage guidance booklet segment and the burqa ruling segment, therefore identified the complainant in sufficient detail and met clause 7.2.3.3.

Accordingly, the complaints about the marriage guidance booklet segment and the burqa ruling segment met clause 7.2.

Did the complaint fall into anexception at clause 7.15?

Clause 7.15 of the code provides:

7.15Licensees will make every reasonable effort to resolve code complaints promptly, except where a complaint is clearly frivolous, vexatious or an abuse of the code process.

There is no reason to believe that the complaint about the marriage guidance booklet segment or the burqa ruling segment was frivolous, vexatious or an abuse of the code process. The complaint as a whole was some four pages long and included an amount of detail (including autobiographical information and historical information about Islam) through which the complainant arguably sought to establish his credentials as a long-time viewer of the licensee’s service and a person concerned at the negative impact the broadcasts might have on the Australian community. The complaint as a whole presented as having been made in a serious frame of mind by a sincere person genuinely seeking a resolution from the licensee.

Accordingly, the complaints did not fall into any exception at clause 7.15.

Conclusion

Since the complaints met clause 7.2, and did not fall into any exception at clause 7.15, the licensee was obliged to provide a substantive written response to them. The licensee did provide a written response to the complainant. However this response did not address the complaints about the marriage guidance booklet segment and the burqa ruling segment. While a ‘substantive’ response does not have to address every point made by a complainant, it must contain evidence that the licensee has considered the main code-related points the complainant has made and made ‘every reasonable effort’ to resolve them. In particular, where a complaint raises valid code-related concerns about more than one broadcast, a substantive response must show evidence that all relevant broadcasts have been considered. The licensee’s response of 14September 2010 did not contain such evidence in respect of the complaints about the marriage guidance booklet segment or the burqa ruling segment. Accordingly, the licensee did not provide a ‘substantive’ response to these two complaints and in failing to do so breached clause 7.11 of the code.

ACMA Investigation Report – STW – A Current Affair (11/8/10 & 19/8/10)1

[1]A Current Affair investigations archive, aca.ninemsn.com.au/investigations, accessed 22 October 2010.

[2] On 29 October 2010, the ACMA sought submissions from the licensee by 18 November 2010 on its compliance with clause 7.11 of the code. No submissions were received. The ACMA sent a Preliminary Investigation Report to the licensee on 26 November 2010, inviting a response by 17December 2010. No response was received.

[3]A Current Affair investigations archive, aca.ninemsn.com.au/investigations, accessed 22 October 2010.

[4] Clause 7.5 provides:

7.5In this section, a code complaint is a complaint which satisfies clause 7.2 and which is:

7.5.1sent by mail to the licensee; or

7.5.2sent by facsimile to the licensee’s main facsimile number; or

7.5.3from 1 March 2010, made by lodging the electronic form on the Free TV Australia website.