Investigation Report3151

File No. / ACMA2013/1548
Licensee / Harbour Radio Pty Ltd
Station / 2GB
Type of Service / Commercial Radio
Name of Program / Alan Jones Breakfast Show
Date of Broadcast / 24 September 2013
Relevant Code / Clauses2.2(a), 5.5 and 5.6 of the Commercial Radio Australia Codes of Practice 2013
Date finalised / 24 September 2014
Decision / Breach of clause 2.2(a) [accuracy]
No breach of clause 5.5 and 5.6 [complaints handling]

Background

In March 2014 the Australian Communications and Media Authority (the ACMA)commenced an investigation under section 170 of the Broadcasting Services Act 1992 (the BSA)[1] into a segment on the Alan Jones Breakfast Show broadcast by Harbour Radio Pty Ltd, the licensee of 2GB,on 24 September 2013.

The ACMA received two complaints about the segment. Both complainants alleged that the presenter, Mr Alan Jones, presented inaccurate information about the (then anticipated)Intergovernmental Panel on Climate Change (IPCC) report.

The licensee questioned the validity of both complaints and submitted that, for various reasons, the ACMA is not empowered or required to investigate the complaints under section 149 of the BSA[2].The ACMA’s views concerning the validity of the complaints and complaints handling are addressed below, under ‘Issue 2: Complaints handling’.

For the reasons below, the ACMA decided to exercise its discretion in section 170 of the BSA to conduct an investigation into the issues raised by the complainants.

Investigation under section 170 of the BSA

The ACMA[3] has a broad discretion to conduct investigations for the purposes of the performance or exercise of any of its broadcasting functions and related powers.

Relevantly, the ACMA’sfunctions include monitoring and regulating broadcasting services and the broadcasting industry generally (including by maintaining a licensing system); assisting in the development of codes of practice (which codes may relate to the promotion of fairness and accuracy in news and current affairs programs) and monitoring compliance with those codes; monitoring and investigating complaints concerning broadcasting services; and doing anythingincidental or conducive to the performance of these (and other) functions: see, for example, sections 5 and 123 of the BSA and paragraphs 10(1)(a), (c), (i), (j),(m), (o) and (s) of the Australian Communications and Media Authority Act 2005.

In this case, the ACMA noted that:

  • The subject matter of the complaints (which pertain to climate change)is of genuine public interest. In this case, comments were made by Mr Joneson the draft IPCC report findings concerning global warming.
  • There were two complaints to the ACMA concerning the relevant broadcast.
  • Both complainants alleged that Mr Jones made inaccurate statements concerning the IPCC findings.
  • Both complaints made to the ACMA also raised complaints handling issues: the first complainant claimed that the licensee did not respond to her complaint; and the licensee determined that the second complaint was not validly made.
  • The licensee has, in the recent past, been the subject of action by the ACMA concerningnon-compliance with code provisions regarding accuracy and complaints handling.

In this particular case, the ACMA had regard to the complaints, the materials and initial submissions supplied by the licensee regarding the broadcast, including relevant excerpts from the broadcast, and to relevant print articles from The Australian and The Weekend Australian.

The delegate decided that an investigation into the matters raised by the complaints was warranted, having regard to the natureof the alleged inaccuracies, the topical nature of the subject-matter (namely, climate change) and the licensee’s history of non-compliance with the Commercial Radio Australia Codes of Practice 2013 (the Codes).

The ACMA accordingly decided to assess the licensee’s compliance with clause 2.2(a) [accuracy] and clauses 5.5 and 5.6 [complaints handling] of the Codes.

The program

The Alan Jones Breakfast Show is broadcast weekdays on 2GB from 5.30am to 9.00am. It is presented by Mr Alan Jones, who is described on the licensee’s website in the following terms:

Australia's most popular talk-back presenter, Alan Jones, is a phenomenon. He's described by many as the nation's greatest orator and motivational speaker. Alan has the mind and capacity to make complex issues understandable to the largest Breakfast audience in Australia.[4]

A substantial element of the program is talk-back with listeners. It also includes news, commentary by Mr Jones, discussions and interviews relating to current events.

On 24 September 2013 at approximately 7:15am, Mr Jones discussed the findings of a draft report prepared by the IPCC – the draft Fifth Assessment Report, which was yet to be publicly released. Amongst other things, Mr Jones stated:

The 2007 Assessment Report said the planet was warming at the rate of 0.2 of a degree centigrade every decade. Well, the update now says the true figure was 0.12, almost a 100% error. The IPCC for a week has been denying it’s locked in crisis as they talk to scientists and don’t know what to do about the fact that their former theories of climate change have been disproven.

On the same day, at approximately 8:45am, Mr Jones made the following purported correction:

Earlier this morning, I just want to correct this, I made comment of a report in The Australian on Monday which said the Intergovernmental Panel on Climate Change had dramatically- this is what The Australian said- revised down the rate of global warming over the past 60 years and it said in fact the new rate of 0.12 degrees Celsius every decade is almost the same as the IPCC's 2007 figure of 0.13 Celsius every decade over the 50 years to 2005.

Well, the real admission, my attention just has been drawn to this, in the draft is best described by saying, because deep in the article came a critical admission, a leaked draft of the report to be released on Friday by the IPCC, the UN body given a Nobel prize for its climate alarmism, admits temperatures have in fact all but stopped rising.

The Age newspaper said, warming has slowed in the past 15 years to 0.05 degree Celsius a decade, 0.05 below the long term average of 0.12 since 1951. So basically, this rise, which is trivial, according to the reports say less than 114 of a 117 leading climate models, that’s what they predicted, 114 out of 117, and I said the climatemodels are wrong, and as one media report said, they suggest our rising carbon dioxide admissions may not have much influence on climate after all. So from 0.05, those seem to be the correct figures, 0.05 of a degree Celsius a decade below the long term average of 0.12. So basically the temperatures have all but stopped rising.

A full transcript of the segment and the correction is at Attachment A.

Assessment

The investigation is based on submissions from the complainants and the licensee and a copy of the broadcast and correction provided to the ACMA by the licensee. Other relevant sources have been identified where used.

In assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener.

Australian Courts have considered an ‘ordinary, reasonable’ listenerto 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[5].

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone 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 that was broadcast, it then assesses compliance with the Codes.

Issue 1: Accuracy

Relevant clause of the Codes

News and Current Affairs Programs

2.2 In the preparation and presentation of current affairs programs, a licensee must use reasonable efforts to ensure that:

(a)factual material is reasonably supportable as being accurate; and

(b)substantial errors of fact are corrected at the earliest possible opportunity.

A failure to comply with the requirement in Code 2.2(a) to broadcast factual material that is reasonably supportable as being accurate will not be taken to be a breach of the Code if a correction, which is adequate and appropriate in all circumstances, is made within 30 business days of the licensee receiving a complaint or a complaint being referred to the ACMA (whichever is later).

The considerations to which the ACMA has regardin assessing whether broadcast material is factual in character are set out at Attachment B.

Complainants’ submissions

Complainant 1 submitted that Mr Jones repeated an incorrect fact about the IPCC draft Fifth Assessment Report, despite a correction havingbeen made in TheWeekend Australian on 21 September 2013.

Complainant 2 submitted to the licensee that:

Alan Jones [is] lying about the IPCC report and global warming. He spoke despite Chris Smith making similar incorrect comments and later admitting his errors.

In his complaint to the ACMA, Complainant 2 submitted that:

Mr Jones AO read from an article published in the Australian on 16th September. The article was factually wrong and as such it was corrected on 21 September. Three days later [Mr] Jones made the broadcast I refer to. The error that [Mr] Jones made seems to be in conflict with undertakings that Macquarie Radio have previously made regarding the need to fact checking [sic]. Clearly Mr Jones AO does not always care to check facts.

Licensee’s submissions

The licensee submitted to the ACMA that:

The material broadcast by Harbour Radio on 24 September 2013 [...] was based on material from a mainstream media source and was promptly corrected. Harbour Radio submits that:

  • The initial broadcast satisfied clause 2.2(a) of the Code as it was based upon an article published in the Australian on 16 September 2013;
  • If the ACMA does not accept this submission and finds that the initial broadcast constituted a failure to comply with clause 2.2(a) of the Code, the ACMA should find that any such failure to comply was not a breach by virtue of clause 2.2 of the Code because:
  • The correction was broadcast within 2 hours of the initial broadcast and by the same presenter;
  • The correction reflected the exact wording of the correction published in the Australian; and
  • The correction was therefore adequate and appropriate in all of the circumstances.

Submissions made by the complainants and the licensee are at Attachments C and D, respectively.

Finding

The ACMAfinds that the licensee:

  • did not make reasonable efforts to ensure that factual material was reasonably supportable as being accurate
  • did not broadcast a correction which was adequate and appropriate in all circumstances.

Accordingly, the licensee breached clause 2.2(a) of the Codes.

Reasons

Were the statements factual material?

In assessing material against clause 2.2(a) of the Codes, the ACMA must first consider whether relevant broadcast material is factual in nature (see AttachmentB).

The ACMA has identified the relevant material as the following statements, highlighted in bold:

[...] What has been leaked tells us the report will admit that its computer drastically overestimated rising temperatures andover the past 60 years the world in fact has been warming at half the rate claimed in the previous IPCC report in 2007. More importantly, according to reports in British and US media, the draft report seems to suggest that global temperatures are less sensitive to rising levels of atmospheric carbon dioxide than was previously thought.

The 2007 Assessment Report said the planet was warming at the rate of 0.2 of a degree centigrade every decade. Well, the update now says the true figure was 0.12, almost a 100% error. The IPCC for a week has been denying it’s locked in crisis as they talk to scientists and don’t know what to do about the fact that their former theories of climate change have been disproven.

[...] It [the IPCC] dramatically overestimated rising temperatures in the past and it’s clear that carbon dioxide is not impacting on global temperatures in any major way. As I said the IPCC’s 2007 report claimed the earth was warming at the rate of 0.2 of a degree Celsius every 10 years. The latest report reduces that figure to 0.12 of a degree,12 hundredths of a degree since 1951, per decade by the way, per decade since 1951 [...]

[...]

Now we’re about to learn that the IPCC has dramatically overestimated rising temperatures in the past. Got it wrong by about 100%.

[...]

The ACMA is of the view that these statements were specific, unequivocal and capable of independent verification. The ACMA is satisfied that they would have been understood by the ordinary, reasonable listener as statements of fact made by Mr Jones.

The statements were also inaccurate.

The draft IPCC reportwhich was the subject of the broadcast contained a revised rate of global warming (observed global average warming of surface air temperature) of 0.12 degrees Celsius per decade over the last 60 years, which is very close to the value reported in the IPCC report in 2007 of 0.13°C per decade for the period 1956 – 2005. The same figures appear in the published report.[6]

Moreover, the 0.2 degree Celsius per decade figure from the 2007 IPCC report was in reference to a different period of time (observed values of global average temperature increases per decade from 1990 to 2005)[7].

The licensee, while conceding that the statements were inaccurate, submitted that theywerebased on material from mainstream media, namelyThe Australian. The licensee also submitted that the inaccuracy had been corrected.

Did the licensee use reasonable efforts to ensure the content was reasonably supportable as being accurate?

The question for the ACMA, in these circumstances, is whether the licensee made reasonable efforts to ensure that the statementswere reasonably supportable as being accurate (at the time of broadcast).

The licensee submitted that it relied on material from a mainstream media source, an article published in TheAustralian on 16 September 2013.In further submissions, the licensee alsoreferred to TheDaily Telegraph(Sydney) as another mainstream media source within Australia which also published the incorrect claim.The licensee’s submissions are at Attachment D.

The ACMA notes:

  • The article in TheAustralian published on 16 September 2013 was based on incorrect information published in a British media article (Mail on Sunday). The full article from The Australian is at Attachment E.
  • On 17 September, The Australian published a letter from Professor David Karoly, a professor of atmospheric science at the University of Melbourne who contributed to the IPCC Report, saying that:

The observed rate of global average warming of surface air temperature over the past 60 years of 0.12C per decade is almost identical to the value reported in the IPCC report in 2007 of 0.13C per decade for the period 1956-2005.

  • A correction was published in The Weekend Australian on 21 September 2013, three days prior to the broadcast in question (Attachment F).
  • Similarly,the article in TheDaily Telegraph (Sydney)which included incorrect information was published on 17 September 2013 and a clarificationconcerning this article was subsequently published by TheDaily Telegraph on 21 September 2013 (Attachment G).
  • While the IPCC report was not finalised at the time of the broadcast,the inaccuracies reported by media organisationsconcerning the findings in the draft IPCC Report, including thosereported in the British mediaand TheAustralian articles, were widely publicisednationally and internationally and on a range of platformsprior to the broadcast, for example:
  • a write-up on the Australian Science Media Centre on 16 September 2013[8]
  • a segment on Radio Australia, an international broadcasting and online service,on 17 September 2013[9]
  • a write-up in The Guardian(UK)on 18 September 2013[10]
  • a segment on Media Watch on 23 September 2013[11].

According to the licensee, the ACMA has previously stated ‘in many, if not most cases, factual material broadcast in these programmes [such as the Alan Jones Breakfast Show] will be reasonably supportable as being accurate where it is derived from a mainstream media source’.

However, this is not a correct statement of the ACMA’s position.

The ACMA has previously noted that whether reasonable efforts have been made to ensure that factual material is reasonably supportable as being accurate will depend on the relevant circumstances at the time of preparing and broadcasting the program[12]. The ACMA has also previously noted that, in many (if not most) situations, reference to a current mainstream media source will be indicative of reasonable efforts. However, any assessment of reasonableness must also take account of credible material that throws doubt on the accuracy of such a mainstream media source[13] and whether the source remains relevant[14].

Here, a range of credible material threw doubt on the original article from TheAustralian. This included a visible correction inthe weekend edition of thesame newspaper prior to the broadcast. Moreover, the inaccuracy leading to thatcorrectionhad, itself, received broad press coverage prior to the broadcast.

Accordingly, the ACMA considers that the licensee did not use reasonable efforts to ensure that factual material was reasonably supportable as being accurate.

On this basis, the ACMA finds that the licensee did not meet the requirements at clause 2.2(a) of the Codes.

Did the licensee broadcast a correction that was adequate and appropriate in all the circumstances?

Code 2.2 provides that:

A failure to comply with the requirement in Code 2.2(a) to broadcast factual material that is reasonably supportable as being accurate will not be taken to be a breach of the Code if a correction, which is adequate and appropriate in all the circumstances, is made within 30 business days of the licensee receiving a complaint or a complaint being referred to the ACMA (whichever is later).

The licensee has submitted that the correction was adequate and appropriate as it was broadcast within two hours of the initial broadcast and by the same presenter and reflected the exact wording of the correction published in TheAustralian. The correction published by TheWeekendAustralian on 21 September 2013 is at Attachment F.