Investigation Report No. 2475
File No. / ACMA2010/1660Licensee / General Television Corporation Pty Ltd
Station / GTV
Type of Service / Commercial Television
Name of Program / Footy Classified
Date of Broadcast / 5 July 2010
Relevant Code / Clause 1.9.6 of the Commercial Television Industry Code of Practice 2010
Date Finalised / 15 October 2010
Decision / No breach of clause 1.9.6 (dislike, contempt or ridicule)
The complaint
On 1 August 2010, the Australian Communications and Media Authority (the ACMA) received a complaint concerning the program Footy Classified broadcast on 5 July 2010 by General Television Corporation Pty Ltd, the licensee of GTV (the licensee).
The complainant was concerned that the host’s comments regarding drug addicts were ‘derogative and demeaning to all people trying to rehabilitate themselves’.
The complainant referred the matter to the ACMA for investigation.[1]
The complaint has been investigated against clause 1.9.6 [proscribed matter] of the Commercial Television Industry Code of Practice 2010 (the Code).
The program
Footy Classified is broadcast nationally at 10:30pm on Mondays by the Nine Network. The program is hosted by Craig Hutchinson and features regular panellists Caroline Wilson, Grant Thomas and Gary Lyon. On 5 July 2010, the host and panellists discussed the then recent hospitalisation of a footballer due to a reaction to prescription sleeping pills. The dialogue complained of relevantly included:
[...]
Craig Hutchinson: It’s three times in hospital now, Tommo. For a drug addict, there are a lot of side issues here. If you were his coach right now, what stance would you be taking? How concerned would you be about his well-being?
Grant Thomas: It’s nothing to do with football now. It’s completely out of the hands of the football department and in the medical professions hands, as it should be. But, I mean, he’s obviously a very, very sick boy at the moment and the whys and wherefores are all speculation at this point in time. Between the next
24-48 hours will tell a pretty detailed story [...]. At the end of the day, our medical profession is completely astute at sorting these sorts of things out. It needs to be as far away from the football department as it can be.
Dermott Brereton: Can we just say at this point in time, the terminology, I’m sure you just stumbled into it, a reformed drug addict. I mean he’s playing footy.
Craig Hutchinson: No, he’ll always be a drug addict, until the day he dies. A drug addict is a drug addict.
Dermott Brereton: Well, he’s reformed.
Craig Hutchinson: He’s not reformed. He never reformed.
Dermott Brereton: I’ll disagree with you.
Craig Hutchinson: He’ll be a drug addict until the day he dies.
Dermott Brereton: No, I disagree with you.
Craig Hutchinson: He might be managing it.
Caroline Wilson: You can say he’s a recovering drug addict.
Dermott Brereton: The connotation is though that illicit drugs, ‘he’s a drug addict’, when you say it that way [sic].
Caroline Wilson: I think what we do know is that Richmond has been on its knees.
[...]
Assessment
The assessment is based on:
a DVD recording of Footy Classified broadcast on 5 July 2010, provided by the licensee;
the complainant’s submission;
the licensee’s submission; and
publicly available information, the source of which is identified where relevant.
Issue: proscribed matter
Relevant Clause
Clause 1.9.6 of the Code relevantly provides:
Proscribed Material
1.9 A licensee may not broadcast a program [...] 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 [...] disability.
Interpretation of clause 1.9.6 of the Code
The ACMA adopts the general approach set out below in applying clause 1.9.6 of the Code.
‘Ordinary, reasonable viewer’
In assessing the relevant clause under the Code, the ACMA has considered what the ‘ordinary, reasonable viewer’ would have understood the program concerned to have conveyed. 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.[2]
‘Likely, in all the circumstances’
Use of the words, ‘likely in all the circumstances’ imposes an objective test[3] and implies a real and not remote possibility; something which is probable.[4]
‘Intense dislike’, ‘serious contempt’ and ‘severe ridicule’
As the Code does not include definitions of the terms used in this provision, they have been given their ordinary English language meanings. The Macquarie Dictionary (4th edition) includes the following definitions:
provoke verb 2. to stir up, arouse or call forth; 3. to incite or stimulate (a person etc to action)
perpetuate verb 1. to make perpetual
intense adj 1. Existing or occurring in a high or extreme degree
dislike verb 1. Not to like; regard with displeasure or aversion
serious adj 5. weighty or important;
6. giving cause for apprehension; critical
contempt noun 1. the act of scorning or despising;
2. the feeling with which one regards anything considered mean, vile or worthless
severe adj 1. harsh, harshly extreme
ridicule noun 1. words or actions intended to excite contemptuous laughter at a person or thing, derision
‘On the grounds of’
The phrase ‘on the grounds of’ requires that there be an identifiable causal link between the actions complained of and at least one of the prohibited grounds, in this case, disability.
Complainant’s submission
The complainant submitted in relation to clause 1.9.6 of the Code:
[Mr Hutchinson’s] comments towards drug addicts [...] were derogatory and demeaning to all people trying to rehabilitate themselves. [He] is a recovering drug addict like many others in our society or reformed (word used by Dermott Brereton). [Complainant’s emphasis].
[...]
[W]hile Grant Thomas and Dermott Brereton were concerned about the serious health condition of [the footballer], Hutchinson cut across Dermott in an aggressive and belligerent manner [...].
Licensee’s submission
In its response to the complainant dated 14 July 2010, the licensee stated:
Footy Classified is a program based around the opinions and views of its panel members. Unfortunately not everyone will agree with the panellist’s views, and at times may even be offended by their comments. We apologise if you found Mr Hutchinson’s comments on the program offensive, it was never the program’s intention.
Finding
The licensee did not breach clause 1.9.6 of the Code for the broadcast of Footy Classified on
5 July 2010.
Reasons
Relevant person or group
On the basis of the complaint and the material broadcast the delegate considers the relevant group to be recovering drug addicts.
Relevant ground
The complainant has suggested that the host’s comments were ‘derogative and demeaning’ to recovering drug addicts.
The Macquarie Dictionary (Fourth Edition) defines ‘disability’, ‘addiction’ and ‘addicted’ as:
disability 1. lack of competent power, strength, or physical or mental ability; incapacity.
2.a particular physical or mental weakness or incapacity.
addiction noun the state of being addicted to some habit, practice, or substance, especially to narcotics.
addicted adj devoted or given up (to a practice, habit, or substance).
Taking into account the above definitions, it is accepted that drug addiction is a ‘disability’ for purposes of clause 1.9.6 of the Code.
Accordingly, the relevant ground is ‘disability’.
‘Intense dislike’, ‘serious contempt’ and ‘severe ridicule’
The Code requires that the licensee not broadcast a program which is likely, in all the circumstances, to provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or a group of persons on specified grounds.
The definitions set out above indicate that the Code contemplates a high threshold for the likely effect of the prohibited material. It is not sufficient that the broadcast be likely to provoke or perpetuate a moderately negative response. Rather the content must be capable of provoking or perpetuating intense dislike, serious contempt or severe ridicule.
It is accepted that the program questioned whether a drug addict can reform[5] and that this may have been offensive to some members of the community. However, the Code does not prohibit programs from taking a critical stance on subject matter being discussed. The question for the delegate is whether the comments stirred up, aroused or called forth the requisite negative response.
The delegate considers that, on balance, the comments broadcast were not capable of provoking or perpetuating intense dislike, serious contempt or severe ridicule of drug addicts on the grounds of their disability. In coming to this conclusion, the delegate noted the following:
the viewers were not encouraged or invited to share Mr Hutchinson’s attitude that ‘once a drug addict, always a drug addict’;
Mr Hutchinson’s comments were not sustained throughout the program. In the context of the broadcast as a whole, the comments were not given undue prominence; and
other panellists, including Mr Brereton and Ms Wilson, expressed viewpoints that counteracted Mr Hutchinson’s view. This served to dilute the tone of Mr Hutchinson’s comments.
The delegate is satisfied, having regard to the factors canvassed above, that the broadcast was not likely to provoke or perpetuate intense dislike, serious contempt or severe ridicule against recovering drug addicts on the grounds of disability. Accordingly, the licensee did not breach clause 1.9.6 of the Code.
ACMA Investigation Report – Footy Classified broadcast by GTV on 5 July 2010 2
[1] Section 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s role in relation to complaints under the Codes of Practice. The complainant submitted that he was not satisfied with the licensee’s response.
[2] Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp.164-167.
[3] Creek v Cairns Post Pty Ltd (2001)112 FCR 352 at 12.
[4] See discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD 773 at 778-779.
[5] ‘Reform’ was the word used by Dermott Brereton during the program.