Investigation Report 2849

File No. / ACMA 2012/1028
Broadcaster / Channel Seven Melbourne Pty Ltd
Station / HSV Melbourne
Type of service / Commercial television broadcasting service
Name of program / Channel Seven News
Date of program / 26 April 2012
Relevant code / Clauses 1.18, 4.3.1 and4.4.1 of the Commercial Television Industry Code of Practice 2010
Date finalised / 29 October 2012
Decision / No breach of clause 1.18 (distinguish paid material from other program material)
No breach of clause 4.3.1 (factual accuracy)
No breach of clause 4.4.1 (impartiality and fairness)

The complaint

The Australian Communications and Media Authority (the ACMA) received a complaint about a news item broadcast in the Channel Seven Newsprogram broadcast by Channel Seven Melbourne Pty Ltd, the licensee of HSV, on 26 April 2012. The complainant submitted that the report was inaccurate, unfair and was presented as an ‘advertorial’.

The complainant was not satisfied with the response provided by the licensee and complained to the ACMA.[1]

The investigation has considered the licensee’s compliance with clauses 1.18 [paid material must be distinguishable from other material], 4.3.1 [factual accuracy] and4.4.1[present news fairly and impartially] of the Commercial Television Industry Code of Practice 2010 (the code).

The program

Channel Seven News is broadcast at 6.00 pm on weeknights.

On 26 April 2012, the relevant news item,titled ‘Eat Right’, was introduced as follows:

A [F] primary school is having a win in a war against obesity thanks to a new exercise weapon first revealed in Seven News in February. Health reporter [KO] has revisited the students to find some impressive results.

The itemreported on a piece of exercise equipment called the T-Bow used in a primary school and the results of its use. The report included footage of the children using the T-Bow and interviews with students, the school principal and the manager of the T-Bow program.

A transcript of the broadcast is at Attachment A.

Assessment

The ACMA’s assessment is based on a letter of complaint and further correspondence from the complainant to the ACMA; correspondence between the licensee and the complainant; submissions from the licensee to the ACMA; and a copy of the broadcast provided by the licensee. Other sources used have been identified where relevant.

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 ‘ordinaryreasonable’ listener or 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]

In considering compliance with the code, 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 this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the code.

Issue 1: Distinction between paid material and other program material

Relevant code clause

Presentation of Broadcast Material

1.18Where a licensee receives payment for material that is presented in a program or segment of a program, that material must be distinguishable from other program material, either because it is clearly promoting a product or service, or because of labelling or some other form of differentiation.

Complainant’s submissions

The complainant submitted that:

The story is an ‘advertorial’ – one of the worst forms of journalistic malpractice where ads are dressed up as journalism…

Licensee’s submissions

The licensee advised the complainant that:

Seven did not receive consideration (financial or other) to feature the T-Bow in its report.

In response to a request from the ACMA for further information, the licensee submitted:

At the time of receiving [the complainant]’s complaint, Seven’s Regulatory and Business Affairs department contacted Seven’s Health Reporter involved in the story, [KO], to enquire whether any consideration (financial or other) had been received by Seven News to feature T-Bow equipment in its report.

The reporter confirmed that no consideration (financial or other) had been received by her personally or by Seven News to feature the T-Bow equipment.

Seven has made enquiries with its Head of Revenue Strategy and with Seven Media Group’s Chief Sales and Digital Officer and can confirm that Seven has not received any commercial bookings or dealings with T-Bow or the manufacturer of the product, [name].

Seven is not familiar with other companies associated with T-Bow or with [the manufacturer of the product] and cannot therefore confirm with certainty that it has not entered into any commercial dealings with its related companies. However, to the extent that the ACMA’s query concerns Seven’s conscious efforts to deal with particular companies associated with T-Bow or with [the manufacturer of the product], we can confirm that no such arrangements existed at the time of broadcast, nor do any such arrangements exist presently.

Seven has received confirmation from the reporter and with Channel Seven Melbourne’s News Director at the relevant time that the information provided to [the complainant about absence of consideration] was accurate.

Finding

The licensee did not breach clause 1.18 of the code.

Reasons

The references to T-Bow in the news item were spoken by the reporter and the T-Bow program director. Accordingly, they constituted material that was ‘presented in a program’ in terms of clause 1.18 of the code.

The first issue to determine is whether the licensee received payment for presenting this material. The courts have interpreted the term ‘payment’ as including a non-monetary benefit as well as a monetary benefit in the form of cash, cheque or credit. That is, payment in kind (payment other than money) has also been accepted by the courts to constitute payment.

The licensee advised the complainant that it did not receive any financial or other consideration to feature the T-Bow in its report, and confirmed this information to the ACMA in the course of this investigation. In the absence of any evidence to the contrary, the ACMA accepts the licensee’s submissions in this regard.

Accordingly, it is not necessary to further assess the licensee’s compliance with clause 1.18 of the code.

Issue 2: Presentation of factual material

Relevant code clause

News and Current Affairs Programs

4.3In broadcasting news and current affairs programs, licensees:

4.3.1must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;

4.3.1.1An 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 determining whether a statement complies with the licensee’s obligation to present factual material accurately are set out at Attachment B.

Complainant’s submissions

The complainant submittedthat:

My complaint …is that the April 27 story is in breach of Section 4.1.1 of the Commercial TV Code of practice which states that ‘news and current affairs programs (should be) presented accurately and fairly’. The T-Bow is one of hundreds of commercial exercise programs and tools. It’s unfair to the other products that [Seven’s] story ends up endorsing and effectively advertising the T-Bow program.

Licensee’s submissions

The licensee advised the complainant that:

Having reviewed the report, we believe it was clear that the particular product referred to was the only product tested for the purposes of the report. The report did not reject the effectiveness of other products on the market, nor did it claim that the product featured in the segment was superior to other products on the market. Rather, the report’s focus was solely on the effectiveness of the product in the particular experiment conducted and Seven reported accurately and fairly on its results.

With regard to your concerns about the accuracy of Seven’s report, we note that the Code’s provisions concern material that has been broadcast, rather than Seven’s editorial decisions in selecting which material to include in its report, or which product, school(s) or children to feature in its report…

Finding

The licensee did not breach clause 4.3.1 of the code.

Reasons

The complainant submitted that the broadcast was inaccurate on the basis that it ‘endorsed’ the T-Bow in favour of ‘hundreds’ of other commercial exercise programs and tools.

The first issue to determine is whether the licensee stated that the T-Bow was the only exercise program availablein treating obesity.

The ACMA notes that the broadcast did not make such a claim. The ACMA accepts the licensee’s submission that the report ‘did not reject the effectiveness of other products on the market, nor did it claim that the product featured in the segment was superior to other products on the market’.Rather, it reported on one school’s use of the T-Bow in order to combat obesity.

Accordingly, the ACMA finds that the licensee did not breach clause 4.3.1 of the code.

Issue 3: Presentation of news fairly and impartially

Relevant code clause

4.4In broadcasting news programs (including news flashes) licensees:

4.4.1must present news fairly and impartially;

Complainant’ssubmissions

The complainant submitted that:

On April 26, 7 News Melbourne aired a story called, ‘Winning the war on obesity’. In the script the reporter mentioned the product t-bow five times, the logo was shown once and the exercise tool was shown extensivelythroughout the story.

[…]

My complaint …is that the April 27 story is in breach of Section 4.1.1 of the Commercial TV Code of practice which states that ‘news and current affairs programs (should be) presented accurately and fairly’. The T-Bow is one of hundreds of commercial exercise programs and tools. It’s unfair to the other products that your story endsup endorsing and effectively advertising the T-Bow program.

[…]

Licensee’s submissions

The licensee advised the complainant that:

We can assure you that Seven retains its editorial independence at all times when broadcasting material within Seven News. In such circumstances, and where the focus of the report was about a matter that is undoubtedly a matter of public concern – child obesity – we consider it was entirely appropriate to report on the positive results obtained from an experiment using a particular piece of exercise equipment.

Having reviewed the report, we believe it was clear that the particular product referred to was the only product tested for the purposes of the report. The report did not reject the effectiveness of other products on the market, nor did it claim that the product featured in the segment was superior to other products on the market. Rather, the report’s focus was solely on the effectiveness of the product in the particular experiment conducted and Seven reported accurately and fairly on its results.

Finding

The licensee did not breach clause 4.4.1 of the code.

Reasons

The code imposes on commercial television licensees the requirement that news programs be presented fairly and impartially. The ACMA applies the ordinary English language meaning of the words, ‘fairly’ and ‘impartially’ in interpreting the code. The Macquarie Dictionary (Fifth Edition) relevantly defines the words ‘fairly’ and ‘impartially’ and related terms as:

fairly verb 1. in a fair manner; justly; impartially.

fair adj1. free from bias, dishonesty, or injustice: a fair decision; a fair judge.

impartialadj not partial; unbiased; just.

partialadj 5. biased or prejudiced in favour of a person, group, side, etc

bias noun 2.a particular tendency or inclination, especially one which prevents unprejudiced consideration of a question.

In assessing compliance with the obligation to present news fairly and impartially, the ACMA considers a range of factors, including the theme of the news story, the range of perspectives that were presented or sought to be presented in relation to that theme, and the overall presentation of the story.

Achieving impartiality requires a broadcaster to present content in a way which avoids conveying a prejudgement, or giving effect to the affectations or enmities of the presenter or reporter in respect of what is broadcast.

It is legitimate for licensees to investigate and report on matters of public interest and concern and this includes situations where this may raise negative issues concerning individuals or events. However, the licensee must be fair, unbiased and avoid conveying pre-judgement.

In this case,the focus of the news item was the use of the T-Bow in a particular primary school to combat obesity, as seen from the introduction to the news item:

A [F] primary school is having a win in a war against obesity thanks to a new exercise weapon first revealed in Seven News in February. Health reporter [KO] has revisited the students to find some impressive results.

The report featured comments made by the school children regarding the positive impact of the weight loss and comments made by the reporter praising the effectiveness of the program in combating obesity:

The T-bow experiment has clearly been a big success and for every one of those 24 kilos lost in weight, the kids seem to have equally gained in confidence.

…

With obesity now affecting one quarter of all Australia children and costing billions of dollars, program manager [DM] says T-bow could help all students.

The ACMA is satisfied that the program reported on a matter of public interest, namely, childhood obesity. While the story only featured one weight loss product, there is no evidence to suggest that the reference to the use of the T-Bowreflected, in and of itself, the reporter’s own personal views on the subject matter. In this regard, the ACMA notes that the language used by the reporter was objective, direct and expressed without obvious emotion. The comments made about the product were directed toward its success at achieving weight loss as opposed to any praise for the product in comparison to other weight loss devices.

Accordingly, the ACMA finds that the licensee did not breach its obligations under clause4.4.1 of the code.

Attachment A

Transcript – Channel Seven News –26 April 2012

Presenter: A [F] primary school is having a win in a war against obesity thanks to a new exercise weapon first revealed in Seven News in February. Health reporter [KO] has revisited the students to find some impressive results.

DM: Reporter: For 10 weeks these children have put in the hard yards on their T-bows and it’s paid off.

1 kilo here, you guys have lost 24 times that across the whole lot of you.

Student 1: Awesome!

Reporter: Since our first visit to the school trialling this fat busting weapon, [A] has lost a massive 4 kilos.

A: I feel good and I feel like I’ve lost weight and become more fit.

Reporter: Most of the group lost 1 or 2 kilos, all improved their level of fitness. [C] wiped 2minutes off his 1 kilometre time trial.

C: Now I don’t get so huffy puffy so fast.

School Principal: What I like about the program is that everyone can participate at their level.

Reporter: The T-bow experiment has clearly been a big success and for every one of those 24 kilos lost in weight, the kids seem to have equally gained in confidence.

Student 2: It’s made me feel more better about myself.

Reporter: [Cl] lost 3 kilos.

Cl: I’m really proud of myself.

Reporter: With obesity now affecting one quarter of all Australia children and costing billions of dollars, program manager [DM] says T-bow could help all students.

DM: Across all schools it should be in, I believe, because we have a problem and we know we have a problem so need to address it.

Reporter: There’s more information about T-bow on our website.

Attachment B

In determining whether or not a statement complained of was compliant with the licensee’s obligation to present factual material accurately (having regard to the circumstances at the time of preparing and broadcasting the program), the ACMA generally has regard to the following considerations:

  • The meaning conveyed by the relevant statement is assessed according to what an ‘ordinary reasonable listener/viewer’ would have understood the program concerned to have conveyed. Courts have considered an ordinary reasonable listener/viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable listener 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]

  • The ACMA must assess whether the relevant statement would have been understood by the ordinary reasonable listener/viewer as a statement of fact or an expression of opinion.
  • The primary consideration would be whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material presents as a statement of fact or an expression of opinion.
  • In that regard, the relevant statement must be evaluated in its context, i.e. contextual indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener/viewer.
  • The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable listener/viewer, and the form of words introducing the relevant statement is not conclusive.
  • Inferences of a factual nature made from observed facts would usually still be characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be an inference of a judgmental or contestable kind.
  • While licensees are not required to present all factual material available to them, if the omission of some factual material means that the factual material actually broadcast is not presented accurately, that would amount to a breach of the clause.
  • In situations where witnesses (to an event or circumstance) give contradictory accounts and there is no objective way of verifying the material facts, the obligation for the reporter is to present factual material accurately will ordinarily require that the competing assertions of fact be presented accurately as competing assertions.

  • The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.
  • Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion.

ACMA Investigation Report2849 –Channel Seven News– HSV –26 April 20121