Investigation Report No. 3033
File No. / ACMA2013/739Licensee / Channel Seven Melbourne Pty Ltd
Station / HSV Melbourne
Type of service / Commercial television
Name of program / Today Tonight
Date/s of broadcast / 7 November 2012
Relevant Legislation/Code / Clause 4.3.1 of the Commercial Television Industry Code of Practice 2010
Date finalised / 11 July 2013
Decision / No breach of clause 4.3.1 [factual accuracy]
The complaint
The Australian Communications and Media Authority (the ACMA) has received a complaint about the program, Today Tonight, broadcast on 7 November 2012 by Channel Seven Melbourne Pty Ltd, the licensee of HSV Melbourne (the licensee).
The complainant alleged that the broadcast was inaccurate by portraying the complainant as a dangerous street predator and a threat to young women.
The investigation has considered the licensee’s compliance with clause 4.3.1 [factual accuracy] of the Commercial Television Industry Code of Practice 2010 (the Code).
The program
Today Tonight is a 30 minute current affairs program and is broadcast at 6.30pm Monday to Friday. On 7 November 2012, the relevant segment was introduced as follows:
We begin tonight with an after dark snapshot of just how dangerous our city streets have become. Predators are on the prowl, targeting young women who have been drinking and here in Melbourne last night there were plenty of party goers hitting the streets after Cup day. But as [reporter] reports, street wise volunteers are also on the roads looking out for them.
The segment reported on the work the Salvation Army was undertaking to keep young, vulnerable women out in the Melbourne CBD late at night, safe from predators.
The broadcast included footage of party-goers in the Melbourne CBD after the Melbourne Cup, Salvation Army volunteers and the complainant with his face pixellated. It also featured interviews with a Salvation Army Officer and a Victorian Police Officer, an interaction between the reporter and the complainant, as well as interactions with various other people out in the Melbourne CBD on the night in question.
A transcript of the segment is at Attachment A.
Assessment
This investigation is based on a letter of complaint to the ACMA, correspondence between the licensee and the complainant’s representative, 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 ‘ordinary, reasonable’ 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[1].
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: Accuracy
News and Current Affairs Programs
4.3 In broadcasting news and current affairs programs, licensees:
4.3.1 must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;
4.3.1.1 An 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 assessing whether particular broadcast material is factual in character are set out at Attachment B.
Complainant’s submissions
The complainant’s representative submitted in a letter to the licensee on 12 February 2013 that:
... the broadcast conveys, at least, the following imputations:
(a) that he is a dangerous predator who targets and preys upon vulnerable young women in the central business district of Melbourne, and
(b) that he poses a risk to young women.
You may be aware that our client has a history of homelessness. We are instructed that on the night in question, our client was not ‘loitering’ outside the corner of Swanston and Flinders Street, as reported in the broadcast. Rather, he frequently waits there to receive a meal from a mobile soup kitchen. The broadcast incorrectly portrayed our client, a vulnerable and marginalised member of society, as a ‘dangerous street predator’ and led to our client being the subject of derision.
The complainant’s representative submitted in a letter to the ACMA on 18 March 2013 that:
... [the complainant] has instructed us to pursue the matter under section 148 of the Act on the basis that the broadcast did not present factual material accurately.
[...]
Our instructions are that [the complainant] did not engage in any ‘predatory’ or anti-social behaviour on the night in question.... Further, the omission of information pertaining to [the complainant]’s personal circumstances resulted in a broadcast that was factually inaccurate and grossly unfair.
Licensee’s submissions
The licensee submitted in a letter to the complainant of 22 February 2013 that:
[...]
On the night that the Story was filmed, [reporter] and a Salvation Army Officer who accompanied her observed your client. We are instructed that your client was loitering for a very long time, walking back and forth around the same area and staring at a group of young people, in particular the females of that group.
[The reporter] formed her opinions based on her own observations of your client, as well as the informed observations of the Officer.
[...]
We are instructed that the Salvation Army runs the mobile soup kitchen and that individuals who regularly access the soup kitchen are all well aware that it does not operate on public holidays...
In light of the above, it was clearly open for [the reporter] to reach the opinion that your client was acting suspiciously and exhibiting predatory tendencies.
Finding
The licensee did not breach clause 4.3.1 of the Code.
Reasons
The following statements were made during the footage in question, with the relevant statements to the complaint highlighted in bold:
Reporter: It wasn’t long before we witnessed some very suspicious behaviour. These revellers were oblivious. But a man was hovering. Slowly strolling back and forth, stopping and staring at them, watching intently when this lady bent down.
Salvation Army Officer: It doesn’t look good, it looks pretty suss and it’s that sort of behaviour that we see pretty regularly around the city.
Reporter: What are you up to tonight Sir?
Complainant: Me? The same as everyone else
Reporter: What are you looking at though? I notice you’ve been hovering around here for a while.
Complainant: Yeah, so what..... It’s a free country
Reporter: Sorry?
Complainant: It’s a free country
In assessing clause 4.3.1 of the Code, the ACMA must consider whether the relevant broadcast material is factual in nature, or an expression of an opinion.
Reporter’s statements
The ACMA considers that the reporter’s statements comprised a combination of fact and opinion.
The references to ‘slowly strolling back and forth, stopping and staring at them’ were factual in nature as they were presented in a conclusive and unequivocal manner, and were specific and capable of independent verification. The ACMA is satisfied that these statements were accurate. The footage shows the complainant slowly pacing back and forth outside of a McDonald’s restaurant, and stopping periodically to look in the direction of a group of young people who were also out the front of the McDonald’s restaurant.
The ACMA considers that the remaining statements, ‘It wasn’t long before we witnessed some very suspicious behaviour…But a man was hovering…watching intently when this lady bent down’, amounted to expressions of opinion.
The use of language such as ‘we witnessed’ (emphasis added), followed by the emotive commentary, such as ‘hovering’ and ‘watching intently’ to describe the complainant’s actions in the footage was not conclusive and any inferences drawn by the viewer would have been judgmental or contestable in nature. The ACMA considers that the statements were presented as the opinion of the reporter based on what she had seen of the complainant’s behaviour.
Further, the statements were accompanied by footage of the complainant, ultimately giving the viewer the discretion to make his or her own assessment on the matter.
As the ACMA is satisfied that the statements were expressions of opinion, they are not subject to the accuracy requirements in the Code.
Statement of Salvation Army Officer
The Salvation Army Officer stated:
It doesn’t look good, it looks pretty suss and it’s that sort of behaviour that we see pretty regularly around the city.
The use of emotive language in the statement accompanied by the Officer’s non-conclusive reference that the behaviour did not ‘look’ good indicates that the statement was presented as an opinion. Further, the statement was accompanied by footage of the complainant, again leaving the viewer open to make up his or her own mind on the matter.
Accordingly, the requirements for factual material do not apply.
The ACMA acknowledges the complainant’s concern regarding the segment. However, for the reasons outlined above, it has found that the licensee has not breached the Code.
ACMA Investigation Report – Today Tonight broadcast by HSV on 7 November 2012 7
Attachment A
Transcript – Today Tonight – 7 November 2012
Presenter: Good evening, I’m Matt White and thanks for joining us. We begin tonight with an after dark snapshot of just how dangerous our city streets have become. Predators are on the prowl, targeting young women who have been drinking and here in Melbourne last night there were plenty of party-goers hitting the streets after Cup day. But as [reporter] reports, street wise volunteers are also on the roads looking out for them.
Reporter: It could be anywhere in any one of our major cities. Young girls wandering the streets drunk, lost, looking for missing friends, wondering how to get home, unaware of the dangers that lurk.
Salvation Army Officer: There are people that come into the city with the sole purpose of taking advantage of young women that have just had a big night.
Reporter: Post Melbourne Cup and last night we joined the Salvation Army’s Major [BN] and his team of Street Angels.
Salvation Army Officer: We’ve had those dodgy characters coming through so if you see anything like that, just get onto the police straight away.
Reporter: A band of volunteers dedicated to keeping city goers, especially women, safe.
Salvation Army Officer: It’s older men, on their own, just wondering the streets where young women hang out, waiting for taxis or come out the side of the nightclub to get some fresh air, you see these guys just lurking.
Reporter: It wasn’t long before we witnessed some very suspicious behaviour. These revellers were oblivious. But a man was hovering. Slowly strolling back and forth, stopping and staring at them, watching intently when this lady bent down.
Salvation Army Officer: It doesn’t look good, it looks pretty suss and it’s that sort of behaviour that we see pretty regularly around this city.
Reporter: What are you up to tonight Sir?
Complainant: Me? The same as everyone else
Reporter: What are you looking at though? I notice you’ve been hovering around here for a while
Complainant: Yeah, so what..... It’s a free country
Reporter: Sorry?
Complainant: It’s a free country
Reporter: That was just the start. Back on patrol with BN, we spotted two women being hassled by 5men - The ladies, New Zealand tourists, easy targets. Our cameras catching one man unzipping his fly, deliberately flashing himself at the women. They were offended and angry, with the situation fast becoming explosive - enter the Salvos
Salvation Army Officer: Well, do you want to call 000
Women: No we don’t
Reporter: The shock set in for one lady who was very upset, a fun night out ruined. Her friend explaining they had become separated from their friends when the men approached
Women We were just trying to find our friends... and... we just... we [inaudible]
Salvation Army Officer: Alcohol is the number one issue that I suppose we work with.
Reporter: For Salvo’s street team member [CF], it’s all in a nights work. He’s used to defusing potential flare ups and seeing bloodied and battered patrons taken to hospital
Reporter: Do you think the disappearance of Jill Meagher really woke the city up to the dangers that do lurk on the streets.
Salvation Army Officer: Yeah, when we were out on the streets after that happened, you could feel the difference on the streets and people were a lot more vigilant about being with their friends and not on their own. I think that’s only lasted for a few weeks.
Reporter: Police know they can call on BN anytime, last night no exception.
Salvation Army Officer: I got a call about a domestic violence situation and the police wanted us to try and find some accommodation for the female that was involved in that situation. The couple were out at the races having a really good time together and I think too much alcohol was involved and suddenly the whole thing went pear-shaped.
Victorian Police Officer: He’s a terrific guy, and a real credit to the Salvation Army.
Reporter: Superintendent [RW] of the Victoria Police says the Salvo’s are now a vital resource
Victorian Police Officer: We’re working hand in hand and it’s working well.
Volunteer: Would you like some bottled water?
Reporter: Bottled water, rubber thongs and lollipops are readily handed out. This year alone volunteers have provided 920 lifts home.
Salvation Army Officer: They do it because they just want to help and they care for people and they care for the city and I think it would be a great model to see a roll out right across the nation.
Presenter: Yeah, well said.
ACMA Investigation Report – Today Tonight broadcast by HSV on 7 November 2012 7