Investigations3195 and 3224
File no. / ACMA2014/273 and ACMA2014/446Broadcaster / Australian Broadcasting Corporation
Station / ABC1
Type of service / ABC television
Name of program / Media Watch
Dates of broadcast / 17 February 2014 and 24 February 2014
Relevant code / Standards 2.1, 2.2, 3.1 and 5.3, and Section III of theABC Code of Practice 2011 (revised in 2014)
Date finalised / 24 September 2014
Decision / The Australian Broadcasting Corporation:
did not breach standard 2.1
did not breach standard 2.2
did not breach standard 3.1
did not breach standard 5.3
complied with Section III
of theABC Code of Practice 2011 (revised in 2014)
The complaints
On 31 March 2014, the ACMA commenced an investigation into an episode of the program, Media Watch, broadcast by the ABC on 17 February 2014 (the first broadcast).
The ACMA commenced its investigation following receipt of a complaint that the ABC breached standards 2.1, 3.1 and 5.3 of theABC Code of Practice 2011 (revised in 2014)(the Code) in respect of the statement in the first broadcast (the statement) that:
Insiders tell Media Watch that The Australian is losing $40 million to $50 million a year.
On 5 June 2014, the ACMA commenced an investigation into an episode of Media Watch broadcast by the ABC on 24 February 2014 (the second broadcast).
The ACMA commenced its further investigation following receipt of a complaintthat the second broadcast ‘present[ed] facts in a misleading way’ and ‘did not correct errors in an appropriate way’.
The complaints were made by lawyers acting for Nationwide News Pty Limited, the publisher of The Australian (the complainant).
The ACMA has investigated the complaints together as they are from the same complainant and concern related broadcasts.
The program
Media Watch is presented by Paul Barry and is broadcast on ABC1 on Monday nights at 9.20 pm and Wednesday mornings at 12.25 am.
The program is described on the ABC’s website as follows:
Media Watch is Australia's leading forum for media analysis and comment.
Conflicts of interest, bank backflips, deceit, misrepresentation, manipulation, plagiarism, abuse of power, technical lies and straight out fraud: Media Watch has built an unrivalled record of exposing media shenanigans since it first went to air in 1989.
The media provides the information we need to make decisions about our lives, but how reliable are the media reports that shape our views of the world?
Media Watch turns the spotlight onto those who literally 'make the news': the reporters, editors, sub-editors, producers, camera operators, sound recordists and photographers who claim to deliver the world to our doorsteps, radios, computers and living rooms. We also keep an eye on those who try to manipulate the media: the PR consultants, spin-doctors, lobbyists and "news makers" who set the agenda.
The first broadcast, a 13 minute long program on 17 February 2014, was called ‘Clicks, cats and crazy headlines’ and focused on pressures facing print media in Australia generally from falling circulations, loss of advertising revenue and competition from new online sites.
The second broadcast was an 87 second long segment on 24 February 2014 called ‘Media Watch responds to The Australian’, described as ‘an attempt to set the record straight’ on The Australian’s (the newspaper) financial performance. It included footage from a video interview between Chris Mitchell, the newspaper’s Editor-in-Chief, and Sharri Markson, the newspaper’s Media Editor (the interview). The interview was published on the newspaper’s website earlier the same day.
Complete transcriptsof the first broadcast and the second broadcast are at Attachment A and Attachment B respectively.
Assessment
This investigation is based on correspondence between the complainant and the ABC, submissions from the complainantand the ABC to the ACMA, and the broadcasts. Other sources used have been identified in the report.
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’ viewer.
Australian 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.[1]
The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images 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 Code.
Issue 1: Accuracy
Accuracy of the statement in the first broadcast
Relevant Code standard
2. Accuracy
2.1.Make reasonable efforts to ensure that material facts are accurate and presented in context.
The Code requires that standards are interpreted and applied in accordance with relevant Principles. In the case of factual accuracy, the relevant Principles include:
The ABC requires that reasonable efforts must be made to ensure accuracy in all fact-based content. The ABC gauges those efforts by reference to:
- the type, subject and nature of the content;
- the likely audience expectations of the content;
- the likely impact of reliance by the audience on the accuracy of the content; and
- the circumstances in which the content was made and presented.
The ABC accuracy standard applies to assertions of fact, not to expressions of opinion. An opinion, being a value judgement or conclusion, cannot be found to be accurate or inaccurate in the way facts can.
…
The efforts reasonably required to ensure accuracy will depend on the circumstances. Sources with relevant expertise may be relied on more heavily than those without. Eyewitness testimony usually carries more weight than second-hand accounts.
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The ABC should make reasonable efforts, appropriate in the context, to signal to audiences gradations in accuracy, for example, by querying interviewees, qualifying bald assertions, supplementing the partly right and correcting the plainly wrong.
Complainant’s submissions
The complainant submitted to the ABC that ‘the statement is factually incorrect’ and that:
the obligation on the ABC to make reasonable efforts to ensure that material facts are accurate and presented in context … [was] not complied with in circumstances where this assertion was not put to any of the Editor-in-Chief, Editor, Finance Manager or CEO of The Australian, the Director – Policy, Corporate Affairs and Community Relations, or Head of Corporate Affairs of News Corp Australia.
The complainant further submitted to the ABC that ‘had the program … made the bare minimum of enquiries, let alone “reasonable efforts”, it would have been advised that the statement is wrong’.
To the ACMA, the complainant submitted that:
The attribution of the information to ‘insiders’ clearly imputes that the statement of fact has been subjected to scrutiny … and is accurate. It imputes that the information came from News Corp Australia or The Australian itself, when in fact, Mr Barry has publicly confirmed neither entity was approached for a response.
The complainant’s submissions are at Attachment C.
ABC’s submissions
The ABC responded to the complainant that:
The statement concerning [the complainant] was based on information provided to Media Watch by sources reasonably expected to have the requisite knowledge.
And also:
… having three sources that are judged reliable and well-informed is sufficient confirmation to publish an attributed estimate. In the circumstances, the efforts made by Media Watch to ensure the accuracy of the statement were reasonable …
The ABC’s submissions are at Attachment D.
Decision
The ABC did not breach standard 2.1 of the Code.
Reasons
In applying standard 2.1 of the Code, the ACMA usually adopts the following approach:
Was the particular content complained about factual in character?
Did it convey a ‘material’ fact or facts in the context of the relevant segment?
If so, were those facts accurate?
If a material fact was not accurate (or its accuracy cannot be determined), did the ABC make reasonable efforts to ensure that the ‘material’ fact was accurate and presented in context?
The first consideration is whether the content complained about is factual. Some considerations which the ACMA generally applies in assessing whether particular broadcast content is factual in character are set out in Attachment E.
In this case, the ACMA considers that the nub of thestatement is appropriately characterised as factual. It cited a specific range of figures ($40-50 million) that are capable of independent verification and was not qualified in a way that would suggest it was mere speculation or an expression of opinion.
The ACMA notes that the statement identified the source of the range of figures as ‘insiders’. In the context of the broadcast, this attribution to ‘insiders’ was likely to convey to the audience that the figures had been provided by people with access to accurate informationreinforcing for the ordinary, reasonable viewer that that statement was factual in character.
In regard to the reference to ‘insiders’, the complainant submitted to the ACMA that:
The Statement was attributed to ‘Insiders’. In this context the meaning conveyed is that the information was provided to the ABC by current employees of News Corp or The Australian and not by former employees.
The ACMA does not consider that the attribution to ‘insiders’ necessarily conveyed that the sources were current employees of The Australian or News Corp. As discussed above, the ACMA considers, in this case, that ‘insiders’ would be understood by ordinary, reasonable viewers as referring to anonymous personswho had access to accurate information (not available to outsiders) about The Australian’s financial performance.The ACMA notes that whether a source is an ‘insider’ or not may have a temporal element to itand broadcasters should take care to use the term advisedly.
The next consideration for the ACMA is whether the statement was a ‘material’ fact.
The ACMA notes the ABC’s submission that:
It is important to note that the Media Watch program was a broad look at the financial challenges facing all newspapers in Australia. It was not a critique of The Australian or its fiscal position.
While the ACMA accepts that the broadcast did not focus on The Australian’s fiscal position, it considers that the statement was material to the topic of the broadcast – ‘a broad look at the financial challenges facing all newspapers in Australia’.The statement conveyed that The Australian is sustaining annual losses of between $40 million and $50 million, information that was germane to the topic.
Accordingly, the ACMA considers that the statement was a ‘material’ fact in the context of the broadcast.
The ACMA also considers that the statement was not accurate. The ABC has conceded as much, publishing a correction on its website on 26 February 2014 stating that:
The Australian is likely to lose around $15 million in 2013-14.
However, as the obligation in standard 2.1 centres on ‘reasonable efforts’, the ACMA must also examine the ABC’s efforts to ensure that the statement was accurate.
As noted above, the complainant considers that ‘reasonable efforts’ obliged the ABC to verify the figure with a senior executive at either The Australian or News Corp Australia. In contrast, the ABC submits that it was reasonable for it to rely on ‘sources reasonably expected to have the requisite knowledge’, in this case:
Sources … who had been privy to official information about the financial performance of The Australian over the previous 18 months.
The ABC explained to the ACMA that:
The only way to get a snapshot of the financial situation facing The Australian was to rely on unnamed sources. The company does not and has never released this information. The individual financial results for News Corp newspapers have long been a guarded secret. They are not publicly disclosed or itemised in the company’s annual results.
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Media Watch notes that News Corp has a long history of not commenting on the finances of its Australian newspapers. This includes coverage in its own papers, as can be seen here in this article written by The Australian’s Mark Day in August 2013.
While masthead financial details are tightly held within News, it is apparent that the bottom line of the Australian operations - crucial to the performance of the new News Corp worldwide publishing business - is under pressure. The issue is that revenue is falling faster than costs.
While undertaking research for the program Media Watch asked News Corp for specific figures on its digital subscription numbers, the program was told this information would not be provided.At no time did Media Watch consider any information would be provided by News Corp on the financial figures for different mastheads. This was consistent with the public position the company has always taken.
In response to the ACMA’s queries about the ABC’s efforts with respect to the information obtained from ‘insiders’, the ABC explained that:
the program’s presenter or researcher spoke with each of the sources
they discussed the information obtained with the program’s Executive Producer
they cross checked the information ‘with what is known about the financial pressures facing News Corp newspapers’. This cross checking included an article that appeared in the Australian Financial Reviewon 5 August 2013 that stated:
Several informed sources tell the Financial Review that newspaper revenues have tanked. Losses at The Australian last financial year are understood to have hit $36 million.
In this instance, the ACMA considers that the ABC’s reliance on the unnamed sources, coupled with the cross checking it undertook, amounted to reasonable efforts. The ACMA notes the ABC’s submission that it was reasonably believed there was no point in approaching The Australian or News Corp for this information as it would not have been forthcoming.
Accordingly, the ACMA’s finding is that the ABC did not breach standard 2.1 of the Code in respect of the statement.
In this circumstance, the ACMA does not need to consider Section III of the Code (headed ‘Resolved Complaints’) which provides:
A failure to comply will not be a breach of the Code if the ABC has, prior to the complaint being made to the ACMA, taken steps which were adequate and appropriate in all the circumstances to redress the cause of the complaint.
To illustrate, a failure to comply with Standards 2.1 or 2.2 (Accuracy) will not be taken to be a breach of the Code if a correction or clarification, which is adequate and appropriate in all the circumstances, is made prior to or within 30 days of the ABC receiving the complaint.
Accuracy of the second broadcast
Relevant Code standard
2. Accuracy
2.2.Do not present factual content in a way that will materially mislead the audience. In some cases, this may require appropriate labels or other explanatory information.
Complainant’s submissions
The complainant submitted to the ABC that the second broadcast ‘materially misled the audience’ by omitting further relevant statements made by Mr Mitchell during the interview.
To the ACMA, the complainant submitted that the extract of the interview ‘did not include key statements’, and ‘was presented out of context and without other expressly relevant statements’.
The complainant’s submissions are at Attachment C.
ABC’s submissions
The ABC responded to the complainant that at the time of the second broadcast, ‘the extent of the error was still unknown’ and that the second broadcast ‘included an accurate summary of what was known at that time and was not misleading’.
The ABC’s submissions are at Attachment D.
Decision
The ABC did not breach standard 2.2 of the Code.
Reasons
In applying standard 2.2 of the code, the ACMA usually adopts the following approach:
Was the particular content (the subject of the complaint) factual in character?
If so, was that factual content presented in a way that would materially mislead (i.e. in a significant respect) the audience?
In this instance, the complaint is that the presentation of factual content was materially misleading through omission.
The complainant submitted to the ABCthat the ABC ‘selected an extract from the Chris Mitchell interview out of context and without the further expressly relevant statements made by him concerning the incorrect statement’. The complainant specifically identified these statements made during the interview which were omitted from the second broadcast - ‘the idea that we are losing $50m is ridiculous’ and that the extent of the newspaper’s loss is ‘a fraction of the number that Paul Barry quoted’.
The ABC responded to the complainant that: