Investigation Report 2436

File Nos. / ACMA2010/1292
Broadcaster / TCN Channel Nine Pty Ltd
Station / TCN
Type of service / Commercial television broadcasting service
Names and dates of programs / 60 Minutes22 November 2009
Relevant Code / Clauses 4.3.1, 4.3.11, 7.9and 7.12 of the Commercial Television Industry Code of Practice 2004
Decision / Breach of clause 4.3.1 [factual accuracy]
No breach of clause 4.3.1 [factual accuracy and representation of viewpoints]
No breach of clause 4.3.11 [correct significant errors of fact]
No breach of clause 7.9 [provide a substantive written response]
Breach of clause 7.12 [advise complainant that they may refer the matter to the ACMA]

The complaint

The ACMA received a complaint regarding a segment of60 Minutesbroadcast by TCN Channel Nine Pty Ltd, the licensee of TCN, on22 November 2009. The complainant, Australian Pork Limited (APL), alleged that the segment contained inaccuracies and failed to represent viewpoints fairly in its reporting of the use of sow stalls in Australian piggeries.

The investigation has considered the licensee’s compliance with clauses 4.3.1 [factual accuracy and fair representation of viewpoints], 4.3.11 [correction of significant errors of fact], 7.9and 7.12 [complaints handling] of the Code.

Matters not pursued

The complainant alleged that the program “did not intend to present a fair and balanced report on the use of the stalls”. Clause 4.4.1 of the Code requires licensees to present news fairly[1] and impartially. Current affairs programs, such as 60 Minutes,are not subject to the requirementof impartiality, nor are they required to seek balance within a report.Accordingly, the ACMA has not pursued these aspects of the complaint.[2]

The program

60 Minutes is a one-hour current affairs program broadcast Sundays at 7.30 pm. The segment titled “The Hidden Truth”, reported on the debate on the use of sow stalls in Australian piggeries and was introduced by the reporter as follows:

For many of us, Christmas just would not be the same without the traditional ham. But few people tucking into their festive feast would spare a thought for where that ham actually comes from beyond the supermarket. Sadly most ham and bacon comes from highly intensive factory farms, nightmarish places where animals almost never see daylight. In many parts of the world consumers are forcing pork producers to ban the worst practices and make piggeries more humane. But here in Australia, change is coming in an agonising slow pace, especially for the pigs.

The segment included interviews with:

  • an animal rights activist (EM);
  • an English Professor (DB) whose research led to the practice of using sow stalls being banned in the UK;
  • a veterinarian (KW);
  • the CEO of Australian Pork Limited;
  • Woolworths Fresh Food Manager (MB); and
  • A free range pig farmer (LM).

The segment featured footage of sowsin stalls, sows fighting and sows in the open being farmed free range. It also included footage of sows in stalls filmed by an animal rights activist.

Atranscript of the segment is at Attachment A.

Assessment

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

Issue 1: 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;

The considerations which the ACMA generally applies in determining whether or not a statement complained of was compliant with the licensee’s obligation to present factual material accurately include the following:

  • The meaning conveyed by the relevant statement or footage is assessed according to what an ‘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, not 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 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 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 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 presented is not presented accurately, that would amount to a breach of the clause.
  • 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.

Issues

The following matters have been alleged by the complainant to be inaccurate:

  1. Professor DB: ‘The vast majority of sows in Australia are living all their lives, except for the period when they’re actually giving birth, in a stall like this’.
  2. Reporter: ‘So, how is it that farmers’ don’t go to jail for locking up pigs? Well, about 20 years ago the farming lobby and the Federal Government came up with this – a code of practice which allows pigs to be kept in stalls. This code makes it totally legal’.
  3. The factual inference that the Tasmanian piggery was accredited at the time the video was taken.
  4. The omission of information in relation to the complainant assisting the licensee to gain access to a piggery.
  5. Title of the report: ‘The Hidden Truth’.

Findings

The licensee breached clause 4.3.1 of the Code in relation to:

  • the omission of information regarding the complainant assisting the licensee to gain access to a piggery.

The licensee did not breach clause 4.3.1 of the Code in relation to:

  • ‘The vast majority of sows in Australia are living all their lives, except for the period when they’re actually giving birth, in a stall like this’;
  • ‘So, how is it that farmers don’t go to jail for locking up pigs? Well, about 20 years ago…’;
  • the factual inference that the Tasmanian piggery was accredited at the time the video was taken; and
  • ‘The Hidden Truth’.

Statement 1: The vast majority of sows in Australia are living all their lives…

Complainant’s submissions

The complainantsubmittedthat:

Relating to the statement of Professor [DB] – “The vast majority of sows in Australia are living all their lives – except for the period when they’re actually giving birth – in a stall like this.”

  • This statement is factually inaccurate. Data[4] collected by APL on the Australian pork industry indicates the following (based on 90% of producers having sows on their properties):
  • around 40% of pig producers in Australia do not use gestation stalls at all;
  • around 20% of pig producers in Australia use stalls in a way which is compliant with the 2017 Model Code requirements limiting the use of stalls per 16 week pregnancy to 6 weeks; and
  • around 30% of pig producers in Australia use stalls presently for more than 6 weeks per pregnancy. Even the sows in stalls for the full pregnancy will be spending an estimated 4 to 5 weeks in farrowing systems per pregnancy and potentially additional time in group housing before mating.
  • 60 Minutes did not try to gain the facts regarding this statement from APL or in any other way test its validity.

…

The complainant also provided a confidential report supporting the data above.

Licensee’s submissions

The licensee submitted to the ACMA that:

Nine maintains that the statement of Professor [DB] referred to in the letter is clearly the opinion of Professor [DB] and Nine maintains that a reasonable viewer would have interpreted it so. ACMA has in numerous past decisions (Reports 1892 and 1660) held that “the form of words introducing a statement is not conclusive” as to whether it is an expression of opinion or fact and Nine maintains that the statement formed part of the debate, the substance of which was based on counter opinions as to the treatment of sows in Australia.

If ACMA is of the view that the statement amounts to a statement of fact (which Nine denies) we note that Professor [DB] of Cambridge University is a leading Academic in the area of animal welfare and in particular pigs, and his statement is based on his own research from observed facts, including his numerous visits to Australian piggeries. Professor [DB] is the first Professor for Animal Welfare at Cambridge UK, Chairman and past Chairman of the EU Scientific Veterinary Committee. A further outline of Professor [DB’s] qualifications is attached at Annexure A.

In order to accurately assess the accuracy of the statement, it is important to understand the current practices in the breeding for human consumption. The average gestation period for sows is 112-115 days (4 months). Piglets are generally weened after 3-4 weeks with the sows then inseminated immediately following weening and returning to stalls. When this breeding cycle for sows is analysed, it is clear that Professor [DB’s] statement that “the vast majority of sows in Australia are living all their lives – except for the period when they’re actually giving birth – in a stall like this” is correct and is supported by numerous scientific and academic publications.

Amongst these, the publication “Animal Law in Australia” states:

“Although the precise numbers vary depending on market conditions, it is estimated that Australia houses about 300,000 female pigs (sows) for breeding at any one time. Sows raised in factory farms are confined by the thousands in giant sheds, spending most of their reproductive cycle in pens or stalls…Approximately one week before birthing, pregnant pigs are removed from sow stalls and placed in even smaller pens referred to as farrowing crates…The reproductive cycle, commencing with artificial insemination then begins again and the sow is returned to the sow stall. This cycle continues until the sow is no longer ‘productive’, at which time she is sent to the slaughterhouse”. (Refer Annexure B).

The claim is also supported by the RSPCA. The RSPCA information sheet on Sow Stalls (Annexure C) states:

“…Usually piglets are weaned 3-4 weeks and then the sow is made pregnant again. From the age of 8-10 months, the sow is generally either pregnant or lactating (with her litter). On average a breeding sow would have 8 litters over a 4 year period. This means she may be in a stall or farrowing crate for all her adult life”.

The claim as to the vast majority of sows in Australia are living all their lives is supported by the scientific report “The welfare of gestating sows in conventional stalls and large groups on deep litter” which states that “about 70% of gestating sows are kept in stalls during gestation”. (Annexure D).

Assessment

The relevant statement (in bold)was made in the following context:

Reporter: This is how bad it gets, pregnant sows locked up for weeks on end in tiny stalls to breed the bacon that ends up on our tables.

Professor DB: The vast majority of sows in Australia are living all their lives, except for the period when they are actually giving birth, in a stall like this and that is a very, very confined condition. I think people just don’t realise how the animals are having to live.

Reporter: Professor [DB] of England’s Cambridge University is appalled that Australia still uses sow stalls in piggeries. It was his research that led to the practice being banned throughout the UK.

Does the relevant statement constitute factual material?

The delegate does not accept the licensee’s submission that the relevant statement was the opinion of Professor DB. An ordinary, reasonable viewer would have understood the statement as factual content as opposed to an expression of opinion as it was presented in an unequivocal and unquestioning manner.It did not contain any elements such as “I think” or “I believe” to suggest that the speaker was relating an opinion or perspective.It is also noted that Professor DB is presented as an academic with expertise in the field which suggests that the statement is based on factual research as opposed to opinion.

What would the statements have conveyed to an ordinary reasonable viewer?

The ordinary reasonable viewer would have understood the statement to meanthat the majority of sows in Australia live all their lives in a stall, except when they are giving birth.

Was the information conveyed accurate?

The complainant provided the results of polls which indicate that only about 30% of pig producers in Australia currently use sow stalls for more than six weeks per pregnancy and that sows are potentially given ‘additional time in group housing before mating’.The licensee provided materialindicating that 70% of gestating sows are kept in stalls.

The crucial issue to determine is whether the licensee presented factual material accurately ‘having regard to the circumstances at the time of preparing and broadcasting the program’ in terms of clause 4.3.1. The delegate notes that the poll results provided by the complainant were collected in 2010 and the report supporting the results is confidential. Given that thisinformation was not available to the licensee at the time the program was broadcast in 2009, the delegate finds that the licensee was entitled to rely on the material available and the expert’s research at the time of preparing and broadcasting the program, which indicates that the majority of sows spend their whole lives in stalls.

In conclusion, the delegate finds that the licensee complied with clause 4.3.1 of the Code in this instance.

Statement 2: So, how is it that farmers’ don’t go to jail for locking up pigs? Well, about 20 years ago …

Complainant’s submissions

The complainant submitted, in its letter to the licensee, that:

The Story misrepresents the nature and legal effect of the Model Code of Practice for the Welfare of Animals – Pig (Code).

[The reporter] says in the context of a statement by [EH] that a person who kept a cat or a dog in a similar condition to a sow in a Stall would be prosecuted:

So, how is it that farmers don’t go to jail for locking up pigs? Well, about 20 years ago the farming lobby and the Federal Government came up with this – a code of practice which allows pigs to be kept in stalls. This code makes it totally legal.

…

Second, [the reporter’s] representation about the age of the Code is wrong. Even a cursory investigation of the information reveals that the Code is two years old having been approved by the Primary Industries Ministerial Council in 2007.

Third, [the reporter’s] statement suggests that pig farmers have immunity to prosecution under cruelty to animal laws as a result of the Code. This is incorrect.

Fourth, the Story seems to suggest that the Code arises from a “deal” between pig farmers and the Federal Government for economic benefit. This ignores the fact that the approval process for the Code was long and comprehensive. It involved consultation and contribution from the likes of the RSPCA, Animals Australia, Australian Pork Limited, the CSIRO, veterinary representatives, pig research specialists and retailers. This was followed by a comprehensive public consultation process.

The Code does in fact impose high standards on pig farmers and it does not exempt any pig farmer from prosecution for cruelty to animals.

60 Minutes did not present the factual material in relation to the nature or effect of the Code accurately…

Licensee’s submissions

The licensee submitted, in its response to the complainant, that:

Nine denies that the Segment contained any factual inaccuracy in relation to the Model Code of Practice as alleged, for the reasons below:

…

  • The Model Code of Practice was revised approximately two years ago, but the records from the Parliament of Australia Senate Committee on Animal Welfare indicate that the Model Code of Practice was introduced in the 1980s. [The reporter’s] statement is therefore not factually inaccurate.
  • The Segment does not assert that pig farmers have immunity to prosecution for cruelty to animal laws under the Model Code of Practice. This is evidenced later in the Segment by the reference to a pig farmer who was prosecuted for cruelty to animals. The statement to which APL refers merely alludes to the fact that the Model Code of Practice sets an industry standard as to what would be considered cruelty and what is considered acceptable in the industry. APL’s own website affirms that the standards in the Model Code of Practice “are enforceable by state law, policed by state authorities and backed by the threat of prosecution and severe penalties”. It follows that if a farmer is operating in full compliance with the approved industry standard as set out in the Model Code of Practice, then that farmer would not be charged or successfully prosecuted for cruelty to animals.
  • The Segment does not refer to or imply any “deal between pig farmers and the Government for economic benefit”. The words used in the Segment are that “the farming lobby in conjunction with the Federal Government came up with this – a code of practice”. It is a simple reference to the fact that the farming lobby in conjunction with the Federal Government devised a code of practice. It is not inaccurate in the context of the Segment to omit a recitation of all the facts, matters and circumstances involved in the process engaged in prior to the introduction of the code. Reasonable viewers would infer that given the involvement of the Federal Government, the process was similar to any other legislation, bills or industry codes – that is, that submissions were sought and considered from a number of parties, drafts circulated and commented upon, etc.
  • APL states in its letter that the Model Code of Practice “does in fact impose high standards on pig farmers”. The current Model Code of Practice expressly allows the use of stalls, including gestation stalls. Therefore, it cannot be inaccurate to state that the Model Code of Practice allows the keeping of sows in stalls. Further, APL’s viewpoint- that the use of stalls as set out in the Model Code of Practice was beneficial to the sows and that the practice was in the interests of the sows’ welfare, was included in the Segment.

Assessment