Investigation Report 2553

File No. / ACMA2011/394
Licensee / Festival City Broadcasters Pty Ltd
Station / FIVEaaAdelaide
Type of Service / Commercial Radio
Name of Program / The Leon Byner Show
Dates of Broadcast / 1, 12 and 19 October 2010
Date Finalised / 23 August 2011
Finding /
  • Breach of clause 3.1(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2010 for the broadcast of The Leon Byner Showon 1 October 2010;
  • No breach of clause 3.1(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2010 for the broadcasts of The Leon Byner Showon 12 and 19 October 2010; and
  • Breach of clauses 5.5 and 5.6 of the Commercial Radio Australia Codes of Practice and Guidelines 2010.

The complaint

On 27 January 2011, the Australian Communications and Media Authority (ACMA) received a complaint concerning the content of the program, The Leon Byner Showbroadcast on 1, 12 and 19 October 2010 by Festival City Broadcasters Pty Ltd, the licensee ofFIVEaaAdelaide.[1]

The complainant alleged that the program host Leon Byner ‘interspersed advertisements’ for a fluoride removal company during commentary on water fluoridation with advertising.

The complainant was not satisfied with the response of the licensee and referred the matter to the ACMA for consideration.[2]

The complaint has been investigated in accordance with clause 3.1(a) [advertisements must not be presented as news programs or other programs] and clauses5.5 and 5.6 [complaint handling] of the Commercial Radio Codes of Practice and Guidelines 2010 (the Codes).

The program

The Leon Byner Showis a talkback radio program that airs weekdays from 9 am to 1 pm. The program is described on 5AA’s website as:

South Australia’s leading current affairs program. Everyday [Mr Byner] covers a variety of local, national and international issues. He chases the newsmakers down and gets the answers South Australian listeners are looking for... Every day, [Mr Byner’s] comments and opinions create the news agenda for the State.[3]

A transcript of each broadcast complained about is set out in the body of the report. In summary, the broadcasts can be described as:

  • 1 October 2010- commentary by Mr Byner about the fluoridation of water in Mt Gambier.
  • 12 October 2010- a live read for Waterways Products (Aust.) Pty Ltd, a fluoride removal company (Waterways),conducted by Mr Byner.
  • 19 October 2010 - a statement ‘drafted and read by [Mr Byner]’ which the licensee states was ‘in response to some press in the Adelaide Advertiser and on ABC Radio on approximately 14 October 2010, inferring that [Mr Byner’s] opinion on fluoride in water is tainted by a commercial association with Waterways...’[4]

Assessment

The assessment is based on:

a recording of the programs broadcast on 1, 12 and 19 October 2010, provided by the licensee;

the complainant’s submissions;

the licensee’s submissions;

Other sources consulted are identified where relevant.

‘Ordinary, reasonable’ listener test

In assessing content against the Codes, the delegate considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener.

Australian Courts have considered an ‘ordinary, reasonable’ listener or reader 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[5].

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, 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 Codes.

Issue 1: Did the licensee broadcast advertisements that were presented as news programs or other programs?

Relevant Codes provisions

3.1 Advertisements broadcast by a licensee must:

(a) not be presented as news programs or other programs;

(b) comply with all other Codes of Practice so far as they areapplicable.

Advertisement is defined by the Codes as:

“material broadcast a substantial purpose of which is to draw public attention to, or to promote, directly or indirectly, an organisation, product or service, belief or course of action; and

consideration has been provided by or on behalf of an organization or a supplier of the product or service to a licensee, or to a presenter, or an associate of a presenter for the broadcast of that material by the licensee.”

Complainant’s submissions

The complainant submitted to the ACMA:

On several dates Mr Byner hosted and took a partisan position on the topic of the fluoridation of water supplies in South Australia. During his commentary and discussion with callers and guests, Mr Byner interspersed advertisements for a company called Waterways which markets equipment for the removal of fluoride from water. Whatever Mr Byner’s personal views may be, the inclusion of such advertising in what purports to be a discussion of a public issue must be questioned, as there is a financial incentive for him to take a particular view. As an employee of 5AA, Mr Byner is remunerated from the income generated by advertising. The response from the station that Mr Byner has no commercial arrangement with the company involved is no doubt correct, but the radio station does have a commercial arrangement with them. Mr Byner, as the station’s employee, isusing public affairs radio to advance a view that supports the station’s advertisers and consequently his own income.

Licensee’s submissions

In its submissions to the ACMA dated 11 March 2011, the licensee submitted:

[Mr Byner] does not have a commercial agreement for the promotion of the removal of fluoride from water and discusses this issue as a matter of public concern, hopefully presenting both sides of the argument fairly.

From what we understand, [Mr Byner] has discussed this issue over a long period of time, but at around October 2010 the issue became topical once again (as a result of the proposed introduction of fluoride into the water supply in Mt Gambier). We assume that the complainant’s concerns are in relation to that period.... During October 2010, [Mr Byner] conducted interviews with politicians responsible for water in SA as well as with SA water regarding the fluoride issue. Whilst he has always (for many years, I understand) been unsupportive of fluoridation by SA Water, he has conducted interviews with representatives from both sides of the debate and looked at factual and scientific information which supports multiple points of view on this issue (not just his own).

In its submissions to the ACMA dated 11 April 2011, the licensee submitted:

[Mr Byner] has been discussing the issue of fluoridation of water in South Australia for a long time. According to his producer, this topic has come up in discussion on his program now and then for the past ten years. [Mr Byner] has always maintained an opinion that, whilst putting fluoride in water may improve dental health, it is not necessarily a solution to related problems and potentially creates new problems for the community. ..

Waterways has been a client of FIVEaa since approximately July 2010 and has conducted advertising in the form of spots (conventional, pre-recorded ads) and live reads from July 2010 to December 2011. Live reads were conducted by FIVEaa announcers [Mr Byner] and Amanda Blair, for which they were compensated by FIVEaa in accordance with their relevant employment agreements.

[...]

Waterways are not currently advertising on FIVEaa.

It is important to note that the majority of advertising for Waterways is in respect of its products other than the reverse osmosis system (which removes fluoride from water). Waterways also promoted its water purification system on FIVEaa (which, as we understand it, does not specifically remove fluoride from water).

We also note that other water purification companies advertise on FIVEaa, including during [Mr Byner’s] program – [broadcast dated 1 October 2010] for example, includes an advertisement for competing water purification products (“Puratrap”).

[...]

As we made clear to the complainant in our response to him dated 25 November 2010, [Mr Byner] does not have any commercial agreement with Waterways and we are assured by [Mr Byner] that he has never received compensation (as defined by ACMA) from Waterways for any advertising or promotion of Waterways products. He does not own a Waterways product.

Waterways is a client of FIVEaa. As part its agreement with FIVEaa, some of its announcers (Leon [Mr Byner] included) conduct live reads for the client (previously in the form as set out in [the broadcast dated 12 October 2010]). These live reads are not conducted during commentary or discussion by Leon [Mr Byner] about fluoride in water.

[...]

The licensee’s submissions against clause 3.1(a) of the Codes specific to the three separate broadcasts are set out beneath each broadcast’s transcript below.

In response to the ACMA’s request for information about its commercial arrangement with Waterways, and a schedule of advertisements broadcast by the licensee on days surrounding the date of the broadcast, the licensee has provided the ACMA with the following confidential information.

  • Promotional scripts for Waterways;
  • An email from Waterways to MrByner dated 1 October 2010;
  • On-Air Schedule – Broadcast Contract between Festival City Broadcasters Pty Limited and Waterways Products (Aust.) Pty Ltdfor the period 1 October 2010 to 19 October 2010;
  • Business and Budget Plan 2010 – 2011 (October – April) including Terms and Conditions.

Finding

The delegatefinds that the licensee of 5AA:

  • breached clause 3.1(a) of the Codes in relation to the broadcast dated 1 October 2010; and
  • did not breach clause 3.1(a) of the Codes in relation to the broadcasts dated 12 and 19 October 2010.

Reasons

In assessing each broadcast against 3.1(a) of the Codes, the delegate must consider:

  • whether the broadcast was an advertisement; and, if so,
  • whether it was presented as anews program orother program.

In deciding whether the material broadcast constituted an advertisement, the delegate must determine:

  1. whether a substantial purpose of the material was to promote a product or service, and
  2. whetherconsideration was provided by or on behalf of the organisation or a supplier of the product or service to the licensee, or to the presenter, or an associate of the presenter for the broadcast of that material by the licensee.

Broadcast 1 - 1 October 2010

The broadcast dated 1 October 2010 was as follows:

There has been mega reaction to our discussion about the segment today which talked about the [fluoridisation] of our water supply and the fact that it’s calcium fluoride which is a positive. But, we’re not getting that, we’re getting sodium fluoride. You can go to any pharmacopoeiaand look that up and you will see the toxicity of it. But, what I told you earlier today, in case you missed it, was that our water supply is, basically what they put in there is not a pharmaceutical grade product but a toxic waste product of the aluminium and phosphate product industry that is known as phosphoric acid. There are many websites you can go to but the American publication, which has certainly been peer reviewed, so nobody can argue that it’s not scientific, has, this is the American Medical Journal talks about the fluoridisation of the water not being a good thing and they have connected the fluoride to a whole lot of stuff, lower IQ in infants, hyperactivity, attention deficit, bone cancer, aching muscles, joints, arthritis, all that kind of stuff. What we have here is a notice from [X] Waterman at Waterways and they are a good company. I know [X] well and used to work with her years ago. She says we have been inundated with phone calls today in relation to your discussions this morning about fluoride in our water. You can tell your listeners that we have a 4 star reverse osmosis that removes fluoride completely usually $905 installed, but, we are going to discount the product to $635 installed. Up to you guys. So, if you want to mention it... Well, [X], I am, because a lot of people... well, you will make of the misinformation of the fluoridisation of our water supply what you will. I’m just giving you some information that comes from a science base where you can make an informed choice about what water you drink. I’m not going to tell whether you should or you shouldn’t, I’m just giving you the information. We will approach SA Health to see what they will tell us but I’m not expecting much from them for reasons that I’ve already explained. But, if you want to take this into your own hands, it might be a good option to call Waterways and ask them about their $630 installation of the product that gets rid of the fluoridisation, or the sodium fluoride, which happens to be in our water, which many people say, is not good.

The licensee submitted in relation to this broadcast:

In [the broadcast dated 1 October 2010] [Mr Byner] makes a reference to an email from Waterways about its reverse osmosis product. It is important to note that [Mr Byner] was not compensated, nor did he receive any consideration from either Waterways or FIVEaa for this. He received an email during his show (all of our announcers have access to their emails whilst broadcast and it is becoming a popular way for listeners to interact with announcers) from a staff member at Waterways, which he made reference to.

This was not a live read and [Mr Byner] did not receive any compensation (directly or indirectly) for mentioning Waterways. The email was not prompted, nor was [Mr Byner] required to make reference to it on air. [Mr Byner] makes it very clear that it is up to listeners to make up their own minds about the topic and whether or not a product such as Waterways is right for them. This is obviously not an advertisement, and is therefore not in breach of Code 3.1(a).

Did the broadcast constitute an advertisement?

The first question the delegate must consider is whether a substantial purpose of the material was to promote a product or service. The delegate makes the following observations of the content broadcast:

  • The nature of the discussion in the broadcast was current affairs;
  • The broadcast opened with a reference to an earlier broadcastin whichthe addition of fluoride to the water supply in Mt Gambier was discussed;
  • The broadcast then discussed issues that have been raised in relation to the fluoridisation of water, such as the medical ramifications there may be from drinking fluoridated water. The discussion centred on scientific research into the issue and cited a general reference to medical journals that contained opinions thatfluoridisation of water supply is undesirable;
  • The presenter read an email which referred to Waterways and their product, and the availability for sale, and price, of the product;
  • The surrounding commentary of the email also involved several references to Waterways, its employeesand its product and the apparent benefits of the product;and
  • The broadcast closed with an endorsement of Waterways which included reference to the employee of Waterways who emailed Mr Byner during the broadcast. In his closing comments, Mr Byner provided contact details for Waterways and details of a discount being offered to listeners of the licensee.

The delegate is of the view that thebroadcast contained content thatsatisfies the first tier of the definition of ‘advertisement’ set out above. That is, a substantial purpose of this content was ‘to draw public attention to, or to promote, directly or indirectly, an organisation, product or service, belief or course of action’.

The delegate also notes that the content of the broadcast dated 1 October was very similar to the live –read ad script with the title, ‘Reverse osmosis, Key No WWay-1810-live’, provided to the ACMA by the licensee in response to its request for information about the licensee’s commercial arrangement with Waterways, and which was read on 12 October 2010 (see discussion below). The script refers to the public reaction to the fluoride levels in drinking water, and states “When medical and scientific journals are describing the fluoride we receive (sodium fluoride) as toxic, it’s important that you question what you’re drinking.”

The next question for the delegate is whether the licensee, the presenter, or an associate of the presenter, received consideration from Waterways for the promotion of the product.

The licensee has submitted that the material of concern did not amount to an ‘advertisement’, in effect, because Mr Bynerdid not receive any payment for his endorsement of Waterways’ products. The licensee has also submitted that “neither [Mr Byner] nor FIVEaa were compensated for this...”[6]

From the information provided by the licensee regarding its contractual agreement with Waterways, and the schedule of paid advertisements in that agreement, the delegate is satisfied that, in consideration for the payment of a monthly fee, the licensee regularly promoted Waterways products in the period surrounding 1 October 2010 using recorded advertisements and live reads. The terms and conditions of the arrangement between the licensee and Waterways indicate that:

Each producer in conjunction with the Program Director decides program content such as interviews and editorials’ and ‘clients acknowledge that this proposal contains a concept or idea...details (such as dates, venues and named Talent) as set out in the proposal...are indicative only,provided as an example and are subject to change...Acceptance of this proposal is made not withstanding any changes to details and any changes will not constitute grounds for termination and/or compensation of any kind...

As payment was made on a monthly basis, covering 1 October 2010 and there was flexibility in the nature of the promotional broadcasts provided by the licensee, the delegate is of the view that the broadcast promoting Waterways products on that date occurred within the terms of theoverarching contractual agreementbetween the licensee and Waterways. Accordingly, consideration was provided to the licensee (it did not need to be directly provided to Mr Byner) in return for the promotional announcement of the Waterways Osmosis product made by Mr Byner during Broadcast 1 on 1 October 2010.

On this basis, the delegate finds that thebroadcast on 1 October 2010 constituted an advertisement under the Codes.

Was the advertisement presented as a news program or other program?

The delegate has assessed the broadcast’s contents in relation to placement, style and tone, and notes that: