Investigation Report No. 2901
ACMA file reference / ACMA2012/1347Licensees / Nine Network Queensland Television Ltd (QTQ)
Channel Nine Pty Ltd (TCN)
Station / Extra, Metropolitan QLD
Extra, Regional NSW
Type of Service / Datacasting Service
Title of Content / BabeTVlive
Date of Transmission / 8 October 2012
Relevant Legislation / Broadcasting Services Act 1992 – Schedule 6
· Clause 14 (Condition relating to category A television programs)
· Clause 18A (Genre conditions do not apply to advertising or sponsorship material)
· Clause 24 (General conditions)
Investigation conclusion
· Nine Network Queensland Television Ltd did not breach subclause 14(1) of Schedule 6 to the Broadcasting Services Act 1992 (Condition relating to category A television programs).
· Nine Network Queensland Television Ltd and Channel Nine Pty Ltd did not breach subclauses 24(1)(e) and (f) of Schedule 6 to the Broadcasting Services Act 1992 (General Conditions - Classification).
The complaints
Complaint One
On 11 October 2012, the Australian Communications and Media Authority (the ACMA) received a written complaint, via email, about BabeTVlive (Complainant One). The content identified in the complaint was transmitted by Nine Network Queensland Television Ltd (QTQ) via its datacasting service Extra, from 10.00 pm on Monday 8 October 2012.
Complainant One alleges that the sexual and erotic nature of BabeTVlive warrants an R 18+ classification. The complainant also alleges that the content is a category A television program, which cannot be transmitted in full by a datacasting service.
Complaint Two
On 23 October 2012, the ACMA received a written complaint, via email, about BabeTVlive (Complainant Two). The content identified in the complaint was transmitted by Channel Nine Pty Ltd (TCN) via its datacasting service Extra, from 11.00 pm on Monday 8 October 2012[1].
Complainant Two alleges that the content is exploitative and degrading, clearly in the R 18+ classification category, and not subject to a restricted access system.
As the complaints made by Complainant One and Complainant Two are similar and relate to the same content, the complaints will be addressed simultaneously in this investigation.
Datacasting services
The provision of datacasting services is regulated under Schedule 6 to the Broadcasting Services Act 1992 (the Act). Licensees providing datacasting services are generally prohibited from providing certain genres of television programs (‘category A’ and ‘category B’ television programs), subject to specified exceptions. The simplified outline under clause 1 of Schedule 6 to the Act states that the ‘restrictions are designed to encourage datacasting licensees to provide a range of innovative services that are different to traditional broadcasting services’.
Under clause 17 to 20AA of Schedule 6 to the Act, the genre restrictions do not apply to a range of content, including ‘advertising or sponsorship material’.
The content
BabeTVlive is live and interactive adult chat content. The BabeTVlive website provides the following information:
Connect with Australia’s most attentive and imaginative Babes and Hotties, all beach bodies fresh from our amazing coast, and country girls ready to share their home grown adventures – live and interactive. Our amazing line-up of experienced, hand selected Babes are ready and waiting for your call! We operate our very own television show and provide a range of satisfying services to suit everyone.
Our Babes are available on the phone 24 hours, 7 days per week, ready for you to connect and provide those special moments in your life. Don’t wait another moment. Enjoy browsing our site and getting to know our Babes.[2]
The content transmitted by QTQ and TCN did not provide any formal classification advice. However, the transmission is preceded by the following advice, in both spoken and written form:
The following program is for ADULTS ONLY
Assessment
The assessment is based on a copy of the relevant transmission provided to the ACMA by the Nine Network, on behalf of the licensees, as well as submissions from the complainants and the Nine Network, on behalf of the licensees.
Issue 1: Is BabeTVlive a category A television program?
The issue for this part of the investigation is to determine whether BabeTVlive is a category A television program which cannot be transmitted in full by a datacasting service.
Relevant legislation
Schedule 6 to the Act contains the following provisions that are directly relevant to this issue:
14 Condition relating to category A television programs
(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be:
(a) a category A television program; or
(b) an extract from a category A television program.
(2) The condition set out in subclause(1) does not prevent the licensee from transmitting an extract from a category A television program, so long as:
(a) the extract is not longer than 10 minutes; and
[...]
(c) the extract is not combined with one or more other extracts from category A
television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program; and
(d) having regard to:
(i) the nature of the extract; and
(ii) the circumstances in which the extract is provided;
it would be concluded that the licensee did not intend that the extract be combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program.
[...]
18A Genre conditions do not apply to advertising or sponsorship material
The conditions set out in clauses14 and 16 do not prevent a datacasting licensee from transmitting advertising or sponsorship material.
Definitions provided under Schedule 6 to the Act that are relevant to this investigation are at Attachment A.
Complainant’s submission
In correspondence to the ACMA, received 11 October 2012, Complainant One submitted about the content transmitted by the licensee of QTQ:
The basis of the program is to encourage viewers to call the person on screen (at a cost of $4.75 per minute). It could be loosely argued that this is an interactive service, however as the channel is delayed by an hour in QLD, the interactivity is lost. As it relies on a phone service, it couldn't be considered a computer game (as listed in Part 1 (c) of Schedule 6). It certainly isn't the type of content allowed in (a), (b), (d), (e), (f) or (g) of Part 1 [of Schedule 6 to the Act]. At best, it could be considered a "quiz or games program", a "light entertainment or variety program" or perhaps a "reality television program", all of which are considered to be category A television program by Part 3, Division 1 (g), (i) and (k) of Schedule 6 of the BSA Act.
Licensee’s submission
In its submission to the ACMA, dated 2 November 2012, the Nine Network, on behalf of QTQ stated:
[...]
The Program [BabeTVlive] is a female presenter based program for the exclusive purpose of promoting a premium rate and credit card phone-in service by which viewers can phone the service and privately speak to either a presenter or other off-screen female adult or can send in SMS text messages to the program, some of which may appear on screen after being pre-moderated by the Advertiser. Phone conversations between viewers and the respective female adults (including the presenters) are not broadcast.
[...]
This Program is not a category A television program for the reasons provided below.
(a) There is no definition of ‘quiz or games program’ in the legislation. Macquarie Dictionary (5th Edition) states the definition for a quiz: ‘a general knowledge test’ and games: ‘a contest for amusement in the form of a trial or chance.’ We suggest that the program is distinguished from a quiz or games program to the extent that it contains no quiz or game elements as defined above in the Program.
(b) There in no definition of ‘light entertainment or variety program’ in the legislation.
Accordingly, we suggest that the Program is distinguished from a light entertainment or variety program to the extent that it [is] an advertisement/information only program with entertaining elements for the advertising of commercial transactions. There are no interviews and no discussions of contemporary issues on this Program. The Program does not feature what occurs during the phone calls. Rather, the Program is advertisement on the product of the phone service along with factual information and does not feature any form of entertainment therein.
(c) Schedule 6 of the Act defines a reality television program as ‘a program the sole or dominant purpose of which is to depict actual, contemporary events, people or situations in a dramatic or entertaining way, where there is a heavy emphasis on dramatic impact or entertainment value.’ The Program is distinguished from a reality television program to at least the extent that:
(i) the program’s sole dominant purpose is to promote a phone service,
(ii) the program does not contain a heavy emphasis on dramatic impact or entertainment value. The sole role of the presenters of the program is to encourage viewers to use the phone service and to converse with viewers by means of the phone service. Encouragement to use the phone service is effected largely by both the appearance of the presenter(s) on-screen and the presenter(s) speaking to camera, which includes direct verbal requests to camera to phone-in; and
(iii) no contemporary events, people or situations are depicted.
Accordingly, this Program does not fall under the reality television program definition under the Act.
Finding
The licensee of QTQ did not breach subclause 14(1) of Schedule 6 to the Act when it transmitted BabeTVlive on 8 October 2012.
As BabeTVlive is considered to be advertising for a premium charge adult phone chat service, it is not necessary to consider whether the content is a category A television program.
Reasons
What type of content is BabeTVlive?
Schedule 6 to the Act defines advertising and sponsorship material as:
[...] advertising or sponsorship material (whether or not of a commercial kind).
The Act does not contain a definition of ‘advertisement’. In investigating complaints, the ACMA has previously had regard to the following:
· The High Court considered the meaning of the term ‘advertising’ in the context of the former Broadcasting Act 1942:
[...] It would seem to be used in a broad general sense which would encompass any broadcast or telecast of material ‘designed or calculated to draw public attention’ to something […] regardless of whether the broadcast or telecast ’serves a purpose other than that of advertising’[3]
· The Macquarie Dictionary 5th Edition defines ‘advertisement’ as:
[...] any device or public announcement, as a printed notice in a newspaper, a commercial film on television, a neon sign, etc., designed to attract public attention, bring in custom, etc.
Accordingly, an advertisement is potentially any material that is intended to promote a product or service, regardless of whether payment in cash or in kind has been received by a licensee, or by an employee, agent, contractor or volunteer of the service. Based on this construction, it is considered that BabeTVlive is advertising material for the following reasons:
· BabeTVlive depicts two female presenters, whose apparent purpose is to promote a phone service by encouraging viewers to call the premium charge phone service.
· The phone numbers and pricing for the premium charge phone service are displayed constantly on the screen.
· The presenters refer consistently to the phone numbers and prices, drawing attention to and promoting the phone service.
· The presenters use provocative language and suggestive actions to demonstrate to the viewer what the phone service provides. The presenters follow up these actions by speaking directly to the camera, including direct verbal requests to the camera to phone in, using phrases such as ‘call me’.
It is noted that the duration of the content is four hours and 43 minutes, which is considerably longer than the usual duration of a televised advertisement. However, Schedule 6 to the Act does not specify the minimum or maximum duration of content to qualify as advertising or sponsorship material.
Matters raised by Complainant One
Complainant One suggested that BabeTVlive could be a category A television program of the following types:
· a reality television program (subclause 13(1)(g) of Schedule 6 to the Act)
· a light entertainment or variety program (subclause 13(1)(i) of Schedule 6 to the Act)
· a quiz or games program (subclause 13(1)(k) of Schedule 6 to the Act).
Given that BabeTVlive is considered to be advertising material, the genre conditions do not apply under clause 18A of Schedule 6 to the Act. Consequently, it is not necessary to consider whether or not BabeTVlive is a category A television program under subclause 14(1) of Schedule 6 to the Act.
Issue 2: Classification
The issue for this part of the investigation is to determine whether BabeTVlive is compliant with the other conditions applicable to datacasting licences in terms of classification requirements.
Relevant legislation
The Act contains the following provisions that are directly relevant to the issue:
Division3 - Other conditions
24 General conditions
(1) Each datacasting licence is subject to the following conditions:
[...]
(e) the licensee will not transmit datacasting content that has been classified as RC or X 18+ by the Classification Board;
(f) the licensee will not transmit datacasting content that has been classified R 18+ by the Classification Board unless:
(i) the content has been modified as mentioned in paragraph 28(4)(b); or
(ii) access to the program is subject to a restricted access system (within the meaning of clause27);
[...]
Complainants’ submissions
In correspondence to the ACMA, received 11 October 2012, Complainant One submitted about the content transmitted by the licensee of QTQ:
This program is quite sexual and in some cases erotic (based on the poses and tone of voice of the female on the program). For this reason, it would be reasonable to assume it would attract an R rating from the Classification Board. The EPG provided to my TiVo STB has the program as “Unclassified” on QTQ. The same EPG for NBN provides no information whatsoever for any program on Extra. Hence, there is no parental control or restricted access system in place. I believe this breaches Schedule 6, Part 24 (f) (ii) of the BSA.