Investigation Report No. 2929
File No. / ACMA2012/1693Licensee / Festival City Broadcasters Pty Ltd
Station / 5AA Adelaide
Type of Service / Commercial Radio
Name of Program / Bob Francis
Dates of Broadcasts / 17and 30 August 2012
Relevant Code / Clauses 1.3(a), 2.3(d)and 5.5 of the Commercial Radio Australia Codes of Practice 2011.
Date Finalised / 15 July 2013
Decision / No breach of clause 1.3(a) of the Commercial Radio Australia Codes of Practice 2011 in relation to the 17 August 2012 broadcast;
No breach of clause 2.3(d) of the Commercial Radio Australia Codes of Practice 2011 in relation to the 17 August 2012 broadcast;
No breach of clause 1.3(a) of the Commercial Radio Australia Codes of Practice 2011 in relation to the 30 August 2012 broadcast;
No breach of clause 2.3(d) of the Commercial Radio Australia Codes of Practice 2011 in relation to the 30 August 2012 broadcast; and
Breach of clause 5.5 of the Commercial Radio Australia Codes of Practice 2011.
The complaint
On5 December 2012, the Australian Communications and Media Authority (the ACMA) received acomplaintaboutmaterial broadcastby Festival City Broadcasters Pty Ltd, the licensee of 5AA Adelaide on the Bob Francisprogram.Itconcerned ‘unjustified language’ and ‘privacy issues’ in broadcasts aired on the 17 and 30 August 2012.
The investigation has considered the licensee’s compliance with clauses 1.3(a) [standards of decency], 2.3(d) [privacy] and 5.5 [complaints handing] of theCommercial Radio Australia Codes of Practice & Guidelines 2011 (the Code).
The program
Bob Francis(the Program) is a talk-back, current affairs program presented by Bob Francisand broadcaston weeknights between 8:00pm and 12:00am on 5AA in Adelaide.
Broadcast of 17 August 2012
On 17 August 2012,following a conversation discussing Wikileaks founder Julian Assange, the presenter, Mr Francis, made the following comment in response to a call from the complainant:
11.19pm:Oh, make up your bloody mind! Goodbye. That’s two wankers in a row! Un-bloody-believable. Make up your mind! Hello [R]...
Subsequently, another caller phoned the station and expressed disappointment that Mr Francis had referred to the complainant as a ‘wanker’. The following exchange ensued:
11.36pm:Mr Francis – How dare you! Why? Shut your mouth! [Caller’s name], I won’t ever allow you to come on again if you start talking like that.
Caller – Well, ban me if you want to...
Mr Francis – Go to hell, see you later again, goodbye. How dare you tell me what I can say to other people! Nothing wrong with calling people a wanker, I can tell you that! Hi [L]...
Broadcast of 30 August 2012
On 30 August 2012 while the Program was on air, the complainant sent emails to Mr Francis complaining about the absence of talk-back on the Program.
Mr Francis then made the following comments:
Well, [full name of the complainant], I’ll mention your first name and your second name. I thought you were a nice lady to tell you the truth, but because I went off at you the other night for some reason which I can’t remember ‘cause I don’t remember every caller I get, for you to write me a note like you did tonight, you can go to hell [complainant’s name], don’t ever call me again. You’re supposed to be the lovely, nice, polite, sweet lady who always sends cards and do all those sorts of things, how dare you! You bitch! ... You want to talk to me? Talk to me live, don’t send me bloody notes about what you think about the program, you smartarse. Ugh! And tonight was bad enough, me getting into a bad mood with [M] not turning up on time and everything, that really bugs me sometimes...
Transcripts of the broadcasts can be found atAppendix A.
Assessment
The ACMA’s assessment is based on correspondencebetween the licensee and the complainant, submissions from the licensee to the ACMA and copies of the broadcasts provided by the licensee and sourced from Media Monitors. Other relevant 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 listener.
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]
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 assessing the accuracy 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 material broadcast, it is for the ACMA to determine whether there has been a breach of the Code.
Issue 1:Generally accepted standards of decency
Relevant Code Clause
Program Content and Language, including Sex and Sexual Behaviour
1.3(a) Program content must not offend generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of the relevant program.
1.3(b) For the purposes of determining:
(i)the audience of the relevant program; and
(ii)the demographic characteristics of that audience,
regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the prior 12 months, (or, in the case of any licensee service operating in regional areas, the most recent official ratings surveys for the licensee’s service).
Broadcaster’s submissions
The licensee’s submissions can be found at Appendix B.
Finding
The ACMA finds that the licenseedid not breach clause 1.3(a) of the Code in relation to the broadcasts of the Bob Francis program on 17 and 30 August 2012.
Reasons
Generally accepted standards of decency
Clause 1.3(a) requires the ACMA to consider the meaning of the phrase ‘generally accepted standards of decency’.
The objects of the Broadcasting Services Act 1992 (the BSA) include the promotion of the availability of a diverse range of radio services to audiences throughout Australia[2]. Another object is to encourage providers of broadcasting services to respect community standards in the provision of program material.
Determining the current consensus of recognised present day standards of decency is challenging because there is a range of standards within the community and there will always be different viewson these matters.
The ACMA acknowledges that such standards are not hard and fast either over time or across all sections of the community. Diverse audiences in Australia will not have everyday tastes and standards in common. The majority of people in the community are likely to accept that material that they find coarse or offensive may not be similarly judged by others.
‘Generally accepted standards of decency’ is a broad concept and is not only defined by material that might be considered ‘indecent’. In determining whether a breach of Code 1.3 has occurred, the ACMA must reflect on whether material, which may not be to everyone’s taste, so offends generally accepted standards that it is inappropriate for broadcast.
Previously, where the ACMA has found breaches of the decency provisions of the code it has reflected on a number of matters, including:
the subject matter or themes dealt with: for example, care needs to be taken with material that is sexually explicit or extremely sensitive[3];
the tenor or tone of the broadcast: for example, was it light-hearted or threatening;matter-of-fact or salacious[4];
the language used in the broadcast: for example, was it abusive, profane, vulgar or lewd[5]; and
the attitudes conveyed: for example,did it show contemptuous disregard for human life or suffering[6].
Demographic characteristics of the Program audience
Clause 1.3(a) of the Codes requires the ACMA to have regard (though not sole regard) to the demographic characteristics of the audience of the Program.Pursuant to clause 1.3(b) of the Codes, for the purposes of determining the audience of the relevant program and the demographic characteristics of that audience, regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the past 12 months.
The licensee provided the ACMA with Nielsen Survey results for the period 31 July 2011 – 1 September 2012. The Survey does not provide information about the audience of the Program but indicates that the majority of the licensee’s listeners across all of its programs are aged 55 years and over.
One of the relevant characteristics of the audience of a program would be the likely expectations of that audience. In that regard, it is considered that the Bob Francis audience would be familiar with his presentation style.
However, information about age and the audience’s familiarity with the Bob Francis program does not necessarily indicate attitudes of that group to the material that was broadcast on 17 and 30 August 2012.
Broadcast of 17 August 2012
On the broadcast of 17 August 2012, the licensee submitted:
Whilst we acknowledge that Bob was frustrated and appeared agitated with [the complainant] and the previous caller, and the use of the word ‘wanker’ is not to everyone’s liking, this kind of reaction to a hot topic is not unusual or unexpected to Bob’s listeners. On the contrary, Bob’s listeners expect and encourage this kind of showmanship and puffery. Notwithstanding this, we do not condone the use of derogatory language, however note that it is part of the show and, when heard in context, we do not believe that it is in breach of Code 1.3.
Broadcast of 30 August 2012
In relation to the broadcast of 30 August 2012, the licensee submitted:
[After briefly discussing the chain of events in relation[to] the exchange of emails between the licensee and the complainant]... With respect, it appears that [the complainant]... effectively ‘egged’ Bob on, knowing that his response would be heated, that he would strongly disagree with her...... FIVEaa believes that the use of the word ‘bitch’ is inappropriate in most circumstances. There are instanceswhere the word has become part of a culturally acceptable vernacular. .. With respect to this particular circumstance, whilst we feel that [the complainant] did contribute to the situation and provoke Bob, and that this is not a breach of the Codes, Bob’s choice of words and reaction was inappropriate and should not have been broadcast. We have discussed this with Bob and set clear expectations with regard to this kind of scenario moving forward, as well as with respect to the language we consider inappropriate.
The ACMA makes the following observations about the broadcasts of 17 and 30 August 2012:
- Mr Francis’s reactions(first to the complainant’s comments and later to her e-mail) were spontaneous and his comments were not calculated or premeditated;
- Hot-headed reactions are typical of Mr Francis’s presentation styleand would be familiar to his regular listeners;
- The term ‘wanker’, while having a crude meaning that would be offensive to some people, is also a colloquialism referring to ‘a foolish or objectionable person’[7] and was used only once in the broadcast of 17 August;
- The terms ‘bitch’ and ‘smartarse’ were each used only once in the broadcast of 30 August.
In this case, although the remarks made by Mr Francis in each broadcast were to some extent aggressive and distasteful, they were not sustained over the duration of the program and they did not become increasingly crude, aggressive and disrespectful or have a strong cumulative impact. The ACMA finds that the broadcasts did not contain material of the type which is inherently indecent, for example material that was sexually explicit or otherwise extremely sensitive, or seriously disrespectful of a person, or vulgar in its use of language, or which conveyed contemptuous disregard for human life or suffering.
Having regard to general standards of decency and the demographic characteristics of the program, the content broadcast did not contain elements that were so offensive as to breach those standards.
Therefore, the licensee did not breach clause 1.3(a) of the Code in relation to the broadcast of 17 and 30 August 2012.
Issue 2: Privacy
Relevant Code Clause
News and Current Affairs Programs
2.3In the preparation and presentation of current affairs programs a licensee must ensure that:
[...]
(d) the licensee does not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, unless there is a public interest in broadcasting such information.
In assessing a segment’s compliance with clause 2.3(d) of the Code, the ACMA also takes into account the ACMA’s ‘Privacy guidelines for broadcasters, 2011’ (the Privacy Guidelines).
Finding
The licensee did not breach clause 2.3(d) of the Code.
Reasons
Under the Code, current affairs programs include open-line discussions with listeners.
The ACMA’s Privacy guidelinesfor broadcasters, December 2011 set out the matters considered by the ACMA in assessing clause 2.3(d) of the Code:
- Was a person identifiable from the broadcast material?
- Did the broadcast material disclose personal information or intrude upon the person’s seclusion in more than a fleeting way?
If the answer to both of the above questions is yes, then the ACMA will consider:
- Was the person’s consent obtained?
- Was the broadcast material readily available from the public domain?
- Was the invasion of privacy in the public interest?
As is usual in talk-back radio, the complainant’s first name and voice was used in the broadcast of 17 August 2012. Accordingly, she was most likely to be identifiable from the broadcast material. However, other than her name and voice, no other personal information was disclosed.In any event, as a talk-back caller she willingly participated in the broadcast, allowing her name and voice to be aired,and would reasonably expect to be identifiable from the broadcast.Accordingly, the ACMA considers that the complainant’s consent was obtained for the purposes of clause 2.3(d) of the Code.
In the broadcast of 30 August 2012, Mr Francis specifically referred to the complainant by both her first and second names in response to an email she had sent for his attention complaining about his program. The ACMA considers that the complainant was identifiable from the broadcast for the purposes of clause 2.3(d).
However, the broadcastdid not reveal any personal information about the complainant, other than her full name, such as her address, her occupation or details of her personal life.The ACMA also does not consider that the broadcast material intrudedupon her seclusion.
Additionally the ACMA considers that by emailing Mr Francis, the complainant would have reasonably expected her email to be read out and her name to be disclosed. Accordingly the, the ACMA considers that the complainant’s consent was obtained for the purposes of clause 2.3(d) of the Code.
As such, the ACMA is satisfied that the licensee did not breach clause 2.3(d) of the Code.
Issue 3: Complaints handling
Relevant Code Clauses
Complaints
5.1For the purposes of this Part, a complaint is an assertion... that the licensee has broadcast matter which, in the opinion of the complainant, breaches these Codes. Complaints need not specify the particular section of the Code to which the complaint relates, but must adequately identify the material broadcast and the nature of the complaint.
Advice in writing
5.5Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45 business days of receiving the complaint.
Broadcaster’s Submissions
The licensee’s submissions in relation to this issue can be found at Appendix B.
Finding
Thelicensee breached clause 5.5 of the Code.
Background
Following each of the broadcasts of 17 August 2012 and 30 August 2012, the complainant wrote letters of complaint to the licensee. She did not formally assert that the Code had been breached in either letter.
On 20 August 2012, the licenseeresponded to the complainant, stating (amongst other things) that,‘whilst we feel the choice of words used by Bob was inappropriate and regretful in this instance, we do not believe that Bob or [FIVEaa] breached the [Code] or any other legal obligations by broadcasting the comments’.
On 5 September 2012, the licensee responded to the complainant’s second complaint, stating, ‘whilst we acknowledge that the comments may not be to everyone’s liking, and we accept that some Fiveaa listeners may not agree with the opinions expressed or the language used, we do not believe that the comments would offend generally accepted standards of decency for the purposes of the Code.’
It is noted that in each instance, the licensee advised the complainant that if she was not satisfied with its response, she could refer her complaint to the ACMA.
On 6 September 2012, the complainant wrote to the licensee again, this time expressly asserting breaches of the Code. This was done to ensure that her complaints would be treated as complaints for the purposes of clause 5.1 of the Code and section 148 of the Broadcasting Services Act 1992.
The complainant referred the matter to the ACMA and after some communications between the parties,the ACMA wrote to the licensee on 12 October 2012 making it clear that the complainant’s letter of 6 September 2012, which included a reference to the breaches of the Code, was the only valid complaint for the purposes of clause 5.1 of the Code;
The ACMA advised the licensee that clause 5.1sets out the definition of a complaint, the effect of which is that it must include a clear assertion that the station has broadcast matter which, in the opinion of the complainant, breaches a provision or provisions of the Code. The ACMA noted the decision of the Federal Court of Australia in the matter of Harbour Radio Pty Ltd v Australian Communications and Media Authority [2010] FCA 478), in which this requirement was made clear, and attached a copy of that decision. The ACMA advised that consequently, while Fiveaa had provided responses to the complainant’s earlier complaints, as those complaints had not been made in accordance with the Code, the responses could not be regarded as a response to a Code complaint.