Investigation Report No. 3171
File no. / ACMA2014/150Licensee / Harbour Radio Pty Ltd
Station / 2GB
Type of service / Commercial radio
Name of program / Alan Jones Breakfast Show
Date of broadcast / 21 November 2013
Relevant Code / Clauses 2.2(a) and 2.3(a) of the Commercial Radio Australia Codes of Practice & Guidelines 2011
Date finalised / 18 June 2014
Decision / No breach of clause 2.2(a) [factual accuracy]
No breach of clause 2.3(a) [distinguish factual material]
The complaint
On 13 February 2014, the Australian Communications and Media Authority (the ACMA) commenced an investigation into a broadcast of the radio program The Alan Jones Breakfast Show, broadcast on 21 November 2013 by Harbour Radio Pty Ltd, the licensee of 2GB (the licensee).
The complainant submitted that the broadcast had contained inaccurate material, that factual material was indistinguishable from commentary or analysis and that the viewpoint of the Australian Broadcasting Corporation (ABC) Managing Director, Mr Mark Scott, had been misrepresented.
The ACMA has considered the licensee’s compliance with clauses 2.2(a), 2.3(a) and 2.3(c) of the Commercial Radio Australia Codes of Practice & Guidelines September 2011 (the Code).
The program
The Alan Jones Breakfast Show is broadcast weekdays on 2GB from 5.30 am to 9.00 am. It is presented by Mr Alan Jones, who is described on the program’s website in the following terms:
Australia's most popular talkback presenter, Alan Jones is a phenomenon. He's described by many as the nation's greatest orator and motivational speaker. Alan has the mind and capacity to make complex issues understandable to the largest Breakfast audience in Australia.[1]
A substantial element of the program is talkback with listeners. The program also includes news, commentary by Mr Jones, discussions and interviews relating to current events.
On 21 November 2013, for 13 minutes Mr Jones discussed matters that had recently been published by both the ABC[2] and British newspaper The Guardian,[3] detailing that Australian intelligence agencies had attempted to monitor communications between high-ranking Indonesian officials.[4] This had ostensibly occurred under the previous Rudd Government. The information had apparently been provided to The Guardian by former US Central Intelligence Agency employee and National Security Agency contractor, Edward Snowden.[5]
Mr Jones was critical of both the ABC and The Guardian for having published the information, arguing that it compromised national security. He also gave his views on the relationship between Australia and Indonesia, as well as on the role of intelligence agencies more generally.
Relevant extracts from the segment can be found at Attachment A.
Matters not pursued
The complainant cited clause 2.3(c) of the Code in his complaint[6], arguing that ‘the viewpoints expressed by Mr Alan Jones were misrepresented as the information supplied by Mark Scott to the committee was omitted from the broadcast’.
Clause 2.3(c) of the Code concerns the obligation to ensure that ‘viewpoints expressed to the licensee for broadcast are not misrepresented…’ As Mr Scott was not quoted or interviewed during the segment, the ACMA considers that the clause does not apply.
Accordingly, the ACMA has not included an assessment of clause 2.3(c) of the Code in this investigation report.
To the extent that Mr Scott’s viewpoint was represented during the broadcast, the ACMA has considered the accuracy of this representation at Issue 1 below.
Assessment
This investigation is based on an audio recording of the broadcast provided by the licensee as well as submissions provided by both the licensee and complainant.
Other sources consulted are identified where relevant.
‘Ordinary, reasonable’ listener test
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’ listener.
Australian courts have considered an ‘ordinary, reasonable’ reader (or listener or 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[7].
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 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 broadcast, it then determines whether or not that material has breached the Code.
Issue 1: Factual accuracy
Relevant Code clause
2.2 (a) In the preparation and presentation of current affairs programs, a licensee must use reasonable efforts to ensure that factual material is reasonably supportable as being accurate.
In determining whether or not a statement complained about was factual material for the purposes of this provision, the ACMA takes into account the considerations set out at Attachment B.
Complainant’s submissions
The complainant submitted the following:
Specifically, Alan Jones made the claim that the ABC and Mark Scott, the Managing Director of the ABC, had the information pertaining to the spying allegations before the 2013 election but withheld this information until after the 2013 federal election to favour the Labor Party.
However, it was widely reported in several newspapers on Wednesday, 20th November that Mr Mark Scott had informed the Parliamentary Communications Legislation Committee (the Committee) that the ABC had only received the information from the Guardian in the week beginning the 11th November. Alan Jones did not mention Mark Scott’s statement to the Committee. The strident manner and the number of times Mr Alan Jones repeated the statement that the ABC had withheld the information on the spying allegations would lead a reasonable listener to conclude that Mr Alan Jones was presenting factual information not just an opinion.
Licensee’s submissions
The licensee’s submissions in relation to this clause can be found at Attachment C.
Finding
The licensee did not breach clause 2.2(a) of the Code.
Reasons
The ACMA considers that much of what Mr Jones said in the segment were expressions of opinion. These included his remarks in support of Mr Abbott, the nature of Australia’s relationship with Indonesia and his views on the reasons for their spying and intelligence gathering.
The ACMA has identified the following material (including points repeated by Mr Jones in the segment) as being relevant to the complaint:
…the ABC has chosen to release and give oxygen to the stolen documents secured by a former CIA computer specialist Edward Snowden – stole the documents from the US National Security Agency, has leaked them to selected left-wing journalists, and now – and that includes stories of spying on 10 high-ranking Indonesian officials when Kevin Rudd was Prime Minister. And the ABC Managing Director Scott, who in my opinion should’ve been sacked yesterday, and I’ll keep arguing that he should be sacked, told a Parliamentary Communications Legislation Committee earlier this week that it was in the public interest. And this is the public interest now.
…It’s clear that those Snowden leaks, stolen information, were in possession of The Guardian newspaper for months. And the editor of The Guardian is mates with the Managing Director of the ABC Scott, who should be sacked. Alexander Downer said it was passing strange that the story was not run prior to the election campaign. But of course, had it been run, it would have embarrassed Kevin Rudd rather than Tony Abbott.
…The ABC and The Guardian have basically acted like pirates and compromised a massive chunk of our intelligence gathering against one of our critical priority targets. At the minimum, Scott, the head of the ABC, should be sacked. The Managing Director, he calls himself, of the ABC. And there should be a Federal Police criminal investigation into how the ABC and The Guardian newspaper came into possession of these stolen materials and then decided to publish top secret documents. Those involved should be in prison.
… And this proves they’ll do anything – even publish stolen documents from a criminal CIA computer specialist, now a fugitive, hiding in Russia, and then white-ant Abbott and his government on the asylum-seeker issues and compromise our whole intelligence-gathering structure.
The Labor Party’s behaviour on this, the authors of the problem, their behaviour is beyond contemptible. But for the national broadcaster to justify the publication of these stolen documents borders on the treasonous. As I said yesterday, treason is the violation, by a subject, of allegiance to the nation. There are any number of defence and intelligence personnel who are fuming at the ABC’s involvement in this treason, and are arguing that Scott, the boss of the ABC, should be sacked immediately. No-one appointed Scott, or the ABC, to be in charge of disclosing intelligence information…
…
Alan Jones – Scott should be sacked as the Managing Director of the ABC, and we now need a national enquiry as to how they got hold of the documents, and why they did what they did with them.
Caller 1 – Alan, as I say, they’ve got no option but to do that. A crime has been committed, and as part of Tony Abbott’s oath of office, he’s gotta protect Australia and all of its secrets, whatever it does.
Alan Jones – Yeah, I mean, as I said to you, and let me repeat, cos I will be repeating it later [caller 1], that I’m reading from the Melbourne Age of November 15, 2004: ‘In an extraordinary admission, Indonesia says it bugged Australia’s embassy during the East Timor crisis and has tried to recruit Australians as spies’. And the retiring Indonesian Intelligence Chief said: ‘Well, you can say it’s a public secret, you know, a “secret”, but the whole public knows, this is quite common intelligence activity’. What was done is common intelligence activity.
This has been leaked in order to embarrass Abbott, when it in fact happened on Rudd’s watch. They were in possession of this material, if they were going to leak it, and it shouldn’t have been leaked, but if they were going to leak it, they were in possession of this in June. They’ve held over when Abbott and Morrison start to succeed on the whole boat issue, and this is now designed to deny Australia the advantage of Indonesian cooperation.
…
Caller 3 – Alan, do you think there was any tie-up with Mr Rudd resigning last week with this?
Alan Jones – How do you know? How would I know?
Caller 3 – It’s just interesting he’s out of Parliament now.
Alan Jones – Looks very smelly.
Caller 3 – Yeah.
…
It’s clear that those Snowden leaks were in possession of The Guardian newspaper for months. And the editor of The Guardian newspaper is mates with the Managing Director of the ABC Mark Scott, who should be sacked. Yesterday. Alexander Downer said it was passing strange that the story was not run prior to the election campaign. But of course, had it been run then, it would have embarrassed Kevin Rudd rather than Tony Abbott.
The ABC and The Guardian have basically acted like pirates and compromised a massive chunk of our intelligence gathering against one of our critical priority targets. At the minimum, Scott, the head of the ABC, should be sacked. The Managing Director, he calls himself, of the ABC. And there should be a Federal Police criminal investigation into how the ABC and The Guardian newspaper came into possession of these stolen materials and then decided to publish top secret documents. Those involved should be in prison.
…And this proves they will do anything – even publish stolen documents from a criminal CIA computer specialist, who’s now a fugitive, and then white-ant Abbott and his government on the asylum-seeker issue and compromise our whole intelligence-gathering structure.
The Labor Party’s behaviour on this, the authors of the problem, their behaviour is beyond contemptible, but that’s no surprise. But for the national broadcaster to justify the publication of these stolen documents borders on the treasonous. As I said yesterday, treason is the violation, by a subject, of allegiance to the nation. There are any number of defence and intelligence personnel who are fuming at the ABC’s involvement in this treason, and are arguing that Scott, the boss of the ABC, should be sacked, and sacked immediately. No-one appointed Mark Scott or the ABC to be in charge of disclosing intelligence information.
While Mr Jones made factual assertions regarding the timing of the release of the information, he also provided his personal viewpoints concerning the political motives behind the timing, and the appropriateness of its publication in Australia by the ABC.
The ACMA considers that the ordinary, reasonable listener would have understood the factual assertions to be that:
· the ABC had published information which had been sourced by Edward Snowden
· this included information about Australian surveillance on Indonesia carried out during the period of the Rudd Government
· the information had been in the possession of The Guardian newspaper for months.
· it was published by the ABC after the election.
These points are not in dispute.
The statements that Mr Scott should ‘in my opinion’ be sacked, the recount of Mr Downer’s viewpoint as to the timing of the publication by the ABC, Mr Jones’ statements that there should be an enquiry and a criminal investigation and those involved should be imprisoned, and that the material was ‘leaked’ in order to embarrass the Abbott Government were expressions of opinion. They were emotive, subjective and judgmental or speculative. Given the language, tenor and tone, and contextual indications from the rest of the segment, the ACMA considers that the ordinary reasonable viewer would not have understood these statements as the presentation of factual material.
In the exchange with caller 1, Mr Jones said ‘they were in possession of this material…in June’. The ABC was not referred to at this point. It might be inferred that ‘they’ refers to the ABC. However, in the context of the segment as a whole, the ACMA is satisfied that the ordinary, reasonable listener would be more likely to have understood that this was a reference to The Guardian as Mr Jones had earlier claimed that it had been in possession of the information ‘for months’.