Investigation Report No. 3184
File no. / ACMA2014/202Licensee / Channel Seven Melbourne Pty Ltd
Station / HSV - Melbourne
Type of service / Commercial television
Name of program / Today Tonight
Date/s of broadcast / 26 September, 29 October and 30 October 2013
Relevant Code / Clauses 1.9.6, 4.3.1, 4.3.10 and 4.3.11of the Commercial Television Industry Code of Practice 2010
Date finalised / 23 September 2014
Decision / No breach of clause 1.9.6 (perpetuating intense dislike, serious contempt or severe ridicule against a person on the basis of age or gender)
No breach of clause 4.3.1 (factual accuracy and fair representation of viewpoints)
No breach of clause 4.3.10 (portrayal in a negative light by placing gratuitous emphasis on age or gender)
No breach of clause 4.3.11 (correction of significant errors of fact)
The complaint
In March 2014, the Australian Communications and Media Authority (the ACMA) commenced an investigation into complaintsabout three segments ofToday Tonightbroadcast on 26 September2013 (segment 1), 29 October 2013 (segment 2) and 30 October 2013 (segment 3)by Channel Seven Melbourne Pty Ltd, the licensee of HSV – Melbourne (the licensee).
The complainant submitted that the licensee breached the following clausesof the Commercial Television Industry Code of Practice 2010(the Code):
1.9.6 A licensee may not broadcast a program…which is likely, in all the circumstances to provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or groups of persons on the ground of age…[or] gender
4.3.10 In broadcasting news and current affairs programs, licensees must not portray any person or group of persons in a negative light by placing gratuitous emphasis on age…[or] gender
4.3.1 In broadcasting news and current affairs program, licensees must broadcast factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program
4.3.11 In broadcasting news and current affairs programs, licensees must make reasonable efforts to correct significant errors of fact at the earliest opportunity.
The original complaint to the licensee about segment 1 was made more than 30 days after the broadcast date and was therefore not made in accordance withclause 7.2 of the Code.
The licensee responded to the complaint about segment 1 indicating that although it was not a valid complaint, as a courtesy, it had addressed thematters raised when responding in respect of the other two segments.
The ACMA has investigated the complaint about segments 2 and 3 under section 148 of the Broadcasting Services Act 1992 (the BSA). The ACMA has investigated the complaint about segment 1 under section 170 of the BSA, as it considers thatthe subject matter of the complaint about segment 1 is of genuine public interest.
The program
Today Tonight is a 30 minute current affairs program which, at the relevant dates,was broadcast to most cities and regional areas across Australia on weeknights on the Seven Network at 6.30pm.
All three segments dealt with the decision of the Monash City Council to seek expressions of interest in the sale of aged care facilities under its control.
Segment 1 (8 minutes) discussed the Council’sdecision to seek expressions of interest in selling the aged care facilities. It featured interviews with residents of the facilities, ratepayers andCouncillor Drieberg as well as footage from a Council meeting.
Segment 2(3 minutes) was broadcast on the eve of the Council’s final decision on the sale of the facilities. It featured interviews with residents, as well as footage from segment 1.
Segment 3(5 minutes 30 seconds) was broadcast after the Council decided to proceed with the sale of the aged care facilities. It featured interviews with residents, footage from outside the Council building prior to a Council meeting, and footage repeated from segments 1 and 2.
All three segments featured an introduction by a presenter, commentary by a reporter and numerous interviews. A transcript of each segmentis reproduced at Attachment A.
Assessment
This investigation is based on submissions on behalf of the complainant, submissions by and on behalf of the licensee, correspondence between the licensee and the complainant, and copies of the broadcasts provided by the licensee. Other relevant sources have been identified where used.
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’.
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].
The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images 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 conveyed by the material broadcast, it then assesses compliance with the Code.
Matters not pursued
Some concerns raised by the complainant relate tomatters not covered by the Code, and these have not been considered by the ACMA in this investigation. These include:
allegedly defamatory imputations in the broadcasts
allegations that licensee staffengaged in bullying and inappropriate conduct at the September 2013 Council meeting,and inappropriate and provocative behaviour at the October 2013 Council meeting.
The complainant has also claimed that in segment 2 it is alleged that the Councillors ‘work for corporations, not the tax payers’ and ‘put people a distant second to money’. Although the second segment refers to the residents as ‘stalwarts’ who have paid their taxes and ‘simply want a place that is not for profit’, it did not include statements to the effect claimed. Accordingly these allegations have not been investigated.
Clauses 4.3.11 and 4.4 of the Code
The complainant alleged a breach of clause 4.3.11 of the Code, which provides that licensees must make reasonable efforts to correct significant errors of fact at the earliest opportunity. In this case, the licensee has submitted that the segments did not contain any significant errors of fact and that it came under no obligation to correctunder clause 4.3.11. In all of the circumstances, the ACMA has decided not to pursue the complaint regarding this clause.
In correspondence to the ACMA, the complainant referred to a potential breach of clause 4.4 of the Code which requires the fair and impartial presentation of news. This matter was not raised with the licensee in the first instance. In any event, clause 4.4 applies only to ‘news programs’ and as Today Tonight is a current affairs program, it is not subject to the requirements in clause 4.4 of the Code. Accordingly, the ACMA has not examined the licensee’s compliance with this clause.
Issue 1: Provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person on the ground of age and/or gender
Relevant code provisions
Proscribed Material
1.9 A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to:
…
1.9.6 provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference.
Finding
The licensee did not breach clause 1.9.6 of the Code.
Complainant’s submissions
The complainant submittedthat in the segments, Councillor Drieberg was referred to as an ‘inexperienced’ Mayor, a ‘school girl’, and a ‘baby Mayor’, in breach of clause 1.9.6.
Relevant extracts from the complainant’s submissions are at Attachment B.
Licensee’s submissions
The licensee submitted that the expressions used in the segments did not meet the threshold for a breach clause 1.9.6 contemplated by the Code.
Relevant extracts from the licensee’s submissions are at Attachment C.
Reasons
In determining whether the licensee has breached clause 1.9.6, consideration must be given to the following:
identification of the relevant person or group and the relevant ground; and
whether the broadcast was likely to provoke or perpetuate intense dislike, serious contempt or severe ridicule against the relevant individual/group on that ground.
The relevant person or group of persons and the relevant ground
The complainant identified age and gender as the basis for the alleged breach of clause 1.9.6 of the Code.
The ACMA is satisfied that during each segment, Councillor Drieberg’s gender and age were referred to, including by the references cited by the complainant.
Accordingly, the ACMA is satisfied that the relevant person for the purposes of clause 1.9.6 in this instance is Councillor Driebergand that the applicable grounds are gender and age.
Provoke or incite
The ACMA must consider whether the ordinary reasonable viewer would have understood that they were being urged, stimulated or encouraged by the content to share or maintain feelings of dislike, contempt or ridicule (on grounds of the gender or age) in relation to Councillor Drieberg.
Incitement or provocation can be achieved through comments made about a person or group and there is no requirement for those comments to include a specific call to action. Similarly, there is no need to prove actual incitement or the intention to incite.[2]The question is whether the segments broadcast have the capacity or tendency to provoke or incite others, in the sense of urging or promoting the audience to experience intense dislike, serious contempt or severe ridicule.Conduct that merely conveys a person’s dislike, contempt or ridicule will not be enough to necessarily incite or provoke those same feelings in the audience.
There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.[3]
In general, the segments were critical of the Council, and Councillor Drieberg. The use of the terms ‘inexperienced’ Mayor, a ‘school girl’, and a ‘baby Mayor’ to describe her may have led the audience to question her competence and maturity. However, the ACMA considers that the requisite element of provocation was absent from each of the segments. There was no engagement with the audience urging, stirring up or stimulating it to share feelings of dislike, contempt or ridicule.
Intense dislike, serious contempt or severe ridicule
The ACMA also considers that the content did not reach the high threshold for the prohibited effects set out in clause 3.2.1.The language used in the segments was not inflammatory or sufficiently strong, extreme or vehement to arouse the strength of feeling contemplated at clause 1.9.6.
The words ‘intense’, ‘serious’ and ‘severe’contemplate avery strong reactionto the broadcast material. A breach is not found if the broadcast material induces a mild or even strong response or reaction.[4]
Even if the material was capable of provoking negative feelings in the audience, the references to ‘inexperienced’ Mayor, a ‘school girl’, and a ‘baby Mayor’ could not have reached the high threshold test of inciting intense dislike, serious contempt or severe ridicule of Councillor Drieberg. Nor was there a sustained or increasingly aggressive attack on the grounds of age or gender.
Accordingly, the licensee did not breach clause 1.9.6 of the Code.
Issue 2: Portray in a negative light by placing gratuitous emphasis on age and/or gender
Relevant code provisions
News and Current Affairs Programs
4.3 In broadcasting news and current affairs programs, licensees:
4.3.10 must not portray any person or group of persons in a negative light by placing gratuitous emphasis on age, colour, gender, national or ethnic origin, physical or mental disability, race, religion or sexual preference. Nevertheless, where it is in the public interest, licensees may report events and broadcast comments in which such matters are raised.
Finding
The licensee did not breach clause 4.3.10 of the Code.
Complainant’s submissions
The complainant submitted that the licensee breached clause 4.3.10of the Code as the Councillors, particularly Councillor Drieberg,were portrayed in a negative light because of their age and/or gender. The complainant submitted that in the segments,Councillors were referred to as ‘baby faced’ and that Councillor Drieberg was referred to as an ‘inexperienced’ Mayor, a ‘school girl’, and a ‘baby Mayor’.
Relevant extracts from the complainant’s submissions are at Attachment B.
Licensee’s submissions
The licensee submitted in response to the complainant that it was clear during the broadcasts that the comments were ‘merely opinions on Drieberg’s degree of experience’ and that the there was no unjustifiable or gratuitous emphasis on age or gender.
Relevant extracts from the licensee’s submissions are at Attachment C
Reasons
The questionsfor the ACMA arewhether the licensee portrayed the Councillors in a negative light and whether this occurred through placing gratuitous emphasis on age and/or gender.
Gratuitous is defined in the Macquarie Dictionary (Fifth Edition) as: ‘being without reason, cause, or justification’.
The segments refer to the age and gender of the Councillors, including by use of the statements cited by the complainant. The question is whether this was negative and whether the emphasis on age was ‘without reason, cause, or justification’.
All three segments concerned the Council’s decision to seek expressions of interest for the sale of aged care facilities and made a number of references to older people in this context. The licensee has submitted that the youth of the Councillors was used as acontrast to the age of the residents of the aged care facilities who disagreed with the Council’s decision. Therefore, the references to the relative youth of the Councillors, when compared with the elderly residents, was central to the reports. It also submitted that the single reference to ‘school girl’ was a comment on Councillor Drieberg’s lack of experience.
The ACMA accepts that this contrast was to some extent relevant to the segments. However, it considers that the main thrust of the segments were claims of an absence of a mandate and lack of consultation on theproposal for the sale of the aged care facilities, and criticisms over the procedures adopted by the Council. These were associated with the alleged incompetence and inexperience ofCouncillors. It was on these bases that Councillor Drieberg and the other Councillors were portrayed in a negative light.
Although the references cited by the complainant may have been unnecessary,the ACMA is not satisfied that these references alone were sufficient to find that the Councillors were portrayed in a negative light on the basis of their age or gender, rather than the Councillors’ actions on the proposed sale. The ACMA also notes that the broadcast did not build up a scenario in which negative associations accrued around the Councillors on the basis of age or gender through repetition or emphasis.
Accordingly, the licensee did not breach clause 4.3.10 of the Code.
Issue 3: Accuracy
Relevant code provisions
News and Current Affairs Programs
4.3 In broadcasting news and current affairs programs, licensees:
4.3.1 must broadcast factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;
4.3.1.1 An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.
Finding
The licensee did not breach clause 4.3.1 of the Code in respect of the broadcast of factual material.
Complainant’s submissions
The complainant claimed the licensee breached clause 4.3.1 of the Code in relation to statements broadcast by the licensee. These are listed at Attachment B.
Licensee’s submissions
The licensee submitted that not all the statements cited by the complainant are statements of fact, but many of the statements are opinions, including opinions of interviewees. The licensee submitted that any factual material in the segments was broadcast accurately.
Relevant extracts from the licensee’s submissions are at Attachment C.
Reasons
The first question for the ACMA to determine is whether material cited by the complainant is factual material. If the material is factual, the ACMA will consider whether it was broadcast accurately, having regard to the context of each segment in its entirety.
The considerations the ACMA uses in assessing whether broadcast material is factual are set out at Attachment D.
Category A: Statements that are not factual material
The complaint is that the following false, inaccurate and misleading allegations were made:
Segment 1
Councillors are 'cowardly', 'sneaky',‘have reached a new low that is disgusting’, conduct themselves with 'democracy, Monash style', ‘ignore’ and 'fob' ratepayers, and are motivated by 'money', 'greed' and 'secrecy'.
Councillor Drieberg cannot give 'a straight answer' to reporters and has 'her head firmly in the sand'.
Segment 2
Councillors are 'heartless',‘form policy on the run’,‘engage in shameful treatment of the elderly', are 'frightfully incompetent and a dismal excuse for a democracy',‘are incompetent’, ‘conduct themselves with Monash style democracy’, 'betrayed the voters’, and are 'dishonest'.
Segment 3
Councillors ‘are jokers whose political careers are over’.
The ACMA considers that, in the context of the relevant segment in its entirety, each of the statements quoted above werenot factual material. The statements are variously:
emotive, inherently subjective and judgemental (for example, ‘cowardly’, ‘dishonest’ and ‘incompetent’)
contain imprecise and hyperbolic claims (for example, ‘frightfully incompetent and a dismal excuse for a democracy')
not capable of independent verification (for example ‘Councillor’s careers are over’)
create an impression of rhetorical pronouncements rather than factual material (for example, ‘form policy on the run’)
While these statements may have been hurtful and sarcastic, given the context, language, tenor and tone of the segment, the ACMA considers that the ordinary reasonable viewer would not have understood the above statements made by the program presenter and reporter as the presentation of factual material.
As such, they are not subject to the accuracy requirements of the Code.