Investigation Report No. 3318
File no. / ACMA2015/101Broadcaster / TCN Channel Nine Pty Ltd
Station / TCN-9 [Sydney]
Type of service / Commercial Television
Name of program / A Current Affair
Date of broadcast / 11 August 2014
Relevant legislation/code / Commercial Television Industry Code of Practice 2010
Date finalised / 16 April 2015
Decision / No breach of clause 1.9.6 [proscribed matter]
No breach of clause 4.3.1 [accuracy]
Background
In February 2015 the Australian Communications and Media Authority (the ACMA) commenced an investigation into a segment on A Current Affair broadcast by TCN Channel Nine Pty Ltd (the licensee) on 11 August 2014.
The investigation was commenced in response to a joint complaint, made by lawyers on behalf of the Plymouth Brethren Christian Church (the Church)[1] and a family that belongs to the Church (the family). The complaint alleged that the segment ‘contained false and inaccurate material, and incited religious intolerance’.
The segment has been assessed in accordance with clauses 1.9.6 [proscribed matter] and 4.3.1 [accuracy] of the Commercial Television Industry Code of Practice 2010 (the code).
The program
A Current Affair is a 30 minute current affairs program hosted by Tracy Grimshaw and broadcast at 7 pm on weeknights on the Nine Network[2].
On 11 August 2014, the program included a segment on the relationship between the Church and a former member, following the former member’s estrangement from the Church and his family. In particular, the segment focused on the former member’s claims that he had been prevented from attending his mother’s funeral by the Church. The segment included interviews with the former member, Senator Nick Xenophon and a former Uniting Church Minister (and friend of the former member).
A transcript of the segment is at Attachment A.
Submissions
The complainant’s submissions are at Attachment B and the licensee’s submissions are at Attachment C.
Assessment
This investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.
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.[3]
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 of the material that was broadcast, it then assesses compliance with the code.
Issue 1: Proscribed material
Relevant code provision
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.
Reasons
In determining whether the licensee has breached clause 1.9.6, the ACMA must consider the following:
identification of the relevant person or group and the relevant ground
whether the broadcast was likely to have provoked intense dislike, serious contempt or severe ridicule against the relevant individual/group on that ground.
The complaint is that the segment ‘incited religious hatred by virtue of its inaccurate and “sensationalist” reporting of the Church’.
The ACMA notes that the complainant also submitted to the licensee that ‘the Church and its members have been the subject of a number of “hate crimes” which more often than not coincide with stories broadcast by A Current Affair concerning the Church’.
The licensee submitted that:
[it] denies that the [segment] provoked or perpetuated dislike, contempt or ridicule against any person or group of persons (including members of the Church or the Church itself) on the basis of religion (or any of the other specified grounds) let alone meet[s] the high benchmark set by the code and ACMA.
The relevant person or group of persons and the relevant ground
The Church describes itself as a ‘“Brethren” – a community of families held together by our common Christian belief.’[4]
The segment referred repeatedly to the Church and the beliefs of its members. It was made clear in the segment that the community was by its nature a religious one. Further, the segment predominantly comprised claims by a former member of the Church, often against the Brethren leader, and it was central to the segment that the former member’s estranged family remained members of the Church.
Therefore, the ACMA is satisfied that the relevant group is the Church and the relevant ground is religion for the purposes of clause 1.9.6 of the code. The Brethren leader, as a clearly-identified member of the Church, was also a relevant person for the purposes of the clause.
Provoke or perpetuate
Incitement or provocation can be achieved through comments made about a person or group; there is no requirement that those comments include a specific call to action. There is no need for proof of intention to incite or that anyone was in fact incited.[5] The relevant conduct must have the capacity or tendency to incite others, in the sense of urging or promoting the audience to experience the relevant reaction. Conduct that merely conveys a person’s hatred of, intense dislike, serious contempt or severe ridicule towards a person is not unlawful.
There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.[6]
In deciding whether there has been a breach of clause 1.9.6 of the code, the ACMA considers whether an ordinary reasonable viewer would regard the programs as ‘likely, in all the circumstances’ to stir up, arouse, or call forth or to incite or stimulate serious contempt or severe ridicule.
The Macquarie Dictionary (Fifth Edition) includes the following relevant definitions:
serious adjective 5. weighty or important; 6. giving cause for apprehension; critical
contempt noun 1. the act of scorning or despising; 2. the feeling with which one regards anything considered mean, vile or worthless
severe adj 1. harsh, harshly extreme
ridicule noun 1. words or actions intended to excite contemptuous laughter at a person or thing; derision.
The ACMA considers that the requisite element of provocation or incitement was absent from the segment as there were no explicit terms of condemnation or engagement with the audience appealing to it to respond to the Church, its leader or members of the Church, with hatred, contempt or ridicule on the basis of their religion or religious practices. Further, the segment included a statement made by Senator Nick Xenophon that ‘the Exclusive Brethren are free to believe in whatever they want’, conveying to the ordinary reasonable viewer that religious beliefs alone were not a basis for criticism.
‘intense dislike, serious contempt or severe ridicule’
Clause 1.9.6 sets a high threshold for the likely effect of proscribed material. The definitions of ‘intense dislike’, ‘serious contempt’ and ‘severe ridicule’, set out above, indicate that the code contemplates a very strong reaction to the impugned material. It is not sufficient that the behaviour induces a mild or even strong response or reaction.
The segment was critical of the Church’s treatment of the former member, and those interviewed during the segment sought to present the Church and its leader in a negative light. However, the ACMA does not consider that critical reporting of the Church and its treatment of the former member reached the high bar of ‘provoking’ ‘intense’ dislike or ‘serious’ contempt or severe ridicule on the grounds of religion.
The segment presented a personal angle on the Church with its focus on the former member, in particular, his views on the Church leader and his perception of the role the Church and Church leader played in his estrangement from his family. Any criticism of the Church or the Church leader in the segment was directed at their alleged treatment of the former member, rather than for the Church’s religious beliefs.
The ACMA is not satisfied that the segment was likely to have provoked intense dislike, serious contempt or severe ridicule against members of the Church or Church leader on the basis of religion. Therefore, the ACMA finds that the licensee did not breach clause 1.9.6 of the code.
Issue 2: Accuracy
Relevant code provision
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.
The accuracy requirements under clause 4.3.1 of the code apply to factual material.
Finding
The licensee did not breach clause 4.3.1 of the code.
Reasons
In assessing material against clause 4.3.1 of the code, the ACMA must first consider whether relevant broadcast material is factual in nature. Some considerations which the ACMA generally applies in assessing whether particular broadcast material is factual in nature are set out at Attachment D.
If the material is factual in nature, the ACMA then assesses whether the factual material is accurate in the context of the segment in its entirety.
The ACMA has assessed the complaints about the accuracy of two representations in the segment to the effect that:
1. the former member was not allowed to attend his mother’s funeral
2. the former member was not allowed to view his mother’s body.
Representation that the former member was not allowed to attend his mother’s funeral
The complaint is that the former member’s statement that ‘they told me I’m not allowed to go to the funeral service, that I’m not allowed to go to the cemetery’:
implies that the Church, or the Family, or both, deliberately prevented [the former member] from attending his mother’s funeral. The Church and the Family refute this claim and state that [the former member]'s father invited [the former member] to the burial service, but [the former member] chose not to attend.
The segment also relevantly included the following statements:
by the former member:
o He's cancelled the funeral. And they haven't said when it's going to be, because they're determined to hold it when I don't know that it's being held, so that I can't attend my mother's funeral.
by the former Minister:
o I think it's sad when somebody in a Christian church can't attend their mother's funeral.
by the presenter (at the end of the segment):
o A statement from the church is on our website. The church doesn't deny keeping the details of [the former member]'s mother's funeral from him. [The former member] maintains he was told he was banned from attending.
by the reporter:
o And today, he's been banned from attending his own mother's funeral.
o What sort of an organisation stops a son attending his own mother's funeral?
o He plans to follow the coffin to the church because he's been told he won't be allowed to attend his own mother's funeral.
o A week later, we return to the cemetery to find that [former member]'s mother has been buried. He wasn't told.
by Senator Xenophon:
o How can a religion prevent a son from going to his mother's funeral?
The licensee submitted that:
[the former member]’s claims in respect of the circumstances relating to his mother’s funeral were reported from his viewpoint. As at the time of broadcasting the Report, [the former member] maintained that he was told he was banned from attending the funeral. The presentation of [the former member]’s opinions and claims in the Report were easily and readily distinguishable to the ordinary reasonable viewer from the factual material presented in the Report.
As noted at Attachment D, distinguishing between factual material and other material, such as opinion, can be a matter of fine judgement.
Under the code, current affairs programs may adopt a particular stance on an issue, so long as any factual material included is accurate. In this case the segment took a critical stance in relation to the Church’s treatment of the former member.
In the context of the segment in its entirety, the ordinary reasonable viewer would have understood that the former member’s statement was a very personal and subjective account of events surrounding his mother’s funeral. In this regard:
the statement included the phrase ‘they told me…’, language which tends to indicate that content is contestable and presented as subjective account or personal judgement
the segment gave context to the estrangement between the former member and the Church which included the breakdown of the former member’s marriage and a family business in which the former member was no longer involved
the presenter’s reference to the Church’s statement at the conclusion of the segment reinforced that the former member’s account of events was subjective and contestable
statements made by the reporter and other interviewees in the segment were referable to views expressed by the former member during the segment.
The ACMA concludes that the comments by the former Minister and Senator Xenophon were expressions of opinion. They were framed as rhetorical questions or used language indicating they were observations on the former member’s claims and not assertions of incontrovertible fact. The presenter’s and reporter’s statements reflected the former member’s account but made it clear that it was disputed. They did not separately assert or reinforce the former member’s account to the extent that they would have been understood as separate factual assertions, or proof of his claims.