Investigation Report No. BI-000032

30 June 2015

Investigation Report No. BI-000032

Summary
File no. / ACMA – BI-000032
Licensee / TCN Channel Nine Pty Ltd
Station / TCN9
Type of service / Commercial TV
Name of program / Weekend Today - Trigger Topic (Segment)
Date of broadcast / 4 April 2015
Relevant code / Clauses 1.9.1 and 4.3.1 of the Commercial Television Industry Code of Practice 2010
Date finalised / 30 June 2015
Decision / No breach of clause 1.9.1 [proscribed matter]
No breach of clause 4.3.1 [accuracy]

Background

In May 2015, the Australian Communications and Media Authority (the ACMA) commenced an investigation into a segment on Weekend Todaybroadcast on 4 April 2015 by TCN Channel Nine Pty Ltd (TCN9).

The ACMA received four valid complaints about this program broadcast by TCN9. Each of the complaints relate to a segment, presented under the title ‘Trigger Topic’, which the complainants allegewas inaccurate and simulated news in such a way that it misled and alarmed viewers.

The complainants also submitted that lawful gun owners were vilified as a group by the broadcast. The clause of the Code that relates to vilification is clause 1.9.6:

A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances,to 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;

Aslawful gun owners are not a person or group covered by the clause, it does not apply in this matter and is not investigated.

The program

Weekend Todayis a breakfast television current affairs program broadcast on weekends between 7:00 am and 10:00 am on the Nine Network.[1] The program comprises a mix of news (local and national), sports, weather, entertainment and current affairs, and predominantly focuses on the first news of the day. The program also features topics including consumer affairs, health, politics, education, fashion, and the business/finance world.[2]

Submissions

The complainant’s submissions, which are identical, are at AttachmentA and the licensee’s submissions are at AttachmentB.

Assessment

This investigation is based on submissions from the complainants and the licensee of TCN9 and a copy of the broadcast provided to the ACMA by the Nine Network.

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 or viewer.

Australian courts have considered an ‘ordinary reasonable’ 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.[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: Simulation of news

Relevant Code provision

The ACMA has investigated the broadcast material against the following provision of the Code:

1.9A licensee may not broadcast a program … which is likely, in all the circumstances, to:

1.9.1simulate news or events in such a way as to mislead or alarm viewers.

Finding

The licensee did not breachclause1.9.1 of the Code.

Reasons

The Code prohibits commercial television licensees from broadcasting a program, which is likely, in all the circumstances, to simulate news in such a way as to mislead or alarm viewers. The words ‘likely in all the circumstances’ impose an objective test[4]and imply a real and not remote possibility; something which is probable will satisfy this test.[5]

In this case, the ACMA is required to assess whether the program material simulated news or events and, if it did, whether the simulated news or event was likely to have misled or alarmed viewers.

The Macquarie Dictionary defines ‘simulate’ as follows:

1.to make a pretence of.

2.to assume or have the appearance of.

The complainants submitted that the use of footage of fully automatic machine guns, military rifles and other items to accompany the interview about gun permits in Australia, would have caused viewers to think that these weapons are available to holders of gun permits.

The segment was a live-to-air interview about gun licensing arrangements in Australia, which included footage of firearms and people using firearms.

The interview covered a topical issue but there was nothing in the audio that would have suggested the segment was covering or pretending to cover news or events. The accompanying footage was clearly file footage and also did not appear to cover news or events.

The segment did not simulate or pretend to be a news itemor event. Therefore, it is not necessary for the ACMA to assess whether the broadcast misled or alarmed viewers for the purposes of clause 1.9.1 of the Code.

Accordingly, the licensee did not breach clause 1.9.1of the Code.

Issue 2: Presentation of factual content and representation of viewpoints in news and current affairs

Relevant Code

The ACMA has investigated the broadcast material against the following provision of the Code:

4.3In broadcasting news and current affairs programs, licensees:

4.3.1must present 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 4.3.1of the Code.

Reasons

The complainants submitted that broadcasting images of guns that cannot be obtained in Australia during a segment concerning the increase of gun permits being granted in NSW, was inaccurate and misled viewers into thinking these weapons are available to gun permit holders. The complainants also submitted that the images of gun stores in the United States and references to gun violence in the United States misled viewers into believing that there would be an increase in gun related violence.

The complainantsfurther submitted that the footage of police handling guns at what appeared to be a crime scene during the segment was irrelevant to a story about legal firearm ownership in Australia. During this scene, the presenter states, when referring to the increase in the number of gun licences, ‘with police blaming a trend in our culture rather than a rise in crime'. The complainants submittedthat the use of the word ‘blame’ was suggestive and portrayeda false representation of lawful gun ownership in Australia.

The licensee submitted that the allegation that images of guns that are not available to gun licence holders was misleading or inaccurate was unfounded, as the segment did not include any statement supporting or implying this. In the context of the segment in its entirety, the images and footage were presented accurately.

The segment is primarily an interview between Senator Leyonhjelmon his property in Mudgee NSW and Cameron Williams (the presenter) in the host studio. During the segment, the title - ‘Trigger Topic: Gun licences increase in NSW by 37,000’ isdisplayed when Senator Leyonhjelm is on screen.

There are three separate instances where footage of guns is broadcast:

1. At the introduction to the segment, images depicted are:guns being tipped froma truck; an image of guns displayed on a table (including a rocket launcher, a tripod mounted machine gun, light machine guns, assault weapons and pistols), footage of police at a crime scene picking up handguns and rifles.

Thisfootage accompaniesaudioincludingthe presenter introducing the segment and providing background information about the number of gun permits allocated in NSW. Senator David Leyonhjelm is introduced as someone who ‘backs the rights of Australians to carry guns’.

1. In the second instance of guns broadcast, the images depicted are: a man holding a sporting rifle; a hand holding a revolver with a vintage machine gun in the background on a table; close ups of a revolver, a machine pistol and pistols on a table.

This footage accompaniesaudio of Senator Leyonhjelmanswering a question as to why it is preferable for guns to be secured in the home, rather than a central repository or armoury.The discussion refers to break-ins to military and police armouries, suggestingthat stolen weapons will include military as well as domestic weapons.

1. In the third instance of guns broadcast, images depicted are:a man throwing rifles onto a pile of guns; a large pile of guns; a man throwing rifles into a bin; a man throwing rifles into a furnace; the interior of a gun store; guns being tipped out of a truck; people holding guns in a gun store; a woman firing a pistol and dropping it; a woman firing a shotgun and falling over; a man firing a pistol at an indoor range; the interior of a storage unit containing multiple rifles and handguns, with an attendant holding a tagged pistol; guns in storage shelves.

This footage accompanies audio of a response by Senator Leyonhjelmto a question about gun ownership. The presenter initially speaks about the perceived success of the gun buyback schemeintroduced following the Port Arthur massacre,in ‘cleaning up unnecessary guns’.

The presenter then states that certain sections of the US are sick of the gun violence thereand asks Senator Leyonhjelmwhy Australians should be allowed to carry guns. Senator Leyonhjelm answers by stating the idea that more guns equals more gun violence is an over-simplification of the issue. He refers to the experiences of other countries as proof the claim is unsupported. The countries referred to are Mexico, withvery stringent guns laws but a higher gun violence rate than the United States, Switzerland with more guns per head of population than the United States but lower gun violence rate, and New Zealand, with more liberal gun laws than Australia but with a similar gun violence rate.

Senator Leyonhjelmcontinues, stating that there is no direct correlation between the number of guns in a society and violence generally and that, overall, gun violence is a social issue. Senator Leyonhjelmnotes that the reduction of guns has not eliminated mass murders in Australia,which have still occurredthough different means.

Accuracy

When assessing material against the accuracy obligation atclause 4.3.1 of the Code, the ACMA must first determine if the relevant broadcast material is factual. Some considerations which the ACMA generally applies in assessing whether particular broadcast content is factual in nature are set out in Attachment C.

In this case, during the interview between the presenter and Senator Leyonhjelmthey make several assertions that are factual in nature. These statements are specific, unequivocal and capable of independent verification and include the following:

that 37,000 new permits have been allocated in the last five years in NSW;

that weapons are more safely secured in the home; that segments of US society are sick of gun violence;

the gun buy-back scheme reduced gun violence in Australia;

that there have been no gun massacres in Australia since the gun buy-back scheme; and

that evidence suggests that increased gun ownership does not necessarily correlate to an increase in gun related crime.

The context of the segment is an interview about gun ownership in Australia. In introducing the segment, the presenter notes that 37,000 gun permits had been allocated and then interviews Senator Leyonhjelm. The interview expands beyond the initial statement to touch on a number of issues relevant to the subject, including break-ins from armouries, the Port Arthur massacre, the possibility of increased gun violence in Australia, the experiences of other countries, including the United States, with gun ownership and the underlying reasons that gun violence occurs.

There is no allegation that these factual matterswere not accurately broadcast.

The ACMA considers that the images included in the footage touched on the matters being discussed in the interview. They would have been understood by the ordinary reasonable viewer as part of file footage broadly illustrating the subject matter rather than separate, specific factual assertions about the types of firearms available to gun permit holders. At no point was the issue of the types of guns available to permit holders discussed. None of the comments from the presenter or Senator Leyonhjelm concerned the types of guns made available to licence holders in Australia and this issue was not otherwise discussed.

In the context of the segment in its entirety, the images broadcastwould not have misled viewers into believing that the range of firearms depicted was obtainable on a legal gun permit in Australia.

The word ‘blame’,in the introductory reference to the increase in the number of permits,was used in the sense of ‘attributed’. The presenter was stating that police attributed the increase to a trend in our culture rather than an increase in crime. The word ‘blame’ was not a factual assertion that could have misled viewers for the purposes of clause 4.3.1.

The reference to gun violence in the United States, in the presenter’s interview with Senator Leyonhjelm,included the hyperbolic statement that Americans were sick of guns. This was framed as part of a question and was not a separate factual assertionto which clause 4.3.1 would apply.

Viewpoints

When assessing whether there has been a fair representation of viewpoints in terms of clause 4.3.1, the ACMA considers the representation of viewpoints expressed (e.g. opinions or views) during the segment. The requirement in the Code is that the program must represent the viewpoints that are given in the program fairly. It does not require a program to include all viewpoints on a particular issue. Current affairs programs are permitted to take a particular editorial stance and to favour a particular viewpoint.

Senator Leyonhjelm was the only interviewee who provided viewpoints. There was no complaint that his views were unfairly represented. In the segment, the presenter put a series of questions to the Senator who was afforded the opportunity to provide his views on-air clearly and completely. He put the case for gun ownership clarifying the reasons why gun licences are sought, including for hunting and target shooting, and he made it clear that guns are not available for self-defence in Australia.

In this way he corrected any misapprehensions that might have been held by viewers as to the type of guns available in the community. The ACMA has not been provided with information to suggest that his views were misrepresented. As the interview was conducted live-to-air, it does not appear that the viewpoints of the presenter or the Senator were misrepresented or presented out of context in the sense contemplated by the Code.

Accordingly, the licensee did not breach clause 4.3.1 of the Code.

Attachment A

Complainant’s submissions

The following was submitted to the licensee by the four complainants. Three of the complaints were submitted on 5 April 2015 and one was submitted on 7 April 2015.

The segment that aired on April 4 2015 entitled 'Trigger Topic' was in relation to lawful gun ownership and given a short description by channel 9 as 'There's been a dramatic rise in the number of people applying for gun licenses in Australia over the past 5 years'

I understand that in accordance with section 1.9.1 'Proscribed Material' of the Commercial Television Industry Code of Practice 2010, a licensee may not broadcast a program which is likely, in all the circumstances, to simulate news or events in such a way to mislead or alarm viewers.

I believe channel 9 has clearly and intentionally mislead viewers on the following grounds:

1- In the start of the program the host says 'now there's been a dramatic increase in the number of people applying for gun licenses in Australia over the past 5 years, an extra 37 thousand gun permits were granted, 37 thousand gun permits granted in New South Wales!' This was accompanied by the Today logo on screen displaying the words 'Trigger Topic' as the images shown were of fully automatic machine guns, military rifles and other items that cannot be held by any citizen in Australia for sports, target or recreational shooting. Any person watching this, is immediately misled to believe that these items are in fact obtainable on a legal gun permit and further alarm is caused by viewers being misled to believe that members of the public have been granted permits to possess these machine guns. The media are in possession of footage showing licensed law abiding shooters using their sporting firearms responsibly at accredited ranges and in the field. Why did channel 9 choose to show footage of illegal firearms that have been taken from a police seizure when criminal ownership of firearms has absolutely no relevance to the topic of the program, which is legal permits being issued to licensed law abiding firearms owners?