Investigation report no. BI-171
Summary /File no. / BI-171 /
Licensee / WIN Television NSW Pty Ltd /
Station / Gem /
Type of service / Commercial television /
Name of program / Today /
Date of broadcast / 27 January 2016 /
Relevant code / Commercial Television Industry Code of Practice 2015 /
Date finalised / 29 April 2016 /
Decision / No breach of clause 2.3.3 [exercise care in selecting material for broadcast]
No breach of clause 3.2.1 [seriously distress or seriously offend] /
Opening
In February 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 170 of the Broadcasting Services Act 1992 (the BSA) into a complaint about Today broadcast on Gem by WIN Television NSW Pty Ltd on
27 January 2016.
The complaint alleged that a report featuring graphic images of a vehicle hitting a pedestrian in an accident in Britain, was ‘gratuitous’ and inappropriate for broadcast, particularly at a time when children may be watching.
The ACMA has investigated the broadcast material against clauses 2.3.3 and 3.2.1 of the Commercial Television Industry Code of Practice 2015 (the Code).
The program
Today is a breakfast television program described as:
Join Karl Stefanovic and Lisa Wilkinson for Australia's No.1 breakfast show as they bring the latest news, current affairs, sports, politics, entertainment, fashion, health and lifestyle.[1]
On 27 January 2016, at approximately 7.05 am, Today included a news report of approximately 30 seconds duration. The report was introduced by co-host Lisa Wilkinson who provided details about the accident as CCTV footage of the collision played onscreen.
A transcript of the news report is at Attachment A.
Assessment and submissions
When assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone, images and any inferences that may be drawn. 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.[2]
Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Code.
The investigation takes into account the complaint (at Attachment B) and submissions from the licensee (at Attachment C). Other sources are identified below.
Issue 1: Classification and proscribed material
Relevant Code provision
2. Classification and Proscribed Material
[…]
2.3.3 News Programs (including news flashes and news updates), Current Affairs Programs and Sports Programs and Program Promotions for news, Current Affairs or Sports Programs do not require classification and may be shown at any time, however a Licensee will exercise care in selecting material for broadcast, having regard to:
a) the likely audience of the Program or Program Promotion; and
b) any identifiable public interest reason for presenting the Program or Program Promotion.
[…]
Finding
The licensee did not breach clause 2.3.3 of the Code.
Reasons
To determine whether the licensee exercised care in selecting the material for broadcast, the ACMA has addressed the following questions:
Was the program a news or current affairs program?
What was the likely audience of the program?
What was the public interest reason for presenting the material?
The complainant submitted that the report contained a ‘graphic clip’ that was shown repeatedly and questioned the editorial decision to broadcast the material on the basis that it might prompt witnesses to the accident to come forward.
The licensee submitted:
[The footage] was not graphic in the sense of depicting any visible injuries (such as blood or close-up of injuries) or any prolonged or sustained violence […]. The predominant purpose of the program is to cover news and events that may be of interest to adults and as a consequence, predominantly attracts an adult audience […] the Reporter made clear the underlying public interest for the release of the footage, being the appeal for witnesses to come forward and assist the Police in their investigation.
The report featured black and white CCTV footage that depicts the moment of impact as a pedestrian steps off the footpath to cross the road and is hit by a car. The footage shows the collision in long shot from two different angles—facing the man and from behind the man. The images of the impact, from both angles, are repeated twice. There is no sound and the brief, low resolution footage had limited other detail.
The footage was accompanied by the voiceover narration of the presenter who provided succinct information in a factual manner that contextualised the visual images.
Was the program a news or current affairs program?
Under the Code, news and current affairs programs do not require classification and may be shown at any time. Material may be included in these programs that might not otherwise be permitted as long as the broadcaster complies with Code provisions to exercise care in selecting that material for broadcast.
The report was introduced as ‘footage of a hit and run accident’ and it was concluded by noting that the footage had been released by police in an attempt to locate witnesses who may know the driver.
The ACMA considers that the broadcast of an accident that was the subject of an ongoing police investigation was a news event. Further, the report was part of a news and current affairs program.
Exercise care in selecting broadcast material
The brevity of the report, the news context of the broadcast, its early broadcast time and the use of a warning indicates care in selecting the material. Regard must also be had to the likely audience and the public interest.
Likely audience
The ACMA accepts that, as a current affairs program broadcast early in the morning with news bulletins every half hour, Today predominantly attracts an adult audience. This was supported by data from the licensee showing that 3 per cent of the audience on 27 January 2016 watching Today in its licence areas were aged 0-15 years old.
Public interest
The licensee submitted that there were important public interest reasons for presenting the material including that:
serious offences are commonly reported in the news as viewers have a right to be informed of criminal activities and serious anti-social conduct
the matter involved a deliberate evasion of justice
the matter was the subject of an investigation and police had appealed for witnesses
The complainant did not agree that there was a public interest in the broadcast because the accident occurred outside Australia.
The ACMA accepts that there was some public interest in the broadcast, given that two weeks had elapsed since the accident and there was a possibility of witnesses to the crime viewing it in Australia.
There was also a broader, local public interest in broadcasting the material in raising awareness about the risks and harms posed to pedestrians and the need to be vigilant about pedestrian safety.
Although the incident occurred in Britain, it was noted in the report that the CCTV footage had been released by police for the purpose of locating potential witnesses. It was not clear whether the reference was to British or Australian police. However, given the possibility of witnesses in Australia and the relevance of reports highlighting pedestrian safety concerns, on balance, there was sufficient public interest for broadcasting the material.
The ACMA considers that the licensee exercised care in selecting the material for broadcast in the news report having regard to the likely adult audience and the public interest reasons for presenting it.
Accordingly, the licensee did not breach clause 2.3.3 of the Code.
Issue 2: News and Current Affairs
Relevant Code provision
3.2 Material which may cause distress
3.2.1 In broadcasting a news or Current Affairs Program, a Licensee must:
a) not include material which, in the reasonable opinion of the Licensee, is likely to seriously distress or seriously offend a substantial number of viewers, having regard to the likely audience of the Program, unless there is a public interest reason to do so; and
b) include a spoken warning before a segment that contains material which, in the reasonable opinion of the Licensee, is likely to seriously distress or seriously offend a substantial number of viewers having regard to the likely audience of the Program; and
[…]
d) exercise sensitivity in broadcasting images of or interviews with bereaved relatives or people who have witnessed or survived a traumatic incident; and
e) have regard to the feelings of relatives and viewers when including images of dead bodies or people who are seriously wounded, taking into account the relevant public interest.
Finding
The licensee did not breach clause 3.2.1 of the Code.
Reasons
Clause 3.2.1(a) Seriously distressing or offensive to a substantial number of viewers
Clause 3.2.1(a) prevents the inclusion of material in a broadcast that will have a serious impact on viewers, having regard to the likely audience of the program and the public interest.
The clause sets a high threshold for a breach as the material must be likely to seriously distress or offend a substantial number of viewers. The use of the adjectives seriously and substantial, contemplates a very strong response in a large number of viewers.
The visual depictions of the collision were impactful. However they established the gravity of the crime and conveyed the importance of apprehending the perpetrator. The repetition of both shots showing the collision from different angles and the man being thrown into the air and dragged along the road elevated the impact of the material such that it would have been likely to have resulted in some distress or offence to some viewers.
As noted above, the material was approximately 30 seconds in duration and lacked visual clarity, colour and sound. Beyond the presenter stating that the victim was seriously injured, it did not contain any vision of the nature or extent of the man’s injuries.
The ACMA does not consider that the material reached the high threshold of being likely to ‘seriously’ distress or offend a ‘substantial’ number of viewers.
As outlined at Issue 1, the audience was an adult audience and there was sufficient public interest in the use of the footage in the broadcast.
To the extent that the footage was likely to have distressed or offended viewers, given its news context, the nature of the audience and the public interest in its broadcast, the material did not breach clause 3.2.1(a) of the Code.
Clause 3.2.1(b) Warning before the segment
Where material would be likely to seriously distress or seriously offend a substantial number of viewers, having regard to the audience of the program, the Code requires a spoken warning before the segment.
As noted above, the material would have been likely to distress or offend some viewers. However, it did not reach the high threshold of likely serious distress or serious offence to a substantial number of viewers.
In any event, the report was accompanied by an explicit warning that ‘this vision is confronting’. The warning formed part of the presenter’s opening statement which also signalled the nature of the material by referring to the CCTV footage as ‘horrifying’.
As noted above, the nature of the audience was adult.
While it would have been preferable to complete the spoken warning before the CCTV footage commenced and prior to the vision of the collision, the warning was adequate given the nature of the audience.
Clause 3.2.1(e) Exercise sensitivity in broadcasting images of or interviews with relatives, witnesses or survivors of traumatic incidents
The news report did not include interviews with relatives or witnesses but it did contain images of the survivor of an accident. The survivor was located in Britain and would not have been expected see the footage as broadcast in Australia.
Noting the lack of proximity to the incident, the brevity of the footage and the absence of clarity, colour and sound, and the warning that was provided the ACMA considers that the licensee exercised due sensitivity in broadcasting the material.
Clause 3.2.1(e) Have regard to relatives and viewers when including images of seriously wounded people
The news report did not name the victim and his face was not visible. He would not have been identifiable to relatives from the footage.
Although the CCTV footage showed the impact of the collision it did not contain any injury or wound detail such as blood nor did it depict explicit physical pain or trauma. As noted above, it did not include sound and lacked visual clarity and colour, it included a warning and the use of the footage was justified in the public interest.
To the extent that feelings of viewers may have been affected, taking into account the relevant public interest the licensee had due regard for the feelings of relatives and viewers in broadcasting images of the victim.