Investigation Report No. BI-229

Investigation report no. BI-229

Background

In September 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 151 of the Broadcasting Services Act 1992 (the BSA) into two segments of the ABC News.

The segments were broadcast on ABC television by the Australian Broadcasting Corporation (ABC) on 26 July 2016 at 7.00 pm.

The ACMA received a complaint alleging harm and offence arising from the broadcast of footage showing a teenage boy being stripped naked.

The ACMA has investigated the ABC’s compliance with Standards 7.1 [harm or offence], 7.2 [warnings] and 7.5 [extreme sensitivity] of the ABC Code of Practice 2011 (revised in 2016) (the Code).

The program

ABC News is broadcast daily at 7.00 pm. It is described as:

Live across Australia, the latest from ABC News, following today's top stories and live coverage of events as they unfold. Plus comprehensive analysis and original reporting from ABC reporters around Australia and the world.[1]

On 26 July 2016, the program included two segments, titled ‘Shocked and Appalled’ that covered matters relating to the Don Dale Youth Detention Centre (the Detention Centre) in the Northern Territory and reports of alleged mistreatment of juvenile detainees at that Detention Centre some two years ago.

The news segments followed a Four Corners report on this matter, broadcast on the preceding day (25 July 2016), which triggered the Royal Commission into the Protection and Detention of Children in the Northern Territory, announced by Prime Minister Turnbull on 28 July 2016.[2] It is understood that the Four Corners report included extensive CCTV footage and other footage showing the alleged mistreatment of the juvenile detainees and interviews with some of the detainees depicted in the footage.[3]

The first segment (Segment 1) was approximately four minutes in duration. It focused on the responses of various politicians and included excerpts from the Four Corners report showing the use of force by Detention Centre staff against the juvenile detainees, plus repeated footage of a child detainee (Detainee 1) being pinned face down to the floor or on a mattress in a cell and stripped naked, showing buttock nudity.

The second segment (Segment 2) was also about four minutes in duration. It followed immediately from the first segment and included a written response from Detainee 1 thanking the Australian community for its support, comments from Detainee 1’s sister, and a spokesperson from the North Australian Aboriginal Justice Agency (NAAJA). Several excerpts from the Four Corners report of the CCTV footage shown in Segment 1 were repeated in Segment 2.

The ABC’s submission notes that Detainee 1’s lawyer ‘confirmed on ABC News 24 that [Detainee 1] consented to the images appearing on Four Corners and did so knowing that the images would be aired nationally’. His participation in the original Four Corners broadcast, and his public statement thanking the Australian community for its support also indicate that he consented to the presentation of this material.

Both segments also explored the extent to which Northern Territory and Federal Government officials were aware of allegations regarding events at the Detention Centre.

A transcript of the segments 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.[4]

Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Code.

This investigation has taken into account the complaint (at Attachment B) and submissions from the broadcaster (at Attachment C). Other sources are identified in this report where relevant.

Harm and Offence

Relevant Standards

Standards:

7.1 Content that is likely to cause harm or offence must be justified by the editorial context.

7.2 Where content is likely to cause harm or offence, having regard to the context, make reasonable efforts to provide information about the nature of the content through the use of classification labels or other warnings or advice.

[…]

7.5 The reporting or depiction of violence, tragedy or trauma must be handled with extreme sensitivity. Avoid causing undue stress to victims, witnesses or bereaved relatives. Be sensitive to significant cultural practices when depicting or reporting on recently deceased persons.

[…]

The ACMA also takes account of the relevant Principles set out in the Code. Of particular relevance in this context are the following Principles:

The ABC broadcasts comprehensive and innovative content that aims to inform, entertain and educate diverse audiences. This involves a willingness to take risks, invent and experiment with new ideas. It can result in challenging content which may offend some of the audience some of the time. But it also contributes to diversity of content in the media and to fulfilling the ABC’s function to encourage and promote the musical, dramatic and other performing arts. The ABC acknowledges that a public broadcaster should never gratuitously harm or offend and accordingly any content which is likely to harm or offend must have a clear editorial purpose.

The ABC potentially reaches the whole community, so it must take into account community standards. However, the community recognises that what is and is not acceptable in ABC content largely depends upon the particular context, including the nature of the content, its target audience, and any signposting that equips audiences to make informed choices about what they see, hear or read. Applying the harm and offence standard, therefore, requires careful judgement. What may be inappropriate and unacceptable in one context may be appropriate and acceptable in another. Coarse language, disturbing images or unconventional situations may form a legitimate part of reportage, debate, documentaries or a humorous, satirical, dramatic or other artistic work.

Finding

The ABC did not breach Standards 7.1, 7.2 and 7.5 of the Code.

Reasons

The complainant submitted:

I don't think it is appropriate to show video of the young boy being stripped naked on the news. I watched 4 Corners and was surprised his nakedness wasn't blurred out then. To repeat it on the news is unnecessary.

[…] repeated broadcasts of the video of the boy (at the NT detention centre) being stripped naked was unnecessary and continued the abuse plus may have satisfied paedophiles in some way. […] I can understand the decision to show this footage on the Four Corners programme but not the repeated broadcasts on the news. Also although they say he gave his consent there are instances where a person’s consent does not override the fact that an action is wrong and I am concerned this may be one of them. […].

The ABC responded to the complainant:

When covering these kinds of stories, ABC News often has to make the difficult decision about showing distressing images, in this instance the decision was made to show a few selected images from the footage to give audiences an understanding of the situation.[…]

[…] The Four Corners program documented the shocking treatment of children held in the Don Dale facility in the Northern Territory. It included CCTV footage of young detainees being stripped naked, assaulted and tear gassed.

In the hours and days after the Four Corners broadcast, the events occurring at the Don Dale facility, and the images themselves, were widely reported across various media outlets […] these images in particular galvanised politicians to respond to the actions being taken [at] the Don Dale facility. By 26 July, Prime Minister Malcolm Turnbull had announced a Royal Commission into the “mistreatment of children at the Don Dale centre”. In his remarks Mr Turnbull stated that he was “appalled by the images of mistreatment.”

The story was of great news value and the images were central to the story. Though the images were confronting, they were not shown gratuitously. The images used in the story were integral to the story itself.

Having regard to these matters, Audience and Consumer Affairs are satisfied that to the extent that the footage used would be likely to cause harm or offence there was sufficient editorial justification for the report. Furthermore, a clear warning was provided before the report which gave viewers sufficient information about the nature of the content in the report.

[…]

On July 26 [Detainee 1’s lawyer] confirmed on ABC News 24 that [Detainee 1] consented to the images appearing on Four Corners and did so knowing that the images would be aired nationally and would likely garner a lot of attention. Furthermore, [Detainee 1] released a letter to the Australian public thanking them for their support and thanked (among others) the ABC and Four Corners for “all the help in getting the truth out there to the public” […]

Compliance with Standard 7.1

To assess compliance with Standard 7.1, the ACMA has addressed the following:

1. Does the material have the intrinsic capacity to be likely to cause harm or offence?

If it has no capacity to be likely to cause harm or offence, then the matter ends there. But if the answer to question 1 is ‘yes’, then the following further questions arise:

2. What is the editorial context?

3. Does the editorial context justify the likely harm or offence?

1.  Does the material have the intrinsic capacity to be likely to cause harm or offence?

Both segments reported on the alleged mistreatment of juvenile detainees at the Detention Centre.

Segment 1 included excerpts from the Four Corners report of CCTV footage showing the use of force by Detention Centre staff against juvenile detainees. This included the following visuals:

  a young detainee pinned face down to the floor or on a mattress by several men and stripped naked, showing buttock nudity

  detainee[s] on the ground face down with their arms shackled behind their backs

  a detainee hooded and shackled to a chair

  a Detention Centre staff member using physical force against a detainee and knocking him to the ground

  detainees being handled with force and thrown into cells by Detention Centre staff.

Some of these visuals were repeated. For example, Segment 1 included six clips showing a detainee being stripped naked and being visibly distressed as a result of his treatment by Detention Centre staff, three clips showing a detainee or detainees face down with their arms shackled behind their backs and two clips showing a detainee hooded and shackled to a chair.

Various visuals from Segment 1 were also repeated in Segment 2, which included:

  two further clips showing a detainee pinned face down on a mattress by Detention Centre staff and stripped naked, revealing buttock nudity

  a clip of a hooded detainee being led into a cell by Detention Centre staff.

These visuals were impactful. Despite being sourced from CCTV footage and fleeting, they included sufficient detail to convey the nature of the alleged mistreatment. The youth that was stripped naked appeared to be emotionally distressed and disoriented as a result of his handling by Detention Centre staff.

Having a combined duration of about eight minutes, the sustained and repetitive use of these visuals over both segments elevated the impact of the material.

Accordingly, the ACMA considers that these visuals had the intrinsic capacity to cause harm or offence to viewers.

As the answer to this question is ‘yes’, the ACMA then asks the following further questions:

2.  What is the editorial context?

The ABC Code Principles set out above, note that the question of whether ABC content is acceptable to the community, largely depends on the particular context. Consideration of context includes the nature of the content, its target audience and any signposting that is available. Although the Principles say that disturbing images may form a legitimate part of reportage and debate, they also say that any content which is likely to cause harm or offence must have a clear editorial purpose.

The nature of the program

The purpose of ABC News is to report the ‘top stories of the day and provide live coverage of events as they unfold’, as well as to provide ‘comprehensive analysis and original reporting from ABC reporters in Australia and around the world’.[5]