Investigation report no. BI-231
SummaryLicensee / Network Ten (Perth) Pty Limited
Station / TEN
Type of service / Commercial -—television
Name of program / Advertisement for the ‘notbornyet’ campaign byEmily’s Voice
Date of broadcast / 7 September 2016
Relevant legislation / Schedule 2 of the Broadcasting Services Act 1992
Date finalised / 22 February 2017
Decision / Breach of subclause 4(2) [identification of certain political matter] Breach of paragraph 7(1)(j) [comply with subclause 4(2)]
Background
In September 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 170 of the Broadcasting Services Act 1992 (the BSA) intothe broadcast of an advertisement for the ‘notbornyet’ campaign by the organisation Emily’s Voice (the advertisement).
The advertisement was broadcast on TEN by Network Ten (Perth) Pty Limited (the licensee) on 7 September 2016 at approximately 5.15pm.
The ACMA received a complaint allegingthat there was a failure to broadcast the required particulars immediately following the broadcast of political matter, namely the advertisement.
The ACMA has investigated the licensee’s compliance with subclause 4(2) of Schedule 2 to the BSA, which requires a licensee to cause the announcement of the required particulars immediately after broadcasting political matter at the request of another person, in a form approved in writing by the ACMA. Compliance with this provision is a licence condition
(paragraph 7(1)(j) of Schedule 2 to the BSA).
The advertisement
The advertisement is 30 seconds long and is part of the ‘notbornyet’ campaign by the organisation Emily’s Voice.
Adetailed description of the advertisement is atAttachment A.
Assessmentand submissions
When assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone, imagesand any inferences that may be drawn. 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]
Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the legislation.
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.
Issue: Identification of political matter
Relevant legislation
Schedule 2 to the BSA: Standard conditions
4Identification of certain political matter
(2)If a broadcaster broadcasts political matter at the request of another person, the broadcaster must, immediately afterwards, cause the required particulars in relation to the matter to be announced in a form approved in writing by the ACMA.
Clause 1 provides definitions of ‘person’, ‘political matter’ and ‘required particulars’:
person includes a political party, a corporation and any other association (whether incorporated or unincorporated).
political matter means any political matter, including the policy launch of a political party.
required particulars, in relation to a political matter that is broadcast, means:
(a)if the broadcasting was authorised by a political party:
(i)the name of the political party; and
(ii)the town, city or suburb in which the principal office of the political party is situated; and
(iii)the name of the natural person responsible for giving effect to the authorisation; and
(b)if the broadcasting of the political matter was authorised by a person other than a political party:
(i)the name of the person who authorised the broadcasting of the political matter; and
(ii)the town, city or suburb in which the person lives or, if the person is a corporation or association, in which the principal office of the person is situated; and
(c)the name of every speaker who, either in person or by means of a sound recording device, delivers an address or makes a statement that forms part of that matter.
7Conditions of commercial television broadcasting licenses
(1) Each commercial television broadcasting licence is subject to the following conditions:
[…]
(j) the licensee will comply with the requirements of clauses 3, 3A, 4, 5 and 6;
[…]
Finding
The licenseebreachedsubclause 4(2) of Schedule 2 to the BSA with respect to the broadcast of the advertisement and, as a consequence, breached the licence condition at paragraph 7(1)(j) of Schedule 2 to the BSA.
Reasons
In assessing compliance with subclause 4(2) of Schedule 2, the ACMA considers:
Was the advertisement political matter?
If so, was it broadcast at the request of another person?
If so, did the licensee cause the required particulars to be announced immediately afterwards in the form approved by the ACMA?
The complainant submitted:
An advertisement, by the organisation Emily's Voice … primarily contained advertising or content about political issues … did not include an announcement of certain particulars in a form approved by the ACMA.
The licensee submitted:
[…] the commercial was not approved within, or closely surrounding, an electionperiod (federal or state). There was no political or significant public debate surrounding pro-lifeor pro-choice issues at the time the advertisement was reviewed and classified.
Furthermore, the advertisement did not purport to persuade viewers to vote a certain way oractively campaign for a certain cause. There was no reference within the advertisement to‘pro-life’ causes. Rather, the commercial is very mild in nature and focused on a ‘family man’who was ‘coping just fine’ with having a large family. The only call to action was to visit the website, ‘notbornyet.com’.
[…]
Network Ten contends that [the] assessment [prior to broadcast] was correct and the circumstances were also applicable to the date and time of broadcast. That is, the broadcast did not occur within, or closely surrounding, a federal or WA state election. There was no political or significant public debate surrounding pro-life or pro-choice issues at the time the advertisement was broadcast. The advertisement itself made no reference to pro-life or pro-choice issues.
In response to the ACMA’s preliminary report, the licensee further submitted:
The Advertisement […] did not participate in the political process or attempt to influence or comment upon that process. The Advertisement did not engage with, or allude to, any specific issue of a political nature with regard to abortion.
[…]
There was no engagement or advocacy about abortion law or regulation or in fact any mention of that issue.
[…]
The most obvious reading of the Advertisement's message was that a couple, despite their trepidations, elected to go through with the unexpected pregnancy and were happy they did so. There was no negative theme around terminating the pregnancy.
[…]
The Advertisement may be attempting to influence individual behaviour rather than any political process because there is no political process to influence.
[…]
The Advertisement did not suggest that expectant parents should continue with a pregnancy. Rather, the Advertisement indicated that even in challenging circumstances, parents have the option to continue with a pregnancy and this may lead to a positive outcome. We strongly submit that this did not constitute an attempt to participate in or influence or even comment upon a political process, the administration of government, or any individual participating in that process.
[…]
An expression of an opinion on the possible conduct of individuals within the current legal framework is not a political matter unless it also suggests that the framework should or should not be changed. The Advertisement made no case for the change or maintenance of the existing framework.
[…]
Campaigns encouraging certain social or health behaviours are not automatically political. There are many circumstances where a discussion around pregnancy termination is not in any way political. Advising couples or women on the options available when confronted with an unplanned pregnancy is not and should not be seen as inherently political.
[…]
There was no public or political discussion regarding abortion and no proposed abortion regulation at the time of CAD’s classification and broadcast by TEN, unlike poker machine gambling policy and regulation. The Advertisement did not attempt to inform or influence viewers about abortion regulation.
[…]
Was the advertisement ‘political matter’?
In determining whether or not material that has been broadcast is political matter, the ACMA has regard to:
the context surrounding the broadcast
the content of the broadcast
the overall presentation of the material including the tone, style and emphasis; and
the nature and style of any accompanying audio or visual material.[2]
‘Political matter' is defined in clause 1 of Schedule 2 very broadly to mean ‘any political matter, including the policy launch of a political party’. What is or is not political matter is an objective test and must be determined on a case by case basis. In some cases, the balance can be a fine one.
Some matters broadcast will obviously be political matter, for example a broadcast designed to affect how a person will vote in an election. However, it is not necessary for material to explicitly promote a particular political party, political candidate or party policy for it to be political matter.
Subclause 4(2) is also not restricted to material broadcast during federal or state election periods or to times of significant public debate on certain issues.Even when advertisements are broadcast outside an election period or are not on behalf of a political party, they may still be political matter and be required to be ‘tagged’.
It may be sufficient for material to be political matter if it seeks to persuade the audience to a particular political point of view, even where there is no current proposal to change the law about the issue. It may also be enough if the broadcast of the matter is likely, directly or indirectly, to influence the audience about a political issue, regardless of the intention of the person requesting that the matter be broadcast.It is also not essential that the approach be express, rather than indirect, for the broadcast to be political matter.
The intention of subclause 4(2) is that, in the course of political debate, listeners and viewers are informed about who is trying to persuade them to think or to act in response topolitical matter.Hence, subclause 4(2) applies so that the audience knows the name ofthe person trying to influence them and whether the advertiserbelongs to a political party or some other group. This disclosure ensures people authorising this type of material are accountable for the material broadcast.
Context surrounding the broadcast
The man in the advertisement advises viewers to visit ‘notbornyet.com’, which is the website for the ‘notbornyet’ media campaign by the organisation Emily’s Voice.[3] The ‘notbornyet’ website features ‘real stories’ about people who have continued with pregnancies and includes information about risks associated with abortion as well as refuting arguments in favour of abortion. As such, it has a focus that opposes abortion.
The licensee submitted that the relevant material is the matter broadcast rather than extraneous material. The ACMA considers that the advertisement’s invitation to visit ‘notbornyet’ conveys to the ordinary reasonable viewer that they should pursue a particular point of view about which they can learn more by visiting the website.
The licensee submitted that the advertisement was broadcast at the direction of the organisation, Emily’s Voice. The advertisement refers to Emily’s Voice via an on-screen logo. Emily’s Voice states on its website that its vision is:
To be an organisation responsible for significantly reducing the abortion rate in Australia without shaming and condemning women, regardless of the choice they make.[4]
Emily’s Voice encourages Australian citizens to ‘vote for political candidates who value the unborn’,[5]and the Emily’s Voice website emphasises its goal of changing community views on abortion:
Galaxy polls last weekend [August 2014] in Tasmania and in February 2012 in Toowoomba showed a total of 47,000 people said they were now more opposed to abortion as a direct result of the truthful and hopeful advertising campaigns.[6]
The ACMA notes that Free TV’s Commercial Advice Division (CAD) advises that:
It is usually advertising by Government, lobby groups and other interest groups that will require consideration under the political matter provisions of the BSA.
[…]
Under certain circumstances advocacy advertising by lobby and other interest groups may fall within the political matter provisions of Schedule 2 […]
The ACMA considers that Emily’s Voice is an interest group, being a group of people that seek to influence public policy on the basis of a particular common interest or concern, and that it seeks to do this through its media campaign, ‘notbornyet’.
The subject of abortion is a contentious political issue, with many in the community holding strong opposing views on the subject. It is an issue that raises questions about rights and has a strong political dimension.
The regulation of abortion is an ongoing issue of public debate in Australia. It is the subject of state and territory legislation. In some states it is a criminal offence, subject to exceptions, and in others it is a legal, on demand service, available in the earlier stages of pregnancy.
The licensee submitted that there was no public or political discussion regarding abortion and no proposed abortion regulation in Western Australia, the state in which the advertisement was broadcast, or at the federal level at the time of CAD’s classification and its broadcast in September 2016.
It is not necessary that there currently be a high level of public discourse at a government level about a matter for it to meet the threshold of political matter. However, in this case, abortion law was a topic of law reform discussion in Australia at the time of broadcast.
On 17 August 2016, a bill was introduced into the Queensland Parliament relating to the timing of abortions and reasons for which the procedures can be performed in Queensland.[7] This bill was referred to a parliamentary committee which is due to report on 17 February 2017.[8] Similarly, on 11 August 2016, a bill was introduced in the Parliament of New South Wales relating to the repeal of offences for abortion[9] and the bill was referred to a legislation review committee.
Abortion remains a political issue in Western Australia, as demonstrated by a march on the Western Australian Parliament House in May 2016.[10]It is apparent that abortion law was and is an issue of ongoing and significant debate in the Australian community.
The licensee submitted that an expression of an opinion as to the possible conduct of individuals is not political matter unless it also suggests whether or not the surrounding framework should be changed. The ACMA takes the view that it is not necessary for there to be an explicit call to change the legal framework within a broadcast for it to fall within the meaning of political matter.
The content of the broadcast
The advertisement features a man wearing ‘hi-vis’ work attire. He is sitting in his utility vehicle and speaking directly to the camera as he recalls the circumstances of his wife’s first pregnancy and says, ‘I can remember thinking, how are we going to cope?’ He exits thevehicle and enters his family home.
The advertisement continues withthe man and his seven children in the family kitchen/living room. As he holds a newborn baby,the man says, ‘I reckon, I’ve coped just fine’. At the same time, the words ‘I coped … you can too’ appear as on-screen text.
The advertisement concludes with the man standing in a kitchen, surrounded by his family as they each hold up what appear to be ultrasound images of human foetuses.The mantells viewers to ‘visit notbornyet.com’. The Emily’s Voice logo and the text ‘notbornyet.com’ are then superimposed in the lower half of the screen.
Although the political message of the advertisement is subtle, and it does not mention the term abortion, the ACMA considers that the ordinary reasonable viewer would perceive the advertisement to have an anti-abortion message.
The overall presentation of the material including the tone, style and emphasis
The advertisement presents raising children as a desirablelife choice, even when a pregnancy is unplanned. Although abortion is not directly mentioned, there is an emphasis in the advertisement on continuing with an unplanned pregnancy.
The advertisement does not promote a product, a service,a business entity, anindustry group or a particular religion, nor does it ask viewers to make charitable donations; rather, it promotes a particular point of view.
While the advertisement has a social dimension regarding individual health choices, the ACMA considers that it goes beyond providing information about the man’s personal story and the message of support for continuing with an unwanted pregnancy even in difficult circumstances. It is attempting to influence the viewpoints of viewers. The text onscreen ‘I coped … you can too’ and the call from the man to ‘visit notbornyet.com’ encourages viewers to get more information about the issue of abortion which is raised indirectlyin the advertisement. Together with the use of ultrasound images, these elementssignal to the ordinary reasonable viewer that the advertisement is intended to influence viewers to accept a particular view on abortion.
The licensee submitted that the advertisement may be attempting to influence the behaviour of individuals who may find themselves in an unplanned pregnancy rather than a political process. The ACMA considers that the effect of the advertisement is to seek to influence public opinion about abortion and to invite the audience to engage with the view of abortion that is held by Emily’s Voice.
Nature and style of accompanying audio and visual material
The ACMA is of the view that the use of multiple human foetal ultrasound images creates a strong visual association between the advertisement’s message and the issue of abortion. Such imagery is commonly usedas part of public campaigns opposing abortion and advocating laws to restrict or prevent the availability of abortion.
The ordinary reasonable viewer would understand,including from the use of the ultrasound images in the advertisement, that the advertisement promotes a particular view of unplanned pregnancy that opposesabortion as an option.
Conclusion
Taking the broadcast as a whole, the advertisement may be characterised as attempting to influence public opinion on the formulation of public policy about abortion as part of the political process, in conjunction with a social message about the option of continuing an unwanted pregnancy even in difficult circumstances.