Investigation Report No. BI-258

Investigation report no. BI-258

Summary
Licensees / Queensland Television Pty Ltd, Territory Television Pty Ltd, Channel 9 South Australia Pty Limited, and Swan Television & Radio Broadcasters Pty Ltd
Station / Nine
Type of service / Commercial—television
Name of program / Nine News
Date of broadcast / 9 September 2016
Relevant code / Clauses 3.3.1and 3.6 of the Commercial Television Industry Code of Practice 2015
Date finalised / 12 December 2016
Decision / No breachof clause 3.3.1 [accuracy]
No breach of clause 3.6 [program promotions]

ACMA draft Investigation report—Nine Newsprogram promotions and Nine News program broadcast on Nine on 8 and
9 September 20161 of 23

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) intoaNine News program. The program was broadcast by Queensland Television Pty Ltd, Territory Television Pty Ltd, Channel 9 South Australia Pty Limited, and Swan Television & Radio Broadcasters Pty Ltd (the licensees) on 9 September 2016 at 6.00 pm.

The news program included fivepreceding promotional segments (herein referred to as previews) aboutthe upcoming health report andthe actual health report concerningdiet as a therapy for arthritis and gout pain.

There were also two separate program promotions for the Nine Newshealth report that were broadcast on 8 and 9 September 2016 respectively, prior to the news program.

It is in the public interest to ensure that health-related information and advice is accurate, given the implications for people who may rely upon such information to make decisions about the treatment and ongoing management of health problems.

The ACMA hasinvestigated the licensees’ compliance with clauses 3.3.1 and 3.6 of the Commercial Television Industry Code of Practice 2015 (the Code).

The program and the program promotions

Nine News is an hour-long nightly news program broadcast at 6.00 pm on weeknights.

The health report (approximately two minutesin duration) reportedonan ‘anti-inflammatory’ diet that could relieve arthritis and gout pain symptoms. It included interviews with Ms Lyn Hicks, a woman with arthritis, naturopath Ms Katherine Maslen and a spokesperson for Arthritis Australia,Mr James Bayliss.

The ACMA notes that the substance of the health report—general, life-style based information about diet and its effect on arthritis and gout pain, would not usually be characterised as ‘news’.The community tends to have higher expectations of news than it does of current affairs generally. Indeed, the Code imposes obligations of fairness and impartiality[1] in relation to news programs that are not imposed in relation to current affairs programs.However, as the health report was broadcast in a news program, it has been assessed accordingly.

The five previews which were broadcast in the news program announced the upcoming health report. The first and fourth previewsreferredto a ‘drug-free pain therapy changing lives’ and the second referredto a ‘drug-free therapy changing lives.’The third preview referred to a ‘breakthrough treatment relieving the pain of arthritis and gout’ and the fifth preview referred to a ‘health breakthrough – the foods to relieve the pain of arthritis and gout – that’s next’.

The two program promotions for the health report broadcast prior to the news program were substantiallyidentical to the first preview contained in the news program on 9 September 2016.

A transcript of theprogram promotions, previews and health reportis at Attachment A.

The licensee has submitted that the previews preceding the health report during the news program are program promotions.

A ‘Program Promotion’ is defined in the Code as:

material broadcast by a licensee within a Program break or between Programs which is designed to promote or draw attention to a Program on the Licensee’s broadcasting services and includes reference to the date and time of the Program which is being promoted.

As thesepreviewswere broadcast as part of the news program, and not within a program break or between programs, the ACMA considers that they do not fall within the definition of a Program Promotion and that they form part of the news program.

Therefore, the ACMA has assessed the preview material and the health report in the news program against clause 3.3.1 and the two standalone program promotion against clause 3.6, which specifically concerns the accuracy of program promotions.

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, 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.

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

Issue 1: Accuracy and fairness

Relevant Code provisions

3.3Accuracy and fairness

3.3.1 In broadcasting a news or Current Affairs Program, a Licensee must present factual material accurately and ensure viewpoints included in the Program are not misrepresented.

3.3.2 Clause 3.3.1 applies to material facts and material misrepresentations of viewpoints only.

Clause 3.1.2 is also relevant. It states:

3.1.2 Compliance with this Section 3 must be assessed talking into account all of the circumstances at the time of preparing and broadcasting the material, including:

a) the facts known, or reasonably ascertainable, at that time;

b) the context of the segment (or Program promotion) in its entirety; and

c) the time pressures associated with the preparation and broadcast of such programming.

Finding

The licensee did not breach clause 3.3.1 of the Code.

Reasons

To assess compliance, the ACMA has addressed the following questions.

What did the material convey to the ordinary reasonable viewer?

Was the material factual in character?

If so, did it convey a material fact or facts in the context of the relevant report?

If so, was the factual material accurate?

Were viewpoints presented in a way that would materially (that is, in a significant respect) misrepresent them?

The ACMA’s investigation has focussed on therisk that the ‘special health report’—with its announcement of a ‘breakthrough treatment’—may inaccurately have represented that:

diet alone can cure arthritis conditions;

food and diet can provide the entire solution to arthritis pain; and/or

diet and food are a drug-free therapy for arthritis conditions.

The licensee submitted:

"Diet alone can cure arthritis conditions"

10. […] It is made very clear in the Report that diet is only one component of a treatment plan for arthritis symptoms, and there is no suggestion that improvements in diet are a complete solution or cure for the condition or its symptoms.

[…]

12. The ordinary reasonable viewer would understand these statements to indicate that changes to diet may assist in providing some symptomatic relief to arthritis sufferers. The effects are expressed to "help ease" and "reduce" the pain, as opposed to eradicating pain.

[…]

"Food and diet can provide the entire solution to arthritis pain"

14. […] The Report makes clear that changes to diet are only one component of any program of treatment for arthritis sufferers. The Report included information that arthritis sufferers were advised to maintain a healthy weight and to engage in exercise in order to help manage their condition ("it's also important to maintain a healthy weight and do some gentle exercise").

[…]

18. […] At no point in the Report were arthritis sufferers advised to abandon the therapies, treatments or medications that they were undertaking for their condition. To the contrary, the Report included advice from a representative of the Arthritis Foundation to seek professional help prior to eliminating certain foods from their diet.

[…]

"Diet and food are a drug-free therapy for arthritis conditions"

25. The ordinary dictionary meaning of "therapy" is reasonably understood to include potentially beneficial or remedial processes that are not necessarily complete or curative. "Therapy" is not to be construed so strictly as to only refer to medical treatment prescribed by a doctor, but can refer to a form of treatment that can assist or improve a person's symptoms or condition, in its widest sense. […]

26. In this context, Nine considers the Promotions as broadcast do not present factual material inaccurately in contravention of the Code. Firstly, the Promotions do not suggest that the "therapy" is for the condition arthritis itself. This must be distinguished from references to treatment for symptoms of arthritis, such as pain and inflammation. The First Promotion specifically states "drug-freepaintherapy", referring to pain as a symptom. The Second Promotion also specifically refers to "pain" both in the spoken words and in a superimposed strap with the words "Beating arthritis and gout pain; Revealing the foods making symptoms worse". The Report likewise repeatedly and clearly refers specifically to symptoms, such as pain, as opposed to the condition itself […].

27. Secondly, there is no question that the symptomatic "therapy" referred to (that is, changes in diet, weight management and improvement in overall health) is "drug-free", involving no prescription or otherdrugs.

What does the material convey to the ordinary reasonable viewer?

The material (see the transcript at Attachment A), comprising the previews and the health report, referred to an ‘anti-inflammatory’ diet that can reduce arthritis and gout pain.

In the health report the reporter referred to the number of Australians with arthritis conditions, ‘a drug-free pain therapy’ and ‘an anti-inflammatory diet’ based on including and excluding specific foods or types of food in order to relieve pain associated with arthritic conditions. The presenter and reporter explained that health experts say certain foods could cause pain and some of them are turning to an anti-inflammatory diet to treat arthritis and gout pain.

The report closed with Arthritis Australia’s advice that ‘different people can expect different results’ and a spokesperson for the peak body who encouraged viewers to contact ‘your general practitioner and health care team to see if it would be worthwhile eliminating’ foods that trigger a flare-up.

In the context of the program in its entirety, the ordinary reasonable viewer would have understood that:

an anti-inflammatory diet, including limiting certain foods, couldhelp arthritis and gout pain; and

this is a drug-free therapy.

Was the material factual in character?

The considerations the ACMA uses in assessing whether or not broadcast material is factual are set out at Attachment C.

The ACMA considers that assertions about the effect that certain foods may have onarthritis and gout pain and that an anti-inflammatory diet is a drug-free pain therapy, were factual in character.They were specific, unequivocal and capable of independent verification.

If so, did it convey a material fact or facts in the context of the relevant report?

The opening statements by the presenter in the health report included, ‘We can reveal the surprising list of foods that health experts say could be causing you pain’ accompanied by the text ‘BEATING PAIN’. The previews referred to foods that ‘must’ be avoided and to ‘the drug-free pain therapy’ and ‘the drug-free therapy’ changing lives.

These statements set the context for the news report—diet as a therapy for arthritis and gout pain.

Factual assertions about the diet-based therapy’seffect in relieving or exacerbating pain symptoms and references to anti-inflammatory foods and foods to avoid were therefore material facts in the context of the report.

If so, were the material facts accurate?

Diet alone can cure arthritis conditions

The previews and the health report referred to symptoms of the condition but did not discuss disease physiology or the causes and development of arthritis or gout. It also did not refer to a ‘cure’ for arthritis and gout pain.

The health report referred to the anti-inflammatory diet reducing painful symptoms and helping to ease pain.The first preview referred to ‘How what you’re eating is making your pain worse’. The text banner referred to ‘beating arthritis and gout pain’ and ‘revealing the foods making symptoms worse.’ The second preview referred to ‘relief could be as simple as restocking your fridge.’

Ms Lyn Hicks’ concluding statement, ‘the more information you get, the better you learn to cope’ suggested that the report’s intention was to provide dietary information that some people may find useful to improve the quality of their lives.

The report was clear that the diet was directed at providing pain relief and not that diet (either alone or in conjunction with any other measures) was a cure for arthritis or gout disease. Clarity was achieved through references to ‘pain’ and ‘pain symptoms’ used in the majority of statements concerning the effect of diet and certain foods.

The ACMA accepts the licensees’ submissions that the program did not suggest that improving diet would cure arthritis conditions. The ordinary reasonable viewer would have understood the statements in the report to mean that diet may assist in providing symptomatic pain relief, rather than a cure.

Food and diet can provide the entire solution to arthritis pain

It was made clear in the health report that changes to diet were only ‘part of the solution’ and it was also important to ‘maintain a healthy weight and do some gentle exercise’.There were no statements asserting that diet and food could provide the entire solution to arthritis pain and arthritis sufferers were not advised to abandon their current treatments.

Additional clarity was provided through the interview with Ms Hicks who did not refer to diet or food as part of her own treatment; and the statement of Mr Bayliss from Arthritis Australia that directed people to their doctor for advice, if they noticed food triggering pain.

In the context of the preview material and the health report in its entirety, it was clear that the health experts did not suggest that anti-inflammatory diets were the entire solution to arthritis pain.

The health report was explicit that it was communicating the advice of health experts. The use of the word ‘some’ in relation to health experts who considered diet in treating arthritic pain, indicated that it was not necessarily a universally accepted, or complete approach.

Ms Maslen’s remark that ‘it’s so important if you have arthritis to adopt these changes because if you don’t your disease is going to get worse’, on its own, overstated the effectiveness of diet in treating pain symptoms. However, in the context of the report in its entirety, there was sufficient information to clarify that the effectiveness of diet in relieving arthritic pain would vary amongst individuals.

Ms Maslen was identified in the report as a naturopath. Although it might have been helpful to describe her as both a nutritionist and a naturopath, in relation to the accuracy of statements about specific foods that can relieve or make arthritis and gout pain worse, it was reasonable for the licensee to rely on her knowledge and expertise. Her experience as a nutritionist was relevant to a health report focussed on diet and food.

As submitted by the licensees, details in the report about anti-inflammatory diets and foods with anti-inflammatory properties, in addition to the interview with Ms Maslen, are substantiated in published materials by reputable sources such as the Arthritis Foundation.

The ACMA also notes that there is evidence-based information in the public domain about the impact of certain types of foods on pain symptoms in arthritis patients. For example, Arthritis Australia states that ‘research suggests that eating foods with healthy fats rather than foods with unhealthy fats may help reduce the symptoms of arthritis’.[3]

The Harvard Women's Health Watch, states that ‘One of the most powerful tools to combat inflammation comes not from the pharmacy, but from the grocery store’. The article lists refined carbohydrates (such as white bread and pastries) and red meat (such as burgers, steaks and processed meats) amongst the foods that inflame and tomatoes, green leafy vegetables and nuts as foods that combat inflammation associated with a range of diseases including arthritis.[4]

The dietary, weight management and exercise recommendations provided in the health report were consistent with published information about managing arthritis and gout pain.

Diet and food are a drug-free therapy for arthritis conditions

As the previews to the health report referred to an ‘exclusive story’, ‘health breakthrough’ and the ‘brand new list’ of foods to avoid, some viewers may have inferred that the upcoming health report was about a significant new arthritis and gout treatment. However, this inference would have been corrected by the opening statements in the health report that made it clear that the‘drug-free therapy’ was an anti-inflammatory diet.