Investigation Report No. BI-302

Investigation report no. BI-302

Background

In February 2017, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 170 of the Broadcasting Services Act 1992 (the BSA) into the broadcast of an advertisement for The Equality Campaign and promotions from the ‘Love is Love’ campaign. This material was broadcast on Lifestyle, Lifestyle You, Lifestyle Home and Lifestyle Food (the Lifestyle channels) by Foxtel Cable Television Pty Limited (the licensee).

The ACMA received a complaint alleging that the Lifestyle channels’ station IDs and logos contained political matter and that the licensee failed to broadcast the required particulars immediately following their broadcast. The complaint noted that the material was broadcast multiple times on 13 and 14 February 2017, identifying a specific broadcast on Lifestyle Food at approximately 7.30 pm on 14 February 2017.

For this investigation, the ACMA has assessed relevant material that the licensee confirmed was broadcast on 13 and 14 February 2017, being the advertisement for The Equality Campaign (the advertisement) and a sample of promotions broadcast as part of the ‘Love is Love’ campaign (‘Love is Love’ campaign).[1]

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 10(1)(i) of Schedule 2 to the BSA).

The advertisement and the ‘Love is Love’ campaign

The advertisement

This advertisement is approximately 30 seconds in duration and was produced by the Australian Marriage Equality (AME) organisation as part of The Equality Campaign’s ‘Marriage Equality: It’s only fair’ series.

The Equality Campaign is a joint initiative of Australian Marriage Equality Limited and Australians for Equality Ltd.

The Equality Campaign website states:

The Equality Campaign is a national campaign to win marriage for all Australians through a parliamentary vote.[2]

Australian Marriage Equality Limited[3] describes itself as follows:

Australian Marriage Equality is a national organisation working for equal marriage for all consenting adults, as we believe a person’s gender or sexuality should not affect their legal rights and responsibilities under Australian marriage law.

[…] Australian Marriage Equality has grown into one of Australia’s largest and most successful equal rights organisations. As a non profit organisation, Australian Marriage Equality relies entirely on the generosity of its supporters in the community.[4]

Australians for Equality Ltd is registered as a charity with the Australian Charities and Not-for-profits Commission.[5] is registered as a charity with the Australian Charities and Not-for-profits Commission. is

The ‘Love is Love’ campaign

The ACMA assessed the following promotions from the ‘Love is Love’ campaign:

 a 45 second promotion involving adults with signs stating what love means to them, concluding with the Lifestyle channels’ logo rebranded in rainbow colours and the ‘Love is Love’ tagline that becomes the channel identifier, ‘Lifestyle’ (referred to in this report as the ‘Love is Love’ promotion)

 three 10 second promotions depicting scenes of people demonstrating love in different forms concluding with the Lifestyle channels’ logo rebranded in rainbow colours and the ‘Love is Love’ tagline that becomes the relevant channel identifier (eg. Lifestyle Food) (referred to in this report as the Station ID promotions)

 four brief promotions (one for each channel) containing the Lifestyle channels’ logo and the relevant channel identifiers which change to display the channel logo in rainbow colours, accompanied by the text ‘Love is Love’ and followed by the hashtag ‘#EqualityCampaign’ (referred to in this report as the hashtag promotions).

A detailed description of the advertisement and the ‘Love is Love’ campaign is at Attachment A.

According to the licensee, the ‘Love is Love’ campaign was an independent initiative of the Lifestyle channels, planned to coincide with Valentine’s Day, ‘to promote love in all forms, between all different people, regardless of their sexual orientation’.

The licensee noted that the campaign tagline, ‘Love is Love’ has become synonymous with the global push for equality of the LGBTI community in all areas of life, including marriage equality in Australia. Similarly, the campaign uses the rainbow colours of the LGBTI pride flag to symbolise the acceptance of all expressions of love.

The licensee further advised the ACMA that the ‘Love is Love’ campaign was conceived and developed by the Lifestyle channels, which also had creative and editorial control over the content used in the campaign.

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.[6]

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.

10Conditions applicable to subscription television broadcasting licences

(1) Each subscription television broadcasting licence is subject to the following conditions:

[…]

(i) the licensee will comply with the requirements of clauses 3, 3A, 4 and 5;

[…]

Finding

The licensee did not breach subclause 4(2) of Schedule 2 to the BSA with respect to the broadcast of the advertisement and the ‘Love is Love’ campaign and therefore did not breach the licence condition at paragraph 10(1)(i) 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:

The FOXTEL Lifestyle station logo was used throughout the day for blatant political purposes/advertising without any identification being provided for who approved the advertising or what organisation was behind it. The "#SupportEquality" was however displayed at the end.

[…]

The item is a station ID that bookends ad breaks and appears to have been transformed into a brief “advertisement” to tacitly garner support for a particular cause that is subject to current political debate.

The licensee submitted:

As the Advertisement and the Lifestyle Content under consideration in this investigation were not broadcast on the Lifestyle Channels on 13 and 14 February 2017 at the request of another person, it is not necessary for Foxtel to comment on whether these broadcasts contained 'political matter' or not.

[…]

Foxtel elected to broadcast the Advertisement as a community service announcement on the Lifestyle Channels on 13 and 14 February 2017 at its own discretion, not at the request of another person.

[…]

Foxtel is a strong supporter of marriage equality in Australia. […] Its support of marriage equality in Australia also extends to Foxtel's decision to broadcast community service announcements from the Australian Marriage Equality organisation on the Foxtel platform at its own expense from November 2016 to March 2017.

The Australian Marriage Equality organisation did not direct Foxtel to broadcast the Advertisement on the Lifestyle Channels on 13 and 14 February 2017, rather Foxtel approached the Australian Marriage Equality organisation about broadcasting a community service announcement on their behalf. As an initiative under Foxtel's Corporate Social Responsibility Strategy, the Advertisement was broadcast on the Lifestyle Channels as a community service announcement; […] Foxtel decided when and where the Advertisement would be broadcast as a community service announcement on the Foxtel platform at its sole discretion, not at the direction of another person.

[…]

The Lifestyle Content broadcast on the Lifestyle Channels on 13 and 14 February 2017 was broadcast at the discretion of the Lifestyle Channels, not at the request of another person.

[…]

Foxtel maintains that it did not breach subclause 4(2) of Schedule 2 to the BSA by failing to broadcast the required particulars after the broadcast of the Advertisement and the Lifestyle Content on the Lifestyle Channels on 13 and 14 February 2017 as the broadcasts were not ‘at the request of another person’ within the meaning of the BSA.

Were the advertisement and the ‘Love is Love’ campaign ‘political matter’?

In determining whether or not material that has been broadcast is political matter, the ACMA has regard to:

 the context surrounding the broadcasts

 the content of the broadcasts

 the overall presentation of the material including the tone, style and emphasis

 the nature and style of any accompanying audio or visual material.[7]

‘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.

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 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 enough for material to be political matter 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 to political matter. Hence, subclause 4(2) applies so that the audience knows the name of the person trying to influence them and whether the advertiser belongs 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 broadcasts

The subject of marriage equality is a contentious and current political issue. Marriage equality, and the means to achieve it, continues to be the subject of ongoing, high-profile community and political debate.

The Australian Marriage Equality Limited and Australians for Equality Ltd are interest groups seeking to influence the direction of public policy about legal marriage for all Australians through a parliamentary vote.

The advertisement produced by The Equality Campaign, directs viewers to the website ‘equalitycampaign.org.au’, the official website for The Equality Campaign, which includes a landing page with a message to contact members of parliament, and a petition.

The ‘Love is Love’ campaign includes a promotion that incorporates the hashtag ‘#EqualityCampaign’. Although it does not refer to, or direct viewers, to the website for The Equality Campaign, by using the campaign’s Twitter hashtag, it makes explicit reference to the Equality Campaign by name and it promotes, in an indirect way, its political activities.

Content of the broadcasts

The advertisement

The advertisement depicts a montage of real people from the LGBTI community engaged in their professions: a surf life saver, a surgeon, a military serviceman, a firefighter and a nurse. The ordinary reasonable viewer would have understood the message of the advertisement to be that these people are not ‘different' but ordinary people who are part of everyday life.

The ‘Love is Love’ campaign

‘Love is Love’ promotion: The content contains a sequence of 16 images of different people, representing all walks of life, holding up handwritten signs stating what love means to them, for example, ‘I love my dog (& fiancé)’, ‘Love makes the world go ‘round!’ and ‘Love is my baby daughter’.

The signs present a range of personal reflections on love and the ways that people experience love. One of the signs explicitly comments on marriage equality by stating, ‘Love is for everyone. I don’t want to get married but I want the choice!!’

At the end of the promotion, a rainbow coloured heart appears onscreen and, as it beats, it transforms into the Lifestyle channels’ logo in rainbow colours. The logo is accompanied by the tagline ‘Love is Love’ which transforms into the word ‘Lifestyle’.

The promotion includes light, upbeat music and there is no narration, voiceovers or any other verbal content.

The use of the Lifestyle channels’ logo in rainbow colours and the text ‘Love is Love’ at the end of the promotion, ‘brand’ it as part of the ‘Love is Love’ campaign. Taking this content as a whole, the promotion would have prompted viewers to pursue a particular point of view about marriage laws.

Station ID promotions: The content contains a series of vignettes (two to four per promotion) showing ordinary people in their daily lives demonstrating and sharing love with the people they care about. These include two young women with their arms around each other looking out to the ocean, a woman playing with two young children, two men lying together in a hammock, a person tickling a giggling child, two women cutting a cake together at what appears to be a commitment ceremony, and a man and woman talking and laughing together.

At the end of the promotions, a rainbow coloured heart appears onscreen and, as it beats, it transforms into the Lifestyle channels’ logo in rainbow colours. The logo is accompanied by the campaign tagline ‘Love is Love’ which transforms into the relevant channel identifier, such as Lifestyle Home or Lifestyle Food.

The promotions include soft instrumental music that incorporates a sound replicating a heartbeat timed to coincide with the momentary appearance of the beating rainbow heart graphic. They do not contain any verbal content.

These promotions would have conveyed to the ordinary reasonable viewer that there are many different types of relationships and ways to demonstrate love. The rainbow coloured Lifestyle channels’ logo and the tagline, ‘Love is Love’ at the end of the promotions identify them as part of the broader ‘Love is Love’ campaign. Taken as a whole, this content would have invited viewers to reflect on the status of certain relationships in Australia, given that not all the relationships portrayed in the promotion are recognised equally under the law.

Hashtag promotions: The promotions comprise the Lifestyle channels’ logo and the relevant channel identifiers in which the logo momentarily transforms into a rainbow coloured heart that, as it beats, becomes the channel logo in rainbow colours accompanied by the text ‘Love is Love’. This is followed by a screen displaying the hashtag ‘#EqualityCampaign’.

The promotions include soft instrumental music that incorporate a sound replicating a heartbeat timed to coincide with the appearance of the beating rainbow heart graphic. They do not contain any verbal content.

These promotions feature the same ‘Love is Love’ campaign branding as the promotions described above, however, they also establish an explicit link with The Equality Campaign by incorporating its campaign hashtag. Although the hashtag may not represent an express call to action, its use is intended to promote The Equality Campaign, encourage people to join Twitter conversations and to assist people to access information about the campaign and how to participate in its political activities.

The overall presentation of the material including the tone, style and emphasis