Investigation Reports No. 2420 and 2419
File No. / 2010/1034Licensee / Prime Television (Northern) Pty Ltd
Channel Seven Sydney Pty Ltd
Station / NEN
ATN
Type of Service / Commercial Television
Name of Program / Air Ways
Date of Broadcast / 14 March 2010
Relevant Code / Clause 1.9.6 of the Commercial Television Industry Code of Practice 2010
Date Finalised / 20 August 2010
Decision / No breach of clause 1.9.6 (dislike, contempt or ridicule)
The complaint
On 10 May 2010, the Australian Communications and Media Authority (ACMA) received a complaint about the program Air Ways broadcast on 14 March 2010 by Prime Television (Northern) Pty Ltd, the licensee of NEN, and Channel Seven Pty Ltd, the licensee of ATN (the licensees).
The Complainant alleged that the program had ‘a recurring theme of ridiculing people of ethnic appearance’.
The complainant referred the matter to the ACMA for investigation.[1] The complaint has been investigated under to clause 1.9.6 [provoke or perpetuate severe ridicule against a person or group of persons on the grounds of ethnic origin] of the Commercial Television Industry Code of Practice 2010 (the Code).
The program
The program is described on the station website as a ‘documentary’ which ‘follows the ups and downs of travel on budget airline Tiger Airways’.[2] The program is presented by a well known comedian in Australia, Corinne Grant. The episode of 14 March 2010 depicted a range of interactions between a number of passengers and airline staff at airports and travelling to various destinations.
Assessment
The assessment is based on:
a DVD recording of the broadcast provided by the licensee;
submissions provided to the ACMA by the complainant and the licensee; and
publicly available information.
Issue1: did the licensee broadcast a program which was likely, in all the circumstances, to provoke or perpetuate severe ridicule against a person or groups of persons on the grounds of ethnic origin?
Relevant Codes
Prescribed Material
1.9 A licensee may not broadcast a program [...] which is likely, in all the circumstances, to: [...]
1.9.6 provoke or perpetuate severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference; [...]
Interpretation of clause 1.9.6 of the Code
The ACMA adopts the general approach set out below in applying clause 1.9.6 of the Code.
‘Ordinary, reasonable viewer’
The ACMA considers what the ‘ordinary, reasonable viewer’ would have understood the program concerned to have conveyed. 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.[3]
‘Likely, in all the circumstances’
Use of the words, ‘likely in all the circumstances’ imposes an objective test[4] and implies a real and not remote possibility; something which is probable.[5]
‘Provoke or perpetuate severe ridicule’
When a statute or code uses words which it does not define, it is usually appropriate to apply whichever of the ordinary English language meanings are most appropriate to the context in which the words are used in the statute or code.
The Macquarie Dictionary (fourth edition) includes the following definitions:
provoke verb 2. to stir up, arouse or call forth; 3. to incite or stimulate (a person etc to action)
perpetuate verb to make perpetual; preserve from oblivion
severe adjective 1. harsh, harshly extreme
ridicule noun 1. words or actions intended to excite contemptuous laughter at a person or thing, derision
The definition of ‘severe’ indicates that the Code contemplates a very strong reaction and sets a high test for the prohibited behaviour. It is not sufficient that the behaviour induces a moderately negative response or reaction.[6]
‘On the grounds of’
The provocation of severe ridicule against the person or group, must occur on a ground specified in clause 1.9.6 of the Code, including ethnic origin.
In this complaint, it means there must be a necessary link between the ethnicity of the person or group, and the feeling of severe ridicule which is likely to be provoked by the broadcast. [7]
Complainant’s submissions
The complainant submitted that ‘ridiculing people of ethnic appearance’ was a recurring theme in the program.
The complainant further submitted:
My concern is that the segments with ethnic people tend to be showing the staff in a positive light and the ethnic customers in a negative light. [...] they are portrayed by the television as being rude, disruptive and disobedient. Their complaints are often mocked by the television voice-over commentary, and are portrayed as being non-legitimate and often comical.
Licensee’s submissions
Channel Seven Sydney Pty Ltd submitted that ‘the selection process for the individuals presented in the program in no way involves or discriminates against any race, religion, gender or nationality’.[8]
Prime Television (Northern) Pty Ltd submitted that no references were made to the ethnicity of Tiger Airways passengers.[9]
Finding
The delegate considers that the program Air Ways, broadcast by the licensees on
14 March 2010, was not likely, in all the circumstances, to provoke or perpetuate severe ridicule against a person or group of persons on the grounds of national or ethnic origin.
On this basis, the ACMA finds that the licensees did not breach clause 1.9.6 of the Code.
Reasons
Relevant person of group
The program featured a diverse range of people, who appeared from the visuals to be of Anglo and various other national or ethnic origins. Some of these people spoke with accents. Individuals or groups were not identified in the commentary as being of any particular ethnic group. At one point a woman stated that she considered her family’s treatment by the airline was on the basis of race, and the ground staff denied this.
The delegate considers that a particular national or ethnic origin or race was not identified in the program. However, on the basis of the complaint the delegate considers the relevant group to be people of ethnic origin.
Relevant ground
The delegate considers that the relevant ground is national or ethnic origin.
Dislike, contempt or ridicule
The delegate has reviewed the broadcast in its entirety and notes the program pivots around exchanges between Tiger Airways customers and staff. Some of these customers are disgruntled. The cases presented involved customers of both Anglo and ethnic appearance, and no undue prominence was given to ridiculing passengers of ethnic appearance.
The delegate considers that the ordinary reasonable viewer would interpret the thrust of the program to be passengers and ground staff’s experiences of airports and airline travel.
The only connection with national or ethnic origin is through the appearances of the participants in the footage, their accents and one woman’s remarks about the grounds for the airline’s treatment of her and its response. There are no words or images expressing elements of contempt, dislike or ridicule of the participants on the basis of their national or ethnic origin.
The delegate is not satisfied the broadcast encouraged listeners to share an attitude of ridiculing people on the grounds of their ethnic origin.
The complainant was concerned that only those of ethnic appearance were displayed in a negative light and mocked. The delegate is satisfied that other others were also shown in a negative light and that any mockery by the commentator was on the basis of individual behaviour. The delegate acknowledges passengers involved in the incidents were to some extent ridiculed by the presenter, but considers that any feelings of contempt, dislike or ridicule aroused in the audience was not on the basis of national or ethnic origin.
Severe ridicule
Clause 1.9.6 of the Code sets a high threshold for the likely effect of prohibited material. It is not sufficient that the broadcast provoke or perpetuate a moderately negative response; rather the content must provoke or perpetuate severe ridicule, on the grounds of ethnic origin.
The delegate considers that any ridicule was not harsh enough to be considered severe and each incident not sustained enough to elicit the strong response required.
On this basis, it is considered that the program Air Ways, broadcast by the licensees on
14 March 2010, was not likely, in all the circumstances, to provoke or perpetuate severe ridicule against a person or group of persons on the grounds of ethnic origin. Accordingly, the ACMA finds that the licensees did not breach clause 1.9.6 of the Code.
ACMA Investigation Report – Air Ways broadcast by ATN and NEN on 14 March 2010 2
[1] Section 149 of the Broadcasting Services Act 1992 stipulates that the ACMA must investigate a complaint.
[2] http://au.tv.yahoo.com/plus7/airways/, accessed on 21 July 2010.
[3] Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at p. 164-167.
[4] Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at p.12.
[5] Re Vulcan Australian Pty Ltd v Controller-General of Customs (1994) 34 ALD 773 at p.778-779.
[6] The ACMA has set out this test before in relation to the consideration of these elements of the Code. See for example, Investigation Report No. 1909 – 12 February 2009.
[7] Kazak v John Fairfax Publications Limited (2000) NSWADT 77 at p. 23.
[8] Licensee’s letter to complainant dated 3 May 2010.
[9] Licensee’s letter to complainant dated 31 March 2010.