Investigation Report No. 2437

File No. / ACMA2010/1293
Licensee / TCN Channel Nine Pty Limited
Station / TCN
Type of Service / Commercial Television
Name of Program / 60 Minutes
Date of Broadcast / 7 March 2010
Relevant Code / Clauses 4.3.1 and 7.11 of the Commercial Television Industry Code of Practice 2010.
Date Finalised / 9 November 2010
Decision / No breach of clause 4.3.1 (factual accuracy)
No breach of clause 7.11 (respond to complaint)

The complaint

On 4 June 2010, the Australian Communications and Media Authority (the ACMA) received a complaint about a segment of 60 Minutes entitled ‘Doomed’ broadcast on 7 March 2010 by the licensee of TCN, TCN Channel Nine Pty Ltd. The complainant alleged that the segment contained factually inaccurate or misleading statements in its reporting of the events and details surrounding a 2009 aeroplane crash into the Pacific Ocean.

The complainant referred the matter to the ACMA for investigation.[1]

The complaint has been investigated in accordance with clauses 4.3.1 [accuracy of factual material] and 7.11 [complaints handling] of the Commercial Television Industry Code of Practice 2010 (the Code).

Matters not pursued

The complainant alleged that the reputation of the pilot involved was ‘publicly smeared’ and ‘unfairly tarnished’ as a result of the reporter’s sensationalist’s remarks. The complainant queried in that respect whether the licensee would broadcast an ‘on-air apology’.

It is acknowledged that the style of some of the language used throughout the segment set a negative and emotive tone in respect of what was broadcast. However, the Code does not prohibit broadcasters from taking a critical stance on subject matter being broadcast in current affairs programs. Similarly, the Code does not include obligations in relation to damaged reputation or defamation and the broadcasting of apologies. Accordingly these issues have not been further pursued in this investigation.

The program

60 Minutes is a one-hour current affairs program broadcast Sunday evenings at 7.30 pm on the Nine Network.

The segment broadcast on 7 March 2010 (the Segment) described the circumstances and re-enacted the events in the lead up to an aeroplane crash in November 2009. The segment was critical of the airline and the pilot involved in the crash, and ‘Australia’s aviation regulators’.[2] The segment included interviews with:

  • three of the six survivors of the crash;
  • the air traffic controller at the time of the crash;
  • two members of the boat rescue team;
  • the Chief Pilot of another airline in the Pacific; and,
  • a witness of the crash.

The segment also showed footage of an executive of the airline (J) being confronted by the reporter.

Assessment

The assessment is based on a DVD copy of the program provided by the licensee, and submissions from the complainant and the licensee.

Other sources are identified where relevant.

Issue 1: Factual Accuracy

Relevant Code

4.3 In broadcasting news and current affairs programs, licensees:

4.3.1 must broadcast factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;

4.3.1.1 An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.

Fair representation of viewpoints

Clause 4.3.1 of the Code obliges the accurate presentation of factual material and the fair representation of viewpoints. In relation to the latter element, the segment included viewpoints of the interviewees and the reporter.

The ACMA has not been provided with any information to suggest that the viewpoints were not fairly represented in the broadcast. Accordingly, an examination of the program’s compliance with clause 4.3.1, insofar as it relates to the obligation to represent viewpoints fairly, has not been pursued further.

Considerations

In determining whether or not a statement complained of was subject to and/or compliant with the licensee’s obligation to present factual material accurately (having regard to the circumstances at the time of preparing and broadcasting the program), the ACMA has regard to the following considerations:

  • The meaning conveyed by the relevant statement is assessed according to what an ‘ordinary, reasonable viewer’ would have understood the broadcast to have conveyed. Courts have considered the ‘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]

  • The ACMA must assess whether the relevant statement would have been understood by the ordinary reasonable viewer as a statement of fact or an expression of opinion.
  • The primary consideration would be whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material presents as a statement of fact or an expression of opinion.
  • In that regard, the relevant statement must be evaluated in its context, i.e. contextual indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable viewer.
  • The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable viewer, and the form of words introducing the relevant statement is not conclusive.
  • Inferences of a factual nature made from observed facts would usually still be characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be an inference of a judgmental or contestable kind.
  • While licensees are not required to present all factual material available to them, if the omission of some factual material means that the factual material presented is not presented accurately, that would amount to a breach of the clause.
  • In situations where witnesses give contradictory accounts—if there is no objective way of verifying the material facts, the obligation to present factual material accurately probably requires that the competing assertions of fact be presented accurately as competing assertions.
  • The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.

Complainant’s submissions

The complainant raised concerns about the following statements made in the broadcast by the reporter:

1) This is an incredible story of survival...but why did that jet crash off the rugged coastline here at Norfolk Island...? well, as you’ll see tonight, critical decisions were made before the accident which raise serious questions for the pilot, ...the airline, Pel-Air and Australia’s aviation regulators, questions they’re in no hurry to answer.

2) Normally if a pilot can’t land because of bad weather he would divert to a stand-by destination known as an alternate. Incredibly, [the pilot] has no fallback.

3) That’s why, under civil aviation safety rules, all pilots who are headed to the island have to carry enough fuel to divert if they get into trouble.

4) It is simply reckless and dangerous not to have a Plan B in this part of the Pacific. So why on earth did [the pilot] take off without a full load of fuel?

In relation to Statement 1, the complainant submitted:

[The pilot], Pel-Air and the regulators have obviously been answering questions to the relevant authorities, if not [the reporter]; there is an ATSB [Australian Traffic Safety Bureau] Factual Report out.[4] A factual report [the reporter] could have checked for the facts.

In relation to Statement 2, the complainant submitted:

[...]

[The reporter] appears to have missed the ATSB report which states, “At Apia, the pilot in command submitted a flight plan by telephone to Air services Australia. At that time, the forecast weather conditions at Norfolk Island for the arrival did not require the carriage of additional fuel for holding, or the nomination of an alternate airport. The crew elected to only fill the aircraft’s main tanks, which would provide sufficient fuel and reserves for the flight”. In other words, [the pilot] was not legally required to hold an alternate. He had enough fuel for the flight, plus reserves, based on the weather forecasts he had been given. To put it more bluntly, [the pilot] was carrying the legally required fuel for the flight, plus reserves. The meteorologists messed up the forecast.

In relation to Statement 3, the complainant submitted:

I presume that in saying “civil aviation safety rules”, [the reporter] actually implies the Civil Aviation Orders. In saying that “pilots who are headed to the island have to carry enough fuel to divert if they get into trouble”, I presume more specifically that [the reporter] is referring to CAO82.0. CAO82.0 applies to aircraft operating in the charter category. Aero-medical aircraft, in accordance with the Civil Aviation Regulations,[5] do not operate in the charter category and therefore, CAO82.0 does not apply i.e. [the pilot] did not need to hold an alternate for Norfolk Island, as asserted by Usher. There would have to be other reasons to hold an alternate, but in this case, as stated quite clearly in the ATSB report “the forecast weather conditions at Norfolk Island for the arrival did not require the carriage of additional fuel for holding, or the nomination of an alternate airport”.

In relation to statement 4, the complainant submitted:

Aircraft rarely fill their fuel tanks. It costs fuel (and therefore money) to carry fuel. ... Pilots are ... discouraged from carrying discretionary fuel above that legally required. It is worth noting that legal fuel requirements do require amounts to be carried above that required by the flight itself and these are known as reserves. From the ATSB report again, “At that time, the forecast weather conditions at Norfolk Island for the arrival did not require the carriage of additional fuel for holding, or the nomination of an alternate airport. The crew elected to only fill the aircraft’s main tanks, which would provide sufficient fuel and reserves for the flight”. If the weather forecasts supplied to [the pilot] didn’t require an alternate, he doesn’t need to carry the fuel for an alternate. The vast majority of domestic and international services flown by Australian airlines would not be carrying alternate fuel or fill the tanks unless the weather dictated it was required. The ATSB report clearly indicates that in the case of [the pilot], the forecasts supplied to him did not legally require him to carry any extra fuel than he did. He's told investigators he didn't fill the tanks to capacity or nominate an alternate because he believed he had clear weather to Norfolk Island.

[The pilot’s] fuel order may not have been the decision of other operators in the area (or even my own), but the ATSB report clearly indicates that it was legally correct based on the best information made available to him on the day. No professional pilot deserves to have their reputation so publicly smeared on popular television as has been done to [the pilot] when easily obtainable facts indicate that he in fact did nothing wrong. ... [the pilot’s] professional standing and reputation have been unfairly tarnished by Channel Nine’s story...

[...]

Finding

In relation to the broadcast of the segment ‘Doomed’ during 60 Minutes on 7 March 2010, the licensee did not breach clause 4.3.1 of the Code.

Reasons

The accuracy requirements under clause 4.3.1 of the Code apply to factual material.

Accordingly, the first question for the ACMA is whether the statement concerned was factual material or whether it was a viewpoint. The considerations applied by the ACMA in this regard are set out in some detail above. Context is important as is the natural and ordinary meaning of the language and the substantive nature of the message.

Statement 1

This is an incredible story of survival...but why did that jet crash off the rugged coastline here at Norfolk Island...? Well, as you’ll see tonight, critical decisions were made before the accident which raise serious questions for the pilot ..., the airline, Pel-Air and Australia’s aviation regulators, questions they’re in no hurry to answer.

The complainant’s concern with statement 1, as the delegate understands it, is that the assertion that the pilot, airline and the regulators are ‘in no hurry to answer’ questions regarding the accident, incorrectly infers that they are not being co-operative with authorities. The complainant submitted statement 1 was inaccurate because the ATSB report into the incident which is publically available suggests that the pilot, the airline and the regulators ‘have obviously been answering questions to the relevant authorities, if not [the presenter]...’.

The delegate has considered the context of this statement as a whole; the ordinary meaning of the language used; and the substantive nature of the message conveyed.

Having regard to the language, tenor and tone, in particular, the use of subjective language such as ‘incredible’, ‘critical’ and ‘serious and the use of a rhetorical question, the delegate is satisfied that the ordinary reasonable viewer would not have understood statement 1 to be an unequivocal factual statement. Rather, the delegate considers the ordinary reasonable viewer would have understood the statement as posing a viewpoint, or a general hypothesis in relation to the circumstances of the crash that would be explored and tested throughout the segment.

When looking at the context of this segment in its entirety, there were a number of references to a pending investigation into the crash and the ordinary, reasonable viewer would not have understood that the pilot, airline and regulators were not being co-operative with authorities.

The delegate is satisfied that, given its inherent quality and meaning and the context involved, the statement complained about constituted a viewpoint rather than a statement of fact, and as such, is not subject to the relevant Code provision.

Statement 2

Normally if a pilot can’t land because of bad weather he would divert to a stand-by destination known as an alternate. Incredibly, [the pilot] has no fallback.

What was conveyed by the relevant factual statement?

The ordinary, reasonable viewer would have understood statement 2 as being a combination of fact and opinion. This is because of the inclusion of words such as ‘incredibly’ and ‘normally’ which are a question of individual judgment. The ordinary, reasonable viewer would have understood these aspects of the statement as being the presenter’s viewpoint on the substantive factual content.

The substantive factual material conveyed to the viewer is that as a general rule, if a pilot cannot land at their destination they divert to what is known as an ‘alternate’, and, in this case, the pilot did not have a stand-by destination planned. This element of the statement is unquestioning and unequivocal without allusion to individual opinion. This assertion is therefore subject to the requirements of factual accuracy.

Was the factual material presented accurately?

The complainant is of the view that statement 2 is inaccurate as demonstrated by the ATSB report which states that at the time of departure “the forecast weather conditions at Norfolk Island for the arrival did not require the carriage of additional fuel for holding, or the nomination of an alternate airport.”

Clause 4.3.1.1 of the Code requires the delegate to consider the statement in the context of the segment in its entirety. In this regard, the delegate notes that later in the segment, the reporter qualified the pilot’s obligations with respect to planning an alternate. Referring to the ATSB investigation, cited by the complainant, the reporter explains that medivac services such as the one involved in the crash are exempt from relevant air-safety regulations and directs his criticisms to the Civil Aviation Safety Authority (CASA) for approving the exemption:

[The pilot has] told investigators he didn’t fill the tanks to capacity or nominate an alternate because he believed he had clear weather to Norfolk Island. In the days after the crash, Pel-Air backed its pilot, saying in this case the normal safety rules didn’t apply – medivac flights were exempt. The question is why that exemption was ever approved by the Civil Aviation Safety Authority. [emphasis added by the ACMA].

The delegate is satisfied that in context, having regard to the further information provided in the segment, statement 2 was presented accurately.

Accordingly, the licensee did not breach clause 4.3.1 of the Code in relation to the presentation of statement 2.

Statement 3

That’s why, under civil aviation safety rules, all pilots who are headed to the island have to carry enough fuel to divert if they get into trouble.