Investigation Report No. 2943
File No. / ACMA2013/66Licensee / TCN Channel Nine Pty Ltd
Station / TCN Sydney
Type of service / Commercial television
Name of program / Channel Nine News
Date of broadcast / 1 October 2012
Relevant law / Paragraph 7(1)(h) of Schedule 2 to the Broadcasting Services Act 1992
Date finalised / 4 June 2013
Decision / No breach of clause 7(1)(h)
The complaint
The Australian Communications and Media Authority (the ACMA) received a complaint concerning a news item broadcast during Nine Newson 1 October 2012. The news item reported on the behaviour of some rugby league players who had attended their club’s end of season ‘Mad Monday’ celebrations. The complainant is concerned that the relevant footage was recorded secretly, without the knowledge of the participants, and broadcast without consent of the parties involved. The complainant alleges the footage was obtained in contravention of the Surveillance Devices Act 2007(NSW) and, as a result,the licensee breached the licence condition set out inparagraph 7(1)(h) of Schedule 2 to the Broadcasting Services Act 1992 (the BSA).
The program
Nine News is a news program broadcast at 6.00pm daily. On 1 October 2012 the program reported on the end of season celebrations of the NRL team the Canterbury-Bankstown Bulldogs (the Bulldogs) and its fans, following the Bulldogs’ Grand Final loss the day before.
The complaint relates to the broadcast of the following exchange recorded from outside the building in which the celebrations were taking place:
Anchor: Good evening, Mad Mondays are exactly that, ‘mad’. But today it got ugly as the Bulldogs drowned their sorrows - a night and morning of drinking led to some club members hurling sexist abuse at the waiting media. The club boss has told Nine News they are investigating.
Reporter:Bulldogs players arrive at BelmoreOval this morning dressed as cartoon characters for Mad Monday celebrations. It was meant to be good fun until this:
Unidentified speaker[captioned]: There’s some [old?] ladies here to stick their heads in your pants.
Reporter:From the room where the players’ party began, sexist abuse hurled from the window at the media waiting outside.
Unidentified speaker[captioned]: ‘S***’ me off you dumb dog’
Unidentified speaker[captioned]: ‘I wanna go and punch you in the face’
Reporter:The abusers kept their faces hidden and it’s unclear who was in the room with the team at the time.
A full transcript of the relevant segment is at Attachment A.
Assessment
This investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.
Licensee’s submissions
The licensee made submissions with respect to:
- the ACMA’s power to determine a breach of the Surveillance Devices Act 2007 (NSW) (the SDA)
- the alleged breach of the SDA.
The licensee’s submissions are set out at Attachment B.
Issue: Standard licence condition under the BSA
Paragraph 7(1)(h) of Schedule 2 to the BSA provides:
7Standard conditions of commercial television broadcasting licences:
(1)Each commercial television broadcasting licence is subject to the following conditions:
[…]
(h) The licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory.
Relevant Act of a State or Territory
The complainant has alleged that the licensee used its broadcasting service to commit an offence against the SDA. Accordingly, the SDA is the relevant ‘law of a State or Territory’ for the purposes of assessing the licensee’s compliance with the standard licence condition. Relevant extracts from the SDA are at Attachment C.
Finding
The licensee did not breach the licence condition set out inparagraph 7(1)(h) of Schedule 2 to the BSA.
Reasons
The ACMA’s jurisdiction
The ACMA, as an administrative body, has the power to form an opinion as to whether or not a licensee has committed a Commonwealth, State or Territory criminal offence, for the purpose of deciding whether a licensee has breached the licence condition set out inparagraph7(1)(h) of Schedule 2 to the BSA.
The ACMA is not limited to forming such an opinion after an adjudication of criminal guilt by a criminal court.The formation of such an opinion by the ACMA may occur independently of any trial or conviction for a criminal offence.The ACMA particularly notes that any formation of such an opinion by it, or reliance on that opinion for the purpose of taking further action as contemplated by the BSA, does not, and could not, amount to an adjudication of criminalguilt in the manner in which a court’s decision would operate.
The ACMA’s opinion is to be formed on the civil standard of proof, that is,to the reasonable satisfaction of the ACMA (on the balance of probabilities): Rejfek v McElroy (1965) 112 CLR 517.However, the ACMA is mindful that formation of an opinion about the commission of an offence is a serious matter and of the general rule that, as the gravity of the consequences of a finding increase, so too does the weight of proof which should be required: see Briginshaw v Briginshaw (1938) 60 CLR 336.
The Surveillance Devices Act 2007 (NSW)
The long title to the SDA describes it, among other things, as an Act ‘to regulate the installation, use, maintenance and retrieval of surveillance devices’. The term ‘surveillance device’ is defined in subsection 4(1) of the SDA to include a range of devices including a ‘listening device’. A ‘listening device’ relevantly means ‘any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation ...’. The ACMA is satisfied that the reporter’s camera and microphone are surveillance devices within the meaning of the SDA.
Paragraph 7(1)(b) in Part 2 of the SDA creates a prohibition on a person ‘knowingly’ installing, using or causing to be used, or maintaining,a listening device ‘to record a private conversation to which the person is a party’.
‘Private conversation’ is defined in subsection 4(1) of the SDA to mean:
any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:
(a) by themselves, or
(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,
but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.
In determining whether the licensee has acted contrary to the SDA, the ACMA must consider whether the words recorded and broadcast by the licensee(that is, the words of the unidentified persons attending the celebration)were a ‘private conversation’.
In this case, the ACMA does not consider that the words recorded and broadcast by the licensee were a private conversation, as that term is defined for the purposes of the SDA. Those words were audible to employees or agents of the licensee standing on public land outside the fence surrounding the building in which the ‘Mad Monday’ celebration was taking place. Although the words were captioned in the broadcast to assist viewer understanding, it is clear that the unidentified speakers had raised their voices to such an extent that they could be heard through an open window by the licensee’s television crewpositionedwell outside of the room in which the celebration was being held.
The ACMA is satisfied that the relevant words were spoken in circumstances in which the parties to the conversation ought reasonably to have expected that it might be overheard by someone else.
The ACMA notes that investigations by the Bulldogs management and the NRL[1] found that some of the comments reported by the media should not have been construed as directed to reporters, but accepted that the language was unquestionably offensive and loud, and that the Bulldogs club was aware of the presence of media cameras and the likelihood of their actions being recorded.
While some of the words that were recorded and broadcast by the licensee may have been specifically directed at the employees or agents of the licensee, who would have been recognisable as a television crew, it is not necessary to make a finding in that regard in order to be satisfied that the words that were recorded and broadcast were not a private conversation, as that term is defined for the purposes of the SDA.It is sufficient that the spoken words were so loud as to be able to be heard at a distance (which the broadcast itself corroborates and the NRL investigation accepts), to conclude that the words were not a private conversation, as that term is defined for the purposes of the SDA.
Accordingly, no breachof section 7 of the SDA by using a listening device to record a private conversation can have occurred. Nor did the licensee breachsection 11 of the SDA.
Subsection 11(1) of the SDA provides that:
A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.
As indicated above, the ACMA takes the view that the conversation in question was not a private conversation for the purposes of the SDA. Accordingly, no breach of s11 of the SDA can have occurred.
Paragraph7(1)(h) of Schedule 2 to the BSA prohibits the use of a broadcasting service in the commission of an offence. As noted, the ACMA does not consider an offence under the SDA has been committed in connection with this broadcast. Accordingly, the licensee has not breached the licence condition set out inparagraph 7(1)(h) of Schedule 2 to the BSA.
Attachment A
Anchor: Good evening, Mad Mondays are exactly that, ‘mad’. But today it got ugly as the Bulldogs drowned their sorrows - a night and morning of drinking led to some club members hurling sexist abuse at the waiting media. The club boss has told Nine News they are investigating.
Reporter:
Bulldogs players arrive at Belmore Oval this morning dressed as cartoon characters for Mad Monday celebrations. It was meant to be good fun until this:
[unidentified speaker] [captioned]: There’s some [old?] ladies here to stick their heads in your pants [captioned]
Reporter:From the room where the players’ party began, sexist abuse hurled from the window at the media waiting outside.
[unidentified speaker] [captioned]: ‘S***’ me off you dumb dog’
[unidentified speaker] [captioned]: ‘I wanna go and punch you in the face’
The abusers kept their faces hidden and it’s unclear who was in the room with the team at the time.
As the players moved their party to the field, more beer was brought in. Men letting off steam after a disappointing end to a long season. Staff tried to turn our cameras away.
‘Isn’t enough enough guys ‘***n hell’ *** off will yez?’.
The bulldogs have worked hard as a club to turn their image around and be family friendly, NRL players take workshops in ‘social responsibility’ and ‘respect for women’.
Whatever the reaction today, Bulldogs fans last night were loyal to the end.
A few sad eyes at the final result but giving credit where it’s due:
‘the best team won but go you mighty Bulldogs’.
Then to the beat of the drums they spilled onto the streets of Belmore. The great cultural melting pot of Doggies supporters waving and dancing under watchful eyes.
But the mood was fun, too much for some [footage of a police arrest].
A few tempers flared, four people arrested but by and large the Doggies fans drowned their sorrows with a smile. Too good to be ruined by today’s rude reception.
Anchor: Live now to [Reporter] at Belmore Oval. [Reporter] some pretty ugly language there today. Will any action be taken against those involved?
Reporter: Well Pete the NRL has asked the Bulldogs to investigate and I should point out that when these comments were made, the media were well back from the building on public property on the other side of a fence, the players were inside. If they were bothered by our cameras all they had to do was close a window.
I’ve spoken to the Bulldogs boss, [Bulldog’s CEO], this afternoon he’s told me that they are taking this matter extremely seriously – the club is going to be looking into who was in that room at the time, whether it was players or staff and who may have made those comments. [Anchor].
Anchor: [Reporter] Thank you.
Attachment B
Licensee’s submissions
The licensee submitted with respect to the ACMA’s jurisdiction in this matter:
[T]he ACMA has no jurisdiction to determine whether Nine has committed a criminal offence (in this case, a breach of the SDA). Unless and until a court of competent jurisdiction made such a finding, the ACMA cannot make any determination that a licensee had breached the SDA, and in doing so, breached ... section 7(1)(h) of the BSA.
The determination of criminal offences is a matter for the courts. The ACMA is not a judicial body and cannot exercise judicial powers. The powers vested in the ACMA by the BSA must of course be read subject to the Constitution. To suggest that the ACMA could perform a judicial function is contrary to Constitutional principles governing the separation of powers.
The impropriety of such a notion is further illustrated by the fact that in a criminal investigation and prosecution, a defendant is afforded a number of important protections including rules of evidence and privilege, the presumption of innocence, indictable offences to be tried by jury, the crown, bearing the onus of proof and the standard of the applicable burden of proof.
...
Breaches of the SDA are criminal offences, involving potential custodial sentences of up to 5 years per offence for individuals, and accordingly, allegations and determinations of breach are most serious matters. The legislation itself has a further protection enshrined within it; pursuant to section 56 of the SDA the written consent of the Attorney General is required to be given before any prosecution can be instituted. This demonstrates a further inconsistency with any suggestion that determinations of breach of those provisions could be made by the ACMA.
In the present case, the complainant indicated to the ACMA that he/she intended to refer allegations of breach of the SDA to the Attorney General. ...Though Nine and its employees absolutely deny any allegation of breach, that fact is an extremely relevant matter to Nine and again reinforces the points above...
With respect to the broadcast’s compliance with the relevant licence condition, the licensee submitted:
...
Nine denies that it or any of its employees acted in any way contrary to the SDA. Nine has provided submissions in the form of the observations below, but makes no admissions in relation to any alleged breach of the SDA, does not waive any privilege to which it or any of its employees are entitled and fully reserves its and their legal rights. Nine maintains ... that Nine should not reasonably be required to provide further information in relation to such an allegation.
...
The complainant gives no indication in his/her letter that he/she was one of the speakers and makes no assertion that he/she has any first-hand knowledge of the circumstances. If the complainant is not one of the speakers, how can the complainant reasonably or reliably assert that the speakers did not know (or that they even cared) whether they could be overheard? We are not aware whether the complainant has made any inquiries directly of the speakers, or is (for example) relying on media reports of a summary of an ALRC Report in which it makes reference to submissions made to it by the Bulldogs Club – at best, third- or fourth-hand hearsay.
The circumstances indicate the speakers did know they could be overheard by anyone outside and/or consented to being recorded. In any event, the comments were clearly spoken in circumstances in which any speaker ought reasonably to expect that they might be overheard. Nine notes in particular (and without admissions):
a)The complainant himself asserts that the journalist and cameraman were standing ‘approximately 40 metres from the building’ and ‘outside the fence’. Nine cannot verify but does not dispute the distance asserted. The fact the speakers’ voices are raised is evident from the broadcast. The ‘derogatory comments’ being made from the building could be clearly heard by the journalist and the Nine cameraman, and a cameraman from another media outlet who was present. There is no reasonable basis for any assertion that comments being yelled out a window, much less in the presence of a journalist and cameras, at such a volume as to be audible from approximately 40 metres away in these circumstances is a ‘private conversation’;