Investigation Report 2401

File Nos. / ACMA2010/819
Broadcaster / TCN Channel Nine Pty Ltd
Station / TCN
Type of service / Commercial television broadcasting service
Names and dates of programs / Nine News9 March 2010
Relevant Code / Clauses4.3.1, 4.3.11and 4.4.1 of the Commercial Television Industry Code of Practice 2010
Decision / Breach of clause 4.3.1 [factual accuracy]
No Breach of clause 4.3.1 [factual accuracy]
Breach of clause 4.3.11 [correction of significant errors of fact]
No Breach of clause 4.3.11 [correction of significant errors of fact]
Breach of clause 4.4.1 [present news fairly and impartially]

The complaint

The complaint relates to a news item broadcast by TCN Channel Nine Pty Ltd, the licensee of TCN, on Nine Newson 9 March 2010. The complainants allege that statements made in the news reportwere inaccurate and unfair.

The complaint has been investigated in accordance with clauses 4.3.1, 4.3.11and 4.4.1 of the Commercial Television Industry Code of Practice 2010(thecode).

Matters not pursued

The complainantsraised concerns about their financial and reputational damage. These matters are not covered by the code and accordingly they have not been pursued in this investigation.

The program

Nine News is a news program broadcast at 6.00 pm daily. The relevant news item was introduced, by the presenter as follows:

We expose the pubs and clubs trying to hide booze-fuelled violence.

Some of Sydney’s most popular pubs and clubs are being caught trying to hide violent and drunken incidents. They failed to report bad behaviour and now they have been fined.

A transcript of the full news report is at Appendix A. It included an interview with the NSW Gaming Minister and a spokesperson from the Hotels Association as well as further details about the introduction of ‘tougher restrictions’ and details about specific named venues.

The complainants are the proprietors of two of the venues named in the segment (referred to here as A and B).

Assessment

This investigation is based on submissions from the complainant and the licensee and copies of broadcasts provided to the ACMA by the licensee. Other sources used have been identified where relevant.

Issue 1: Presentation of factual material and representation of viewpoints

Relevant code clause

To the extent that the complaint relates to the accurate presentation of factual material, therelevant clause of the code is clause 4.3.1:

News and Current Affairs Programs

4.3In broadcasting news and current affairs programs, licensees:

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

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

The considerations which the ACMA generally applies in determining whether or not a statement complained of was compliant with the licensee’s obligation to present factual material accurately include the following:

  • The meaning conveyed by the relevant statement or footage is assessed according to what an ‘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, not avid for scandal. An ordinary, reasonable listener 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.[1][ ]

  • 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.
  • 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.

Issues

The following matters have been identified which the complainants submit are inaccurate[2]:

a)Statements to the effectthat pubs and clubs had deliberately tried to hide incidents of violent and drunken behaviour;

b)A statement that “none of the hotels caught by inspectors were willing to comment, instead leaving the explaining to their Association”; and

c)An implication that the non-compliance was recent.

Findings

The licensee breached clause 4.3.1 of the code in relation to the following:

  • ‘We expose the pubs and clubs trying to hide booze-fuelled violence’;
  • ‘Some of Sydney’s most popular pubs and clubs are being caught trying to hide violent and drunken incidents’; and
  • ‘None of the hotels caught by inspectors were willing to comment…

The licensee did not breach clause 4.3.1 in relation to the following:

  • ‘…instead leaving the explaining to their Association’; and
  • animplication that the non-compliance was recent.

Statements that pubs and clubs had tried to hideincidents of violent and drunken behaviour

Broadcast material

The relevant material includes the following:

Presenter: We expose the pubs and clubs trying to hide booze-fuelled violence.

Presenter: Some of Sydney’s most popular pubs and clubs are being caught trying to hide violent and drunken incidents.

The reporter went on to name various pubs and clubs, including A and B, which had been ‘caught’:

Reporter: … Over the last 18 months, 19 of the 66 pubs and clubs with poor track records were busted, including …both [A] and [B] in [suburb]. All failed to keep log books up-to-date detailing drunken behaviour or violence. They already have extra restrictions, including lock out periods, plastic cups and drink limits. Each was fined $1,100 or received official warnings.

Complainants’ submissions

The complainants, in their letter to the ACMA, submitted that:

The segment suggested our clients had deliberately tried to hide incidents of violent and drunken behaviour occurring inside and outside their premises which they were required to log under Government Regulations. Nine News claims [in its response to the complainant’s letter of complaint] that the segment merely related to ‘irregularities’ in relation to the keeping of incidents logs and that our clients had failed to keep incidents logs in the approved form.

It is not accurate or fair to describe a failure to record the information on an approved form, as ‘hiding’ the information or seeking to avoid recording it when it was actually recorded on the previously approved form.

The complainants, in their letter to the licensee, submitted that:

Had they been given the opportunity to do so, our clients would have been in a position to confirm that the information apparently obtained by Channel Nine was false. Moreover, the only issue our clients may have raised in this context, trivial as it is, is that our clients received a compliance notice from an inspector in early 2009, for not using the official OLGR Incident Register introduced in January 2009, when our clients were using the previously approved Register issued by the Rocks Police and City of Sydney Council to record any incidents as required.

Licensee’s submissions

The licensee submitted that:

…the Government records list both [A and B] as venues which failed to keep up-to-date log books detailing drunken behaviour and violence. Nine submits that this statement …is derived from the facts set out …above [records from the NSW Government’s Office of Liquor Gaming and Racing list both [A and B] as having failed to keep an incident register in the approved form]. In Investigation Report 1912, the ACMA states that inferences of a factual nature made from observed facts would usually still be characterised as factual material and that to be an opinion, the inference must be of a judgemental or contestable kind. Nine considers that an ordinary, reasonable viewer would not see this statement as judgemental or contestable when considered in the context of the entire Segment.

…

The licensee provided a document dated 1 February 2010, which it accessed from the NSW Office of Liquor, Gaming and Racing (OLGR) under the Freedom of Information Act 1989. The document stated that A and B failed to ‘keep an incident register in the approved form’ on 7 May 2009 and 27 April 2009 respectively.

Assessment

Do the relevant statements constitute factual material?

The licensee has submitted that the statements were based on information obtained from the OLGR and, as such, constitute inferences of a factual nature. The licensee contends that the ordinary reasonable viewer would not see the statement as judgemental or contestable when seen in the context of the entire segment. The licensee has noted that inferences of a factual nature are also subject to the accuracy requirement.

The delegate agrees that the statements should be characterised as statements of fact. There was nothing in the natural and ordinary meaning of the language used and the substantive nature of the message conveyed to indicate that the statement was an expression of opinion. To this end, therelevant statementswere presented in an unequivocal and unquestioning manner. Accordingly, an ordinary reasonable viewer would have understood the statements under consideration to be factual material as opposed to an expression of opinion.

What would the statements have conveyed to an ordinary reasonable viewer?

The ordinary reasonable viewer would have understood from the relevant statements that various pubs and clubs, including venues[A and B] had been caught attempting to conceal, cover-up or hide (the relevant incidents).The use of the word ‘hide’ suggests a deliberate attempt to obstruct and to conceal the relevant information/incidents.

The Macquarie Dictionary (Fourth Edition) defines the verb ‘to hide’ as:

verb (hid, hiddenorhid, hiding)
–verb (t) 1.to conceal from sight; prevent from being seen or discovered.
2.to obstruct the view of; cover up: the sun was hidden by clouds.
3.to conceal from knowledge; keep secret: to hide one's feelings.
–verb (i) 4.to conceal oneself; lie concealed.

Was the information conveyed accurate?

The ACMA has not been provided with information that supports the assertion that either venue [A or B] had attempted, deliberately, to hide, conceal or cover-up the relevant information/incidents or that they had been ‘caught’ by the relevant authorities doing so.

The licensee has provided documentary information (a letter, dated 1 February 2010, from the OLGR) stating that the relevant venues had been issued with non-compliance notices for failing to keep an incident register in the approved form. The letter attaches a ‘list’ of all the premises to have received a) compliance notices and b) penalty notices or any other action concerning irregularities in their Incident Log since July 1 2008. However, this information, in and of itself, does not equate to or provide substantiation of a deliberate attempt to ‘hide’ the relevant information/incidents.

The relevant code provision requires accuracy to be assessed in the context of the segment in its entirety. Accordingly, the delegate has considered whether there was other relevant and clarifying information in the segment as a whole. In this regard, the segment makes reference to the actual non-compliance notices issued in the following terms:

Over the last 18 months 19 of the 66 pubs and clubs with poor track records were busted, including...[A and B] in [name of suburb]. All failed to keep log books up-to-date detailing drunken behaviour or violence. They already have extra restrictions, including lock-out periods, plastic cups and drink limits. Each was fined $1,100 or received official warnings.

However, because the statements asserting concealment and/or attempts to concealment of the information/incidents were made twice and at the outset of the segment, the ordinary reasonable viewer would have been left with the impression that the key issue was the concealment. The subsequent information (see quote directly above), appearing as it does after these strong opening statements, would likely have been understood as additional to the original assertion as opposed to information which would have clarified the matter.

A statement that ‘none of the hotels caught by inspectors were willing to comment, instead leaving the explaining to their Association’

Broadcast material

The relevant material is the following statement by the reporter:

None of the hotels caught by inspectors were willing to comment, instead leaving the explaining to their association.

The complainants’ submissions

In relation to its willingness to provide comment, the complainants submitted that:

While we are instructed that a journalist from Channel Nine did telephone our clients’ office at 11am yesterday, a telephone message was left with reception to return the call. Our clients did not decline to comment at any time prior to publication.

In response to a request, by the ACMA, for additional relevant information, the complainants submitted, regarding the ‘telephone message’, referred to above that:

The message left by the journalist from Channel Nine states, ‘Regarding Licensing and Security matters’. It says no more.

The Marketing Manager did not receive this message until she returned to the office at 6pm that evening when it was too late to contact the journalist as it turned out before the broadcast. Our clients did not ‘elect’ not to return the journalist’s call. If the journalist had left a message stating that he wished to report something about our clients in the evenings’ news and was seeking their comment then the receptionist would have been under no doubt as to the reason and the timing of the telephone call.

Our clients would have spoken to the journalist had they been given the opportunity to do so and had they realised the nature of the request for information or comment. Instead, it appears comment was sought at the last moment by the journalist from our clients, when he realised that no comment had been sought prior to the day on which the news was to be broadcast.

It was inaccurate for Channel Nine to report that our clients were ‘not willing to comment’ as they were unaware of the allegation about which comment was sought and were not given a reasonable or sufficient time to make any comment.

The complainant provided a copy of an email sent from the complainants’ receptionist to the Marketing Manager. The email was sent by a receptionist on 9 March 2010 at 11.16 am to a recipient (understood to be the complainants’ marketing manager).

The subject of the email is recorded as ‘Media Enquiry’. The body of the email is as follows:

Hi [name of Marketing Manager]

[Name of channel nine reporter]
9 News
Regarding Licensing and Security matters
[mobile phone number of channel nine reporter]

Thanks

[Name of receptionist]

In relation to that part of statement which alleged that the complainants (and others) had ‘left the explaining to its Association’ the complainants’ submissions included the following:

Nine News suggests that in the interests of fairness the reporter sought comment from the Australian Hotels Association to speak on behalf of the industry.

We are instructed that that person was interviewed on 8 March 2010, prior to the reporter attempting to contact our clients for comment on 9 March 2010 (only hours before the broadcast). In that event, the industry spokesman was not speaking on behalf of our clients and the statements made by Nine News in the segment were untrue and unfair in relation to our clients.

...

...our clients did not ‘leave the explaining to the Association’, which we note had been contacted some days prior to the journalist’s call to our clients’ reception. The statement that our clients left the explaining to the Association was untrue because the journalist sought our clients’ comment after an explanation had already been obtained from the Association