Investigationreport no. BI-271
SummaryLicensee / Foxtel Cable Television Pty Limited
Station / FOX SPORTS 2
Type of service / Subscriptionbroadcast—television
Name of program / The Fall program promotion
Date of broadcast / 9 October 2016
Relevant code / Subscription Broadcast Television Codes of Practice 2013
Date finalised / 9 February 2017
Decision / No breach of code 2.3 [program promotions and news updates]
Background
In December 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section170of the Broadcasting Services Act 1992(the BSA) intoThe Fall program promotion (the program promotion).
Theprogram promotionwasbroadcast on FOX SPORTS 2 by Foxtel Cable Television Pty Limited (the licensee) on 9 October 2016 on two occasions—at approximately8.00pm and 9.00pm (AEDT). The program promotion was broadcast during live coverage of the South Africa vAustralia - One Day International(ODI) cricket match.
The ACMA received a complaint allegingthe program promotion contained material that wasunsuitable for young children. The ACMA notes that the complainant was in Western Australia (WA) at the time of the broadcasts so would have viewed the program promotions at approximately 5.00pm and 6.00pm.
The ACMA hasinvestigatedthe licensee’s compliancewith code 2.3 of theSubscription Broadcast Television Codes of Practice 2013 (the Codes).
The program promotion
The program promotion of 30 seconds duration was for series three ofThe Fall, a psychological thriller about a detective who is pursuinga serial killer.
The series was available to view on BBCFIRSTfor subscribers of that channel in theirFoxtel subscription. Series threeof The Fall was classifiedby the licenseeas MA15+ for ‘Strong themes and violence’.
A description of the scenes and audio for the program promotionis at Attachment A.
Assessmentand submissions
When assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone, imagesand any inferences that may be drawn. This is assessed according to the understanding of an ‘ordinary reasonable’ viewer.
Australian 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.[1]
Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Codes.
This investigation has taken into account the complaint (at Attachment B) andsubmissions from the broadcaster (at Attachment C). Other sources are identified as relevant.
Issue: Protect children from unsuitable material in program promotions
Relevant Code provision
2.3 Program Promotions and News Updates
Licensees will have particular regard to the need to protect children from unsuitable material in program promotions, news updates and news promotions.
The content of program promotions, news updates and news promotions will be consistent with the classification of the programs (if classified) during which updates or promotions appear and will, where practicable, include classification information about the programs being promoted, (see Part 3 of these Codes).
Program promotions, station promotions and advertisements must be readily distinguishable from program material.
Finding
The licenseedid not breach code 2.3 of the Codes.
Reasons
To assess compliance with code 2.3, the ACMA addressed the following questions:
What was the content of the program promotion?
Was the content of the program promotion consistent with the classification of the program (if classified) during which it was broadcast?
Was the program promotion readily distinguishable from program material?
Did the licensee have particular regard to the need to protect children from unsuitable material in the program promotion?
The complainant submitted:
Whilst watching this cricket match with my children (6 and 9) on numerous occasions a trailer for The Fall was run during the ad breaks. I do not believe that this content was suitable for young children - I refer specifically to the opening line, "You'll never know the almost God-like power that I feel when that last bit of breath leaves a body" with images of gloved hands twisting fabric as if strangling someone, as well as the hooded figure opening the window.
The licensee submitted:
The Promotion depicts short scenes from the television program The Fall and contains a voiceover and illustrated text graphics. The Promotion features some very discreet visual and verbal references to violence, relying on the viewer's prior knowledge of the characters and circumstances for its impact. It is considered that the impact is no greater than mild and that the Promotion has a low level of threat or menace.
What was the content of the program promotion?
The program promotioncontained brief, edited excerpts of material from The Fall program, with limited visual detail and dialogue.
There were no explicit visual depictions of violence or weapons. There was a three second depiction of a distressed woman, holding a man in her arms and shouting, ‘we’re losing him’;however, there were no visible signs of injury on the man and any potential harm was discreetly implied.
The ACMA notes the complainant’s concern about a shot of a piece of fabric being twisted by a pair of gloved hands with a voiceover stating, ‘you will never know the power that I feel when that last bit of breath leaves a body’.While this visual depiction and the accompanying dialogue, together, implied violence, there was nothing in the promotion that explicitly depicted, or referred to, a violent act or crime being perpetrated against another person or the consequences of such violence.
Although the low lighting and shadowy images in some shots implied a sense of threat or menace, this was mitigated by the overall brevity and restrained presentation of the program promotion.
Was the content of the program promotion consistent with the classification of the program (if classified)during which it was broadcast?
Under code 3.1 of the Codes, only films, drama programs, documentaries and reality television programs are required to be classified. Sports programs are exempt from classification on subscription broadcast services.
The program promotion for The Fall was broadcast duringa sports program. As sports programs do not need to be classified, there was no requirement for the program promotion tobe consistent with a particular classification.
The ACMA notes that the program promotion displayed the relevantclassification information (MA15+) for the program beingpromoted.
Was the program promotion readily distinguishable from program material?
Paragraph three of code 2.3 requires that program promotions must be readily distinguishable from program material.
This element of code 2.3 is not disputed by the complainant. In any event,the ACMA notes that the broadcast program promotions were readily distinguishable from the live coverage of the South Africa v Australia - One Day International cricket match. The program promotionwas shown during breaks in play and unambiguously promoted the program, The Fall, along with information about the type of Foxtel subscription required to view it.
Did the licensee have particular regard to the need to protect children from unsuitable material in the program promotion?
The first paragraph of code 2.3 of the Codes provides that subscription television licensees are to have particular regard to the need to protect children[2] from unsuitable material in program promotions.
Whether the licensee has shown regard for protecting children from unsuitable material is assessed by the ACMA on a case by case basis.
As the sports program during which the program promotion was broadcast was not required to be classified, the ACMA has considered the following factors which, when taken together, would indicate tothe ordinary reasonable viewer whether or notthe program promotion was unsuitable for children.
These are:
the nature of the program promotion
the level of impact of the program promotion
the circumstances of the broadcast of the program promotion.
The nature of the program promotion
The program promotion was for an MA15+ classified television series about a detective who is pursuing a serial killer. Classification information provides audiences with guidance about program content and its impact including its suitabilityfor children.Material classified MA15+ is considered unsuitable for children under 15 years of age.
In contrast, the program promotion itself was brief and understatedand did not contain any explicit references or depictions concerning the plot and themes of The Fall. For example, there were no explicit visual or verbal references to serial killers, specific violent crimes and/or victims of those crimes.
Although the program being promoted centred on the pursuit of a violent criminal figure, the licensee demonstrated restraint by carefully and discreetly handling the mature thematic material in the promotion, relying largely on viewers’ knowledge of the characters and narrative across the previous two series.
While the ordinary reasonable viewer would have understood that the program The Fall was suitable for viewing by adults and children 15 years and older, the restrained presentation of the program promotion ensured that it was not unsuitable for younger viewers.
The level of impact of the program promotion
A key element of the classification system for content is an assessment of the impact of classifiable elements which help to determine the content’s classification category. Each classification corresponds to a level of impact according to a scaled hierarchy of impact—from the G classification for very mild impact to the R18+ classification for high impact. This hierarchy of impact is a useful indicator of whether content is unsuitable for children.
As discussed above, the program promotion represented a careful treatment of the content. There were no explicit references to, or visual depictions of, injury, violence or weapons and the promotion’s overall sense of threat or menace was low.The ACMA considers that the impact of the program promotion was no greater than mild. Under the classification system, material that is mild in impact may be accommodated at the PG classification which recommends adult supervision for children under 15 years.
The ACMA is of the view that the ordinary reasonable viewer would consider the mildly menacing tone and implied mature themes in the promotion were appropriate for generatinginterest amongst older children and adults whilst remaining suitable for children under 15 years with guidance from a parent or guardian.
The circumstances of the broadcast of the program promotion
The program promotion was broadcast within a live cricket match on a dedicated subscription sports channel, FOX SPORTS 2.
The complainant submitted:
Sport, particularly when the national team is involved, is an event watched by families. If we can't watch the match live or if it finishes after the children have gone to bed, we record it to watch at a later date.
The licensee submitted:
The Channel is a dedicated sports channel and annual research demographics for the Channel for 2016 show that 93% of the national audience was aged 18 years and over. Due to the demographics of the Channel, the program promotions that are scheduled on the Channel are aimed at and intended to appeal to that particular audience.
The ACMA accepts the licensee’s submission thatthe target audience for the program promotion was primarily adults aged 18 years and over. Therefore, it was scheduled during a program known by the licensee to attract a primarily adult audience.
The ACMA is of the view that the audience demographic for a channelis not necessarily whollydeterminative of a particular program’s actual audience.[3] A range of factors are likely to influence the demographic of the actual audience at any one time.For example, how the program has been advertised, the time and day of week on which it was broadcast, and other viewing options at the time of broadcast.
The ACMA acknowledges that the program in which The Fall promotion was broadcast—a live international cricket match involving Australia—may have appealed to a broad range of ages, including adults who enjoy watching sport as a family with their children.
However, time zone restrictions do not apply to subscription television broadcasters because there is recognition that subscription audiences have different expectations about access to content. Further, these providers and their consumers have greater control over how content is delivered and accessed on these platforms.[4]
Subscription television services may therefore broadcast program promotions at any time, subject to meeting the Codes provision to have regard to the need to protect children from unsuitable content.
Conclusion
The nature of the program promotion, the level of impact of the program promotion, and the circumstances of the broadcast of the program promotion are indicative of the licensee’s particular regard to protect children from unsuitable material in program promotions.
In this case, the ACMA is satisfied that the licensee exercised caution in relation to the broadcast of The Fall program promotion by ensuring its impact was mild and by considering the likely audience for the program in which it was broadcast.
The ACMA also notes that the licensee has demonstrated a responsive approach to the complainantby advisingthat it will reconsider the scheduling of promotions for similar themed programs in future.[5]
As such, the ACMA considers the licensee has shown particular regard to the need to protect children from unsuitable material in the program promotion.
Accordingly, the licenseedid not breach code 2.3 of the Codes.
Attachment A
Transcript of The Fall program promotion, broadcast on FOX SPORTS2 on
9October 2016
Medium shot of a hooded figure through a window. The figure slides open the window. The figure’s face is obscured by shadow. / Male voice: you will never know the power that I feel when that last bit of breath leaves a body
Atmospheric background music / Nil
Close up of an outstretched arm moving through a darkened room with a shadowed objectheld in front of them. A light shines on high heel shoes in a glass display cabinet.
Close up of gloved hands twisting a piece of white fabric.
Close up of a man pulling off a balaclava.
Close up of a woman’s face whois speaking off screen to the viewer’s left. / Female voice: You are under arrest, in what sense are you free?
Atmospheric background music / Nil
Long shot of two men standing side by side next to a black car. To the left in the foreground is a woman in medium close-up with her head turned back towards the two men. / MA 15+ symbol in the bottom, left corner of the screen
Medium shot of a woman running toward the camera on an oblique angle toward the lower right of the screen, starting to crouch down. / MA 15+ symbol in the bottom, left corner of the screen
Close up shot of a man lying in a woman’s arms. The woman looks down at the man and then shouts to someone off-screen. The woman’s expression indicates a level of distress. / Female voice [distressed]: We’re losing him!
Atmospheric background music / Nil
Black knitted fabric that is unravelling down the middle. / Sounds effects: Faint police sirens
Atmospheric background music / The final chapter unravels
Long shot of a woman walking down a corridor of a hospital toward the camera. / Male voice: It’s not over between us…in fact it’s just begun
Atmospheric background music
Medium close up of a woman.
Close up of a man in a hospital bed with a tube in his mouth. His eyes are closed and then they open. / Male voiceover: The new series of the Fall, starts October 20 on BBC First / STARTS OCTOBER 20
THURSDAY 8.30PM
WA 5.30PM
New Series
The Fall
BBCFIRST bbc.com/first
Split screen
Left side: text
Right side: Medium close up of a woman who is looking down toward the left of the screen. She then looks up toward the top of the screen.
TEXT ONLY / Atmospheric background music fading out
Sound effect: Foxtel Logo sound / FOXTEL
Get BBCFIRST in the drama pack
Attachment B
Complaint
Complaint to the licensee dated 11 October 2016
I wish to complain aboutthe content of some programme promos that were aired during last Sunday’s South Africa vAustralia ODI match. There were several that were not suitable for children, in particular the promo for The FaIl which refers to comments made by the male character about murdering women.
As a family we watch a variety of sports together, particularly cricket, rugby, football and Moto GP. If we can, we watch the event live, although due to different time zones I often record the programme to either watch as a family at a later date, or for my children to watch thefollowing day(s) if they wish.
I should not have to have my hand hovering over the remote control in preparation for every ad break in case something unsuitable comes on screen.