TSV/TSN31 Sydney - ACMA Investigation Report 2613

Investigation Report No. 2613

Investigation conclusion

The licensee of TSN31, Television Sydney (TVS) Limited:

• breached codes 2.4(c) and 2.4(d) [complaints handling] of the Community Television Broadcasting Codes of Practice 2004; and
• did not breach code 3.3(a) [violence or brutality] and code 3.4 [vilification] of the Community Television Broadcasting Codes of Practice 2004.

The complaint

On 9 March 2011, the Australian Communications and Media Authority (the ACMA) received a written complaint dated 7 March 2011 alleging that, on 4 December 2010, Television Sydney (TVS) Limited, the licensee of TSN31 (the licensee), had broadcast material during the program Gundam 00 which was likely to be in breach of the Community Television Broadcasting Codes of Practice 2004 (the Codes). The complainant lodged their complaint with the licensee at the same time.

Under the Codes, licensees have 60 days in which to respond to a Codes complaint. If they fail to do so, or if the complainant is not satisfied with the response, the complainant may then refer the matter to the ACMA for investigation.

The complainant contacted the ACMA by telephone on 23 June 2011, confirming that the licensee had not responded to her 9 March 2011 complaint.

The service

The licensee provides a service to represent the community interest of the general geographic area of the Sydney TV1 licence area.

The licensee states on its website that:

At TVS we are committed to providing an outlet for programs for all the communities of Sydney and our aim is to maximise the number of programs made here in Sydney. We like to be engaging and thoughtful; featuring issues that other television channels often ignore. We encourage innovative program styles where creative producers explore new formats and showcase emerging talent. Genuine not-for-profit community based program makers receive free program airtime.[1]

The program

Gundam 00 is an anime series, broadcast as 30-minute episodes by the licensee. The series is produced by Sunrise Inc, a Japanese animation studio. The Gundam 00 official English website states that the series is set in 2307 A.D., with the storyline featuring a power struggle for control over a new energy source between ‘three superpower blocs […] the Union, led by the United States of America; the Human Reform League, led by China, Russia, and India; and the AEU, led by Europe’.[2] The website further states that:

In this world of never-ending conflict, a private armed organization appears, dedicated to the elimination of war through armed force. Its name is Celestial Being, and it is in possession of "Gundam" mobile suits. With these Gundams, it begins armed intervention into all acts of war.

The particular episode which is the subject of the complaint was broadcast at 8.30 pm and was classified by the licensee as ‘M’ (Mature).

Assessment

The assessment is based on:

• the complainant’s letter to the licensee dated 7 March 2011;
• the complainant’s telephone conversation with the ACMA on 23 June 2011;
• the licensee’s written submission to the ACMA dated 29 July 2011;
• a copy of the Gundam 00 episode (episode one) broadcast on 4 December 2010, submitted by the licensee to the ACMA on 29 July 2011; and
• the licensee’s additional submission, provided to the ACMA on 13 September 2011, which was made in response to the ACMA’s preliminary investigation findings.

Issue 1 – Broadcasting material which may incite, encourage or present for their own sake violence or brutality

Relevant provision of the Community Television Broadcasting Codes of Practice 2004

Code 3 – Programming

[...]

Community Television stations will:

[...]

3.3Ensure no material is broadcast which may:

(a)incite, encourage or present for their own sake violence or brutality.

Complainant’s submission

The complainant’s 7 March 2011 submission to the licensee stated that:

I was watching your TV Channel at home and there was a cartoon depicting "ninja" type characters brandishing hand held weapons at one another with the obvious intent to harm and kill.

Licensee’s submission

The licensee submitted to the ACMA on 29 July 2011 that:

This is a Japanese anime (animated) series set in the year 2307AD - it is effectively a
sci-fi interplanetary war series.

[...]

TVS takes its responsibility in regards to the airing of program content very seriously, and both myself and our CEO [A] hold Certificates of Completion as Trained Content Assessors from the Australian Governments Classification Board. More often than not, we chose to err on the side of caution when classifying and airing our programs, as evidenced by the classifying of the very program under discussion, which was viewed and classified by the Australian Governments Classification Board as being “PG” rated, yet we chose to move this up to M as befits an 8.30pm time slot (I should add that the repeats of the show were also shown outside of “G / PG” time zones, at 1.00am to be specific).

Finding

The delegate finds that the licensee did not broadcast material the episode of Gundam 00 on 4 December 2010 which may incite, encourage or present for their own sake violence or brutality. Accordingly, the licensee did not breach code 3.3(a) of the Community Television Broadcasting Codes of Practice 2004.

Reasons

Under the Codes, community television licensees are required to classify programs in accordance with the Australian Government Classification Board’s Guidelines for the Classification of Films and Computer Games[3] (now administered by the Attorney-General and participating State and Territory Ministers).

It is noted that the DVD of Gundam 00 episode one was rated PG (Parental Guidance recommended) due to animated violence and infrequent use of coarse language.

The licensee’s submission that it applied a cautious approach in its classification of the episode, giving it an ‘M’ rating, is noted, as is the fact that the episode was broadcast at 8.30pm.

The classification guidelines provide that under the ‘M’ rating, moderate violence is permitted, if justified by context.

In considering the broadcast, it is noted that:

• the episode is animated, with action scenes that are highly stylised and not realistic;
• the episode is clearly fictional, given it is set in the future;
• the episode does contain instances of violence, including the use of weapons, however, these are considered moderate in impact, given there is little depiction of injury;
• a significant percentage of the episode is devoted to battle scenes, however, the impact is low, given the stylised nature of the imagery; the violence is justified within the context of the storyline, i.e. the reasons for the action scenes are well established; and
• the purpose of the action scenes is established as ‘the elimination of all war through armed force’.

Considering the moderate and stylised nature of the violence and the anti-war message portrayed in the episode, the delegate considers that the licensee did not broadcast material which may incite, encourage or present for its own sake violence or brutality.

Issue 2 – Broadcasting material which may stereotype, incite, vilify or perpetuate hatred against, or demean any person or group on the basis of religion

Relevant provision of the Community Television Broadcasting Codes of Practice 2004

Code 3 – Programming

[...]

Community Television stations will:

[...]

3.4Ensure material is not broadcast which may stereotype, incite, vilify, or perpetuate hatred against, or demean any person or group on the basis of ethnicity, nationality, race, chosen language, gender, sexual preference, religion, age, physical or mental ability, occupation, cultural belief or political affiliation.

Complainant’s submission

The complainant submitted to the licensee on 9 March 2011 that:

[…] I was shocked and greatly appalled by the repeated phrase that I heard, "all infidels must die".

I believe that it would be a breach of your code of practice and editorial policy to show any group of people (even cartoon characters) crying out that any one people group, whatever that group might be, "must die". I believe that it would be offensive to everyone who respects all people groups whether in the majority or minority to express the view that they "must die".

[...]

I repeat my objection - to call for the death of any one people group - is offensive and wrong. If the situation was reversed and "infidels" were calling out that "all muslims must die", may I suggest respectfully that your channel would remove the cartoon clip immediately.

[...]

In view of the fact that many Christians are being killed in Muslim countries e.g. Egypt and Indonesia (to name just two) and in the light of the tragedy of 9/11, I strongly urge that you view the cartoon clip again and communicate with me when you have done so.

Licensee’s submission

The licensee submitted to the ACMA on 29 July 2011 that:

At the time of [the complainant’s] initial complaint, I personally made a number of attempts to contact her, eventually spoke with her for about 15 minutes the first time. As requested by her, I then went and had another look at the segment of the program in question (which I had personally viewed a number of times before in my guise as Program Manager of TVS), did some research on the term which she had objected to, and called her back. Another 20 minute conversation ensued, and (as per my description below) I again tried to explain to her the program which aired, and the context with which the term infidel was used in this animated, sci-fi series.

[...]

At that time I advised her that I believed that the program was not offensive to any religious organisation, nor did it contravene a censorship rating of “M” which it was aired and promoted under.

The licensee provided a copy of an email with its submission of 29 July 2011. The email (dated 9 March 2011) was sent by the Station Manager to the CEO of the licensee stating that:

[…] we also received a letter today from [the complainant] which was cc'd to ACMA complaining about the anime we run on a Saturday night.

[...]

After my initial discussion with [the complainant], I viewed the program and then called her back and told her what the show was about, the history of Japanese anime, and explained to her that the show was in no way an attempt to denigrate Muslims or any other religion.

Further, I quoted to her the dictionary meaning of an infidel which was defined as "a person who has no religious faith; unbeliever". ie: it was a term used in this context to identify any and all people on this planet who did not comply with the faith (undefined) of the rulers of the planet.

Throughout the series, it does not identify any known current religion; in some ways it is not dissimilar to the underground people in the Planet of the Apes series of movies who worship a bomb.

Finding

The delegate finds that that the licensee did not broadcasting material in the episode of Gundam 00 episode on 4 December 2010 which may, stereotype, incite, vilify or perpetuate hatred against, or demean any person or group on the basis of religion. Accordingly, the licensee did not breach code 3.4 of the Community Television Broadcasting Codes of Practice 2004.

Reasons

In assessing whether the licensee breached code 3.4 of the Codes, it must be determined whether the broadcast included material which may stereotype, incite, vilify or perpetuate hatred against or demean a person or group, on the basis of religion.

The Macquarie Dictionary Online[4] defines the relevant terms of code 3.4 of the Codes as follows:

stereotype […] verb […] 6. to characterise according to a conventional idea or concept;

incite […] verb […] to urge on; stimulate or prompt to action.

vilify […] verb […] 1. to speak evil of; defame; traduce: […]

perpetuate […] verb […] to make perpetual; preserve from oblivion.

hatred […] noun the feeling of someone who hates; intense dislike; detestation.

demean […] verb […] 1. to lower in dignity or standing; debase:

The test at code 3.4 of the Codes is an objective one. In determining whether the requirements of the Codes have been met, the delegate has considered what an ordinary, reasonable viewer would have understood the relevant broadcast to have conveyed, rather than the actual reaction by an individual. An ordinary, reasonable viewer has been considered by courts to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable viewer 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.[5]

The episode of issue opens to animated visuals of a large mountain range and valley, with fires burning in the distance. The words ‘A.D. 2301 KRUGIS REPUBLIC’ appear, establishing that the storyline is about a futuristic world.

The next scenes feature humans involved in a gun battle with huge robot-like creatures, with the accompanying voice over:

This battle is a holy war in the name of god. We shall strike down the infidels who disrespect our traditions and lay waste to the land of god. We must not submit to the infidels. By dying in battle, we will be led into the presence of god.

One of the humans fighting the robots then says:

In this world there is no God.

After some additional animated battle footage, the opening credits are shown. The episode then provides a flashback to the origins of the war.

In considering what an ordinary, reasonable viewer would have understood the episode to have conveyed, it is important to consider the additional contextual elements of the broadcast. In this regard, it is noted that:

• the episode is animated, with action scenes that are highly stylised and not realistic;
• the episode is clearly fictional, given it is set in the future; and
• there are no visuals or remarks identifying is referred to by the use of the term ‘infidels’ to, i.e. the religious affiliations of the combatants are not specified.

The Macquarie Dictionary Online defines the term ‘infidel’ as:

Infidel [...] noun [...]

1. an unbeliever.
2. someone who does not accept a particular religious faith, especially:

a. (among Christians) someone who does not accept the Christian faith (formerly applied especially to a Muslim).

b. (among Muslims) someone who does not accept the Muslim faith.

–adjective

3. without religious faith.
4. due to or manifesting unbelief.
5. not accepting a particular faith, especially Christianity or Islam; heathen.
6. rejecting the Christian religion while accepting no other; not believing in the Bible or any divine revelation.
7. of or relating to unbelievers or infidels. [late Middle English, from Latin infidēlis unfaithful, Late Latin unbelieving]

It is apparent from the above definitions that the term ‘infidel’ may be interpreted differently depending on its usage.

Code 3.4 of the Codes sets a high threshold test for the likely effect of prohibited behaviour. It is not sufficient for a broadcast to have induced dislike or a mild degree of contempt. The Codes requirement is that the likely reaction of the ordinary, reasonable viewer is strong.

In the context of the broadcast at issue, it is unlikely that an ordinary, reasonable viewer would have understood the use of the term ‘infidel’ was intended to stereotype, incite, vilify, perpetrate hatred or demean any group on the basis of religion.

Issue 3 – Complaints handling

Relevant provisions of the Community Television Broadcasting Codes of Practice 2004

Code 2 – Handling complaints from the public

2.4Licensees will ensure that:

(a) complaints will be received by a responsible person in normal office hours;

(b) complaints will be conscientiously considered, investigated if necessary and responded to as soon as practicable; and

(c) complainants will be advised in writing within 60 days of receipt (as required in the BSA Section 148), and will include a copy of the Community Television Code of Practice.

(d) complainants will be advised in writing that they have the right to refer their complaint to the ABA [ACMA] provided they have first:

(i) formally lodged their complaint with the licensee

(ii) received a response from the licensee and are dissatisfied with this response

Complainant’s submissions

The complainant submitted to the licensee on 7 March 2011 that:

I rang your channel immediately i.e. in the evening of 6th December, to express my genuine concern and register a complaint. I was disappointed and upset when I did not receive a satisfactory reply. Indeed, after many attempts to contact the manager, (I was told that his name was [C]), he finally told me that he had reviewed the clip and had not found it offensive and would have no hesitation in repeating it again. When I asked him about the term "infidel" he said "well, that was anyone who was not a Muslim".

On 23 June 2011, the complainant confirmed to the ACMA that she had not received a response from to her complaint from the licensee.

Licensee’s submissions

The licensee submitted to the ACMA on 29 July 2011 that:

As I understand it, [the complainant] lodged a formal complaint with your office on the 7th March, 2011. I also received a copy of the letter at that time. To put a better time line on this, as I believe that [the complainant] may have been a bit confused in her reporting of this matter:- The program in question aired on the Saturday 4th December at 8.30pm, not Sunday 6th December.

[...]

TVS office hours are Monday – Friday, 9.00am – 5.00pm (we are a small company with only
5 full time staff). An attempt was made to call [the complainant] on Monday 6th December and
Tuesday 7th December, however the number rang out on these occasions.

Later that week, I personally spoke with [the complainant] and discussed the program with her (as noted in her letter of the 7th March). This was consequently followed up by a further conversation some time later, as she was not satisfied with the initial response.

On both occasions she threatened to complain to ACMA if we did not immediately withdraw the program. On both occasions I informed her that she was well within her rights to make a complaint, and even offered to give her the contact details to do so.

[...]

In regards to your other requests; at the time of [the complainant’s] initial complaint, I personally made a number of attempts to contact her, eventually spoke with her for about 15 minutes the first time. As requested by her, I then went and had another look at the segment of the program in question (which I had personally viewed a number of times before in my guise as Program Manager of TVS), did some research on the term which she had objected to, and called her back. Another 20 minute conversation ensued, and (as per my description below) I again tried to explain to her the program which aired, and the context with which the term infidel was used in this animated, sci-fi series.