ACMA media release 120/2008 – 8 October

8 October 2008

TEN breached code by broadcasting material below or near the threshold of normal awareness during 2007 ARIA Awards

The Australian Communications and Media Authority has found that the Ten Network breached the Commercial Television Industry Code of Practice 2004 (the code) during the broadcast of the 2007 ARIA Music Awards on 28 October 2007 by transmitting images below or near the threshold of normal awareness.

Several complaints were received by ACMA about the inclusion of brief displays of sponsor’s logos during the nomination segments of the program.

ACMA reviewed the relevant material at slow speed and frame by frame. It found that the rapid-cut graphics used in the program was a ‘technique’ that attempted to convey information to viewers below or near the threshold of normal awareness, which is a breach of clause 1.8.4 of the code.

ACMA notes the Ten Network’s submission that the rapid-cut graphics were intended to be creatively consistent with the fast-paced look and feel of the music presentations. However, the code imposes clear rules regarding the use or involvement of ‘any technique’ which attempts to convey information to viewers.

In response to the breach findings, Network Ten will:

• distribute the investigation report to relevant production staff (both in-house and external) to ensure that future productions of ARIA Awards are consistent with ACMA’s view;
• not use the same rapid cut use of sponsor logos for the upcoming 2008 ARIA Music Awards;
• use the finding as an example in regular code training sessions with staff, to ensure future compliance; and
• highlight the code clause in their external production agreements.

ACMA considers this action as proportionate, given that this is the first breach of this kind by the licensee and that the network will not use this technique in the upcoming 2008 ARIA Music Awards.

ACMA forewarns the industry that a future breach will result in significantly heightened compliance measures.

A copy of a combined investigation report 1958 to 1961 is available on the ACMA website.

Media contact: Donald Robertson, ACMA Media Manager, on (02) 9334 7980.

Backgrounder

ACMA conducts various types of investigations under the Broadcasting Services Act 1992 (the BSA). Investigations under Part 11 of the BSA are conducted in response to complaints received by ACMA relating to a possible breach by:

• a licensed broadcaster: of the BSA, the regulations, a licence condition, a class licence or a code of practice; or
• the ABC or SBS: of a code of practice.

Role of ACMA

ACMA’s role in dealing with complaints under industry codes is prescribed by the BSA. Under section 148 of the BSA, a code complaint must be made first to a licensee and can only be made to ACMA if the complainant is not satisfied with the licensee’s response. In addition, ACMA can instigate its own investigation and the Minister for Broadband, Communications and the Digital Economy can direct ACMA to conduct an investigation.

ACMA’s performance of this role is informed by section 5 of the BSA, which requires ACMA to, among other things:

• produce regulatory arrangements that are stable and predictable;
• deal effectively with breaches of the legislation; and
• use its powers in a manner that is commensurate with the seriousness of the breach concerned.

This requires ACMA to use its enforcement powers appropriately and to identify the most effective and proportionate way of dealing with breaches. This is further reinforced in the Explanatory Memorandum to the BSA.

This statement reflects Parliament’s intention in enacting the co-regulatory framework and ACMA’s prescribed role within that framework.

ACMA’s powers

ACMA has a range of powers intended to enable it to deal effectively with breaches of the rules (including, in particular, the program standards and licence conditions) established by the BSA or the codes developed under the BSA, all in a manner commensurate with the seriousness of the breach.

Where there has been a breach of a code, ACMA may accept an enforceable undertaking for the purpose of securing future compliance with the code or impose an additional licence condition under section 43 of the BSA requiring a licensee to comply with a code (for example, if there is a breach by a number of licensees relating to the same obligation). For a licence condition to be imposed under section 43 of the BSA, ACMA first needs to give the licensee written notice of its intention to impose the licence condition. The licensee must be given a reasonable opportunity to make representations to ACMA in relation to the proposed license condition, which ACMA must consider under natural justice principles. The proposed licence condition must be published in the Commonwealth Gazette before becoming effective. The licensee can apply for ACMA’s decision to be reviewed by the Administrative Appeals Tribunal.

ACMA may also seek through negotiated agreement actions by broadcasters to improve compliance. For example, ACMA has on many occasions agreed measures with licensees involving action by them intended to ensure compliance problems are addressed and are effective. Such measures have often succeeded in improving behaviour within licensees (and networks).

If a licence condition is successfully imposed and a licensee breaches such an additional licence condition, then as alternatives to suspending or cancelling the licence, ACMA has power to issue a remedial direction requiring compliance. In the event that the licensee does not comply with a remedial direction, ACMA may:

• pursue a civil penalty;
• refer the matter for prosecution as an offence;
• suspend or cancel the licence; or
• at any time, accept an enforceable undertaking (including provisions dealing with compliance with a code).

If ACMA has convincing evidence that codes of practice have failed to provide appropriate community safeguards in relation to a matter, it can determine a new program standard to apply to a particular section of the broadcasting industry.

Relevant industry code

Under section 1.8 of the Commercial Television Industry Code of Practice, a licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to:

…

Complaints process—codes of practice

If a person wishes to complain about something of concern they have seen or heard on a program broadcast by a radio or TV station, and the matter is covered by a code of practice, the person must, by law, first make a written complaint to the station.

When making a complaint to ACMA, a complainant must provide a copy of the complaint to the station, a copy of the station’s reply if this has been received, and any other relevant correspondence with the station. ACMA takes all complaints seriously (except for those that are frivolous or vexatious or not made in good faith) and acknowledges all complaints in writing.

For a valid complaint, ACMA considers the information provided and offers the relevant station an opportunity to provide its perspectives on the matter. When all relevant information is available, ACMA assesses the complaint against the relevant licence condition or codes of practice. When an investigation is completed, ACMA is required to notify a complainant of the results of an investigation under Part 11 of the Act. The form this notification takes is not specified in the Act—sometimes it is in the form of a letter, but more usually it takes the form of an investigation report, which is provided to both the complainant and the licensee concerned.

Generally, personal or private information provided in a complaint, including name and address details, are not disclosed to the licensee concerned if it is a licence condition matter. However, as code complaints are first made to a licensee, code complaints are usually made available to the licensee concerned. ACMA’s usual practice is to not provide personal or private information in an investigation report.

Under the Act, ACMA has discretion whether or not to publish the report of an investigation conducted under Part 11 of the Act. ACMA is not required to publish an investigation report if publication would disclose matter of a confidential character or be likely to prejudice the fair trial of a person. If ACMA intends to publish an investigation report that may adversely affect the interests of a person, ACMA must give the person an opportunity to make representations in relation to the matter.