21 July 2009
The ACMA finds WIN News breached commercial TV Code
The Australian Communications and Media Authority has found that WIN Television VIC Pty Ltd, the licensee of VTV, breached the Commercial Television Industry Code of Practice 2004 (the Code) by failing to present factual material accurately.
The ACMA’s finding relates to a report broadcast during WIN News on 25 September 2008, about the acquittal of a man accused of sexually assaulting a young girl. The ACMA found that the report was factually inaccurate in stating that the County Court had ‘found the girl lied about the assaults’.
Consistent with Australian legal convention, the jury in the reported case did not give reasons for its verdict when it found the defendant ‘not guilty’. The ACMA considered that it was inaccurate for WIN News to infer from the ‘not guilty’ verdict that the young girl ‘had lied.’
In response to the breach finding, WIN Television has advised the ACMA that it has made immediate revisions to its reporting of news and in particular the use of specific words in scripts which have the potential to attract legislative and legal compliance issues if used. WIN Television will also include the findings of the ACMA’s report as part of its regular training program for all of its news and current affairs staff.
A copy of investigation report 2129 is available on the ACMA website.
For further information, please contact: Donald Roberston, Media Manager, on (02) 9334 7980.
The ACMA conducts various types of investigations under the Broadcasting Services Act 1992 (the BSA). Investigations under Part 11 of the BSA are generally conducted in response to complaints received by the 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 the ACMA
The ACMA receives complaints directly from people about possible breaches of the BSA, the regulations, licence conditions and class licences. The 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 the ACMA if the complainant is not satisfied with the licensee’s response. In addition to investigations triggered by complaints, the ACMA can instigate its own investigation and the Minister for Broadband, Communications and the Digital Economy can direct the ACMA to conduct an investigation.
The ACMA’s performance of its role is informed by Section 5 of the BSA, which requires the 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 the 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.
It [section 5] promotes the ABA’s [now the ACMA’s] role as an oversighting body ... rather than as an interventionist agency hampered by rigid, detailed statutory procedures and legalism . . . It is intended that the ABA [now the ACMA] monitor the broadcasting industry’s performance against clear, established rules, intervene only where it has real cause for concern, and has effective redressive powers to act to correct breaches.
This statement reflects Parliament’s intention in enacting the co-regulatory framework and the ACMA’s prescribed role within that framework.
In this instance, the breach relates to clause 4.3.1 of the Commercial Television Industry Code of Practice 2004 which provides:
4.3 In broadcasting news and current affairs programs, licensees:
4.3.1 must present factual material accurately and represent viewpoints fairly,
having regard to the circumstances at the time of preparing and broadcasting the program;
The ACMA’s powers
The 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, the 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 the codes (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, the 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 the ACMA in relation to the proposed license condition and the proposed licence condition must be published in the Commonwealth Gazette before becoming effective. The licensee can apply for the ACMA’s decision to be reviewed by the Administrative Appeals Tribunal.
The ACMA may also informally agree to accept measures by broadcasters to improve compliance. For example, the 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, the ACMA has power to issue a remedial direction requiring compliance. In the event that the licensee does not comply with a remedial direction, the 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 the 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.
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 the 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. The 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.
The 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, the ACMA assesses the complaint against the relevant licence condition or codes of practice. When an investigation is completed, the 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. The ACMA’s usual practice is to not provide personal or private information in an investigation report.
Under the Act, the ACMA has discretion whether or not to publish the report of an investigation conducted under Part 11 of the Act. The 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 the ACMA intends to publish an investigation report that may adversely affect the interests of a person, the ACMA must give the person an opportunity to make representations in relation to the matter.