ACMA media release 99/2009 – 6 August

6 August 2009

Ten Perth breached classification and complaints handling provisions of code

The Australian Communications and Media Authority has found that Network Ten Perth Pty Limited, the licensee of commercial television service NEW, breached the classification and complaints handling provisions of the Commercial Television Industry Code of Practice (the code) in relation to broadcasts of the film Black Hawk Down and the program The Truth About Binge Drinking.

The findings result from complaints from members of the public that the film Black Hawk Down contained frequent violence with a high impact, and that the program The Truth About Binge Drinking contained inappropriate coarse language.

‘The accurate classification of programs is a critical element in informing viewers’ decisions about what they and their children watch. It is vital that licensees correctly classify programs,’ said Chris Chapman, Chairman of the ACMA. ‘Licensees must fulfil their complaint handling obligations under the code.’

The ACMA found that the M-classified film Black Hawk Down broadcast on 4 October 2008 contained depictions of violence with an impact higher than that permitted at the M classification. Network Ten has advised that Black Hawk Down will be edited and/or reclassified to comply with the code. Network Ten has also submitted that Black Hawk Down will be used to ensure consistency in classifications and will distribute the investigation report to its programming staff.

The ACMA found The Truth About Binge Drinking broadcast on 27 September 2008 contained coarse language that could not be accommodated within the PG classification. It was also found that Ten Perth did not provide a substantive written response to the complainant within 30 days as required by the code.

Network Ten has acknowledged this material was inadvertently left in the program during the editing process and has advised that it has reviewed its editing processes to ensure all edits requested by its classifiers occur. The finding will also be used as an example to ensure future compliance.

As a result of the ACMA’s investigation, Network Ten has conducted an extensive review of complaints handling procedures and updated its code complaints handling procedures. These updated procedures have been communicated to key personal at Ten's licensees and will be followed up by further reminders every three months.

The ACMA is satisfied that Network Ten has addressed the weak compliance procedures highlighted by the breach findings. However, the ACMA would consider stronger remedial action should a further breach of this nature occur within any Network Ten licensee.

Investigation reports 2139 and 2140 are available on the ACMA website.

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

Backgrounder

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.

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

Classification of programs

Clause 2.4 of the Commercial Television Industry Code of Practice provides that programs other than news, current affairs and broadcasts of sporting events must be classified according to the Television Classification Guidelines set out in Appendix 4.

The PG Guidelines concerning language provide that:

Modification of films for broadcast

Clause 2.3.1 of the Commercial Television Industry Code of Practice provides that films may be modified for broadcast by a licensee in accordance with the OFLC Guidelines (at Appendix 5) to ensure that they are suitable for broadcast, or for broadcast at particular times.

The Guidelines concerning violence state:

APPENDIX 5: GUIDELINES FOR THE CLASSIFICATION OF FILMS AND COMPUTER GAMES 2003

M – Mature

IMPACT TEST

Complaints Handling

Clause 7.10 of the Commercial Television Industry Code of Practice specifies requirements concerning time limits on responses to code complaints:

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.