ACMA media release 166/2009 – 27 November

27 November 2009

ACMA finds Nine Network promotion for Underbelly: A Tale of Two Cities was inappropriate for G viewing

The Australian Communications and Media Authority has found that TCN Channel Nine Pty Ltd breached the 2004 Commercial Television Industry Code of Practice (the code) by broadcasting a promotion for the series Underbelly: A Tale of Two Cities, in a G viewing time zone.

The promotion broadcast on 6 February 2009, depicted the menacing use of a gun and had been incorrectly classified as G (General) by the licensee.

The code contains special restrictions for promotions broadcast during G viewing periods or G programs. Programs with a higher classification can only be promoted in G viewing periods if the promotion complies with strict classification criteria, which include a prohibition on the use of guns in a manner intended to inflict harm.

‘Community concern about depictions of guns and violence are reflected in the code’s provisions. The stricter classification criteria for promotions are safeguards designed to ensure that promotions for M programs are suitable for viewing by G or PG audiences,’ said Chris Chapman, Chairman of the ACMA. ‘The Underbelly promotion depicted menacing gun use despite explicit prohibition in the industry’s own code.’

TCN also breached the complaints-handling provisions of the code by failing to provide a response to the complainant within 30 working days. Further, the response ultimately sent to the complainant was not substantive. TCN also breached the code in this regard.

TCN has accepted the three breach findings.

The Nine Network has now implemented new classification procedures that give greater focus to promotions that may raise classification issues – such as where a program is being promoted in a lower classification time zone.

The Nine Network has also reviewed its complaints-handling processes in response to this, and other recent, complaints-handling breach findings (see Investigation Reports 2223, 2157 and 2245). A new mail logging and complaint identification process will be implemented by all Nine Network licensees, and code complaints will be ‘tracked’ to ensure responses are provided on time. Viewer correspondence relating to the Underbelly series of programs and other classification matters will be prepared by Nine’s Regulatory Affairs Manager.

Investigation reports 2224, 2223, 2157 and 2245 are available on the ACMA website.

Media contact: Donald Robertson, ACMA 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 ACMA

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.

Commercial Television Industry Code of Practice - program promotions

Clause 2.3 of the Commercial Television Industry Code of Practice specifies that promotions comply in every respect with the classification criteria of those viewing periods and with the more stringent content restrictions specified in clauses 3.8 which states that:

Restrictions in G Viewing Periods and in Certain Other G Programs

3.8 Special restrictions apply to the content of program promotions in G viewing periods, or in G programs which start at 3.30pm on a weekday, or which are broadcast between 7.00pm and 8.30pm on any day. All such program promotions must comply with the G classification requirements set out in paragraph 2 of Appendix 4, and in addition must include no material which involves any of the following:

3.8.1 the use of guns, other weapons or dangerous objects in a manner clearly intended to inflict harm on, or to seriously menace, people or animals;

3.8.2 punches, blows or other physical or psychological violence against people or animals (other than in sequences that clearly depict comedy or slapstick behaviour);

3.8.3 any form of violence or cruelty to children;

3.8.4 sequences that involve loss of life;

3.8.5 close-up vision of dead or wounded bodies;

3.8.6 any visual depiction of suicide or intended means of suicide;

3.8.7 anything which has more than a very low sense of threat or menace;

3.8.8 visual depiction of nudity or partial nudity;

3.8.9 visual depiction of, or verbal reference to, sexual behaviour, except of the most innocuous kind;

3.8.10 socially offensive or discriminatory language.

A promotion broadcast during a G viewing period must also comply with the G classification guidelines contained in the Television Classification Guidelines at Appendix 4 to the Code. These state that:

The General (G) Classification

2. Material classified G is not necessarily intended for children but it must be very mild in impact and must not contain any matter likely to be unsuitable for children to watch without supervision.

2.1 Violence: Visual depiction of physical and psychological violence must be very restrained. The use of weapons, threatening language, sounds or special effects must have a very low sense of threat or menace, must be strictly limited to the story line or program context, must be infrequent and must not show violent behaviour to be acceptable or desirable.

2.2 Sex and nudity: Visual depiction of, and verbal references to, sexual behaviour must be brief, infrequent, contain little or no detail and be strictly limited to the story line or program context. Restrained, brief and infrequent visual depiction of nudity only when absolutely necessary to the story line or program context.

...

2.4 Drugs: Visual depiction of, or verbal reference to illegal drugs must be absolutely justified by the story line or program context, contain very little detail and be handled with care. The program must not promote or encourage drug use in any way. The use of legal drugs must also be handled with care.

…

2.6 Themes: Themes dealing with social or domestic conflict must have a very low sense of threat or menace to children and must be justified by the story line or program context.

…

2.8 Other: Where music, special effects and camera work are used to create an atmosphere of tension or fear, care must be taken to minimise distress to children.

Commercial Television Industry Code of Practice – complaints handling

Clauses 7.9 and 7.10 of the Commercial Television Industry Code of Practice provide that:

7.9 Where a code complaint is made about material broadcast by a station within 30 days of its broadcast, the licensee must provide a substantive written response.

7.10 That response must be made as soon as practicable, but in any case no longer than 30 working days after receipt of the complaint.

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 the Commercial Television Industry Code of Practice, 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.