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Channel Seven code breach upheld by Federal Court

A full court of the Federal Court of Australia has dismissed an appeal by Channel Seven Brisbane Pty Limited (Channel Seven) concerning the Sunday Night program.

The Australian Communications and Media Authority found that a Channel Seven report on a tribe in the Amazon jungle in Brazil had breached the Commercial Television Industry Code of Practice 2010.

In the story, it was claimed infanticide was a practice in the Suruwaha tribe. The ACMA found that the story was likely to provoke intense dislike and serious contempt on the grounds of ethnic origin or race.

Channel Seven sought judicial review of the ACMA’s breach findings but in June 2014 the Federal Court dismissed Channel Seven’s application. The court held that it was open to the ACMA to make breach findings, with respect to factual inaccuracy, and ethnic or racial vilification, and that its findings were not affected by legal error.

Channel Seven appealed that judgment only in respect of the vilification finding but on Friday 19 December, 2014 three judges (sitting as the Full Federal Court) found that Channel Seven had not established any legal error.
A copy of the decision is available here.

A copy of the ACMA's investigation report (Suruwaha) is available here.

For more information please see the Backgrounder below, please contact: Emma Rossi, Media Manager, (02) 9334 7719 and 0434 652 063 or media@acma.gov.au

MR85 24 Dec 2014

Backgrounder

Investigation 2741 related to a segment of Sunday Night broadcast on 4 September 2011 by Channel Seven Brisbane Pty Ltd (BTQ Brisbane). It reported on the Suruwaha tribe in the Amazon jungle in Brazil.
The ACMA found that the segment breached code of practice requirements for factual accuracy regarding:
> the application of Brazilian law to the Suruwaha
> the alleged practice of infanticide.
The ACMA also found that, in relation to content which discussed the alleged practices of infanticide among the Suruwaha, the segment breached requirements which prohibit the broadcast of content which is likely, in all the circumstances, to provoke or perpetuate intense dislike and serious contempt on the grounds of race or ethnic origin.
The ACMA found that the licensee had not breached code requirements regarding some other matters investigated.
On 7 September 2012, Channel Seven Brisbane Pty Ltd commenced Federal Court proceedings seeking judicial review of the ACMA’s findings. The hearing was held on 27 and 28 February 2013 before Foster J, and the judgment, in the ACMA’s favour, was handed down on 24 June 2014. His Honour dismissed the application on all grounds holding that it was open to the ACMA to make the findings that it did and that the findings were not affected by legal error as alleged by Channel Seven.
Channel Seven Brisbane Pty Limited lodged an appeal against the Federal Court decision, although the appeal was limited to that aspect of the decision which dismissed a challenge to the ACMA’s finding that the program had provoked and perpetuated intense dislike and serious contempt on the grounds of race or ethnic origin.
On Friday 19 December, 2014 three judges (sitting as the Full Federal Court) found Channel Seven had not established any legal error and dismissed their appeal with costs.

The regulatory framework-broadcasting content regulation

Under the Broadcasting Services Act 1992 (BSA), Australian radio and television licensees have primary responsibility for ensuring that the material they broadcast reflects community standards. Many aspects of program content are governed by codes of practice developed by industry groups representing the various Australian broadcasting sectors. The ACMA registers codes (other than those of the national broadcasters, the ABC and SBS) once it is satisfied that broadcasters have undertaken public consultation and the codes contain appropriate community safeguards.

ACMA investigations

The ACMA:
> may investigate complaints about compliance with licence conditions (sections 147 and 149 of the BSA)
> may investigate complaints about compliance with code obligations, where the complainant has complained to the licensee and is dissatisfied with its response (sections 148 and 149 of the BSA)
> must investigate such matters as it is directed so to do by the Minister for Communications(section 171 of the BSA)
> may commence an 'own motion' investigation into any matters relating to its broadcasting, content and datacasting functions (section 170 of the BSA).

Additional information about and copies of the ACMA’s published broadcasting investigations reports are available here.

Responding to breaches

Where there has been a breach of code or practice, the ACMA may:
> agree to accept measures offered by the broadcaster to improve compliance (these measures can include educating staff or changing procedures to improve compliance with the rule(s))
> agree to accept an enforceable undertaking offered by the broadcaster for the purpose of securing future compliance with the rule(s)
> impose an additional licence condition.

The ACMA cannot ‘fine’ or ‘prosecute’ a broadcaster for breaching a code, or direct it to do any particular thing (such as broadcast a report of the ACMA’s findings).

Last updated: 26 February 2015

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