An Australian Communications and Media Authority investigation into a March 2012 broadcast of the Sunday Night program found that Channel Seven Perth Pty Limited breached the:
> factual accuracy and
> fair representation of viewpoints
clauses in the Commercial Television Industry Code of Practice. The program reported on the sinking of a mobile oil rig in the Gulf of Mexico. The ACMA’s investigation report is available here.
Channel Seven had sought judicial review of the ACMA’s breach findings but on 24 June 2014 the Federal Court of Australia dismissed Channel Seven’s application. The court held that it was open to the ACMA to make all of the breach findings it had made, and that the findings were not affected by legal error. A copy of Justice Foster’s decision is available here.
‘The ACMA is pleased by the Court’s findings, and the judgment provided some helpful guidance on the meaning of particular content as conveyed to the “ordinary reasonable” viewer,’ said ACMA Chairman, Chris Chapman.
For more information please see the Backgrounder below or contact: Blake Murdoch on (02) 9334 7817, 0434 567 391 or firstname.lastname@example.org
Media release 52/2014 - 29 August
Making communications and media work in Australia’s public interest. acma.gov.au
Investigation 2803 related to a segment of Sunday Night broadcast on 4 March 2012 by Channel Seven Perth Pty Ltd (TVW Perth). It reported on the sinking of a mobile platform used for oil extraction purposes in the Gulf of Mexico during a hurricane in September 2011. The segment also focused on the actions of an Australian ship which was in the area at the time. The program alleged it had failed to come to the rescue of the crew of the mobile platform during the sinking incident.
The ACMA found that the segment breached code of practice requirements for factual accuracy regarding whether the shipping company had been accused of murder in a United States court. The ACMA also found that the segment breached requirements to represent viewpoints fairly regarding whether the Captain of the Australian ship ought to have attempted a rescue of men stranded on the mobile platform.
The ACMA found that the licensee had not breached code requirements about other matters investigated [factual accuracy and fair representation of viewpoints].
On 21 February 2013, Channel Seven Perth Pty Ltd commenced Federal Court proceedings seeking judicial review of the ACMA’s findings. The hearing was held on 18 October 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 all of the findings that it did and that the findings were not affected by legal error as alleged by Channel Seven.
One of the particular grounds of challenge related to the test which the ACMA uses to ascertain the meaning of particular content as conveyed to the ‘ordinary reasonable’ viewer. His Honour concluded that the test which the ACMA had posed for itself was a perfectly reasonable one to be applied in most cases. In this regard, His Honour noted that, ‘the meaning conveyed by visual images and language can never be determined only by reference to the meaning intended to be conveyed by the maker of the relevant statement or the presenter of the program. It is always a two way street and necessarily involves a consideration of how relevant material strikes the listener or viewer’.
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.
> must investigate complaints about compliance with licence conditions (sections 147 and 149 of the BSA)
> must 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, as matter of discretion, commence an 'own motion' investigation into such matters as it sees fit (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).