An ACMA investigation into a July 2011 broadcast of Today Tonight found that Channel Seven Adelaide Pty Limited breached the:
> factual accuracy and
> correction of significant errors
provisions of the Commercial Television Industry Code of Practice. The program concerned a case of Intense Pulsed Light Treatment administered at a particular Adelaide clinic. 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 and that the findings were not affected by legal error. A copy of Justice Foster’s decision is available here.
‘The ACMA takes its obligations to investigate breaches of the Code seriously and, in doing so, takes great care to see that they are conducted fairly and in accordance with law. We naturally welcome the Court’s findings,’ said ACMA Chairman, Chris Chapman.
For more information please see the backgrounder below or contact: Emma Rossi, Media Manager, (02) 9334 7719 and 0434 652 063 or firstname.lastname@example.org
Media release 51/2014 - 27 August
Investigation 2712 related to a segment of Today Tonight broadcast on 25 July 2011 by Channel Seven Adelaide Pty Ltd (SAS Adelaide). It reported on a beauty clinic that conducted Intense Pulsed Light (IPL) Laser treatment on a patient that allegedly resulted in permanent skin damage.
The ACMA found that the segment breached code of practice requirements for factual accuracy regarding:
> whether tests were performed on the patient prior to the IPL treatment
> the regulation of IPL treatment in Australia.
The ACMA also found that the licensee had breached a code requirement to correct significant errors of fact.
The ACMA found that the licensee had not breached code requirements about other matters investigated:
> clause 4.3.1 [present factual material accurately and represent viewpoints fairly]
> clause 4.3.7 [unfairly identify a single business when commenting on a group of businesses].
On 7 September 2012, Channel Seven Adelaide 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.
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).