Investigation report 3164 - 2SM Sydney - Home | ACMA/media/Broadcasting... · Web viewACMA Investigation Report 3164— John Laws – Fortress of Irreverent Logic —2SM Sydney –

Investigation Report No. 3164

File no. ACMA2014/121

Broadcaster Radio 2SM Pty Ltd

Station 2SM Sydney

Type of service Commercial Radio

Name of program John Laws – Fortress of Irreverent Logic

Date of broadcast 2 December 2013

Relevant code Clauses 2.2(a), 2.3(c) and 2.3(d) of the Commercial Radio Australia Codes of Practice and Guidelines September 2013 (the Codes)

Date finalised 14 March 2014

Decision No breach of code 2.2(a) (accuracy)

No breach of code 2.3(c) (misrepresent viewpoints)

No breach of code 2.3(d) (privacy)

ACMA Investigation Report 3164—John Laws – Fortress of Irreverent Logic—2SM Sydney – 2 December 2013

Background On 4 February 2014, the Australian Communications and Media Authority (the ACMA)

commenced an investigation into a segment of the John Laws – Fortress of Irreverent Logic program, broadcast on 2 December 2013 by Radio 2SM Pty Ltd, the licensee of 2SM.

The program, broadcast on weekdays between 9.00 am and 12.00 pm, is described by the licensee as being ‘a talk back program which provides news, information, entertainment and talkback, covering a range of different issues driven by the news of the day or caller driven topics’.

In the segment, Mr Laws received a call about ongoing issues the caller had been having with a computer technician. Mr Laws made a further statement about this call at a later stage in the program.

A transcript of the call and the subsequent statement made by Mr Laws is at Attachment A.

The computer technician has complained that Mr Laws made several comments about him which ‘supported the caller’s unsubstantiated claims’ and that Mr Laws did not obtain his version of events. He also submitted that his name was disclosed during the segment and his privacy was breached.

The complainant’s submissions and the licensee’s response are set out at Attachments B and C respectively.

Assessment This investigation is based on submissions from the complainant, the licensee’s response

to the complainant, and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.

In assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ listener or viewer.

Australian courts have considered an ‘ordinary, reasonable’ listener to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.1

In considering compliance with the Codes the ACMA considers the natural, ordinary meaning of the language, context, tenor and tone and any inferences that may be drawn.

Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then determines whether that material has breached the Codes.

1 Amalgamated Television Services Pty Ltd v Marsden (1998) NSWLR 158 at 164-167.

ACMA Investigation Report 3164—John Laws – Fortress of Irreverent Logic—2SM Sydney – 2 December 2013 2

The ACMA is satisfied that the program is a current affairs program for the purposes of the Commercial Radio Australia Codes of Practice and Guidelines September 2013 (the Codes).2

Accordingly, the ACMA has considered the licensee’s compliance with clauses 2.2(a), 2.3(c) and 2.3(d) of the Codes.

Code of Practice 2: News and Current Affairs Programs

2.2 In the preparation and presentation of current affairs programs, a licensee must use reasonable efforts to ensure that:

(a) factual material is reasonably supportable as being accurate;

...

2.3 In the preparation and presentation of current affairs programs a licensee must ensure that:

...

(c) viewpoints expressed to the licensee are not misrepresented and material is not presented in a misleading manner by giving wrong or improper emphasis or by editing out of context; and

(d) the licensee does not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, unless there is a public interest in broadcasting such information.

While the complainant has referred to clause 2.3(b) of the Codes, the ACMA has not con-sidered the licensee’s compliance with this clause (which requires that reasonable efforts are made to present significant viewpoints when dealing with controversial issues of public importance). The ACMA does not consider a consumer affairs dispute between two indi-vidual parties to be a controversial issue of public importance.

Issue 1: Accuracy

FindingThe licensee did not breach clause 2.2(a) of the Code.

Reasons Clause 2.2(a) of the Codes applies to the presentation of ‘factual material’ in news and

current affairs programs. In assessing broadcast content against the accuracy provisions of the Codes, the ACMA must first determine whether the relevant material is factual material or an expression of opinion. Where statements of fact are made, the ACMA will then assess whether the licensee used reasonable efforts to ensure that the statement was reasonably supportable as being accurate.

The relevant considerations to which the ACMA has regard in assessing whether or not the broadcast material complained about is factual in character are at Attachment D.

2 Under the Codes, a current affairs program is defined as:A program a substantial purpose of which is to provide interviews, analysis, commentary or discussion, including open-line discussion with listeners, about current social, economic or political issues.


The complainant has identified several comments made by Mr Laws, which he considers supported the caller’s ‘unsubstantiated claims’ about him, including:

‘Well sweetheart, it would have been cheaper than getting this clown back all the time’

‘You might well be worried about it because he doesn’t sound like a very reputable fella’

The ACMA notes that the discussion was based on a caller driven topic in which the caller provided her account of an ongoing dispute with a computer technician. Given the context of the discussion, the ACMA considers that the ordinary, reasonable listener would have understood that the caller was presenting her own personal viewpoint on the subject, and was seeking advice and support from the presenter.

While some of the comments made by Mr Laws were critical of the technician, the ordinary, reasonable listener would have also understood these remarks to be expressions of opinion, which were based on events as reported by the caller, and used as a means of consoling the caller.

The tone of the segment and statements made by Mr Laws, such as ‘what have I got myself into’ and ‘dear, you don’t sound fine - you mustn’t let yourself get too upset’ also suggested that he was sceptical of the account presented by the caller.

As the statements identified by the complainant are not considered to be factual material, they are not subject to the accuracy requirements at clause 2.2(a).

Issue 2: Viewpoints

Finding The licensee did not breach clause 2.3(c) of the Code.

Reasons The complaint is that Mr Laws supported the caller’s claims without obtaining his (the

technician’s) version of events.

As noted above, the discussion of the dispute was initiated by the caller and comments made by Mr Laws conveyed scepticism of her version of events and concern with the manner in which she had handled this matter.

The ACMA also notes that the complaint’s viewpoint was presented at a later point in the program, when Mr Laws stated:

...we’ve spoken to the computer technician that she was having problems with. He’s explained that the issue has been through the Tribunal and the Tribunal has ruled the receipt is totally legitimate...

This clearly presents the complainant’s viewpoint that the matter had been determined by a Tribunal and that the receipt referred to by the caller is legitimate.

Accordingly, the ACMA does not consider that the complainant’s viewpoint was misrepresented or that the material was presented in a misleading manner.


Issue 3: Privacy

Finding The licensee did not breach clause 2.3(d) of the Code.

Reasons The complainant alleged that the program identified him by his given name and provided

enough contextual information, such as references to the ‘Tribunal’, for listeners to do a web search and ascertain his identity.

ACMA notes that the caller made the following statement:

‘And so then the judge turned around and asked him again and then the judge said “OK you sort out the laptop [first name of computer technician]…’

The ACMA also notes that the caller made reference to a ‘Tribunal’ and Mr Laws referred to the caller’s first name on several occasions. However, the complainant’s first name was mentioned on only one occasion by the caller. This reference was fleeting and no further identifying information in regard to the complainant was provided. Nor was the specific Court/Tribunal in question identified.

Without any further information, such as the surname of the parties involved, the name of the court or Tribunal that was considering the matter, or the name of the complainant’s business, the ACMA does not consider the complainant is identifiable from the broadcast.

Accordingly, the broadcast did not use material relating to the complainant’s personal or private affairs or which invaded his privacy.


Attachment ATranscript

Mr Laws: [C]? Are you there? [C]?

The caller (C): Yes. I’m here.

Mr Laws: OK [C]. What can I do for you?

C: Look. I just want some advice [John Laws says mouth to mouth to mouth in background]. Now last year, now I only do- I’ve got a computer, a laptop and I only do emails, pictures and look at the internet right. Um I called this technician out because I’d messed up my pictures and everything.

Mr Laws: Mmmm.

C: And uh so anyway when he first came to my place I didn’t take much notice, he said “Oh can I use your bathroom.” Cause I don’t make an effort to let anyone know I’m on my own. And uh anyway then he come out and fixed my laptop and then the next month it broke down again.

Mr Laws: So he came back?

C: He came yeah and I rang him up and he put a remote in didn’t he?

Mr Laws: I don’t know did he?

C: Yes he put a remote in my computer. I didn’t understand what remotes do um and anyway that’s alright and then the next time it broke down again. Then I had a break and then it broke down again. I’ve got all the dates of when it broke down and so finally I got sick of it.

Mr Laws: God, this is this is exciting, this is exciting stuff this -

C: Last December he went on holidays, I come back from America and um I got it fixed again in the November, broke down again in December.

Mr Laws: Sweetheart why didn’t you get a new technician to come and look at it or get a new computer? It would’ve been cheaper.

C: [Crying] I don’t know, I didn’t understand.

Mr Laws: Well sweetheart, it would have been cheaper than getting this clown to come back all the time. But what’s, what’s the -

C: So what’s happened now -

Mr Laws: No, hang on a minute. What’s him going to the bathroom go to do with it?

C: Well, I feel as though that he went in there to have a look to see if I had any male living in the house. I’ve worked that out now. I didn’t work that out before then.

Mr Laws: Yeah. Well you might be right.

C: Mmmm.


Mr Laws: You may well be right. But if you -

C: Because I never make an effort of telling anyone I’m on I live on my own.

Mr Laws: Of course you don’t.

C: You know, for my own safety, for many reasons.

Mr Laws: Yeah, I can understand that. But tell me, he hasn’t bothered you since has he?

C: No, no I got rid of him. Um Decem - last February I thought ‘ok I’m going to ring Harvey Norman to see if they got any Toshibas’. So I got - I rang up and they said “Yeah we got 2, 2 Toshibas for 900.” And I was happy with that. Anyway I got the technician out again to fix it because it broke down.

Mr Laws: Same technician?

C: Yep.

Mr Laws: Why did you - why do you keep going to this technician who’s being a nuisance?

C: I don’t know. I think I was trying to catch him out.

Mr Laws: I don’t know what you were doing but it wasn’t very smart darling.

C: Yep [starting to get upset]. So anyway that’s alright.

Mr Laws: It’s not alright.

C: I slipped it out - I slipped it out that I was getting a new laptop. “Oh” he said. “How much?” I said 900. He said “Oh” he says, “I can get it cheaper for you.” So anyway, I thought about it and yeah I didn’t understand and I said ok then. Anyway he rings me up and in the meantime I’d missed out on the Harvey Norman one. And he rings me up and he says “I’ve got one here for 900.” So now I’m coming onto it now. And uh anyway so I paid 900. He brought it out. He got the computer and uh anyway he said “Oh, I gotta pickup your other computer and take it out to my place.”

Mr Laws: Sweetheart, this is a very, very long story. What happened - what’s the ultimate outcome of all this?

C: The ultimate outcome is he refused to give me the receipt to the laptop um you know so that I can have the receipt for the laptop cause you know and three weeks after that it broke down with the AVG. You know when the time change.

Mr Laws: No, no I don’t know. Uh yeah

C: My AVG went, my AVG went backwards.

Mr Laws: I see [chuckles]

C: And anyway that’s alright. So I got it wiped out through - I got the laptop wiped out. Then I phoned him and then I phoned him up. And I - on the Saturday when it happened, he didn’t answer my calls so I just left a message. Left it at that and I thought ‘OK I’m going to get AVG to fix it up.’ I’ll ring them up on Monday and it’ll take them only a couple of seconds to fix. I came home from work -


Mr Laws: Yeah sweetheart, sweetheart, your problem is you went back to the man who didn’t do the right thing in the first place.

C: Yeah

Mr Laws: I mean you should’ve gone to somebody else. Simple as that. [C: Yep]. Why did you go back to him?

C: I don’t know. But anyway I got rid of him and I went to the Tribunal about it -

Mr Laws: Yeah look, look darling -

C: Because I wanted the receipt and he charged me for the free remote. I took pictures of it and uh in the meantime I got the laptop wiped out by Toshiba and I got Telstra Plus to re‐set it up. And uh anyway, he charged me for 4 HOURS and - Telstra Plus only charged 2.

Mr Laws: [C] [C] -

C: Mmmm.

Mr Laws: What do you want me to do about it?

C: Well he’s now, he’s wrote out a receipt, his own receipt -

Mr Laws: But you’ve not answered the question, [C]. What - what would -

C: I just want advice. Now he’s, he’s now after the Court. They asked him, “Why won’t you give [C] the receipt?

J: And what did he say?

C: He turned around and hummed and haahed and carried on and he said “Look”, the Judge said why won’t you give her the receipt? He kept on and so I said – “Excuse me, I said if he’s not gonna give me the receipt he can take the laptop back, you know.

Mr Laws: Yeah. Oh God.

C: And so then the judge turned around and asked him again and then the judge said “OK you sort out the laptop [first name of computer technician]” –

Mr Laws: [In the background] What have I got myself into here?

C: And [C] you sort out your costs. I did that. Then on Monday he sent me these files again and he sent out another copy of his own copy of receipts.

Mr Laws [C], [C], [C], why are you telling me all this?

C: Well, what, um, I want, would it be, would it be a good idea for me to ring up this company that he reckons he bought it from?

Mr Laws: Well I think it would be a good idea. Yeah.

C: Mmmm.


Mr Laws: But you might well find out that the computer that he sold you for $900 or whatever it was, was hot to begin with. I mean it could be stolen property.

C: Well that’s what I’m worried about [crying]

Mr Laws: Yes, well you might well be worried about it because he doesn’t sound like a very reputable fella.

C: Yes, um. I’m thinking of getting um Toshiba-

Mr Laws: Why, why didn’t you just buy the computer from Harvey Norman? They’re reputable people.

C: I know, I know [crying] cause I’ve been always been taught you’ve gotta get a receipt for everything.

Mr Laws: Well that’s right and you didn’t get the receipt.

C: My dad used to work on the wharf and he said a lot of things go missing and he said um always make sure you get a receipt for whatever you pay for.

Mr Laws: Yes, OK, OK Well [C]. Why didn’t you take your Daddy’s advice?

C: I don’t know [more crying]. I thought I was going to get the retailer’s receipt.

Mr Laws: Anyway, sweetheart, I wish there was something I could do to help you but I can’t but you mustn’t get yourself in too much of a state over this.

C: Should I -

Mr Laws: It’s only a thing, it’s not a person.

C: Yeah. Should I get Toshiba to get a technician to come out and have a look inside the laptop cause everyone’s saying the same thing as what you’re telling me. Everyone’s saying the same thing [crying]

Mr Laws: Yeah. Yeah. Yeah. Yeah. Listen why don’t you just hang on there. I’ll get one of the hand maidens to come and talk to you and we’ll see what we can do but don’t be too upset about it. I mean it’s only a thing. It’s not a human being.

C: No [still crying]

Mr Laws: Are you alright?

C: Yeah, I’m fine [crying]

Mr Laws: Dear you don’t sound fine. Anyway look you mustn’t let yourself get too upset about this as I said-

C: I’m home from work today because I haven’t been well [crying]

Mr Laws: No I can tell you’re a bit fragile at the minute. Anyway you just hold on, don’t hang up whatever you do.

C: No.


Mr Laws: Ok [C]. One of the handmaidens will come to you and we’ll see if we can do something. I don’t know if we can do anything. We can but try but poor [C] is in a state. Why didn’t you just go to Harvey Norman because they’re good reputable people and they would’ve done the deal and it probably would’ve been cheaper than $900 anyway?

Statement about call at later point in same program:

Mr Laws: I felt sorry for [C], but we’ve spoken to the computer technician that she was having problems with. He’s explained that the issue has been through the Tribunal and the Tribunal has ruled the receipt is totally legitimate. Unfortunately, there’s not a lot more we can do about that.


Attachment B

Complainant’s submissions

The complaint submitted the following to the licensee on 13 December 2013:

....

On Monday 2nd December at 10:09am I was surprised to receive a telephone call from a female person, [staff name], stating she was seeking a receipt for [caller name] (this is the name of the applicant currently involved in the legal case I am referring to) in relation to a laptop. This person did not identify the organisation she was calling from, however, I presumed she was a solicitor or lawyer acting on [caller name] behalf. I informed her that [caller name] had received a receipt and that she was misinformed.

When I questioned the caller as to their identity, it was then revealed that they were calling from 2SM Talkback Radio Station. Immediately, my first reaction was to question whether I was actually “ON AIR” at the time but also if information regarding the case being handled by the [Tribunal name] had already gone to air and parties named or identified. I was told that this was not the case. I made it abundantly clear to the caller that the case was still in progress, however, at this stage it had been ruled that [caller name] had a legitimate receipt for her goods. I also informed her that if there had been a breach of confidentiality regarding this I would be justified in pursuing legal action against [caller name]. Additionally, I stated that as this is a current legal matter, it should not be discussed publicly under any circumstances.

After receiving this call, I was concerned that the information I was given by the radio station may be incorrect. I informed a family member who assists me in the general running of my business and on my behalf they contacted the person I spoke to at the radio station to try and ascertain further information. They were assured that no names were mentioned on air. When the radio station became aware that [caller name’s] service had been terminated for harassment and stalking and she had also threatened a witness in the case, they seemed genuinely surprised and said “we were not aware of that.”

Another family member visited the radio station’s website where they were able to download and listen to a copy of the John Laws program. Later that day I was able to listen to the program in its entirety and it was subsequently revealed that I had been personally named by the applicant and mention had been made of the Tribunal contrary to the stations’ representative adamantly stating that nothing relating to this case had been aired. [Caller name] also identified herself by her Christian name. The contents of the program was extremely offensive and defamatory towards me personally and professionally. [Caller name] made unfounded accusations which were only further intensified by John Laws’ willing acceptance of these claims and subsequently deliberately slandering me on air. Mr Laws’ agreed with the comments made by [caller name] who represented me as a perverted criminal who ran a disreputable business and sold stolen goods to my clients.

I was unfavourably compared to Harvey Norman, Mr Laws saying “Why didn’t you just buy the computer from Harvey Norman, because they’re reputable people?” Previously [caller name] had commented that she missed out on buying a computer from Harvey Norman, believing that I had


coerced her into purchasing a laptop through my business. In relation to this, I was the Head Computer Technician for a Harvey Norman Franchise. I chose to resign from my position due to the dishonest business practices which I was expected to undertake on a daily basis. These include but were not limited to deliberate electrical damage to laptops and desktop PCs in order to receive credits from suppliers under the Dead On Arrival 14 Day Return arrangement and falsification of store invoices in order to deceive suppliers into believing that faulty goods returned by customers had been returned within the 14 day DOA period even though in all cases this time period had well elapsed. After my resignation, I made a formal letter of complaint to the Harvey Norman head office which fell on deaf ears. However, more recently 4 Harvey Norman franchises have been fined for dishonest business practices with several others still under investigation by the ACCC.

It was and should have been blatantly obvious to anyone listening to the program that [caller name], the caller, was extremely confused with discernible mental issues. Others who have listened to the program have commented on her confused state of mind. John Laws’ sarcastic comments on air and direct acknowledgment that she seemed in a very fragile state should have indicated to him that he needed to proceed in a cautious manner and check his facts. The onus is on the radio station and the radio host to ensure that any information discussed is accurate before making any comment. Even when Tribunal involvement was mentioned, Mr Laws did not attempt to either cease the conversation or indicate in any way that he knew anything about legal matters. I believe in view of this, the radio station’s screening process was not sufficiently carried out prior to going on air. Had the matter been thoroughly investigated, legal involvement would have been evident and subsequently the information should have been prevented from being aired. At the very least, John Laws could have reserved his comments until obtaining my version of events.

I have irrefutable evidence and an audio recording from the Tribunal hearing that facts given by [caller name] to John Laws are completely distorted and falsified. Radio stations are bound by the Radio Codes of Practice in relation to the accurate portrayal and investigation of any matters which are discussed on air. 2SM is no exception. In view of this I wish for a retraction on air of the misleading and defamatory comments which were made. Remarks made on this program should not have been aired especially regarding an ongoing legal matter yet to be determined. The complete facts were not available and therefore Mr Laws was not in a position to comment. I respectfully request a formal apology on air and in writing and notification of such prior to this.

If I do not receive this retraction and apology, I have spoken with ACMA who have informed me that I am well within my rights to pursue legal action against the station and Mr Laws himself. Understandably it would be prudent to comply with this request.

...

The complaint submitted the following to the ACMA on 16 January 2014:

...

Whilst the broadcaster has acknowledged that the situation was not handled professionally they do not acknowledge any breach of the commercial radio codes of practice nor do they acknowledge other comments which were made on air by John Laws that promoted an unrealistic and non-factual viewpoint as to my personal nature and the ethics of my business.


As a result of this unsatisfactory response, I am now escalating this complaint to ACMA in the belief that the broadcaster’s actions should be investigated and appropriate action taken on my behalf. Further to your requirements, I have included a copy of my original complaint along with the broadcaster’s written response as well as a transcript of the content which was broadcast. Also included is a link to a digital audio recording in MP3 Format which can be downloaded in order to verify the transcript is correct and support my claims.

The broadcaster’s response begins informing me of the frequency that the John Laws program occurs in a given week and outlines the content which is covered in such a program. To me this is irrelevant information and does not address any points which I have raised in my complaint. The letter continues by quoting the Codes of Practice 5.6 and the Code of Practice 2.2a and 2.2b. You will note that in relation to the Code of Practice 2.2 it very clearly reads:

In the preparation and presentation of current affairs programs, a licensee must use reasonable efforts to ensure that:

a) Factual material is reasonably supportable as being accurate; and

b) Substantial errors of fact are corrected at the earliest possible opportunity.

A failure to comply with the requirement in Code 2.2(a) to broadcast factual material that is reasonably supportable as being accurate will not be taken to be a breach of the Code if a correction, which is adequate and appropriate in all the circumstances, is made within 30 business days of the licensee receiving a complaint or a complaint being referred to the ACMA (whichever is later).

The accuracy of [caller name’s] statements were not clarified before going to air. Further to this, Mr Laws made several comments supporting [caller name’s] unsubstantiated claims including the following:

1. I was referred to as a clown. “Well Sweetheart, it would have been cheaper than getting this clown back all the time.” – Page 1 of transcript. [Caller name] had commented that she had requested my service on several occasions even though supposedly she was not satisfied with the service.

2. I was casing her house for ulterior purposes whilst using the bathroom – Page 2 of transcript. [caller name] comments “Well, I felt as though that he went in there to have a look to see if I had any male living in the house. I’ve worked that out now. I didn’t work that out before then.” Mr Laws based on hearsay replies agreeingly “Yeah. Well you might be right. You may well be right…”

3. In response to [caller name’s] statement “Anyway I got the technician out again to fix it because it broke down.” Mr Laws replied “Why do you keep going to this technician who’s being a nuisance?” This is a formed opinion based on inaccurate information – Page 2 of transcript.

4. After [caller name] claims she had her computer “wiped out” and I did not return her phone calls, Mr Laws replies “Sweetheart your problem is you went back to the man who didn’t do the right thing in the first place.” – Page 3 of transcript.


5. Following the mention of the Tribunal, Court and a Judge, Mr Laws states “But you might well find out that the computer that he sold you for $900 or whatever it was, was HOT to begin with. I mean it could be stolen property.” – This is putting ideas into the head of a person who is obviously highly impressionable. Page 5 of transcript. Also on page 5 Mr Laws comments “You might well be worried about it because he doesn’t sound like a very reputable fella.”

6. He commented “Well that’s right and you didn’t get the receipt.” [caller name] did not give accurate information regarding the receipt but he still chose to believe her. – Page 5 of the transcript.

The broadcaster has mentioned in their response that Mr Laws’ tone throughout the interview was not aggressive towards [caller name]. I agree with this statement, however, I did not raise any such issue in my complaint. From listening to the audio, it is obvious to anyone that Mr Laws was at times condescending towards [caller name] realising that she had a diminished mental capacity. This is evident by several sarcastic remarks that Mr Laws made throughout the interview such as “mouth to mouth to mouth”, “God, this is exciting stuff” “Oh, God” and “What have I got myself into here.” As to how Mr Laws spoke to [caller name] this is of no relevance to me. What is relevant is that [caller name] chose to make that call and discuss a situation publicly instead of taking the advice of the Tribunal member who suggested she obtain some sound legal advice which she could have sought through free legal aid.

On Page 3 of the letter received from 2SM, the broadcaster claims that no conversation was entered into regarding the Tribunal or the nature of the Tribunal matter discussed. Clearly the broadcaster listening to a different radio program as the transcript and audio clearly shows that after [caller name] mentioned the Tribunal, a conversation ensued as to why she had taken the matter before the Tribunal in the first place. She mentions the supposed non-provision of a receipt, charges imposed for what she claims is a “free” remote and the wiping of a computer in order to remedy these problems. Following this she states “Now he’s, he’s now after the Court. They asked him, ‘Why won’t you give [caller name] the receipt?’” Continuing along this line she then mentions a Judge, several times in fact and this is the point at which my name is mentioned. The broadcaster claims that my name or business name was not used at any time during the interview, however, in [caller name’s] comments she clearly identifies my Christian name, her name and the Tribunal. In relation to this, as the issue was still being handled by the Tribunal, they publish all current and pending hearings on their website. Any ordinary person (as defined on page 4 of the broadcaster’s response) would have easily been able to conduct a search of current hearings using this limited information and locate the next scheduled hearing which displays the time, date and location of the hearing but also my full name and company name. Anyone could use that information to contact me or my company and subsequently bring my unblemished personal and business reputation into question. Comments mentioned previously definitively compromise the integrity of my business contrary to the broadcaster’s opinion.

Whilst I agree with the broadcaster that [caller name] at times appeared distressed and her discussion was disjointed, it wasn’t completely undecipherable. In view of this, if the broadcaster believes that the discussion was indistinguishable, unclear, then this should have been obvious to Mr Laws and subsequently he should not have accepted what she was conveying on air as gospel and making inappropriate comments supporting that.


Referring to the Codes of Practice 2.3 it states:

b) reasonable efforts are made or reasonable opportunities are given to present significant viewpoints when dealing with controversial issues of public importance, either within the same program or similar programs, while the issue has immediate relevance to the community;

c) viewpoints expressed to the licensee for broadcast are not misrepresented and material is not presented in a misleading manner by giving wrong or improper emphasis or by editing out of context;

d) the licensee does not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, unless there is a public interest in broadcasting such information.

Whilst I was contacted by the radio station, this was after the segment had aired despite being told adamantly that it had not. The representative from 2SM did not identify themselves and expressed that they were looking for a receipt for [caller name]. At this point, I was confused as to why I was being contacted but assumed that this person was [caller name’s] legal representative. However, on questioning this I was told that she was calling on behalf of the radio station. I informed the person that [caller name] had been given a receipt, the Tribunal was still handling the matter and at the present time they had ruled that she had a legitimate receipt but I was unable to comment due to these ongoing legal proceedings. I expressed implicitly that I did not want my comments to be aired and that if I became aware that [caller name] had revealed any information pertaining to the case, I would be pursuing her personally for defamation. A family member later contacted the same 2SM representative and was assured that no names were mentioned on air. When informed that [caller name’s] service had been terminated due to stalking and harassment, they commented that they were not aware of this.

Prior consultation with myself before allowing the interview to be broadcast would, I believe, have resulted in a more impartial viewpoint being expressed. Mr Laws comments as detailed in the transcript confirm the information he presented was misrepresented due to lack of prior research which led to misleading information given to the public regarding my honesty and integrity. The current legal situation which I am involved in with [caller name] is a private matter and not for public airing.

The broadcaster has agreed that this matter could have been dealt with in a more professional manner by Mr Laws staff and an apology is warranted. However, am I view to this comment as the apology or am I to receive a formal apology? Whether it is Mr Laws himself or his staff, they all are employed by Super Radio Network and therefore the broadcaster is responsible for their behaviour. The broadcaster claims that the normal approach adopted by Mr Laws and other talkback announcers is to either clarify information or to seek assistance for a caller without compromising privacy etc. This procedure was not followed correctly in this instance as clarification was sought after biased, derogatory comments and opinions had already been expressed on air. The view that other talkback radio announcers follow this procedure is not strictly correct as I am aware of another talkback radio host who refuses to comment on air until they have heard both sides of the story which I believe to be a fair and accurate way of handling matters and therefore avoiding unnecessary lawsuits.


John Laws’ program entitled “The Fortress of Irreverent Logic” expresses the notion of an impenetrable sanctuary where viewers or the host himself can freely air disparaging comments about matters which are otherwise serious in nature. By an individual contacting this program they are agreeing unspokenly to being put under scrutiny by the radio announcer or members of the general public who are listening. However, in this case I did not contact the radio station and was an unwilling participant in a one‐sided version of events. Regardless of what [caller name] presented herself as, this person is an attention seeker who has expressed by word and action that she is on a personal vendetta to make an example of me. This is in retaliation for termination of her service for abuse of that service despite repeated warnings.

In summary, whilst I appreciate that there has been recognition of unprofessional behaviour on the part of 2SM’s staff and this has been addressed with the appropriate individuals, I still firmly believe that the comments made on air by Mr Laws were unwarranted and only fuelled the caller’s intent to pursue the matter further and complicated what was already a complex legal case.

My privacy was breached by the broadcaster’s inability to properly screen [caller name] as a caller. The ensuing inaccurate information given by the caller regarding me personally, my business ethics and discussions pertaining to a legal case was assumed by Mr Laws. The broadcaster’s comments on page 3 of their response refer to a number of “asides” mentioned by Mr Laws, however, do not clarify what the “asides” are. Paramount to my complaint was Mr Laws’ running commentary unfavourably comparing my business reputation to that of the supposedly reputable Harvey Norman. Additionally, comments regarding Mr Laws’ opinion of me personally and my business ethics derived from the inaccurate facts given have not been addressed in the broadcaster’s response. From this exclusion, it is evident that the broadcaster considers such behaviour and comments to be acceptable. I am sure that neither Mr Laws nor the broadcaster nor anyone who was put in a position of being falsely accused publicly would be reacting any differently to me.

The accuracy of what was presented on air was not verified prior to the broadcast and even when certain information came to light, Mr Laws made no attempt to clarify such information on air other than mentioning a confirmed legitimate receipt provided to [caller name]. In view of this, I respectfully request a careful consideration of this matter with the outcome including a verbal and written retraction of the statements made on air and an apology for Mr Laws’ unacceptable and unwarranted comments.

...


Attachment C2SM’s submissionsThe licensee submitted the following in response to the complainant:

Re: Complaint against John Laws program 2 December 2013

Dear [complainant name]

I write in relation to the written complaint you sent to the Operations Manager, 2SM Super Network dated 13 December 2013 relating to comments made by Mr John Laws on his program on 2 December 2013.

The John Laws Program is broadcast weekdays between 9.00am and 12.00am. The Program is a Talk Back program which provides news, information, entertainment and talkback covering a range of different issues driven by news of the day or caller driven topics.

Before dealing with the specific Commercial Radio Codes of Practice (the Codes) issues raised in your complaint I wish to apologise for the misunderstanding or inconvenience which occurred when you made your initial call to the office. From an internal perspective you can be assured the matter has been dealt with and should not re-occur. Externally (which is specific to your complaint) I trust the following will address your concerns.

ln your complaint letter you have stated that, in light of the matters raised during the course of the program, a breach of Code 2.2 and also Code 2.3 occurred. ln your view there was a "breach of confidentiality ..... and defamation of my personal and business reputation".

I will respond to your complaint against the provisions of each of the Codes you have referred to as, it is in my opinion, after careful consideration of the recording of the program and your detailed letter these are the appropriate Codes to address in this instance.

At this point in the response it is traditional to insert the detail of the complaint so as to ensure the response can be read, by the complainant, against the actual complaint and the response is complete. ln this instance l will only cite the paragraph where you have summarised your concerns and attached a copy of your full letter of complaint. I trust this is adequate in the circumstances.

As mentioned your complaint details are as follows:

'... I appreciate the lengthiness of this letter, however, it is important that you are made aware of all the facts surrounding this matter as it not only involves breach of confidentiality as mentioned previously but also the defamation of my personal and business reputation. It is apparent that 2SM has breached clauses 2.2 and 2.3 of the Commercial radio Codes of Practice. ...."

Code of Practice 5.6

Before proceeding with addressing the specific issues associated with your complaint Code

5.6 states:


'the complainant has the right to refer the complaint to the Australian Communications and Media Authority (the ACMA) if you are not satisfied with the response provided.'

It is relevant to note at this point that under the definitions section of the Codes the following two definitions are relevant in consideration of your complaint.

A current affairs program means a program a substantial purpose of which is to provide interviews, analysis, commentary or discussion, including open-line discussion with listeners, about current social, economic or political issues.

A news program means a program or bulletin, the predominant purpose of which is to present factual new information on current events and which is typically prepared by journalists.

ln addressing Code 2 it is important to remember the above definitions, which, as I have mentioned form part of the Codes.

What follows are comments and my findings having regard to each of the Codes I have referenced previously.

Comments against Code 2.2

Code of Practice 2.2 states:

ln the preparation and presentation of current affairs programs, a licensee must use reasonable efforts to ensure that:

a) factual material is reasonably supportable as being accurate; and

b) substantial errors of fact are corrected at the earliest possible opportunity.

A failure to comply with the requirement in Code 2.2(a) to broadcast factual material that is reasonably supportable as being accurate will not be taken to be a breach of the Code if a correction, which is adequate and appropriate in all the circumstances, is made within 30 business days of the licensee receiving a complaint or a complaint being referred to the ACMA (whichever is later).

ln considering if there is a breach in relation to this code I have particular regard to the manner in which the topic was initiated. The program content is generally accepted to be spontaneous - Mr Laws' tone throughout the interview with caller [caller name] was not aggressive nor did he at any stage attempt to illicit the name or details of the 'technician' referred to or the company/business for which he worked. The core issues raised in your complaint (as is confirmed in your letter) may relate indirectly to statements made by the caller ([caller name]), not a situation where statements, whether provocative or otherwise, were made by Mr Laws which drew calls.

A transcript of the program confirms to me that caller [caller name’s] call on the 2nd of December, in the main, comprised the detailing of a sequence of events (initially involving a visit by a computer technician) which eventually led to the matter of the term 'Tribunal' being raised. Apart from a number of asides mentioned by Mr Laws no conversation as such was entered into - none at least which would in my view have compromised the integrity of you or your business. No comment was made on that fact during the conversation between Mr Laws and the caller - nor was the nature of the 'tribunal' matter discussed. Mr Laws, by virtue of the comments on record, attempted to assist caller [caller name] 'off-air'. Hence I believe the call to your office which is discussed later.


The caller's tone throughout the on-air discussion was very indistinguishable and was very unclear, to the extent that at different stages (again from the recording of the program), the caller appeared very distressed. I stress Mr Laws sought no clarification at the time nor did he attempt to illicit the name of the company/technician concerned on-air. lt is important to emphasise this point as, in my view, it goes to the core of your complaint.

It is however clear to me that your name was not used ([complainant’s name]), nor was that of your company ([complainant’s company name]).

As a consequence with no name mentioned and no specific mention of your business and such an obscure set of circumstances I find no breach in relation to this code.

Comments against Code 2.3

Code of Practice 2.3 states:

ln the preparation and presentation of current affairs programs a licensee must ensure that:

a) the reporting of factual material is clearly distinguishable from commentary and analysis;

b) reasonable efforts are made or reasonable opportunities are given to present significant viewpoints when dealing with controversial issues of public importance, either within the same program or similar programs, while the issue has immediate relevance to the community;

c)viewpoints expressed to the licensee for broadcast are not misrepresented and materials not presented in a misleading manner by giving wrong or improper emphasis or by editing out of context; and

d) the licensee does not use material relating to a person's personal or private affairs, or which invades an individual's privacy, unless there is a public interest in broadcasting such information.

In considering if a breach has occurred in relation to this Code the circumstances outlined in the comments against Code 2.2 are, in my view, also relevant.

The call was isolated in that it was not part of a commentary on current affairs matters. I accept there was a reference to a 'tribunal' but this matter is in my view unable to be distinguished by an ordinary listener from any other matter.

Before I continue let me explain what I mean by the term 'ordinary, reasonable' reader (or listener or viewer) as utilised by the ACMA when considering matters.

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that persons general knowledge and experience of worldly affairs3.

The open-line discussion between Mr Laws and caller [caller name] was as I mentioned previously considered, as are many of the unsolicited and for that matter the majority of calls received during the program, a detailing of a sequence of events. ln my view no compromise of

3 Amalgamated Television services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164-167


personal privacy or breach of confidentiality occurred. This view is based on the review of the content of the recording of the program.

At no stage were your personal details revealed nor the details involving the obscure reference to a tribunal which, if discussed in detail or more detail, may have compromised the forming of that view. It is not unusual in a program like that presented by Mr Laws for callers to call to seek advice or direction with respect to an issue. lt is usual in these circumstances that callers will itemise or serialise a sequence of events. At no stage did Mr Laws allow personal information to be presented on-air in relation to this matter.

ln my view it follows that based on the nature and content of the conversation between caller [caller name] and Mr Laws that no breach of confidentiality or defamation of your personal or business reputation could have transpired as a consequence of what went to air on the day of 2 December 2013.

On the matter of the 'receipt' which does not form part of the Codes considerations. As mentioned no detail of the receipt was discussed on air but rather a clumsy attempt was made by one of Mr Laws' staff to contact you following the interview. I agree this matter could have been dealt with in a more professional fashion if the events alleged by you are accurate and I have no reason to suspect otherwise.

From the program you would have noted that Mr Laws terminated the interview by asking a distressed [caller name] to hold the line whilst staff took some details from her. It was following the off-air discussion that contact was made with your office to clarify issues relating to the 'receipt'. This is a normal approach adopted by Mr Laws (and all other talk-back) announcers to either clarify information or to seek assistance for a caller without compromising privacy etc. I am satisfied Mr Laws acted in an appropriate manner in relation to this aspect of the matter at hand although as I have mentioned I do believe that if the issue was conducted in the manner you have described by Mr Laws, staff an apology is warranted.

You will also note from the recording of the program you have that at a later point in the program on the 2nd of December Mr Laws makes mention of the fact that the matter of the 'receipt' in relation to an earlier caller [caller name] had been resolved satisfactorily. This followed a brief discussion with another caller on a separate subject. No specific detail relating to the matter was put to air.

Summary

ln summary, whilst I appreciate you raising the issues you have, in the context of the Commercial Radio Codes of Practice, I am of the view no breach has occurred in this instance. I find that no personal details were put to air, nor details that breach your confidentiality were put to air. I also find that you were not defamed by the on-air discussion between Mr Laws and caller [caller name].

As mentioned in my response however I must apologise for the manner in which two matters were handled, they being your call to 2SM and the call you received on the day the program went to air. Both these issues have been brought to the attention of the staff concerned and steps


have been taken to ensure proper processes and due courtesies are applied in the future. At this point I consider the steps taken adequately address the complaint that has been made.


Attachment D

Considerations which the ACMA has regard to in assessing whether broadcast material is fact or opinion The primary consideration is whether, according to the natural and ordinary meaning of

the language used and the substantive nature of the message conveyed, the relevant material is presented as a statement of fact or as an expression of opinion. In that regard, the relevant statement must be evaluated in its context , i.e. contextual

indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener/viewer.

The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable listener/viewer, and the form of words introducing the relevant statement is not conclusive.

Factual material will usually be specific, unequivocal and capable of independent verification.

Inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.

The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.

Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion.


Documents

Investigation report 3164 - 2SM Sydney - Home | ACMA/media/Broadcasting... · Web viewACMA Investigation Report 3164— John Laws – Fortress of Irreverent Logic —2SM Sydney –