Investig… · Web viewIf the material complained of was provided on broadcast relay by another licensee, ... from a distance, a person swinging the shovel once towards the victim

Investigation Report 3153

File no. ACMA2013/1678

Broadcaster Golden West Satellite Communications Pty Ltd

Station GWN (WA)

Type of service Commercial Television

Name of program Seven News

Date of broadcast 1 November 2013

Relevant code Clauses 2.13, 4.3.1 and 4.3.4 of the Commercial Television Industry Code of Practice 2010.

Date finalised 11 March 2014

Decision No breach clauses 2.13, 4.3.1 and 4.3.4.

ACMA Investigation Report 3153 – Seven News broadcast by GWN on 1 November 2013.

Background The complaint is about a segment of Seven News that was broadcast on 1 November

2013 by GWN, the licensee of Golden West Satellite Communications Pty Ltd (the licensee).

Seven News is produced by the Seven Network and provided to GWN on broadcast relay.

On receipt of the complaint, the licensee referred the complaint to the Seven Network under clause 7.13 of the Commercial Television Industry Code of Practice 2010 (the Code):

If the material complained of was provided on broadcast relay by another licensee, or was otherwise the responsibility of another licensee, the first licensee may refer the complaint to that licensee within 10 working days of receipt of the complaint for written response direct to the complainant.

The complainant was not satisfied with the response he received from the Seven Network and referred the matter to the ACMA. The ACMA commenced its investigation in December 2014.

The segment was one minute and 30 seconds in duration, and reported on an incident where a tow truck driver hit another tow truck driver over the head with a shovel in a highway dispute.

As the complainant did not specify a time of broadcast, the licensee provided two versions of the segment broadcast at 4:30 pm and 6:00 pm which both contained the same image of concern to the complainant.1 Based on the complainant’s description of the broadcast, the ACMA has identified the relevant broadcast for assessment as the segment that was broadcast at 6:00 pm.

A transcript of the segment is at Attachment A.

The incident was captured on a dashboard camera in an image which depicted, from a distance, a person swinging the shovel once towards the victim. During the segment, this same single image was shown nine times from three different distances, reproduced at Attachment B.

The complainant expressed concerns about the repeated use of the footage, and submitted to the licensee that:

Like other people that enjoy the news I was disturbed that this piece was shown in a way that was ... inciting violence ... Was it particularly necessary to show the incident 8 times or so, more interestingly the last 4 times in quick succession which ‘tried hard’ to indicate that it was not one (1) hit but several.

The Seven Network responded to the complainant that:

The quality of the image is poor and does not depict any graphic injuries. Therefore, having regard to the predominately adult audience, believe the material was suitable for broadcast and certainly not likely to incite violence.

...

1 The use of the image in the 6:00pm segment was more frequent than in the 4:30pm segment.

ACMA Investigation Report 3153 – Seven News broadcast by GWN on 1 November 2013.2

After reviewing the footage, the incident is shown 4 times, but it is clear that this is one act being shown 4 times, as the footage is exactly the same each time, with the exception of the image being zoomed in. Furthermore the accompanying comments by the reporter make it clear that the man was only hit once. Therefore, we do not believe it was misleading to show these images in this manner during the report.

The ACMA has investigated the complaint in accordance with clauses 2.13, 4.3.1 and 4.3.4 of the Code, which are extracted below.

Assessment This investigation is based on the complainant’s submissions, the Seven Network’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 Code, the ACMA considers the meaning conveyed by the relevant material broadcast according to the understanding of an ‘ordinary, reasonable’ listener or viewer.

Australian courts have considered an ‘ordinary, reasonable' viewer 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 affairs2.

Once the ACMA has applied this test to ascertain the meaning of the material broadcast, it then determines whether or not the material has breached the Code.

Issue 1: Care in selection and broadcast of materialRelevant provision

2.13 Material may only be broadcast in the classification zone corresponding to its classification, except in the following circumstances:

2.13.1: News, current affairs and broadcast of sporting events: While not required to be classified, may be broadcast in the G classification zone, provided that care is exercised in the selection and broadcast of all material.

2.13.1.1: News material broadcast in the G classification zone outside regular bulletins must be compiled with special care

Finding The licensee did not breach clause 2.13 of the Code.

Reasons Under the Code, news, current affairs and sporting events are exempt from classification

and may be shown during the G classification zone as long as care is exercised in the selection and broadcast of material.

2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167 (references omitted).


The segment was broadcast at 6:00 pm and fell within the G classification zone under the Code.

The ACMA notes the complainant’s concern that swinging a shovel at a person is a violent act and that it was shown a number of times during the segment.

However, the ACMA also notes that:

o as the Seven Network submitted, no graphic injuries were depicted - although the segment contained a brief close-up depicting a scar on the victim’s head, the depiction is brief, not graphic and the reporter made it clear the injury was not serious

o the footage is poor in quality: grainy and dark

o the camera shot is from a long distance and is static with no sound; the detail is very limited with no injury depicted (see Attachment B)

o the footage is accompanied by the newsreader’s voice over, which mitigates impact and provides context

o the footage was central to the story, as it was used as evidence in the court proceedings reported on during the segment

o the reporter noted the judge’s comments that the behaviour was not acceptable and the attacker is depicted stating that he regrets his action and is sorry.

Accordingly, the licensee did not breach clause 2.13 of the Code.

Issue 2: AccuracyRelevant provision

4.3: In broadcasting news and current affairs programs, licensees:

4.3.1: must broadcast factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;

4.3.1.1: An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.

The general considerations to which the ACMA has regard in assessing whether or not broadcast material is factual in character are at Attachment C.

FindingThe licensee did not breach clause 4.3.1 of the Code.

Reasons The complaint is that the repeated use of the images gave the impression that there was

more than one swing of the shovel.

The ACMA considers that the images shown were factual material for the purposes of the Code, and that they conveyed to the ordinary, reasonable viewer information pertaining to the court proceedings reported on during the segment.

As outlined above, the ACMA notes that the image was repeated several times throughout the news segment. However, the ACMA considers that it would have been clear to the


ordinary, reasonable viewer that it was the same image but repeated and zoomed in on some occasions. The positioning of the figures and the act of striking were identical each time, with only the distance (degree of zoom) changed. In addition, the reporter did not suggest or state at any stage that there was more than one strike.

In these circumstances, while the image was repeated, it was not misleading as it was clear that it was the same image that was shown.

Accordingly, the licensee did not breach clause 4.3.1 of the Code in relation to the broadcast of the segment.

Issue 3: Warnings to accompany certain materialRelevant provision

4.3: In broadcast current affairs programs, licensees:

...

4.3.4: must provide the warnings required by Clauses 2.14 and 2.20 of this Code when there is an identifiable public interest reason for selecting and broadcasting visual and/or aural material which may seriously distress or seriously offend a substantial number of viewers;

Finding The licensee did not breach clause 4.3.4 of the Code.

Reasons For the reasons explained under Issue 1, the ACMA considers that the images are not of

the type that could be considered to seriously distress or offend a substantial number of viewers, and the licensee was not required to provide warnings under clause 4.3.4.


Attachment ATranscript

Freeway Fight (1 min 31 seconds)

Anchor: A father of five who bashed another man over the head with a shovel has avoided gaol. The two men were tow truck drivers who’d responded to a freeway emergency. The court heard the attack was sparked by a cutthroat competition in the industry.

Reporter: Hit with a shovel from behind [image shown] [Driver name] struck a rival [image shown] tow truck driver in the head [image shown] during an argument at a crash scene [image shown] in June - a freeway fight that almost landed the father of three in prison. Today he was given nine months gaol – suspended for 18 months.

Driver: [outside court] – good result for today. Hopefully some sense will prevail within the industry.

Reporter: An industry the court heard is cutthroat and competitive. Victim [name] confronted his attacker at a two-car crash at the Mt Henry bridge, annoyed he was there first. He thought [Driver name] [image shown] had an unfair advantage, tipped off by Main Roads, or the company he was sub-contracted to. It escalated. The whole incident caught on [victim name’s] dashboard camera. [Driver name] said he only swung the shovel in self-defence. He said his victim had been acting aggressively and threatened him. But after watching the video the magistrate disagreed. She described the attack [image shown] as cowardly and [image shown] surprising, and it was pure luck [victim’s] injuries weren’t more serious.

Driver: [outside court] ah, I regret everything, just the way it happened. Sorry. Thank you.

Reporter: Tracy Moran [image shown], Seven News [image shown].


Attachment BImagesImage 1

Image 2


Image 3


Attachment CConsiderations to which the ACMA has regard in assessing whether or not broadcast material is factual in character 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

Investig… · Web viewIf the material complained of was provided on broadcast relay by another licensee, ... from a distance, a person swinging the shovel once towards the victim