Investigation Report No. 2719
File No. / ACMA2011/1833Licensee / General Television Corporation Pty Ltd
Station / GTV Melbourne
Type of Service / Commercial television broadcasting service
Name of Program / A Current Affair
Date of Broadcast / 9 August 2011
Relevant Code / Clauses 4.3.1, 4.3.5, 4.3.5.2 and 4.3.7 of the Commercial Television Industry Code of Practice 2010
Date Finalised / 25 May 2012
Decision / Breach of clauses 4.3.5 [privacy], 4.3.5.2 [privacy of a child] and 4.3.7 [unfair identification].
No breach of clause 4.3.1 [accuracy].
The complaint
On 15 February 2011, the Australian Communications and Media Authority (ACMA) received a complaint regarding the program, A Current Affair, broadcast on 9 August 2011 by General Television Corporation Pty Ltd, the licensee of GTV (the licensee).
The complainant was concerned that the program included inaccurate statements about himself(referred to here as Mr Y),and containedfootage of himself and his children, ChildA and ChildB, which was broadcast without their knowledge or concern for their privacy.
The complaint has been investigated under clauses 4.3.1, 4.3.5, 4.3.5.2 and 4.3.7 of the Commercial Television Industry Code of Practice 2010 (the Code). The licensee’s compliance with clauses 4.3.1 and 4.3.7 of the Code has been investigated pursuant to section 148 and subsection 149(1) of the Broadcasting Services Act 1992 (the Act). The licensee’s compliance with clauses 4.3.5 and 4.3.5.2 of the Code has been investigated pursuant to section 170 of the Act.[1]
The program
A Current Affair is a current affairs program broadcast nationally at 6:30pm weeknights.
The program broadcast on 9 August 2011 included a segment titled, ‘Centrelink Shame File’. The segment counted downthe ‘top six welfarerorts’ based on the number of cases the Commonwealth Director of Public Prosecutions has prosecuted for Centrelink fraud.
The segment included interviews with the General Manager of Centrelinkand a 2UE presenter, as well as footage from a previous A Current Affair segment broadcast in 2006, which featured footage of Ms X and Mr Y.
The segment was introduced as:
Presenter:Now, the shame file that exposes the sort of people who are ripping off our welfare system to the tune of hundreds of millions of dollars every year. A list that Centrelink uses to target pensioners and single parents.
[...]
Reporter:We’ve obtained official Centrelink data which reveals the top six welfare rorts and the people behind them. [...] Tonight we’re counting them down to find out who are the worst of the worst.
The broadcast material the subject of the complaint concerned the verbal and visual content below:
Table 1: Verbal and visual[2]broadcast material the subject of the complaint:
Verbalmaterial / VisualmaterialReporter: The number one welfare rort is the single parent pension, with 1,200 prosecutions in the past year. / On screen text: ‘No. 1, single parent pension’.
Reporter: We’ve been told you’ve been rorting the welfare system for the last ten years. / Ms X listening to thereporter on a public street.
Ms X: No. I don’t know what you’re on about. / Ms X talking tothe reporter.
Reporter: Previously we caught up with [MsX] who had been claiming the single parent pension. / Ms X driving a car with Child A in the passenger seat.
Reporter: Even though we found evidence she was living with this man. / Mr Y walking across the street.
Reporter: She was dobbed into ACA by her own mother. / Ms X pushing ChildB in a trolley in an outside market.Child A walking behind Ms X.
Ms X’s mother:She’s been lying to Centrelink to gain benefits as a single parent when she’s not been eligible. She’s been rorting the system. [...] / Ms X’s mother talking to thereporter in a room.
Assessment
The assessment is based on:
a recording of the broadcast provided by the licensee;
the complainant’s submission to the ACMA;
the licensee’s submission to the ACMA;
correspondence between the licensee and the complainant; and
publicly available information, the source of which is relevantly identified.
Ordinary, reasonable viewer
In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable 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 affairs.[3]
The ACMA asks what the ‘ordinary, reasonable viewer’ would have understood the program to have conveyed. It considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any).
Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the Code.
Issue 1: Factual accuracy
Relevant Code clause
The relevant clause of the Code is clause 4.3.1:
News and Current Affairs Programs
4.3In broadcasting news and current affairs programs, licensees:
4.3.1must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;
The principles applied by the ACMA in assessing content against the obligation in clause 4.3.1 of the Code are set out at Attachment A.
Complainant’s submission
The complainant submitted:
[...]
[T]hey labelled [Mr Y] as the fraudulent partner of [Ms X] and dipping on her pension. It’s totally wrong. [...] The point is, it’sold recycled news. And the scary part is, re-using it in the future. [...]
[The story] wasn’t researched at all, what [the reporter] did was cut bits from the original tape and makes a story out of lies [and] deception [...]. If [the reporter] did [his] research correctly [he] would have noticed that [Mr Y] and [Ms X] haven’t been together since 1994.
[The reporter stated], ‘we filmed [Mr Y] entering the house and taking out the rubbish’. I replied, ‘did you ever think, that [Mr Y] was helping out for the kids?’ Also, if [the reporter] did his research correctly [he] would have noticed that [Mr Y] had been approach by [the Department of Human Services], which [Mr Y] had an arrangement with to visit daily to help with kids.
[...]
Licensee’s submission
The licensee submitted:
[...]
In response, Nine states that A Current Affair staff conducted extensive observational research into the original story prior to broadcast. This research included observing [Ms X’s] residence. We also relied on advice from her mother that she was co-habitating with [Mr Y] following her own observations.
As identified in the script of the original story below, during the observation, Nine observed [Mr Y] conducting household duties such as taking his children to school, taking in the rubbish bins and working on the family car in the garage, all while staying overnight in the home on each of the nights we observed the residence. Nine maintains on the basis of this evidence, the statement, ‘We found evidence that she was living with this man’, is correct.
The entire script of the original story is set out below, highlighted is the relevant summary of evidence we collected on [Mr Y]:
SCRIPT: - Story Name: SINGLE PARENT
[...]
[Reporter] Last week, we received this email from [Ms X’s mother].
[Voice over read of letter] My daughter has been reported more than once to Centrelink fraud for an amount far exceeding $30,000. I have reported her myself several times over the past year and nothing has been done. We are taxpayers and don’t believe fraudsters should be allowed to continue with their fraud.
[Reporter] [Ms X’s mother] had dobbed in her daughter.
[Ms X’s mother] It’s a very tough decision and I’ve considered it and I’ve weighed it up. But she needs to be brought to account for what she’s been doing for such a long time. She swears at you, she calls you names, she really has become something that’s out of control. She’s been lying to Centrelink to gain benefits as a single parent when she’s not been eligible. She’s just been rorting the system.
[Reporter] For ten years, [Ms X’s mother] and her husband claim daughter [Ms X] has been living with various men while pocketing the sole-parent pension – that’s almost $500 a fortnight. She also gets hundreds of dollars more in rent assistance, telephone allowance, cheap public transport and discounted car registration.
[Ms X’s mother] Well, I used to say to her, “You should get off the pension now, it’s not right that you have it, that you’ll get caught, that you might go to jail, you might have to pay it back or both”, and I would say that to her quite often. And her response was, “Everybody’s doing it”. We used to try to explain to her that that’s taxpayers money that she’s fraudulently receiving, but invariably there was denial.
[Reporter] We’ve been told you’ve been rorting the welfare system for the last 10 years.
[Ms X] No, no. I don’t know what you’re on about.
[Reporter] Your own mother has dobbed you in.
[Ms X] Yeah. I don’t have anything to do with my mother. She has nothing to do with me. She’s making false accusations.
[Reporter] She says you’ve defrauded Centrelink for 10 years.
[Ms X] Nuh.
[Reporter] You even went as far as, “Mum, I’ll never get caught”.
[Ms X] Nuh.
[Reporter] Is this not true?
[Ms X] No
[Reporter] For the last 10 years you’ve been collecting the sole-parent pension
[Ms X] Yeah, it’s true.
[Reporter] But you’re not living by yourself, are you, [Ms X]
[Ms X] Yes, I am.
[Reporter] Over several days, we filmed [Mr Y], the father of three of [MsX’s] five children, play dad – taking the kids to school, bringing in the bins, fixing the family car, running errands – all while living under the same roof.
[Reporter] [Mr Y], you’re telling me you don’t live at the house?
[Mr Y] No.
[Reporter] You don’t live at the house?
[Mr Y] No.
[Centrelink representative] If someone has entered into a marriage-like relationship, then they have an obligation under law to tell us about those arrangements.
[Reporter] [Centrelink representative] admits the single-parent pension is one of the most abused benefits. This year, more than 20,000 people are being investigated for possible fraud. But he says policing this pension isn’t easy.
[Centrelink representative] Often the investigations that we have to engage in are very sensitive. We have to look at the nature of an individual’s relationship, we have to look at their financial relationship, we have to look at their domestic arrangements.
[Reporter] Why isn’t something being done? How can these women have child after child on a single-parent pension? How can they justify it? It’s ludicrous.
[Centrelink representative] It would seem clear he is living under the same roof [while observing the vision collected by Nine].
[Reporter] How do you prove it?
[Centrelink representative] Well, let me just say that what you’ve outlined is certainly a matter of concern for us, and I would appreciate being given that sort of specific information.
[Reporter] [Ms X’s] live-in partners have also enjoyed a tax-payer funded welfare lifestyle. First was [LV], the father of her other two children. He lived with [Ms X] until being sentenced to 14 years in prison for a series of rapes. Now she’s back with [Mr Y]. He got out of prison earlier this year after serving a term for armed robbery.
[Centrelink representative] Certainly you’ve raised some issues which I believe would warrant further investigation and, you know, and I’d ask you to provide us with that information.
[Reporter] Do you still love your daughter?
[Ms X’s mother] It’s very hard to. I guess deep down I do.
[Reporter] Is that why you are doing it?
[Ms X’s mother] Because I love her? No, I’m doing it because I think people should be protected from individuals like this.
[Reporter] Why would your very own mother say that?
[Ms X] Look, how many (bleep)ing times are you going to ask me? Why don’t youse just (bleep) off?!
[...]
Finding
The licensee did not breach clause 4.3.1 of the Code.
Reasons
In considering the obligation at clause 4.3.1 of the Code that licensees must broadcast factual material accurately, the first step is to identify the material of concern. The ACMA must then assess whether the material would have been understood by the ordinary, reasonable viewer as a statement of fact or an expression of opinion and, if a statement of fact, whether it was accurate and if a viewpoint is represented, whether it was represented fairly.
In this case, the complainant is concerned that the reporter’s statement (in bold) belowwas inaccurate:
Previously we caught up with [Ms X] who has been claiming the single parent pension even though we found evidence she was living with [Mr Y]. Shewas dobbed into ACA by her own mother.
The ACMA considers that the ordinary, reasonable viewer would have understood from the reporter’s statement that the licensee had found evidence that Ms X was allegedly defrauding Centrelink by claiming the single parent benefit while living with Mr Y. The language used by the reporter, such as ‘we found evidence’, would have given the ordinary, reasonable viewer the impression that the reporter was imparting factual information that could be verified.
The licensee must broadcast factual material accurately having regard to the circumstances at the time of preparing and broadcasting the program. In assessing compliance with this provision of the Code, the ACMA considers the positive steps that the licensee took to satisfy themselves that the statement was accurate. Given that the factual material in question was pivotal in the allegation that Ms X was defrauding Centrelink, the ACMA considers that the licensee should have been certain of the accuracy of the material before broadcasting it.
In making the statement the subject of the complaint, the licensee submitted that it had ‘conducted extensive observational research’ and relied on ‘advice from [Ms X’s] mother that she was co-habitating with [Mr Y]’.
The licensee submitted that it conducted research over ‘several days’ in 2006,during which MrY was filmed living ‘under the same roof’ as Ms X.The segment also included an interview with Ms X’s mother who stated, ‘She’s been lying to Centrelink to gain benefits as a single parent when she’s not been eligible. She’s just been rorting the system’.
The licensee further liaised with Centrelink’s General Manager over its conclusions. It showed the footage it had filmed to Centrelink’s General Manager who noted, ‘It would seem clear [MrY] is living under the same roof [as Ms X]’. Centrelink’s General Manager further expressed that, ‘[...] what you have outlined is certainly a matter of concern for us’ and ‘Certainly you’ve raised some issues which I believe would warrant even further investigation’.
The complainant asserts that the conclusion the licensee drew from its observations was inaccurate and that Mr Y had arrangements to visit the house daily to assist with the children.
The issue for the ACMA to determine in this case is whether it was accurate to state that the licensee ‘found evidence’ that Ms X was living with Mr Y.
Having regard to the research conducted by the licensee, the comments of Centrelink’s General Manager upon viewing the footage filmed by the licensee, and Ms X’s mother’s statement regarding her daughter’s living arrangements, all of which was relied on as evidence by the licensee, the ACMA considers that it was accurate for the licensee to state ‘[...] we found evidence she was living with Mr Y’.
Accordingly, the ACMA finds that the licensee did not breach clause 4.3.1 of the Code.
Issue 2: Privacy of an adult
Relevant Code clause
The relevant clause of the Code is clause 4.3.5:
4.3 In broadcasting news and current affairs programs, licensees:
4.3.5 must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast;
4.3.5.1subject to the requirement of clause 4.3.5.2, a licensee will not be in breach of this clause 4.3.5 if the consent of the person (or in the case of a child, the child’s parent or guardian) is obtained prior to the broadcast of the material;
The Macquarie Dictionary (fifth edition) provides the following definitions:
Personal: of or relating to a particular person; individual; private […]
Private: relating to or affecting a particular person or a small group of persons; individual; personal […]
Affairs: matters of interest or concern; particular doings or interests […]
Privacy: the state of being private; retirement or seclusion […]
Consideration has also been given to the ACMA’s Privacy Guidelines for Broadcasters 2011 (the Guidelines).
Complainant’s submission
The complainant submitted:
[...]
I asked [A Current Affair] to give me an explanation about [...] why we weren’t we all pixelated. [...] Four counts of clear and identifiable breaches and violations under the privacy [...] clause of the Privacy Act.
[...]
Licensee’s submission
The licensee submitted:
[...]
We note [...] that [Mr Y] was shown walking on a public street. The only personal information revealed by the image was that the man shown was involved in a relationship with [Ms X] and resided with her. This fact is material to any allegation of fraud against the Commonwealth by [Ms X] and for this reason Nine maintains there is a public interest reason in broadcasting the material. If [Mr Y] is residing with [Ms X], then she is not entitled to claim the single parent benefit and for this reason, Nine maintains the image complies with clause 4.3.5 of the Code
[...]
Finding
The licensee breached clause 4.3.5 of the Code.
Reasons
In assessing the licensee’s compliance with clause 4.3.5 of the Code, the ACMA must determine:
whethera person was identifiable from the broadcast material? And if so,
did the broadcast material relate to a person’s personal or private affairs or invade a person’s privacy?
If the answer to both of the above questions is yes, then there is a potential breach of clause 4.3.5 of the Code,unless there is an identifiable public interest reason for broadcasting the material, or the material was broadcast with the consent of the person concerned.