2GB - ACMA Investigation Report 2938

2GB - ACMA Investigation Report 2938

Investigation Report No. 2938

File No. / ACMA2013/47
Licensee / Harbour Radio Pty Limited
Station / 2GB
Type of Service / Commercial radio
Name of Program / The Alan Jones Breakfast Show
Date of Broadcast / 6 December 2012
Relevant Legislation/Code / Section 7 of the Broadcasting Services (Commercial Radio Advertising) Standard 2012
Section 8 of the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012
Clause 8(1)(b) of Schedule 2 to the Broadcasting Services Act 1992

Investigation conclusion

No breach of section 7 of the Broadcasting Services (Commercial Radio Advertising) Standard 2012and as a consequence, no breach of the licence condition at clause 8(1)(b) of Schedule 2 to the Broadcasting Services Act 1992.

No breach of section 8 of the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012 and as a consequence, no breach of the licence condition at clause 8(1)(b) of Schedule 2 to the Broadcasting Services Act 1992.

The complaint

On 13 December 2012, the Australian Communications and Media Authority (the ACMA) received a complaint about The Alan Jones Breakfast Show broadcast on 2GB in Sydney.

The complainant alleged that on 5 December 2012, the presenter dida story on Hyperbaric Health Pty Ltdand failed to inform listeners that Hyperbaric Health Pty Ltd was an advertiser on 2GB.

The ACMA reviewed a copy of the broadcast of 5 December 2012 andfound that the content detailed in the complaint was not broadcast on this date. The ACMA sought further advice from the licensee who confirmed that the relevant content was broadcast duringThe Alan Jones Breakfast Showof 6 December 2012.

The investigation

This investigation considers whether the segment broadcast by Harbour Radio Pty Limited, the licensee of 2GB, on 6 December 2012:

Was an advertisement which was distinguishable from other program material as required by the Broadcasting Services (Commercial Radio Advertising) Standard 2012 (the Advertising Standard 2012)

Was material broadcast pursuant to a commercial agreement that required the licensee to broadcast an on-air disclosure announcementunder the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012(the Disclosure Standard 2012).

Under section 149 of the Broadcasting Services Act 1992 (the Act), the ACMA must investigate complaints about compliance with licence conditions. Compliance with the Advertising Standard 2012 and the Disclosure Standard 2012 is a licence condition on commercial radio broadcasting licensees.[1]

The program and relevant segment

The Alan Jones Breakfast Show is broadcast on 2GB from 5.00 am to 9.00 am, Monday to Friday. The programincludes talkback, news, interviews, commentary and discussions on current affairs.[2]

The relevant segment was broadcast at approximately 7.50 am on 6 December 2012 and ran for almost seven minutes.It included the presenter’s commentary as well as an interview with the Medical Director of Hyperbaric Health Pty Ltd –a company that designs and manufactures hyperbaric chambers as well as provides hyperbaric treatment services.

The presenter introduced the segment with the following comment:

People who gain relief from hyperbaric treatment, they are now being targeted. In the May budget this year, hyperbaric therapy was removed from the list of items covered by Medicare from January 1 next year, unless the patient suffers from diabetes or the wound is hypoxic.

After approximately two minutes of commentary, the presenter introduced the Medical Director of Hyperbaric Health Pty Ltd, who provided a generalexplanation of how hyperbaric treatmentis administered and how it works on wounds. The presenter and intervieweethen discussed the recent budget decision by government and the history of funding for hyperbaric treatment through Medicare.

The presenter concluded thesegmentby restating his critical view on the government’s decision to cut Medicare funding for hyperbaric treatment, as well as funding and support for various other medical treatments.

Assessment

This investigation is based on the following assessed material:

A recording of the segment of The Alan Jones Breakfast Show of 6 December 2012

Submissions and material provided by the licensee dated 15January, 30 January and 11February 2013

Relevant publicly available information.

Issue 1: Compliance with section 7 of the Advertising Standard 2012

Relevant sections of the Advertising Standard 2012

The operative provision of the Advertising Standard 2012 is section 7, which provides:

Advertisements broadcast by the licensee must be presented in such a manner that the reasonable listener is able to distinguish them, at the time of broadcast, from other program material.

Section 6 of the Advertising Standard 2012 provides the following relevant definitions:

advertisement means material broadcast:

(a)which draws public attention to, or promotes directly or indirectly, an organisation, product, service, belief or course of action; and

(b)for which consideration has been provided by, or on behalf of, an organisation or supplier of the product or service, to a licensee, a presenter, or an associate of a presenter.

consideration means any money, service, benefit or other valuable consideration that is directly or indirectly paid, promised, charged or accepted for material that is broadcast, or is to be broadcast, but does not include a product or service provided free to a person solely for the purpose of having the product or service reviewed.

Complainant’s submissions

The complainant submitted that the presenter did a story on Hyperbaric Health Pty Ltd and failed to inform listeners that Hyperbaric Health Pty Ltd was an advertiser on 2GB.

Licensee’s submissions

On 15 January 2013, the licensee provided a copy of the advertising agreement with Hyperbaric Health Pty Ltd. On 30 January 2013, the licensee provided a copy of the relevant segment broadcast on 6 December 2012, submitting thatHyperbaric Health Pty Ltd did not provide consideration to either the licensee or its parent company, Macquarie Radio Network Limited, for the discussion regarding hyperbaric therapy.

Finding

The licensee did not breach section 7 of the Advertising Standard 2012 in its broadcast of TheAlan Jones Breakfast Showprogram of6 December 2012, as the relevant segment was not an advertisement for the purposes of the Advertising Standard 2012. Consequently, the licensee did not breach the licence condition at clause 8(1)(b) of Schedule 2 to the Act.

Reasons

Under section 7 of the Advertising Standard 2012, commercial radiolicensees must ensure that all advertisements are broadcast in such a manner that the reasonable listener can distinguish them, at the time of broadcast, from other program material.

In assessing the licensee's compliance with the Advertising Standard 2012, in respect of the segment broadcast onTheAlan Jones Breakfast Show of 6 December 2012, the ACMA must first determine whether the segment was an advertisement under the Advertising Standard 2012.

Was the segment an advertisement under the Advertising Standard 2012?

For the segment to be an advertisement under the Advertising Standard 2012, the ACMA must determine that:

the segment drew public attention to or promoted Hyperbaric Health Pty Ltd or its services; and

consideration was provided by, or on behalf of, Hyperbaric Health Pty Ltd to the licensee, presenter, or an associate of the presenter for the broadcast of that material.

Public attention or promotion

The segment included one reference to the business name of Hyperbaric Health Pty Ltd and an interview with the Medical Director of the company. The segment did not provide contact details for the company or information on the company’s services (such as prices or business addresses).

Although the presenter highlighted some of the medical benefits of hyperbaric therapy, these comments were general anddid not directly promote Hyperbaric Health Pty Ltd.The segment, including the interview, focused on the subject of Medicare funding cuts for hyperbaric treatment. The discussion between the presenter and the interviewee concerned the validity of the government’s decision to cut Medicare funding and its impact on patients’ access to hyperbaric treatment generally. Further, the segment did not include matter such as a ‘call to action’ that would further the listener’s interest in this company or encourage them to use its services.

The ACMA is of the view that the content did not draw public attention to or promote Hyperbaric Health Pty Ltd or encourage listeners to utilise its services.

Consideration provided for the material broadcast

The licensee has confirmed thatconsideration was not provided by Hyperbaric Health Pty Ltd for the segment broadcast at 7.50 am on 6 December 2012.

Conclusion

The segment did not draw public attention to or promote Hyperbaric Health Pty Ltd, and no consideration was paid for the broadcast of the material. Therefore, the ACMA does not consider that the segmentwas an advertisement subject to the Advertising Standard 2012.

Issue 2: Compliance with section 8 of the Disclosure Standard 2012

Relevant sections of the Disclosure Standard 2012

Section 8 of the Disclosure Standard 2012 provides when on-air disclosure announcements are to be made:

(1)This section applies if:

(a)a sponsor or an agent of a sponsor has a commercial agreement with a licensee, a related body corporate of a licensee, a presenter, or an associate of a presenter of a licensee: and

(b)the licensee is broadcasting material in a current affairs program that:

(i)promotes the name, products or services of the sponsor; or

(ii)includes an interview with an agent, employee or officer of the sponsor in relation to a matter that concerns the sponsor, its products, services or interests; or

(iii)is requested by the sponsor, or which is based on, or similar to, material provided by the sponsor; or

(iv)directly promotes an issue which is directly favourable to the sponsor.

(2)The licensee must ensure that a disclosure announcement that is clearly identifiable to a reasonable listener as a disclosure announcement, is broadcast on air during the current affairs program at the time of, and as part of, the broadcasting of any material in subparagraph (1)(b)(i),(ii),(iii) or (iv).

(3)However, a disclosure announcement is not required to be broadcast if the material is:

(a)a news broadcast or bulletin; or

(b)an advertisement that is clearly identifiable to a reasonable listener as an advertisement.

The meaning of a commercial agreement is provided by section 5 of the Disclosure Standard 2012:

(1)An agreement, arrangement or understanding (whether in writing or not), between a sponsor, or an agent of a sponsor, and a presenter, or an associate of a presenter (whether or not there are other parties to the agreement), is a commercial agreement for the purposes of this standard if it:

(a)provides for the presenter, in exchange for consideration provided to the presenter or an associate of the presenter, to:

(i)promote the sponsor; or

(ii)promote the products, services or interests of the sponsor; or

(iii)refrain from making a negative comment about the sponsor; or

(iv)provide services in respect of publicity, promotion or public relations for the sponsor; or

(b)imposes an obligation on a presenter or an associate of a presenter to provide things for the sponsor (other than a thing mentioned in subparagraph (a)(i),(ii),(iii) or (iv)), in exchange for consideration of $25 000 or more a year, and is not solely to:

(i)provide writing services for a publication; or

(ii)perform or appear in a film, television program or theatrical production; or

(iii)provide voice-over services for an advertisement.

(2)An agreement, arrangement or understanding (whether in writing or not), between a sponsor, or an agent of a sponsor, and a licensee, or a related body corporate of a licensee (whether or not there are other parties to the agreement), is a commercial agreement for the purposes of this standard if all of the following apply:

(a)the agreement provides for the licensee, in exchange for consideration provided to the licensee or a related body corporate of the licensee, to:

(i)promote the sponsor; or

(ii)promote the products, services or interests of the sponsor; or

(iii)refrain from making a negative comment about the sponsor;

(b)a presenter of the licensee does a thing mentioned in subparagraph (a)(i),(ii) or (iii);

(c)the presenter or an associate of the presenter has:

(i)a beneficial or legal interest in shares in the licensee or a related body corporate of the licensee; or

(ii)if a dividend were declared by the licensee or a related body corporate of the licensee—a beneficial entitlement to be paid or credited a dividend; or

(iii)a contractual entitlement to a share of the licensee’s income or profits.

Section 4 of the Disclosure Standard 2012 provides the following definition of a current affairs program:

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.

Complainant’s submissions

The complainant submitted that the presenter was required to inform listeners that Hyperbaric Health Pty Ltd was an advertiser on 2GB as the segment on The Alan Jones Breakfast Showincluded an interview with a representative of the company andthe presenter 'came down really hard on the government for cutting Medicare funding for Hyperbaric Health patients'.

Licensee’s submissions

The licensee submitted that there was an advertising agreement in place between Hyperbaric Health Pty Ltd and the licensee for pre-recorded advertisements. Although this agreement was in place when the segment was broadcast, the licensee submitted that no consideration was paid by Hyperbaric Health Pty Ltd for the segment broadcast at 7.50 am on 6 December 2012.

Finding

The licensee did not breach section 8 of the Disclosure Standard 2012 in its broadcast of TheAlan Jones Breakfast Showof6 December 2012, as the licensee was not required to broadcast an on-air disclosure announcement with the segment.Consequently, the licensee did not breach the licence condition at clause 8(1)(b) of Schedule 2 to the Act.

Reasons

Subsection 8(2) of the Disclosure Standard 2012 requires a commercial radio licensee to broadcast an on-air disclosure announcement if, under subsection 8(1) of the Disclosure Standard 2012:

(a) there is a relevant commercial agreement in place; and

(b) the licensee broadcasts material in a current affairs program that:

(i)promotes the name, products or services of the sponsor; or

(ii)includes an interview with an agent, employee or officer of the sponsor in relation to a matter that concerns the sponsor, its products, services or interests; or

(iii)is requested by the sponsor, or which is based on, or similar to, material provided by the sponsor; or

(iv)directly promotes an issue which is directly favourable to the sponsor.

Interpretation of the Disclosure Standard 2012

The Federal Court has considered the proper construction of section 8 of the Disclosure Standard 2012, confirming that the obligation to make an on-air disclosure announcement does not arise merely because of the existence of an agreement, arrangement or understanding which falls within the definition of a commercial agreement in subsection 5(2) of the Disclosure Standard 2012, but rather:

only arises if there is in existence such a commercial agreement and the licensee also broadcasts material in a current affairs program and that material meets at least one of the four types of material described in s 8(1)(b)(i) to (iv).[3]

While only two of the four types of material described in subsection 8(1)(b) of the Disclosure Standard 2012uses the word 'promotes' (namely subparagraphs 8(1)(b)(i) and (iv)), the courts view is that:

Considerations of promotion (or self promotion) are also necessarily implicit in s 8(1)(b) (ii) and (iii), which deal respectively with the broadcast of material which includes an interview with a sponsor's representative and is in relation to a matter that concerns the sponsor, its products services or interestsor, in the case of s 8(1)(b)(iii), material which is in effect requested or provided by the sponsor.[4]

Therefore, to enliven the obligation to make an on-air disclosure announcement, thematerial broadcast:

must promote, in the sense of advancing or encouraging, the name, products or services of the sponsor. In the usual case a mere mention of a name, product or service, without more, is unlikely to amount to a promotion in the relevant sense.[5]

Some mention or reference made in passing to the name, products or services of a sponsor who happens to have a commercial agreement with the licensee will not be enough to require the licensee to disclose the commercial agreement on-air.[6]

The Federal Court's construction is also consistent with the ACMA's Explanatory Statement to the Disclosure Standard 2012 which provides:

The situations in which a disclosure announcement must be broadcast include interviews with employees of sponsors about issues that concern a sponsor, as well as direct promotion of sponsors or their products or services. However, the section is not intended to apply in circumstances where a presenter only mentions or refers to a sponsor or sponsors’ product in passing, as distinct from promoting the name, products or services of the sponsor, or doing one of the other things specified in paragraph 8(1)(b).[7]

Application of the Disclosure Standard 2012 to the segment broadcast

In assessing whether the licensee was required to broadcast an on-air disclosure announcement in accordance with section 8(2) of the Disclosure Standard 2012, the ACMA needs to consider whether:

there was a commercial agreement under section 5 of the Disclosure Standard 2012; and

the licensee broadcast material in a current affairs program; and

the material broadcast meets at least one of the four types of material described in subparagraphs 8(1)(b)(i) to (iv) of the Disclosure Standard 2012.

The ACMA is satisfied that the advertising agreement between Hyperbaric Health Pty Ltd and the licensee could be regarded as a commercial agreement under section 5(2) of the Disclosure Standard 2012, if the current affairs presenter had the required interest in the licensee or a related body corporate of the licensee.

The ACMA is also satisfied that the licensee broadcast material in a current affairs program, as TheAlan Jones Breakfast Show is a current affairs program.

The ACMA is not satisfied that the material broadcast meets one of the four types of material described in subparagraphs 8(1)(b)(i) to (iv) of the Disclosure Standard 2012. While the particular segment of TheAlan Jones Breakfast Showincluded an interview with an agent, employee or officer of Hyperbaric Health Pty Ltd in relation to a matter that concernedHyperbaric Health Pty Ltd, its products, services or interests, the segment was not promotional. Having regard to the ACMA’s Explanatory Statement and the Federal Court's construction of section 8 of the Disclosure Standard 2012, the interview must have included promotion of Hyperbaric Health Pty Ltd to enliven the licensee's obligation to disclose the commercial agreement with Hyperbaric Health Pty Ltd. As discussed above, the ACMA does not believe the interview with the Medical Director of Hyperbaric Health Pty Ltd promoted the company, its products or services. The segment did not advance or encourage listeners to contact the company or use its services. Consequently, as there was no promotion, the material broadcast does not meet one of the types of material described in subparagraphs 8(1)(b) of the Disclosure Standard 2012.

Conclusion

The segment broadcast as part of TheAlan Jones Breakfast Show of 6 December 2012did not promote Hyperbaric Health Pty Ltd. Therefore, the ACMA does not consider that the licensee was required to broadcast an on-air disclosure announcement under the Disclosure Standard 2012.

ACMA Investigation Report – The Alan Jones Breakfast Show broadcast on 2GB on 6December 2012 1

[1]Under clause 8(1)(b) of Schedule 2 to the Act.

[2] – accessed on 12 February 2013.

[3]Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) FCR 525 at 555.

[4]Ibid 555-556.

[5]Ibid 555-556.

[6]Ibid at 555.

[7] - accessed 6 February 2013.