Investigation Report No. 3118

Investigation Report No. 3118

File no. / ACMA2013/1442
Broadcaster / Australian Broadcasting Corporation
Station / ABC TV (ABT) Tasmania
Type of service / National Broadcaster
Name of program / ABC News
Date of broadcast / 24 July 2013
Relevant codeprovisions / Standards 4.1 and 6.1 of the ABC Code of Practice 2011
Date finalised / 20 November 2013
Decision / No breach of Standards 4.1 (impartiality) and 6.1 (privacy)

Background

On 4 October 2013 theAustralian Communications and Media Authority (the ACMA) received a complaint about a news item on ABC News(Tasmania) broadcast by ABC TV Tasmania (the ABC) on 24 July 2013.
The ABC News 7pm bulletin is produced and presented every night from the capital city of each state and territory. ABC News (Tasmania) is broadcast at 7pm each night from the ABC’s Hobart studios. On its website, the ABC describes its news programming as:

Australia’s most trusted news service, delivering local, regional and international news and current affairs programming on radio, television and across its digital platforms.[1]

On 24 July 2013 the Tasmanian bulletin included a news item concerning the case of a Hobart man (M) who had that day been acquitted of a sexual assaultcharge after having spent three months in custody in relation to the incident. It included footage of M being interviewed as he left the court after his release, as well as a brief interview with an ABC reporter.
The complainant submitted that the questions asked by the reporter, as well as the broadcasting of M’s face and name, served to criminalise him further. He argued that this was not impartial on the part of the ABC and that it also served to intrude into M’s private life.
The duration of the news report was approximately three minutes. A transcript is at Attachment A.
The complainant submitted the following to the ABC on 25 July 2013:

On the 7pm Tasmanian ABC News, one of your news crews ambushed a man outside the Supreme Court in Hobart (Wed 24.7.2013). He had just been found not guilty, despite being locked up in jail for the previous three months.

Instead of helping him in his claim for compensation and wrongful imprisonment the female reporter sought only to further criminalise him: with her line of questioning; and by broadcasting his name and face...

The complainant’s submissions can be found in full at Attachment B.

The ABC replied to the complainant on 8 August 2013 as follows:

The story had news value because it revealed how laws relating to sexual assault involving alcohol were treated and because someone was jailed for three months and then was found not guilty.

A number of reporters sought comment from the defendant on a range of issues relating to the case. This included asking about a major issue in the trial which was about intoxication and consent.

Trials are open to the public and the man’s name and the offence had already been widely canvassed in the media.

The ABC’s response can be found in full at Attachment C.

The investigation has considered the ABC’s compliance with standards 4.1 and 6.1 of the ABC Code of Practice 2011 (the Code):

Impartiality and diversity of perspectives

4.1 Gather and present news and information with due impartiality.

Privacy

6.1 Intrusion into a person’s private life without consent must be justified in the public interest and the extent of the intrusion must be limited to what is proportionate in the circumstances.

Assessment

This investigation is based on submissions from the complainant, correspondence between the complainant and the ABC and a copy of the broadcast provided to the ACMA by the ABC. Other sources have been identified where relevant.
In assessing content for compliance with 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.[2]

The ACMA examines what the ‘ordinary, reasonable’viewer would have understood the relevant material to have conveyed, in the context of the relevant program. It considers the natural, ordinary meaning of the language, context, tenor, tone and inferences that may be drawn, and in the case of factual material, relevant omissions (if any).
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 Code.

Issue 1: Impartiality and diversity of perspectives

Finding

The ABC did not breach standard 4.1 of the Code.

Reasons

Standard 4.1 requires the ABC to ‘gather and present news and information with due impartiality’. Inclusion of the word ‘due’ indicates an element of flexibility depending on the particular context.
The general considerations which the ACMA has regard to in assessing the ABC’s compliance with standard 4.1 of the Code are found at Attachment D.
As indicated at Attachment D, achieving impartiality requires the broadcaster to present content in a way which avoids conveying pre-judgement or giving effect to the affectations or enmities of the presenter or reporter, who play a key role in setting the tone of the program, through their style and choice of language. Whether a breach of standard 4.1 has occurred will depend on the themes in the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast.
The complainant submits that the interview between M and thereporterduring the news item served to criminalise M and failed to ‘canvas the major issue: which is obviously, locking an innocent man up in jail for absolutely no reason; and of how much compensation he should receive’.
The interview with M occurs as he is leaving court, and proceeds as follows:

M: It’s just been stressful.

Reporter 3: How are you feeling that you get to go home?

M: Umm yeah good I suppose, yeah.

Reporter 3: I guess it’s a wider sort of cautionary tale for some people though I mean you were in this position because it’s pretty hard to judge how drunk someone is.

M: Yep, yeah I don’t, I just want to go, so have a good day.

The ACMA is satisfied that the news item was carried out with due impartiality, having regard to the type, subject and nature of the content, for the following reasons:

All of the ABC reportersspoke in a measured and neutral manner throughout the news item, and did not use any provocative or inflammatory language that served to vilify M.
M responded to questions from the reporter voluntarily, and once he decided to cease answering questions he was not pursued. The reporter used a relaxed and non-aggressive tone throughout.
The ACMA considers that the audience would have understood that the reporter’s questions to M were intended to serve as a comment on an issue of wider relevance: the way that the issue of intoxication is treated in sexual assault cases. By noting that M was ‘in this position because it’s pretty hard to judge how drunk someone is’ the reporter appeared to be empathising with M, rather than putting forward an ‘anti-male’ perspective, as alleged by the complainant. The audience would have appreciated that in making this comment, the reporter was notsuggesting M was not innocent of the sexual assault charges that he had just been acquitted of.
The ACMA accepts that the short interview with M did not discuss the fact that he had been imprisoned before being found not guilty. However, this fact was made clear in the preamble to the interview, where a reporter stated:

The jury took about an hour to find [M] not guilty of the aggravated sexual assault of a 27 year old woman in the grounds of Parliament House early on New Years’ Day. [M] has been in custody since April and he fought back tears as the jury handed down their verdict.

The news item also contained a factual summary of not onlythe arguments that the prosecution had put to the court, but also those of M’s defence counsel.
While more time was devoted to discussing the court case and the broader issue of sexual assault and alcohol rather than focusing on the time that M had spent in custody, the overarching principles of Standard 4 make clearthat impartiality does not require that every perspective or facet of a case receive equal time. In addition, the fact that M had spent time in custody was made clear during the news item.

The ACMA considers that having regard to the above reasons, the news item was impartial for the purposes of the Code.
Accordingly, the ABC did not breach standard 4.1 of the Code.

Issue 2: Privacy

Finding

The ABC did not breach standard 6.1 of the Code.

Reasons

The complainant in this case submits that the ABC ‘further criminalised’ M by interviewing him during the news item, and broadcasting both his name and face.
In assessing the ABC’s compliance with standard 6.1 of the code, the ACMA must first consider whether there has been ‘intrusion into a person’s private life without consent’.
The ACMA’s Privacy guidelines for broadcasters (December 2011) (the privacy guidelines)[3] explain the ACMA’s approach to code privacy protections and contain helpful guidance on the concept of ‘personal or private affairs’.
As M was clearly identifiable from the broadcast, the next issue for the ACMA’s determination is whether the material disclosed – M’s name and the details of his involvement in the case – constituted an intrusion intohis‘private life’.
In this case, the ACMA considers that the broadcast contained material that would ordinarily be considered to have related to M’s personal and private affairs, in that it divulged the details ofcriminal allegations of sexual assault that had been made against him.
Pursuant to the privacy guidelines, however, the ACMA notes that using material that is already in the public domain will generally not be an invasion of privacy. For the purposes of the Code, using such material will not normally be considered as intruding upon a person’s private life.
In this regard, the ACMA notes the ABC’s submission that ‘[trials] are open to the public and the man’s name and the offence had already been widely canvassed in the media’.
The ACMA accepts this submission and notes that it is not unusual for defendants in news worthy cases to be filmed leaving public court hearings. M’s name and alleged offence were already in the public domain and details of the case had appeared in local media.
In addition, to any extent that the news item did intrude into M’s private life, the ACMA considers that he had impliedly consented to its broadcast. In this regard, M did not appear to object to being interviewed on camera. While his body language suggested he was keen to leave, he responded to questions from reporters politely. As noted above, when he decided to cease answering questions, he was not pursued. In these circumstances, it appears that M impliedly consented to the interview footage being taken. .
In any event, to the extent that the news item did intrude upon M’s private life it is noted thatstandard 6.1 allows intrusion into a person’s private life where it is ‘justified in the public interest.’ Such an intrusion must, however, ‘be limited to what is proportionate in the circumstances’.
The ACMA considers that there was a real public interest value in broadcasting details of the case given that criminal trials are by their nature an open, public process and that this particular matter had relevance to the topical issue of intoxication and its effect upon consensual sex.
Accordingly, the extent of any intrusion into M’s private life was not disproportionate in the circumstances given the public interest value that details of the case carried with it.
For these reasons, the ACMA considers that the news item did not intrude into M’s private life, and that to the extent that any such intrusion occurred, it was both consensual on his part and justified by the public interest.
Therefore, the ABC did not breach standard 6.1 of the Code.

Attachment A

Transcript

[At start of news, there is footage of M leaving court, with the text “Not guilty”]

Reporter 1: A jury rejects claims of a drunken New Years Eve sexual assault.

[In main news item, about 8 minutes into the news report]

Reporter 1: The acquittal of a man accused of sexually assaulting a drunk woman on Hobart’s waterfront during New Years Eve celebrations has once again raised questions about intoxication and the ability to consent to sex. [Reporter 2] is down at the Supreme Court in Hobart. [Reporter 2], what happened today?

[Crosses to reporter 2 live outside Supreme Court]

Reporter 2: The jury took about an hour to find [M] not guilty of the aggravated sexual assault of a 27 year old woman in the grounds of Parliament House early on New Years’ Day. [M] has been in custody since April and he fought back tears as the jury handed down their verdict.

[Shows footage of M being interviewed outside Court, apparently taken earlier in the day.

M: It’s just been stressful.

Reporter 3: How are you feeling that you get to go home?

M: Umm yeah good I suppose, yeah.

Reporter 3: I guess it’s a wider sort of cautionary tale for some people though; I mean, you were in this position because it’s pretty hard to judge how drunk someone is.

M: Yep, yeah I don’t, I just want to go, so have a good day.

[M walks away]

Reporter 3: Thank you

[Crosses back to Reporter 2 outside the Court. While she is speaking footage is shown of what appears to be thecrime scene, but no images of M are included]

Reporter 2: At the centre of this case was the question: ‘How drunk is too drunk to give consent?’. The woman gave evidence that her last clear memory that night was about 9.30 when the children’s fireworks were on, and 7 hours after the incident she still had a blood alcohol reading of 0.088. Now legally you can’t give consent to sex if you’re so intoxicated that you can’t form a rational opinion of the act. Prosecutor [T] said the woman was essentially ‘out of it’ and she couldn’t give consent. But [M]’s lawyer, [K] said the woman was sober enough to consent to kissing her client and moments later had taken him by the hand and led him across the road to the grounds of Parliament House. She said it wasn’t possible for the woman’s state to have deteriorated in that short a time to the point where she was unable to give consent.

Reporter 1: What’s been the reaction to the verdict?

Reporter 2: Well the drug education network and sexual assault support service teamed up to run a state wide, year-long campaign surrounding the issue of intoxication and consent called ‘Off your head, don’t share your bed’. They repeated that warning today.

[Footage of officer from Drug Education Network]

Officer: Well we quite clearly know that your judgement’s impaired. This is why you can’t drive cars when you are intoxicated. You can’t make those sorts of decisions.

[Crossesback to view of Reporter 2]

Reporter 2: They say it’s vital that you’re not only aware of how drunk you are, but also that your potential partner may also be under the influence of alcohol.

[End of report]

Attachment B

Complainant’s submissions

The complainant submitted the following to the ABC on 25 July 2013:

What action will you take against this reporter, and what steps will you take to rectify your discrimination against this man, ensuring that this particularly creepy type of ideological bigotry never happens again?

The complainant then submitted the following to the ACMA on 1 October 2013:

Following my letter of 25-7-13 to Andrew Fisher (ABC) and his reply of 8-8-13 to me, and, of the fulfilling of the sixty day timeframe to further complain to your Authority, I do so on the following grounds:

That Mr Fisher’s reply to my complaint is just a standard whitewash, or fob off, citing the usual guff about “public interest”.

It misses the entire point of my complaint, which is that by broadcasting this man’s face and name in prime time the only agenda of the female reporter was to leave this innocent man open to reprisal of physical and psychological harm from Hobart’s particularly nasty brand of direct action feminists. That is she deliberately and maliciously put him in harm’s way.