Investigation Report No. 2603
File No. / ACMA2011/1045Broadcaster / ABC Radio
Station / 3LO
Type of Service / National Broadcaster
Name of Program / PM
Date of Broadcast / 21 February 2011
Relevant Code / Clauses 3.2, 3.4, 3.5 and 3.6 of the ABC Code of Practice 2007
Date finalised / 26 September 2011
Decision / No breach of clauses 3.2, 3.4, 3.5 and 3.6 of the ABC Code of Practice 2007
The complaint
On 3 June 2011, the Australian Communications and Media Authority (ACMA) received a complaint regarding a report broadcast on PM by the ABC on 21 February 2011.
The complainant was concerned that the report contained ‘baseless allegations directed at a Sri Lankan diplomat’ and made no ‘effort to prevent misrepresentation of [..] points of view’.
The complainant was not satisfied with the response of the ABC and referred the matter to the ACMA for investigation.[1] The complaint has been investigated in accordance with clauses 3.2 [accuracy], 3.4 [impartiality], 3.5 [balance] and 3.6 [serve the public interest] of the ABC Code of Practice 2007 (the Code).
The program
PM is a news and current affairs program presented by Mark Colvin and broadcast on weeknights from 6:10pm on ABC local radio and 5:10pm on Radio National.
On 21 February 2011, the program included a report titled ‘Push to investigate Australian citizen for war crimes’. The report ran for approximately four minutes and discussed a submission made by the organisation Tamils Against Genocide to the International Criminal Court’s (ICC) Office of the Prosecutor to investigate an Australian born, Sri Lankan diplomat for alleged war crimes.
The broadcast included the comments of:
RS, spokesperson for Tamils Against Genocide;
PK, the accused; and
Professor AB, International Law expert from the University of New South Wales.
The transcript of the report is at Attachment A.
Assessment
The assessment is based on:
a recording of the report, provided by the broadcaster;
the complainant’s submissions;
the broadcaster’s submission; and
publicly available information, the source of which is identified where relevant.
Ordinary, reasonable listener
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 listener’.
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.[2]
The ACMA asks what the ordinary, reasonable listener would have understood the broadcast to have conveyed. In doing so, the ACMA 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, the ACMA will determine whether the material has breached the Code.
Issue 1: factual accuracy
Relevant Code Provision
3. News and current affairs content
3.2 Every reasonable effort, in the circumstances, must be made to ensure that the factual content of news and current affairs is accurate and in context.
The considerations which the ACMA generally applies in determining whether or not a statement complained of was compliant with the ABC’s obligations to make every reasonable effort to ensure that factual content is accurate, in the circumstances, are set out at Attachment B.
Complainant’s submissions:
The complainant submitted to the ACMA:
[...]
With regard to Sri Lanka’s 30 year war against the LTTE and the Sri Lankan Government’s efforts to protect all the civilians from the grip of the LTTE terrorists are being commented upon by various groups who never expected the LTTE to be defeated. These organisations and individuals who never spoke about the terrorist acts of the LTTE have begun to speak about the human rights of the defeated armed group.
The baseless allegations directed at [PK], a distinguished diplomatic officer is part of this desperate effort. A number of NGOs, some media organisations and a few colleagues of the LTTE terrorist organisation have been floating a story to say that [PK] was involved in an attempt to get the LTTE cadres to surrender during the last stages of the war.
Any person conversant with the LTTE war and the strategy of the LTTE are aware of the fact that the LTTE never agreed to surrender at any time and the sole authority in regard to the declaration of the War and any strategy changes with regard to the Sri Lankan army was never in the hands of the Sri Lankan President.
When questioned about the said incidents [PK] had emphatically mentioned that he had no powers in regard to defence affairs etc. In fact, [PK] mentioned this fact in the ABC program.
Only source of accurate and reliable information about this hypothetical incident created by the LTTE members and their fronts would have to be individuals or organisations that are capable of negotiating with Sri Lankan Government and recognised at the appropriate level.
If the Sri Lankan Government officials do not accept this incident and if only a few unreliable and questionable individuals or organisations are promoting this story, it is absurd for a recognised media organisation such as the ABC to pursue [PK] with this unsubstantiated story.
The accuracy of the assertions made was not properly checked by the ABC and it has not made any attempt to “ensure that the factual content is accurate”. [...]
Broadcaster’s submission:
The ABC’s Audience and Consumer Affairs responded to the complainant:
[...] The report accurately set out the accusations against [PK] and the context in which they are being made [...].
Finding
The ABC did not breach clause 3.2 of the ABC Code of Practice 2007.
Reasons
Clause 3.2 of the Code requires the ABC to make every reasonable effort, in the circumstances, to ensure that factual content of news and current affairs is accurate and in context.
As stated above, the segment reported that Tamils Against Genocide had made a submission to the ICC’s Office of the Prosecutor alleging that PK had committed war crimes in Sri Lanka in 2009. The complainant’s concern with regards to accuracy relates to the reporting of the allegations made in the submission:
The baseless allegations directed at [PK], a distinguished diplomatic officer is part of this desperate effort. [...]The accuracy of the assertions made was not properly checked by the ABC and it has not made any attempt to “ensure that the factual content is accurate”.
The first question for the ACMA to consider is whether the relevant content, in this case, the allegations, would have been understood by the ordinary, reasonable listener as a statement of fact or an expression of opinion, the latter of which is not subject to the requirement of accuracy. In doing so, the ACMA has had regard to the following:
the language used with respect to the allegations was not unequivocal and did not suggest that the allegations were irrefutable;
the report was titled, ‘Push to investigate Australian citizen for war crimes’, which gave the contextual indication that the ICC had not commenced an investigation, nor made a finding in relation to the matter;
the report outlined the allegations contained in a submission to the ICC’s Office of the Prosecutor. The report did not comment on whether the allegations are true or false;
the report used phrases such as, ‘received a submission [...] to investigate’, ‘the brief claims’, and ‘Tamils Against Genocide who made the submission’, which highlights that the allegations are the opinion of the Tamils Against Genocide; and
Having regard to the above, the ACMA considers that the ordinary, reasonable listener would have understood the allegations reported to be the opinion of the Tamils Against Genocide – the authors of the submission to the ICC.
As the ACMA has found that the relevant content was an expression of opinion, clause 3.2 of the Code is not applicable.
Issue 2: impartiality
Relevant Code Provision
3. News and current affairs content
3.4 Content will be impartial. Editorial judgements will be based on news values. One perspective will not be unduly favoured over others.
The considerations which the ACMA generally applies in determining whether or not content is impartial are set out at Attachment C.
Complainant’s submission:
The complainant submitted to the ACMA:
[...]
When questioned about the said incidents [PK] had emphatically mentioned that he had no powers in regard to defence affairs etc. In fact, [PK] mentioned this fact in the ABC programs.
Only source of accurate and reliable information about this hypothetical incident created by the LTTE members and their fronts would have to be individuals or organisations who are capable of negotiating with Sri Lankan Government and recognised at the appropriate level.
If the Sri Lankan Government officials do not accept this incident and if only a few unreliable and questionable individuals or organisations are promoting this story, it is absurd for a recognised media organisation such as ABC to pursue [PK] with this unsubstantiated story.
[...]
Broadcaster’s submission:
The ABC’s Audience and Consumer Affairs responded to the complainant:
[...]
Having reviewed the broadcast, we are satisfied that an Australian citizen, who was appointed as Sri Lanka’s Ambassador to the UN, being accused of war crimes is newsworthy and a matter of public interest.
[...]
Finding
The ABC did not breach clause 3.4 of the ABC Code of Practice 2007.
Reasons
In determining whether or not material complained of was compliant with the ABC’s obligations under clause 3.4 of the Code, the ACMA will determine whether:
1. the segment was impartial;
2. editorial judgements were based on news values; and
3. one perspective was unduly favoured over others.
Impartiality of content
Impartiality concerns how perspectives or viewpoints are treated.[3]
The ACMA has assessed whether the report contained editorial comment or was presented in such a way that favoured the subject of the report, being the allegation against PK. A broadcast may be considered to be partial if it gives effect to the affections or enmities of the reporter in respect of the subject matter being reported on.
The ACMA notes that the language used in the report was objective, direct and expressed without emotion, as demonstrated in the following introduction:
The International Criminal Court in the Hague overnight received a submission to the office of the Prosecutor to investigate an Australian citizen for war crimes. The brief claims that during the last days of Sri Lanka’s civil war the dual Sri Lankan-Australian citizen [PK] was involved in the murder of three Tamil Tiger leaders who had already surrendered.
The introduction clearly informed listeners that the report was based on an allegation made in a submission to the Office of the Prosecutor. There was nothing in the report that indicated that the material reported was the opinion of the journalist or the ABC. This is consistent with the context and purpose of the report being to discuss the particulars of the submission received by the ICC’s Office of the Prosecutor.
Accordingly, the ACMA is satisfied that the report was impartial.
Editorial judgments based on news values
The Code requires editorial judgments to be based on news values and not, for example, on political, commercial or sectional interests or personal views.
The ACMA accepts the ABC’s submission that an Australian citizen, who was appointed as Sri Lanka’s Ambassador to the United Nations, being accused of war crimes is newsworthy and a matter of interest to the Australian public. The ACMA notes that a number of other news sources also considered the information newsworthy, including Sydney Morning Herald[4] and The Age.[5] Further, the ACMA considers that there would be a reasonable expectation for news and current affairs programs to report on any instance of an Australian citizen being accused of war crimes.
The ACMA is satisfied that the ABC’s editorial decision was based on news values.
One perspective not unduly favoured over others
The Code requires that one perspective not be unduly favoured over others.
As stated above, it is considered that the ordinary, reasonable listener would have understood that the purpose of the report was to discuss the submission made by Tamils Against Genocide to the ICC’s Office of the Prosecutor to investigate an Australian born, Sri Lankan diplomat for alleged war crimes. In these circumstances, the ACMA does not consider that the broadcast ‘unduly favoured’ this perspective over another. The report did not shift weight from one perspective to another; rather, it was made clear from the start that the report was about the submission of the Tamils Against Genocide to the ICC.
There is some overlap between the requirements of impartiality and balance in that both matters deal with perspectives and viewpoints. They key difference being that balance concerns a range and nature of perspectives. The issue of balance of principal relevant views on matter of importance will be dealt with at Issue 3 below.
The ACMA finds the ABC has not breached clause 3.4 of the Code.
Issue 3: balance
Relevant Code Provision
3. News and current affairs content
3.5 Balance will be sought but may not always be achieved within a single program or publication; it will be achieved as soon as reasonably practicable and in an appropriate manner. It is not essential to give all sides equal time. As far as possible, principle relevant views on matters of importance will be presented.
The considerations which the ACMA generally applies in determining whether or not content is impartial are set out at Attachment D.
Complainant’s submission:
The complainant submitted to the ACMA:
[...]
[N]either “an effort was made to prevent misrepresentation of other points of view” as required.
[...]
Broadcaster’s submission:
The ABC’s Audience and Consumer Affairs responded to the complainant:
[...]
The report [...] included the perspective of international law expert, Professor [AB], and made clear to the audience that [PK] had been approached by the ABC for his comments but declined to give them.