Investigation Report No. 2648
File No. / ACMA2011/1465Licensee / Australian Broadcasting Corporation
Station / 2RN Sydney
Type of Service / National Broadcaster
Name of Program / Background Briefing
Dates of Broadcast / 20 February 2011
Relevant Code / Clauses 3.2 and 3.3 of the ABC Code of Practice 2007
Date finalised / 21 December 2011
Decision / Breach of clause 3.2 (accuracy)
No breach of clause 3.2 (accuracy)
No breach of clause 3.3 (correction of significant errors)
The complaint
The Australian Communications and Media Authority (ACMA) received a complaint regarding the Background Briefing program broadcast on 20 February 2011 on 2RN by the Australian Broadcasting Corporation (ABC).
The complainant alleges that various statements made in a report concerning the government’s proposed legislation to require plain packaged cigarettes were inaccurate and misleading.
The complainant was not satisfied with the response from the ABC’s Audience and Consumer Affairs and referred the matter to the ACMA for investigation.
The investigation has considered the ABC’s compliance with clauses 3.2 (accuracy of factual content) and 3.3 (correction of significant errors) of the ABC Code of Practice 2007 (the Code) [1].
The program
Background Briefing is described on the ABC’s website as ‘Radio National's agenda-setting current affairs radio documentary program.’ Accordingly, the Code provisions relating to news and current affairs apply.
On 2 February 2011, the program reported on the government’s proposed legislation to require plain packaged cigarettes. It ran for approximately 48.30 minutes and featured comments from several interviewees in support and against the proposal, including those made by the complainant, Director of the Intellectual Property (IP) and Free Trade Unit at the Institute of Public Affairs and comments from a representative of IP Australia.
A transcript of relevant excerpts of the program relating to the complaint is set out below:
Presenter: [The complainant] says he's recently obtained Freedom of Information documents proving that the government agency Intellectual Property Australia has advice that plain packaging isn't legally sound…
…
Presenter: In Melbourne, [the complainant] says the documents he's obtained are revealing.
Complainant: Well the documents tell a surprisingly large number of things. Firstly, that there are people within Intellectual Property Australia who believe that plain packaging would violate WTO obligations, and Intellectual Property Australia wasn't consulted, that there may be breaches with our bilateral trade agreements, that the evidence or that robust legal advice the government has, would appear to be very weak, according to internal discussions, and that they believe that it will not necessarily cover the government.
Presenter: Background Briefing has shown a transcript of this explanation to Intellectual Property Australia, and we received this comment in response. It reads in part:
Reader: IP Australia can confirm that the claims made by the Institute of Public Affairs are incorrect and misleading. IP Australia's advice in documents released under the FOI Act acknowledged that tobacco companies would see plain packaging as a restraint on the use of their trade marks. The advice indicated that they may try to challenge the legislation implementing the policy. The advice did not suggest that a successful challenge would be made or that the tobacco industry would be entitled to compensation.
Assessment
This investigation is based on a letter of complaint to the ACMA, correspondence between the ABC’s Audience and Consumer Affairs and the complainant, and a copy of the broadcast provided by the broadcaster. Other sources used have been identified where relevant.
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[2].
The ACMA asks what the ‘ordinary reasonable viewer’ would have understood this 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: Accuracy
Relevant Code clause
3 News and current affairs content
3.2 Every reasonable effort, in the circumstances, must be made to ensure that 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 in clause 3.2 are set out at Attachment A.
Complainant’s submissions
The complainant submitted in his letter to the ABC dated 4 May 2011 that:
…
Background Briefing claimed in their program that they showed a transcript of my comments (making factual statements reflecting the contents of FOI documents) to the government’s competent intellectual property agency, IP Australia, and who then stated my comments were “incorrect and misleading”, among other comments.
What has since come to light supported by evidence is that Background Briefing never showed a transcript of my comments to IP Australia and that IP Australia’s quote ‘response’ related to another matter, at another time.
…
I have since followed up with IP Australia and sought answers to two questions…IP Australia sent the following responses:
1. [The presenter] did not provide IP Australia with a hard copy of the transcript of your interview with Background Briefing.
2. IP Australia’s response to [the presenter] was in relation to the IP Australia documents released by you previously and to the subsequent IP Australia press release. IP Australia’s conversations with [the presenter] were prior to the airing of Background Briefing.
…
The complainant also provided copies of email correspondence with IP Australia and the ABC.
Broadcaster’s submissions
The ABC’s Audience and Consumer Affairs stated in its email to the complainant dated 30 June 2011 that:
…
In regard to your first concern, we can confirm that Background Briefing/[the presenter] did not “show” a copy of the “transcript” of your statement…to IP Australia. The program have informed us however that your statement, as quoted, was read out carefully during a telephone conversation with the IP Australia representative, and Background Briefing requested a response from IP Australia to this comment, The person Background Briefing spoke to at IP Australia has confirmed that this statement was read out to her and we have sighted this confirmation
We are of the view that the program erred in stating the “transcript” was “shown” to IP Australia and that this represents a breach of the factual accuracy requirements set out at 5.2.2(c)(i). We judge the breach to be of a minor nature which would not have misled listeners. Background Briefing have agreed to amend the transcript currently online to state that: “Background Briefing read this explanation to Intellectual Property Australia…”, and an Editor’s Note will be appended to acknowledge the inaccuracy. Background Briefing have informed us that they regret this error and wish to convey their apologies to you for this mistake.
With regard to the second aspect of your complaint, in our view neither the information provided by you in your complaint nor the paper trail kept by the program as sighted by us, provided solid evidence that the IP Australia quote was in response to your statement.
However, Background Briefing went back to their IP Australia contact and received firm confirmation that their statement, “IP Australia can confirm that the claims made by the Institute of Public Affairs are incorrect and misleading…”, was indeed a response to your statement, “Well the documents tell a surprisingly large number of things…”.
We have examined this confirmation from IP Australia and are satisfied that this exchange, with the amendment detailed above, is correct and in keeping with the accuracy requirements for news and current affairs content.
With regard to the timing issue that you raise, we are of the view that Background Briefing/[the presenter’s] line “that we received this comment in response” does not imply that the response from IP Australia was immediate. We are satisfied that it accurately reflects the fact that IP Australia provided an email statement in response some days after the conversation in which your statement was read out.
…
In a further email to the complainant dated 26 July 2011, the ABC stated:
…it is the case however that Background Briefing obtained further confirmation from their contact [KA] of IP Australia on 29 June, that in the statement she made, as it was read out in the program, she was indeed responding to the points you made about plain packaging as they were broadcast.
…
Findings
The ABC:
· breached clause 3.2 of the Code in relation to the statement, ‘Background Briefing has shown a transcript of this explanation to Intellectual Property Australia…’.
· did not breach clause 3.2 of the Code in relation to the statement, ‘…and we received this comment in response…’.
Reasons
The complaint relates to the statements below (in bold) broadcast in the program, which were made in the following context:
Presenter: [The complainant] says he's recently obtained Freedom of Information documents proving that the government agency Intellectual Property Australia has advice that plain packaging isn't legally sound…
…
Presenter: In Melbourne, [the complainant] says the documents he's obtained are revealing.
Complainant: Well the documents tell a surprisingly large number of things. Firstly, that there are people within Intellectual Property Australia who believe that plain packaging would violate WTO obligations, and Intellectual Property Australia wasn't consulted, that there may be breaches with our bilateral trade agreements, that the evidence or that robust legal advice the government has, would appear to be very weak, according to internal discussions, and that they believe that it will not necessarily cover the government.
Presenter: Background Briefing has shown a transcript of this explanation to Intellectual Property Australia, and we received this comment in response. It reads in part:
Reader: IP Australia can confirm that the claims made by the Institute of Public Affairs are incorrect and misleading…
‘Background Briefing has shown a transcript of this explanation to Intellectual Property Australia …’
In regard to the statement above, the ABC has acknowledged that it made an error in stating that it had ‘shown’ the transcript to Intellectual Property Australia (IP Australia) and that it breached the accuracy requirements.
Accordingly, the ACMA finds that the ABC breached clause 3.2 in this instance.
‘…we received this comment in response…’
Having regard to the context in which the above statement was made, the ACMA considers that an ordinary, reasonable listener would have understood that the ABC received a comment from IP Australia in response to the comments made by the complainant in the program about the documents he obtained under Freedom of Information.
The complainant submitted that IP Australia’s comments were not made in response to the preceding statements made by him in the broadcast but in response to other comments made by the complainant at another time. In support of this submission, the complainant provided a copy of the following email exchange between himself and TM, a representative from IP Australia, dated 3 May 2011:
Complainant: …According to the transcript of the Background Briefing report, the journalist stated: “Background Briefing has shown a transcript of this explanation to Intellectual Property Australia and we received this comment in response ...”. In response, I would appreciate if you could please answer two questions:
…
2. Further, the response you provided was in direct response to an IPA press release, not in response to a copy of a transcript of my interview with Background Briefing?
IP Australia: IP Australia's response to [the presenter] was in relation to the IP Australia documents released by [the complainant] previously and to the subsequent IP Australia press release. IP Australia's conversations with [the presenter] were prior to the airing of Background Briefing.
The ABC submitted that it obtained ‘further confirmation’ from IP Australia that the statements it made in the program were in response to the points made by the complainant about plain packaging as they were broadcast. The ABC provided a copy of an email dated 27 June 2011 which it sent to KA from IP Australia, the representative who provided comments in the broadcast, asking the following question and IP Australia’s response of 29 June 2011:
ABC: …Can you please confirm this is what actually happened? I rang you sometime in the week before 4th February, and asked if IP Australia can confirm the accuracy of what [the complainant] told me during a pre-recorded interview. I read out to you the claims he's made, which were that he's obtained documents from IP Australia through FOI, and the following was his interpretation of these documents:
Well the documents tell a surprisingly large number of things…
Again, just for clarity, you understood that these comments were made to me during a recent pre recorded interview with [the complainant], and that the comments were going to be used in my Background Briefing program. You agreed to supply a response to these comments. And on 4th February, you emailed me this response:
Thank you for your enquiry. IP Australia can confirm that the claims made by the Institute of Public Affairs are incorrect and misleading…
IP Australia: My recollection is that you phoned me in the week of 4/2/11 and mentioned a range of issues about plain packaging that were raised by [the complainant]. IP Australia then responded to the claims you advised us of…
The issue for the ACMA to determine is whether the ABC made ‘every reasonable effort’ to ensure that factual content was accurate. The ABC submitted to the ACMA[3] that it made every reasonable effort to ensure accuracy by:
· conducting a pre-recorded interview with the complainant and obtaining his comments on material he had received from IP Australia via FOI;
· telephoning an IP Australia representative and reading out aloud a transcript of the complainant’s comments to the program;