Investigation Report 2720
File No. / ACMA2011/1862Broadcaster / General Television Corporation Pty Ltd
Station / GTV
Type of service / Commercial television broadcasting service
Name and date of program / Channel Nine News9 November 2011
Relevant Code / Clause 4.3.1of the Commercial Television Industry Code of Practice 2010
Date finalised / 24 January 2012
Decision / No breach of clause 4.3.1 (factual accuracy)
The complaint
On 19 November 2011, the Australian Communications and Media Authority (the ACMA) received a complaintregarding Channel Nine News broadcast by General Television Corporation Pty Ltd, the licensee of GTV, on 9 November 2011.The complainant alleged that the program contained factual inaccuracies.
The investigation has considered the licensee’s compliance with clause 4.3.1 [factual accuracy] ofCommercial Television Industry Code of Practice 2010 (the Code).
The program
Channel Nine Newsis broadcast at 4.30pm and 6pm daily. The complaint in this instance relates to the 4.30pm broadcast.
On 9 November 2011, the news itemreported on Ned Kelly’s final wish to be buried alongside his family. A relevant excerpt of the story is as follows:
Presenter: It was his final wish and now 131 years later infamous Victorian bushranger Ned Kelly will finally be laid to rest with his family. His descendants are hoping he can be buried with his mother but they’re anxious about making sure he can rest in peace. Nine’s [LT] has the details.
Reporter: Well this is a story 130 years in the making. Ned Kelly actually wrote a letter the day before he was hanged expressing his desire to be buried alongside his family members. Now those family members are buried here in the Greta cemetery. It’s a tiny Victorian town just south of Glenrowan. Now his mother and some of his brothers and sisters are buried here in unmarked graves. And this decision with Ned Kelly’s remains has only been able to come about because of an Attorney General decision yesterday allowing his descendants to take possession of his remains. Now that could only come about because of a long standing forensic investigation into his skeleton and a skull was handed in. Let’s take a listen to what some of the family had to say about this decision.
[AG]: Now that we’ve got this decision, we can conclude some of those family discussions and see just where the best place is to lay him to rest because obviously this isn’t just a normal funeral.
[…]
The report alsoincluded an interviewwith the great grandson of a police officer who had been killed by the Kelly gang regarding his views on a public memorial for Ned Kelly.
Assessment
This investigation is based on a letter of complaint to the ACMA, correspondence between the licensee and the complainant, and a copy of the broadcast provided by the licensee. Other sources used have been identified where relevant.
Issue 1: Presentation of factual material
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;
4.3.1.1An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.
Findings
The licensee did not breach clause 4.3.1 of the Code.
Complainant’s submissions
The complainant submitted to the ACMA that:
On the 9th November 2011 I made a complaint using the on-line Free TV complaints procedure to register a complaint about a story broadcast on Channel Nine during their 4:30 pm news broadcast. The story referred to Ned Kelly's remains being reburied and referred to Ned Kelly's 'descendants' during the coverage of this story. I complained about this use of the word 'descendants' in reference to Ned Kelly. The reason I complained is that Ned Kelly has no descendants. A descendant is defined as someone who has descended from the named person. For someone today to be a descendant of Ned Kelly they would have to have descended directly from Ned himself, which would mean that they were a child, grandchild, great grandchild or even great great grandchild of Ned. Since Ned had no known children therefore it follows that Ned has no descendants.
The people alive today who are related to Ned are descendants either of Ned's siblings (i.e his sisters) or descended from one of Ned's cousins, but they are not descended from Ned himself, so they are not Ned's descendants, merely his relatives, cousins to some degree.
My Webster's Dictionary says that a descendant is 'An individual proceeding from an ancestor in any degree; issue; offspring, in the line of generation, ad infinitum; as we are all descendants of Adam and Eve.'
Channel Nine cites the Macquarie Dictionary as proof that it used the term 'descendant' correctly. The Macquarie Dictionary according to Nine says that a descendant is 'someone descended from an ancestor, and includes heirs'. This definition, if understood and applied correctly, actually supports my complaint as it shows that Ned could only have descendants if they descended from an ancestor (that ancestor being Ned). However Ch 9 has misapplied or misunderstood this definition and are saying that because the people alive today are descended from a common ancestor, say Ned's mother or grandparents that that means they are also Ned's descendants. That some of the people alive today claim to be Ned's heirs also confuses the matter since the Macquarie Dictionary definition says 'and includes heirs'. Thus Ch 9 has probably thought that since some of Ned's living relatives today claim to be his heirs then they fit the definition of being Ned's descendants. This is faulty thinking however because a careful reading of the Macquarie Dictionary definition says that an heir must still be descended from the person. The phrase 'someone descended from an ancestor, and includes heirs' means that heirs must still be descended to count as 'descendants'. It does not mean that if someone is an heir he or she is automatically a 'descendant'. This is the mistake that Ch 9 makes I think.
So my complaint about factual inaccuracy in a Channel Nine news broadcast stands in that it was factually inaccurate to refer to anyone alive today or at any time for that matter as a 'descendant' of Ned Kelly. Ned had no known children so he therefore has no known descendants, even if some people alive today claim to be descended from Ned because they are descended from one of Ned's relatives or siblings. By rejecting my complaint Channel Nine are either showing their ignorance about the definition of what a descendant is or else they are being wilfully difficult in order to deflect my accusation of factual inaccuracy. Perhaps they do this with all complaints, perhaps their response is standard stuff, I don't know.
Licensee’s submissions
The licensee submittedto the complainant, in a letter of 11 November 2011, that:
We have reviewed the story to which your complaint refers to where we reported that descendants of Ned Kelly were hoping to bury him with his mother, although they are anxious about making sure he would rest in peace.
Our report, [LT] starts by saying, “Ned Kelly wrote a letter the day before hewas hanged, expressing his desire to be buried alongside his family members. Those family members are buried in Greta Cemetery in Victoria, his mother, brother and some other family members are buried there. This decision has only come about after the Attorney General made the decision to allow Ned Kelly’s descendants to take possession of his remains after forensic evidence had been completed”.
Later during the report, we crossed to a family member, Mr [AG], who is the great grandson of Ned Kelly’s sister, Ellen, who said “now that we have this decision, we can conclude some of the family discussions as to where the best place is to lay him to rest”.
Your complaint specifically refers to our use of the word ‘descendants’ during our report. The definition of Descendant is supported by the Macquarie Dictionary which states that a Descendant or Descendent may refer to:
‘someone descended from an ancestor, and includes heirs’
Based on the above definition, we believe that the use of the ‘descendants’ in reference to Ned Kelly’s present day family members was accurate.
Reasons
The reference to ‘descendants’in the news item was made in the following contexts:
Presenter: It was his final wish and now 131 years later infamous Victorian bushranger Ned Kelly will finally be laid to rest with his family. His descendants are hoping he can be buried with his mother, they’re anxious about making sure he can rest in peace…
Reporter: …This decision with Ned Kelly’s remains has only been able to come about because of an Attorney General decision yesterday allowing his descendants to take possession of his remains…
Thebroadcast then included a comment from the great grandson (AG) of Ned Kelly’s sister. The issue to determine is whether the program accurately described AG as Ned Kelly’s ‘descendant’.
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[1].
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).
In that regard, the relevant statement must be evaluated in its context, i.e. contextual indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener.
In this case, and bearing in mind the dictionary definitions (as noted by both the complainant and the licensee) it was not strictly correct to use the term ‘descendant’ in this context. A more correct term would have been relative or distant relative. On this basis, the licensee did not comply with clause 4.3.1 of the code.
Clause 1.5.4 of the Code states that:
1.5 Licensees must seek to comply with the code, but a failure to comply will not be a breach of the code if that failure was due to:
1.5.4 an act or failure which, in all the circumstances, was clearly peripheral or incidental, and unlikely to offend or materially mislead viewers.
The ACMA is of the view that the inaccurate presentation of this material was peripheral and incidental to the focus of the particular news item and was unlikely to materially mislead viewers. The focus of this story reported on the potential implications of an Attorney-General’s decision in relation to Ned Kelly’s burial place and how this relates to his wishes in this regard as reported. The reporter referred to AG as Ned Kelly’s ‘family’ and also included information about Ned Kelly’s wish to be buried alongside his family members, including some of his brothers and sisters. There was no specific attention or discussion of whether or not Ned Kelly had any children and/or descendants.
In conclusion, the licensee’s failure to comply with clause 4.3.1 of the Code is not considered a breach of the Code given that the failure was unlikely to materially mislead viewers in accordance with clause 1.5.4.
ACMA Investigation Report 2720 –Channel Nine News– GTV –9/11/111
[1]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167