Investigation Reports No. 2683 and 2691
ACMA file reference / ACMA2011/1605Licensee / Network TEN (Sydney) Pty Ltd
Station / TEN
Type of Service / Commercial television broadcasting
Name of Program / Can of Worms program promotion broadcast 31 July 2011
Can of Worms program promotion broadcast 1 August 2011
Dates of Broadcast / 31 July 2011: 7.50 pm
1 August 2011: 7.45 pm
Relevant Legislation/Code / Broadcasting Services Act 1992
- Section 149(1)
- Clause 3.9 (Restrictions in PG Programs in Certain Time Periods)
- Appendix 4 Paragraph 3 (The Parental Guidance Recommended (PG) Classification – sex and nudity)
- Clause 3.16 (Display of Classification Symbols)
Investigation conclusion
Can of Worms program promotion broadcast 31 July and 1 August 2011:
- No breach of clause 3.9 (Restrictions in PG Programs in Certain Time Periods) of the Commercial Television Industry Code of Practice 2010.
- No breach of Appendix 4 Paragraph 3 (The Parental Guidance Recommended (PG) Classification – sex and nudity) of the Commercial Television Industry Code of Practice 2010.
- No breach of clause 3.16 (Display of Classification Symbols) of the Commercial Television Industry Code of Practice 2010.
The complaint
On 15 September 2011, the Australian Communications and Media Authority (the ACMA) received a written complaint (dated 14 September 2011) about two separate promotions for the program Can of Worms broadcast on 31 July and 1 August 2011by Network TEN (Sydney) Pty Ltd, the licensee of TEN.
The complainant alleged that the program promotions, both broadcast during the program Masterchefat similar timeson consecutive nights, contained inappropriate sexual references for the timeslot.
The complainant also alleged that the program promotions were inappropriate in terms of subject matter for broadcast during the program Masterchef. The ACMA does not have jurisdiction to investigate this aspect of the complaint, except as it directly concerns other considerations within the Commercial Television Industry Code of Practice 2010, such as appropriate classification.
The complaintswere made directly to the licensee in the first instance. Not satisfied with the response provided by the licensee, the complainant referred the matters to the ACMA for investigation.
The ACMA notes that the licensee provided one response to the complainant in response to his complaints concerning the two program promotions. Clause 7.17 of the Commercial Television Industry Code of Practice 2010states that if a person makes multiple complaints about a program or a series of programs, the licensee is only obliged to respond to the first complaint, unless the subsequent complaints raise new and distinct issues. The ACMA is satisfied that the licensee was not required to provide two separate responses to the complainant as the issues raised in the complaints concerned similar issues.
The program
The program Can of Worms is described on the TEN website in the following terms:
Each week, our host, Ian “Dicko” Dickson, will be joined by three guests, a studio audience and people from all over the country to find out what we really think about the real stuff of life.
Can Of Worms questions are not about politics or current affairs. They’re about the things we collide with every day – political correctness, personal values and our unending capacity to make life complicated.
There can never be a ‘wrong answer’ on Can of Worms. Our guests won’t be expected to give an expert opinion or politically correct view. All we ask is that they’re honest and candid and come prepared for a lot of fun. What will our guests say? You may be surprised!
There’s only one catch: They’re not allowed to sit on the fence. It’s ‘Yes’ or ‘No’.
During the show, we'll also reveal the results of our Can of Worms national polls, run by leading research company Roy Morgan. They'll be surveying everyday people to discover what Australia really thinks about the topics.[1]
[...]
Can of Worms was initiallybroadcast from 8.30pm on Monday and the ACMA understands,is usually classified M. The episode in question was broadcast with an MA15+ classification.
The first approximately30-second program promotion identified by the complainant was broadcast at approximately 7.50 pm on 31 July 2011 during the PG classified programMasterChef. The program promotion carried the M classification symbol.
The second approximately 30-second program promotion identified by the complainant was broadcast at approximately 7.45 pm on 1 August 2011 during the PG classified programMasterChef. The program promotion carried the MA15+ classification symbol.
Assessment
The assessment is based on a copy of the relevant broadcasts provided to the ACMA by the licensee and submissions from the complainant, which includes correspondence between the licensee and the complainant, and submissions from the licensee.
Relevant Provisions
The Commercial Television Industry Code of Practice 2010 (the Code) contains the following provisions that are relevant in the matters raised by the complainant:
SECTION 1: INTRODUCTION
Compliance with Code
1.5 Licensees must seek to comply fully with the Code, but a failure to comply will not be a
breach of the Code if that failure was due to:
1.5.1 a reasonable mistake;
[...]
1.6 Where it is possible to remedy a failure to comply with the Code resulting from one or more of the circumstances in Clause 1.5, licensees must do so promptly.
[...]
SECTION 3: PROGRAM PROMOTIONS
Restrictions in PG Programs in Certain Time Periods
3.9Special restrictions apply to the content of program promotions in PG programs broadcast between 7:00pm and 8:30pm on weekdays and between 10:00am and 8:30pm on weekends. All such program promotions must comply with the PG classification requirements set out in paragraph 3 in Appendix 4 and in addition must include no material that involves any of the following:
3.9.1the use of guns, other weapons or dangerous objects against people or animals in the foreground;
3.9.2violence against people or animals which has more than a very mild impact;
3.9.3action sequences which include obvious loss of life;
3.9.4close-up vision of dead or seriously wounded people;
3.9.5any visual depiction of suicide or intended means of suicide;
3.9.6sexual behaviour other than of a very restrained kind;
3.9.7visual depiction of nudity, other than of a very restrained or incidental nature;
3.9.8coarse language, other than of a very mild nature;
3.9.9anything which has more than a mild sense of threat or menace.
[…]
Display of Classification Symbols
3.16A promotion for a program other than a news, current affairs or sporting event must
display the classification of the program promoted, as required by Clause 2.18.
[…]
Appendix 4: Television Classification Guidelines
The Parental Guidance Recommended (PG) Classification
3.Material classified PG may contain careful presentations of adult themes or concepts but must be mild in impact and remain suitable for children to watch with supervision.
[…]
3.2Sex and Nudity: Visual depiction of and verbal reference to sexual activity must be restrained, mild in impact and justified by the story line or program context. Restrained visual depiction of nudity is permitted, but only where justified by the story line or program context.
[...]
Complainant’s submissions
The complainant wrote to the licensee on 31 July 2011 regarding their concerns, stating:
A promo for ‘can of worms’ was shown at 7:50pm during Masterchef on 31 July; I would consider Masterchef a show suitable for young children yet the promo for Can of Worms made a reference to “porn”. This is totally unacceptable and a shameful abuse of viewer trust. [...]
The complainant again wrote to the licensee on a 1 August 2011 reiterating their concerns after seeing a second program promotion for Can of Worms stating:
[...] Yesterday (31 July) I complained that a reference to ‘porn’ was made in a promo for Can of Worms during Masterchef. Tonight, Channel Ten flashed up the word ‘porn’ in capitals and bright letters only seconds after Masterchef went to ads. [...]
In correspondence to the ACMA, dated 14 September 2011, the complainant stated the following:
[...] The promotion for Can of Worms on both evenings was related to a discussion on the subject of pornography. In both instances, the word ‘porn’ was displayed graphically with use of bright colours and large lettering. I consider this completely inappropriate for the timeslot, considering that Channel Ten actively promote Masterchef as a family show.
[...]
Channel Ten should have shown restraint in actively [promoting] their “porn” episode of Can of Worms. They should have waited until Masterchef was finished; i.e. an appropriate time after the end credits had finished, and then promoted their show.
In my opinion Channel Ten has breached several aspects of the Code of Practice. Highly graphic displaying of the word ‘porn’ during a PG, family orientated show is coarse, sexual in nature, and not at all restrained, ‘careful’, mild, justified or suitable for children to watch.
[...]
Licensee’s submissions
In its letter of 2 September 2011 to the complainant, the licensee noted that:
[...]
The promotion to which you refer displays the word ‘porn’ to describe one of the subjects examined in the Can of Worms episode, broadcast on Monday 01 August 2011. The one verbal reference and the visual references to the term are not considered to be unsuitable for broadcast in a PG program in this timeslot. The word is not used in an explicit manner and is displayed in the context of promoting the program topic.
Given the absence of any detailed sexual references or depictions of sexual activity, we consider the Can of Worms promotion was suitable for broadcast during MasterChef Australia and complied with the Code.
[...]
In its submission of 5 October 2011 to the ACMA, the licensee noted that:
[In relation tothe complainant’s] complaintabout the promotion broadcast on 1 August 2011, TENconsidered the subsequent complaint did not raise new and distinct issues and hence did not provide a separate response in accordance with Clause 7.17 of the Commercial Television Industry Code of Practice.[...]
Can of Worms was initially scheduled for Mondays at 8.30pm and classified M. Following the first few episodes it was broadcast on occasion after 9.30pm to accommodate other programming.
The episode of Monday 1 August was scheduled for broadcast from 9.30pm.
Prior to 1 August 2011, each episode of Can of Worms had been classified M and promoted as such. The expectation was that the episode of 1 August would also be classified M. Hence, the 31 July 2011 program promotion in question carried the M classification symbol, which was considered the correct classification symbol at the time of broadcast of the promotion, based on all available evidence.
Each episode of the program is filmed the day before it is broadcast ie on Sundays, from approximately 3pm. Following filming on Sunday 31 July 2011, it was considered that the material was of such a strength as to be more appropriately classified MA. Further, in order to maintain the quality and integrity of the content, the material could not be satisfactorily edited to be accommodated within the M classification.
Hence the episode was reclassified MA and the updated classification information was applied as soon as possible to all subsequent promotional material, including the program promotion broadcast on Monday 1 August during MasterChef Australia.
In response to the ACMA’s preliminary findings the licensee provided submissionsto the ACMA dated 25 October 2011.The licensee noted that:
TEN acknowledges the ACMA’s preliminary finding that the 31 July 2011 program promotionbreached Clause 3.16 of the Code by carrying a classification marking of M for the program.The actual classification of the episode at the time of the episode’s broadcast was MA. TheACMA found the 1August 2011 promotion carried the MA15+ marking and hence complied withClause 3.16 of the Code.[…]
[...]
We submit that the failure to comply with Clause 3.16 should not constitute a breach of the Codein accordance with Clause 1.5.1.
The M classification marking was reasonably placed on the 31 July promotion as all availableinformation prior to the promotion’s broadcast indicated that the episode in question would beclassified M.
As previously outlined, the initial episodes of Can of Worms were classified M and broadcast inan M classification zone, being Mondays at 8.30pm. It was intended that the series would beclassified M and broadcast in this timeslot. Following the first few episodes it was broadcast onoccasion after 9.30pm, in an MA classification zone. Nevertheless, prior to 1 August 2011, each episode of Can of Worms had been classified M and promoted as such.
The episode of Monday 1 August was scheduled for broadcast from 9.30pm. The expectation was that the episode of 1 August would also be classified M. Hence, the 31 July 2011 programpromotion carried the M classification symbol, which was considered the correct classificationsymbol at the time of broadcast of the promotion, based on all available evidence.Each episode of the program is filmed the day before it is broadcast ie on Sundays, fromapproximately 3pm. On the evening of Sunday 31 July 2011 following filming, it was consideredthat the material was of such strength as to be more appropriately classified MA. Further, inorder to maintain the quality and integrity of the content, the material could not be satisfactorilyedited to be accommodated within the M classification.
Hence the episode was reclassified MA and the updated classification information was appliedas soon as possible to all subsequent promotional material, including the program promotionbroadcast on Monday 1 August during MasterChef Australia. The episode itself clearly carriedthe updated classification and consumer advice.
[...]
Remedial Action
We have previously expressed our concern that this Code requirement has unintended practical consequences for the promotion of programs.
[...]
Network TEN will seek to have this issue addressed in the next review of the Code.
Findings
The ACMA finds that Network TEN (Sydney) Pty Ltd, in broadcasting the program promotions on 31July 2011 and 1 August 2011:
- Complied with clause 3.9 (Restrictions in PG Programs in Certain Time Periods) of the Code.
- Complied with Appendix 4 Paragraph 3 (The Parental Guidance Recommended (PG) Classification – sex and nudity) of the Code.
- Complied withclause 3.16 (Display of Classification Symbols) of the Code.
Reasons
The Parental Guidance Recommended (PG) Classification – sex and nudity
The program promotion provisions of the Code are intended to ensure that higher classified programs are only to be promoted in PG viewing periods if the content shown complies in every respect with the classification criteria of those viewing periods and with the more stringent content restrictions specified in clause 3.9.
The Code states that material classified PG must be mild in impact and remain suitable for children to watch with supervision. It also requires that verbal references to sexual activity must be restrained, mild in impact and justified by the story line or program context.
The program Can of Worms features a panel of three public figures answering questions posed by the host, Ian Dickson, in front of a studio audience.
In the program promotion broadcast on 31 July 2011, there is one written and one spoken reference to the word ‘porn’ as the question is posed via voiceover and in text ‘is porn a normal part of adult life?’. The references are brief and without additional detail, and as such they are of a very restrained kind and no higher than mild in impact. Further, the references are contextually justified within a promotion for a program that explores views on matters of personal and community values.
In the program promotion broadcast on 1 August 2011, there is one written and one spoken reference to the word ‘porn’ as the question is posed via voiceover and in text ‘is porn a normal part of adult life?’. The promotion goes on to show various brief vocal and reaction shots from guests on the program, some of which appears to reference the topic but without any elaborating detail. The references to ‘porn’ are brief and without additional detail, and as such they are of a very restrained kind and no higher than mild in impact. Further, the references are contextually justified within a promotion for a program that explores views on matters of personal and community values.
It is therefore considered that the content does not exceed the PG classification requirements for sex.
Restrictions in PG Programs in Certain Time Periods
It has further been considered whether the promotion contained any material covered by the more restrictive provisions in the Code which apply to program promotion broadcast on weekends between 10.00 am and 8.30 pm and weekdays between 7.00 pm and 8.30 pm. As the two program promotionscontain sexual references of a very restrained kind, the ACMA is satisfied that the licensee has complied with clause 3.9 of the Code.
Display of Classification Symbols
In considering the program promotion broadcast on 31 July 2011, the ACMA noted that it carried a classification of M for the program. The program was actually classified MA15+ at the time of its broadcast.Clause 3.16 (Display of Classification Symbols) of the Code states that:
A promotion for a program other than news, current affairs or sporting event must display the classification of the program promoted, as required by Clause 2.18.
The licensee has submitted that the failure to comply with clause 3.16 should not be a breach of the Code, as the failure was due to a reasonable mistake as a consequence of the licensee’s reliance on information available at the time of the promotion’s broadcast on 31 July 2011. In its submission to the ACMA, TEN referenced clause 1.5.1 of the Code, which states:
1.5Licensees must seek to comply fully with the Code, but a failure to comply will not be a breach of the Code if that failure was due to:
1.5.1a reasonable mistake;
[…]
The requirement that programs be promoted with the correct classification and promotions display the classification of the program promoted is considered to be a fundamental requirement of the Code.
Given TEN’s submission, however, the ACMA has considered whether TEN’s failure to comply with the Code was due to a ‘reasonable mistake’. The ACMA notes TEN relied on the following information to classify the program promotion broadcast on 31 July 2011:
- the fact that each episode of Can of Wormshad been classified M prior to the episode first broadcast on 1 August 2011;and
- by ensuring that network classifiers worked closely with the program and program promotion producers to assess the most likely classification of a program based on the available material prior to broadcasting the program’s anticipated classification in the program promotion.
The ACMA considers that, in these circumstances, it was reasonable for TEN to expect that the program would be classified M. The ACMA notes that in this particular instance the impact on viewers of the initial M classification symbol displayed would have been minimal given the promotion indicated that the program was suitable for a mature audience and would be broadcast in the later (MA) timezone at 9.40 pm. In this regard, it is further noted that TEN clearly identified the program as MA and all promotions subsequent to the filming of the episode were updated to carry the appropriate classification information (MA).