Investigation Report No. 2638
File No. / ACMA2011/1401Licensee / Australian Broadcasting Corporation
Station / ABV Victoria
Type of Service / National Broadcaster
Name of Program / Lateline
Dates of Broadcast / 26 April 2011
Relevant Code / Clauses 2.1, 4.1 and 4.5 of the ABC Code of Practice 2011
Date Finalised / 5 January 2012
Decision / No breach of clause 2.1 (accuracy)
No breach of clause 4.1 (impartiality)
No breach of clause 4.5 (unduly favour one perspective over another)
The complaint
The Australian Communications and Media Authority (ACMA) received a complaint on 12 July 2011 regarding the Lateline program broadcast on 26 April 2011 by the Australian Broadcasting Corporation (ABC).
The complainant alleges that a report concerning the Sri Lankan civil was factually inaccurate and was not balanced or impartial. The report included an interview with a former UN spokesman in Sri Lanka (referred to here as GW).
The complainant was not satisfied with the response from the ABC’s Audience and Consumer Affairs and then made a complaint to the ACMA.
The investigation has considered the ABC’s compliance with clauses 2.1, 4.1 and 4.5 of the ABC Code of Practice 2011 (the Code).[1]
Matters not pursued
The complainant submitted that the behaviour of the presenter and interviewee was unethical in regard to placing the blame of the UN’s “predicament at the doorstep of Sri Lanka”. This matter does not raise issues of compliance with the Code and has not been considered in this investigation.
The complainant also provided a copy of a transcript of an interview with GW on the ABC’s radio program PM broadcast on 16 May 2011, in which a third party raised various issues of complaint. The complainant submitted that he enclosed this report “to prove” GW’s “prejudice about Sri Lanka and his poor knowledge which made him come to false conclusions”.
The ACMA does not have jurisdiction to consider the issues raised in the ABC’s broadcast of the PM program on 16 May 2011. The complainant must lodge a complaint with the ABC in the first instance. If the ABC does not respond within 60 days or if the complainant is dissatisfied with the response received from the ABC, the complainant may then approach the ACMA to investigate.
The program
Lateline is described on the ABC’s website as a “unique nightly news analysis program”[2] and is broadcast weeknights at 10.30pm.
On 26 April 2011, the program reported on the findings of a report on the final stages of the civil war in Sri Lanka. The program included comments from DM, a Sinhalese journalist and SP from the Australian Tamil Congress. The program presenter then interviewed GW, a former UN spokesman in Sri Lanka, regarding the report on the civil war, who had recently released a book titled The Cage: The Fight for Sri Lanka & the Last Days of the Tamil Tigers.
A transcript of the segment is at Attachment A.
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[3].
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
2 Accuracy
Standards
2.1 Make reasonable efforts to ensure that material facts are accurate and presented 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 2.1 are set out at Attachment B.
Complainant’s submissions
The complainant submitted in its letter to the ABC dated 5 May 2011 that:
1. The ABC presenter in her introduction of the program said “the United Nation’s report on…” whereas it was not a UN report but a report issued by an advisory panel appointed by the Secretary General to advise him regarding the modalities applicable international standards, and comparative experience relevant to an accountability process, having regard to the nature and scope of the alleged violations of international humanitarian and human rights law during the final stage of the armed conflict in Sri Lanka. The Secretary General himself spared no efforts to explain the nature and purpose of the panel.
Hence we are of the view that the presenter displayed prejudice by misinforming the audience and misleading them with factually incorrect information. This introductory statement was crucial to prejudicing the minds of the audience as it led them to believe that Sri Lanka had been found fault with by a UN panel.
Even [PL] the reporter referred to the report as a “UN panel report” and “United Nations report” further adding “UN says” and “UN found”.
…
2. With regard to the comments made by [GW] that were endorsed and recognised favourably by [the presenter], we find them to be misleading and factually incorrect while affecting the balance of the issues covered.
(a) When [GW] said, “that the Government was using heavy artillery…” – [the presenter] did not ask [GW] about how the LTTE was attacking or responding leaving the audience to believe that it was the Government which was using weapons unfairly whereas under the rules of war the Government has every right to defend and also attack when required. The above was incorrect and conveyed prejudice.
(b) [GW] was the UN Spokesman in Sri Lanka but he had to leave under questionable circumstances when the UN did not agree with his reports. His employer was the UN. This factor, which should have been revealed or discussed at the beginning to prevent misleading the audience. The audience immediately believed that [GW] was a good employee of the UN.
(c) [GW] infers the “UN’s failure to take action “was due to Sri Lankan Government pressure” as prompted by [the presenter]. The UN has not issued any official statement supporting such a proposition to date. Therefore [GW] is guilty of misleading the audience with the active help of [the presenter] who had no qualms in airing [GW’s] factually incorrect and prejudicial views.
(d) [The presenter’s] assertion that “the Sri Lanka Government duped the UN” which was confirmed by [GW] is blatant lie and the relevant word applicable to such an instance as per your Code of Practice is factually incorrect. What do [the presenter] and [GW] mean by the UN? The only occasion the issue came up in the UN was when it was discussed at the UNHCRC where Sri Lanka Government actions were endorsed overwhelmingly by the member nations. The statement is highly prejudicial to a party not present at the program and the integrity of the ABC is placed in an unenviable position.
(e) [GW] stated that “the decision over the war and the execution of the war came down to a very narrow circle of people that surround the [R] family… but, also people like [PK] who was…” at which point [the presenter] contributed by stating that “who also has Australian citizenship”. The war against the LTTE commenced three decades ago in Sri Lanka and it was conducted by successive Sri Lankan governments who were constitutionally elected and were accountable to the Parliament in Sri Lanka. The present phase undertaken by the present Government was conducted under a public mandate with the overwhelming support of the elected representatives and the people of all ethnic groups. The comment mentioned above is sheer cheap politics bringing the level of discussion to the lowest possible denominator. While it is factually incorrect the malicious intention of painting the war as a [R] family affair it goes to prove that the presenter of the program is immature and that she had failed to do her home work on the LTTE’s war in Sri Lanka. This war caused more than 150,000 deaths and damage and destruction to public property to the tune of millions of dollars. It also involved the LTTE pioneering the use of suicide bombers and engaging in ethnic cleansing. Such a childish and a misleading statement will hardly be allowed even in a forum that promotes the LTTE’s terrorism…
In addition, the mention of Dr [PK] too was not relevant as he was handling foreign affairs and Dr [K] has spoken over the ABC and other media and reiterated that he had nothing to do with the execution of the war. The statement was incorrect and malicious as it is in line with the disinformation campaign of the pro-LTTE fronts now operating and funding the media men in Australia and in other Western countries. [The presenter] failed miserably to rectify the factually incorrect statements and direct the program properly to be fair by the audience.
(f) Both [GW] and [the presenter] spoke of an independent inquiry into the situation under review whereas the report was directly to the UNSG for further action. The approach and attitude of both would have misled the audience into believing that the next logical step as per UN procedures was for an inquiry to be commenced whereas in actual fact there are many more steps to be followed before that stage is reached. This is as per the UN procedure that were agreed and adopted by the community of Nations. The audience expectations of professionalism were let down by the presenter allowing sensationalism and cheap political sloganeering to emerge. The presenter paved the opportunity for the ‘disgruntled’ [GW] to create misconceptions in the minds of the audience members again with inaccurate and faulty statements.
(g) [GW] refers to Sri Lanka’s “Srebrenica” moment aided and abetted by [the presenter]. In Serbia the discovery of mass graves of the victims the selective killing of a particular ethnic group was the main reason for those investigations and concerns. No such situation was even cited by the panel report under discussion at the program. Again, [the presenter] roams with sensationalism to arrive at his pre-determined agenda of publicising factually incorrect and prejudicial statements assisted by [the presenter] who exhibits her limited knowledge of international affairs. [GW] was also making use of this opportunity, aided by [the presenter] to publicise his forthcoming book on the subject.
(h) The only person who would have ‘contradicted or exposed’ the faulty line of the narrative was the senior journalist [DM] who was in the program. He aired his views when [the reporter] erroneously stated that Australian Sinhalese community leaders reject the report’s findings and dispute the UN’s right to investigate. (The true position is that many right thinking Australians of Sri Lankan origin including those of Sinhala ethnicity are rightly of the view that this is not a UN report and the UN has a set procedure for investigations into domestic armed conflict and the UN should follow those procedures). [The reporter’s] statement is factually incorrect and misleading. When [DM] attempted to counter the wrong statement of [the reporter], he was cut off after he spoke 21 words! To any viewer it will be shocking to discover that [DM] had been interviewed for about 15 minutes as only a partial sentence of 21 works was aired. This is a glaring example of the ABC being partial to the pre-determined motive of ridiculing Sri Lanka with the help of a disgruntled ex-employee of the UN and not allowing a different point of view to be expressed over a premier media institution in a prestigious program. The denial of the right of [DM] to express his opinion resulted in an unbalanced and a heavily partial program unfair by the audience.
The complainant also provided a document criticising GW’s book.
Broadcaster’s submissions
The ABC’s Audience and Consumer Affairs stated in its letter to the complainant dated 15 June 2011 that:
1. The UN report that was the focus of the program was completed by a panel of experts appointed by the UN Secretary-General, it was published by the UN and appears on its website with the UN logo on the first page of the report. We are satisfied that it was accurate and in keeping with sections 2.1 and 2.2 of the ABC Editorial Policies to refer to it as the “United Nations” report. We cannot agree that the reference to it as a UN report was in any way misleading. The report also refers to the “UN panel” in the report…
…
(a) …
(b) The ABC understands that [GW] left the UN of his own accord and there were no “questionable circumstances” involved. [GM] has publicly stated, and it was made patently clear in the interview, that he was in disagreement with the UN about the issue of releasing information on civilian deaths. We cannot agree that the program failed to disclose this information or that the audience would be in way mislead about his views.