Investigation Report No. 2725
File No. / ACMA2011/1964Licensee / TCN Channel Nine Pty Ltd
Station / TCN
Type of Service / Commercial television broadcasting service
Name of Program / A Current Affair
Date of Broadcast / 8 September 2011
Relevant Code / Clauses 4.3.1 and 4.3.5 of the Commercial Television Industry Code of Practice 2010
Date Finalised / 21 May 2012
Decision / No breach of clause 4.3.1 (factual accuracy)
No breach of clause 4.3.5 (privacy)
The complaint
On 7 December 2011, the Australian Communications and Media Authority (ACMA) received a complaint regarding the program A Current Affair broadcast on 8 September 2011 by TCN Channel Nine Pty Ltd, the licensee of TCN (the licensee).
The complainant was concerned that the program was inaccurate and contained private family photographs and footage which were broadcast without permission.
The complaint has been investigated under clauses 4.3.1 and 4.3.5 of the Commercial Television Industry Code of Practice 2010 (the Code).
Matters not pursued
The ACMA notes that some aspects of the complaint regarding accuracy relate to statements made by the licensee in their response to the complainant, and to comments published on the A Current Affair website. The ACMA does not have jurisdiction to investigate the contents of correspondence between the licensee and the complainant or material on the licensee’s website. Rather, the ACMA’s role is to investigate alleged inaccuracies in the broadcast.
The complainant also provided the ACMA with a copy of a letter she sent to Free TV in response to the licensee’s response to the complaint. The complainant’s letter to Free TV raised concerns of bias and omission of information from the segment. The ACMA is unable to investigate these concerns as the ACMA’s jurisdiction is limited to matters that have been raised with the licensee in the first instance. In any event, the ACMA notes that current affairs programs are not bound by the fairness and impartiality requirements set out in clause 4.4.1 of the Code, which only applies to news programs.
The program
A Current Affair is a current affairs program broadcast nationally at 6:30pm weeknights.
The program broadcast on 8 September 2011 included a segment titled, ‘Wicked Stepmother’. The segment was introduced by the program presenter as:
Presenter: First, a bitter will dispute that has devastated a grieving family. At the heart of this battle is [JS], a stepmother who was entrusted with looking after the estate of her late husband. But instead of honouring his wishes, she’s been found guilty of fraud and her stepdaughter denied her inheritance.
The segment concerned the complainant, JS, defrauding her step-daughter, KS, and the decision of the Wollongong Local Court which found that JS was guilty of fraud. JS was married to KS’ father, SS, who passed away on 18 March 2001. The segment included interviews with SS’ three adult children, KS, RS and GS.
The segment contained footage from a previous A Current Affair segment broadcast on 1 May 2001. The 2001 footage was introduced by the reporter in the 2011 broadcast as:
Reporter: But over a decade ago, this wicked stepmother happily appeared in front of A Current Affair cameras. Back then she was pleading with Sydney Water to handover her late husband’s compensation payout of around $600,000. Sadly, [SS] was exposed to asbestos while working there and died of mesothelioma.
The 2001 segment concerned SS’ workers’ compensation payout. At the time of the 2001 segment, JS and SS were married and JS was KS’ stepmother. Footage of the 2001 segment broadcast in the 2011 segment featured JS, SS and KS.
A transcript of the segment is at Attachment A.
Assessment
The assessment is based on:
a recording of the broadcast provided by the licensee;
the complainant’s submission;
the licensee’s submission;
correspondence between the licensee and the complainant; and
publicly available information, the source of which is relevantly identified.
Ordinary, reasonable viewer
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 the 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: Factual accuracy
Relevant Code clause
The relevant clause of the Code is clause 4.3.1:
News and Current Affairs Programs
4.3 In broadcasting news and current affairs programs, licensees:
4.3.1 must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;
The principles applied by the ACMA in assessing content against the obligation in clause 4.3.1 of the Code are set out at Attachment B.
Complainant’s submission to the licensee
The complainant submitted to the licensee on 12 September 2011:
[...]
On Thursday 8th September, your program ACA advised your viewers that I contacted ACA ‘a decade ago’ and that it was an ACA ‘exclusive’.
This statement is incorrect and inaccurate.
I rebuff your statement that I used your program a decade ago and your statement ‘[KD]’ reporting an exclusive.
The film and program were in fact taken and aired by Today Tonight at the time and my late Husband and I were not interested in ‘the money’ as taken out of context by your program. Our aim was to warn others of the dangers of asbestos products and its illness causing death.
Comments as spoken, I defend also:
‘Shameful secret’
‘Wicked step-mother’
‘Grieving children’ (ages 37, 33 and 26 years old)
‘Denied her inheritance’
‘A disgrace to society’
‘Low act’
‘Tens of thousands’
‘Little girl’
‘Evil step-mother’
[...]
My late Husband died not knowing the outcome of his legal battle with Sydney Water as the decision to pay compensation was appealed by them prior to his death. His case was a landmark decision and Turner & Freeman Solicitor’s test case.
[RS] attended the appeal hearing with me. This was not acknowledged in your program exclusive.
The [GW] trained horse was also inaccurately reported as the estate paid out a one-sixth share owned horse syndicate buying the horse from [GW] and later trained by [KG] trainers and not by [GW] herself.
The owners of the other 5 shares were all private owners and nothing to do with [KS] and her siblings. They and [GW] would be disgusted at this inaccurate reporting and also by some very prominent people involved including [VS], [GW’s] mother.
[KS], [RS] and [GS] do not have all the facts as reported. The horse soon became ‘unfinancial’ and none of them were paying the training and stable fees. [KS] even taking photos saying that the horse was not being looked after by the same gentleman/trainer who gave her a job as a stable-hand shortly after my late Husband’s death.
[GS] received additional funds for a car valued at $35,000 plus interest from the estate money, so I rebuff his statement of ‘having trouble with his money too’.
[SS’] late brothers and late mother [M] were given a total of $50,000 which was not due to them, as per the will. I gave this to them on my Husband’s wishes.
A total of $85,000.
[KS] now has an $85,000 thoroughbred racehorse that she keeps as a pet in her possession. She has received 3 cars, valued at approx $20,000 per car. [...]
[KS] has also taken my wedding ring as she claimed in court to have in her possession saying that I had ‘gifted’ it to her. I had ‘gifted’ [GS], [SS’] 3 rings to him but never ‘gifted’ my own wedding ring to [KS]. It is part of a 3 ring set.
[...]
Licensee’s submission to the complainant
The licensee submitted to the complainant in a letter of 27 September 2011:
[...]
The previous A Current Affair story that featured yourself and you late husband, [SS], was broadcast on May 1, 2001 as part of a report on asbestos victims.
[...]
Our use of the word ‘exclusive’ in on screen text and ‘[KD] reporting’ is referring to the more recent story. This is standard for all A Current Affair stories whereby we name the reporter presenting the piece at the beginning of the story, and use the term exclusive if the story is in fact an exclusive, as was the case with the more recent story. The exclusive watermark was kept up over the entire duration of the story.
As for the claim that you were taken out of context in regards to the earlier story whereby you say that you and your late husband were not interested in ‘the money’, because you wanted to warn others of the dangers of asbestos products, I don’t believe the recent story suggested otherwise as we only used a comment from you stating, ‘I think it’s a really low act what they’ve done’. However, the earlier story does include a comment from you stating ‘this money is only money [SS] would have earned in his working lifetime, it’s his superannuation when you look at it, long term’. To which the reporter [BF] responded ‘and you need that money to survive’. You answered ‘yes, we need the money’.
You have also raised concerns about a number of lines or talent comments used in the story, while your concerns aren’t exactly clear, I will justify our use of them individually.
[…]
‘Wicked step-mother’, ‘evil step-mother’
The words ‘wicked step-mother’ and ‘evil step-mother’ were used to describe you because wicked/evil means morally bad on principle or practice. Given Magistrate Pearce’s comments about your actions having ‘the mark of a person who had a dishonest intention’, I believe it was appropriate to describe your actions as such. Our reasoning was also backed up by the fact that you were in fact found guilty of defrauding your step-daughter to the tune of $72,000.
‘Grieving children’ (ages 37, 33 and 26 years)
Assuming your concern is the fact that your step children and the children of your late husband, [SS] are now adults, it’s entirely appropriate to still refer to [KS], [RS] and [GS] as children. I think most people would accept being grown up doesn’t mean you cease to be someone’s child.
‘Denied inheritance’
Given you were found guilty of failing to account fraudulently the amount of $72,000 it is appropriate to state [KS] was denied her inheritance. This statement backed up by the fact Magistrate [P] stated ‘this is still a serious matter, a large sum of money which the young lady [KS] was entitled to receive has been lost and lost illegitimately by the defendant’.
‘Disgrace to society’
This was how [KS] chose to describe you outside court after the guilty finding was upheld on appeal. That is her opinion on the matter and therefore A Current Affair is entitled to air this opinion.
‘Low act’
A Current Affair’s earlier story on [SS’] compensation payout included a comment from you stating ‘I think it’s a really low act what they’ve done’. I think it’s entirely appropriate to say you had committed a low act given you were found guilty of defrauding your step daughter of $72,000. A Current Affair reporter [KD] posed this argument by saying ‘[JS] you sat on ACA and said what a low act it is what happened to that compensation money; how low is what you’ve done?’ You could have responded to this accusation and we would have aired it. Instead you chose to say nothing and hide your face under an umbrella.
‘Tens of thousands’
While it is unclear exactly what your concerns are in relation to the use of the words ‘tens of thousands’. There are two references to this amount of money in [KD’s] story. First, the reporter outlines that you lent your [new] husband tens of thousands of dollars. This is in reference to the fact the court found you did lend your [new] husband $30,000. By your own admission, you accept this as stated in court. Therefore it is acceptable to refer to the amount of money lent as tens of thousands of dollars. In her piece to camera outside court, [KD] also states it will cost [KS] tens of thousands of dollars to sue her step mother through the civil court. This is amount of money [KS] has been quoted.
‘Little girl’
[KD] referred to [KS] in her piece to the camera outside court stating ‘all of this to fulfil a father’s dying wish for his little girl’. [...] She was his little girl, being the youngest child in the family, therefore it is entirely acceptable to use this as a way of describing what is at the heart of the story.
You have also raised a point about the absence of photographs of family members from the other side of the family. Assuming you are referring to the other side of the family being your step children, [GS], RS] and [KS], obviously they were interviewed for this story so their image is used throughout the story. Apart from that, there is a photo of your wedding to [SS] which includes the entire family on both sides. The only other family photograph is one which shows [SS] in his wheelchair surrounded by loved ones from both sides of the family. As for [SS] photographs in hospital, one showed [KS], the other yourself. Regardless, these photographs were supplied to ACA by the [S] family in the earlier story and the footage is part of our archives.