Confidential
Investigation Report No. 3190
File no. / ACMA2014/241Licensee / Channel Seven Perth Pty Ltd
Station / TVW
Type of service / Commercial television
Name of program / Seven News
Date of broadcast / 7 January 2014
Relevant Code / Clause 4.3.8 of the Commercial Television Industry Code of Practice 2010
Date finalised / 23 September 2014
Decision / Breach of clause 4.3.8 of the Commercial Television Industry Code of Practice 2010
The complaint
On 18 March 2014, the ACMA commenced an investigation into a news item onSeven News broadcast by the licensee on 7 January 2014.
The ACMA commenced its investigation following receipt of a complaint expressing concerns that the news item indirectly identified the complainant’s son as the victim of a fatal road collision before the immediate family had been notified by police.
The program
The licensee’sSeven News bulletins are broadcast at 11:30 am, 4:30 pm and 6 pm daily. The news itemcomplained about was broadcast on 7 January 2014 during the 6 pm bulletin and reported on a motoraccidentthat afternoon in which a motorcyclist had died.
The news itemwas 1:54 minutes long and narration was provided by the presenter, a reporter at the accident scene and a reporter in a traffic helicopter. The news item twice included close-up footage of the accident scene– at 21 seconds and at 26 seconds. This close-up footage relevantly included vision of three items - a motorcycle top box, a black backpack, and a white plastic bag (the three items). The three items were shown more clearly in the first close-up.
A transcript of the segment is at Attachment A and screenshots of the close-up footage are at Attachment B.
Assessment
This investigation is based on correspondence between the complainant and licensee, submissions from the complainant and the licensee, and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified in the report.
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]
In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images and any inferences that may be drawn.
Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then assesses compliance with the Code.
Issue: Clause 4.3.8 [identification before notification by authorities]
Relevant code clause
4.3 In broadcasting news and current affairs programs, licensees:
4.3.8. must take all reasonable steps to ensure that murder or accident victims are not identified directly or, where practicable, indirectly before their immediate families are notified by the authorities;
Complainant’s submissions
The complainant submits that the licensee’s ‘portrayal of the scene … indirectly identified my son to me and my wife before we had been notified of my son’s fatal accident by the authorities’.
The complainant’s submissions are at Attachment C.
Licensee’s submissions
The licensee submitted that the three items are ‘generic items which are very commonplace items among motorcyclists and … could not reasonably be considered to be capable of directly or indirectly identifying the victim’.
The licensee’s submissions are at Attachment D.
Decision
The licensee breached clause 4.3.8 of the Code.
Reasons
The licensee does not dispute that the complainant and his wife are ‘immediate family’ and that the news item was broadcast before the complainant was notified of his son’s death by the authorities.
There is also no dispute that the complainant’s son was not ‘directly’ identified by the news item - none of his name, age, occupation or place of residence was disclosed, nor was he directly identified in another way (for example, by photograph).
As a result, the issue for consideration is whether the licenseetook all reasonable steps to ensure that, where practicable, the complainant’s son was not ‘indirectly’ identified before his immediate familywas notified by the authorities.
The complainant contends that the three items indirectly identified his son. As he explained to the licensee:
The top box was of distinctive design being black, silver and red, and, similarly, the back pack was easily recognisable with its white crossed strings against a dark background. I immediately recognised these articles as my son’s. My wife, who was with me viewing the broadcast, also noticed the plastic bag attached to the back pack tied with a bow at the top in a manner with which she is very familiar.
The licensee responded to the complainant that:
The intention of the Code provision is to ensure that unique information such as number plate details are not shown as these would reasonably be expected to disclose the identity of the victim. However, more generic information, such as a particular make of vehicle, is not generally considered to be sufficiently distinctive to fall within the scope of the provision.
On this point, the complainant submitted to the ACMA that:
Given the clear object of the clause is to ensure that the families are notified by the authorities before the media, compliance requires consideration of special knowledge of victims’ belongings and other indicators of identity that immediate families are likely to possess over and above the general population.
The ACMA does not accept the licensee’s contention that only ‘unique’ information is captured by the Code provision. The inclusion of ‘indirectly’ in the Code provision indicates the intended application of the provision and is in contrast to the licensee’s characterisation of the obligation.
The ACMA considers that the close-up footage of the three items indirectly identified the accident victim because:
while each of the three items in isolation may be commonplace items amongst motorcyclists, the three items in combination would be bothmuch less commonplace and distinctive to immediate family members
the close-up footage of the three items was not fleeting (it was shown for several seconds on each occasion), the two occasions on which the close-up footage was shown were separated by only a few seconds, and the three items were clearly visible, particularly in close-up
the complainant and his wife immediately recognised the three items as belonging to their son.
In this regard, the licensee has further argued, given that each of the items is relatively commonplace, taken separately and together they could not be considered ‘objectively on the ordinary reasonable viewer test applied by the ACMA, to have ‘identified’ the complainant’s son as the accident victim, even indirectly’:
There is no evidence to support the ACMA’s (view) that ‘the three items in combination would be much less commonplace and distinctive to immediate family members’ (except for the fact that (the complainant and his wife) did surmise correctly that the items shown were in fact their son’s, which should be disregarded in applying an appropriately objective test.
The licensee submitted that the Macquarie Concise Dictionary defines the word ‘identify’ as meaning to ‘recognise or establish as being a particular person or thing’. Seven submits therefore, to have identified a murder or accident victim, it would need to be the case that the identity of the individual could effectively be established based solely on the material broadcast. In order for this to occur the information conveyed about the murder or accident victim would need to be effectively unique to them or (at the very least) highly unusual/distinctive.
The ACMA notes this,but is not persuaded by the licensee’s arguments.
The ‘ordinary reasonable’ viewer test is employed to ascertain the meaning of material or what that material conveyed. Once the meaning has been ascertained, it is for the ACMA to assess compliance with the Code. The licensee’s argument tends to conflate the two. Here, the meaning of the material is not in dispute – it conveys factual information about a road accident.
The purpose of this particular code provision is to shield immediate families from information which could (in this case indirectly) identify the victim before notification by relevant authorities.For this reason, the ACMA does not accept that it can or should disregard the fact that the complainant and his wife were able to identify the victimbased on the combination of items shown in the broadcast.
As the licensee indirectly identified the accident victim in the news item, the next consideration is whether the licensee took all reasonable steps, where practicable, to avoid doing so.
The ACMA notes the licensee’s submission on ‘the time constraints in this instance (the accident occurred in the later afternoon, and the news broadcast was at 6 pm)’ and the licensee’s explanation that ‘in a fast-paced news environment, it may not be practicable in some instances to ensure that a victim is not indirectly identified in news footage’.
The licensee has further submitted that it was neither reasonable nor practicable to remove the footage that indirectly identified the victim:
In the circumstances of Seven’s news broadcast, to require Seven to have removed the footage amounts to a prescription that Seven take ‘all steps’ to ensure that the victim was not identified, rather than ‘all reasonable steps’.
[…]
What is ‘reasonable’ must be considered in the circumstances of the broadcast. In particular Seven submits that television is a visual medium and what is reasonable must be considered in light of this.
[…]
The licensee argued that the inclusion of the words, ‘where practicable’:
expressly recognises that there are limits to what a broadcaster can be expected to do to avoid indirect identification. It is not always going to be possible for a broadcaster to know that a particular image or piece of information is going to have special meaning to a family member. It is therefore not practicable to expect a broadcaster to exclude information that at face value appears to be generic and indistinct.
The ACMA agrees that what is reasonable will depend on all of the circumstances and these matters must be considered on a case-by-case basis. What is reasonable and practicable in relation to a single and relatively local news bulletin will, necessarily, be qualitatively different from what is reasonable regarding an internationally-reported event, such as a natural disaster.Relevant to the case under consideration, the ACMA notes the following:
the accident occurred at about 4.55 pm[2],so that there was a relatively short intervening period between the accident and thenews item (6.00 pm)
it follows that this significantly reduced the likelihood that there hadbeen an opportunity for authorities to notify immediate family of the accident before the story was broadcast (in any case, the licensee did not submit that it was acting under the belief that the immediate family had been notified)
under such circumstances, the need for careful consideration and editing of the footage would be especially important and would outweigh the impracticalities of that editing
while the close-up footage comprised only eight seconds of a news item that was 1:54 minutes long, it was not critical given that much of the news item concerned the traffic congestion that followed the incident
theclose-up footagewas not fleeing and could have been removed, pixelated, blurred or otherwise obscured from the news item prior to broadcast.
The purpose of clause 4.3.8 is to ensure that victims’ families learn of accidents through official channels, to avoid the added distress of acquiring this knowledge from a television broadcast. Given the special sensitivities which clause 4.3.8 is designed to address, it is appropriate that licensees should be very careful to comply with the clause.
When broadcasting details following fatal incidents, licensees should carefully consider all aspects of the proposed broadcast including the combination of particular ‘pieces’ of information in assessing the likelihood of the identification of the victim. Where appropriate, licensees should use techniques that lessenthe likelihood of identification such as long distance shots,pixelation or blurring. The more local the story, the greater the risk that viewers may identify the victim. As also noted above, the shorter the time between the incident and the broadcast, the less likely it isthat family would have been notified.
The ACMA notes that the licensee did take some steps to avoid identifying the victim by not showing footage of his vehicle, the number plate, his helmet or distinctive clothes. However, it considers that, for the reasons set out above, the licenseedid not take all reasonable and practicable steps to ensure that the accident victim was not indirectly identified in this case.
Accordingly, the licensee breached clause 4.3.8 of the Code in respect of the news item.
Attachment A
Transcript
Paula Voce (presenter): We begin tonight with breaking news. There’s been a fatal hit and run on the freeway in Leederville. Alexis Donkin (reporter) is there.
Alexis, what happened?
Reporter: Well Paula, police have told me that the driver of a white Toyota HiLux collided with a motorcycle. We’re told the rider of the bike was then dragged up to a kilometre along the northbound lanes of Mitchell Freeway.
Police say the driver of that HiLux did not stop and instead sped off.
Now tragically, the rider of the bike has died here on the Mitchell Freeway. The crash happened at about 4.55 pm this afternoon near the exit at Vincent Street. So just repeating, a motorcycle rider has died on the Mitchell Freeway late this afternoon.
Police say they have leads on who the driver is and may be close to making an arrest. Paula.
Presenter: Thanks Alexis.
The hit and run crash is causing significant peak hour problems on the freeway. Rebecca O’Donovan (traffic reporter) is above the scene in the Seven helicopter. Rebecca, how bad is the traffic?
Traffic reporter: Well, it’s all developing beneath us here at the moment but what we can tell you is traffic is building very quickly beneath us. It’s all come to a standstill around the crash scene all the way back down to Kwinana Freeway past the city, past the Narrows and even as far as the Canning Bridge.
It’s starting to build up now and not only in that direction but also traffic coming westbound from along the Graham Farmer Freeway has also started to build. So, make sure if you can, avoid the area. It is peak hour traffic so obviously it’s going to affect quite a lot of people.
So, just repeating, traffic is starting to back up along the Kwinana Freeway northbound, back past the City, and also the Graham Farmer freeway. Two northbound lanes of the Mitchell Freeway, the inner lanes on the right hand side, are blocked off, and could be blocked off for several hours tonight. Paula.
Attachment B
Screenshots of close-up footage of the three items
Visual footage shown at 21-23 seconds:
Visual footage shown at 26-30 seconds:
Attachment C
Complainant’s submissions – extracts
Complainant to the licensee on 2 February 2014:
I am the father of the victim of a fatal motor vehicle accident on 7 January 2014. I had not been notified by anyone of my son’s accident when I viewed a breaking news item at the start of the news bulletin that day, introduced by ‘Breaking news: Fatality freeway north.’
…
The camera showed a female news reporter on the footbridge in front of Leederville train station. She referred to a fatality on the freeway north. The camera then panned from her to a section of the freeway still in front of the station which showed some of the effects of the accident. What I saw was a top box which was formerly affixed to my son’s motor bike and his back pack leaning against the top box. The top box was of distinctive design being black, silver and red, and, similarly, the back pack was easily recognisable with its white crossed strings against a dark background. I immediately recognised these articles as my son’s. My wife, who was with me viewing the broadcast, also noticed the plastic bag attached to the back pack tied with a bow at the top in a manner with which she is very familiar. I believe that the broadcasting of this news flash was in clear breach of clause 4.3.8 of the Commercial Television Code of Conduct, because the portrayal of the scene described above indirectly identified my son to me and my wife before we had been notified of my son’s fatal accident by the authorities.
…
Complainant to the ACMA on 4 March 2014:
…
I refute the conclusion that the items belonging to my son shown in the news item were not sufficiently distinctive to fall within the scope of clause 4.3.8 of the Code
…
The clause is in strong mandatory terms: the licensee must take all reasonable steps to ensure that identification does not occur. The identification to be guarded against is direct or indirect. The clause does not limit to any particular class or category the information which is not to be broadcast so as to avoid identification. The limitation proposed by the licensee (‘generic’ information, as opposed to ‘unique’ information) is without any foundation, either in clause 4.3.8 or any other provision of the Code. Indeed, given the clear object of the clause to ensure that the families are notified by the authorities before the media, compliance requires consideration of special knowledge of victims’ belonging and other indicators of identity that immediate families are likely to possess over and above the general population.