Investigation Report No. 2880
File No. / ACMA2012/1279Licensee / Channel Seven Melbourne Pty Ltd
Station / HSV Melbourne
Type of Service / Commercial Television
Name of Program / Channel Seven News (promotion)
Date of Broadcast / 3 August 2012
Relevant Code / Commercial Television Industry Code of Practice 2010
Clause 4.5
Date Finalised / 22 November 2012
Decision / No breach of clause 4.5 (factual accuracy in news promotion)
Background
ACMA Investigation Report 2880 – Channel Seven News (promotion) – HSV Melbourne – 3 August 2012
· The Australian Communications and Media Authority (the ACMA) received a complaint on 18 September 2012 in relation to a promotion for the program Channel Seven News (the Program), broadcast by HSV Melbourne for the licensee Channel Seven Melbourne Pty Ltd (the Licensee).
· The Program is broadcast across Australia on weeknights at 6:00pm and presents nightly news bulletins.
· On 3 August 2012, a promotion was aired (the Promotion) with the purpose of advertising the stories that would be featuring in that evening’s edition of the Program. During the Promotion, the following was said by the Program’s presenter (the Presenter):
‘How Ned Kelly’s descendants beat a Melbourne developer.’
This was accompanied by very brief footage of part of a human skeleton lying on a bench, followed by a still image of Ned Kelly, the infamous Australian bushranger. The Promotion ran for 20 seconds.
The complainant submitted the following:
...specifically I am complaining about an inaccuracy in the use of the term 'descendants'.
Specifically the use of the term 'descendants' in reference to Ned's remaining living relatives today is inaccurate. Ned has no living descendants. This is because a descendant is someone who descends from the named person directly in a biological sense. Because Ned did not have any children it is impossible for Ned to have had any descendants. A descendant would be a child, grandchild, great grandchild, great great grandchild, and so on. None of the people alive today who claim kinship with Ned Kelly fit this definition; none of the people alive today who claim kinship with Ned are his children, grandchildren, great grandchildren or great great grandchildren for example.
At most the people alive today who claim kinship with Ned are descended not from Ned but from one of Ned's siblings or cousins. Thus the people alive today who claim kinship with Ned are his distant relatives; they are either Ned's distant cousins or distant nephews or nieces. A distant nephew, a distant niece or a distant cousin is not a descendant.
· In response, the Licensee stated the following:
We have considered the concerns that you have raised. However in our view, the term descendant is commonly used today to refer to all blood relatives, whether they are lineal descendants (such as parent to child) or collateral descendants.
Therefore, we consider that use of the term descendants to refer to relatives of Ned Kelly was appropriate in the circumstances, and that no correction or clarification is necessary.
· This investigation has considered the Licensee’s compliance with clause 4.5 of the Commercial Television Industry Code of Practice 2010 (the Code), which reads as follows:
News and Current Affairs Programs
4.5 In broadcasting a promotion for a news or current affairs program, a licensee must present factual material accurately and represent featured viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program promotion, and its brevity. A licensee is not required by this clause to portray all aspects or themes of a program or program segment in a program promotion, or to represent all viewpoints contained in the program or program segment.
· This assessment is based on a recording of the Promotion obtained from the Licensee, submissions from the complainant and correspondence between the Licensee and the complainant. Other sources have been identified where relevant.
Issue: Did the Licensee present factual content accurately during the Promotion?
Finding
The Licensee did not breach clause 4.5 of the Code.
Reasons
· In determining whether the License has complied with clause 4.5 of the Code, the ACMA must examine the meaning conveyed by the relevant statement. This is to be assessed according to what an ‘ordinary, reasonable listener/viewer’ would have understood the Promotion to have conveyed. Courts have defined an ordinary, reasonable listener/viewer as:
A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable listener 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 Promotion 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).
· The Macquarie Dictionary (Online) defines a ‘descendant’ as ‘someone descended from an ancestor; an offspring, near or remote’. ‘Descend’ in this context is defined as ‘to be derived by birth or extraction’.
· In this case, and bearing in mind the dictionary definition (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.
· The ACMA notes, however, the presence of clause 1.5.4 in the Code, which reads as follows:
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.
· Further, clause 4.5 of the Code makes it clear that a licensee is not required to portray all aspects or themes of a program segment during a promotion for that segment.
· Despite its brevity, the ACMA considers that it would have been clear to the ordinary, reasonable viewer that the thrust of the Segment was to focus on the efforts of those connected to Ned Kelly to resist the developer referred to in the statement, as opposed to the exact nature of their relationship with the famous bushranger.
· Further, the ACMA accepts the Licensee’s submission that the term ‘descendant’ has a somewhat blurred meaning in terms of its everyday usage and that it is commonly understood by many to refer to a person’s relations, as opposed to direct lineal descendants.
· The ACMA is therefore of the view that the presentation of this material, while technically inaccurate, was peripheral and incidental to the focus of the particular news item and was unlikely to materially mislead viewers.
· The ACMA acknowledges the complainant’s concern in relation to the use of the term.
· Despite this, however, 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 peripheral and unlikely to materially mislead viewers in accordance with clause 1.5.4.
ACMA Investigation Report 2880 – Channel Seven News (promotion) – HSV Melbourne – 3 August 2012
[1] Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp.164-167.