Investigation Report No. 2371

Investigation Report No. 2371

The complaint

The complaint is about two segments on A Current Affair which were broadcast by Queensland Television Ltd, the licensee of QTQ, on 19 April 2005 and 4 November 2009 respectively. The complainant is the ex-proprietor of a childcare centre which was the subject of the 2005segment and was mentioned in the 2009 segment. The complainant considers that both reports contained untrue information and simulated events in a misleading manner.

An additional complaint in relation to the 2005 broadcast was that it was ‘unfair’ to the complainant in its representation of her viewpoint.

An additional complaint in relation to the 2009 broadcast is that it unfairly associatedthe complainant with abusive and/or negligent childcare staff.

The complainant also alleges that she was not advised of the complaint process when she rang to complain after the broadcasts and that the licensee did not respond to a written complaint she made shortly after the 2009 broadcast.

The ACMA has investigated the broadcasts against clauses 4.3.1, 1.8.1, 4.3.7, 7.7 and 7.9 of the Commercial Television Industry Code of Practice 2004.

Matters not pursued

A number of issues raised in the complaint have not been pursued further as they relate to matters not covered by the code. These include allegations that the licensee:

• gave the complainant no prior notice of a broadcast of which she was the subject;
• defamed her;
• encouraged others to attack her;
• caused damage and devastation to her and her family;
• failed to interview other staff with different views on the subject-matter of the first segment;
• trespassed on her property;
• engaged in child abuse by allowing a child to be present in a confrontation filmed by the licensee; and
• was in contempt of court by identifying children in the case, contrary to a court order.

A further matter that has not been pursued relates to the complainant’s complaint to the licensee about the broadcast of 19 April 2005. The complainant alleges that she sent the licensee a written complaint about the broadcast in July 2009. The licensee alleges that it did not receive this complaint. The matter has not been pursued further as, in any case, the licensee was not obliged to respond to the complaint, as it was made more than 30 days after the broadcast to which it referred.

Delay in lodging complaint about the broadcast of 19/4/05

As noted, the complainant states that she complained to the licensee about the broadcast of 19 April 2005 in July 2009, ie more than four years after the broadcast.

Section 148 of the Broadcasting Services Act 1992permits a complaint to be made to the ACMA if, along with other things, the complaint to the licensee ‘was made in accordance with’ the relevant code of practice. A late complaint is not, by reason of its lateness alone, precluded from being a complaint made in accordance with the code. Under section 149 of the Broadcasting Services Act, the ACMA ‘must’ investigate the complaint, but need not do so if it is satisfied that the complaint is frivolous or vexatious or was not made in good faith.

In the context of section 149 of the Broadcasting Services Act, the term ‘frivolous’ refers to a complaint that is not worthy of serious attention, either because it is made for purposes of amusement or levity (and is not meant to be taken seriously), or, if made with serious intent, because the complaint deals with mere trifles, that is, it raises matters of little or no weight, worth or importance.

The term ‘vexatious’ refers to complaints made without sufficient grounds, for the purpose of causing trouble or annoyance to the subject of the complaint. In the context of section 149 of the Broadcasting Services Act, the term focuses attention on whether a complaint (albeit one about matters of substance) lacks any merit.

The term ‘good faith’ requires consideration of a person’s reason for acting, including whether the person acted honestly and for a proper purpose.

The complainant has advised that the delay in complaining to the licensee was because she and other family members had major health problems over 2005-2008, which occupied her attention. She also alleges that she rang the licensee to complain after the broadcast of 19April 2005 and was not advised of the code process.

In these circumstances, the complaint is not considered to be frivolous, vexatious or made otherwise than in good faith. The investigation, accordingly, has proceeded. However, it is accepted that the complainant’s delay in lodging the complaint may prejudice the licensee’s ability to respond effectively to her allegations. This issue has, where appropriate, been taken into account in the assessment.

Assessment

The investigation is based on copies of the broadcasts provided to the ACMA by the licensee and submissions from the licensee[1] and the complainant.

Broadcast of 19/4/05

The broadcast

The broadcast complained of was a segment entitled ‘Child care?’, which was approximately five and a half minutes in duration. The segment was about the outcome of a court case involving allegations of assault against children at a childcare centre (referred to as the XChildcare Centre in this report). In the introduction to that evening’s program the presenter flagged that it would contain a segment about ‘childcare workers charged with assaulting youngsters they were supposed to look after, and the outrage from parents now the case has been dropped’. This program introduction also included a confrontation between the complainant (who will be referred to as AA in this report) and a woman (Mother J), with the latter accusing AA of throwing her child (Child J) against a wall and AA saying she had not done so.

The segment itself was introduced as follows:

PRESENTER

Leaving your child in someone else’s care is just about the ultimate act of trust for any parent. Imagine how you’d feel if you learned that that person had been hurting your little boy or girl. Well, that was the accusation levelled against workers at a childcare centre, but now parents have had another shock: no action is being taken against the women who were charged.

This was followed by a scene in which the segment reporter approached AA in the street outside her home asking to speak to her about ‘what happened at the [X] Childcare Centre’ and AA answered:

AA

No, not at the moment. We will talk to you later. When it’s all sorted out. But not at the moment.

This was followed by an exchange between the reporter and Mother J, discussing the alleged throwing incident. The reporter commented:

PRESENTER

[Mother J] only found out about the incident when the centre was closed down by police three years ago and the owners, [AA] and her daughter [BA], were charged with a string of offences against the kids in their care. Charges which the [A]s deny.

Following this, there was further footage of the scene outside AA’s home, showing Mother J, with a worker from the centre (Worker Q), confronting AA over the alleged throwing incident.

Next came an exchange between the reporter and the mother of another alleged child victim (Mother K). The reporter stated:

REPORTER

[Mother K]’s two-year-old daughter [Child K] was stripped and hosed down in the [X] playground after soiling herself. An incident not denied by [AA], who dragged the screaming child outside in front of another staff member, [Worker P].

Worker P then gave a description of the incident, after which Worker Q appeared on screen, saying:

WORKER Q

It was freezing, we’d all had jumpers on. And this little girl was hysterical. She was very upset.

The reporter then commented:

REPORTER

[Worker Q] also claimed in her statement to police that she witnessed the hosing. And another incident where a child was pinched until they cried.

Shortly afterwards, the reporter stated:

REPORTER

[AA] and her two daughters were originally charged with torture, cruelty and assault. After a committal hearing here in the [geographical place name] Magistrates Court, the charges of torture and cruelty were dropped due to lack of evidence. But five cases of assault against five different children remained. That was two years ago. Now a magistrate has granted the [A]s a permanent stay of proceedings. That means they’ll never face trial. They’ll never be found guilty, and for that matter they’ll never be found innocent.

The segment then explored further the anger of the parents concerned (Mothers J and K). The reporter related that one of the reasons the magistrate gave for granting the stay was that ‘relying on the evidence of children would be unsatisfactory, especially after such a long time’ and another was ‘the fact that no child requiredmedical treatment or had any counselling as a result of what happened’. There was a further excerpt from the scene in the street, showing AA entering her house and closing a gate behind her, while Mother J and Worker Qcontinued to challenge her. There was also a passage whereMothers J and K detailed claims that their children’s experiences at the child care centre had negatively affected their behaviour.

The segment ended with this exchange between Mother J and the reporter:

MOTHER J

I can show him a photo of the people today, and he’ll tell me exactly which lady did what, and what colour shirts they were wearing at the time. And that’s three years ago.

REPORTER

So you have no doubt what happened here?

MOTHER J

Oh no, Not at all. Yep. I know he’s telling the truth. Definitely.

The presenter concluded the segment with the comment:

PRESENTER

And it seems the only option open to these families now is to launch their own civil action.

Transcripts of the program introduction and the segment are at Appendix 1.

Issue 1: Simulation of events (broadcast of 19/4/05)

Relevant code clause

Commercial Television Industry Code of Practice 2004

Proscribed Material

1.8A licensee may not broadcast a program … which is likely, in all the circumstances, to:

1.8.1simulate news or events in such a way as to mislead or alarm viewers.

Relevant material

The relevant material comprised four pieces of vision, the first in the presenter’s introduction to the evening’s program and the other three within the segment itself:

Complainant’s submission

The complainant submitted in her complaint to the licensee:

You presented some kind of amateurish re-enactment of the alleged events without indicating that they were actually re-enactments. You presented these videos as being factual. This was totally unprofessional, and false. People who did not know us actually thought that a hidden camera had captured us carrying out these acts.

Licensee’s submission

The licensee submitted:

Nine notes that each ‘re-enactment’ segment was accompanied by interviews with either a day-care worker or parent so that they could give their version of the incident acted out in the scene. Nine maintains that the combination of interview and scene worked to assist the viewer to identify the re-enactment as a re-enacted scene based on the interviewee’s subjective account. In so doing, Nine maintains that the scenes would be interpreted by the ordinary reasonable viewer to be a dramatisation of the interviewees’ accounts and not a simulation of factual events.

The scenes to which [the complainant] refers were markedly different to other scenes in the segment. Specifically, the scenes were darkened and pixulated so as to creatively imply simulation of the scenes to the viewer. Nine is of the view that the ordinary reasonable viewer would be likely to be able to distinguish these scenes as being simulated and not hidden camera footage as suggested by the complainant.

In [a previous investigation report] the ACMA examined the application of clause 1.8.1 of the code. In applying that reasoning to the current circumstances, Nine maintains the relevant consideration based on the complaint is whether the use of the footage was likely, in all the circumstances, to mislead the ordinary reasonable viewer so as to make them think the footage was ‘hidden camera’ footage as asserted by the complainant. For the reasons outlined above, Nine maintains that the ordinary reasonable viewer would have understood the footage to be a subjective re-enactment based on the opinion of the interviewee and therefore the footage was not likely to mislead viewers.

Finding (Issue 1 – broadcast of 19/4/05)

The licensee did not breach clause 1.8.1 of the code.

Reasons

It is not in dispute that the pieces of vision complained of were simulations, ie staged dramatisations, rather than footage of actual events. The delegate agrees that the issue for examination is whether these simulations were likely, in all the circumstances, to mislead ordinary reasonable viewers such that they would think these pieces of vision were hidden camera footage of actual events.

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. An ordinary, reasonable viewer 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]

Use of the words ‘likely in all the circumstances’ imposes an objective test[4]and implies a real and not remote possibility; something which is probable.[5]

The licensee has submitted that an ordinary reasonable viewer was not likely, in all the circumstances, to think that the pieces of vision were footage of actual events because:

• they were accompanied by interviews with either a child care worker or a parent;
• they were markedly different to other scenes in the segment.

Neither of these propositions is accepted. Piece 1 was on screen while AA was speaking, and the other three were on screen while the reporter was speaking. They therefore had no direct connection with a childcare worker’s or parent’s subjective account of events. They were, as the licensee submits, markedly different fromother scenes in the segment, but this does not mean that they were markedly different from hidden camera footage, which is the point at issue. The pieces of vision were characterised by unusual angles, blurry focus, close-ups and saturated colour (except for Piece 1, which was black-and-white). To an ordinary, reasonable viewer these might well be the characteristics of footage filmed by a small hidden camera operated by, say, a worker within the childcare centre. Further, the pieces of vision were not captioned as dramatisations, simulations or re-enactments, nor were there any spoken words in the segment to that effect.

Accordingly, viewed in isolation, an ordinary reasonable viewer would probably have thought that the pieces of vision were hidden camera footage, or at least thought that they might be. However, an assessment under clause 1.8.1 must have regard to ‘all the circumstances’. In that respect, it is noted that the pieces of vision were broadcast in the context of a five and a half minute segment which explored parents’ outrage and anger at a magistrate’s decision to grant a permanent stay of proceedings in respect of charges relating to the ‘incidents’ depicted in the pieces of vision. An ordinaryreasonable viewer, from his or her ‘general knowledge and experience of worldly affairs’, would expect that, if the pieces of vision were in fact hidden camera footage, the reporter would have said so at some point in the segment, and given further information such as who had shot the footage, why it had been shot and what it actually showed. Accordingly, while an ordinary reasonable viewer would probably have thought the pieces of vision were hidden camera footage when he or she saw them in the course of the segment, by the end of the segment he or she would have ‘read between the lines’ and realised that they must not have been.