The Australian Communications and Media Authority (the ACMA) received a complaint concerning a news item broadcast during Weekend Sunrise on 13 October 2012. The news item reported on a decision by the Therapeutic Goods Administration (the TGA) to remove three weight-loss products from the Australian Register of Therapeutic Goods (ARTG).
The complainant is concerned that the broadcast misled viewers. The complaint has been investigated in relation to clauses 4.3.1 and 4.3.11 of the Commercial Television Industry Code of Practice 2010 (the Code).
Weekend Sunrise is a breakfast current affairs program, broadcast from 7.00am to 10.00am on Saturdays and Sundays. Its format comprises news and information, combined with entertainment and humour.
On 13 October 2012, during the news update, the newsreader read the following 30 second report:
A controversial weight-loss product endorsed by [Celebrity A] has been banned from Australian shelves.
The American reality TV star promoted [Brand A] diet drinks here last month.
The Australia Register of Therapeutic Goods has now black-listed three of the products, saying there was insufficient evidence to prove they work.
[Brand A] is appealing the decision.
The report was accompanied by footage of Celebrity A and footage of Brand A products.
Matter not pursued
The complainant, the Australian distributor of Brand A products, is also concerned that the news item stimulated news in a way that was likely to mislead and alarm those members of the audience that had used, or may have been likely to use, its products. As the program did not simulate1 news, the matter has not been investigated in relation to clause 1.9.1 of the Code which proscribes the broadcast of a program which is likely in all the circumstances to simulate news or events in such a way as to mislead or alarm viewers.
This investigation is based on submissions made on behalf of the complainant, the licensee’s response to the complainant’s original complaint and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.
‘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 reader (or listener or 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 affairs2.
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
4.3 In broadcasting news and current affairs programs, licensees:
4.3.1 must broadcast factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;
188.8.131.52 An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.
4.3.11 must make reasonable efforts to correct significant errors of fact at the earliest opportunity. A failure to comply with the requirement in clause 4.3.1 to broadcast factual material accurately will not be taken to be a breach of the Code if a correction, which is adequate and appropriate in all the circumstances, is made within 30 days of the licensee receiving a complaint or a complaint being referred to the ACMA (whichever is later).
The considerations which the ACMA generally applies in assessing whether particular broadcast material is factual in character are set out at Attachment A.
The Therapeutic Goods Administration (“TGA”) has “blacklisted” three of the [Brand A] products on the basis that there was insufficient evidence to prove they work.
These reports were entirely inaccurate in almost every particular [Complainant’s emphasis].
The true position is that in September 2011, [the Complainant] listed [Brand A] Suppress and Burn on the Australian Register of Therapeutic Goods. However, that product has never been manufactured or available for sale in Australia. Other [Brand A] products, including the [Brand A] diet shakes, have been available in Australia.
In July 2012 the TGA issued a notice purporting to cancel the listing of [Brand A] Suppress and Burn from the Register. At the same time, the TGA also cancelled the registrations of two other products but those products had nothing to do with [the Complainant]. As noted the Suppress and Burn product had never been available in Australia and was the only [Brand A] product cancelled by the TGA.
The action taken by TGA had nothing to do with any product endorsed by [Celebrity A] for sale in Australia. [Celebrity A] only endorsed the [Brand A] products that were manufactured and being sold, and can not endorse a product for sale before it has even hit the market.
The product that was the subject of action by the TGA was not [Complainant’s emphasis] the [Brand A] diet shakes, which were prominently displayed on your television news segment; and
The TGA did not [Complainant’s emphasis] “blacklist” three [Brand A] products. The action it took was, as noted, in respect of one [Brand A] product only, and that was a product that had never been manufactured or offered for sale in Australia.
In summary, your news story about our client’s products:
Did not present the news accurately, fairly or impartially; and
Simulated news in a way that was likely to mislead and alarm those members of the audience that had used, or may have been likely to use, our client’s products (being the only segment of the audience that would have had any legitimate interest in the story in any event).
[…] we require Weekend Sunrise and Channel 7 to publish, on its website and during its news broadcast, a correction of these significant factual errors.
An acceptable correction would read as follows:
“Last week, Weekend Sunrise reported that three [Brand A] diet products endorsed by [Celebrity A] had been banned in Australia. This was not correct. In fact the [Brand A] Suppress and Burn product that was the subject of action by the Australian Therapeutic Goods Administration has never been manufactured or sold in Australia. The [Brand A] products that are sold in Australia and sponsored by [Celebrity A] were not the subject of any action by the Australian Therapeutic Goods Administration and are not banned. These [Brand A] products remain on the register and are available for purchase. We apologise for the error.”
The complainant’s submission to the ACMA included:
Further Breach of the Code
Clause 4.3.11 of the Code provides that in broadcasting news and current affairs, a licensee must make reasonable efforts to correct significant errors of fact at the earliest opportunity.
In its Response, Channel 7 has failed to make reasonable efforts to correct the significant errors of its original broadcast.
Specifically the Response does not state that:
[Brand A] products that are sold in Australia and sponsored by [Celebrity A] are not the subject of any action by the TGA and are still TGA approved;
The product which was cancelled from the ARTG has never been manufactured or available for sale in Australia.
The licensee’s response to the complainant included:
While we do not agree that certain of the meanings set out in your facsimile arise, we wish to advice that on 27 October 2012, the Weekend Sunrise program broadcast the following clarification as a courtesy to [the Complainant]:
Two weeks ago we reported that three [Brand A] diet products were cancelled from the Australian Therapeutic Goods Register. We wish to clarify that only one of the cancelled products – [Brand A] Suppress and Burn was [Brand A’s]. The two other cancelled products were not associated with [Brand A].
The Code provides that a licensee shall not be in breach of the news and current affairs provisions of the Code if a correction is made within 30 days of a complaint. We note that the clarification was broadcast at the earliest reasonable opportunity as the initial item was run during Weekend Sunrise. Accordingly it was appropriate for the clarification also to be run during Weekend Sunrise not during the weekday program.
We believe that our action in broadcasting the clarification is in compliance with the Code and demonstrates the program’s commitment to accurate reporting.
In relation to [Celebrity A], we note she is well known for endorsing [brand A] both here and overseas, so we do not believe it was necessary to make any clarification in relation to her. Indeed [Celebrity A] was a very prominent guest on Sunrise only several weeks ago so we hope that the clarification without reference to [Celebrity A] was appreciated by your client.
The licensee did not breach clause 4.3.1 of the Code because it broadcast a correction pursuant to clause 4.3.11 of the Code.
The ACMA considers that the ordinary reasonable viewer would have understood from the program that:
All three products removed from the ARTG were related to Brand A; and
Having regard to the selection of footage of Celebrity A and images of the diet drinks that accompanied the news item, the products removed from the ARTG were Brand A diet drinks which had been promoted recently in Australia by Celebrity A.
The ACMA notes there is no dispute that only one of the products removed from the ARTG was a Brand A product, and that it was not the diet drink promoted by Celebrity A. It is therefore considered that the program did not present factual material accurately.
Clause 4.3.11 provides that a licensee will not be taken to have breached clause 4.3.1 if it broadcasts a correction which is adequate and appropriate in all the circumstances, within 30 days of receiving a complaint or prior to the complaint being referred to the ACMA.
The ACMA notes that the material, subject of the complaint, was broadcast during Weekend Sunrise on 13 October 2012. Following receipt of the complaint on 26 October 2012, the licensee broadcast the correction referred to in its submission (see above) on 27 October 2012.
Accordingly, in determining whether the licensee has breached the code, the ACMA must consider whether the correction broadcast on 27 October 2012 satisfies the requirements of clause 4.3.11.
An assessment of the adequacy or appropriateness of a correction will be made according to the circumstances of a particular case. However, it is considered that, a correction generally should:
adequately identify the material being corrected;
acknowledge that the material was incorrect; and
explain the correct position.
The ACMA notes that, in this case, the correction:
Was broadcast during the same program in which the original error was made;
Identified that the material being corrected was a story that had been broadcast ‘two weeks ago’ that had reported that three Brand A diet products had been cancelled from the ARTG; and
Acknowledged that the material required clarification and explained the correct position, being that only one of the products cancelled from the ARTG was a Brand A product and that the other two products cancelled were not related to Brand A.
The Complainant considers that the correction ought to have specified that the diet drinks promoted by Celebrity A were not the subject of action taken by the TGA and that the product removed from the ARTG had never been manufactured or made available for sale in Australia.
While the complainant’s dissatisfaction with the correction is noted, the ACMA considers that by naming the product that had been removed from the ARTG, the correction clarified that the product was not the diet drinks that Celebrity A had promoted in Australia in the month prior to the broadcast.
Further, the original broadcast made no statement as to the manufacture or availability of the product in Australia, rather it explained the position that the product had, following a decision from the TGA, been removed from the ARTG and therefore effectively banned from sale in Australia. Accordingly, it is considered that the licensee was not required to make any clarification in relation to this matter.
The ACMA considers that the correction was adequate and appropriate in all the circumstances and accordingly, the licensee did not breach clauses 4.3.1 or 4.3.11 of the Code.
Considerations which the ACMA has regard to in assessing whether or not broadcast material is factual in character
The primary consideration is whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material is presented as a statement of fact or as an expression of opinion.
In that regard, the relevant statement must be evaluated in its context , i.e. contextual indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener/viewer.
The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable listener/viewer, and the form of words introducing the relevant statement is not conclusive.
Inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.
The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.
Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion.
1 (1) To make pretence of. (2) to assume or have the appearance of. http://www.macquariedictionary.com.au/184.108.40.206@929FF969467102/-/p/thes/article_display.html?type=title&first=1&mid=2&last=2¤t=1&result=1&DatabaseList=dictbigmac&query=simulate&searchType=findrank – accessed 27 February 2013.
2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167 (references omitted)