File Nos. Acma2010/1292 Broadcaster



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Investigation Report 2436


File Nos.

ACMA2010/1292


Broadcaster

TCN Channel Nine Pty Ltd


Station

TCN


Type of service

Commercial television broadcasting service


Names and dates of programs

60 Minutes 22 November 2009


Relevant Code

Clauses 4.3.1, 4.3.11, 7.9 and 7.12 of the Commercial Television Industry Code of Practice 2004


Decision

Breach of clause 4.3.1 [factual accuracy]

No breach of clause 4.3.1 [factual accuracy and representation of viewpoints]

No breach of clause 4.3.11 [correct significant errors of fact]

No breach of clause 7.9 [provide a substantive written response]

Breach of clause 7.12 [advise complainant that they may refer the matter to the ACMA]



The complaint

The ACMA received a complaint regarding a segment of 60 Minutes broadcast by TCN Channel Nine Pty Ltd, the licensee of TCN, on 22 November 2009. The complainant, Australian Pork Limited (APL), alleged that the segment contained inaccuracies and failed to represent viewpoints fairly in its reporting of the use of sow stalls in Australian piggeries.

The investigation has considered the licensee’s compliance with clauses 4.3.1 [factual accuracy and fair representation of viewpoints], 4.3.11 [correction of significant errors of fact], 7.9 and 7.12 [complaints handling] of the Code.

Matters not pursued

The complainant alleged that the program “did not intend to present a fair and balanced report on the use of the stalls”. Clause 4.4.1 of the Code requires licensees to present news fairly1 and impartially. Current affairs programs, such as 60 Minutes, are not subject to the requirement of impartiality, nor are they required to seek balance within a report. Accordingly, the ACMA has not pursued these aspects of the complaint.2



The program

60 Minutes is a one-hour current affairs program broadcast Sundays at 7.30 pm. The segment titled “The Hidden Truth”, reported on the debate on the use of sow stalls in Australian piggeries and was introduced by the reporter as follows:

For many of us, Christmas just would not be the same without the traditional ham. But few people tucking into their festive feast would spare a thought for where that ham actually comes from beyond the supermarket. Sadly most ham and bacon comes from highly intensive factory farms, nightmarish places where animals almost never see daylight. In many parts of the world consumers are forcing pork producers to ban the worst practices and make piggeries more humane. But here in Australia, change is coming in an agonising slow pace, especially for the pigs.

The segment included interviews with:


  • an animal rights activist (EM);

  • an English Professor (DB) whose research led to the practice of using sow stalls being banned in the UK;

  • a veterinarian (KW);

  • the CEO of Australian Pork Limited;

  • Woolworths Fresh Food Manager (MB); and

  • A free range pig farmer (LM).

The segment featured footage of sows in stalls, sows fighting and sows in the open being farmed free range. It also included footage of sows in stalls filmed by an animal rights activist.

A transcript of the segment is at Attachment A.



Assessment

This investigation is based on submissions from the complainant and the licensee, a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.



Issue 1: Presentation of factual material

Relevant Code clause

News and Current Affairs Programs

    1. In broadcasting news and current affairs programs, licensees:

      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 considerations which the ACMA generally applies in determining whether or not a statement complained of was compliant with the licensee’s obligation to present factual material accurately include the following:
  • The meaning conveyed by the relevant statement or footage is assessed according to what an ‘ordinary, reasonable viewer’ would have understood the program concerned to have conveyed. 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, not 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.3

  • The ACMA must assess whether the relevant statement would have been understood by the ordinary, reasonable viewer as a statement of fact or an expression of opinion.

  • The primary consideration would be whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material presents as a statement of fact or 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 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 viewer, and the form of words introducing the relevant statement is not conclusive.

  • Inferences of a factual nature made from observed facts would usually still be characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be an inference of a judgmental or contestable kind.
  • While licensees are not required to present all factual material available to them, if the omission of some factual material means that the factual material presented is not presented accurately, that would amount to a breach of the clause.


  • 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.

Issues


The following matters have been alleged by the complainant to be inaccurate:

  1. Professor DB: ‘The vast majority of sows in Australia are living all their lives, except for the period when they’re actually giving birth, in a stall like this’.

  2. Reporter: ‘So, how is it that farmers’ don’t go to jail for locking up pigs? Well, about 20 years ago the farming lobby and the Federal Government came up with this – a code of practice which allows pigs to be kept in stalls. This code makes it totally legal’.

  3. The factual inference that the Tasmanian piggery was accredited at the time the video was taken.

  4. The omission of information in relation to the complainant assisting the licensee to gain access to a piggery.

  5. Title of the report: ‘The Hidden Truth’.

Findings

The licensee breached clause 4.3.1 of the Code in relation to:



  • the omission of information regarding the complainant assisting the licensee to gain access to a piggery.

The licensee did not breach clause 4.3.1 of the Code in relation to:

  • ‘The vast majority of sows in Australia are living all their lives, except for the period when they’re actually giving birth, in a stall like this’;

  • ‘So, how is it that farmers don’t go to jail for locking up pigs? Well, about 20 years ago…’;

  • the factual inference that the Tasmanian piggery was accredited at the time the video was taken; and


  • ‘The Hidden Truth’.

Statement 1: The vast majority of sows in Australia are living all their lives…

Complainant’s submissions

The complainant submitted that:

Relating to the statement of Professor [DB] – “The vast majority of sows in Australia are living all their lives – except for the period when they’re actually giving birth – in a stall like this.”


  • This statement is factually inaccurate. Data4 collected by APL on the Australian pork industry indicates the following (based on 90% of producers having sows on their properties):

    • around 40% of pig producers in Australia do not use gestation stalls at all;

    • around 20% of pig producers in Australia use stalls in a way which is compliant with the 2017 Model Code requirements limiting the use of stalls per 16 week pregnancy to 6 weeks; and

    • around 30% of pig producers in Australia use stalls presently for more than 6 weeks per pregnancy. Even the sows in stalls for the full pregnancy will be spending an estimated 4 to 5 weeks in farrowing systems per pregnancy and potentially additional time in group housing before mating.

  • 60 Minutes did not try to gain the facts regarding this statement from APL or in any other way test its validity.

The complainant also provided a confidential report supporting the data above.


Licensee’s submissions

The licensee submitted to the ACMA that:

Nine maintains that the statement of Professor [DB] referred to in the letter is clearly the opinion of Professor [DB] and Nine maintains that a reasonable viewer would have interpreted it so. ACMA has in numerous past decisions (Reports 1892 and 1660) held that “the form of words introducing a statement is not conclusive” as to whether it is an expression of opinion or fact and Nine maintains that the statement formed part of the debate, the substance of which was based on counter opinions as to the treatment of sows in Australia.

If ACMA is of the view that the statement amounts to a statement of fact (which Nine denies) we note that Professor [DB] of Cambridge University is a leading Academic in the area of animal welfare and in particular pigs, and his statement is based on his own research from observed facts, including his numerous visits to Australian piggeries. Professor [DB] is the first Professor for Animal Welfare at Cambridge UK, Chairman and past Chairman of the EU Scientific Veterinary Committee. A further outline of Professor [DB’s] qualifications is attached at Annexure A.

In order to accurately assess the accuracy of the statement, it is important to understand the current practices in the breeding for human consumption. The average gestation period for sows is 112-115 days (4 months). Piglets are generally weened after 3-4 weeks with the sows then inseminated immediately following weening and returning to stalls. When this breeding cycle for sows is analysed, it is clear that Professor [DB’s] statement that “the vast majority of sows in Australia are living all their lives – except for the period when they’re actually giving birth – in a stall like this” is correct and is supported by numerous scientific and academic publications.

Amongst these, the publication “Animal Law in Australia” states:

Although the precise numbers vary depending on market conditions, it is estimated that Australia houses about 300,000 female pigs (sows) for breeding at any one time. Sows raised in factory farms are confined by the thousands in giant sheds, spending most of their reproductive cycle in pens or stalls…Approximately one week before birthing, pregnant pigs are removed from sow stalls and placed in even smaller pens referred to as farrowing crates…The reproductive cycle, commencing with artificial insemination then begins again and the sow is returned to the sow stall. This cycle continues until the sow is no longer ‘productive’, at which time she is sent to the slaughterhouse”. (Refer Annexure B).

The claim is also supported by the RSPCA. The RSPCA information sheet on Sow Stalls (Annexure C) states:

“…Usually piglets are weaned 3-4 weeks and then the sow is made pregnant again. From the age of 8-10 months, the sow is generally either pregnant or lactating (with her litter). On average a breeding sow would have 8 litters over a 4 year period. This means she may be in a stall or farrowing crate for all her adult life”.

The claim as to the vast majority of sows in Australia are living all their lives is supported by the scientific report “The welfare of gestating sows in conventional stalls and large groups on deep litter” which states that “about 70% of gestating sows are kept in stalls during gestation”. (Annexure D).


Assessment

The relevant statement (in bold) was made in the following context:

Reporter: This is how bad it gets, pregnant sows locked up for weeks on end in tiny stalls to breed the bacon that ends up on our tables.

Professor DB: The vast majority of sows in Australia are living all their lives, except for the period when they are actually giving birth, in a stall like this and that is a very, very confined condition. I think people just don’t realise how the animals are having to live.

Reporter: Professor [DB] of England’s Cambridge University is appalled that Australia still uses sow stalls in piggeries. It was his research that led to the practice being banned throughout the UK.

Does the relevant statement constitute factual material?

The delegate does not accept the licensee’s submission that the relevant statement was the opinion of Professor DB. An ordinary, reasonable viewer would have understood the statement as factual content as opposed to an expression of opinion as it was presented in an unequivocal and unquestioning manner. It did not contain any elements such as “I think” or “I believe” to suggest that the speaker was relating an opinion or perspective. It is also noted that Professor DB is presented as an academic with expertise in the field which suggests that the statement is based on factual research as opposed to opinion.


What would the statements have conveyed to an ordinary reasonable viewer?

The ordinary reasonable viewer would have understood the statement to mean that the majority of sows in Australia live all their lives in a stall, except when they are giving birth.


Was the information conveyed accurate?

The complainant provided the results of polls which indicate that only about 30% of pig producers in Australia currently use sow stalls for more than six weeks per pregnancy and that sows are potentially given ‘additional time in group housing before mating’. The licensee provided material indicating that 70% of gestating sows are kept in stalls.

The crucial issue to determine is whether the licensee presented factual material accurately ‘having regard to the circumstances at the time of preparing and broadcasting the program’ in terms of clause 4.3.1. The delegate notes that the poll results provided by the complainant were collected in 2010 and the report supporting the results is confidential. Given that this information was not available to the licensee at the time the program was broadcast in 2009, the delegate finds that the licensee was entitled to rely on the material available and the expert’s research at the time of preparing and broadcasting the program, which indicates that the majority of sows spend their whole lives in stalls.

In conclusion, the delegate finds that the licensee complied with clause 4.3.1 of the Code in this instance.



Statement 2: So, how is it that farmers’ don’t go to jail for locking up pigs? Well, about 20 years ago …

Complainant’s submissions

The complainant submitted, in its letter to the licensee, that:

The Story misrepresents the nature and legal effect of the Model Code of Practice for the Welfare of Animals – Pig (Code).

[The reporter] says in the context of a statement by [EH] that a person who kept a cat or a dog in a similar condition to a sow in a Stall would be prosecuted:

So, how is it that farmers don’t go to jail for locking up pigs? Well, about 20 years ago the farming lobby and the Federal Government came up with this – a code of practice which allows pigs to be kept in stalls. This code makes it totally legal.

Second, [the reporter’s] representation about the age of the Code is wrong. Even a cursory investigation of the information reveals that the Code is two years old having been approved by the Primary Industries Ministerial Council in 2007.


Third, [the reporter’s] statement suggests that pig farmers have immunity to prosecution under cruelty to animal laws as a result of the Code. This is incorrect.

Fourth, the Story seems to suggest that the Code arises from a “deal” between pig farmers and the Federal Government for economic benefit. This ignores the fact that the approval process for the Code was long and comprehensive. It involved consultation and contribution from the likes of the RSPCA, Animals Australia, Australian Pork Limited, the CSIRO, veterinary representatives, pig research specialists and retailers. This was followed by a comprehensive public consultation process.

The Code does in fact impose high standards on pig farmers and it does not exempt any pig farmer from prosecution for cruelty to animals.

60 Minutes did not present the factual material in relation to the nature or effect of the Code accurately…



Licensee’s submissions

The licensee submitted, in its response to the complainant, that:

Nine denies that the Segment contained any factual inaccuracy in relation to the Model Code of Practice as alleged, for the reasons below:



    • The Model Code of Practice was revised approximately two years ago, but the records from the Parliament of Australia Senate Committee on Animal Welfare indicate that the Model Code of Practice was introduced in the 1980s. [The reporter’s] statement is therefore not factually inaccurate.
    • The Segment does not assert that pig farmers have immunity to prosecution for cruelty to animal laws under the Model Code of Practice. This is evidenced later in the Segment by the reference to a pig farmer who was prosecuted for cruelty to animals. The statement to which APL refers merely alludes to the fact that the Model Code of Practice sets an industry standard as to what would be considered cruelty and what is considered acceptable in the industry. APL’s own website affirms that the standards in the Model Code of Practice “are enforceable by state law, policed by state authorities and backed by the threat of prosecution and severe penalties”. It follows that if a farmer is operating in full compliance with the approved industry standard as set out in the Model Code of Practice, then that farmer would not be charged or successfully prosecuted for cruelty to animals.


    • The Segment does not refer to or imply any “deal between pig farmers and the Government for economic benefit”. The words used in the Segment are that “the farming lobby in conjunction with the Federal Government came up with this – a code of practice”. It is a simple reference to the fact that the farming lobby in conjunction with the Federal Government devised a code of practice. It is not inaccurate in the context of the Segment to omit a recitation of all the facts, matters and circumstances involved in the process engaged in prior to the introduction of the code. Reasonable viewers would infer that given the involvement of the Federal Government, the process was similar to any other legislation, bills or industry codes – that is, that submissions were sought and considered from a number of parties, drafts circulated and commented upon, etc.

    • APL states in its letter that the Model Code of Practice “does in fact impose high standards on pig farmers”. The current Model Code of Practice expressly allows the use of stalls, including gestation stalls. Therefore, it cannot be inaccurate to state that the Model Code of Practice allows the keeping of sows in stalls. Further, APL’s viewpoint- that the use of stalls as set out in the Model Code of Practice was beneficial to the sows and that the practice was in the interests of the sows’ welfare, was included in the Segment.

Assessment

The relevant statement (in bold) was made by the reporter in the following context:

EM: If you were to keep a dog or cat in the conditions that we’re keeping pigs in, you would be prosecuted, and yet because we have a situation where it’s for economic gain, pigs are kept in crates, if you or I were to do it to an animal, it would be an offence.

Reporter: So, how is it that farmers don’t go to jail for locking up pigs? Well, about 20 years ago the farming lobby and the government came up with this, a code of practice which allows pigs to be kept in stalls. This code makes it totally legal.5


Does the content constitute factual material?

The first statement is clearly a question and therefore cannot be categorised as factual material. The remaining statements were presented in an unequivocal and unquestioning manner. Accordingly, an ordinary reasonable viewer would have understood the statements to be factual material as opposed to expressions of opinion.



What would the statements have conveyed to an ordinary reasonable viewer?

The ordinary reasonable viewer would have understood the relevant statements to mean that about 20 years ago, the farming lobby and the government formulated a code of practice which makes it legal to keep sows in stalls.



Was the information conveyed accurate?

Age of the code of practice

It is noted that Model Code states that it was first formulated in July 1989:

This Model Code of Practice is based on the first edition that was endorsed by the Australian Agricultural Council (ACC) as a national code at its 132rd meeting in July 1989.6

Accordingly, the delegate considers that the statement that the Model Code was formulated “about 20 years ago” is accurate.


Pig farmers have “immunity from prosecution”

The complainant submitted that the statements suggest that pig farmers have immunity from prosecution of cruelty to animals as a result of the Model Code.

Inferences of a factual nature made from observed facts would usually still be characterised as factual material, subject to context. Having regard to the segment as a whole, the delegate notes that the segment makes it clear that piggeries can be prosecuted for animal cruelty as seen by the example given of the Tasmanian farmer who was charged by the police with four counts of animal cruelty.

On this basis, the delegate considers that the statements did not infer that pig farmers have immunity from prosecution.

Deal” between the government and pig farmers for “economic benefit” ignoring the approval process

The complainant submitted that the statements made in the segment ignore the consultation process for the Model Code and suggest that the Model Code arose from a “deal” between pig farmers and the Federal Government.

While licensees are not required to present all factual material available to them, if the omission of some factual material means that the factual material presented is not presented accurately, that would amount to a breach of the code.

The following description explains how the various Model Codes of Practice for the Welfare of Animals were initially formulated:

The Model Codes of Practice for the Welfare of Animals have been prepared by the Sub-Committee on Animal Welfare (SCAW) for Animal Health Committee (AHC), for Standing Committee of Agriculture (SCA).

Membership of SCAW comprises representatives from State and Federal Departments with responsibility for agriculture and/or animal welfare, CSIRO and other relevant committees within the SCA system. Extensive consultation takes place with industry and other animal welfare groups in the development of the Codes.

The Model Code of Practice was endorsed by the Australian Agricultural Council (AAC) as a national code at its 132nd meeting in July 1989.

…The Model Codes of Practice which have also been endorsed by AAC are…The Pig.7

This information indicates that Model Codes of Practice, including The Pig, were prepared by government bodies in consultation with the industry and animal welfare groups in 1989.

It is considered that the statement made by the reporter that “the farming lobby and government came up with” the code of practice is not inaccurate. According to the information above, the industry was included in the consultation process in formulating the Model Code.

The delegate considers that the omission of references to other groups which took part in the consultation did not result in the presentation of factually inaccurate material. The ordinary, reasonable viewer would have understood that the development of any governmental codes of practice involves some form of consultation as opposed to arising from a private “deal” between the industry and government.

The complainant also submitted that the relevant statements suggest that the Model Code was formulated for the “economic benefit” of the farming lobby. It is noted that the reference to “economic benefit” was made by EM prior to the statements under consideration:

If you were to keep a dog or cat in the conditions that we’re keeping pigs in, you would be prosecuted, and yet because we have a situation where it’s for economic gain, pigs are kept in crates, if you or I were to do it to an animal, it would be an offence.

The delegate considers that the ordinary, reasonable viewer would not have associated the comments made by EM with the subsequent statements made by the reporter. EM’s comments were made in a context regarding the treatment of other animals. Further, it is noted that the footage of EM and that of the reporter was filmed at different times, as seen by the background to each shot.

Accordingly, the delegate is satisfied that an inference of a factual nature cannot be drawn from the statements made by the reporter that the Model Code was developed for the “economic benefit” of the industry.


Statement 3: Factual inference that the Tasmanian piggery was accredited at the time the video was taken

Complainant’s submissions

The complainant submitted, in its letter to the licensee, that:

The story alleges that the Australian Pork industry’s standards as applied through the quality assurance scheme administered by [the complainant] are flawed.

The Story focuses on a pig farmer who was prosecuted for cruelty to his pigs. The farmer in question was a supplier to Woolworths. The quotes from [MB] of Woolworths and [the reporter’s] comments give the impression that the piggery was in fact accredited by [the complainant]. This was not the case.

I stressed to [the reporter] that the piggery was not accredited at the time its owner was prosecuted. 60 Minutes omitted this fact from the Story. 60 Minutes did not present the factual material in relation to the accreditation of the relevant piggery accurately…

The complainant provided further submissions to the ACMA stating that:

Relating to the quality assurance status of the Tasmanian piggery:



  • Note the following statements from [MB] and [the reporter] within the story:

[MB]: The disappointment comes about through us having relied upon a standard to be externally audited with our producer.

[Reporter]: That clearly wasn’t met?

[MB]: In this instance, it wasn’t met, you’re right.

[Reporter]: [MB], Woolworths Fresh Foods Manager, said that he relied on standards administered by Australian Pork Limited that are supposed to certify producers and maintain quality. Woollies says the piggery was inspected and recommended for re-accreditation just three months before [EM’s] incriminating video. I mean the pork industry has really put Woolworths in it.


[MB]: Look, the industry’s actually let itself down. Very clearly the producer has not managed his farm to the standard that was set, the industry association has not audited to that standard and verified that the standard was actually been met effectively, and from that position, I think they’ve let themselves down enormously.


  • APL administers the Australian Pork Industry Quality Assurance system (APIQ). Certification under APIQ lasts for a period of one year. In order to be certified, a pork producer engages an independent auditor who audits the relevant piggery against its compliance with APIQ.

  • The auditors who conduct audits for certification under APIQ are not employees or representatives of APL. They are independent and contracted by pig producers without input from APL.

  • The general process for inspectors and certification is that APL receives an audit report and reviews the report. A report recommending certification or re-accreditation does not necessarily result in APL issuing certification. Following its review of a report, APL may undertake further investigations and require the relevant pork producer to make changes to its practices.

  • The piggery in question had been certified prior to the relevant prosecution. That certification expired in November of 2008. The inspection referred to by [the reporter] that recommended re-certification occurred in November of 2008.

  • APL understands that the video that lead to the prosecution was taken several months after the audit inspection. APL did not receive the audit report relating to the piggery until some months following the recording of the video. At the time the video leading to the prosecution was taken, the piggery’s certification had expired.
  • APL also understands that following the date of the inspection (giving rise to the recommendation for re-certification), management of the piggery may have changed.


  • So in relation to the statements of [MB] and [the reporter] above, the piggery in question was not certified at the time the video was taken that lead to the prosecution. It is not accurate to state or imply that the piggery at the time of the video was taken had met the standards as administered by APL for certification under APIQ. As mentioned above, at the time the video was taken, paperwork relating to an independent audit of the piggery had never reached the offices of APL and the piggery was not certified. The piggery thus had no APIQ certificate which Woolworths or 60 Minutes may have referred to as proof of their claims. Woolworths had been given access to a database by APL where they could check the certification status of all to their suppliers at any time.

  • That this piggery was not quality assurance certified at the time of the relevant offence was never stated in the story. As you will see from the unedited interview, [the reporter] refused to allow me to access further information in relation to the piggery in question which would have clarified the situation.

  • [MB] and [the reporter’s] statement above clearly suggest that at the time the video was taken which lead to prosecution of the pig farmer, the piggery met APIQ standards and, as a result, APL’s administration of APIQ and APIQ itself was both flawed and permitted cruelty to pigs.
  • Please note that this specific piggery was subsequently certified by APL after a number of initiatives were undertaken to significantly lift the standards of production to meet APIQ certification requirements. This happened well after the video footage was taken and the prosecution of the piggery owner occurred. This was done at the request of Woolworths who wished to continue to source product from the producer. These later events are not actually relevant to the Story.


Licensee’s submissions

The licensee submitted, in its response to the complainant, that:

The Segment states “the piggery was inspected and recommended for reaccreditation just three months before [EM’s] incriminating video” and that “the industry inspector gave that farm the all-clear”. Both of these statements are factually accurate and are supported by the APIQ Auditor’s report dated 20 November 2008. The only discussion in relation to accreditation is in relation to the Auditor’s Report, and the results of the same.

Nine does not consider that any other statement or representation was contained in the Segment as to the accreditation or otherwise.



Assessment

The relevant statements (in bold) were made in the following context:

Reporter: When police watched [EM’s] video, they charged the farmer with four counts of animal cruelty.

EM: The fresh food people.

Reporter: Incredibly, that very same farmer [GO] had been featured in a brochure for Woolworths supermarkets as one of its “fresh food people”, an irony the company describes as “disappointing”.

MB: The disappointment comes about through us having relied upon a standard to be externally audited with our producer.

Reporter: It clearly wasn’t met.

MB: In this instance, it wasn’t met, you’re right.

Reporter: [MB], Woolworths Fresh Foods Manager, says he relied on standards administered by Australian Pork Limited that are supposed to certify producers and maintain quality. Woollies says the piggery was inspected and recommended for re-accreditation just three months before [EM’s] incriminating video. I mean, the pork industry has really put Woolworths in it, hasn’t it?

MB: The industry’s let itself down. Very clearly the producer has not managed his farm to the standard that was set, the industry association has not audited to that standard and verified that the standard was actually been met effectively, and from that position, I think they’ve let themselves down enormously.

The complainant submitted that the statements (in bold) above inaccurately suggest that the Tasmanian piggery was certified by APL at the time the video was taken by the animal activist. In fact, the earlier certification had expired when the piggery was inspected for accreditation and the video giving rise to the prosecution was taken between audit inspection and receipt by the complainant of the audit report. Therefore, accreditation of the piggery had expired prior to the video being taken.

The first issue to determine is whether an inference of a factual nature can be drawn from the statements under consideration of the kind indicated by the complainant. If so, the inference is subject to the accuracy requirements in clause 4.3.1.

The delegate considers that an ordinary, reasonable viewer would have understood that a piggery which had been audited under standards administered by the complainant some months earlier, and recommended for re-accrrediation, had been responsible for animal cruelty. Further, Woolworths considered it had not been managed or audited to those standards.

Whilst it is noted that, on one interpretation, ‘re-accreditation’ could infer that the piggery was accredited at the relevant time, the delegate considers that the wording is also consistent with the facts. The dialogue between the reporter and the Woolworth’s representative makes it clear that the disappointment was over the recommendation for re-accreditation generally. The reference came from the Woolworth’s representative rather than the reporter and there was no other suggestion that the piggery was accredited at the relevant time.

Whilst it is noted that the actual re-accreditation did not take place until after the prosecution of the piggery and changes may have been made to the farm, the delegate considers that the issue of whether the piggery was actually accredited at the time of the recommendation and subsequent video was made was not a significant issue under discussion. In this context, the delegate considers that the reference to ‘re-accreditation’ did not result in the presentation of factual material inaccurately. Accordingly, the delegate finds that the licensee did not breach clause 4.3.1 in this instance.


Statement 4: The omission of information in relation to the complainant assisting the licensee to gain access to a piggery

Complainant’s submissions

The complainant submitted, in its letter to the licensee, that:

The Story misrepresented APL’s efforts to enable 60 Minutes to gain access to an Australian piggery. [The reporter] says:

But when we asked to see conditions at any piggery in the country, we were told ‘no’. Instead, the industry provided footage of the Queensland University piggery and said research showed pregnant sows were actually happier in stalls.

This statement is made over footage of me standing up from my chair. The impression is both that:


    • APL and I were being uncooperative; and

    • The Australian pork industry has something to hide.

In fact, APL did attempt to assist 60 Minutes and at no stage did I stand up from my chair in a manner that could be construed as being uncooperative. As you will see from the unedited footage at no point in the interview did I stand up to cut off the interview. The only time I arose from my chair was at the conclusion of the interview. This type of editing is at best misleading. It is an act of distortion of the facts through manipulative editing.

Further, when 60 Minutes asked to gain access to a piggery they were told by APL “Yes”.

Both [the Executive Producer] and [Producer] knew of APL’sefforts to get 60 Minutes on to a piggery.

The truth is that:


    • While there was some reticence from pig producers to expose themselves to reprisal attacks from activists, the reason we were unable on short notice to gain the quick access to a piggery to accommodate 60 Minutes tight deadline was the story production was taking place in the middle of an H1N1 scare and the risk of a biosecurity breach was very real. Such a breach could mean the mandated destruction of animals on the affected farm.


    • APL suggested postponing the story until the summer to reduce the risk.

    • APL also offered as a compromise the Queensland University piggery at Gatton as a backdrop for the story. The Gatton piggery is in every way a functioning piggery that doubles as a teaching facility, in the same way that many hospitals are teaching hospitals.

    • 60 Minutes declined this offer advising us in a phone conversation that their budget would not stretch to flying to both Brisbane and Canberra.

    • We offered to limit their cost by me flying to Brisbane for my interview so that they could film both the interview and the Gatton piggery (28th October 2009 – “We would like to suggest that to save a trip to Canberra, we could have our CEO meet the crew around Gatton on the Tuesday morning”.)

    • This was also declined and then 60 Minutes requested the footage from the University piggery from our website on the 29th October 2009 via e-mail – “Also may I get a copy of the Gatton footage please that’s on the website”.

    • Queensland University made the offer for the cameras to enter the piggery itself. This was not relayed to 60 Minutes as the offer to go to Brisbane/Gatton had already been declined due to budgetary constraints.

60 Minutes misleading editing and statements about [the complainant’s] assistance in relation to access to a piggery did not present the factual material in relation to 60 Minutes’ wish to access a piggery accurately…

Licensee’s submissions

The licensee submitted, in its response to the complainant, that:

It is a matter of fact that the Program was not given access to a piggery for the purposes of filming, as requested. The offer to film at Gatton was an offer to use it as a “backdrop” and did not include access to film inside the piggery. The subsequent opportunity to do so referred in APL’s letter was never communicated to the Program.

In lieu of access, [the complainant] provided the Program with footage taken inside the Gatton piggery, which was included in the Segment.

To the extent that the letter alleges that material broadcast constituted misleading and deceptive conduct for the purposes of the Trade Practices Act, Nine denies this allegation.


Assessment

The relevant statements were made by reporter in the following context as follows:

AS: No and I think that’s a pretty unfair extrapolation. You’ve got an activist who’s gone into one piggery because their ultimate objective is a vegetarian one for our society. They want us out of business. They will do anything they can do that.

Reporter: But when we asked to see conditions of any piggery in the country, we were told no. Instead, the industry provided footage of the Queensland University piggery and said research showed that pregnant sows were actually happier in stalls.8

Footage of the complainant’s CEO standing up from his chair was shown at the time the statements were made by the reporter.

The complainant submitted that it was misleading to state that it refused to allow the licensee access to an Australian piggery without detailing the efforts it made to locate a willing pig producer. The licensee submitted that it was a matter of fact that the program was not given access to a piggery for the purposes of filming as the complainant only offered the Queensland University piggery as a “backdrop” to filming.

The complainant provided a series of emails between its General Manager and the program’s Producer leading up to the interview with its CEO in support of its submission. These emails included the following:


  • On 21 July 2009, the General Manager stated:

The problem we have right now is that given the Influenza A/H1N1 pandemic …the willingness of pig producers to let non essential personnel onto their farms is very low…the Influenza A/H1N1 virus has shown up in pig herds in a number of countries now and is a definite threat given that some tens of thousands of Australians have apparently been affected by the disease…my suggestion would be to delay the story until perhaps the summer when the H1N1 virus at least in Australia is a past issue. I believe that our chances of giving you the access to a typical piggery then would be much greater than now.


  • On 27 July 2009, the General Manager reiterated the virus threat and stated that if the licensee cannot wait till summer:

…we can do our best to find a producer who will allow a cameraman on a property, but there may be some significant conditions (mask and coveralls, medical check etc).

The licensee then advised the complainant that the story would be delayed. Following the delay, a series of emails between the General Manager and the program’s Producer discussed the logistics of the interview, including the issue of viewing an Australian piggery:



  • On 19 October 2009, the General Manager stated:

I understand from our telephone discussion of today that the intent is to visit a pig farm and get a farmers perspective. You would ideally like to shoot the footage next week. Unfortunately I am out of the office – 28/29/30. Could you please consider anytime during the week of the 2nd November.

  • On 20 October 2009, the program’s Producer stated:

…We also agree to the debate you suggest on the farm. Due to deadlines, can this happen early next week because of you being away the rest of that week?

  • On 22 October 2009, the General Manager stated:

The suggested debate of farm – we have the farmer, and we are working on locating a farm that will agree to actually allow an animal activist on farm. There are two issues here – first, the reticence of pork producers having a known activist on farm when there is a precedent for high profile farmers being raided …second, there is a real risk of spreading a communicable disease such as H1N1 into the herd. We are keen to do this, and we may need to think of how this segment needs to be filmed, Leave that with us for the moment.


  • On 27 October 2009, the General Manager stated:

I am still endeavouring to get agreement for a piggery to host the debate. The difficulties I am encountering are surrounding two areas. First and foremost the continued risk of the ever present AH1/N1 virus and the biosecurity risk of getting close to the pigs….Secondly, it is as you would appreciate, a very big ask to have a known, high profile activist like [LW] on your property….I will continue to pursue this option and get back to you in the next day or so.

  • On 28 October 2009, the General Manager stated:

Firstly…I want you to know we have found a pig farm that will allow up access, not in with the pigs because of the risk of transmission of AH1N1, but certainly in the vicinity of the farm. It’s Gatton Campus, University of Qld piggery…I am more than happy to provide you with raw footage taken in the last 12 months at the piggery. You can see some of this footage if you click on this link and go to the sow stall video at the foot of the web page…

  • On 28 October 2009, the General Manager stated:

…Re our telephone conversation of this morning, I can appreciate the cost associated with going to Gatton “for a back drop” for the debate, from your perspective is prohibitive. We would like to suggest that to save a trip to Canberra, we could have our CEO meet the crew around Gatton on the Tuesday morning. Otherwise, your suggestion of Monday…in or around Canberra could be an alternative although it would be a pity as much as the supplied footage to you was taken at the Gatton piggery, giving the site some context in the story…

  • On 29 October 2009, the program’s Producer stated:

Despite [the CEO’s] kind offer to come to Queensland, we can see no real benefit in shooting at Gatton with the Queensland University piggery as a backdrop…we can use the visuals from Gatton to illustrate [Mr K’s] points….Also, may I get a copy of the Gatton footage please that’s on the website.

The emails indicate that the complainant had difficulties finding an Australian piggery willing to allow the licensee to film due to the risk of spreading the H1N1 virus and the reticence involved in allowing an animal activist on the piggery. The complainant eventually found a piggery and advised the licensee that the University of Queensland piggery in Gatton would allow filming “in the vicinity of the farm” but “not in with pigs because of the risk of transmission of AH1N1”. The complainant offered to provide footage taken in the last 12 months at the piggery and attached a website link which showed “some of this footage”. The licensee then requested a copy of the footage on the website.

The delegate considers that the omission of the complainant’s efforts to locate a piggery willing to be filmed resulted in the factual material being inaccurate. The statement made by the reporter, “But when we asked to see conditions of any piggery in the country, we were told no”, suggests that the complainant rejected the licensee’s request without any form of negotiation. Whereas in reality, the complainant had attempted over a number of months to find a piggery willing to be filmed and had repeatedly advised the licensee of the problems associated with locating a piggery. The footage of the CEO standing up from his chair at the interview at the time the statement was made by the reporter compounded the inference that the complainant was uncooperative.

Further, the reporter’s reference to “instead, the industry provided footage of the Queensland University piggery” suggests that the complainant only offered the footage as an alternative to viewing a piggery. In reality, the complainant referred to the footage on a website at the time that it advised the licensee that the piggery at the University of Queensland was willing to be filmed in its grounds.

For these reasons, the delegate is satisfied that the omission of the complainant’s efforts to find a piggery resulted in the presentation of factually inaccurate material. Accordingly, the licensee has breached clause 4.3.1 of the Code.

In response to the Preliminary Investigation Report, the licensee submitted that:

Throughout the period of correspondence between the complainant and the program, the complainant did not procure the assistance of a piggery for filming, despite claiming to be attempting to do so. The complainant gave a number of different reasons for why such access was refused by various unspecified piggeries, including concerns about the H1N1 virus. However, the ultimate outcome was that Nine was refused access to any piggery to film.

The offer to film “in the vicinity of the farm” in the University of Queensland piggery at Gatton excluded access to the actual piggery where the pigs were housed. The complainant did in fact offer footage from inside the piggery (which Nine included in the broadcast) as an alternative, in lieu of actual access to the piggery. Therefore the statement “Instead, the industry provided footage of the Queensland University piggery” in those circumstances in accurate and does not give rise to any misleading inference.

At no stage did the complainant grant the program’s request to access a piggery. To summarise this in the frank manner that the segment did (“we were told no”) is a matter of substantial accuracy, and not in breach of clause 4.3.1.

The delegate does not accept the licensee’s submissions in this regard. The delegate re-iterates the finding above that the omission of the complainant’s efforts to locate a suitable piggery resulted in an inaccurate presentation of factual material. The statement “we were told no” inaccurately suggests to an ordinary, reasonable viewer that the complainant refused the request without any attempt to resolve the issue. Whilst the complainant was not able to find a piggery willing to be filmed, it did not categorically say “no” as stated by the licensee without providing reasons and attempting to locate a piggery over a period of time.


Statement 5: Title of the report “The Hidden Truth”

Complainant’s submissions

The complainant submitted, in its letter to the licensee, that:

…APL is concerned that 60 Minutes chose to give the Story the title “The Hidden Truth”. In APL’s view, the title itself suggests that the Australian pork industry is conducting practices that it wishes to conceal from the public. In the context of the Story, the title suggests the reason for such concealment is that those practices are cruel. For the reasons already stated, this resulted in an inaccurate presentation of the factual material relating to both the Australian pork industry’s position on the use of Stalls and APL’s attempts to assist 60 Minutes with the Story.

Assessment

Does the relevant statement constitute factual material?

The title of the segment was presented in an unequivocal and unquestioning manner. Accordingly, an ordinary reasonable viewer would have understood the statement to be factual material.


What would the statement have conveyed to an ordinary reasonable viewer?

In order to determine what the statement would have conveyed, it is necessary to consider the context in which it was made.

The title ‘Hidden Truth’ was displayed behind the reporter during the introduction to the segment. The following pictures were also displayed with the title: the face of a woman (who is later revealed in the segment to be an animal activist), the woman walking a piglet and pigs in a pen. The reporter introduced the segment as follows:

For many of us, Christmas just would not be the same without the traditional ham. But few people tucking into their festive feast would spare a thought for where that ham actually comes from beyond the supermarket. Sadly most ham and bacon comes from highly intensive factory farms, nightmarish places where animals almost never see daylight. In many parts of the world consumers are forcing pork producers to ban the worst practices and make piggeries more humane. But here in Australia, change is coming in an agonising slow pace, especially for the pigs.

In this context, the ordinary reasonable viewer would have understood the title to mean that some Australian piggeries conceal practices in relation to pork production.


Was the information conveyed accurate?

The segment included a report on a Tasmanian piggery which had been filmed illegally by an animal activist and the footage was then referred to the police. The reporter stated that:

When police watched [EM’s] video, they charged the farmer with four counts of animal cruelty.

The delegate considers that an ordinary, reasonable viewer would have understood that the fact that the case of animal cruelty in the Tasmanian piggery was only discovered by the illegal filming by an animal activist suggests that the treatment of the pigs was being concealed in some way. On this basis, the delegate considers that the title of the story was not inaccurate.




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