Investigations 3195 and 3224

File no. ACMA2014/273 and ACMA2014/446

Broadcaster Australian Broadcasting Corporation

Station ABC1

Type of service ABC television

Name of program Media Watch

Dates of broadcast 17 February 2014 and 24 February 2014

Relevant code Standards 2.1, 2.2, 3.1 and 5.3, and Section III of the ABC Code of Practice 2011 (revised in 2014)

Date finalised 24 September 2014

Decision The Australian Broadcasting Corporation:

 did not breach standard 2.1  did not breach standard 2.2  did not breach standard 3.1  did not breach standard 5.3  complied with Section III of the ABC Code of Practice 2011 (revised in 2014)

ACMA Report into investigations 3195 and 3244 – Media Watch broadcast by ABC1 on 17 and 24 February 2014

The complaints

On 31 March 2014, the ACMA commenced an investigation into an episode of the program, Media Watch, broadcast by the ABC on 17 February 2014 (the first broadcast).

The ACMA commenced its investigation following receipt of a complaint that the ABC breached standards 2.1, 3.1 and 5.3 of the ABC Code of Practice 2011 (revised in 2014) (the Code) in respect of the statement in the first broadcast (the statement) that:

Insiders tell Media Watch that The Australian is losing $40 million to $50 million a year.

On 5 June 2014, the ACMA commenced an investigation into an episode of Media Watch broadcast by the ABC on 24 February 2014 (the second broadcast).

The ACMA commenced its further investigation following receipt of a complaint that the second broadcast ‘present[ed] facts in a misleading way’ and ‘did not correct errors in an appropriate way’. The complaints were made by lawyers acting for Nationwide News Pty Limited, the publisher of The Australian (the complainant).

The ACMA has investigated the complaints together as they are from the same complainant and concern related broadcasts. The program

Media Watch is presented by Paul Barry and is broadcast on ABC1 on Monday nights at 9.20 pm and Wednesday mornings at 12.25 am. The program is described on the ABC’s website as follows:

Media Watch is Australia's leading forum for media analysis and comment.

Conflicts of interest, bank backflips, deceit, misrepresentation, manipulation, plagiarism, abuse of power, technical lies and straight out fraud: Media Watch has built an unrivalled record of exposing media shenanigans since it first went to air in 1989.

The media provides the information we need to make decisions about our lives, but how reliable are the media reports that shape our views of the world?

Media Watch turns the spotlight onto those who literally 'make the news': the reporters, editors, sub-editors, producers, camera operators, sound recordists and photographers who claim to deliver the world to our doorsteps, radios, computers and living rooms. We also keep an eye on those who try to manipulate the media: the PR consultants, spin-doctors, lobbyists and "news makers" who set the agenda. The first broadcast, a 13 minute long program on 17 February 2014, was called ‘Clicks, cats and crazy headlines’ and focused on pressures facing print media in Australia generally from falling circulations, loss of advertising revenue and competition from new online sites. The second broadcast was an 87 second long segment on 24 February 2014 called ‘Media Watch responds to The Australian’, described as ‘an attempt to set the record straight’ on The Australian’s (the newspaper) financial performance. It included footage from a video interview between Chris Mitchell, the newspaper’s Editor-in-Chief, and Sharri Markson, the

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 2 newspaper’s Media Editor (the interview). The interview was published on the newspaper’s website earlier the same day. Complete transcripts of the first broadcast and the second broadcast are at Attachment A and Attachment B respectively. Assessment

This investigation is based on correspondence between the complainant and the ABC, submissions from the complainant and the ABC to the ACMA, and the broadcasts. 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 The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).

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 1: Accuracy

Accuracy of the statement in the first broadcast

Relevant Code standard 2. Accuracy 2.1. Make reasonable efforts to ensure that material facts are accurate and presented in context. The Code requires that standards are interpreted and applied in accordance with relevant Principles. In the case of factual accuracy, the relevant Principles include:

The ABC requires that reasonable efforts must be made to ensure accuracy in all fact-based content. The ABC gauges those efforts by reference to:

 the type, subject and nature of the content;

 the likely audience expectations of the content;

 the likely impact of reliance by the audience on the accuracy of the content; and

 the circumstances in which the content was made and presented.

1 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164-167.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 3

The ABC accuracy standard applies to assertions of fact, not to expressions of opinion. An opinion, being a value judgement or conclusion, cannot be found to be accurate or inaccurate in the way facts can.

…

The efforts reasonably required to ensure accuracy will depend on the circumstances. Sources with relevant expertise may be relied on more heavily than those without. Eyewitness testimony usually carries more weight than second-hand accounts.

…

The ABC should make reasonable efforts, appropriate in the context, to signal to audiences gradations in accuracy, for example, by querying interviewees, qualifying bald assertions, supplementing the partly right and correcting the plainly wrong.

Complainant’s submissions

The complainant submitted to the ABC that ‘the statement is factually incorrect’ and that:

the obligation on the ABC to make reasonable efforts to ensure that material facts are accurate and presented in context … [was] not complied with in circumstances where this assertion was not put to any of the Editor-in-Chief, Editor, Finance Manager or CEO of The Australian, the Director – Policy, Corporate Affairs and Community Relations, or Head of Corporate Affairs of News Corp Australia. The complainant further submitted to the ABC that ‘had the program … made the bare minimum of enquiries, let alone “reasonable efforts”, it would have been advised that the statement is wrong’. To the ACMA, the complainant submitted that:

The attribution of the information to ‘insiders’ clearly imputes that the statement of fact has been subjected to scrutiny … and is accurate. It imputes that the information came from News Corp Australia or The Australian itself, when in fact, Mr Barry has publicly confirmed neither entity was approached for a response. The complainant’s submissions are at Attachment C.

ABC’s submissions

The ABC responded to the complainant that:

The statement concerning [the complainant] was based on information provided to Media Watch by sources reasonably expected to have the requisite knowledge. And also:

… having three sources that are judged reliable and well-informed is sufficient confirmation to publish an attributed estimate. In the circumstances, the efforts made by Media Watch to ensure the accuracy of the statement were reasonable … The ABC’s submissions are at Attachment D.

Decision

The ABC did not breach standard 2.1 of the Code.

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Reasons

In applying standard 2.1 of the Code, the ACMA usually adopts the following approach:

 Was the particular content complained about factual in character?

 Did it convey a ‘material’ fact or facts in the context of the relevant segment?

 If so, were those facts accurate?  If a material fact was not accurate (or its accuracy cannot be determined), did the ABC make reasonable efforts to ensure that the ‘material’ fact was accurate and presented in context? The first consideration is whether the content complained about is factual. Some considerations which the ACMA generally applies in assessing whether particular broadcast content is factual in character are set out in Attachment E.

In this case, the ACMA considers that the nub of the statement is appropriately characterised as factual. It cited a specific range of figures ($40-50 million) that are capable of independent verification and was not qualified in a way that would suggest it was mere speculation or an expression of opinion. The ACMA notes that the statement identified the source of the range of figures as ‘insiders’. In the context of the broadcast, this attribution to ‘insiders’ was likely to convey to the audience that the figures had been provided by people with access to accurate information reinforcing for the ordinary, reasonable viewer that that statement was factual in character.

In regard to the reference to ‘insiders’, the complainant submitted to the ACMA that:

The Statement was attributed to ‘Insiders’. In this context the meaning conveyed is that the information was provided to the ABC by current employees of News Corp or The Australian and not by former employees. The ACMA does not consider that the attribution to ‘insiders’ necessarily conveyed that the sources were current employees of The Australian or News Corp. As discussed above, the ACMA considers, in this case, that ‘insiders’ would be understood by ordinary, reasonable viewers as referring to anonymous persons who had access to accurate information (not available to outsiders) about The Australian’s financial performance. The ACMA notes that whether a source is an ‘insider’ or not may have a temporal element to it and broadcasters should take care to use the term advisedly.

The next consideration for the ACMA is whether the statement was a ‘material’ fact.

The ACMA notes the ABC’s submission that:

It is important to note that the Media Watch program was a broad look at the financial challenges facing all newspapers in Australia. It was not a critique of The Australian or its fiscal position. While the ACMA accepts that the broadcast did not focus on The Australian’s fiscal position, it considers that the statement was material to the topic of the broadcast – ‘a broad look at the financial challenges facing all newspapers in Australia’. The statement conveyed that The Australian is sustaining annual losses of between $40 million and $50 million, information that was germane to the topic.

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Accordingly, the ACMA considers that the statement was a ‘material’ fact in the context of the broadcast. The ACMA also considers that the statement was not accurate. The ABC has conceded as much, publishing a correction on its website on 26 February 2014 stating that:

The Australian is likely to lose around $15 million in 2013-14.

However, as the obligation in standard 2.1 centres on ‘reasonable efforts’, the ACMA must also examine the ABC’s efforts to ensure that the statement was accurate. As noted above, the complainant considers that ‘reasonable efforts’ obliged the ABC to verify the figure with a senior executive at either The Australian or News Corp Australia. In contrast, the ABC submits that it was reasonable for it to rely on ‘sources reasonably expected to have the requisite knowledge’, in this case:

Sources … who had been privy to official information about the financial performance of The Australian over the previous 18 months.

The ABC explained to the ACMA that:

The only way to get a snapshot of the financial situation facing The Australian was to rely on unnamed sources. The company does not and has never released this information. The individual financial results for News Corp newspapers have long been a guarded secret. They are not publicly disclosed or itemised in the company’s annual results.

…

Media Watch notes that News Corp has a long history of not commenting on the finances of its Australian newspapers. This includes coverage in its own papers, as can be seen here in this article written by The Australian’s Mark Day in August 2013.

While masthead financial details are tightly held within News, it is apparent that the bottom line of the Australian operations - crucial to the performance of the new News Corp worldwide publishing business - is under pressure. The issue is that revenue is falling faster than costs.

http://www.theaustralian.com.au/media/opinion/data-driven-boss-at-odds-with-news- culture/story-e6frg9tf-1226695119662

While undertaking research for the program Media Watch asked News Corp for specific figures on its digital subscription numbers, the program was told this information would not be provided. At no time did Media Watch consider any information would be provided by News Corp on the financial figures for different mastheads. This was consistent with the public position the company has always taken. In response to the ACMA’s queries about the ABC’s efforts with respect to the information obtained from ‘insiders’, the ABC explained that:

 the program’s presenter or researcher spoke with each of the sources

 they discussed the information obtained with the program’s Executive Producer  they cross checked the information ‘with what is known about the financial pressures facing News Corp newspapers’. This cross checking included an article that appeared in the Australian Financial Review on 5 August 2013 that stated:

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Several informed sources tell the Financial Review that newspaper revenues have tanked. Losses at The Australian last financial year are understood to have hit $36 million. In this instance, the ACMA considers that the ABC’s reliance on the unnamed sources, coupled with the cross checking it undertook, amounted to reasonable efforts. The ACMA notes the ABC’s submission that it was reasonably believed there was no point in approaching The Australian or News Corp for this information as it would not have been forthcoming. Accordingly, the ACMA’s finding is that the ABC did not breach standard 2.1 of the Code in respect of the statement.

In this circumstance, the ACMA does not need to consider Section III of the Code (headed ‘Resolved Complaints’) which provides:

A failure to comply will not be a breach of the Code if the ABC has, prior to the complaint being made to the ACMA, taken steps which were adequate and appropriate in all the circumstances to redress the cause of the complaint.

To illustrate, a failure to comply with Standards 2.1 or 2.2 (Accuracy) will not be taken to be a breach of the Code if a correction or clarification, which is adequate and appropriate in all the circumstances, is made prior to or within 30 days of the ABC receiving the complaint. Accuracy of the second broadcast

Relevant Code standard 2. Accuracy 2.2. Do not present factual content in a way that will materially mislead the audience. In some cases, this may require appropriate labels or other explanatory information.

Complainant’s submissions

The complainant submitted to the ABC that the second broadcast ‘materially misled the audience’ by omitting further relevant statements made by Mr Mitchell during the interview. To the ACMA, the complainant submitted that the extract of the interview ‘did not include key statements’, and ‘was presented out of context and without other expressly relevant statements’. The complainant’s submissions are at Attachment C.

ABC’s submissions

The ABC responded to the complainant that at the time of the second broadcast, ‘the extent of the error was still unknown’ and that the second broadcast ‘included an accurate summary of what was known at that time and was not misleading’. The ABC’s submissions are at Attachment D.

Decision

The ABC did not breach standard 2.2 of the Code.

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Reasons

In applying standard 2.2 of the code, the ACMA usually adopts the following approach:

 Was the particular content (the subject of the complaint) factual in character?

 If so, was that factual content presented in a way that would materially mislead (i.e. in a significant respect) the audience? In this instance, the complaint is that the presentation of factual content was materially misleading through omission. The complainant submitted to the ABC that the ABC ‘selected an extract from the Chris Mitchell interview out of context and without the further expressly relevant statements made by him concerning the incorrect statement’. The complainant specifically identified these statements made during the interview which were omitted from the second broadcast - ‘the idea that we are losing $50m is ridiculous’ and that the extent of the newspaper’s loss is ‘a fraction of the number that Paul Barry quoted’. The ABC responded to the complainant that:

At that point in time Mr Mitchell had not quantified the extent of the paper’s losses, either in the interview with Ms Markson or with Media Watch directly. It was not clear what losses The Australian had incurred in 2012-2013 or what losses are anticipated for 2013-2014. Nor was it clear from Mr Mitchell’s statement whether the estimate broadcast by Media Watch, actually a range of $40m - $50m, was “a fraction” of 2012-2013 or of 2013-2014. The ACMA notes that, as at the date of the second broadcast (24 February 2014):  the newspaper had advised Media Watch that it was ‘factually incorrect’ to assert that the newspaper ‘is losing $40 to $50 million a year’  Mr Mitchell had acknowledged in the interview (published on The Australian’s website earlier that day) that the newspaper is losing money (he explained ‘it’s probably not profitable on The Australian’).

However, the ACMA also notes that it was not until the next day that the apparent extent of the loss was alluded to in an email exchange between Mr Barry and Mr Mitchell in which Mr Mitchell indicated:

My Budget for this year is minus $15 million in total across print and digital. We are well in the ballpark. As a result, the ACMA accepts that at the date of the second broadcast, the ABC was unable to better quantify the extent of the newspaper’s loss. However, the interview included statements explaining that the loss for the newspaper was significantly less than that claimed by Media Watch in the first broadcast which did not appear in the second broadcast. The second broadcast included this extract from the interview:

Sharri Markson: It’s still a profitable business, for sure.

Chris Mitchell: Well, you know, it’s probably not profitable on The Australian, as people have noticed, we’ve had a hard time since the GFC.

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However, the interview included this longer exchange between Mr Mitchell and Ms Markson which was not included in the broadcast (statements of greatest relevance to the extent of the newspaper’s loss are indicated in bold):

Ms Markson: Yeah, it’s still a profitable business, for sure.

Mr Mitchell: Well, you know, it’s probably not profitable on The Australian. As people have noticed, we’ve had a hard time since the GFC. But, the idea that we’re losing 50 million dollars is ridiculous.

Ms Markson: Those figures are incorrect?

Mr Mitchell: Completely incorrect. We’ve never gone even close to that. You know, we’ve had, like most newspapers, we’ve lost classified advertising. I think the aim of the game in paper is to lift your display advertising and lift your cover prices and then the balance that you lose from classifieds you need to try to make up with digital. Now, have we made that up? No, we haven’t but we’ve cut costs pretty effectively and I would think we’ll go close to halving our loss from last year this year. So, we’ll be a fraction of the number Paul Barry quoted.

The ACMA considers the bolded statements were factual in character and germane to the topic of the broadcast – to ‘set the record straight’ on the extent of the newspaper’s loss – and that their omission ‘materially misled the audience’. The ACMA particularly notes the omission of the statement ‘but, the idea that we’re losing 50 million dollars is ridiculous’ that immediately followed the extract included in the second broadcast. Accordingly, the ACMA considers that the presentation of factual content in the second broadcast did not comply with standard 2.2 of the Code. However, the second paragraph of Section III of the Code provides:

A failure to comply with not be a breach of the code if the ABC has, prior to the complaint being made to the ACMA, taken steps which were adequate and appropriate in all the circumstances to redress the cause of the complaint. As explained under Issue 2 below, the next day the ABC published a correction on its website (including a reference to the $15 million figure provided by the newspaper) and made corrections to the transcripts on its website. These steps were taken prior to the complaint being made to the ACMA (in May 2014), and, for the reasons set out at Issue 2 below, the ACMA considers the steps taken were ‘adequate and appropriate in all the circumstances to redress the cause of the [complainant’s subsequent] complaint’. Accordingly, under the terms of the second paragraph of Section III of the Code, the ABC did not breach standard 2.2 of the Code. Issue 2: Corrections and clarifications

Relevant standard 3. Corrections and clarifications

3.1 Acknowledge and correct or clarify, in an appropriate manner as soon as reasonably practicable:

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 9

a. significant material errors that are readily apparent or have been demonstrated; or

b. information that is likely to significantly and materially mislead.

In the case of corrections and clarifications, the relevant Principles provide:

A commitment to accuracy includes a willingness to correct errors and clarify ambiguous or otherwise misleading information. Swift correction can reduce harmful reliance on inaccurate information, especially given content can be quickly, widely and permanently disseminated. Corrections and clarifications can contribute to achieving fairness and impartiality. Complainant’s submissions

In respect of the statement in the first broadcast, the complaint asked that ‘the statement be deleted from the transcript and edited from the program available on iview’ and that the ABC broadcast a correction on Media Watch the next week.

The complainant submitted to the ACMA that ‘in the program broadcast on 24 February the ABC rebroadcast the incorrect statement’ and omitted statements made by Mr Chris Mitchell which were ‘directly relevant to and corrected the incorrect statement the subject of complaint’. In short, the complainant submitted to the ACMA that:

the ABC’s response is inadequate because … [it] republish[ed] the incorrect statement in juxtaposition with a selectively edited and out of context extract from the Chris Mitchell interview. The complainant’s submissions are at Attachment B.

ABC’s submissions

The ABC submitted to the complainant that:

Media Watch accepted that the original estimate was not correct and published a clear correction at the earliest opportunity on its website on 26 February. Corrections have also been inserted in the transcript of the original story, which is available on the Media Watch website and published on the Media Watch corrections page … The ABC’s submissions to the complainant are at Attachment C.

Decision

The ABC did not breach standard 3.1 of the Code. Reasons The ACMA notes that The Australian’s ‘budget [of] minus $15 million in total across print and digital’2 represents a likely loss for 2013-14, substantially less than the figure broadcast ($40 to $50 million). The ACMA considers that a difference of this magnitude is both a ‘significant material error’ and ‘likely to significantly and materially mislead’. As a result, once the

2 Email exchange between Mr Mitchell and Mr Barry on 25 February 2014 (at 5:04 pm) - refer Attachment D.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 10 complainant had demonstrated to the ABC that the figure was erroneous, the obligation in standard 3.1 was enlivened. After receiving correspondence from the complainant about the statement in the first broadcast, the ABC took these measures:

 on 24 February 2014, it broadcast the segment ‘Media Watch responds to The Australian’

 on 26 February 2014, it published a correction on its website (reproduced at Attachment F) and made corrections to the transcripts on its website for both broadcasts (the online corrections).

Also on 26 February 2014, the ABC made these corrections to the transcripts on its website for the broadcasts:

The first broadcast

Insiders tell Media Watch that The Australian is losing $40 million to $50 million a year.**Correction: The Australian has assured us that this $40 million to $50 million figure is ‘factually incorrect’. Media Watch has corrected the record.

The second broadcast

And in particular with our report that insiders claim The Australian is losing $40 million to $50 million a year. **Correction: The Australian has assured us that this $40 million to $50 million figure is ‘factually incorrect’. Media Watch has corrected the record.

That same day the ABC also published a correction on its website (the online correction), which includes statements that:

2. The Australian is likely to lose around $15 million in 2013-14.

…

3. The Australian appears to have lost around twice as much as this – or $30 million – in 2012-2013.

…

Media Watch accepts that the insiders’ figure of $40 million to $50 million was too high.

The corrections to the transcripts include a hyperlink to the fuller correction at ‘Media Watch has corrected the record.’ The ACMA considers that the online correction and the corrections to the transcripts did ‘acknowledge and correct or clarify, in an appropriate manner as soon as reasonably practicable’ the inaccuracy of the statement made in the first broadcast. In this regard, the ACMA observes that:

 the ABC was not aware of the lower estimated figure until 25 February 2014 when the complainant indicated a figure for 2013-14 in the ‘ballpark’ of $15 million. The online corrections were made the next day which the ACMA considers was ‘as soon as reasonably practicable’

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 in the online correction, the ABC acknowledged the error (‘Media Watch accepts that the insiders’ figure of $40 million to $50 million was too high’) and twice cited the likely figure for 2013-14 (namely $15 million)

 the corrections to the transcripts are readily apparent – they appear in red font, start with ‘**Correction’ and state that ‘Media Watch has corrected the record’

 while the corrections to the transcripts are necessarily brief, they include a hyperlink to the more detailed online correction. While the statement in the first broadcast was made in the context of a program examining the pressures facing print media in Australia generally, the second broadcast had a different focus – to ‘set the record straight’ on the newspaper’s financial performance.

As explained above, at the date of the second broadcast the ABC was unable to quantify the loss for the newspaper. However, the ABC was aware from Mr Mitchell’s statements in the interview earlier that day, that the loss was significantly less than the $40-50 million claimed in the first broadcast. These statements included ‘the idea that we’re losing 50 million dollars is ridiculous’, ‘completely incorrect. We’ve never gone even close to that’ and ‘we’ll be a fraction of the number Paul Barry quoted’. The ACMA considers that the second broadcast fell short of what is required by standard 3.1 given it repeated the incorrect figure and omitted any reference to Mr Chris Mitchell’s statements that the newspaper’s loss is significantly less than that claimed in the first broadcast.

Accordingly, the ACMA considers that the second broadcast did not comply with standard 3.1 of the Code. However, at that stage, the complainant had not provided the ABC with an estimate of The Australian’s losses. When it did so the next day, the ABC promptly published appropriate corrections, as set out above, to redress the cause of the complainant’s subsequent complaint. The ACMA is satisfied that, prior to the subsequent complaint being made to the ACMA, the ABC took steps which were ‘adequate and appropriate in all the circumstances to redress the cause of the complaint’. Accordingly, under the terms of the second paragraph of Section III of the Code, the ABC did not breach standard 3.1 of the Code.

Issue 3: Opportunity to respond

Relevant standard 5. Fair and honest dealing

Opportunity to respond

5.3 Where allegations are made about a person or organisation, make reasonable efforts in the circumstances to provide a fair opportunity to respond.

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Complainant’s submissions

The complainant submitted to the ACMA that the statement was an ‘allegation’ and the ABC was obliged by standard 5.3 of the Code to give The Australian or News Corp Australia an opportunity to respond prior to the broadcast:

9. It is clear that viewers would have taken that statement as conveying The Australian is losing $40 million to $50 million a year.

10. This allegation was not put to any of the Editor-in-Chief, Editor, Finance Manager or CEO of The Australian, the Director – Policy, Corporate Affairs and Community Relations, or Head of Corporate Affairs of News Corp Australia prior to broadcast of the program. The complainant’s submissions are at Attachment C.

ABC’s submissions

The ABC submitted to the complainant that:

Th[e] statement does not constitute an allegation as it is intended to be understood in section 5.3 of the Code. There is no suggestion by either ABC or any other party that the losses are the result of any improper action or malfeasance on the part of News Corp or any of its staff. Rather, this is a factual statement attributed to its source. The ABC’s submissions are at Attachment D.

Decision

The ABC did not breach standard 5.3 of the Code. Reasons

The Code includes, at the outset, a general note on ‘Interpretation’ which relevantly includes:

The Standards […] are to be interpreted and applied with due regard for the nature of the content under consideration in particular cases. … The Standards are to be applied in ways that maintain independence and integrity, preserve trust and do not unduly constrain journalistic enquiry or artistic expression. In addition, the ABC has published a Guidance Note, specifically to assist in the interpretation of standard 5.3 of the Code. The Guidance Note is reproduced at Attachment H.

The Guidance Note specifies the types of allegations that attract the operation of standard 5.3 – namely, ‘action or inaction that may be unlawful, improper, incompetent, negligent, corrupt, dishonourable or anti-social.’ The Guidance Note explains that standard 5.3 ‘applies to news and current affairs and other types of factual content, such as documentaries.’ It further explains that standard 5.3 does not apply to:

content genres in which the provision of an opportunity to respond is not a recognised standard – criticism and review of artistic works is one example; comedy and satire is another.

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In an earlier investigation concerning Media Watch3, the ACMA considered that standard 5.3 is capable of applying to Media Watch, explaining that:

Media Watch can be distinguished from other programs of criticism and review in that it regularly consists of factual investigation, rather than a critique of works of art, which is by its nature a subjective and abstract exercise. Media Watch regularly investigates questions of fact; it collates them and reports on them.

Accordingly, the ACMA considers that Media Watch does not fall within the category of programs in which “the provision of an opportunity to respond is not a recognised standard”. In the same investigation, the ACMA said:

It does not follow that Media Watch would be required to offer an opportunity to respond ‘whenever any unflattering imputation against an individual or a media outlet could be attributed to the presenter’s judgements, and regardless of the fact of the matter’, as was submitted by Media Watch. It is only where material and conduct is of the kind outlined in the Guidance Note that the operation of standard 5.3 will be triggered. In order to determine whether the ABC has complied with the requirements of standard 5.3 of the Code, the ACMA must consider:

 Was an allegation (for the purposes of standard 5.3) made about a person or organisation?

 If so, were reasonable efforts made in the circumstances to provide a fair opportunity for the person or organisation to respond?

In the overall context of the broadcast – an examination of financial pressures on print media in Australia - the ACMA considers that the statement conveyed that, like other print publications, The Australian was losing significant amounts of money and that these losses were attributable to a range of factors including falling circulations, loss of advertising revenue and competition from new online sites. There was no suggestion that any person or organisation associated with The Australian had engaged in any ‘action or inaction that may be unlawful, improper, incompetent, negligent, corrupt, dishonourable or anti-social.’ As a result, the ACMA considers that the statement did not amount to an ‘allegation’ under standard 5.3 of the Code. Accordingly, the ACMA’s view is that the ABC did not breach standard 5.3 of the Code.

Attachment A

Transcript of first broadcast (‘Clicks, cats and crazy headlines’)

Man beheads baby, licks up blood

— News.com.au, 6th February, 2014

3 Investigation 2730 into an episode of Media Watch broadcast on 19 September 2011.

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Naked man shot dead while eating teen’s face

— News.com.au, 6th February, 2014

This model plane is incredible

— News.com.au, 6th February, 2014

Hello, I'm Paul Barry, and welcome to Media Watch as we gaze into our crystal ball and peek into the future of print and online news

Those were three of the top stories earlier this month on what’s now Australia’s most popular news site, News.com.au.

And here are a couple of others.

George Clooney kills off dad in latest prank

— News.com.au, 6th February, 2014

18 signs you’re dealing with a narcissist

— News.com.au, 6th February, 2014

Busted! The celebs who've lied about their age

— News.com.au, 6th February, 2014

They call this stuff click-bait and it’s what news sites all over the world are now using in their battle to sell advertising.

They’re forced into offering this fare—or so they believe—because they need to make money, and it’s now almost impossible to do that from print.

Double digit decline in newspaper circulation

— Australian Newsagency Blog, 14th February, 2014

Yes, newspaper sales are plummeting again.

Audit Bureau of Circulation figures for the last 3 months of 2013 show another huge fall ... with Fairfax Media’s The Age and Sydney Morning Herald down by a shocking 17% from the same period of 2012.

News Corp's Herald Sun and Daily Telegraph fared slightly better, but still fell 12%, after even bigger falls in the previous quarter.

And how bad is that? As one former News Corp editor told Media Watch:

It’s slaughter

— Ex-News Corp editor

Or in the words of another ex-News Corp executive, who was equally shocked:

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“It’s a bloodbath. I've never seen figures like it.”

— Ex-News Corp executive

In absolute terms the Herald and Age are now selling not much more than 130,000 copies each a day.

Meanwhile, the mighty Herald Sun has sunk below 400,000 and the Daily Telegraph below 300,000.

The glory days are well and truly gone.

But believe it or not, the news on advertising revenue is even worse. And that’s where it really hurts.

Fairfax Media’s 2013 results show that print advertising revenue for its two big Metro mastheads—the Herald and the Age—fell by 25% last financial year, almost exactly $100 million.

Meanwhile, at News Corp, total revenue for their Australian papers was down by around $120 million in the last quarter, or 10% from the previous year.

According to media analyst Roger Colman:

It’s a pretty poor outlook for The Fairfax Group and News Corp looking at the numbers in Australia.

— Roger Colman, Media and Internet Research, CCZ Statton Equities

That is an understatement.

Insiders tell Media Watch that The Australian is losing $40 million to $50 million a year.

The Daily Telegraph is also losing money.

And even Brisbane’s Courier-Mail—which was once a goldmine has hit hard times.

Six or seven years ago News Corp's Queensland papers—which include the Gold Coast Bulletin, Cairns Post and Townsville Bulletin—were making $270 million profit before interest and tax.

This year—we’re told—they’re budgeted to make less than 1/10th of that and are in fact on track for a loss.

According to Colman this is the new reality:

Print product is unprofitable Monday to Friday. Commercially, the newspaper has ceased to exist, other than as a magazine on the weekends.

— Roger Colman, Media and Internet Research, CCZ Statton Equities, statement to Media Watch, 13th February, 2014

As profits at Australian newspapers evaporated last year, five News Corp editors got the chop.

And Kim Williams, the new CEO, resigned .

One former News Corp executive tells Media Watch:

Kim Williams wanted to change, but the Old Guard knocked him off...

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 16

— Ex-News Corp executive

Now it’s not clear what News Corp's strategy will be. In the words of another former News Corp executive:

The business is heading towards the cliff. At least Kim was trying to grab the wheel. Now they’re heading to the edge with their foot flat to the floor and hoping for a soft landing.

— Ex-News Corp executive

Over at Fairfax ... the Herald, the Age and the Fin Review are also fighting for their lives, despite drastic cost cutting over the last two years.

Fairfax has shed some 2,000 jobs, announced the closure of its two biggest printing plants, shut down magazines, moved to a tabloid format and got rid of some its best-known writers.

On the plus side, the Age and Herald have also put up paywalls on their popular websites— with some success—and CEO Greg Hywood maintains it’s all going fine ...

I’ve been here since 1976 and let me say that our journalism has never been better...

In this company, at this time, everyone is hungry to succeed.

— Greg Hywood, CEO, Fairfax Media, 7th November 2013

But the share price still tells a sorry tale.

At around 72 cents—which is admittedly higher than it has been—Fairfax Media is worth only 1/7th of what it was worth seven years ago.

And where has the value gone?

To the new online sites that hijacked its advertising.

As former Fairfax adviser Daniel Petre told Colleen Ryan for her book Fairfax: The Rise and Fall.

DANIEL PETRE: Eight billion dollars of market cap is now tied up in [realestate.com.au], carsales and Seek. That has basically come out of Fairfax. And Fairfax is worth $1.3 billion. That is the scale of the tragedy ...

Ultimately, it’s the loss of advertising that poses the main problem for these newspapers, especially if it continues, because that’s where so much of their money still comes from.

And this is true at News Corp too, even though it owns realestate.com.au, because its tabloid papers risk losing the display ads they still rely on.

As a former executive admitted:

Everyone knows the classifieds are gone. The big worry is the big retailers’ ads. They know what customers want to buy and they can marry it up, and they’re not going to need newspapers at all in a few years.

— Ex-News Corp executive

Compounding this is the difficulty newspapers have in making money online.

More and more, advertisers are spending money with Google and Facebook, because they can target their customers.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 17

And even if ad volume is going up, ad rates are going down.

Last year Fairfax’s digital ad revenue rose by only $5.5 million, while its print ad revenue fell $100 million, or almost 20 times as much.

To cap it all, big international media groups are now muscling in on our market.

Britain’s Guardian launched an Australian website in May last year and is now a regular in the top ten.

The Daily Mail is also now here and whizzing up the charts with stories like this.

Now that’s a tandoori tan! Jackie O tweets orange face after losing ‘spray tan bingo’

— Mail Online, 13th February 2014

The Mail Online is the most popular English-language news site in the world, with an audience of 58 million people per month, and a very particular approach to news:

LOOming on the horizon, the precarious privvy perching over a 2,600m Siberian cliff and frequented by the brave, stupid or very desperate

— Mail Online, 27th November 2013

The Mail is famous for its kooky stories and crazy headlines, which are designed to be picked up by online search engines.

It’s also notorious for the so-called sidebar of shame, packed with celebrity gossip and wardrobe malfunctions, which publisher Martin Clarke says will certainly be coming our way.

MARTIN CLARKE: We don’t call it the sidebar of shame, but yeah obviously the right rail with its great showbiz content, yes that will definitely be there, but with an awful lot more Australian personalities.

— ABC Radio National, RN Breakfast, 28th November 2013

The Mail—which has formed a joint venture with Nine Entertainment—is looking to hire 50 local journalists to bring us truly Australian content.

So what will it look like?

Here’s an example of what to expect :

Three Aborigine boys airlifted to hospital after circumcision ritual goes horrifically wrong and they are left sitting in ‘pools of blood’

— Mail Online, 23rd January 2014

That story came with a totally unrelated picture that looks like it came from a tourist brochure.

A family of aboriginals strolling in the wild, near Darwin, Australia.

— Mail Online, 23rd January 2014

But once the Mail gets its bearings, it is expecting to take Australia by storm. Here’s Martin Clarke again:

MARTIN CLARKE: My view in life is there’s not much point going into races where you want to come second. So, yeah, we have a massive market penetration in the UK and a very dominant position. We’re expanding our position in the US all the time and I see no reason why we

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 18

shouldn't become a very big player in Australia.

— Mumbrella Hangout, 27th November 2013

Industry insiders say the Mail is already scaring the bejesus out of its competitors like News.com.au.

And they are running more and more Man bites Dog stories in an attempt to fight back:

NATARSHA BELLING: ... Let’s see what is trending online this morning, Alison Stephenson joins us from news.com.au. Good morning Ali what are people looking at today?

ALISON STEPHENSON: Good morning guys I've got a bit of an odd one for you today. A woman who hated being named ‘Sheila’ and said that her name was one of the ugliest out there has legally changed her first name to ‘Sexy’. 41 year old Sheila Crabtree from Ohio told the court how she wanted a name that reflected her personality ...

— Channel Ten, Wake Up, 13th February 2014

Sexy Crabtree. What’s not to like about a story like that?

Well ... one of our viewers who is on News.com.au’s daily email list has complained to Media Watch about the stuff that now lands in his Inbox, like this batch last Wednesday.

Son, 16, ‘killed mum with dumbbell’

— News.com.au, 12th February 2014

‘America’s sweetheart is a b****’

— News.com.au, 12th February 2014

Woman’s fury over ‘mile-high sex snub’

— News.com.au, 12th February 2014

Says James our informant

This email paper is continually full of such rubbish, undoubtedly picked up from the international wires. It smacks of laziness on the part of reporters and perhaps says something of the audience – tech smart but socially dumb!! Avoids the paper grappling with the real issues of our Australian community.

— Viewer ‘James’, email to Media Watch, 12th February 2014

But media websites like News.com.au have yet another new kid on the block to fight.

The internationally-renowned BuzzFeed launched here in Australia just over 2 weeks ago with a barrage of lists ... that you really don’t need to read:

50 Reasons Why Australia Is The Lucky Country

— BuzzFeed Australia, 16th February 2014

12 Things You May Not Know About The Movie ‘Wolf Creek’

— BuzzFeed Australia, 16th February 2014

31 Heartwarming Photos Of Animals Returning Home After Bushfire Evacuations

— BuzzFeed Australia, 16th February 2014

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 19

Oh all right, let’s have a look.

Aaaahhh. Heartwarming isn’t it?

BuzzFeed of course is a massive success, with a worldwide audience of 43 million people per month— almost as many as the Mail Online—which grew by 76% last year.

Famous for its cute cat videos and its lists, BuzzFeed creates content that people want to share. Mainly young people and mainly on Facebook.

These include sponsored stories co-written by Buzzfeed, which advertisers love because they can pay by results when their message is shared.

BuzzFeed now wants to be seen as a serious news site, and in America it’s hiring political, business and investigative reporters.

But it’s taking on just three journalists in Australia to cover our news and to look for...little furry animals...

SCOTT LAMB: Americans love cute cats, this is a true thing. Maybe in Australia it’s going to be quokkas or some other cute animal ...

— ABC News 24, 31st January 2014

Some of BuzzFeed’s stories do have serious intent.

Like this one:

7 Ways The ABC Could Be More On Australia’s Side

— BuzzFeed, 29th January, 2014

But even then it’s more like comment or comedy.

So is any of what BuzzFeed does really news or journalism?

SCOTT LAMB: That's an excellent question. I would say that list of cats can be journalism. Certainly, we have reporters and writers at BuzzFeed who are very traditional journalists in most sense. They go out into the world and get new information.

The way that they present it, though, is varied. And sometimes a list of cats is a great way to tell a story. It depends on what point it is that you're trying to get across.

— ABC Radio, PM, 31st January 2014

Journalism or not, BuzzFeed will be trying to steal readers from the big Australian news sites, and so will the Mail Online.

This will put those sites under pressure to be more sensational, more celebrity-focused and less interested in real news.

BuzzFeed and the Mail Online will also steal advertising dollars from those established Australian sites and make it even harder for them to make a living.

Indeed, some believe the globalisation of Australian news will drive the locals out of business and leave us with franchises of international media brands.

Says Roger Colman:

It’s hard to see independent, stand-alone businesses like the SMH, Daily Telegraph and The Age surviving the onslaught.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 20

— Roger Colman, Media and Internet Research, CCZ Statton Equities, statement to Media Watch, 13th February 2014

We hope that’s too pessimistic.

And with smaller start-ups like The New Daily, launched in November, and the Saturday Paper due out in March, it’s certainly not all doom and gloom.

In fact some say these are exciting times in journalism. Especially if you like cat stories.

And you can read more about all of this on our website, where you can also read a transcript and download the program.

You can also send us tips to that website and contact me or Media Watch on Twitter.

But for now, that is all from us. Goodbye.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 21

Attachment B

Transcript of second broadcast (‘Media Watch responds to The Australian’)

And finally to our good friends at The Australian who were most distressed with last week’s program about the challenges facing newspapers.

And in particular with our report that insiders claim The Australian is losing $40 to $50 million a year.

They sent us a legal letter saying that is factually incorrect. They were also upset that we hadn’t called to check.

So what are the facts?

In an attempt to set the record straight, we asked editor Chris Mitchell:

Did The Australian lose money in FY 2012-13

If so, how much money did it lose?

— Media Watch, Questions to The Australian, 21st February, 2014

Imagine our surprise when The Australian’s editor declined to answer.

Within minutes, Chris Mitchell emailed us to say:

That is not how it works mate. Straight to ACMA I think.

— Chris Mitchell, Editor-in-Chief, The Australian, response to Media Watch’s questions, 21st February, 2014

ACMA being the Australian Communications and Media Authority to which The Australian apparently plans to complain.

We’ll keep you posted on what happens.

But, in an interview on the Australian website today, Chris Mitchell admitted the paper is losing money.

SHARRI MARKSON: It’s still a profitable business, for sure.

CHRIS MITCHELL: Well, you know, it’s probably not profitable on The Australian, as people have noticed, we’ve had a hard time since the GFC.

— The Australian Online, 24th February, 2014

And you can read more about this and other stories on our website, where you can also read a transcript and download the program.

You can catch up with us too on iview, and contact me or Media Watch on Twitter.

But until next week that’s all from us. Goodbye.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 22

Attachment C Complainant’s submissions - extracts

Submissions on the first broadcast

To the ABC on 21 February 2014: …

The program included the statement: “Insiders tell Media Watch that The Australian is losing $40 million to $50 million a year.”

We are instructed that the statement is factually incorrect.

…

The program quotes at least three former News Corp executives, and no current executives. In fact, we are instructed that the $40m to $50m figure was not put to any of the Editor-in-Chief, Editor, Finance Manager or CEO of The Australian.

The ABC has a statutory duty to ensure that the gathering and presentation of news and information is accurate according to the recognised standards of objective journalism.

Both the ABC’s Code of Practice and Editorial Policies place the obligation on the ABC to make reasonable efforts to ensure that material facts are accurate and presented in context. The Australian considers that the relevant Code and Policies have not been complied with in circumstances where this assertion was not put to any of the Editor-in-Chief, Editor, Finance Manager or CEO of The Australian, the Director-Policy, Corporate Affairs and Community Relations, or Head of Corporate Affairs of News Corp Australia.

In addition, the ABC’s Editorial Policies require the ABC, when making allegations about a person or organisation, to make reasonable efforts in the circumstances to provide a fair opportunity to respond. As you would recall, Media Watch was the subject of an adverse finding by ACMA in its report concerning a broadcast on September 19, 2011 concerning The Daily Telegraph, due to a breach of this obligation.

The Australian notes that had the program complied with the ABC’s Code of Practice and Editorial Policies and made the bare minimum of enquiries, let along ‘reasonable efforts’, it would have been advised that the statement is wrong.

We are further instructed that it is simply wrong for Paul Barry to assert that The Australian would not have responded to questions from the program. He said: “I don’t think if we’d have gone to News Corp that we’d have got anything”. The paper has never failed to respond to questions from Media Watch. The Editor in Chief, Chris Mitchell was interviewed by former presenter Jonathan Holmes at length for the program some years ago.’

Our client requests that the statement be deleted from the transcript and edited from the program available on iview. Our client also seeks the following correction to be broadcast on Media Watch next week:

Last week we said The Australian is losing tens of millions a year. That statement was incorrect. Media Watch acknowledges that it did not contact The Australian for comment.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 23

To the ACMA on 26 February 2014:

…

3. The ABC response is inadequate because not only does it disregard the clear and common meaning of the words contained in Sections 2.1, 2.2, 3.1 and 5.3 of its Code of Practice, it republished the factual error in the program broadcast on 24 February, and selected an extract from the Chris Mitchell interview out of context and without the further expressly relevant statements made by him concerning the incorrect statement.

…

8. The program included the statement “Insiders tell Media Watch that The Australian is losing $40 million to $50 million a year”.

9. It is clear that viewers would have taken that statement as conveying The Australian is losing $40 million to $50 million a year.

10. This allegation was not put to any of the Editor-in-Chief, Editor, Finance Manager or CEO of The Australian, the Director – Policy, Corporate Affairs and Community Relations, or Head of Corporate Affairs of News Corp Australia prior to broadcast of the program.

11. Mr Barry, when asked by The Australian on 18 February 2014, whether he approached The Australian said: “I don’t think if we’d have gone to News Corp that we’d have got anything”.

12. Mr Barry advised The Australian that the program had approached all other newspapers and media organisations for a response.

13. Media Watch was advised in clear terms that the statement was factually incorrect and The Australian sought a correction in the following terms:

“Last week we said The Australian is losing tens of millions a years. That statement was incorrect. Media Watch acknowledges that it did not contact The Australian for comment.”

14. By its response dated 21 February 2014 Media Watch advised The Australian that a correction was conditional upon the paper responding to questions it should have put to the paper before broadcast.

…

16. By its response in the program broadcast on 24 February the ABC rebroadcast the incorrect statement and ridiculed its obligations under the Code of Practice and the complaints process with the following statement:

“And finally to our good friends at The Australian who were most distressed with last week’s program about the challenges facing newspapers.

And in particular with our report that insiders claim The Australian is losing $40 to $50 million a years.

They sent us a legal letter saying that is factually incorrect. They were also upset that we hadn’t called to check.”

17. In its response in the program broadcast on 24 February the ABC stated:

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 24

“But in an interview on The Australian website today, Chris Mitchell admitted the paper is losing money.” Media Watch then extracted the following from the interview with Chris Mitchell:

“SHARRI MARKSON: Yeah, it’s still a profitable business, for sure.

CHRIS MITCHELL; Well, you know, it’s probably not profitable on The Australian, as people have noticed, we’ve had a hard time since the GFC.”

18. In its response in the program broadcast on 24 February 2014 the ABC omitted the following statements which immediately followed on from the extract above that were directly relevant to and corrected the incorrect statement the subject of complaint.

“CHRIS MITCHELL: Well, you know, it’s probably not profitable on The Australian, as people have noticed, we’ve had a hard time since the GFC, but the idea that we are losing $50 million is ridiculous and ..

SHARRI MARKSON: Those figures are incorrect?

CHRIS MITCHELL: Completely incorrect. We have not even gone close to that. You know we’ve had, like most newspapers, we have lost classified advertising. The aim of the game in paper is to lift your display advertising and lift your cover prices and the balance that you lose from classifieds you need to make up from digital. Now have we made that up? No we haven’t. We have cut costs pretty effectively and we will go close to halving our loss from last year to this year so it will be a fraction of the number Paul Barry quoted.”

…

19. In summary, the ABC’s response is inadequate because contrary to the Code of Practice it asserts that:

 it had no obligation to put the allegations to The Australian;

 does not accept as accurate that the statement that the paper is losing $40m to $50m a year is inaccurate;

 denies that the statement is a statement of fact;

 made any correction conditional upon the paper providing information which should have been sought from it prior to broadcast; and

 republishing the incorrect statement in juxtaposition with a selectively edited and out of context extract from the Chris Mitchell interview.

…

21. The ABC and its response asserts: It had no obligation or journalistic imperative to seek a response from The Australian.

This assertion was in clear and direct conflict with the ABC’s Code of Practice and is self evidently wrong. The program was making a statement of fact concerning the extent of the paper’s losses each year without making any, let alone reasonable, efforts to verify that statement. The program did seek a response from other media outlets. No reason is advanced for the selective treatment of The Australian in failing to approach the paper for a response. No reason is advanced for this assertion, but for Mr Barry’s speculation that any response would not have been forthcoming. That speculation is also wildly inaccurate and false. The Australian has always responded to questions from the program and Chris

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 25

Mitchell was interviewed at length by former host Jonathan Holmes for a program broadcast several years ago.

22. The ABC in its response asserts: The information was obtained from sources reasonably expected to have the information.

The standard to be applied here is the statutory duty to ensure that the gathering and presentation of news and information is accurate according to recognised standards of objective journalism. Those standards require that information from sources is verified and put to the subject matter of the allegation. …

23. The ABC in its response asserts: The statement was not a bald assertion of fact.

This argument is disingenuous, dishonest and made with an improper purpose. That improper purpose is to oust any obligation on the program to comply with the Code of Practice. Unless characterised as a ‘non fact’ the program is then bound by section 5.3 of the Code which places it in an embarrassing and inconvenient position.

The statement clearly conveys a fact to viewers.

24. The ABC in its response asserts: The statement was not a statement of fact because it was referable to ‘insiders’.

This argument is again obfuscating, disingenuous and dishonest. The attribution of the information to ‘insiders’ clearly imputes that the statement of fact has been subjected to scrutiny of the kind obligations under the Code of Practice require, and is accurate. It imputes that the information came from News Corp Australia or The Australian itself, when in fact, Mr Barry has publically confirmed neither entity was approached for a response.

25. The ABC in its response asserts: It does not accept that the statement was incorrect.

This argument is startling. The Australian and News Corp has been clear and unequivocal that the statement is factually wrong. Given that those entities are the sole source of accurate information concerning the paper’s financial position it is unclear how the ABC can assert the statement is not incorrect. There is no factual basis for the ABC’s assertion.

26. The ABC in its response argues: Any correction is conditional upon The Australian providing information which had been sought from it before the broadcast.

… It is no answer to a complaint of factual inaccuracy to require the paper to respond to allegations which should have been put to the paper before broadcast.

The statement contained a significant material error, and has in fact, significantly and materially mislead the ABC audience. …

27. The ABC in its response argues: The incorrect statement is in fact accurate.

The program broadcast on 24 February 2014 clearly imputes that The Australian’s complaint is without any merit, is worthy of ridicule, and false. The program is not in possession of information to justify that position. …

28. The ABC in its response asserts: Chris Mitchell’s statement extracted from the interview justifies the ABC’s position.

This is without doubt the most egregious aspect of the ABC’s response. The ABC’s audience, watching the program broadcast on 24 February 2014, would understand Mr Mitchell to be confirming the

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 26 statement that the paper loses $40m to $50m a year to be true. In fact, the entire unedited answer he gave Ms Markson was:

“CHRIS MITCHELL: Well, you know, it’s probably not profitable on The Australian, as people have noticed, we’ve had a hard time since the GFC, but the idea that we are losing $50 million is ridiculous and ..

SHARRI MARKSON: Those figures are incorrect?

CHRIS MITCHELL: Completely incorrect. We have not even gone close to that. You know we’ve had, like most newspapers, we have lost classified advertising. The aim of the game in paper is to lift your display advertising and lift your cover prices and the balance that you lose from classifieds you need to make up from digital. Now have we made that up? No we haven’t. We have cut costs pretty effectively and we will go close to halving our loss from last year to this year so it will be a fraction of the number Paul Barry quoted.”

The omission, in breach of the Code of Practice, significantly and materially mislead the ABC audience. While Mr Mitchell agreed the paper was not profitable he immediately qualified that statement by saying that “the idea that we are losing $50m is ridiculous” and further that losses were a “fraction of the number that Paul Barry quoted.” It is, in all the circumstances of the complaint, an indefensible omission and an indefensible response from the ABC. Given the proximity of the words edited out to the words broadcast by Media Watch there can be no other conclusion drawn than that the ABC deliberately edited out the relevant words because they did not suit the factually incorrect meaning intended to be conveyed.

…

To the ACMA on 21 March 2014: …

The ABC Response concerning section 5.3 of the Code is: “This statement does not constitute an allegation as it is intended to be understood in section 5.3 of the Code. There is no suggestion by either ABC or any other party that the losses are the result of any improper action or malfeasance on the part of News Corp or any of its staff. Rather, this is a factual statement attributed to its source. Accordingly, Audience and Consumer Affairs are satisfied that the broadcast was in keeping with section 5.3 of the Code.”

The ABC in its response dated 24 February 2014 asserts:

“The statement concerning your client was, within the broadcast, made referable to ‘insiders’ rather than a bald assertion of fact. There was no obligation of journalistic imperative to seek a response from your client in the circumstances of the broadcast.”

We do not accept this. It disregards the clear and common meaning of the words in the Code.

The ABC Response concerning section 2.1 of the Code is: “Media Watch has advised that it had three confidential sources for this statement – all of whom are recent former executives or editors of News Corp. The estimate was clearly attributed; viewers would have understood that the figure cited lacked precision and that it was not a formal response from News Corp itself.”

On review, Audience and Consumer Affairs are satisfied that having three sources that are judged reliable and well-informed is sufficient confirmation to publish an attributed estimate.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 27

Having sources, be they confidential or on the record, does not relieve the ABC from its obligation under the Code to put the Statement to the organisation or person about whom it is made for a response. …

Statements about News Corp publications were all attributed to an “ex” or a “former” News Corp executive or editor except in respect of the Statement. The Statement was attributed to ‘Insiders’. In this context the meaning conveyed is that the information was provided to the ABC by current employees of News Corp or The Australian and not by former employees. …

The ABC Response concerning section 2.1 of the Code is:

“As part of the research process for the same program, I understand that [employee] from Media Watch asked [employee] from News Corp for data on digital subscriptions.”

It is evident from this statement that while an approach was made to [employee] of News Corp concerning digital subscriptions, Media Watch did not take the opportunity to put the Statement to News Corp.

The ABC Response concerning section 2.1 of the Code is:

“The program made the judgement that asking for further confirmation from The Australian or from executives at News Corp regarding the figure of “$40 million to $50 million a year” would be fruitless.”

This assertion, and in particular the use of the words “further confirmation” appears to reveal the ABC prejudged the matter and had a lack of objectivity. Had the ABC complied with its Code, the program would have been told the statement is factually incorrect.

The ABC Response concerning section 2.1 of the Code is:

“In the circumstances the efforts made by Media Watch to ensure the accuracy of the statement were reasonable and did not breach ABC editorial standards.”

This is wholly unacceptable and unsatisfactory. The program had the obligation and the opportunity to put the statement to News Corp and to The Australian and failed to do so. It is a clear breach of section 2.1.

The ABC in its Response concerning its conduct following receipt of the complaint is also wholly unacceptable and unsatisfactory. It confirms the ABC’s stance, when confronted with a factual error, to make a correction conditional upon the complainant providing information which the ABC should have sought before broadcast.

However, the most egregious aspect of the ABC Response is: “In a video-taped interview with The Australian’s media editor, Sharri Markson, posted on The Australian’s website on 24 February, Mr Mitchell conceded that The Australian had lost money since 2008. In the program of 24 February Media Watch reported your statement from the letter of 21 February that Media Watch’s estimate was wrong and reported Mr Mitchell’s statement that The Australian had lost money since 2008.”

The Statement that the paper is losing $40 million to $50 million a year does not convey or suggest that the figures are estimates. It asserts that the losses are between $40 million and $50 million each year.

The Australian does not make any complaint about a statement that the paper is not profitable. Media Watch did not broadcast that statement. It stated that the losses were between $40 million and $50 million a year.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 28

The fact that Mr Mitchell confirmed that the paper had not been profitable since 2008 is not confirmation of the incorrect statement.

A Code complaint concerning the Media Watch program of 24 February 2014 has been sent to ABC Audience and Consumer Affairs, and will be forwarded to your office together with our comments on receipt.

Submissions on the second broadcast

To the ABC on 18 March 2014:

…

The purpose of this letter is to draw to your attention a breach of the ABC Code of Conduct and Editorial Policies in relation to the Media Watch program broadcast on ABC 1 on 24 February … (the Second Media Watch Program).

…

In the program broadcast on 24 February, 2014, Media Watch republished the error of fact the subject of complaint, and selected an extract from the Chris Mitchell interview out of context and without the further expressly relevant statements made by him concerning the incorrect statement.

By its response dated 21 February 2014 Media Watch advised The Australian that a correction was conditional upon the paper responding to questions it should have put to the paper before broadcast.

By its response dated 24 February 2014 the ABC asserts:  that the statement was based on information from sources reasonably expected to have the requisite knowledge;  that the statement was not a bald assertion of fact because it was referrable to ‘insiders’; and  that there was no obligation to seek a response from the paper.

Further, the letter stated that the ABC was not in a position to accept The Australian’s statement that the Media Watch statement was incorrect, as a matter of fact.

The program broadcast on 24 February 2014 the ABC rebroadcast the incorrect statement and ridiculed its obligations under the Code of Practice and the complaints process with the following statement:

“And finally to our good friends at The Australian who were most distressed with last week’s program about the challenges facing newspapers.

And in particular with our report that insiders claim the Australian is losing $40 to $50 million a year.

They sent us a legal letter saying that is factually incorrect. They were also upset that we hadn’t called to check.

But in an interview on the Australian website today, Chris Mitchell admitted the paper is losing money.”

Media Watch then extracted the following from the interview with Chris Mitchell:

“SHARRI MARKSON: Yeah, it’s still a profitable business, for sure.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 29

CHRIS MITCHELL: Well, you know, it’s probably not profitable on The Australian, as people have noticed, we’ve had a hard time since the GFC.”

The ABC omitted the following statements which immediately followed on from the extract above that were directly relevant to and corrected the incorrect statement the subject of the complaint:

“CHRIS MITCHELL: Well, you know, it’s probably not profitable on The Australian, as people have noticed, we’ve had a hard time since the GFC, but the idea that we are losing $50 million is ridiculous and ..

SHARRI MARKSON: Those figures are incorrect?

CHRIS MITCHELL: Completely incorrect. We have not even gone close to that. You know we’ve had, like most newspapers, we have lost classified advertising. The aim of the game in paper is to lift your display advertising and lift your cover prices and the balance that you lose from classified you need to make up from digital. Now have we made that up? No we haven’t. We have cut costs pretty effectively and we will go close to halving our loss from last year to this year so it will be a fraction of the number Paul Barry quoted.”

…

The ABC response … is a response designed to reach a predetermined result so as to facilitate a rebroadcast of the incorrect statement in a context which suggests that The Australian’s complaint is utterly without merit and that the paper is in fact losing $40m to $50m a year. It fails to provide adequate address to The Australian by way of an appropriate correction.

…

The program broadcast on 24 February 2014 clearly imputes that The Australian’s complaint is without any merit, is worthy of ridicule, and is false. The program is not in possession of information to justify that position. This response wholly and improperly ridicules the Code of Practice, the complaints process, and the staff of The Australian and is a substantial aggravation of the original complaint. It is a wholly inadequate response to the complaint.

The ABC asserts: Chris Mitchell’s statement extracted from the interview justifies the ABC’s position.

This seems the most egregious aspect of the ABC’s conduct. The ABC’s audience, watching the program broadcast on 24 February 2014, would understand Mr Mitchell to be confirming the statement that the paper loses $40m to $50m a year to be true.

This omission, in breach of the Code of Practice, significantly and materially mislead the ABC audience. While Mr Mitchell agreed the paper was not profitable he immediately qualified that statement by saying “the idea that we are losing $50m is ridiculous” and further that losses were a “fraction of the number that Paul Barry quoted.” It is, in all the circumstances of the complaint, an indefensible omission and an indefensible conduct on the part of the ABC. Especially where the $40m-$50m figure was quoted just before Mr Mitchell’s words are extracted. Given the proximity of the words edited out to the words broadcast by Media Watch there seems no other conclusion drawn than that the ABC deliberately edited out the relevant words because they did not suit the factually incorrect meaning intended to be conveyed. …

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 30

To the ACMA on 28 May 2014:

…

First Code Complaint

On 17 February 2014, the ABC’s Media Watch program reported, “Insiders tell Media Watch that The Australian is losing $40 million to $50 million a year” (the Statement). The statement implied as a matter of fact that The Australian is, and has been, losing $40m - $50m every year (including the current financial year). The Statement was false and inaccurate and, in our submissions, the ABC’s response to this error amounted to a breach of a number of sections of the code (the Statement Code Complaint).

Second Code Complaint

On 24 February 2014, Media Watch reported a purported correction to the Statement. The Media Watch broadcast on 24 February 2014 attempted to correct the original error in the Statement by publishing limited and selective comment from Chris Mitchell’s interview with Sharri Markson (the Interview). The extracts published by Media Watch did not include key statements from Mr Mitchell like “the idea that we are losing $50 million is ridiculous”. Further, the extract of the Interview published by Media Watch was presented out of context and without other expressly relevant statement.

The effect of this attempt at a correction was to (i) republish and reaffirm the original factual error that flowed from the Statement, and (ii) otherwise mislead the Media Watch audience (the Interview Code Complaint).

… 1. The Further Correction [published on 26 February 2014 and reproduced at Attachment F] was itself a breach of section 2.2 of the Code in that it presents factual content in a way that will materially mislead the audience. This is because the Statement conveyed that The Australian had been making losses of $40m - $50m per year. The latest financial performance figures which had been provided to Paul Barry of Media Watch confirmed that The Australian was budgeting for a loss of about $15m in 2013-2014, and that The Australian’s financial performance was markedly improving. This is directly contradictory to the meaning conveyed by the Statement. Moreover, the Further Correction gives no credence to the improving financial performance of The Australian. The Further Correction is therefore a breach of section 2.2 of the Code in that it presents facts in a misleading way. It is also a breach of section 3.1 of the code because it fails to correct the most salient error made by Media Watch – that The Australian was making large, consistent losses year on year. 2. The Further Correction published was not in form or substance requested by The Australian, and does not address the true nature of our client’s complaint. In our submission the purported Further Correction is therefore no more than a follow-up story, published for the ABC’s own self-serving purposes of obtaining extra publicity for Media Watch and continuing to give airplay to an incorrect factual position. The Further Correction also served to undermine and exploit the legitimate complaint made by The Australian. This, in itself, is misleading to the Media Watch audience. Moreover, it is not a correction with the spirit of section 3.1 of the Code, which requires the ABC to correct errors in an appropriate manner. 3. The Statement conveyed that The Australian had been making losses of $40m-$50m per year. Paul Barry was told that the current estimate is that The Australian is budgeting for a loss of $15 million across all platforms. Yet from the Further Correction it is clear that Media Watch does not accept that an error to the tune of $35 million is ‘hopelessly wrong’. In the Further Correction, Media Watch

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 31

concedes that the ‘insider’ had made a mistake, but nowhere in the further correction does Media Watch concede its errors. This is a clear breach of section 3.1 of the Code in that Media Watch has failed to acknowledge its error. 4. Finally, we say that the ACA [Audience and Consumer Affairs]’s response fails to appreciate the potential consequences of such misleading statement on The Australian’s business, and for the importance of compliance with the Code and the practice of ethical journalism. …

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 32

Attachment D

ABC’s submissions - extracts

Submissions on the first broadcast

To the complainant on 21 February 2014:

We note today’s letter from [your] lawyers regarding last week’s Media Watch episode in which we quoted sources who informed us “The Australian is losing $40 to $50 million dollars a year.”

If that is indeed the case we are more than happy to correct the record: however, in order to do so we would seek your answers to the following questions: 1. Did The Australian lose money in FY2012-13 2. If so, how much money did it lose? 3. If it turned a profit in 2012-13 how much money did it make? 4. What is its total profit or loss for The Australian over the past seven financial years?

Because of our production deadlines we require a response by 10am Monday 24th February.

To the complainant on 24 February 2014: …

The allegations in your letter are denied. Specifically, we are instructed:

1. The statement concerning your client was based on information provided to Media Watch by sources reasonably expected to have the requisite knowledge; 2. The statement concerning your client was, within the Broadcast, made referable to ‘insiders’ rather than a bald assertion of fact; and 3. There was no obligation or journalistic imperative to seek a response from your client in the circumstances of this Broadcast.

Media Watch will, however, confirm your client’s response to the statement in tonight’s episode. The program maker’s are not in a position to accept your client’s response as a matter of fact as sought in your letter.

… we have referred your correspondence to the ABC’s Audience & Consumer Affairs section for their consideration and in accordance with usual procedures.

To the complainant on 12 March 2014: …

Your complaint refers to the statement by Paul Barry that:

“Insiders tell Media Watch that The Australian is losing $40 million to $50 million a year.”

This statement does not constitute an allegation as it is intended to be understood in section 5.3 of the Code. There is no suggestion by either ABC or any other party that the losses are the result of any improper action or malfeasance on the part of News Corp or any of its staff. Rather, this is a factual

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 33 statement attributed to its source. Accordingly, Audience and Consumer Affairs are satisfied that the broadcast was in keeping with section 5.3 of the Code.

… Media Watch has advised that it had three confidential sources for this statement … The estimate was clearly attributed; viewers would have understood that the figure cited lacked precision and that it was not a formal response from News Corp itself.

As part of the research process for the same program, I understand [employee] from Media Watch asked [employee] from News Corp for data on digital subscriptions. He declined to provide any information that was not already on the public record.

The program made the judgement that asking for further confirmation from The Australian or from executives at News Corp regarding the figure of “$40 million to $50 million a year” would be fruitless.

As your letter states, it is true that Mr Mitchell did an interview with Jonathan Holmes in 2010, however, Mr Mitchell did not provide information on the financial performance of The Australian beyond saying that the two years after the GFC were “difficult times”.

Further, Audience and Consumer Affairs notes that it is normal practice for large listed companies not to reveal the financial position of individual business units except in statements released through the ASX. It is clearly at the discretion of the company whether to reveal this information.

… having three sources that are judged reliable and well-informed is sufficient confirmation to publish an attributed estimate. In the circumstances, the efforts made by Media Watch to ensure the accuracy of the statement were reasonably and did not breach ABC editorial standards.

When the ABC received your letter on 21 February, which stated that the estimate was “factually incorrect”, the executive producer of Media Watch wrote to Mr Mitchell on the same day offering him the opportunity to correct the record. [The executive producer] asked four questions:

1. Did The Australian lose money in FY 2012-13

2. If so, how much money did it lose?

3. If it turned a profit in 2012-13 how much money did it make?

4. What is its total profit or loss for The Australian over the past seven financial years? This indicates a willingness to report the information accurately and to resolve the complaint from The Australian. Mr Mitchell declined at that point to provide a response to Media Watch.

In a video-taped interview with The Australian’s media editor, Sharri Markson, posted on The Australian’s website on 24 February, Mr Mitchell conceded that The Australian had lost money since 2008.

In the program of 24 February Media Watch reported your statement from the letter of 21 February that Media Watch’s estimate was wrong and reported Mr Mitchell’s statement that The Australian had lost money since 2008.

The next day Mr Barry because aware that Ms Markson had reported on The Australian’s website that Mr Mitchell had told her that The Australian was “in the ballpark” to meet its budget of a loss of $15m for this financial year, which would have its year to year loss.

Mr Barry again sough clarification, asking Mr Mitchell in an email to confirm his (Mr Barry’s) calculation that the losses, therefore, were “$10m to $12.5m for the current FY and $20m to $24m for the FY just passed”?

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 34

Mr Mitchell replied:

“My Budget for this year is minus $15 million in total across print and digital. We are well in the ballpark ...”

Media Watch accepted that the original estimate was not correct and published a clear correction at the earliest opportunity on its website on 26 February. Corrections have also been inserted in the transcript of the original story, which is available on the Media Watch website and published on the Media Watch corrections page …

Audience and Consumer Affairs consider the actions taken by Media Watch were adequate and appropriate in all the circumstances to resolve and to redress the cause of the complaint.

…

To the ACMA on 2 May 2014:

1.1 Why the ABC considers it was reasonable to rely on information provided by these sources.

The only way to get a snapshot of the financial situation facing The Australian was to rely on unnamed sources. The company does not and has never released this information. The individual financial results for News Corp newspapers have long been a guarded secret. They are not publically disclosed or itemised in the company’s annual results.

The […] sources were […] who had been privy to official information about the financial performance of The Australian over the previous 18 months. … It was reasonable for Media Watch to trust them and nothing that has transpired since our initial reporting makes us doubt the quality of their information.

All [sources] refused to go ‘on the record’ but were happy to talk provided they were not identified.

The numbers provided by these sources fell into the band of $40m to $50m. Media Watch was careful to reflect this range, rather than report a definitive number. The program made the claim perfectly clear: “Insiders tell MW that The Australian is losing $40m-$50m a year”. The program was careful to source that number to “insiders” rather than state it as a known fact.

Media Watch regularly relies on confidential sources. Every week the program deals with sensitive information. Critiquing the media is a highly sensitive and contested area. The use of unnamed sources is common and often the only way the program can cover a particular issue. It is important to note that the Media Watch program was a broad look at the financial challenges facing all newspapers in Australia. It was not a critique of The Australian or its fiscal position.

1.2 The ABC’s internal procedures for verifying the veracity of information from unnamed sources.

The processes of verification undertaken to verify the veracity of information from unnamed sources will depend entirely on the specific circumstances of each situation. ABC content makers have regard to the principles of section 2 of the Code of Practice, as well as the guidance note Accuracy: News, Current Affairs and Factual Content, to determine what steps are appropriate to verify such information. In particular, the principles state as follows:

“The ABC requires that reasonable efforts must be made to ensure accuracy in all fact-based content. The ABC gauges those efforts by reference to:

• the type, subject and nature of the content;

• the likely audience expectations of the content;

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 35

• the likely impact of reliance by the audience on the accuracy of the content; and

• the circumstances in which the content was made and presented.”

1.3 The steps taken to verify the veracity of the information in this instance.

Media Watch presenter Paul Barry spoke personally, by telephone, with … the sources on several occasions, including an initial call and follow up calls for clarification. Media Watch [employee] spoke with … on one occasion. This information was then discussed with the program’s Executive Producer. The information provided was then cross checked with what is known about the financial pressures facing News Corp newspapers.

This included a close look at the News Corporation documents filed with the US Securities and Exchanges Commission in 2013. It revealed that News Corporation’s Australian newspaper revenues fell by $350m compared to the previous year.

A summary of that report can be found here: http://mumbrella.com.au/news-corps-australian-newspaper-revenues-fall-350m-three-times-fairfax- 179273

The financial numbers provided by the … Media Watch sources were cross checked with previous reports on the financial situation facing The Australian. The figures provided by the … Media Watch sources were consistent with previous reporting on the issue. For example, on August 5, 2013, [reporter] wrote in the Australian Financial Review.

“But several informed sources tell the Financial Review that newspaper revenues have tanked. Losses at The Australian last financial year are understood to have hit $36 million.” http://www.afr.com/p/national/allan_puts_punch_back_into_news_hHeGfA2cYTy02WpFU7AUjJ

It is important to note that journalist [reporter] used a different News Corp source than those used by Media Watch. The article claimed that the figure came from someone at News with direct access to the accounts. We know the alleged identity of the source and can confirm that he/she would absolutely have been in a position to know.

Media Watch notes that News Corp has a long history of not commenting on the finances of its Australian newspapers. This includes coverage in its own papers, as can be seen here in this article written by The Australian’s Mark Day in August 2013.

While masthead financial details are tightly held within News, it is apparent that the bottom line of the Australian operations - crucial to the performance of the new News Corp worldwide publishing business - is under pressure. The issue is that revenue is falling faster than costs. http://www.theaustralian.com.au/media/opinion/data-driven-boss-at-odds-with-news-culture/story- e6frg9tf-1226695119662

While undertaking research for the program Media Watch asked News Corp for specific figures on its digital subscription numbers, the program was told this information would not be provided. At no time did Media Watch consider any information would be provided by News Corp on the financial figures for different mastheads. This was consistent with the public position the company has always taken. Media Watch was confident in the accuracy of the information provided by its three sources, especially given the nature of the claim - the program was not alleging a criminal or immoral act, or any breach of ethics.

It is only through this program’s reporting that we now know the true financial situation facing The Australian, as reported in our correction posted on the Media Watch website on February 26, 2014.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 36

Submissions on the second broadcast

To the complainant on 17 April 2014:

…

As Audience and Consumer Affairs previously outlined, the statement, “Insiders tell Media Watch that The Australian is losing $40 million to $50 million a year” does not constitute an allegation as it is intended to be understood in section 5.3 of the Code. However, Audience and Consumer Affairs agree that the statement constituted a material fact as it is intended to be understood in the Code. As previously advised, on review Audience and Consumer Affairs are satisfied that the efforts made by Media Watch to ensure the accuracy of the statement were reasonable and were in accordance with ABC editorial standards.

Notwithstanding that reasonable efforts were made, on 24 February Media Watch reported your statement from the letter of 21 February that the program’s estimate was wrong. You have asserted that the audience was misled because this program did not include the section of the 24 February interview conducted by The Australian’s Sharri Markson with Chris Mitchell in which he said that “$50m is ridiculous” and the losses were “a fraction of the number that Paul Barry quoted”.

However, at that point in time Mr Mitchell had not quantified the extent of the paper’s losses, either in the interview with Ms Markson or with Media Watch directly. It was not clear what losses The Australian had incurred in 2012-2013 or what losses are anticipated for 2013-2014. Nor was it clear from Mr Mitchell’s statement whether the estimate broadcast by Media Watch, actually a range of $40m - $50m, was “a fraction” of 2012-2013 or of 2013-2014.

At the time of the 24 February broadcast, Mr Mitchell had not responded to questions sent by the executive producer to Media Watch on 21 February asking: 1. Did the Australian lose money in FY 2012-13 2. If so, how much money did it lose? 3. If it turned a profit in 2012-13 how much money did it make? 4. What is its total profit or loss for The Australian over the past seven financial years?

Nonetheless, Media Watch reported on the 24 February episode that The Australian said the figure of $40m-$50m was inaccurate; and that Mr Mitchell had confirmed that the newspaper was losing money. The program website also included a link to the full interview between Ms Markson and Mr Mitchell. However, without further clarification from Mr Mitchell or News Limited the extent of the error was still unknown despite the program making reasonably efforts to find out.

Accordingly, Audience and Consumer is satisfied that the Media Watch segment broadcast on 24 February included an accurate summary of what was known at that time and was not misleading and was in keeping with section 2.2 of the Code.

The next day, on 25 February, Mr Barry became aware that Ms Markson had reported on The Australian’s website that Mr Mitchell had told her that The Australian would “halve its loss this financial year. He said it would be about a quarter of what Media Watch alleged.”

Mr Mitchell confirmed to Mr Barry that losses for the current financial year are estimated to be approximately $15m, implying a loss of about $30m in 2012-2013.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 37

The estimate was based on a combination of Mr Mitchell’s comment to Ms Markson and on the following email exchange between Mr Mitchell and Mr Barry:

From: Paul Barry to Chris Mitchell, 25 February, 2014 03:32 PM

Hi Chris, just caught up with Sharri Markson’s piece in which she quotes you as saying that the Australian is on track to halve its loss this financial year and that those losses will then be about ¼ of the $40m to $50m that Media Watch reported. My maths makes that $10m to $12.5m for the current FY and $20m to $25 m for the FY just passes. Is that correct and official? Thanks. Paul

From: Chris Mitchell to Paul Barry, 25 February, 2014 3:36 PM

You think you are capable of quoting me accurately?

From: Paul Barry to Chris Mitchell, 25 February, 2014 3:44 pm

Just asking for confirmation: $20m to $25m last FY, half that in this current FY, and hope to break even in next FY

From: Chris Mitchell to Paul Barry, 25 February, 2014 5:04 PM

My Budget for this year is minus $15 million in total across print and digital. We are well in the ballpark. My CEO Nicholas Gray is happy to agree.

From: Paul Barry to Chris Mitchell, 25 February, 2014 5:17 PM

Great. Happy to publish that. And the previous FY double that as per your iv with Sharri Markson you are on track to have the Australian’s losses this FY? Thanks, Paul.

From: Chris Mitchell to Paul Barry, 25 February, 2014 5:18 PM

So will that like you correcting your $50 million figure Paul? On the record. Like newspapers do on page 2 every day?

From: Paul Barry to Chris Mitchell, 25 February, 2014 5:44 PM

We will certainly correct the record. We’ll put it on the website and add it to the transcript. But I do need last year’s figure as well, which is now looking like $30m. Paul

From: Paul Barry to Chris Mitchell, 25 February, 2014 5:44 PM

I’ll agree to run it on the prog too but only when we get that $30m figure NAILED. Are you ok with that? P

From: Chris Mitchell to Paul Barry, 25 February, 2014 6L19:53 PM

Trying to put out a paper here mate but this is a non sequitur. Our complaint was about your figure for this year. Can’t remember anything from your side about last year. We are with the ACMA anyway.

Media Watch published a clear correction referring to the figure of about $30m on 26 February: http://www.abc.net.au/mediawatch/transcripts/s3952820.htm and has amended the transcript of the original program: http://www.abc.net.au/mediawatch/transcripts/s3946698.htm.

Audience and Consumer Affairs are satisfied that these actions were in accordance with the requirements of section 3.1 of the Code.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 38

Attachment E Some considerations to which the ACMA has regard in assessing whether or not particular content is factual content for the purposes of the Code

 In practice, distinguishing between factual content and other content, such as opinion, can be a matter of fine judgement.  The ACMA will have regard to all contextual indications (including subject, language, tenor and tone and inferences that may be drawn) in making its assessment.  The ACMA will first look to the natural and ordinary meaning of the language used.  Factual content will usually be specific, unequivocal and capable of independent verification.  The use of language such as ‘it seems to me’ or ‘we consider/think/believe’ will tend to indicate that the content is contestable and presented as an expression of opinion or personal judgement. However, a common sense judgement is required and the form of words introducing the relevant content is not conclusive.

 Statements in the nature of predictions as to future events will rarely be characterised as factual content.

 Statements containing hyperbole will rarely be characterised as factual content.  The identity of the person making a statement (whether as interviewer or interviewee) will often be relevant but not determinative of whether a statement is factual content.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 39

Attachment F

Correction published on 26 February 2014 Correction

In our program on 17th February we reported: “Insiders tell Media Watch that The Australian is losing $40 million to $50 million a year”.

The Australian has assured us that this $40 million to $50 million figure is 'factually incorrect'. Media Watch is happy to correct the record.

We now know this much:

1. The Australian has not made a profit since the GFC in 2008.

Editor-in-Chief Chris Mitchell told Mumbrella this on 24th February and made a similar admission to The Australian’s media editor Sharri Markson (video) the same day.

2. The Australian is likely to lose around $15 million in 2013-14.

Chris Mitchell told Media Watch in an email on Tuesday 25th February

“My Budget for this year is minus $15 million in total across print and digital. We are well in the ballpark. My CEO Nicholas Gray is happy to agree”

— Chris Mitchell, Editor-in-Chief, The Australian, email to Media Watch, 25th February 2014

3. The Australian appears to have lost around twice as much as this—or $30 million—in 2012-13.

Sharri Markson quoted Chris Mitchell (video) on 25th February saying The Australian is on track to ‘halve its loss this financial year’.

Media Watch subsequently asked Chris Mitchell to confirm that the loss for 2012-13 was therefore in the region of $30 million. He declined to confirm or deny this figure.

Media Watch accepts that the insiders’ figure of $40 million to $50 million was too high. However, we do not accept it was ‘absurd’ or ‘hopelessly wrong’ as The Australian’s Strewth column claimed on 18th February, or that it was 'ridiculous', as Chris Mitchell asserted on 24th February. Nor does Media Watch accept Chris Mitchell’s claim that Paul Barry deliberately misled his audience .

You can read the full email exchange with Chris Mitchell here .4

4 See http://www.abc.net.au/mediawatch/transcripts/s3952820.htm.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 40

Attachment G

Transcript of interview (‘The future of The Australian: The Australian’s editor-in-chief Chris Mitchell responds to Media Watch’)

Ms Markson: Hi, my name is Sharri Markson and I’m Media Editor of The Australian newspaper. Last Monday on Media Watch, Paul Barry had a very pessimistic view of the newspaper industry. So I’m here today to speak to The Australian newspaper’s editor-in-chief, Chris Mitchell, to find out what the real story is and just how long we can expect newspapers like The Australian to continue.

Ms Markson: Thanks for joining us today Chris.

Mr Mitchell: You’re welcome Sharri.

Ms Markson: What did you think of Paul Barry’s report on Monday? It was a very bleak view of the industry. Do you think The Australian has a brighter future than he predicted?

Mr Mitchell: I think there’s two ways of thinking about the future of our business. There’s the people such as Greg Hywood and, you know, our former CEO Kim Williams, who believe the task is to get to a digital future as quickly as possible. And I think, you know, the other view is that print has some future and we’re determined to extract dollars out of that for as long as we can on the way to building a digital future. I think in our company and certainly at The Australian you’d find that more than 90 per cent of our ad revenues still come from print even though we’ve built quite a growing digital business and this week we have 65,000 paying subscribers. Still, there’s a dime for every dollar we make in print.

Ms Markson: Yeah, it’s still a profitable business, for sure.

Mr Mitchell: Well, you know, it’s probably not profitable on The Australian. As people have noticed, we’ve had a hard time since the GFC. But, the idea that we’re losing 50 million dollars is ridiculous.

Ms Markson: Those figures are incorrect?

Mr Mitchell: Completely incorrect. We’ve never gone even close to that. You know, we’ve had, like most newspapers, we’ve lost classified advertising. I think the aim of the game in paper is to lift your display advertising and lift your cover prices and then the balance that you lose from classifieds you need to try to make up with digital. Now, have we made that up? No, we haven’t but we’ve cut costs pretty effectively and I would think we’ll go close to halving our loss from last year this year. So, we’ll be a fraction of the number Paul Barry quoted.

Ms Markson: And there’s strong growth in digital subscriptions for The Australian as well. Can you tell me a bit about your strategy there and how you are getting people to pay for this content?

Mr Mitchell: Well, I think The Australian’s had a pretty clear idea of what it does. So, our sort of unique sales proposition, our comparative advantage is with a highly educated audience, high income earners, people who make decisions in business, in politics, in bureaucracy and universities. We did a lot of work interviewing people for a year before we put the paywall up. We followed the model set by the Wall Street Journal which has been very successful so we introduced a freemium model. So much of the driver for us is exclusive news so, you know, I’m regularly criticised by Crikey for the number of red exclusives but they’re quite important for driving digital subscriptions. Now, obviously, audited figures from the Audit Bureau of Circulation are a lagging indicator: we declared 57,500 at the last audit. Probably this week we’re on about 65,000. Unlike Fairfax, we don’t declare bundle sales, so, if I added the extra 10,000 that we don’t claim that would be 75,000 now. So, given our average Monday to Friday

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 41 circulation is about 110,000, 115,000, we passed half-way quite a long time ago and not many papers in the world have.

Ms Markson: When you talk about, you know, being criticised for having the red exclusive banners, it’s so telling that the day when The Australian managed to more than double its digital subscriptions was off the back of the ABC salary story. It just shows the appetite that people have for great, exclusive content.

Mr Mitchell: yeah, I think that’s right. And I think that was probably our most successful day apart from the very first day we launched the paywall. So, yeah, good stories drive subscriptions.

Ms Markson: Now, before we go, I did want to ask you about the Media Watch report on Monday. A lot of the information was completely wrong and incorrect as you said. Has it been commercially damaging and what have you done about that?

Mr Mitchell: Well, I mean, we’re writing to the ABC about it. Look, I don’t think it has been damaging but I do think there’s a pretty concerted effort by media rivals, and particularly people at the ABC, to sort of paint The Australian as some loss-making hole in the ocean. Well, that’s not right, and I wouldn’t think they’d give us so much attention if they were completely unperplexed by our journalism. I think they’re actually quite perplexed about it. I mean, if I look carefully at the future and, you know, our opportunity with bundling content with Business Spectator and Eureka Report and our relationship with The Wall Street Journal, and The Times of London, I would think The Australian probably has the best future in the digital world. I would also say that because we’ve got this quite unique sales proposition and we’re not on the left where most journalism is these days, we’re probably fishing in a pond pretty much alone or with the fin review. Whereas most of the other media are fishing in the same pond as the ABC, the BBC, The Guardian, and other new entrants. So, I think the truth is the market that we’re targeting is much more likely to think like The Australian does. And they’re much more likely to pay for it because they want an alternative.

Ms Markson: Powerful bureaucrats, politicians, academics, media types,

Mr Mitchell: That’s right. You look at the emma [Enhanced Media Metrics Australia] data, you know, we’re sitting at 1.3 million readers a month. Which compares with four million for the Herald Sun and 4.5 million for the Sydney Morning Herald. So, in fact, that’s quite a big audience for us. It’s three times the fin review audience, and pretty close to the audience of the Herald Sun in Melbourne.

Ms Markson: And, what was the nature of the complaint to Mark Scott this week regarding Media Watch?

Mr Mitchell: Well, you know, it was to their lawyers but you know, we’ve asked for a clarification.

Ms Markson: A correction?

Mr Mitchell: Yep.

Ms Markson: Yep, and have you written to anyone in the Federal Government as well or just to the ABC at this point?

Mr Mitchell: Just to the ABC, yep.

Ms Markson: Okay. Thank you very much for your time Chris, and speak to you next time.

Mr Mitchell: Thanks Sharri.

ACMA Report into investigations 3195 and 3224 – Media Watch broadcast by ABC1 on 17 and 24 February 2014 42

Attachment H

ABC Guidance Note: Fair opportunity to respond Issued: 12 December 2011

Status of Guidance Note

This Guidance Note, authorised by the Managing Director, is provided to assist interpretation of the Editorial Policies to which the Guidance Note relates. The Editorial Policies contain the standards enforceable under the ABC’s internal management processes and under the ABC’s complaints handling procedures.

It is expected the advice contained in Guidance Notes will normally be followed. In a given situation there may be good reasons to depart from the advice. This is permissible so long as the standards of the Editorial Policies are met. In such situations, the matter should ordinarily be referred upwards. Any mandatory referrals specified in Guidance Notes must be complied with.

Key Editorial Standards

Excerpts of key editorial standards relevant to this Guidance Note are set out below. Other editorial standards may also be relevant, depending on the specific circumstances applying in each case.

5 Fair and honest dealing

Opportunity to respond

5.3 Where allegations are made about a person or organisation, make reasonable efforts in the circumstances to provide a fair opportunity to respond.

Mandatory referrals

In the rare circumstances in which it seems necessary for the ABC to report serious allegations without first seeking a response at all, it is mandatory to refer up and consult Legal.

In addition to the mandatory referral to ABC Legal in editorial standard 5.9, staff are required to refer all content matters with legal implications to ABC Legal for advice. See the Consulting ABC Legal Guidance Note for further information.

Scope

The ‘Note on Interpretation’ at the outset of the Editorial Policies – Principles and Standards draws attention to the need to apply standards with due regard for the nature of the content under consideration in particular cases. Section 5.3 applies to news and current affairs and other types of factual content, such as documentaries.

The focus of this Guidance Note is on the provision of a fair opportunity to respond prior to disclosure of allegations. When allegations are made during live content it is necessary to consider offering an opportunity to respond in the ordinary course of ongoing coverage (see below ‘What if allegations are made in a live broadcast?’).

This Guidance Note does not apply to –

 content that is found to be flawed after broadcast or publication and an opportunity to respond is provided as part of the editorial remedy; or

 content genres in which the provision of an opportunity to respond is not a recognised standard – criticism and review of artistic works is one example; comedy and satire is another.

The editorial standard in section 5.3 should not be taken to change the usual conventions for fair reporting of courts, commissions of inquiry and other proceedings in which the person who is the subject of allegations has an opportunity in due course to respond in those proceedings.

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Why the requirement to provide a fair opportunity to respond?

In the course of fulfilling its statutory duty to provide independent news and information, the ABC reports allegations including about action or inaction that may be unlawful, improper, incompetent, negligent, corrupt, dishonourable or anti-social. To make such disclosures in the public interest is a core function of the media in a free society.

One of the recognised standards of journalism is the provision of an opportunity to respond to allegations. It is fundamental to fairness. Providing an appropriate opportunity to respond to allegations – and adequately and fairly including that response in the story – can also make the difference between having or not having a defence in some legal contexts. For example, the law may excuse defamatory material which cannot be proved to be true if, among other things, the broadcaster made a reasonable attempt to obtain and present a response from the person who claims to have been defamed.

Seeking a response can help to achieve accuracy by providing an opportunity for errors to be identified and misunderstandings to be clarified.

Obtaining a response can also contribute to the quality of a piece of journalism by enriching the detail, sharpening the point or opening fresh angles of enquiry.

How much information should be given to the respondent?

The opportunity is more likely to be regarded as fair if you err on the side of clarity and precision rather than be vague and broad about what is being alleged and the basis for it.

Provide sufficient information to allow the person or organisation to understand the allegation and its basis. It is not usually enough to tell the person that you wish to talk to them about some general topic. Even if you believe the person is familiar with the allegations already, you should not assume that and should set out the relevant information.

Subject to any specific need to keep the identity of a source confidential, it is preferable if the person is told the source of the allegations as that information may enable the person to provide a more detailed and effective response. Summaries should be accurate. In most cases there is no need to provide access to the raw material on which allegations are based.

Bear in mind the need to ensure practical protection of sources – see the Attribution / anonymity of sources Guidance Note.

How much time should be allowed for a response?

The person must be given a reasonable time to respond. The amount of time which it is reasonable to allow for a response before the allegation is made public depends in every case on the circumstances. No set formula can or should be fixed. What is a reasonable time will be determined by looking at the situation from that person’s perspective – not the perspective of the media. If the matter results in legal action, it is unlikely that a court would give any weight to the fact that the media wanted to publish a story at a particular time, except in rare circumstances such as where disclosure is urgent in the public interest, for instance where public safety is at immediate risk.

The urgency for disclosure will vary in different situations. While it is preferable to carry responses in the same piece of content that makes the allegation – preferable for the audience as well as the subject – it is not always possible. Urgency for disclosure in the public interest will ordinarily have greater weight than the urgency felt from competitiveness with other media outlets or the self-imposed urgency that scheduling or other internal factors can generate. Where there are legal issues, it may be critical that the response is carried in the same piece of content that makes the allegations.

The amount of time to allow will depend on factors such as –

 the complexity of the issues raised;

 the extent to which the person or organisation already had knowledge of the allegation and its basis;

 language difficulties, remote locations, or the number of links in a chain of communications between the subject and the ABC;

 the possibility the person may need to locate records to refresh his/her memory;

 the significance of other matters which the person may have to deal with at the same time; and

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 the extent to which the subject of the allegations is media savvy or inexperienced with media.

If at all possible, communicate with the person directly. Contacting a person’s advisors or representatives may not be sufficient, even if the person has a reputation for being associated with the advisor or representative. For example, contacting a company for comment about the conduct of one of its directors may not be sufficient from a legal point of view. When dealing with an advisor or representative, always stress that it is important the person himself/herself be notified and involved. There are some situations, however, where it is likely to be acceptable to deal with an advisor or representative, such as where the advisor or representative is also the person’s lawyer or their personal media advisor. For senior politicians, for example, dealing through their authorised spokesperson will be sufficient in most situations.

By what methods?

Provide the opportunity to respond – and be willing to receive a response – by whatever methods are available and appropriate in the circumstances. It may be through personal meetings, email, phone, fax or other means of contact. Intermediaries may assist. Social media (such as Facebook, Twitter or LinkedIn) may facilitate contact. Responses can be oral or written. The opportunity to respond can occur on-air (e.g. during a recorded interview) or off-air (e.g. where the subject is telephoned and notes of their response made).

If a person will not be participating in a recorded interview, it is useful to make written enquiries by letter, fax or email, setting out the allegations as described above. This provides evidence which can be used in court. If a person refuses to take calls, making written enquiries provides good evidence of having made a reasonable attempt to obtain a response from the person.

In some cases, where conventional methods have not worked and the issue is serious or the urgency great, it may be necessary to doorstep a person. If a response is sought from a person but further investigations call into question aspects of that response, it will often be necessary for the person to be given a further opportunity to respond to the apparent flaws in, or problems with, the person’s initial response.

Conveying the response to the audience

Once obtained, a response should be treated fairly and accurately. It may generate new angles of enquiry. The manner in which the response is conveyed to the audience is a matter of editorial discretion. A response need not necessarily appear in full or verbatim.

If the person provides a response, it is usually necessary for that response to be in the initial story and any other story reporting the same matters. This is particularly the case where the allegation is later the subject of a defamation or other legal action. It is usually irrelevant to the question of legal liability that the response was put in a subsequent story.

A response should be reported in such a way that a reasonable audience member would understand how the response that was received by the ABC addressed the allegations that were put to the subject of the allegations.

A response needs to be included in the story in appropriate detail and presented reasonably. Simply stating that the person ‘denies the allegations’ may not be sufficient if the person provided a more detailed response. For example –

 The more detailed and complex the allegations, the more likely that it will be necessary to include the person’s response in some detail so that the connection between the person’s response and the key issues involved is made clear to the audience.

 If a story contains an ‘attack’ on a person and the person’s response is reduced to one or two seemingly ‘obligatory’ or ‘throw away’ statements, or the response is presented sarcastically, it may appear that the audience is being led to give little or no weight to the person’s response. That may result in a court or complaints-handling body concluding that the person’s response has not been adequately and fairly presented.

It is not advisable to present a person’s response and follow it with further material that throws doubt on the veracity of the person’s response.

What if no response can be obtained?

Some subjects of allegations avoid, ignore or decline opportunities to respond. They cannot, by withholding a response, control whether the ABC discloses information which may be adverse to them. Inability to obtain a response will not prevent the ABC from disclosing allegations where it is appropriate to do so.

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Keep notes of unsuccessful efforts to provide opportunities to respond. When the allegations are broadcast or published, it is usually appropriate to let audiences know that efforts were made to get a response. It can boost credibility and engender trust. Give as much detail about the efforts as is editorially appropriate.

In some circumstances, there may be sufficient public interest in publishing quickly such that the person to whom allegations relate need not be afforded an opportunity to respond. This could happen, for example, where the public needs to be informed about a person for whom the police are searching and who is considered dangerous. However, such situations are rare and the story would need to be carefully worded.

More generally, legal advice should be obtained for all stories which may contain defamatory material or have other legal risks so that the risks can be assessed and discussed prior to publication.

In the rare circumstances in which it seems necessary for the ABC to report serious allegations without first seeking a response at all, it is mandatory to refer up and consult Legal.

Assessing ‘reasonable efforts’

Whether the efforts made are reasonable to provide a ‘fair opportunity to respond’ must be judged according to the particular circumstances of every case. Factors to consider include the following –

 The extent to which the person or organisation is the focus of the allegations –

Not every person or organisation mentioned in a story is affected to the same degree. The impact of allegations on some may be heavier than on others. This affects assessments about who ought to be provided with an opportunity to respond and, if so, what efforts are required to make the opportunity a fair one in the circumstances.

 The seriousness of the matter –

Efforts to provide an opportunity to respond should generally be commensurate with the seriousness of the allegation. A matter can be innately serious – for example, an allegation of high-level corruption. A matter can be serious because of its effects or implications, even though the core behaviour is not innately grave. For instance, a health official or police officer may act or not act through simple negligence, inadvertence, or a judgement call. But the effects of their decision may be such that the matter becomes serious.

Depending on the circumstances, variables which may be relevant in assessing ‘reasonable efforts’ in general or ‘seriousness’ in particular, include –

o The characteristics of the subject in light of the nature of the allegations –

To illustrate: is it a party of touring rock musicians or a conference of school principals which is accused of anti-social behaviour in a hotel?

o The age of the allegations or of their factual basis –

To illustrate: is the claim that the nominee for judicial office drove recklessly in his or her youth, or that he or she has been flouting the rules of the road more recently? Will certain allegations be just as serious for, say, a priest, no matter how old the allegations or their factual basis may be?

o The situation of the subject at the time the allegations are to be disclosed –

To illustrate: a claim that an MP never completes expenses-related paperwork has different implications depending on whether it is made in a story about the MP’s impending retirement or in a story two days prior to voting in a tight election in which the MP is standing in a marginal seat.

 The complexity of the matter –

The importance of a response tends to increase in proportion to the complexity of the allegations and their basis, simply because there is greater risk of misunderstanding or incorrect information. Complexity can include complicated facts, detailed or interweaving chronologies, multiple disputed recollections, incomplete or jargon-laden documentation, statistical data or interpretations by experts in specialised fields such as finance, science or law.

 The directness of the approach –

Directness is relevant in two senses. First, consider the need for efforts to make direct contact, as distinct from indirect contact, with the affected person, having regard to the extent of focus on them and the likely impact on them of disclosure of the allegations. Second, how direct, in the sense of up-front and clear, is the information provided to the affected person about what they are being asked to respond to?

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What if allegations are made in a live broadcast?

The core of the editorial standard is fairness. Where it can be reasonably expected that allegations are going to be made in a live broadcast, plan for it to the extent practicable in the circumstances. The advice given above can help.

Where allegations are made unexpectedly during the course of a live broadcast, reasonable efforts should be made to treat fairly the person who is the subject of the allegation, recognising the context is a live broadcast. For example, a presenter may remind the audience that what has been said is simply an allegation. A presenter may challenge the maker of the allegation for evidence. Depending on the circumstances, an initial response may be received by phone, text or tweet in time for the substance of that response to be fairly conveyed to the audience who heard the allegation made live. Where no response is obtained live, consider giving the audience notice that the subject of the allegation will be given an appropriate opportunity to respond in future, if not on air then online.

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