Investigation Report No. 2987
File No. ACMA2013/288
Licensee Channel Seven Melbourne Pty Ltd
Station HSV Melbourne
Type of Service Commercial television
Name of Program Seven News
Date of Broadcast 13 December 2012
Relevant Code Clause 1.9.6 of the Commercial Television Industry Code of Practice 2010
Date Finalised 1 May 2013
Decision No breach of clause 1.9.6 (severe ridicule on grounds of national origin)
ACMA Investigation Report 2987 – Seven News broadcast by HSV on 13/12/12 The complaint The complaint is that the sports presenter was racist towards Koreans during Seven News on 13 December 2012. The complaint has been investigated in relation to cause 1.9.6 of the Commercial Television Industry Code of Practice 2010 (the code).
Matters not pursued The complainant alleged that the presenter’s action had contravened section 18C of the Racial Discrimination Act 1975. The ACMA does not have jurisdiction to make findings in relation to the Racial Discrimination Act.
The program On 13 December 2012, the licensee broadcast the following item during Seven News: Presenter: North Korea has released the first pictures of the rocket launch that supposedly put a satellite into orbit, and raised fears about the country’s ability to fire missiles across the Pacific to the United States. There’s been dancing in the streets and a North Korean news reader couldn’t contain her joy. North Korean news reader: [Speaks in Korean – 2 seconds – no subtitles] Presenter: The launch is seen as a major boost for Kim Jong-un on his first anniversary as leader.
This was followed by another news item. The following exchange between the presenter and the sports presenter then took place: Presenter: Sports next with [name of sports presenter]. Sports presenter: What did that Korean newsreader say again? Presenter: [Laughs]: I don’t know. Sports presenter: [Unintelligible sounds – 1 second] [Presenter and sports presenter laugh] Sports presenter: Anyway, locally ... [Sports report follows]
Assessment This investigation is based on submissions from the complainant and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant. In assessing content against the code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable viewer’. Australian courts have considered an ‘ordinary, reasonable reader (or listener to 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
ACMA Investigation Report 2987 – Seven News broadcast by HSV on 13/12/12 2 does read between the lines in the light of that person’s general knowledge and experience of worldly affairs1.
The ACMA asks, what would the ‘ordinary reasonable viewer’ have understood this program to have conveyed? It considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any). Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the code.
Relevant code clause
Clause 1.9.6 Proscribed Material 1.9 A licensee may not broadcast a program ... which is likely, in all the circumstances, to: 1.9.6 provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference.
The general approach adopted by the ACMA in assessing broadcast material against clause 1.9.6 is set out at Appendix 1.
Complainant’s submissions The complaint to the licensee included:
[The sports presenter], on national TV, racially vilified and abused the Korean people by his racist ululation.
To the ACMA, the complainant stated that the sports presenter had
racially vilified Koreans and Asians in general. I am shocked by the lack of response by his co-presenter ... Racial vilification, mimicking another culture’s accent in part, in jest or in full, especially on national television, is racist!
Finding The licensee did not breach clause 1.9.6 of the code.
Reasons Clause 1.9.6 refers to three effects: dislike, contempt and ridicule. The complainant did not specify which of the effects he considered relevant. However, given that the material impugned involved laughter by the sports presenter and the presenter, the ACMA has taken it that the relevant effect is ridicule.
1 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167.
ACMA Investigation Report 2987 – Seven News broadcast by HSV on 13/12/12 3 Clause 1.9.6 refers to an effect on ‘a person or group of persons’. The complainant’s concern, in his complaint to the licensee, was with a group of persons, namely Koreans. The broadcast mimicked one particular person (the North Korean newsreader) but the basis of the mimicking was the language she was speaking, namely Korean, which is spoken by all Koreans. The ACMA has therefore taken it that the target was Koreans. In his complaint to the ACMA, the complainant added ‘Asians in general’. The ACMA does not accept that the broadcast targeted Asians in general. There was no mention of Asians in general in the broadcast, and it would not be a reasonable inference, from the material that was broadcast, that the sports presenter was ridiculing Asians in general. Clause 1.9.6 also refers to a number of grounds. From the complaint and the broadcast, the relevant ground is national origin (North and South Korean). Accordingly, the issue for examination is whether Seven News, broadcast on HSV on 13 December 2012, was likely, in all the circumstances, to have provoked or perpetuated severe ridicule against Koreans on the ground of their national origin. The material impugned was likely to have provoked or perpetuated ridicule against Koreans on the ground of their national origin; however, the ACMA considers that this ridicule was not ‘severe’ enough to have constituted a breach of the code. The sports presenter mocked the speech of the North Korean newsreader, laughed at it and invited the news presenter to join in with him in laughing at it, which she did. The basis of the mockery, to an ordinary, reasonable viewer, was simply that the newsreader was speaking a language other than English, which the presenters did not understand. However the entire episode was only some four seconds in duration, and as such was not intense or sustained enough to amount to ‘severe’ ridicule for purposes of clause 1.9.6 of the code.
ACMA Investigation Report 2987 – Seven News broadcast by HSV on 13/12/12 4 APPENDIX 1
Considerations to which the ACMA has regard in assessing material against clause 1.9.6
‘likely, in all the circumstances’
The phrase ‘likely in all the circumstances’ imposes an objective test2 and implies a real and not remote possibility; that is, something which is probable.3
‘intense’, ‘serious’ and ‘severe’
The use of the words ‘intense’, ‘serious’ and ‘severe’ indicate that the code contemplates a very strong reaction and a high test from the prohibited behaviours. It is not sufficient that the behaviour induce a moderately negative response or reaction.
‘provoke or perpetuate’
Provocation or perpetuation can be achieved through material about a person or group; there is no requirement that the material include a specific call to action against that person or group or to establish that there was a specific intention to provoke or perpetuate intense dislike, serious contempt or severe ridicule; or to prove that anyone was actually provoked or had existing attitudes perpetuated.4 However, the material must include something more than the use of words that merely convey intense dislike, serious contempt or severe ridicule towards a person: There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.5
‘on the grounds of’
The phrase ‘on the grounds of’ requires that there be an identifiable causal link between at least one prohibited ground and the action complained of.
2 Creek v Cairns Post Pty Ltd (2001)112 FCR 352 at 12. 3 See discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD 773 at 778-779. 4 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23-29]. 5 Trad v Jones & anor. (No. 3) [2009] NSWADT 318 at [161].
ACMA Investigation Report 2987 – Seven News broadcast by HSV on 13/12/12 5