WIN ACT - ACMA Investigation Report 2625

Investigation Report No. 2625

File No. ACMA2011/1294

Licensee WIN Television NSW Pty Ltd

Station WIN ACT

Type of Service Commercial television

Name of Program 60 Minutes

Date of Broadcast 5 June 2011

Relevant Code Commercial Television Industry Code of Practice 2010 Clause 7.15

Date Finalised 22 March 2012

Decision Breach of clause 7.15 (effort to resolve complaint)

ACMA Investigation Report 2625 – 60 Minutes broadcast by WIN on 5/6/11 Error: Reference source not found

The complaint The complaint was about vision broadcast in a segment of the program 60 Minutes by WIN Television NSW Pty Ltd, the licensee of WIN, on 5 June 2011. The complainant considered that the broadcast of the vision displayed a lack of consideration for viewers. The substantive matter has been addressed in relation to the licensee of the station which supplied the program to WIN (Investigation 2623). This investigation has examined WIN Television NSW Pty Ltd’s compliance with clause 7.15 of the Commercial Television Industry Code of Practice 2010: Resolution of Complaints 7.15 Licensees will make every reasonable effort to resolve code complaints promptly, except where a complaint is clearly frivolous, vexatious or an abuse of the code process.

Relevant background The complainant made her complaint to the licensee on 7 June 2011, ie two days after the broadcast, by lodging the electronic form on the Free TV Australia website. The licensee did not address the complaint until more than 10 working days later.1 Accordingly, the licensee was unable to avail itself of clause 7.13 of the code, which states: If the material complained of was provided on broadcast relay by another licensee, or was otherwise the responsibility of another licensee, the first licensee may refer the complaint to that licensee within 10 working days of receipt of the complaint for written response direct to the complainant.

On or about 21 June 2011, the licensee’s regulatory affairs manager discussed the issues raised by the complaint face-to-face with the program supplier’s head of regulatory affairs, asking who was responsible and was he aware as to why this occurred … He did not give an explanation other than to state it was an issue and that Nine had had also received complaints.2

The licensee responded to the complainant on 30 June 2011, ie 16 working days after receipt of the complaint. The response was as follows: We acknowledge your complaint regarding a story broadcast within the program 60 Minutes on 5 June 2011 regarding the [fiancée] murder case. In particular the image of a dead badly bruised baby within the segment without warning to viewers. The image was used within the segment which was regarding the credibility of the pathologist involved in the [fiancée murder] case who admitted that he may have got other cases wrong and those cases involved deceased babies. The program is broadcast by WIN on relay from the Nine Network Australia, WIN relies on the Nine Network to provide the appropriate consumer warning sin relation to the content within this program.

1 Licensee to the ACMA, 17 August 2011. 2 Licensee to the ACMA, 15 September 2011 and 27 September 2011.

2 It is regretted that the image within this story caused you distress, we will forward your complaint to the Nine Network. Thank you for your comments, they are appreciated. In the event that you are not satisfied with this response, I am required to advise you that you may write to the broadcast regulator, the Australian Communications and Media Authority, PO Box Q500, Queen Victoria Building, Sydney NSW 1230.

On 6 July 2011, the licensee sent the program supplier a copy of the complainant’s complaint and licensee’s response, with a covering letter stating that the licensee’s regulatory affairs manager is a bit concerned that this lady may go to ACMA and she wanted you to be aware of this one.3

On 19 July 2011, the licensee held a further face-to-face discussion with the program supplier, asking the same questions as on 21 June and receiving the same response.

Licensee’s submissions In response to a request from the ACMA for comments on compliance with the code, the licensee submitted: At the time of responding, we were not able to ascertain from the Nine Network as to why the program did not have the appropriate warnings at the head of the program and at the commencement of the segment. In fact, we still do not have a response today to that question, despite forwarding the complaint to them. While the response may seem to be lacking more information, at the time of responding we were not in possession of any further information that could provide us with reasons for the program not having the appropriate consumer warnings and who was responsible, further why was the image used in the story.4

To our mind, the key issue is why the image complained of was broadcast and why consumer warnings were not broadcast at the commencement and during the program. As we have stated, without any information from the program originator, over which WIN has no control, and still has no information forthcoming, it is extremely difficult to resolve a complaint for which you have no explanation for the actions and decisions taken that resulted in the presentation of the program as it was presented to air. We contend that we did respond based on the information that we had at the time. As a licensee we are extremely concerned that we have been ignored despite seeking information. As we previously advised we attended to this complaint too late to refer the complaint on to the Nine Network in accordance with the code, an issue that we have addressed. We are further concerned that in sending our response to the complaint to Nine after we had responded to [the complainant] that there still has not been a response to us with an explanation … In hindsight, in sending the correspondence on to Nine, we did not seek a response within our letter, we highlighted that this complaint was likely to become an issue with the ACMA. An explanation or response/acknowledgement to us in these circumstances was warranted. WIN is a metropolitan and regional broadcaster and does not at all treat its complaints lightly. Nevertheless, as a broadcaster who has program agreements with the three metropolitan networks, there are some difficulties at times when dealing

3 Copy provided to the ACMA by the licensee on 15 September 2011. 4 Licensee to the ACMA, 26 July 2011.

ACMA Investigation Report 2625 – 60 Minutes broadcast by WIN on 5/6/11 3 Error: Reference source not found

with complaints. In hindsight we can always do better, in this case, we believe we did make reasonable effort to resolve the complaint with what we knew at the time. Had further information come to us, we would have further contacted [the complainant] and passed it on to her.5

Finding The licensee did not make every reasonable effort to resolve the complaint. Accordingly, the licensee breached clause 7.15 of the code.

Reasons The complainant raised code issues and explicitly alleged that the broadcast had not complied with clause 4.3.3 of the code. In these circumstances, a reasonable effort to resolve the complaint would have involved either:  forming a judgement on whether the broadcast had complied with the code or not, and communicating that judgement to the complainant, together with reasons for the judgement; or  referring the complaint to the program supplier under clause 7.13, if the licensee considered it was not in a position to form such a judgement. Since the licensee did neither of these things, its efforts to resolve the complaint did not amount to ‘every reasonable effort’.

5 Licensee to the ACMA, 15 September 2011.