ABC Darwin - ACMA Investigation Report 2783

Investigation Report No. 2783

File No. ACMA2012/437

Licensee Australian Broadcasting Corporation

Station ABC Darwin

Type of Service National Broadcaster

Name of Program ABC News 24

Date/s of Broadcast 3 February 2012

Relevant Clauses 2.1, 2.2 and 4.1 of the ABC Code of Practice 2011 Legislation/Code

Date Finalised 20 April 2012

Decision No breach of clause 2.1 (accuracy of material facts) No breach of clause 2.1 (misleading the audience) No breach of clause 4.1 (impartiality)

ACMA Investigation Report – ABC News 24 broadcast by ABC on 3 February 2012 The complaint The Australian Communications and Media Authority (ACMA) received a complaint on 5 March 2012 regarding the ABC News 24 program broadcast on 3 February 2012 by the Australian Broadcasting Corporation (ABC). The complainant alleges that a report concerning the then upcoming elections to be held in the Russian Federation (Russia) was factually inaccurate, misleading and was not impartial. The report was made by an ABC foreign correspondent (the Reporter). The complainant was not satisfied with the response from the ABC and subsequently made a complaint to the ACMA. This investigation has considered the ABC’s compliance with clauses 2.1, 2.2 and 4.1 of the ABC Code of Practice 2011 (the Code).

The program ABC News 24 is a channel dedicated to providing exclusively news coverage. It is described on its website as providing “live, continuous news coverage of breaking stories from Australia and around the world”.1 On 3 February 2012, the program featured a report lasting 2 minutes and 18 seconds (the Report) that dealt with the then upcoming elections in Russia. The Report centred on the fact that despite a drop in support for the Russian President, Mr Vladimir Putin, he still enjoyed a firm grip on political power in the country. The report went into the limited voices in opposition to Mr Putin’s power, which posed little threat to the prospects of his being comfortably re-elected. In particular, it was mentioned that “perhaps the most popular opposition candidate was kept off the ballot by the country’s Election Commission”. This was in reference to Mr Grigory Yavlinsky, a figure on the Russian political landscape. The Report consisted primarily of the Reporter narrating but also featured segments from interviews with a Russian political analyst and an opposition party member, as well as an excerpt from a press conference given by the leader of an opposition party. The majority of the footage in the Report was of Mr Putin attending various events, opposition party leaders and the offices of opposition parties. A transcript of the Report can be found at Attachment A.

Assessment The Investigation is based on submissions from the complainant, including copies of his correspondence with the ABC, submissions from the ABC and a DVD copy of the broadcast provided by the ABC. Other sources 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”.

1 http://www.abc.net.au/news/abcnews24/about/

ACMA Investigation Report – ABC News 24 broadcast by ABC on 3 February 2012 2 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.2 The ACMA asks what the “ordinary, reasonable viewer” would have understood this program to have conveyed. It considers the natural, ordinary meaning of the language, context, tenor, tone and inferences that may be drawn, and in the case of factual material, relevant omissions (if any). Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the Code.

Issue 1: Accuracy and Misleading Factual Content Relevant clause of the Code 2 Accuracy Standards: 2.1 Make reasonable efforts to ensure that material facts are accurate and presented in context. 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. The considerations which the ACMA generally applies in determining whether or not a statement complained of was compliant with the ABC’s obligations in clause 2.1 are set out at Appendix B.

Complainant’s submissions The complainant submitted the following to the ABC:

A statement was made that one of Russia’s “popular” opposition figures, Yabloko leader, Grigory Yavlinsky had been disqualified from running for President. Where, did you get information that Grigory Yavlinsky is in any way popular in Russia? For the record, he has already served in Boris Yeltsin’s disastrous rule and is widely regarded as little more than a token opposition figure with very little credibility. He could not legitimately produce the required two million signatures and presented fraudulent submissions. Why didn’t you present the facts of why he couldn’t run? Was this an attempt to mislead the Australian audience with little knowledge of Russia’s internal affairs? It concerns me to see the credible ABC trying to influence public opinion in this way” The complainant later submitted, in response to the ABC’s reply, that:

The source of information used by [the Reporter] was from a local news article (from an anti- government paper) that stated that a poll conducted at a protest rally showed that 29% (of protestors) were willing to vote for Mr Yavlinsky. That was not even the mainstream protest. This is clearly a manipulation of facts that is untrue, biased and mischievous.

2 Amalgamated Television Services Pty Ltd v Marsden (1998) NSWLR 158 at 164-167

ACMA Investigation Report – ABC News 24 broadcast by ABC on 3 February 2012 3 ABC’s submissions The ABC responded to the complainant that:

It may be that Mr Yavlinsky polls in the low single digits nationally. However, the story is very different in Moscow and St Petersburg. I draw your attention to the following as just one example: From Novaya Gazeta – Feb 3rd AN ARRANGED MARRIAGE – Andrei Kolesnikov Of all the current official “offline” politicians today, Yavlinsky is the most popular among the protesters. The Levada Centre held a poll of people at the protest rally at Prospekt Sakharova that showed that 29% of the people in attendance were willing to vote for Yavlinsky in the presidential election. It is true that Mr Yavlinsky failed to submit 2 million signatures to secure a place on the Presidential ballot. It is important to note, however, this was a result of a decision of the Central Election Commission, which concluded more than 24% of the 2,089,000 signatures provided by Mr Yavlinsky were invalid. This finding has was [sic] controversial to say the least, and as you may be aware the credibility of the CEC itself has very much been called into question after disputed parliamentary elections in December. Finally, my discussion of Mr Yavlinsky was in the context of the general prospects for Vladimir Putin. A previous line in the story stated as follows: “Mr Putin’s support may be slipping... but no one in this field is expected to really challenge him”. The ABC later submitted the following to the ACMA:

[The Reporter] referred to ... a report that had been published in Novaya Gazeta referring to Mr Yavlinsky as “the most popular” politician amongst those protesting the conduct of the elections. The same item referred to a poll conducted by the Levada Centre at a protest rally at Prospekt Sakharova showing that 29% of those present at the protest would willingly vote for Mr Yavlinsky if he was a presidential candidate. ... Russia’s political system lacks reliable, uncorrupted sources of information on levels of support for various candidates and ... in these circumstances experienced correspondents on the ground have to use a range of sources to inform their contextual reporting and analysis. [The Reporter’s] approach in this segment was an example of this. ... it is also necessary to consider the remark about Mr Yavlinsky in the context of the segment overall ... By the time the reference was made to Mr Yavlinsky, viewers had heard that although opinion polls suggested that [Mr Putin’s] support had fallen below 50% and a new wave of anti-government protests were imminent, Mr Putin “doesn’t seem too worried”. Gennady Zyuganov was identified as Mr Putin’s most popular opponent, yet he was reported as having very low preferences in opinion polls “barely registering double digits”. Notwithstanding that Mr Putin’s support could be slipping, no candidate was expected to present a realistic challenge. It was in this context that Mr Yavlinsky was carefully described as “perhaps” the most popular opposition candidate, and it was noted that he would not be contesting the election following a decision of the election commission. The ABC is satisfied that reasonable efforts were made to ensure that material facts in this segment were accurate and presented in context ... an appropriate qualifier (“perhaps”) was included to signal the tentative nature of the statement being made about Mr Yavlinsky’s support. In the circumstances of this brief report on foreign politics, nothing further was required to satisfy the Code requirements for accuracy.

ACMA Investigation Report – ABC News 24 broadcast by ABC on 3 February 2012 4 Finding The ABC did not breach clauses 2.1 and 2.2 of the Code.

Reasons As mentioned above, the complainant contends that the following statement was inaccurate: “perhaps the most popular opposition candidate [Mr Yavlinsky] was kept off the ballot by the country’s Election Commission”. In determining whether the ABC has complied with clauses 2.1 and 2.2 the Code, the ACMA must assess whether the relevant statement would have been understood by the ordinary reasonable viewer as a statement of fact or an expression of opinion. Should a statement be categorised as a statement of fact, the ACMA is required, under clause 2.1, to examine whether or not reasonable efforts were made on the ABC’s part to ensure that the factual material was accurate and, under clause 2.2, whether or not the material would mislead the audience. In this regard, a statement is to be evaluated in its context and the use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgement is required as to how the substantive nature of the statement would be understood by the ordinary reasonable viewer. The ACMA acknowledges that there is some validity to the complainant’s concerns that an ordinary, reasonable viewer, who would likely have a limited knowledge of the Russian political landscape, may accept the statement made as being one of fact. This is particularly the case given that it was presented by a foreign correspondent living in Moscow with a presumably thorough working knowledge of Russian political affairs. Despite this, however, the ACMA considers that the statement was an expression of opinion. The crucial element here is the fact that the Reporter described Mr Yavlinsky as “perhaps the most popular opposition candidate” (emphasis added). As stated by the ABC: “an appropriate qualifier (‘perhaps’) was included to signal the tentative nature of the statement being made about Mr Yavlinsky’s support”. By including the said qualifier in the Report, the ACMA considers that the statement constituted an expression of opinion. The use of the word “perhaps” can be likened to the other hallmarks of an expression of opinion, i.e. “it seems to me” or “we consider/think/believe”. It is considered that the ordinary, reasonable viewer would have interpreted the statement as such and that accordingly the threshold required for the statement to be considered one of fact has not been met. Accordingly, the ABC was not subject to the same requirements present in the case of a statement of fact and the statement is not in breach of clauses 2.1 or 2.2 of the Code.

ACMA Investigation Report – ABC News 24 broadcast by ABC on 3 February 2012 5 Issue 2: Impartiality Relevant clause of the Code 4 Impartiality and Diversity of Perspectives Standards: 4.1: Gather and present news and information with due impartiality The considerations which the ACMA generally applies in determining whether or not content is impartial are set out at Appendix C. Complainant’s Submissions The complainant submitted in his letter to the ACMA that:

“[the Report] aimed to portray to [sic] diminishing popularity of Vladimir Putin in Russia. The story was heavily biased against Mr Putin and attempted to present Mr Putin in a negative light to the Australian audience. The report was not unbiased or accurate ... This is clearly a manipulation of facts to present information that is untrue, biased and mischievous. The ABC has a responsibility to present unbiased, accurate, factual information for the audience to reach their own conclusion. [The Reporter] has clearly breached this obligation.” ABC’s Submissions The ABC submitted to the ACMA the following:

There is no basis for the allegation of bias made by Mr Slater. The Code does not prohibit the ABC from reporting on the declining popularity of various politicians, or reporting that questions have been raised about the integrity of election processes and results. This particular report was brief, timely, accurate and straightforward. It dealt fairly with the issues it canvassed and was based on demonstrable evidence. Finding The ABC did not breach clause 4.1 of the Code. Reasons As indicated at Attachment C below, achieving impartiality requires a broadcaster to present content in a manner that avoids conveying a prejudgment, or giving effect to the affections or enmities of the presenter or reporter in respect of what is broadcast. Whether a breach of clause 4.1 has occurred will depend on the themes of the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast. The ACMA considers that the above criteria have not been met. As stated by the ABC in its submissions, the Code does not prohibit the ABC from reporting on the declining popularity of various politicians, or reporting that questions have been raised about the integrity of the election process and the results. The ACMA considers that the Report was clearly founded on a solid factual basis and was, in the words of the ABC, “based on demonstrable evidence”. Reports from numerous news agencies around the world at the time the Report went to the air attest to the fact that while Mr Putin was expected to win comfortably, there were serious question marks hanging over the voting process and that this had resulted in widespread protests within Russia against the government.

ACMA Investigation Report – ABC News 24 broadcast by ABC on 3 February 2012 6 The BBC reported that “Vladimir Putin is widely expected to become President again” and that “claims of vote-rigging in the December parliamentary vote sparked protests across Russia against Mr Putin and his United Russia party”.3 The Guardian similarly reported that “street protests in December represented the greatest challenge to Putin's rule he has yet faced, but the Prime Minister remains the most popular politician in the country, with recent polling by VTsIOM suggesting 52% of Russians plan to vote for him”4 while the Huffington Post stated that “massive protests against vote-rigging ... have posed a surprise challenge to Putin’s plan of easing back into the presidency.” The Huffington Post also reported that polls showed that Mr Putin “continues to enjoy a strong public support, but probably not enough to win a first-round victory” and has “refused to take part in televised debates with other contenders, relying instead on ample coverage of his daily activities as prime minister by state-controlled nationwide television stations.”5 These views were accurately expressed during the Report. The ACMA considers that the fact that the Report presents a perspective that is opposed by the complainant does not make it inherently partial. The Report was brief, and was delivered in an even and measured tone. Furthermore, the language used by both the Reporter and the presenter was objective, direct and expressed without emotion; there is no evidence that the Report was in any way “mischievous” as alleged by the complainant. The ACMA notes the complainant’s valid observation that the Reporter’s source regarding the popularity of Mr Yavlinsky was a story from the Novaya Gazeta which referred to a poll taken at an anti-government protest, the two of which combined provide a heavily skewed source of information. The Novaya Gazeta is renowned as being one of the few publications within Russia that remains in opposition to the government. ina global describes it as an “anti-establishment newspaper” and “the last bastion for political opposition in Russia”6 while The Times has reported that journalists from the newspaper are considered to be assassination targets due to their outspoken criticism of the government.7 Further, it would be safe to assume that those present at an anti- government protest would be of a heavily biased political persuasion to begin with. The ACMA considers, however, that this portion of the Report alone was not enough to taint it in its entirety. When viewed as a whole, the Report gave an accurate snapshot of the political atmosphere within Russia in the brief period of time available. Based on the evidence available, the ACMA is satisfied that the Report avoided conveying a prejudgment and did not give effect to the affections or enmities of the reporter. On this basis, the ABC did not breach clause 4.1 of the Code.

3 http://www.bbc.co.uk/news/world-europe-16755383 4 http://www.guardian.co.uk/world/2012/jan/23/russian-liberal-exclusion-presidential-election 5 http://www.huffingtonpost.com/2012/01/23/russia-election-grigory-yavlinsky_n_1223034.html 6 7

ACMA Investigation Report – ABC News 24 broadcast by ABC on 3 February 2012 7 APPENDIX A: TRANSCRIPT – ABC NEWS 24 – 3 FEBRUARY 2012 Presenter – So far, Mr Vladimir Putin’s Presidential campaign has been a world away from the rough and tumble politics seen in the west. Opinion polls suggest his support has fallen below 50%; low enough to force him into a possible run-off against the top opposition candidate. But even as the opposition prepares to launch a new wave of anti-government protests, Mr Putin doesn’t seem too worried. Moscow correspondent [the Reporter] reports. [Vladimir Putin speaking in Russian to his cabinet] Reporter – Vladimir Putin’s openness to reform appears to have been short-lived. During this Presidential campaign, he’s gone on the attack, pouring scorn on the country’s independent media. He doesn’t debate; he gets plenty of positive coverage on state television. There was great fanfare for plans to install web cameras in 200,000 polling stations. But unless the counting rules change, say his opponents, that won’t mean anything. Gennady Zyuganov (Communist Party Leader) – If we do not fix the rules by election day, there is no hope at all [voiceover in English]. Reporter – Communist leader Gennady Zyuganov, Putin’s most popular opponent, is barely registering double digits in the polls. The only new face, billionaire Mikhail Prokhorov, has little momentum. Other candidates have been around a long time. Mr Putin’s support may be slipping but no-one in this field is expected to really challenge him. Denis Volkov (Political Analyst) – The political system is based on a lack of alternative. And this is the mechanism of getting the optimal result for those at power [sic]. Reporter – Perhaps the most popular opposition candidate was kept off the ballot by the country’s Election Commission.8 His party has vowed to support one of the other candidates and the new round of mass anti-government protests starting this weekend.9 Olga Vlasova (Yabloko Party) – Only now we have an opportunity to show how many of us there are in Russia. Reporter – The opposition says it has a little more than one month until election day to really influence Russian politics and perhaps even force Vladimir Putin into a run-off. After that, if Mr Putin wins the Presidency in the end, as expected, many fear Russia could soon return to politics as usual. [The Reporter] ABC News, Moscow.

8 This is in reference to Mr Grigory Yavlinsky. 9 This is in reference to the Yabloko party.

ACMA Investigation Report – ABC News 24 broadcast by ABC on 3 February 2012 8 APPENDIX B: CONSIDERATIONS WHICH THE ACMA HAS REGARD TO IN ASSESSING THE ABC’S COMPLIANCE WITH CLAUSE 2.1 OF THE ABC CODE OF PRACTICE 2011 Assessment of Factual accuracy In determining whether or not a statement complained of was compliant with the licensee’s obligation to present factual material accurately (having regard to the circumstances at the time of preparing and broadcasting the program), the ACMA generally has regard to the following considerations:  The assessment of factual accuracy is determined in the context of the segment in its entirety.  The meaning conveyed by the relevant statement is assessed according to what an ‘ordinary, reasonable listener/viewer’ would have understood the program to have conveyed. Courts have considered an ordinary, reasonable listener/viewer to be: A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable listener does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.10  The ACMA must assess whether the relevant statement would have been understood by the ordinary reasonable listener/viewer as a statement of fact or an expression of opinion.  The primary consideration is whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material is presented as a statement of fact or as an expression of opinion.  In that regard, the relevant statement must be evaluated in its context , i.e. contextual indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener/viewer.  The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable listener/viewer, and the form of words introducing the relevant statement is not conclusive.  Inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.  While licensees are not required to present all factual material available to them, if the omission of some factual material means that the factual material actually broadcast is not presented accurately, that would amount to a breach of the clause.

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

ACMA Investigation Report – ABC News 24 broadcast by ABC on 3 February 2012 9  In situations where witnesses (to an event or circumstance) give contradictory accounts and there is no objective way of verifying the material facts, the obligation for the reporter is to present factual material accurately will ordinarily require that the competing assertions of fact be presented accurately as competing assertions.  The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.

 Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion.

ACMA Investigation Report – ABC News 24 broadcast by ABC on 3 February 2012 10 APPENDIX C: CONSIDERATIONS WHICH THE ACMA HAS REGARD TO IN ASSESSING THE ABC’S COMPLIANCE WITH CLAUSE 4.1 OF THE ABC CODE OF PRACTICE 2011 In determining whether or not material complained of was compliant with the ABC’s obligations under clause 4.1, the ACMA generally has regard to the following considerations:  The meaning conveyed by the relevant material is assessed according to what an ‘ordinary, reasonable listener’ would have understood the program concerned to have conveyed. Courts have considered an ordinary, reasonable listener/viewer to be: A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable listener does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.11  Achieving impartiality requires a broadcaster to present content in a way which avoids conveying a prejudgment, or giving effect to the affections or enmities of the presenter or reporter in respect of what is broadcast. In this regard:

o The ACMA applies the ordinary English meaning of the word ‘impartial’ in interpreting the code. The Macquarie Dictionary (Fourth Edition) defines ‘impartial’ as: ‘not partial; unbiased; just’. It defines ‘partial’ to include: ‘biased or prejudiced in favour of a person, group, side, etc., as in a controversy’.12 ‘Bias’ is defined as: ‘a particular tendency or inclination, especially one which prevents unprejudiced consideration of a question’.13

o The ACMA considers that a helpful explanation of the ordinary English usage of the term ‘bias’ is set out by Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng14 as follows: ‘Bias’ is used to indicate some preponderating disposition or tendency, a ‘propensity; predisposition towards; predilection; prejudice’.15 It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is ‘any thing which turns a man to a particular course, or gives the direction to his measures’.  A program that presents a perspective that is opposed by a particular person or group is not inherently partial. Whether a breach of clause 4.1 has occurred will depend on the themes of the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast.

11 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp.164-167. 12 Meaning 5. 13 Meaning 2. 14 (2001) 205 CLR 507 at 563 [183] Gleeson CJ and Gummow J at 538 [100] agreeing. 15 Oxford English Dictionary (Second Edition), meaning 3(a).

ACMA Investigation Report – ABC News 24 broadcast by ABC on 3 February 2012 11  Presenters and reporters can play a key role in setting the tone of a program through their style and choice of language. The manner in which a report is presented or reported can influence the conclusions that an ordinary reasonable viewer/listener would draw from a broadcast.  The nature of current affairs reporting requires reporters and presenters to be questioning, and at times sceptical, in their analysis of important issues. However, while probing and challenging questions may be used to explore an issue, programs must demonstrate a willingness to include alternative perspectives without prejudgment.  A perspective may be quite reasonably favoured if all the evidence supports it; it is only where the favouring is undue in some way that the code is breached.  A perspective may be ‘unduly’ favoured in a variety of ways, including editing, juxtaposition of material, editorial comment or reporter’s comments.

ACMA Investigation Report – ABC News 24 broadcast by ABC on 3 February 2012 12