TEN Sydney - ACMA Investigation Report 2633

Investigation Report 2633

File No. ACMA2011/1326

Licensee Network TEN (Sydney) Pty Ltd

Station TEN Sydney

Type of Service Commercial Television

Name of Program TEN News at Five

Date of Broadcast 20 June 2011

Relevant Provision Clause 4.3.4 of the Commercial Television Industry Code of Practice 2010

Date Finalised 23 December 2011

Decision No breach of clause 4.3.4 (warnings)

ACMA Investigation Report – TEN News at Five broadcast by TEN on 20/6/11. The complaint

On 13 July 2011, the Australian Communications and Media Authority (the ACMA) received a complaint regarding TEN News at Five broadcast on 20 June 2011 by licensee of TEN Sydney, Network TEN (Sydney) Pty Ltd. The complainant alleges that the licensee failed to provide a warning to viewers prior broadcasting distressing images relating to the cruel treatment of animals. The complainant was not satisfied with the licensee’s response and referred the matter to the ACMA for consideration. 1 The complaint has been considered in accordance with clause 4.3.4 [warnings] of the Commercial Television Industry Code of Practice 2010.

The broadcast Ten News at Five is a 90 minute news program broadcast by the licensee weekdays at 5pm. On 20 June 2011, one of the program’s segments reported on a call for a ban in Australia on animal live export following revelations of the mistreatment of animals in the Middle East. This was in the wake of recent revelations of the mistreatment of Australian live export to Indonesia. The story also appeared twice that evening in two separate news updates at 7:44pm and 8:48pm. The Segment The program contained a 3 second introduction at the commencement as follows:

And, new evidence of cruelty to animals exported live from Australia.

This introduction contained footage of two people holding a sheep by its legs, throwing it into a truck, and pushing its head down. The full news segment ran for 1 minute and 46 seconds which commenced with the news reader stating:

New images of Australian livestock being mistreated in the Middle East have renewed calls to ban all live exports. But, the push has been hijacked by a Liberal Senator who’s accused activists of caring more for animals than for people. And we warn you some images in this story are distressing.

The segment continued with the following audio and accompanying footage depicting animal cruelty:

Reporter: This is what awaits Australian sheep sent to Kuwait.

. animal on the ground being dragged by its ear and hind leg

. an animal being pulled by its tail

Voice in background: The Australian one, it’s crazy [laughs].

Reporter: The welfare group that filmed it says the conditions there are even worse than abattoir’s in Indonesia.

1 Sections 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s jurisdiction in relation to complaints made under codes of practice.

ACMA Investigation Report – TEN News at Five broadcast by TEN on 20/6/11. 2 . a sheep being dragged by its fore legs (while its hind legs dragging on the ground)

Welfare agency spokesperson: The animals that have died on route are actually the lucky ones. If you consider that trade to Egypt of sheep has been banned based on similar treatment. The question has to be asked why it hasn’t been banned to other countries.

. a goat being carried by a horn and a fore leg

Reporter: Independents Andrew Wilkie and Nick Xenophon have introduced a bill that would phase out the live export trade in three years.

NX: The long term viable solution, the only solution is to get rid of the trade.

Reporter: Not for maverick Liberal senator, Bill Heffernan who gatecrashed the press conference.

BH: That is going to bloody kill the cattle industry.

Reporter: And, questioned why MP’s were squeamish about the treatment of animals in countries with appalling human rights.

. a sheep being carried by its ears and one hind leg

. numerous sheep crammed in a car boot

. a sheep being picked up by an ear and a hind leg

BH: We are talking about countries where girls who reach puberty, they trim them. And what about a million kids in Asia who are products for sex.

. a sheep being dragged by its ears while its hind legs were dragging on the ground

Reporter: But the Greens want to go much further with an immediate and permanent ban.

. a sheep being dragged by its ears while its hind legs were dragging on the ground

BB: I don’t go along with those groups who are saying that another three years is enough. It isn’t.

Reporter: Agricultural Minister Ludwig left for Indonesia last night and he’ll spend the next three days visiting abattoirs and meeting government officials. But, he has public opinion on his side with an essential media poll finding 58% support the ban on livestock to Indonesia.

. a man kicking a horse’s hoof

News Update 1 The first 30 second news update was aired at 7.44pm. The update ran for 8 seconds, and included the following audio:

And, new images of Australian livestock being mistreated in the Middle East have renewed calls for a ban on all live animal exports.

The footage shown at the time of the audio included:

. two people carrying a sheep – one person holding its hind legs, and the other its ear

. a person dragging a sheep by its tail

ACMA Investigation Report – TEN News at Five broadcast by TEN on 20/6/11. 3 . two people dragging a sheep by its ears and fore legs while its hind legs were dragging on the ground

News Update 2 The second 30 second news update was aired at 8.48pm. The relevant update ran for 5 seconds, and included the following audio:

And, new images have emerged of Australian livestock being mistreated in the Middle East.

The footage shown at the time of the audio included:

. a person dragging a sheep by its tail

. two people dragging a sheep by its ears and fore legs while its hind legs were dragging. Assessment

The assessment is based on a recording of the program and updates broadcast on 20 June 2011, provided by the licensee, together with submissions provided by the complainant and the licensee. Other sources consulted are identified where relevant. ‘Ordinary, reasonable’ viewer test In assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener or viewer. Australian Courts have considered an ‘ordinary, reasonable’ reader (or listener or 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 affairs2.

The ACMA 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 Codes.

Issue 1: Whether the licensee provided a warning before broadcasting material that may have seriously distressed or seriously offended a substantial number of viewers.

Relevant provisions

4.3 In broadcasting news and current affair programs, licensees:

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

ACMA Investigation Report – TEN News at Five broadcast by TEN on 20/6/11. 4 4.3.4 must provide the warnings required by Clauses 2.14 and 2.20 of this Code when there is an identifiable public interest reason for selecting and broadcasting visual and/or aural material which may seriously distress or seriously offend a substantial number of viewers;

2.14 Material which may distress or offend viewers: Only if there is an identifiable public interest reason may a licensee broadcast a news or current affairs program containing material which, in the licensee’s reasonable opinion, is likely to distress or offend a substantial number of viewers.

2.14.1 If such material is likely, in the licensee’s reasonable opinion, to seriously distress or seriously offend a substantial number of viewers, then the licensee must provide the adequate prior warning required by Clause 2.26.

2.20 Consumer advice provides viewers with information about the principal elements that contribute to a program’s classification, and indicates their intensity and/or frequency. It is intended to help people to make informed choices about the programs they choose.

2.26 Warnings before the broadcast of material of this nature must be spoken, and may also be written. They must provide an adequate indication of the nature of the material, while avoiding detail which may itself seriously distress or seriously offend viewers.

Complainant’s submissions The complainant submitted:

My complaint is based on Channel Ten not issuing warnings before showing distressing images of animal cruelty namely in the Middle East. Including the short news bulletins played during advertisements. ...

They have acknowledged that the story warranted a warning, but they don’t have warnings on the news updates as mentioned played in the middle of advertisements – does not seem consistent. Why would you say yes this story needs a warning then show the same or similar images with no warning in ad breaks?

Licensee’s submissions The licensee submitted in response to the complainant:

We began the story with a warning that the images were distressing, in order to give viewers time to choose whether to continue watching.

Further, while we have regard for the likely composition of the viewing audience, we are also obliged to report fairly and accurately the news of the day. Unfortunately, this sometimes includes showing confronting images. Television is a medium that relies heavily on pictures, and the reporter provided powerful images that assisted the debate about the future of live exports. ...

On balance, I believe in this instance that the material remained suitable for broadcast in an evening news bulletin as well as updates, and was used in accordance with the Code. The news is sometimes upsetting and we recognise that we must balance our obligations to report fairly and accurately with exercising sensitivity for viewers.

ACMA Investigation Report – TEN News at Five broadcast by TEN on 20/6/11. 5 In response to the ACMA’s request for comment regarding the news updates, the licensee submitted:

TEN Sydney broadcast two News Updates on the evening of 20 June 2011 which referred to the News story of animal mistreatment.

The first News Update was broadcast in a PG classification zone at approximately 7.44pm, during MasterChef Australia. The episode of MasterChef Australia was classified G.

The News Update was 30 seconds in duration. The item appeared as the third story in the News Update and comprised approximately 8 seconds. The newsreader said in voiceover, ‘And new images of Australian livestock being mistreated in the Middle East have renewed calls for a ban on all live animal exports’.

The accompanying footage briefly consisted of a sheep being pulled backwards by one of its hind legs as it remained upright while another sheep was carried by two men, its hind legs being dragged along a road.

The second News Update was broadcast in an M classification zone at approximately 8.48pm, during Offspring. The episode of Offspring was classified M.

The News Update was 30 seconds in duration. The item appeared as the third story in the News Update and comprised approximately 5 seconds. The newsreader said in voiceover, ‘And new images have emerged of Australian livestock being mistreated in the Middle East.’ This was accompanied by similar, albeit more brief images as broadcast during the previous News Update.

The ACMA has previously stated that Clause 4.3.4 sets a high test, in that the material must be likely to have seriously distressed or seriously offended a substantial number of viewers. It is not sufficient that the material induces only a mild response or that the material affects a small number of viewers.

We contend that the News Updates do not meet this threshold, i.e. the footage depicted was not sufficiently detailed or graphic to be likely to have seriously distressed or seriously offended a substantial number of viewers.

The visual images were not detailed or excessive, with no depiction of any wounds, blood, injuries or use of any implements. The two sheep were depicted from behind, their faces not visible, further mitigating the impact of the footage. There was no aural accompaniment to those images, such as sounds of animals in distress. Rather, the images were accompanied by the presenter speaking in voiceover, reporting the item in a straightforward manner. The footage was brief, lasting no more than eight and five seconds in the respective updates.

The footage of animal mistreatment was widely reported in the media that day prior to the News Updates, along with the associated political and public discussion of the live export trade issue. On 20 June 2011 Independent MP Andrew Wilkie and Independent Senator Nick Xenophon announced they would introduce a parliamentary bill to phase out the live export animal trade within three years and stipulate safeguards before any resumption of the trade to Indonesia occurred. To accompany this announcement, new footage of the treatment of Australian sheep in Kuwait was released.

The mistreatment of live export animals, the temporary ban on live exports to Indonesia and its implications had been matters of significant public interest and widely debated in parliamentary

ACMA Investigation Report – TEN News at Five broadcast by TEN on 20/6/11. 6 and public forums since the Four Corners story of 30 May 2011. Footage of the mistreatment of live export animals had been widely broadcast over this time. The type of broadcast, being a News Update, is well known to viewers to generally contain material of a serious nature and viewers would have some reasonable expectation of viewing some such footage in a news update on this significant issue.

The earlier TEN News at Five story on this topic was prefaced by a warning. However, the News Updates contained much less footage compared to the main bulletin with care exercised to select images of lesser detail and impact.

Accordingly, we submit a warning was not required for the two News Updates and TEN complied with Clause 4.3.4 of the Code.

Finding The licensee did not breach clause 4.3.4 of the Commercial Television Industry Code of Practice 2010 for its broadcast of the Ten News at Five program and updates on 20 June 2011.

Reasons The obligations set out at clause 4.3.4 establish a high test: visual and/or aural material of the kind which may seriously distress or seriously offend a substantial number of viewers may be broadcast in a news program only when there is an identifiable public interest reason for doing so. If the material is of a kind that satisfies this requirement, a licensee must provide the warnings required by clauses 2.14 and 2.20 of the Code. The ACMA considers that the subject of the report - ‘the mistreatment of live export animals, the temporary ban on live exports to Indonesia and its implications’3 - was in the public interest. The licensee formed a ‘reasonable opinion’ that the material in the full segment was likely to seriously distress or seriously offend a substantial number of viewers. As such, it provided a warning in the form approved by clause 2.26 (it was spoken, provided an indication of the nature of the material to come, and avoided detail which may itself seriously distress or seriously offend viewers). The subsequent two news updates did not contain warnings. In the limited amount of time a licensee has to present a news update, a licensee would not generally be expected to provide a warning, provided, however, that it exercised care in the images that it chose to include from the segment. The ACMA notes that while the news updates did not contain warnings, they contained footage from the full segment that depicted animal cruelty which would have been distressing to some viewers, and the complainant’s concern in this regard is acknowledged.

The licensee submitted:

3 Licensee’s submissions received by the ACMA on 31 August 2011.

ACMA Investigation Report – TEN News at Five broadcast by TEN on 20/6/11. 7 The earlier TEN News At Five story on this topic was prefaced by a warning. However, the News Updates contained much less footage compared to the main bulletin with care exercised to select images of lesser detail and impact.

The ACMA does not agree that the images, that is, the depictions of cruelty, were of ‘lesser detail and impact’. Visually, the only notable difference was the duration of each clip of footage, and the amount and variety of images shown. The ACMA considers that the licensee could have elected to use milder images of the live stock or even images that did not depict any animal cruelty, which were included in the full segment. However, clause 4.3.4 contemplates a strong reaction from a large number of viewers. It is not sufficient that the material broadcast induces a negative response from an individual or a small group. While the complainant was offended by the material broadcast, it was not of a kind that would have seriously distressed or seriously offended a substantial number of viewers. The ACMA notes that there was no aural accompaniment to the footage in the news updates (as there was in the full segment), the updates were brief (5 and 8 seconds compared to 1 minute and 47 seconds), the images were not drawn out to the extent that they were in the original full segment, and there were relatively few images shown in each update (3 and 2 respectively compared to the 9 in the full segment). It is evident from these differences that in this instance, the licensee exercised a degree of care in selecting material of public interest for broadcast, while having regard to the weight of the public interest in showing the material. In these circumstances the ACMA is not satisfied that the licensee breached its obligations to provide a warning for each news update pursuant to clause 4.3.4 of the Code.

ACMA Investigation Report – TEN News at Five broadcast by TEN on 20/6/11. 8