<p>Investigation Report No. 2478</p><p>File No. ACMA2010/1708</p><p>Licensee Network TEN (Brisbane) Pty Ltd</p><p>Station TVQ</p><p>Type of Service Commercial Television</p><p>Name of Program The 7PM Project</p><p>Date of Broadcast 22 June 2010</p><p>Relevant Clauses 1.9.6 and 2.14 of the Commercial Television Industry Code Legislation/Code of Practice 2010 Date finalised 6 January 2011</p><p>Decision No breach of clause 1.9.6 (dislike, contempt or ridicule)</p><p>No breach of clause 2.14 (material likely to distress or offend)</p><p>ACMA Investigation Report – The 7PM Project broadcast by TVQ on 22/6/10 The complaint The Australian Communications and Media Authority (the ACMA) received a complaint about the program, The 7PM Project, broadcast on 22 June 2010 by Network TEN (Brisbane) Pty Ltd, the licensee of TVQ. The complainant alleges that the licensee broadcast material which provoked contempt and ridicule against Christians and caused offence. The complainant also submitted that the material breached clause 2.14 of the Commercial Television Industry Code of Practice 2010 (the Code) which prohibits the broadcast of 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. The ACMA investigated the complaint against clauses 1.9.6 and 2.14 of the Code.</p><p>The program The 7PM Project is broadcast at 7pm on weeknights. The program’s website describes it as: </p><p>It’s the news – but not as you know it’…Led by comic co-hosts Dave Hughes and Charlie Pickering and newsreader Carrie Bickmore...Each weekday at 7pm, the trio dissect, digest and reconstitute each day’s news… it's an earthy, real and fun approach to discussing the news of the day.1</p><p>On 22 June 2010, Charlie Pickering announced the following news item and introduced guest comedian Kitty Flanagan to comment: </p><p>In NSW, a trial is underway to teach ethics at school as an alternative to scripture. It’s a controversial move and has religious groups reeling and to make matters worse full-time teachers will not be allowed to teach the classes. Kitty Flanagan joins us to tell us all about it. Hello Kitty.</p><p>Charlie Pickering indicated that Kitty Flanagan had a solution to the concern that full-time teachers will not be allowed to teach the ethics classes. The complaint concerns the following comments made by Kitty Flanagan about Christians and their beliefs:</p><p>Kitty Flanagan: Yes, yes indeed I do but first let me talk you through the difference between an ethics class and a scripture class besides the obvious one that ethics is based on fact rather than fiction (laughter from the panellists). Scripture classes as I remember it involved a slightly mad, little, old lady telling you about drinking the blood of Jesus. That’s right, the Catholics were way ahead of the vampire thing, well before Twilight (laughter from the panellists). But you know some parents, they got a little sick of their children coming home and asking questions like, ‘Hey Mum, why is Jesus the only Messiah who comes in wafer form?’ So instead ethics classes were offered as an alternative solution. Now, in ethics classes, children are presented with dilemmas, situations like this, and asked to consider whether this would be fair or unfair (picture of a blackboard with the following dilemma):</p><p>Naomi found some money in the playground and handed it to the teacher. As no-one came to collect the money, the teacher let Naomi keep it.</p><p>1 http://7pmproject.com.au/about-7pm-project.htm</p><p>ACMA Investigation Report –The 7PM Project broadcast by TVQ on 22/6/10 2 Now that is neither fair nor unfair. That is highly unlikely. A child handing in money they found in the playground. Now consider scripture, you’re not taught to consider things like that, you’re just taught absolutes. God is everywhere and God is watching everything you do, which can be a little bit creepy when you’re a child, you’re getting undressed, you’re getting in the bath. God seems a little more like a pervy, old uncle (laughter from the audience) than some omnipotent God.</p><p>Charlie Pickering: Kitty you’ve made sure we’re getting letters of complaint but can we get back to the solution that you’re offering.</p><p>Kitty Flanagan: Yes, sorry I do have a solution. I am going to teach ethics and scripture combined. I’ll call it ethics and scripture combined (laughter from the panellists) and it will look a little more like this (picture of a blackboard with the following dilemma):</p><p>Naomi found some money in the playground and handed it to the teacher which was a mistake. She should have asked God who dropped it because He sees everything. </p><p>(laughter from the audience and panellists). But it’s quite easy to put religion into the ethics debate. You could present them with solutions like this: ‘Eve tells Adam that she ate the forbidden fruit because a talking snake told her to do it (laughter from the panellists). What would Adam say?’ And obviously the correct answer is that Adam would say, ‘Have you also been eating the forbidden mushrooms?’ (laughter from the audience and panellists). You could also ask the children, ‘What would you do if your wife said she had been made pregnant by the man upstairs, otherwise known as God’. You know what I would do? I would suggest that perhaps if God had taken some ethics classes at school, he wouldn’t have been so quick to sleep with a married woman (laughter from the audience and panellists). That’s it, I’ll see you next time. </p><p>Assessment The ACMA’s assessment is based on the DVD recording of the broadcast provided to ACMA by the licensee, as well as the complainant’s and licensee’s submissions. Other sources are identified where relevant.</p><p>Issue 1: Was the broadcast likely, in all the circumstances, to provoke or perpetuate intense dislike, serious contempt or severe ridicule against any person or group on the ground of religion?</p><p>Relevant clauses Clauses 1.9.6 and 1.10 of the Code state:</p><p>Proscribed Material</p><p>1.9 A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to:</p><p>[…]</p><p>ACMA Investigation Report –The 7PM Project broadcast by TVQ on 22/6/10 3 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.</p><p>1.10 Except for Clause 1.9.3, none of the matters in Clause 1.9 will be contrary to this Section if: </p><p>1.10.1 said or done reasonably and in good faith in broadcasting an artistic work (including comedy or satire); or</p><p>1.10.2 said or done reasonably and in good faith in the course of any broadcast of a statement, discussion or debate made or held for an academic, artistic or scientific purpose or any other identifiable public interest purpose; or</p><p>1.10.3 said or done in broadcasting a fair report of, or a fair comment on, any event or matter or identifiable public interest.</p><p>Interpretation of clause 1.9.6 of the Code</p><p>The ACMA adopts the general approach set-out below, when assessing broadcast material against clause 1.9.6 of the Code. ‘Ordinary reasonable viewer test’</p><p>The ACMA considers what an ‘ordinary reasonable viewer’ would understand the broadcast conveyed. Australian courts have considered an ‘ordinary, reasonable viewer’ to be:</p><p>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 </p><p>‘Likely, in all the circumstances’</p><p>The phrase, ‘likely, in all the circumstances’, imposes an objective test3 and implies a real and not a remote possibility; something which is probable.4 ‘intense dislike’, ‘serious contempt’ and ‘severe ridicule’</p><p>When a statute or code uses words which it does not define, it is usually appropriate to apply whichever of the ordinary English language meanings are most appropriate to the context in which the words are used in the statute or code. Given the way in which the complaint is expressed, the delegate has assessed whether or not ‘severe ridicule’ and ‘serious contempt’ were provoked rather than ‘intense dislike’. The Macquarie Dictionary (Fifth Edition) includes the following definitions:</p><p> serious adjective 5. weighty or important; 6. giving cause for apprehension; critical</p><p>2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167. 3 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at 356-357 [16]. 4 See the discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD 773 at 778.</p><p>ACMA Investigation Report –The 7PM Project broadcast by TVQ on 22/6/10 4 contempt noun 1. the act of scorning or despising; 2. the feeling with which one regards anything considered mean, vile or worthless</p><p> severe adjective 1. harsh, harshly extreme</p><p> ridicule noun 1. words or actions intended to excite contemptuous laughter at a person or thing, derision. ‘On the grounds of’</p><p>The provocation or perpetuation towards serious contempt or severe ridicule against the person or group, must occur on a ground specified in clause 1.9.6, including religion. In relation to this complaint, this means there must be a causal connection between the religion of the person or group, and the feelings of serious contempt or severe ridicule which is likely to be provoked or perpetuated by the broadcast.5</p><p>Complainant’s submissions The complainant submitted to the licensee that:</p><p>I wish to inform that Channel 10 breached the Commercial TV Industry Code of Practice when it allowed Kitty Flanagan to talk about the debate on Ethics Versus Christianity…</p><p>Kitty stated “Ethics are based on facts, religion is not”. “God is a pervy, old uncle” and “God is not ethical”.</p><p>These comments caused my family and I distress because it ridiculed our faith and attacked a God we care about…</p><p>Also I’m distressed for all of the Religious Education volunteers who give up many hours and resources every week to share their faith with children. I know of chaplains in schools who work extremely hard, only to be paid poorly (not fully funded by Government) and her comments would have discouraged and humiliated them.</p><p>[... Network Ten’s Regulatory Manger], said Kitty’s comments weren’t endorsed by any of the panellists but they were certainly laughing a lot and therefore did show approval.</p><p>[Network Ten’s Regulatory Manager] also said that the episode didn’t severely ridicule Christianity but I disagree. Kitty did severely ridicule the story of Adam and Eve and also Holy Communion which she likened to the Twilight vampire series…</p><p>Licensee’s submissions The licensee submitted to the complainant that:</p><p>…The 7PM Project is a light entertainment program in which the hosts and guests discuss amongst other topics, the news of the day. The format and tone of the program is conversational, opinion-based, and at times, humorous. It usually features a variety of guests, ranging from journalists to comedians, who provide a broad range of views and opinions…</p><p>The segment to which your letter refers featured regular guest comedian, Kitty Flanagan, discussing the trial currently underway in New South Wales schools to teach ethics as an alternative to scripture. References to religion were made in a light-hearted and satirical </p><p>5 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23]. </p><p>ACMA Investigation Report –The 7PM Project broadcast by TVQ on 22/6/10 5 manner and were not intended maliciously, nor were they endorsed by any of the other panellists. We consider viewers recognise from the format and tone of these segments within the program that they are comical and are not meant to be taken seriously. Given the overall context of the comments within a humorous program sequence, we consider that the episode was not likely to provoke or perpetuate intense dislike, serious contempt or severe ridicule against Christians or Christianity, and therefore complied with the Code.</p><p>…</p><p>Finding The licensee did not breach clause 1.9.6 of the Code. </p><p>Reasons In determining whether the licensee has breached clause 1.9.6, consideration must be given to the following:  identification of the relevant individual or group;  identification of the relevant ground on which the individual/group was targeted; and  whether the broadcast provoked severe ridicule or serious contempt against the relevant individual or group. The relevant person or group of persons and the relevant grounds The Code requires that the actions complained of (in this case, severe ridicule or serious contempt) must be against a person or a group. The comments were made by the comedian Kitty Flanagan about Christian religious beliefs. Ms Flanagan commented on the Christian belief in “drinking the blood of Jesus” and eating the body of Christ, that God is watching you, in Adam and Eve and the Virgin Mary. The delegate is satisfied that the alleged actions were directed against Christians as a group and on the grounds of religion for the purposes of clause 1.9.6 of the Code. Were the comments likely to provoke or perpetuate severe ridicule or serious contempt against Christians on the ground of religion? Clause 1.9.6 sets a high threshold for the likely effect of prohibited material. The definitions of ‘severe ridicule’ and ‘serious contempt’ set out above indicate that the Code contemplates a very strong reaction to the prohibited behaviours. It is not sufficient that the behaviours induce a mild or even strong response. The delegate has assessed the comments made by Kitty Flanagan and the complainant’s concerns in the context of the broadcast as a whole, including the program’s features, as well as the content, tone and language of the comments. As outlined above, The 7PM Project is presented by a panel of comedians who “dissect, digest and reconstitute each day’s news”. The fact that the program is presented by comedians suggests that the discussion of the news items may provoke laughter and can involve comments and depictions which are irreverent and satirical. One of the panellists in this case introduced a guest comedian, Kitty Flanagan, to comment on a news item relating to a trial to teach ethics at school as an alternative to scripture. </p><p>ACMA Investigation Report –The 7PM Project broadcast by TVQ on 22/6/10 6 The delegate is of the view that the comments made by Kitty Flanagan ridiculed Christianity and Christians. This was reinforced by the laughter audible during the monologue from the panellists and the audience. However, these comments did not provoke or perpetuate the high level of intense reactions contemplated by the Code and underlined by the inclusion of the adjectives ‘serious’ in relation to contempt and ‘severe’ in relation to ridicule. The language and tone of the monologue— including the use of dilemmas presented to students in ethics and scripture classes— highlights its light-hearted and comedic context and this serves as a factor that dilutes the overall effect. Applying the threshold test outlined above — including the requirement to consider ‘all the circumstances’ of the broadcast—it is unlikely that the monologue was so harsh or extreme that it would perpetuate or provoke severe ridicule or serious contempt against Christians in the mind of the ‘ordinary, reasonable viewer’. It is noted that comments which merely convey negative reactions towards a person or group are not provocation. There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others. The comments made by Ms Flanagan did not stir up, incite or stimulate viewers against Christians. The delegate appreciates that the complainant and her family were personally greatly offended by the broadcast. However, for the reasons outlined above, the delegate is of the view that in the circumstances of this broadcast, the material complained about has not breached clause 1.9.6 of the Code. </p><p>Issue 2: Did the broadcast contain material which is likely to distress or offend a substantial number of viewers?</p><p>Relevant clause Clause 2.14 of the Code state:</p><p>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. </p><p>Complainant’s submissions Refer to the complainant’s submissions above at Issue 1.</p><p>Licensee’s submissions Refer to the licensee’s submissions above at Issue 1.</p><p>Finding The licensee did not breach clause 2.14 of the Code. </p><p>Reasons Clause 2.14 of the Code applies to news and current affairs programs. A ‘current affairs’ program is defined in the Code at clause 4.2 as ‘a program focussing on social, economic or </p><p>ACMA Investigation Report –The 7PM Project broadcast by TVQ on 22/6/10 7 political issues of current relevance to the community’. The 7pm Project appears to fall within the terms of that definition. The comedy is substantially based on consideration /discussion of social, economic or political issues of current relevance to the community, and the remarks made by Kitty Flanagan derived from (and focussed on) a social or political issue (classes on ethics replacing religious classes in schools) of current relevance to the community at the time of the broadcasts. Clause 2.14 applies where a licensee forms a reasonable opinion that material in a news or current affairs program is likely to distress or offend a substantial number of viewers. Such material may be broadcast by a licensee only if there is an identifiable public interest reason for broadcasting it. If the material is likely, in the licensee’s reasonable opinion, to seriously distress or seriously offend a substantial number of viewers, the licensee must provide the adequate prior warning required by clause 2.26 of the Code. In this particular case, the delegate considers that the licensee could reasonably have formed the opinion that the material complained of was not likely to distress or offend a substantial number of viewers. As indicated above, the discussion of news or current affairs items by comedians can and frequently does involve comments and depictions which are irreverent and satirical, and which provoke laughter. In this regard, the delegate considers that it is reasonable for the licensee to have formed the opinion that a substantial number of viewers of would have been familiar with the tone and nature of the comedy routine performed by Kitty Flanagan and would not likely have been distressed or offended. Accordingly, the delegate finds that the licensee did not breach clause 2.14 in this instance.</p><p>ACMA Investigation Report –The 7PM Project broadcast by TVQ on 22/6/10 8</p>