ABC Canberra - ACMA Investigation report 3025/media/Broadcasting... · Web viewACMA Investigation Report 3025 – ABC News. ... MR PAUL HOWES: Frankly, if Christine Milne wants

Investigation Report No. 3025

File No. ACMA2013/665

Broadcaster Australian Broadcasting Corporation

Station ABC Canberra

Type of Service National broadcaster

Name of Program ABC News

Date/s of Broadcast 19 February 2013

Relevant Code Standards 2.1, 4.1, 4.5, 5.3 and 5.4 of the ABC Code of Practice 2011

Date finalised 17 July 2013

Decision No breach of standards 2.1, 4.1, 4.5, 5.3 and 5.4 of the ABC Code of Practice 2011

ACMA Investigation Report 3025 – ABC News broadcast by ABC Canberra on 19 February 2013

Background The complaint concerns a segment of the ABC News broadcast by the Australian

Broadcasting Corporation (the ABC) on 19 February 2013.1

ABC News is a 30 minute news bulletin. In this case it was broadcast by ABC Canberra to viewers in the ACT.

The three minute segment entitled ‘Support slipping’ reported that support for the leadership of the then Prime Minister, the Hon Julia Gillard MP (Ms Gillard) was ebbing away and that several MPs close to her had told ABC that caucus sentiment was shifting. It referred to attitudes to a possible return to the leadership of the Hon. Kevin Rudd MP (Mr Rudd). The segment also featured commentators making remarks about the leadership, and reported that the Australian Greens Party (the Greens) were ‘cutting themselves loose from Labor fearing they could lose power in the Senate in a coalition landslide’,

The relevant material was a statement by reporter Mark Simkin, “One despondent Gillard backer has told the ABC there’s been a significant shift in sentiment inside caucus. In the source’s words, people are weighing up the ethics of negotiating with a terrorist – a reference to a Kevin Rudd comeback”. A transcript of the segment is at Attachment A.

The complaint to the ACMA is that the term ‘terrorist’ is inaccurate, highly pejorative and damaging. The complainant cited Standard 4.5 of the ABC Code of Practice 2011 (the Code) [do not unduly favour one perspective over another], and also claimed that it was inappropriate to use an anonymous source to report the statement and said that Mr Rudd should have been given an opportunity to respond. The complaint is set out at Attachment B.

Extracts from the ABC’s response to the complainant and to the ACMA are at Attachment C.

The ACMA has investigated the ABC’s compliance with standards 2.1, 4.1, 4.5, 5.3 and 5.4 of the Code:

Accuracy

2.1 Make reasonable efforts to ensure that material facts are accurate and presented in context.

Impartiality

4.1 Gather and present news and information with due impartiality

4.5 Do not unduly favour one perspective over another

Fair and honest dealings – opportunity to respond and attributing to a source

5.3 Where allegations are made about a person or organisation, make reasonable efforts in the circumstances to provide a fair opportunity to respond

5.4 Aim to attribute information to its source.

1 For clarity, the ACMA notes that the complainant in this matter was not Mr Rudd. In line with its usual processes, the ACMA took into account submissions from the complainant and broadcaster about the substance of the matters in this report. The ACMA did not require or seek submissions from Mr Rudd or other parties.

ACMA Investigation Report 3025 – ABC News broadcast by ABC Canberra on 19 February 2013 2

Assessment This assessment is based on submissions from the complainant, submissions from the ABC, and

a 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’ listener/viewer. Australian 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. 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 asks what the ‘ordinary reasonable’ listener/viewer would have understood the 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.

Issue 1: Accuracy

FindingThe ABC did not breach standard 2.1.

ReasonsStandard 2.1

The Code requires that the standards are interpreted and applied in accordance with the Principles applying in each Section. Relevant Principles in relation to accuracy include the following:

Types of fact-based content include news and analysis of current events, documentaries, factual dramas and lifestyle programs. The ABC requires that reasonable efforts must be made to ensure accuracy in all fact-based content. The ABC gauges those efforts by reference to:

the type, subject and nature of the content;

the likely audience expectations of the content;

the likely impact of reliance by the audience on the accuracy of the content; and

the circumstances in which the content was made and presented.

The ABC accuracy standard applies to assertions of fact, not to expressions of opinion. An opinion, being a value judgement or conclusion, cannot be found to be accurate or inaccurate in the way facts can. The accuracy standard requires that opinions be conveyed accurately, in the sense that quotes should be accurate and any editing should not distort the meaning of the opinion expressed.

The efforts reasonably required to ensure accuracy will depend on the circumstances....

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


The ABC should make reasonable efforts, appropriate in the context, to signal to audiences gradations in accuracy, for example by querying the interviewees, qualifying bald assertions, supplementing the partly right and correcting the plainly wrong.

Further considerations which the ACMA applies in assessing whether particular broadcast material is factual in character are set out at Attachment D.

In this case, the context of the segment was a report on diminishing support for the then Prime Minister, Ms Gillard, which included references to a possible return to leadership by Mr Rudd.

The ACMA accepts the ABC’s submission that, in this context, the word ‘terrorist’ was not used in a literal sense and that viewers would not have understood it to suggest that Mr Rudd had been accused of committing an act of terrorism. On this basis the statement was not an assertion of fact.

By the use of the phrase ‘in the source’s words’ following a reference to a supporter of Ms Gillard who was describing the changing sentiments of caucus members, the statement was clearly attributed as a direct quote to the source.

There is no evidence that the statement was not correctly quoted or that its meaning was distorted. The ACMA considers that the material was not taken out of context, and did not misrepresent what was said by the source.

Accordingly, the ABC did not breach standard 2.1 of the Code in relation to the segment.

Issue 2: Impartiality

FindingThe ABC did not breach standards 4.1 or 4.5 of the Code.

Reasons Relevant principles in relation to impartiality and diversity of perspectives include the following:

Judgements about whether impartiality was achieved in any given circumstances can vary among individuals according to their personal and subjective view of any given matter of contention. Acknowledging this fact of life does not change the ABC’s obligation to apply its impartiality standard as objectively as possible. In doing so, the ABC is guided by these hallmarks of impartiality:

a balance that follows the weight of evidence; fair treatment; open-mindedness; and opportunities over time for principal relevant perspectives on matters of contention to be

expressed ...Impartiality does not require that every perspective receives equal time, not that every facet of every argument is presented.

Assessing the impartiality due in given circumstances requires consideration in context of all relevant factors including:

the type, subject and nature of the content; the circumstances in which the content is made and presented; the likely audience expectations of the content;


the degree to which the matter to which the content relates is contentious; the range of principal relevant perspectives on the matter of contention; and the timeframe within which it would be appropriate for the ABC to provide opportunities

for the principal relevant perspectives to be expressed, having regard to the public importance of the matter of contention and the extent to which it is the subject of current debate.

Further considerations to which the ACMA has regard in assessing the ABC’s compliance with standard 4.1 of the Code are found at Attachment E.

Standard 4.1

As noted above, the quote about Mr Rudd was part of a segment reporting more broadly on the slipping support for Ms Gillard’s leadership, it was not an assertion of fact and there is no evidence that it was quoted inaccurately.

The ACMA notes the submissions by the ABC in its response to the complaint that, ‘while the language was colourful, it was effective in demonstrating the strength of feelings of some in the caucus and was therefore editorially justified’ and that, ‘the story outlined how caucus sentiment is shifting and members, including members who previously [had] not supported Mr Rudd, are reconsidering the desirability of electing him to the leadership’.

As indicated in the ABC principles concerning impartiality and the ACMA’s considerations at Attachment E, impartiality does not require that every facet of every argument is presented; and a program that presents a perspective that is opposed by a particular person or group is not inherently impartial.

In this case there were no editorial comments made by the reporter in relation to the quote, and as such, the reporter did not convey prejudgement or give effect to his affections or enmities in the segment. Further, the language and tone used throughout the segment was neutral, and the relevant statement was presented in context.

The ACMA also considers that the relevant material was not unfairly selected in that it related directly to the subject of the segment being the changing support within caucus for Ms Gillard’s leadership. Further, in the context of the segment as a whole, there was no undue emphasis placed on the statement about Mr Rudd.

The ACMA considers that, given the type, subject and nature of the content and the circumstances in which it was presented, the omission of a response from Mr Rudd in relation to the statement did not make the presentation of the material impartial or unbalanced.

Accordingly, the ACMA considers that the material was not presented in breach of standard 4.1.

Standard 4.5

The ACMA considers that the presentation of the relevant material did not favour one perspective over another, but rather reported on various key views within the Labor Party about Ms Gillard’s leadership, the sentiment within caucus at that time, and the withdrawal of support by the Greens.

Overall, the ACMA considers that the segment was balanced, in that it presented the principal relevant perspectives in this context of the segment.

Accordingly, the ABC did not breach standard 4.5 of the Code in relation to the segment.


Issue 3: Fair and honest dealings – opportunity to respond and attributing to a source

FindingThe ABC did not breach standards 5.3 or 5.4 of the Code.

ReasonsStandard 5.3 The ABC has submitted that, in the context used, the term ‘terrorist’ ‘did not constitute an

allegation against Mr Rudd and there was, therefore, no requirement to offer a right of reply.’

In order to determine whether the ABC has complied with the requirements of standard 5.3, the ACMA must determine:

Was an allegation made about a person or organisation?

Were reasonable efforts made in the circumstances to provide a fair opportunity for that person or organisation to respond?

As discussed above, the ACMA accepts that the segment did not contain a factual assertion alleging that Mr Rudd was a terrorist. Rather the phrase would have been understood to describe the attitude of ‘Gillard backers’ in caucus towards the possibility of a leadership bid by Mr Rudd in light of the slipping support for Ms Gillard.

As there was no allegation of fact made against Mr Rudd in the segment, the ACMA accepts the ABC’s submission that there was not a requirement to provide Mr Rudd with an opportunity to respond under standard 5.3 of the Code in relation to the segment.

Standard 5.4

From the wording of the relevant statement it is clear that the ABC relied on an anonymous source. The complainant suggests that simply reporting the view of an anonymous source would not entitle the reporter to attack Mr Rudd’s character.

In the segment the source was described as a ‘despondent Gillard backer’ who was apparently from within caucus, commenting on caucus sentiment. The ABC has submitted that’ reporting on the tenor of caucus discussions frequently requires source protection’.

The ACMA accepts that in this case, the source was in a position to comment on the caucus and was highly placed and that any more detail about the source would have been likely to disclose his or her identity.

The ABC has published a Guidance Note on Attribution/Anonymity of sources that deals specifically with the interpretation of standard 5.4 of the Code (relevant extracts below at Attachment F). In the Guidance Note, the following is stated:

While anonymity for sources is justifiable in some cases, it should be the exception not the rule. Circumstances in which a source is given a commitment that his or her identity will be protected should involve the public interest in the free flow of information. It is not enough that anonymity merely serves the source’s convenience. The information the source is conveying should have genuine public interest value.


The ABC further submitted that, ‘Here, the information the source was conveying had genuine public interest value as it related to the leadership of the Government’.

The ACMA has considered the ABC’s submissions, and the factors outlined in the ABC’s guidance note, and notes:

the ABC’s submission that disclosure by the anonymous source was in the public interest as it related to the stability of the leadership of the government

the ACMA has no evidence to suggest that the source disclosed the information purely as a personal attack on Mr Rudd

revealing the identity of the source would likely have had serious repercussions for the individual involved given that he or she would have an ongoing professional relationship with other members of caucus including Mr Rudd

the form of attribution was sufficient in the circumstances to give the audience an opportunity to weigh the reliability of the information

the descriptor was not misleading.

The ACMA is satisfied that the use of an anonymous source was appropriate in the circumstances.

Accordingly, the ABC did not breach standards 5.3 or 5.4 of the Code in relation to the segment.


Attachment A

Transcript of the segmentPRESENTER: Her senior ministers are rallying behind her, but support for Julia Gillard’s leadership is ebbing away. Several MPs close to the Prime Minister have told the ABC that caucus sentiment is shifting and all it would take to test it is a trigger. The Greens are already cutting themselves loose from Labor, fearing they could lose their power in the Senate in a coalition landslide. From Canberra here’s chief political correspondent Mark Simkin.

REPORTER, MARK SIMKIN: Modern Labor. What a wild party.

CONFERENCE HOST: You’ll be hearing from Paul Howes, The Honourable Julia Gillard and Bill Ludwig. We've got a band and we've got alcohol. Aha, ha ha ha!

MARK SIMKIN: The Australian Workers Union is in the front line of Julia Gillard's Pretorian guard.

NATIONAL SECRETARY MR PAUL HOWES: Thank you for being here, PM. Thank you for your honour. And we've got ya back!

THE HON WAYNE SWAN MP: Now we can win. We can win, and we have to win.

ALL: (sings) Solidarity forever!

MARK SIMKIN: There's still strong support for the Prime Minister here, but privately, even loyalists now acknowledge Labor's current course is unsustainable. One despondent Gillard backer has told the ABC there's been a significant shift in sentiment inside caucus. In the source's words, people are weighing up the ethics of negotiating with a terrorist - a reference to a Kevin Rudd comeback.

THE HON SIMON CREAN MP: I think that the Labor Party model in changing leadership every time there's a bad poll is broken and discredited.

MARK SIMKIN: Numbers aren't being counted and the key powerbrokers are still solid, but their troops are said to be much less enthusiastic.

THE HON BILL SHORTEN MP: We have to be true to ourselves. I believe Julia Gillard is a tough leader for tough times.

MARK SIMKIN: So tough, her key ally is heading for the door. A break-up announced on national television.

SENATOR CHRISTINE MILNE: Labor has effectively ended its agreement with the Greens. Well so be it.

MARK SIMKIN: Christine Milne declared the power-sharing deal void, but it's a symbolic split. She's still guaranteeing confidence and supply.

SENATOR CHRISTINE MILNE: We will see this Parliament through to its full term. The Greens will not add to the instability that Labor creates every day for itself.

MARK SIMKIN: It's a sign the Greens see the writing on the tally-room wall. Worried about the Coalition controlling the Senate, the party wants to distance itself from the Government.


THE HON ANTHONY ALBANESE MP: I think that the Greens are - are very much a political party that act out of politics first and political principle second.

MR PAUL HOWES: Frankly, if Christine Milne wants to rip up an agreement, excellent.

MARK SIMKIN: The internal splits are more painful. Many in Labor are unhappy with the government’s performance but dread a return to Kevin Rudd. Most MPs are wondering ‘how will this end’ and fearing that no matter what the party does, the answer will be – badly.


Attachment BExtracts from the complaint made to the ABC and to the ACMA

[...]

On 19 February 2013 the ABC broadcast a statement given to Journalist Mark Simkin from someone identified only as a “Gillard backer” that Mr Rudd is a “terrorist”.

The full statement was: There's still strong support for the Prime Minister here, but privately, even loyalists now acknowledge Labor's current course is unsustainable. One despondent Gillard backer has told the ABC there's been a significant shift in sentiment inside Caucus. In the source's words, people are weighing up the ethics of negotiating with a terrorist, a reference to a Kevin Rudd comeback.

The term is inaccurate, highly pejorative and damaging to Mr Rudd’s reputation. The term “terrorist” in Australia has a well-established meaning. Mr Simkin does not even use the adjective “political terrorist”.

Mr Simkin may argue that he was simply reporting the view of a source. That would presumably entitle Mr Simkin to quote any anonymous source and use whatever descriptor that anonymous source chooses to use in attacking Mr Rudd’s character.

Furthermore, Mr Simkin chose to broadcast this language used by an anonymous source without coming to Mr Rudd or our office with an opportunity to respond. In this respect I note the following part of the ABC Editorial Policies which states: 4.5 - Do not unduly favour one perspective over another.

Moreover, the Editorial Policies repeatedly refers to the ABC’s obligations to “ensure that the gathering and presentation of news and information is impartial according to the recognised standards of objective journalism”.

Given these requirements, if Mr Rudd has been accused of being a “terrorist” it is not justifiable under the ABC’s Editorial Policies for that accusation to go uncontested by Mr Rudd and deny him the opportunity to respond. Therefore, under the terms of the Editorial Policies I request that the ABC acknowledge the lack of balance and procedural fairness in the compilation and presentation of the report and to provide an immediate apology for being party to a rolling campaign of attacks on Mr Rudd’s character.

[...]


Attachment C

Extract of submissions by the ABC to the complainant and to the ACMA

To the complainant, 7 March 2013:

[...]

The use of the word ‘terrorist’... was not intended to be understood literally and we are satisfied that in the context used, viewers would not have understood it to suggest that Mr Rudd had been accused of committing an act of terrorism....The story outlined how Caucus sentiment is shifting and members, including members who previously [had] not supported Mr Rudd, are reconsidering the desirability of electing him to the leadership. The comment was clearly intended to communicate that for some Labor MPs the notion of negotiating with Mr Rudd was difficult.

While the language was colourful, it was effective in demonstrating the strength of feelings of some in the caucus and was therefore editorially justified.

The use of the term in this context did not constitute an allegation against Mr Rudd and there was therefore, no requirement to offer a right of reply. The story included a range of views from the Labor Party, together with those of the Greens and no one perspective was unduly favoured over another.

Accordingly, while noting your concerns, Audience and Consumer Affairs are satisfied the broadcast was in keeping with the ABC’s editorial standards for impartiality.

[...]

To the ACMA 7 June 2013:

[...]

We did not assess Mr Gorman’s complaint as substantively raising concerns about compliance with 5.4. However, to the extent that ACMA considers the standard to be relevant to the complaint, we would make the point that reporting on the tenor of caucus discussions frequently requires source protection. Without such protection, sources can be reluctant to disclose information. Here, the information the source was conveying had genuine public interest value as it related to the leadership of the Government.

[...]


Attachment DConsiderations which the ACMA has regard to in assessing whether or not broadcast material is factual in character

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.

Factual material will be usually be specific, unequivocal and capable of independent verification.

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.

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.


Attachment EMatters to which ACMA has regard in relation to impartialityIn determining whether or not material complained of is compliant with the ABC’s obligations under standard 4.1 of the Code, the ACMA generally has regard to the following considerations:

The meaning conveyed by the relevant material is assessed according to what an ordinary reasonable viewer (as to which, see pages 2-3 of this report) would have understood the program concerned to have conveyed.

Achieving impartiality requires a broadcaster to present content in a way which avoids conveying a prejudgement, 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 (Fifth Edition)3 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’. ‘Bias’ is defined as: ‘a particular tendency or inclination, especially one which prevents unprejudiced consideration of a question’.

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 Legeng4 as follows:

‘Bias’ is used to indicate some preponderating disposition or tendency, a ‘propensity; predisposition towards; predilection; prejudice’.5 It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgement. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is ‘anything which turns a man to a particular course, or gives the direction to his measures’.

The relevant provision requires the ABC to ‘gather and present news and information with due impartiality’. Inclusion of the word ‘due’ indicates an element of flexibility depending on the particular context: for example, the gathering and presentation of factual information for a news bulletin may be materially different from an interview of a political figure, where challenging questions are ordinarily appropriate.

A program that presents a perspective that is opposed by a particular person or group is not inherently partial. Whether a breach of the Code 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.

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 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 prejudgement.

3 Online edition at www.macquariedictionary.com.au4 (2001) 205 CLR 507 at 563 [183] Gleeson CJ and Gummow J at 538 [100] agreeing.5 Oxford English Dictionary (Second Edition), meaning 3(a).


http://www.macquariedictionary.com.au/

Attachment FExtracts of the ABC Guidance Note – Attribution/Anonymity of SourcesPresumption of attribution

Aim to attribute information to its source [Editorial Standard 5.4]

When media provide information without attribution, audience members are denied an opportunity to consider the source for themselves and to decide how much weight to give to the information in light of who the source is.

Through agreements with media professionals, anonymous sources exercise the power of widespread disclosure of information without having to share responsibility for its reliability and for consequences of its disclosure. That responsibility lies solely with the media professionals and the outlet through which their work is disseminated.

When the ABC carries unattributed information it is, in effect, vouching for the information to the audience. The ABC is asking its audience to take the information on trust and in that way the ABC is investing some of its own credibility in the material.

[...]

Other factors to consider

In negotiating with sources, also consider the following factors --

The public interest: Whether the disclosure of the information unattributed would serve a sufficiently important public interest.

Personal attack only?: Whether disclosure of the information unattributed would amount only to a personal attack made on another person by the source under cover of anonymity provided by you.

Timeliness: Whether the information can be obtained from an attributable source of comparable reliability for disclosure to occur within a time period that would allow the public interest to be adequately served.

Form of attribution: A form of attribution which, while preserving anonymity, would give the audience an opportunity to weigh the reliability of the information, at least to some extent. Phrases like ‘sources said’ are unhelpful. The following advice adapts the New York Times’ guidance on this point to the Australian context:

‘Australian diplomat’ is better than ‘Western diplomat’, which is better than ‘diplomat’. Still better is ‘an Australian diplomat who took part in the meeting’. The phrase ‘a person familiar with the case’ is vague enough to include the reporter. Better are ‘an executive from the plaintiff company’ and ‘a staff member who has read the draft’.

No misleading descriptors: Anonymity for the source requires an investment of trust in you by the audience (and your colleagues) as well as by the source. Do not say ‘sources’, plural, if there is only one source. Do not give false forms of attribution in order to throw people off the scent of the real source: for example, ‘a parliamentary source’ when actually the source works in a department of executive government. Such actions can undermine the story as a whole and may affect the subsequent willingness of others to invest trust.

[...]


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ABC Canberra - ACMA Investigation report 3025/media/Broadcasting... · Web viewACMA Investigation Report 3025 – ABC News. ... MR PAUL HOWES: Frankly, if Christine Milne wants