SAS Adelaide ACMA Investigation report 2991/media/Broadcasting Investig… · Web viewACMA Investigation Report 2991 ... The ACMA has considered the licensee’s compliance with

Investigation Report No. 2991File No. ACMA2013/311

Licensee Channel Seven Adelaide Pty Ltd

Station SAS Adelaide

Type of Service Commercial television

Name of Program Today Tonight

Dates of Broadcast 27 November 2012 and 31 December 2012

Relevant Code Clauses 2.4.1 and 4.3.5 of the Commercial Television Industry Code of Practice 2010

Date finalised 18 July 2013

Decision No breach of clauses 2.4.1 and 4.3.5 of the Commercial Television Industry Code of Practice 2010

ACMA Investigation Report 2991 – Today Tonight broadcast by SAS Adelaide on 27 November and 31 December 2012

The complaintOn 10 January 2013, the Australian Communications and Media Authority (the ACMA) received a complaint concerning the program Today Tonight (the program) broadcast by Channel Seven Adelaide Pty Ltd (the licensee).

The complainant alleged that his privacy had been invaded and that the licensee had not exercised due care in selecting the material broadcast.

The ACMA has considered the licensee’s compliance with clauses 2.4.1 [care in selection of material] and 4.3.5 [privacy] of the Commercial Television Industry Code of Practice 2010 (the Code).

The programToday Tonight is a current affairs program that is broadcast across Australia on the Seven Network on weeknights from 6.30 pm to 7.00 pm. It features a number of short segments on a wide range of issues.

On 27 November 2012, a segment featured on the program (the first broadcast) about the allegedly fraudulent manner in which the complainant, a car salesman (the salesman), had dealt with a woman who purchased a second hand car from him (the customer). The reporter, the customer and others were filmed approaching the salesman at the car dealership at which he worked and following him around the building, pressing him for answers. This was followed by a brief physical altercation between the customer and the salesman before the salesman ran off. The first broadcast also included footage from previous episodes of the program showing other members of the salesman’s family.

On 31 December 2012, a second segment (the second broadcast) was broadcast on the program showcasing some of ‘the highs and lows’ on the program over the previous 12 months. This included excerpts from the first broadcast, including footage of the salesman and references to him by name.

The first broadcast had a duration of over nine minutes and the relevant portion of the second broadcast ran for just over one minute.

Transcripts of the broadcasts can be found at the Appendix.

AssessmentThe ACMA’s assessment is based on submissions from the complainant, submissions from the licensee and a copy of the broadcast provided by the licensee. Other sources used 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.

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. 1

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

ACMA Investigation Report 2991 – Today Tonight broadcast by SAS Adelaide on 27 November and 31 December 2012 2

In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn. Once this test has been applied to ascertain the meaning of the material broadcast, it is for the ACMA to determine whether there has been a breach of the Code.

Issue 1 – care in selection of material for broadcastRelevant Code clause

Classification of Other Material

2.4 All other material for broadcast: Subject to Clauses 2.3 and 2.4.1, all other material for broadcast must be classified according to the Television Classification Guidelines (set out in Appendix 4) or, where applicable, the stricter requirements of Section 3: Program Promotions and Section 6: Classification and Placement of Commercials.

2.4.1 Exception for news, current affairs and broadcasts of sporting events: these programs do not require classification, provided that the licensee exercises care in selecting material for broadcast having regard to:

2.4.1.1 the likely audience of the program; and

2.4.1.2 any identifiable public interest reason for presenting the program material.

SubmissionsIn correspondence to the licensee dated 21 December 2012, the complainant submitted that:

[...]

I wish to express my absolute disgust with today tonight Adelaide and [the reporter], how can [they] harass me and [physically] assault me and then laugh in my face as it happens!

[...]

This is offensive to watch 7 people physically assaulting one frail person.

[...]

In correspondence to the ACMA, received on 10 January 2013, the complainant submitted that:

[...]

The show aired on Tuesday the 27th November 2012 [...] & 31st December 2012[...]

[...]

During the footage they laughed at the situation and in my opinion this is not laughable. Bullying someone on Television is not a laughing matter [...]

[...]

[The reporter] incites violence [...]

[...]

This is a clear breach of the code of conduct, and indeed a clear violation of code [...] 2.4.1 [...]

[...]


In correspondence to the complainant dated 23 January 2013, the licensee submitted that:

[...] the matters raised in [the program’s] report were undoubtedly of significant public interest, at the very least raising a number of important consumer issues.

[...]

In correspondence to the complainant dated 25 January 2013, the licensee submitted that:

[...]

The matters which were the subject of broadcast [...] were matters of clear public interest. Those matters were properly investigated by [the licensee] and were presented in a factual manner which was both fair and accurate.

[...]

FindingThe licensee did not breach clause 2.4.1 of the Code.

ReasonsUnder the Code, current affair programs do not require classification, provided that the licensee exercises care in selecting material for broadcast, having regard to the likely audience of the program and any identifiable public interest reason for presenting the program material.

The segment broadcast on 27 November 2012, and broadcast in part on 31 December 2012, features a dissatisfied customer of a car dealership and her mother confronting a salesman. The segment commences with a Today Tonight reporter, the customer and her mother following the salesman through a warehouse into an office hallway whilst asking questions relating to a sum of money that they felt the car dealership needed to repay the customer.

Both broadcasts include depictions of the customer and her mother grabbing and holding the body and clothing of the salesman and blocking his path as he attempts to get away. At one stage, the reporter states that the customer has tackled the salesman to the ground. The accompanying footage features the customer lying on the ground, holding on to the salesman. The segment concludes with the salesman removing his shirt to escape being held by the customer and her mother.

Additional footage in the segment, broadcast on both 27 November and 31 December 2012, shows a male, identified as the car salesman’s grandfather, standing in front of an office as the Today Tonight reporter tries to interview him. A voiceover states ‘like father [name of father], one time footy champion and fallen millionaire, now used car salesman’. At the end of the voiceover, the salesman’s grandfather is shown slapping at the reporter’s face saying ‘take it [the camera] away’. The reporter is heard to say ‘don’t you hit me mate’. It does not appear that the salesman’s grandfather makes contact with the reporter’s face.

During the 27 November 2012 broadcast, the reporter conducts a one-on-one interview with the customer after the visit to the car dealership. During the interview, he questions her about the tackle and both the reporter and the customer laugh. Given the stress caused by her interactions with the car dealership, it appears that the reporter is using humour to relax the customer during this interview, rather than making light of her claims or behaviour.


It is evident from the segment that the customer is dissatisfied with the service provided by the car dealership and that the salesman does not wish to answer questions relating to alleged unpaid monies on camera. The segment depicts the customer and her mother grabbing at and holding onto the salesman and attempting to block his movements, however, the footage broadcast by the licensee has been carefully selected and edited. In this regard it is noted that the alleged tackle is not broadcast and, while the grandfather is seen slapping at the reporter, no contact is shown. The attempts by the customer and her mother to confront the salesman result in pushing and shoving, including by the salesman, but not physical violence. Further, the reporter does not appear to be inciting violence as at one point he is clearly heard stating ‘All right, let him go’.

Given the circumstances presented in the segment, the actions of the customer and the salesman are understandable. While the audience may have included children, given the current affairs content of the program, it is unlikely that children would have viewed the program without adult supervision or would have comprised a significant proportion of the audience. It is considered that the material is not unsuitable for the likely viewing audience.

Further, there is a recognised public interest in consumer affairs. The ACMA considers that the segment is of public interest in that it reports on consumer concerns about the activities of a company.

Given the above, the ACMA is of the view that the licensee exercised care in selecting material for broadcast having regard to the likely audience of the program and an identifiable public interest.

Issue 2 – privacyRelevant Code clause

News and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensees:

4.3.5 must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast;

4.3.5.1 subject to the requirements of clause 4.3.5.2, a licensee will not be in breach of this clause 4.3.5 if the consent of the person (or in the case of a child, the child’s parent or guardian) is obtained prior to broadcast of the material;

The ACMA’s Privacy guidelines for broadcasters, December 2011 (the privacy guidelines) explain the ACMA’s approach to assessing compliance with the privacy obligations in broadcasting codes of practice.

SubmissionsThe complainant submitted the following:

I wish to express my absolute disgust with Today Tonight Adelaide and [the reporter’s name], how can they harass me and physically assault me and then laugh in my face as it happens! And then put it on national television. They burst into my warehouse on the 22 November 2012 after keeping me there by way of a ‘fake customer’.


The complainant also submitted:

This is a ... clear violation of code ...4.3.5...

The licensee responded to the complainant that:

There can be no question of a breach of personal privacy. To approach you at the business premises regarding the representations and promises made to [F] and seek your response was entirely appropriate.

FindingThe licensee did not breach clause 4.3.5 of the Code.

ReasonsIn considering whether the licensee complied with clause 4.3.5 of the Code, the ACMA considers:

> Was a person identifiable from the broadcast material?

> Did the broadcast use material disclosing personal information or intrude upon the person’s seclusion in more than a feeling way? 2

If the answer to both of the above questions is yes, a breach of clause 4.3.5 of the Code has occurred, unless it was in the public interest to broadcast the material.

Was a person identifiable from the broadcast material?

As explained in the privacy guidelines, a person is identifiable from a broadcast (including audio or visual material) if the person’s identity is apparent or can reasonably be ascertained.

The ACMA is satisfied that the salesman was identifiable from the broadcasts - he was referred to repeatedly by name and his face was shown a number of times.

Was there an invasion of a person’s privacy?

Clause 4.3.5 of the Code protects against the broadcast of material that:

relates to a person’s personal or private affairs – for example, by disclosing personal information; or invades a person’s privacy – for example, by intruding upon the person’s seclusion. 3

The ACMA considers that the broadcasts did not disclose details of the salesman’s personal or private life of the nature referred to in the privacy guidelines.4 In this regard, it is noted that the broadcast was limited to information relating to the salesman’s business dealings.

However, the ACMA is of the view that the broadcasts invaded the salesman’s privacy by intruding upon his seclusion.

2 Page 2 of the privacy guidelines.3 Page 2 of the privacy guidelines.4 These include ‘facts about a person’s health, personal relationships, financial affairs, sexual activities,

and sexual practices and preferences. It can also include information about a person’s racial or ethnic origin, political opinions, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a professional or trade association, membership of a trade union, criminal records and other sensitive personal matters’: page 3 of the privacy guidelines.


As explained by the privacy guidelines, the test under the Code involves determining whether or not a person’s seclusion was intruded upon. This may occur where:

[the person] would have a reasonable expectation that [their] activities would not be observed or overheard by others; and

a person of ordinary sensibilities would consider the broadcast of these activities to be highly offensive. 5

The invasion must be more than fleeting and may occur in a public space.

The ACMA notes the following in relation to the broadcasts:

The salesman was confronted in his workplace (a large warehouse) by the reporter, the customer and a camera crew.

It was apparent that: the salesman was taken by surprise by the entrance of these people onto his work premises, they had gained entry without his consent, and that their presence was unwelcome to the salesman.

The salesman was followed to a small office within the warehouse. Upon reaching the office, he closed the door behind him. The door of the office was then forced open by the reporter who, along with the cameraman and the customer, followed the salesman inside, where the camera continued to film the events.

The reporter was assertive and insistent towards the salesman.

The ACMA considers that the salesman had a reasonable expectation that his activities would not be observed or overhead by others in his private working premises. Given the features of the broadcast described above, the ACMA further considers that a person of ordinary sensibilities would consider the broadcast of the unannounced and unwelcome visit to be highly offensive.

The ACMA therefore considers that the broadcasts constituted an invasion of the salesman’s privacy.

Was the invasion of privacy in the public interest?

As the privacy guidelines explain:

The broadcast of private information or material that invades privacy, without consent, will not breach the codes if there is a clear and identifiable public interest in the material being broadcast. 6

In order to be in the public interest, a broadcast must be reasonably necessary to contribute to the public’s knowledge and understanding of the issues involved in the overall subject, or be reasonably necessary for the protection of the public, or for some other genuine reason that furthers the public interest. 7

The privacy guidelines specifically cite the conduct of businesses and corporations as examples of public interest issues.

5 Page 4 of the privacy guidelines.6 Page 5 of the privacy guidelines.7 See investigation #2734.


The ACMA considers that despite the invasion of privacy that occurred during the broadcasts, there was an identifiable public interest in broadcasting the material – namely, that the broadcast contributed to the public’s understanding and awareness of the salesman’s business practices, in particular, representations made to the customer about the car and also about the return of her money.

The ACMA considers that broadcasting the reporter and the customer seeking an explanation from the salesman, coupled with his refusal to discuss the matter and apparent evasiveness on the issue, contributed to the public’s understanding of the subject matter.

As such, the ACMA is satisfied that there was an identifiable public interest in broadcasting the material.

Accordingly, the licensee did not breach clause 4.3.5 of the Code.


AppendixTranscript of the broadcasts

C = the SalesmanB = the Salesman’s fatherA = the Salesman’s grandfatherF = the customerL = the customer’s mother

The first broadcast on 27 November 2012

Presenter – Welcome to the program. First tonight, the three generations of dodgy Adelaide car dealers still at it, ripping off customers. The [salesmen’s family name] family has a notorious history, as this program has revealed over the years, patriarch [A] is still in the used car business, where he’s now been joined by his criminal son [B] and [his] eldest son [C]. But a young, innocent African girl named [F] mistakenly put her faith and trust in them, only to learn the car they sold her was 12 years older than she was told. And that pitted [Reporter’s name] against the [salesmen’s family name] yet again.

Reporter – You’re a crook! You’re a crook hiding behind a door! Can you give her an explanation please! Where’s her money? [C]. Where’s her money!

F – Where’s my money?

Reporter – Where’s her money?

F (to C) – Where is my money, [C]?

F – I kept trusting that they were saying the truth. I never knew ... they were like serpents. A snake will always be a snake, no matter how many times it changes its skin. It’s still a snake, so...

Reporter – Well, not only a snake, but it’s three generations of snakes, isn’t it!

F – (Laughs). Three generations.

Reporter – Yes, for the [salesman’s family name], as this program has revealed in the past, have a dubious history of business dealings. Like father [A], a one-time footy champion and fallen millionaire, now used car salesman.

[Physical scuffle involving A and the Reporter].

Reporter – Like son [B], a convicted fraudster and jailbird.

Reporter (to B) – Career crim. You just can’t go straight, can ya?

Reporter – And now like grandson [C], who has taken to the dodgy family car business like a duck to water.

Reporter (to C) – You’ve taken her money, you’ve lied, you’ve promised to pay her, your father has promised to pay her, you owe her $7,000.

F – They have a family history of lies, of deceit, fraud – they are very fraudulent. They just take every opportunity to get things from people that does not belong to them. Which is not good.


Reporter – But this clan got more than they bargained for when they tried to take 25-year-old Nigerian student [F] for a ride.

F (to B) – Where’s my money? You are running away!

F – I’m a young girl and I’m an African. So they would never think I would think out of the box to seek help in getting my money.

Reporter – For the past five weeks, [F] has been fruitlessly trying to get back $6,900 from the [salesmen’s family name] car warehouse at [suburb] after she had returned a Commodore from there months before because they failed to give her the rego papers.

F – I got a Nissan Skyline. And I’ve been telling [C] I’m going to trade in my Commodore but, I don’t want any car that is less than 2002 model.

Reporter – When you saw the Skyline, what did it show?

F – Ummm, it was presented very well, it looked really good, but I don’t know cars that much. So I really couldn’t see if it was a 2010 model as he said or not.

Reporter – [C] sealed the deal with an absolute whopper of a lie: that it’s a wonder that he was stupid enough to think he could get away with it.

F – He told me it was a 2010, and that night I tried to cancel the Commodore insurance and started new insurance on the Skyline. I called my insurance company, they couldn’t get the details. The guy that attended to me was like: ‘Are you sure the details of this car you’re giving me are correct?’

Reporter – Well, the truth is, the Skyline was in fact a 1998 model. [The salesman] got [F] to sign a mostly blank sales contract, then filled the holes later. And here’s where his deception begins to unravel: showing both the year of manufacture and compliance dates as 1998 and the year of first registration as an improbable 2010, with a dubious odometer reading of 61,000 kilometres.

F – How I got to know it was a 1998 car was I went on the internet, typed in ‘Nissan Skyline Alt34’, only to find that it’s a 1998 model, so I sent him a message.

Voiceover (F’s text message) – Why will you sell me a 1998 model car as 2010?

Voiceover (C’s text message) – Hey I have been busy. Now the car is a 1998 built 2010 complied so therefore it is a 2010.

Voiceover (F’s text message) – But what does that mean?

Voiceover (C’s text message) – Ok so because the car is an import it was imported into Australia in 2010.

Reporter – Totally false and misleading conduct, all backed up by [C’s] crooked crim of a father [B] in another SMS.

Voiceover (B’s text message) – If it is registered 2010 in Australia that is good a very good deal for you.

Voiceover (F’s text message) – No, it was sold as a 2010 model.

Reporter – When they woke up to the fact [F] was one step ahead of them, [B] promised to return the money.

Voiceover (B’s text message) – Dear [F], $6,900 has been transferred electronically today 16/11/2012 into your account receipt no MA 409156 thank you any problems let me know.


Voiceover (F’s text message) – Good am I [sic] continually checked my account all day yesterday and still doing same today, but the money is not reflecting.

Voiceover (B’s message) – It may take a couple of days but all was done cheers.

Reporter – Yet another porky pie – even the receipt was phony. So then [F] was fobbed off to the old footy champ [A], who holds the dealer’s licence.

F – I couldn’t reach him. Then suddenly, there was this allegation of fines on the car Commodore. After four weeks now you’re telling me there are fines on this Commodore?

Reporter – So she called traffic police herself and learned there was just one fine outstanding; it had been sent to the wrong address they’d provided. It’s now been paid, but still no sign of her money, forcing her to rely on taxis and buses to get her to uni and home late at night after working an afternoon shift at a nursing home.

Reporter (to F) – And it’s very difficult, isn’t it?

F – Very difficult.

Reporter (to F) – And financially it’s a strain?

F – Yeah, and aside from the finance, I’m a lady – how safe is it for me to walk at night on the streets all by myself?

Reporter – She did get an SMS from big [C] mocking her devout Christian values.

Voiceover (salesman’s C’s text message) – Numbers 14:18 (KJV) ‘The LORD is slow to anger and abounding in steadfast love, forgiving iniquity and transgression, but he will by no means clear the guilty, visiting the iniquity of the fathers on the children, to the third and the fourth generation.

Reporter – It’s a sure bet [C] didn’t comprehend his own message. So we paid him a visit with [F] and her mother [L].

Reporter (to C) – Deceit and dishonesty runs in your family, doesn’t it? Where’s her money, [C]? You promised to pay her money, you failed the promise that it was deposited in the bank, where is it? Where is the money?

Reporter – [C] had nothing to say.

Reporter (to C) – All you have to do is just answer this question. Where is her money?

[Scuffling]

F – Don’t run away! Don’t run away!

C – Leave me... leave me alone! Leave me alone!

L – You can’t take our money...and run away.

[Indistinct shouting]

Reporter – All right, let him go...

[Indistinct shouting]

Reporter – Making a dash to the door before being caught by a fleet-footed leap by [F].

C – Get away from me you idiots! Get away from me!

Reporter – Where’s her money? Give her an answer! Where is her money?

C – Get away from me!


Reporter – Where is her money?

[Indistinct shouting].

Reporter (to F) – You tackled him! You’re very quick!

F – (Laughter). That was the only thing I could do, anyway. Just to chase him! And get him to tell me when I would get my money.

L – What are you trying to do?

Reporter – Let him go.

Reporter – What an irony. A dodgy car dealer losing his shirt.

F – (Laughter). He knew he was... well... he actually had to... pull his shirt off to let himself go. It was the shirt I held, not the pants. Because I definitely would not pull his pants and let go. (Laughter).

Reporter (to F) – Well, that would have been something!

Reporter – [F] hasn’t lost faith that Consumer Affairs will now help her get her money back and take action against the business trading as [business name].

F – Left to me, that business should close down because if it does not close down, all the people that would not hear of my story will fall victim as well.

Presenter – Unbelievable, isn’t it? Now, Consumer Affairs is investigating, [the Reporter’s name] with that report.

The second broadcast on 31 December 2012

Presenter – Good evening, welcome to the program, glad to have you with us. Later, the Adelaide 36ers fans slam-dunked; the NBL’s foul play on [J]’s $5,000 miracle shot. But first tonight, the highs and lows of 2012; the scoundrels we went after, the local investigations that exposed wrongdoing and the people TT helped along the way.

[Physical scuffle involving the B and the Reporter].

Reporter – 2012 saw its fair share of shonks, scurrilous scam-artists and those just out to exploit an opportunity.

[This was followed by a recap on an unrelated segment, which had a duration of approximately a minute].

Reporter (to C) – You’re a crook hiding behind a door!

Reporter – Deception and dishonesty runs deep in the [family name] family.

F – A snake will always be a snake, no matter how many times it changes its skin.

Reporter – We’ve faced off with patriarch [A], an SANFL champion of the past...

[Physical scuffle between [A] and the Reporter is repeated].

Reporter - ...his son [B]...

Reporter (to B) – Career crim. You just can’t go straight, can you?


Reporter - ...and now his grandson [C].

Reporter (to C) – You’ve taken her money, you’ve lied, you’ve promised to pay her...

Reporter – The car yard where [A] holds the dealer’s licence deceived a young African student by selling her a 14 year-old car they told her was a 2010 model.

C – Leave me alone!

[Physical scuffle, indistinct shouting].

Reporter – Despite taking back the car, the [salesmen’s family name] have still refused to refund almost $7,000 to [F], who refuses to give up the chase, even if police and Consumer Affairs have abandoned her.

L – What are you trying to do?

Reporter – Let him go.

[The broadcast then went on to examine other irrelevant matters].


Documents

SAS Adelaide ACMA Investigation report 2991/media/Broadcasting Investig… · Web viewACMA Investigation Report 2991 ... The ACMA has considered the licensee’s compliance with