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Investigation Report No. 2719

File No. ACMA2011/1833

Licensee General Television Corporation Pty Ltd

Station GTV Melbourne

Type of Service Commercial television broadcasting service

Name of Program A Current Affair

Date of Broadcast 9 August 2011

Relevant Code Clauses 4.3.1, 4.3.5, 4.3.5.2 and 4.3.7 of the Commercial Television Industry Code of Practice 2010

Date Finalised 25 May 2012

Decision Breach of clauses 4.3.5 [privacy], 4.3.5.2 [privacy of a child] and 4.3.7 [unfair identification].No breach of clause 4.3.1 [accuracy].

ACMA Investigation Report – A Current Affair broadcast by GTV on 9 August 2011

The complaintOn 15 February 2011, the Australian Communications and Media Authority (ACMA) received a complaint regarding the program, A Current Affair, broadcast on 9 August 2011 by General Television Corporation Pty Ltd, the licensee of GTV (the licensee).

The complainant was concerned that the program included inaccurate statements about himself (referred to here as Mr Y), and contained footage of himself and his children, Child A and Child B, which was broadcast without their knowledge or concern for their privacy.

The complaint has been investigated under clauses 4.3.1, 4.3.5, 4.3.5.2 and 4.3.7 of the Commercial Television Industry Code of Practice 2010 (the Code). The licensee’s compliance with clauses 4.3.1 and 4.3.7 of the Code has been investigated pursuant to section 148 and subsection 149(1) of the Broadcasting Services Act 1992 (the Act). The licensee’s compliance with clauses 4.3.5 and 4.3.5.2 of the Code has been investigated pursuant to section 170 of the Act. 1

The programA Current Affair is a current affairs program broadcast nationally at 6:30pm weeknights.

The program broadcast on 9 August 2011 included a segment titled, ‘Centrelink Shame File’. The segment counted down the ‘top six welfare rorts’ based on the number of cases the Commonwealth Director of Public Prosecutions has prosecuted for Centrelink fraud.

The segment included interviews with the General Manager of Centrelink and a 2UE presenter, as well as footage from a previous A Current Affair segment broadcast in 2006, which featured footage of Ms X and Mr Y.

The segment was introduced as:

Presenter: Now, the shame file that exposes the sort of people who are ripping off our welfare system to the tune of hundreds of millions of dollars every year. A list that Centrelink uses to target pensioners and single parents.

[...]

Reporter: We’ve obtained official Centrelink data which reveals the top six welfare rorts and the people behind them. [...] Tonight we’re counting them down to find out who are the worst of the worst.

1 Section 170 of the Broadcasting Services Act 1992 provides:The ACMA may conduct investigations for the purposes of the performance or exercise of any of its broadcasting, content and datacasting functions (as defined in the Australian Communications and Media Authority Act 2005) and related powers.

ACMA Investigation Report – A Current Affair broadcast by GTV on 9 August 2011 2

The broadcast material the subject of the complaint concerned the verbal and visual content below:

Table 1: Verbal and visual2 broadcast material the subject of the complaint:

Verbal material Visual material

Reporter: The number one welfare rort is the single parent pension, with 1,200 prosecutions in the past year.

On screen text: ‘No. 1, single parent pension’.

Reporter: We’ve been told you’ve been rorting the welfare system for the last ten years.

Ms X listening to the reporter on a public street.

Ms X: No. I don’t know what you’re on about. Ms X talking to the reporter.

Reporter: Previously we caught up with [Ms X] who had been claiming the single parent pension.

Ms X driving a car with Child A in the passenger seat.

Reporter: Even though we found evidence she was living with this man.

Mr Y walking across the street.

Reporter: She was dobbed into ACA by her own mother.

Ms X pushing Child B in a trolley in an outside market. Child A walking behind Ms X.

Ms X’s mother: She’s been lying to Centrelink to gain benefits as a single parent when she’s not been eligible. She’s been rorting the system. [...]

Ms X’s mother talking to the reporter in a room.

AssessmentThe assessment is based on:

a recording of the broadcast provided by the licensee;

the complainant’s submission to the ACMA;

the licensee’s submission to the ACMA;

correspondence between the licensee and the complainant; and

publicly available information, the source of which is relevantly identified.

Ordinary, reasonable viewerIn 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’.

2 A more detailed discussion of the visual material is at Issues 2 and 3 below.


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.3

The ACMA asks what the ‘ordinary, reasonable 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: Factual accuracy

Relevant Code clauseThe relevant clause of the Code is clause 4.3.1:

News and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensees:

4.3.1 must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;

The principles applied by the ACMA in assessing content against the obligation in clause 4.3.1 of the Code are set out at Attachment A.

Complainant’s submissionThe complainant submitted:

[...]

[T]hey labelled [Mr Y] as the fraudulent partner of [Ms X] and dipping on her pension. It’s totally wrong. [...] The point is, it’s old recycled news. And the scary part is, re-using it in the future. [...]

[The story] wasn’t researched at all, what [the reporter] did was cut bits from the original tape and makes a story out of lies [and] deception [...]. If [the reporter] did [his] research correctly [he] would have noticed that [Mr Y] and [Ms X] haven’t been together since 1994.

[The reporter stated], ‘we filmed [Mr Y] entering the house and taking out the rubbish’. I replied, ‘did you ever think, that [Mr Y] was helping out for the kids?’ Also, if [the reporter] did his research correctly [he] would have noticed that [Mr Y] had been approach by [the Department of Human Services], which [Mr Y] had an arrangement with to visit daily to help with kids.

[...]

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


Licensee’s submissionThe licensee submitted:

[...]

In response, Nine states that A Current Affair staff conducted extensive observational research into the original story prior to broadcast. This research included observing [Ms X’s] residence. We also relied on advice from her mother that she was co-habitating with [Mr Y] following her own observations.

As identified in the script of the original story below, during the observation, Nine observed [Mr Y] conducting household duties such as taking his children to school, taking in the rubbish bins and working on the family car in the garage, all while staying overnight in the home on each of the nights we observed the residence. Nine maintains on the basis of this evidence, the statement, ‘We found evidence that she was living with this man’, is correct.

The entire script of the original story is set out below, highlighted is the relevant summary of evidence we collected on [Mr Y]:

SCRIPT: - Story Name: SINGLE PARENT

[...]

[Reporter] Last week, we received this email from [Ms X’s mother].

[Voice over read of letter] My daughter has been reported more than once to Centrelink fraud for an amount far exceeding $30,000. I have reported her myself several times over the past year and nothing has been done. We are taxpayers and don’t believe fraudsters should be allowed to continue with their fraud.

[Reporter] [Ms X’s mother] had dobbed in her daughter.

[Ms X’s mother] It’s a very tough decision and I’ve considered it and I’ve weighed it up. But she needs to be brought to account for what she’s been doing for such a long time. She swears at you, she calls you names, she really has become something that’s out of control. She’s been lying to Centrelink to gain benefits as a single parent when she’s not been eligible. She’s just been rorting the system.

[Reporter] For ten years, [Ms X’s mother] and her husband claim daughter [Ms X] has been living with various men while pocketing the sole-parent pension – that’s almost $500 a fortnight. She also gets hundreds of dollars more in rent assistance, telephone allowance, cheap public transport and discounted car registration.

[Ms X’s mother] Well, I used to say to her, “You should get off the pension now, it’s not right that you have it, that you’ll get caught, that you might go to jail, you might have to pay it back or both”, and I would say that to her quite often. And her response was, “Everybody’s doing it”. We used to try to explain to her that that’s taxpayers money that she’s fraudulently receiving, but invariably there was denial.


[Reporter] We’ve been told you’ve been rorting the welfare system for the last 10 years.

[Ms X] No, no. I don’t know what you’re on about.

[Reporter] Your own mother has dobbed you in.

[Ms X] Yeah. I don’t have anything to do with my mother. She has nothing to do with me. She’s making false accusations.

[Reporter] She says you’ve defrauded Centrelink for 10 years.

[Ms X] Nuh.

[Reporter] You even went as far as, “Mum, I’ll never get caught”.

[Ms X] Nuh.

[Reporter] Is this not true?

[Ms X] No

[Reporter] For the last 10 years you’ve been collecting the sole-parent pension

[Ms X] Yeah, it’s true.

[Reporter] But you’re not living by yourself, are you, [Ms X]

[Ms X] Yes, I am.

[Reporter] Over several days, we filmed [Mr Y], the father of three of [Ms X’s] five children, play dad – taking the kids to school, bringing in the bins, fixing the family car, running errands – all while living under the same roof.

[Reporter] [Mr Y], you’re telling me you don’t live at the house?

[Mr Y] No.

[Reporter] You don’t live at the house?

[Mr Y] No.

[Centrelink representative] If someone has entered into a marriage-like relationship, then they have an obligation under law to tell us about those arrangements.

[Reporter] [Centrelink representative] admits the single-parent pension is one of the most abused benefits. This year, more than 20,000 people are being investigated for possible fraud. But he says policing this pension isn’t easy.

[Centrelink representative] Often the investigations that we have to engage in are very sensitive. We have to look at the nature of an individual’s relationship, we have to look at their financial relationship, we have to look at their domestic arrangements.


[Reporter] Why isn’t something being done? How can these women have child after child on a single-parent pension? How can they justify it? It’s ludicrous.

[Centrelink representative] It would seem clear he is living under the same roof [while observing the vision collected by Nine].

[Reporter] How do you prove it?

[Centrelink representative] Well, let me just say that what you’ve outlined is certainly a matter of concern for us, and I would appreciate being given that sort of specific information.

[Reporter] [Ms X’s] live-in partners have also enjoyed a tax-payer funded welfare lifestyle. First was [LV], the father of her other two children. He lived with [Ms X] until being sentenced to 14 years in prison for a series of rapes. Now she’s back with [Mr Y]. He got out of prison earlier this year after serving a term for armed robbery.

[Centrelink representative] Certainly you’ve raised some issues which I believe would warrant further investigation and, you know, and I’d ask you to provide us with that information.

[Reporter] Do you still love your daughter?

[Ms X’s mother] It’s very hard to. I guess deep down I do.

[Reporter] Is that why you are doing it?

[Ms X’s mother] Because I love her? No, I’m doing it because I think people should be protected from individuals like this.

[Reporter] Why would your very own mother say that?

[Ms X] Look, how many (bleep)ing times are you going to ask me? Why don’t youse just (bleep) off?!

[...]

FindingThe licensee did not breach clause 4.3.1 of the Code.

ReasonsIn considering the obligation at clause 4.3.1 of the Code that licensees must broadcast factual material accurately, the first step is to identify the material of concern. The ACMA must then assess whether the material would have been understood by the ordinary, reasonable viewer as a statement of fact or an expression of opinion and, if a statement of fact, whether it was accurate and if a viewpoint is represented, whether it was represented fairly.

In this case, the complainant is concerned that the reporter’s statement (in bold) below was inaccurate:

Previously we caught up with [Ms X] who has been claiming the single parent pension even though we found evidence she was living with [Mr Y]. She was dobbed into ACA by her own mother.


The ACMA considers that the ordinary, reasonable viewer would have understood from the reporter’s statement that the licensee had found evidence that Ms X was allegedly defrauding Centrelink by claiming the single parent benefit while living with Mr Y. The language used by the reporter, such as ‘we found evidence’, would have given the ordinary, reasonable viewer the impression that the reporter was imparting factual information that could be verified.

The licensee must broadcast factual material accurately having regard to the circumstances at the time of preparing and broadcasting the program. In assessing compliance with this provision of the Code, the ACMA considers the positive steps that the licensee took to satisfy themselves that the statement was accurate. Given that the factual material in question was pivotal in the allegation that Ms X was defrauding Centrelink, the ACMA considers that the licensee should have been certain of the accuracy of the material before broadcasting it.

In making the statement the subject of the complaint, the licensee submitted that it had ‘conducted extensive observational research’ and relied on ‘advice from [Ms X’s] mother that she was co-habitating with [Mr Y]’.

The licensee submitted that it conducted research over ‘several days’ in 2006, during which Mr Y was filmed living ‘under the same roof’ as Ms X. The segment also included an interview with Ms X’s mother who stated, ‘She’s been lying to Centrelink to gain benefits as a single parent when she’s not been eligible. She’s just been rorting the system’.

The licensee further liaised with Centrelink’s General Manager over its conclusions. It showed the footage it had filmed to Centrelink’s General Manager who noted, ‘It would seem clear [Mr Y] is living under the same roof [as Ms X]’. Centrelink’s General Manager further expressed that, ‘[...] what you have outlined is certainly a matter of concern for us’ and ‘Certainly you’ve raised some issues which I believe would warrant even further investigation’.

The complainant asserts that the conclusion the licensee drew from its observations was inaccurate and that Mr Y had arrangements to visit the house daily to assist with the children.

The issue for the ACMA to determine in this case is whether it was accurate to state that the licensee ‘found evidence’ that Ms X was living with Mr Y.

Having regard to the research conducted by the licensee, the comments of Centrelink’s General Manager upon viewing the footage filmed by the licensee, and Ms X’s mother’s statement regarding her daughter’s living arrangements, all of which was relied on as evidence by the licensee, the ACMA considers that it was accurate for the licensee to state ‘[...] we found evidence she was living with Mr Y’.

Accordingly, the ACMA finds that the licensee did not breach clause 4.3.1 of the Code.

Issue 2: Privacy of an adult

Relevant Code clauseThe relevant clause of the Code is clause 4.3.5:

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 requirement 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 the broadcast of the material;

The Macquarie Dictionary (fifth edition) provides the following definitions:

Personal: of or relating to a particular person; individual; private […]

Private: relating to or affecting a particular person or a small group of persons; individual; personal […]

Affairs: matters of interest or concern; particular doings or interests […]

Privacy: the state of being private; retirement or seclusion […]

Consideration has also been given to the ACMA’s Privacy Guidelines for Broadcasters 2011 (the Guidelines).


[...]

I asked [A Current Affair] to give me an explanation about [...] why we weren’t we all pixelated. [...] Four counts of clear and identifiable breaches and violations under the privacy [...] clause of the Privacy Act.

[...]


[...]

We note [...] that [Mr Y] was shown walking on a public street. The only personal information revealed by the image was that the man shown was involved in a relationship with [Ms X] and resided with her. This fact is material to any allegation of fraud against the Commonwealth by [Ms X] and for this reason Nine maintains there is a public interest reason in broadcasting the material. If [Mr Y] is residing with [Ms X], then she is not entitled to claim the single parent benefit and for this reason, Nine maintains the image complies with clause 4.3.5 of the Code

[...]

FindingThe licensee breached clause 4.3.5 of the Code.


ReasonsIn assessing the licensee’s compliance with clause 4.3.5 of the Code, the ACMA must determine:

> whether a person was identifiable from the broadcast material? And if so,

> did the broadcast material relate to a person’s personal or private affairs or invade a person’s privacy?

If the answer to both of the above questions is yes, then there is a potential breach of clause 4.3.5 of the Code, unless there is an identifiable public interest reason for broadcasting the material, or the material was broadcast with the consent of the person concerned.

The complaint is that the segment included footage of Mr Y, which amounted to an invasion of privacy.

Whether a person was identifiable from the broadcast material

The footage shows Mr Y walking across the street at a distance and is filmed in profile. Mr Y is wearing a baseball cap backwards and is looking down at the footpath. Accompanying the footage is the reporter’s statement:

Previously we caught up with [Ms X] who has been claiming the single parent pension even though we found evidence she was living with [Mr Y].

The ACMA notes that the broadcast material contained the following verbal and visual information pertaining to Mr Y’s identity:

> Mr Y’s face was shown in profile as he was walking across the street. The footage was onscreen (3 seconds);

> Mr Y’s ex-partner, Ms X, was identified by name in the segment;

> Mr Y was described as the ex-partner of Ms X; and

> one of Mr Y’s and Ms X’s children was visually identified in the segment;

The ACMA considers that from the above material Mr Y’s identity would have been ascertain-able from the broadcast.

Whether material was used that related to a person’s personal or private affairs

The ACMA is satisfied that the licensee used material relating to Mr Y’s personal affairs. In this regard, it is noted that the broadcast material:

> allegations about Mr Y’s personal relationship with Ms X;

> images of Mr Y’s children with Ms X; and

> personal information about the financial affairs of Mr Y’s partner.

The ACMA notes that the licensee accepted in its submission to the ACMA that the broadcast material revealed personal information about Mr Y, namely that he ‘was involved in a relationship with [Ms X] and resided with her’.

Applicable exception

The broadcast of private information will not breach the Code if there is a clear and identifiable public interest in the material being broadcast. The public interest is assessed at the time of the broadcast.


Whether something is in the public interest will depend on all the circumstances, including whether a matter is capable of affecting the community at large so that citizens might be legitimately interested in or concerned about what is going on.

The ACMA’s Privacy Guidelines for Broadcasters 2011 (Privacy Guidelines) identify a number of issues which may be in the public interest:

Public interest issues include public health and security; criminal activities; corruption; misleading the public; serious anti-social behaviour; politics; government and public administration; elections; and the conduct of corporations, businesses, trade unions and religious organisations.

The licensee submitted that there was a public interest reason in broadcasting Mr Y’s identity and private information as Mr Y’s relationship with Ms X was material to the allegation of Ms X’s fraud against the Commonwealth.

The ACMA accepts that Centrelink fraud is a public interest issue and that there was an identifiable public interest reason for a broadcast about that issue. However, the ACMA does not agree that there was a public interest reason to disclose Mr Y’s identity. The invasion of Mr Y’s privacy was serious, having regard to the following:

no allegation has been made that Mr Y has defrauded Centrelink or assisted Ms X in her alleged defrauding of Centrelink;

Mr Y’s identity was not material to the allegation that Ms X was defrauding Centrelink. The concealment of Mr Y’s identity would not have altered Ms X’s alleged fraud; and

the identification of Mr Y could have been avoided without the segment losing any coherence or meaning.

Given these circumstances, the ACMA considers that more consideration should have been taken in the selection and presentation of the material for broadcast.

The ACMA finds that the licensee breached clause 4.3.5 of the Code.

Issue 3: Privacy of a child

Relevant Code clauseThe relevant clauses of the Code are clause 4.3.5 and 4.3.5.2:

4.3 In broadcasting news and current affairs programs, licensee:

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 requirement 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 the broadcast of the material;


4.3.5.2 [...] The consent of a parent or guardian should be obtained before naming or visually identifying a child in a report on a criminal matter involving a child or a member of a child’s immediate family [...] unless there are exceptional circumstances or an identifiable public interest reason not to do so;

4.3.5.3 ‘child’ means a person under 16 years old.


[...]

On 2 counts children not pixelated. [...] I asked [A Current Affair] to give me an explanation about [...] why we weren’t we all pixelated. [...] Four counts of clear and identifiable breaches and violations under the privacy [...] clause of the Privacy Act.

[...]


[...]

Nine’s normal protocol is to pixelate images of children in such circumstances. It is clear that this did not occur in this instance. Nine regrets that the images were not pixelated but notes that in this instance; the images of the children were brief making it difficult to identify them. In the [first image], the child was obscured by reflections on the windscreen. In the [second image], the children were briefly visible for a total of 2 seconds. Further, we note there is no verbal reference to the children in a way that identifies either child as [Ms X’s] children and there is no suggestion that either child is associated in any way with [Ms X].

[...]

FindingThe licensee breached clause 4.3.5.2 of the Code.

ReasonsClause 4.3.5.2 imposes a higher standard in relation to the broadcast of material relating to a child’s personal or private affairs, in recognition of the special vulnerability of children.

In addition to the obligation imposed by clause 4.3.5 of the Code, clause 4.3.5.2 requires licensees to:

exercise special care before using material relating to a child’s personal or private affairs in the broadcast of a report of a sensitive matter concerning the child; and

obtain the consent of a parent or guardian before visually identifying a child in a report on a criminal matter involving a member of a child’s immediate family.


In this case, the complaint is that the segment broadcast unpixelated footage of two children without consent of a parent.

Whether a person was identifiable from the broadcast material

As shown in Table 1 on page 2 of this report, the segment contained footage of two children on two separate occasions.

On the first occasion, Child A was shown in the front passenger seat of a car being driven by Ms X. The ACMA does not consider that viewers of the broadcast would have been able to reasonably identify Child A from the broadcast material as the child’s face was only shown from his nose up with the child’s eyes obscured by the car’s windscreen wipers. In this case the ACMA does not consider that Child A was identifiable from the material broadcast.

On the second occasion, Child B was shown being pushed in a trolley by Ms Y with Child A walking behind them. The ACMA does not consider that viewers of the broadcast would have been able to reasonably identify Child B from the broadcast material as only the top of the child’s head and forehead were shown. In this case, the ACMA does not consider that Child B was identifiable from the material broadcast.

With regards to Child A on the second occasion, the ACMA considers that Child A’s identity was apparent or could be reasonably ascertained from the broadcast material as:

> Child A’s face was shown facing the camera;

> Child A’s face was unobscured; and

> the footage of Child A was broadcast for two seconds, allowing the viewer to clearly see the child’s face.

The ACMA notes that the licensee disagrees that Child A was identifiable as he appeared briefly on screen for two seconds and there was no verbal reference linking Child A to Ms X.

The ACMA does not consider that Child A’s brief appearance or subordinate position on the screen would have prevented the viewer from observing the child. Rather, Child A was one of only three people facing the camera in the crowd scene, drawing the viewer’s attention to him. Nor does the ACMA consider the absence of a verbal reference linking Child A to his mother to be a relevant consideration.

In this case, the ACMA is satisfied that the material identified Child A by broadcasting footage of Child A’s face.

Whether material was used that related to a child’s personal or private affairs

In relation to personal affairs, the Privacy Guidelines state that:

Personal information can include facts about a person’s health, personal relationships [and] financial affairs. [...] This information need not be secret or confidential in order to be private.

As indicated above, the ACMA considers that the ordinary, reasonable viewer would have understood from the broadcast that Ms X had allegedly defrauded Centrelink by claiming the single parent pension while living with Mr Y.

As Child A is a dependent of Ms X, the ACMA considers that the financial affairs and possible prosecution of Ms X constitute personal information relating to Child A.

Accordingly, the material related to Child A’s personal or private affairs.


Whether the licensee exercised special care before using material relating to a child’s personal or private affairs in the broadcast of a report of a sensitive matter concerning the child

The ACMA considers the application of ‘special care’ generally, and that it may apply to children who are filmed in public places.

As indicated above, the ACMA considers that the ordinary, reasonable viewer would have understood from the broadcast that Ms X had allegedly defrauded Centrelink by claiming the single parent pension while living with Mr Y.

The ACMA considers that the alleged Centrelink fraud committed by Child A’s mother would be of an extremely personal nature to the child. As such, the ACMA considers that the broadcast involved a report of a sensitive matter concerning Child A.

The ACMA notes that the broadcast clearly revealed the child’s face and that the licensee made no attempt to hide the identity of Child A. The ACMA considers that the identification of Child A could have been avoided, through means such as pixelating the child’s face or editing the broadcast material, without the segment losing any coherence or meaning.

Accordingly, the ACMA considers that the licensee did not exercise special care before using material relating to a child’s personal or private affairs in the broadcast of a report of a sensitive matter concerning the child.

Whether the consent of a parent or guardian was obtained before visually identifying a child in a report on a criminal matter involving a child’s immediate family

There is no definition of ‘criminal matter’ in the Code; however, the term ‘criminal proceeding’ is one that is well understood at common law to refer to any proceedings in relation to an offence against a ‘public law’. A public law, or criminal law, is one that is punishable by the State.

The ACMA considers that any matter that relates to an alleged breach of the criminal law or any (actual or potential) criminal proceedings is likely to amount to a ‘criminal matter’ in the contest of clause 4.3.5.2.

In this case, the segment is clearly about a ‘criminal matter’, namely Centrelink fraud, and involves Child A’s immediate family, being his mother Ms, X.

It is noted that consent is not framed as a mandatory requirement under clause 4.3.5.2 of the Code. The Code provides that consent of a parent or guardian ‘should’ be obtained. The ACMA considers that parental consent is merely one factor relevant to considering whether special care was exercised; it is not a determinative factor.

In this case, the ACMA is satisfied that the licensee did not obtain Ms X’s consent to film her child. The licensee had ample opportunity to request parental consent whilst interviewing Ms X for the segment. Had Ms X refused to give consent, the licensee could have taken other measures to de-identify Child A, such as removing his image from the footage or pixelating Child A’s face.

Accordingly, the ACMA considers that the licensee failed to obtain the consent of a parent or guardian before visually identifying Child A in a report on a criminal matter involving Child A’s immediate family.


Whether there was an identifiable public interest for the broadcast

The ACMA is of the view that there was no identifiable public interest reason to disclose the identity of Child A by showing his face in the broadcast. As stated above, the identification of the child could have been avoided without the segment losing any coherence or meaning.

Accordingly, the ACMA considers that there was no identifiable public interest reason for the broadcast of Child A.

For the above reasons, the delegate finds that the licensee breached clause 4.3.5.2 of the Code in that it failed to exercise special care before using material relating to a child’s personal or private affairs in the broadcast of a report of a sensitive matter concerning the child; and, failed to obtain the consent of a parent or guardian before visually identifying a child in a report on a criminal matter involving a member of a child’s immediate family.

Issue 4: Unfairly identify

Relevant code clauseThe relevant clause of the Code is clause 4.3.7:

News and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensee:

4.3.7 should avoid unfairly identifying a single person or business when commenting on the behaviour of a group of persons or businesses;

4.3.7.1 when commenting on the behaviour of a group of persons or businesses, it is not unfair to correctly identify an individual person or business as part of that group if;

4.3.7.1.1 the licensee can be reasonably satisfied that the individual person or business engages in that behaviour; or

4.3.7.1.2 the licensee discloses that the individual person or business does not engage in that behaviour.


FindingThe licensee breached clause 4.3.7 of the Code.

ReasonsClause 4.3.7 of the Code aims to prevent licensees from unfairly identifying a single person when commenting on the behaviour of a group of persons.

In this case, the complaint is that the segment unfairly identified Mr Y in the broadcast.

In order to determine whether a breach of clause 4.3.7 has occurred it must be established that:

Mr Y was identified in the segment; and

this identification was ‘unfair’ in that Mr Y did not engage in the behaviour commented on during the segment.

If it is determined that both of these elements have been satisfied then the licensee has breached clause 4.3.7 of the Code.

As stated under Issue 2, the ACMA considers that Mr Y’s identity was apparent or could be reasonable ascertained from the material broadcast.

The ACMA considers that Mr Y’s identification was ‘unfair’ as no allegation was made that Mr Y had defrauded Centrelink or assisted Ms X in her alleged defrauding of Centrelink; and, the identification of Mr Y could have been avoided without the segment losing any coherence or meaning.

Accordingly, the ACMA finds that the licensee breached clause 4.3.7 of the Code.


ATTACHMENT A

In determining whether or not a statement complained of was compliant with the licensee’s obligation to present factual material accurately (having regard to the circumstances at the time of preparing and broadcasting the program), the ACMA generally has regard to the following considerations:

The assessment of factual accuracy is determined in the context of the segment in its entirety.

The meaning conveyed by the relevant statement is assessed according to what an ‘ordinary, reasonable listener/viewer’ would have understood the program to have conveyed. Courts have considered an ordinary, reasonable listener/viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable listener does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.4

The ACMA must assess whether the relevant statement would have been understood by the ordinary reasonable listener/viewer as a statement of fact or an expression of opinion.

The primary consideration is whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material is presented as a statement of fact or as an expression of opinion.

o 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.

o The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable listener/viewer, and the form of words introducing the relevant statement is not conclusive.

Inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.

While licensees are not required to present all factual material available to them, if the omission of some factual material means that the factual material actually broadcast is not presented accurately, that might amount to a breach of the clause.

In situations where witnesses (to an event or circumstance) give contradictory accounts and there is no objective way of verifying the material facts, the obligation for the reporter is to present factual material accurately will ordinarily require that the competing assertions of fact be presented accurately as competing assertions.

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


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


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