investig… · web viewin this context nine submits that it is therefore accurate to describe [m]...

Investigation Report No. 3248File No. ACMA2014/664

Licensee General Television Corporation Pty Ltd

Station GTV Melbourne

Type of Service Commercial Television

Name of Program A Current Affair

Date of Broadcast 30 May 2014

Relevant Code Clause 4.3.1 of the Commercial Television Industry Code of Practice 2010

Date finalised 28 October 2014

Decision No breach of clause 4.3.1 of the Commercial Television Industry Code of Practice 2010 [factual accuracy].

ACMA Investigation Report 3428—A Current Affair—GTV Melbourne – 30 May 2014

Background In August 2014, the Australian Communications and Media Authority (the ACMA)

commenced an investigation into a segment of A Current Affair broadcast on 30 May 2014 by General Television Corporation Pty Ltd, the licensee of GTV Melbourne (the licensee).

A Current Affair is a current affairs program broadcast by the licensee between 6:30pm and 7:00pm on weeknights.

On 30 May 2014, a segment appeared on the program which examined the alleged conduct of the complainant, claiming that he was an ‘internet stalker’, a ‘serial pest’ and ‘an obsessive online offender’. The segment reported that the complainant had created a Facebook page entitled ‘[R] Perfect Victim’ in relation to a murder victim from 1999, and that he had been harassing a number of individuals online. The segment also included footage of the reporter confronting the complainant outside a courthouse in relation to these issues.

A transcript of the segment is at Attachment A.

The complainant submitted the segment included material that was factually inaccurate. Submissions made by the complainant are at Attachment B.

The licensee, in response to the complainant, stated that it ‘denies the allegations in [the] complaint and maintains that the factual material contained in the segment was conveyed accurately’.

The licensee has also submitted to the ACMA that the complaint was vexatious and not made in good faith in the sense contemplated under s.149(2) of the Broadcasting Services Act 1992 (Cth) and that accordingly, the investigation was outside of the ACMA’s jurisdiction.

The licensee’s submissions are at Attachment C.

The ACMA is not satisfied that the complaint was vexatious or not made in good faith, as the complainant has raised issues concerning the license’s compliance with the Commercial Television Industry Code of Practice 2010 (the Code). Accordingly, the matter is within the ACMA’s jurisdiction to investigate.

This investigation has considered the licensee’s compliance with clause 4.3.1 of the Code:

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;

4.3.1.1 An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.

The ACMA also notes the presence of clause 1.5.4 of the Code:

Compliance with Code

1.5 Licensees must seek to comply fully with the Code, but a failure to comply will not be a breach of the Code if that failure was due to:


1.5.4 an act or failure to act which, in all the circumstances, was clearly peripheral or incidental, and unlikely to offend or materially mislead viewers.

Matters not pursued In his complaint to the ACMA, the complainant raised a number of additional alleged

factual inaccuracies that did not feature in his initial complaint to the licensee. As they were not raised with the licensee in the first instance, the ACMA does not have jurisdiction in relation to these matters and they do not form part of this investigation.

Assessment This investigation is based on submissions from the complainant and the licensee

and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.

In assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ 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

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).

Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then assesses compliance with the Codes.

Issue: Factual accuracyFindingThe licensee did not breach clause 4.3.1 of the Code.

Reasons The ACMA considers that the complainant’s concerns in relation to factual accuracy

can be summarised as follows:

o The claim that M is the ‘leader of the Burmese community in Melbourne’ whereas according to the complainant, he is ‘only a board member’ of the Australia Burma Society.

o Much of the footage that appears during the segment (i.e. interviews with the complainant and the B family) was portrayed as being current, whereas it was in fact filmed ‘last year’. In addition, his website is presented as being called ‘[R] Perfect Victim’ – this was also out of date, and the site is now ‘simply called “Perfect Victim”’.

o The claim that the website ‘acts as a spokesperson for the [B] family or any one other family or group’.

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


o The assertion that the complainant had created the website.

The ACMA does not consider that any of these issues were presented inaccurately by the licensee for the purposes of clause 4.3.1 of the Code. In doing so, the following is noted:

o The ACMA is persuaded by the licensee’s submission that the point being raised by the complainant regarding whether or not he had initially created the webpage in question was incidental or peripheral, and unlikely to materially mislead viewers. There seems little doubt that the complainant took over management of the website at some point, and that he was actively controlling it during the relevant period being discussed during the segment. Accordingly, to the extent that the statement concerning the creation of the website was inaccurate (a matter on which the ACMA makes no finding) the ACMA is satisfied that clause 1.5.4 of the Code is applicable in this instance.

o The ACMA similarly considers that clause 1.5.4 applies to the complainant’s submission in relation to whether or not M is ‘the leader of the Burmese community in Melbourne’. In the context of the segment as a whole, which deals primarily with the complainant’s alleged harassment of a number of different individuals, the precise nature of M’s status within the Melbourne Burmese community is a peripheral issue, and unlikely to materially mislead viewers. If inaccurate (a matter on which the ACMA makes no finding), the statement would be one in respect of which clause 1.5.4 would apply.

o The ACMA considers that the segment did not imply that all of the footage that appeared during it was current, or recent. The ordinary, reasonable viewer would have understood that some of the footage was historical and that the segment referred to material and events that have taken place over a period of time. Accordingly, it was not misleading for the segment to have included older footage of the complainant, nor for it to have stated that the website being discussed had been ‘started’ under the name ‘[R] Perfect Victim’ whereas that name had subsequently been amended to ‘Perfect Victim’.

o The segment at no point claimed that the ‘Perfect Victim’ website ‘[acted] as a spokesperson for the [B]’ family, as claimed by the complainant.

For the reasons outlined above, the ACMA considers that the licensee presented factual material accurately and did not breach clause 4.3.1 of the Code.


Attachment A

Transcript of the segmentPresenter: Now, to the internet stalker who turned the tables on our reporter [reporter’s name] by trying to get him arrested.

Reporter: Why do you pester people?

Complainant: Why are you pestering people?

Reporter: Well, I’m not pestering you – I don’t pester people!

Complainant: This event is over, now. Excuse me, gentlemen.

Reporter: You’re on Centrelink, aren’t you? One more thing to ask you─

Reporter (narrated): He’s a serial pest. An obsessive online offender.

Interviewee 1: He’s a troll.

Interviewee 2: He is a trouble-maker.

Reporter (narrated): Trouble lives here – in a bungalow at the back of his mother’s house. From here, [the complainant] launches his online attacks.

Interviewee 1: He’s taken over the mourning of my daughter.

Reporter (narrated): Now, his victims are fighting back – facing off against the Facebook fiend in court.

Reporter: What’s happening in court?

Complainant: Oh, I do all that sort of thing, why? Why do you want to know?

Reporter: Why do I want to know?

Complainant: Mmm.

Reporter: You’re in court?

Complainant: Yeah.

Reporter: Don’t you want to tell me?

Complainant: Well, it’s none of your business, I’m sorry!

Reporter: So, you’re not going to tell me why you’re in court?

Complainant: No.

Reporter: Well, how about I tell you why you’re in court?

Complainant: You tell me.

Reporter: Stalking, and harassment.

Complainant: No, you’re wrong, sorry.

Reporter: Am I wrong, you sure?

Complainant: Absolutely.

Reporter (narrated): [The complainant’s] internet interference is cruel and callous. Now, family after family, including the [B’s] are taking court action to force him to stop.

Interviewee 1: It’s cruel, it’s insensitive, it’s unethical.


Reporter - [Interviewee 3]’s daughter [name] was murdered in 1999. So [the complainant] took it upon himself to start a Facebook page called ‘[R] Perfect Victim’.

Interviewee 1: He’s gotta be stopped!

Reporter: Don’t you think what you’re doing is cruel?

Complainant: No, it’s not!

Reporter (narrated): The family asked him to stop, but the online ogre refused.

Reporter: You can stop all of this misery by shutting down the site, and stop being an internet troll.

Complainant: They don’t have to look at the site, do they?

Reporter: There was a court order against you by [name]?

Complainant: Correct.

Reporter: And you breached that court order?

Complainant: Do you know what the breach was?

Reporter: You breached – did you breach that court order?

Complainant: Do you know what the breach was?

Reporter: I know what the breach was – you tell me: did you breach it?

Complainant: Yes, I did, unintentionally─

Reporter: ─and you were fined, you were fined $300?

Complainant: Yep, mm-hmm, that’s correct. With no, umm─ what do you call it? Urrgh, no criminal charges. No criminal, ahh, record.

Interviewee 2: Yeah. He is a serial pest.

Reporter: [Interviewee 2] is the leader of Victoria’s Burmese community. He says [the complainant] has targeted families and individuals, and that’s why he’s fronting court today.

Interviewee 2: Stay out of the Burmese-speaking community. We do not need you.

Reporter: Go away.

Interviewee 2: Go away. Please!

Reporter: Why is a Burmese family so upset that they’d have you in Dandenong court?

Complainant: Because they─ I dunno.

Reporter: Funny old world, eh, [complainant’s name]?

Complainant: It is a rather funny old world, yeah.

Reporter: Mm-hmm.

Reporter (narrated): And today, the world just gets a little funnier. In a weird kind of way.

Complainant: I’m arresting you under s.458(1) of the Victorian Crimes Act.

Reporter: You’re arresting me?

Complainant: Yes. Come on! s.458(1) of the Victorian Crimes Act.

Reporter: And what are you doing?


Complainant: Arresting you─


Complainant: ─for harassment!


Complainant: Yes.

Reporter: In a public street?

Complainant: Yes.

Reporter: You know what you are, [complainant’s name]?

Complainant: I’m arresting you!

Reporter: [Complainant’s name] the menace!

Complainant: Come here!


Complainant: I’m arresting you. Come here!

Reporter: I’m not going in a Police station to be arrested! I’m not an idiot! [Laughter].

Interviewee 2: [The complainant] has been stalking and harassing to a family within the Burmese community [sic]. He doesn’t respect other people’s privacy and dignity.

Reporter: [Interviewee 2] claims the internet troll and serial pest has harassed him online 17 times.

Interviewee 2: Hey [complainant’s name], stop what you’re doing, stop your behaviour, we do not accept your attitude, go away, mate! That’s all I want to say.

Reporter: I think you said it well!

Reporter: Do you think you’re heading down a dangerous path, [complainant’s name]?

Complainant: Umm─

Reporter: A dangerous path with all these court appearances, violence─ apprehended violence orders, intervention orders, upsetting families─

Complainant: No.

Reporter: You’ve been to court?

Interviewee 2: Yes.

Reporter: You’ve been to mediation?

Interviewee 2: Yes.

Reporter: And [the complainant] has agreed?

Interviewee 2: Yes.

Reporter: Has he kept that agreement?

Interviewee 2: No.

Reporter: Doesn’t this seem to be getting out of control?

Complainant: Do you know the background of the [name] murder?


Reporter: Of course I do – I did the story on it!

Complainant: Right. Well, you don’t know the harassment I went through.

Interviewee 1: I understand now where teenagers are that are cyber-bullied, that kill themselves, I can honestly 100% understand their fear. Because you never know what the person is going to do next.

Reporter: But you’re not the victim here!

Complainant: But I am!

Reporter: But you’re not the victim.

Complainant: I am!

Reporter: The [family name] are the victims.

Interviewee 2: You know, he break his promise [sic].

Reporter: Online?

Interviewee 2: Online.

Reporter: So, he’s still having a crack at you online?

Interviewee 2: Oh, yeah. Definitely.

Reporter: You’re harassing families, you’re upsetting families─

Complainant: You’re not letting me finish!

Presenter: I think [the complainant] really needs to find something better to do with his time, doesn’t he?


Attachment BComplainant’s submissions

The complainant submitted the following to the licensee:

This story was about an episode in my life which occurred last year much of the footage from that time was used as was footage of my mother’s house and an interview they did with [E] and her daughter [H] at that time, as was the footage of my former Facebook [R] Perfect Victim it was being portrayed as being current and it most certainly wasn’t, it is now simply Perfect Victim, A Current Affair had done an interview with me last year at my home. At that time I had pointed out to [the reporter] they could interview me in the lounge room but he said no and forcibly went into the back yard and was filming, he had lied to me when he contacted me the day before as to why he wanted to do an interview with me.

[The reporter] also falsely stated that I had taken it on myself to start the site [R] perfect Victim if one looks up at the description of my page that is simply not the truth. This page is dedicated to the innocent victims who were murdered by parole violators. And the murder other innocent Victims [sic].

Since the commencement of this page there has been a series of murders here in Melbourne and I must thank [J] for starting this site off as [R] Perfect Victim I hope she approves of the changes that have been made.

[…]

And in no way does this site act as spokesperson for the [B] family or any one other family or group

A man called [M], whom I know was as on the footage falsely claiming he was the leader of the Burmese community in Melbourne, this man is regarded in the Burmese community as trouble makers and an opportunist.

[…]

I have confirmed via the producer that even though [the reporter] had stated [M] was leader of the Burmese groups of Melbourne. She had been told he was the leader. [M] was a public officer of the Australia Burma Society he is no longer as of this time he is an only a board member.

[…]

The complainant submitted the following to the ACMA:

[…]

Fact: On the 30th of May [the reporter] had information that I no longer have contact the [B] family [sic], he asked me if I am still bullying the [B] family to my reply was no.

Fact: [the reporter] stated on the story that I took it on myself to start up a Facebook site in regards to [R] Perfect Victim, that is false he already knows the [J] from Sydney started that site.

Fact a man from the Burmese community [M] was also on the footage he was also promoted by [the reporter] as the leader of the Burmese communities of Melbourne, this is false.

Fact: footage from an interview with [E] and her younger daughter which [the reporter] was also used one the ACA story of the 30th of May it was used, as so it was the current situation which it is not.


So Channel 9 is in breach of the commercial Television code of conduct, on four occasions through that broadcast on the 30th of May.

[…]


Attachment CLicensee’s submissions

The licensee responded to the complainant as follows:

[…]

We have reviewed the footage of the segment. Nine denies the allegations in [the] complaint and maintains that the factual material contained in the segment was conveyed accurately. The reporter, [name], also gave you ample opportunity to state your side of the story and accordingly, Nine also maintains that the segment fairly represented all viewpoints represented.

[…]

The licensee submitted the following to the ACMA:

[…]

Trivial/vexatious complaint

Nine… submits that [the complaint] to the ACMA is vexatious and not made in good faith under s.149(2) of the Broadcasting Services Act 1992 (Cth) based on the following factors:

The complainant’s complaint to Nine and his attempts to pursue such trivial matters through the ACMA process are further evidence of the sort of conduct by [the complainant] about which the [B] family and [M] have complained; and

The substance of the complainant’s complaints, as set out… above, are inconsequential to the primary subject matter of the [segment], which was to inform viewers of the complainant’s conduct in connection with the [B] family and [M].

Name of Facebook page

[…]

The [segment] states ‘...[R] was murdered in 1999. So [the complainant] took it upon himself to start a Facebook page called ‘[R] Perfect Victim’. The [segment] did not make any claim as to what the page is currently called, rather it was referring to what the page was called during the relevant period and, more importantly, to his use of the page to harass the murder victim’s family and to use the page in a manner offensive to the victim’s family. We note in this regard he admits in the [segment] to breaching a Court Order originally granted to the murder victim’s mother that related to his harassment of her and her family.

Based on the above, Nine maintains that in relation to the statement referred to in the paragraph above, it broadcast factual material accurately, having regard to the circumstances at the time of preparing and broadcasting the [segment]. To the extent that the claim purports to represent any person’s viewpoint (which Nine does not concede), Nine also maintains that it does so fairly.

Creator of Facebook page

[…]

Nine firstly asserts that the [segment] did not say that the complainant ‘created’ the Facebook page. As set out above in paragraph 9, the [segment] stated that the complainant ‘started’ the page. While Nine concedes that the complainant may not have ‘created’ or ‘started’ the page within the literal meaning of these words, Nine submits that this is immaterial. The complainant


assumed control of the page at an early stage, ‘started’ it in the more active form it was complained about by the [B] family and certainly controlled it during the relevant period it was being used in the manner complained about by the [B] family. Accordingly, whether he was the original creator is immaterial in the circumstances and nine submits that this issue is incidental or peripheral to the [segment] and did not materially mislead ordinary reasonable viewers. Therefore, under clause 1.5.4 of the Code, Nine maintains that it has not breached the Code by this reference.

Nine also notes that in his complaint, the complainant described the page as ‘my former Facebook site [R] Perfect Victim’, which Nine submits to be an admission of such.

Nine therefore maintains that this statement was accurate having regard to the circumstances at the time of preparing and broadcasting the [segment]. Further, to the extent that the claim purports to represent any person’s viewpoint (which Nine does not concede), Nine also maintains that it does so fairly.

Further, Nine maintains that the description of the complainant’s conduct in the [segment] was otherwise broadcast accurately and all viewpoints portrayed in the [segment] were represented fairly.

[M]

[…]

The [segment] states that ‘[M] is the leader of Victoria’s Burmese community’. The Australia Burma Society Inc. is a registered not-for-profit, community-based, member-driven association based in Melbourne, Victoria that aims to support communities from Burma to adapt to Australian life and integrate into the community (Source: the ‘About” section of the society’s facebook page – see https:/www.facebook.com/pages/Australia-Burma-Society/194206387270950?sk=info). As a board member, and a former public officer, of the Australia Burma Society (factual material that is not denied by the complainant), [M] is a prominent member of the Burmese community in Victoria. In this context Nine submits that it is therefore accurate to describe [M] as ‘the leader of Victoria’s Burmese community’. Nine also submits that this complaint itself seems to be further evidence of attempts by [the complainant] to harass [M].


investig… · web viewin this context nine submits that it is therefore accurate to describe [m]...

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