Louise Benjamin, Authority Member, ACMA: Where do you draw the line

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This presentation was given by ACMA Authority member, Louise Benjamin, at the ACMA's Citizen conversation about Decency.

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  • For those of you who attended the Classification forum this morning, you would have a good understanding of how the relevant Codes of Practice ensure that viewers can make informed choices for themselves, or their children, about the television programs they watch. This afternoon we will be talking about radio and how the Codes of Practice ensure that radio programs meet an acceptable community standard.
  • The Broadcasting Services Act 1992 established a co-regulatory environment. Key to the co-regulatory approach embodied in the Act is that the various sectors of the broadcasting industry are responsible for developing their own codes. Under section 123 of the Broadcasting Services Act 1992 , industry groups have developed codes of practice in consultation with the ACMA. Once implemented, the ACMA monitors these codes and deals with unresolved complaints made under them. The ACMA includes a code in the register if: it is satisfied it provides appropriate community safeguards for the matters covered it was endorsed by a majority of providers of broadcasting services in that industry sector members of the public have been given an adequate opportunity to comment. Note: Codes developed by Australia's national broadcasters - the ABC and SBS - are notified to the ACMA, but are not registered.   The Act further states that codes may relate to preventing the broadcasting of programs that, in accordance with community standards , are not suitable to be broadcast.
  • There have been considerable technological shifts within the broadcasting sector and in the media environment in the two decades since the broadcasting code scheme was first introduced. These changes include: digitisation of broadcast signals and the introduction of multi-channels internet infrastructure delivering greater bandwidth wireless mobile communication protocol (3G and 4G) multi-functional, multi-platform consumer devices (including internet-enabled TV sets and personal video recorders (PVRs) technology that allows consumers to control access e.g. Parental locks devices with networking capability e.g. smartphones and tablets Community values and expectations also alter over time, as societal norms change.   Industry codes are regularly, but separately, reviewed to ensure the matters covered by the codes remain relevant and that the community safeguards they contain continue to address community concerns. The review process is undertaken on an individual code-by-code basis and tends to be incremental.   The ACMA considers it is timely to undertake a more holistic and principles-based examination, taking into account more widely relevant considerations across codes.
  • Each industry group has its own code of practice. There are various provisions relating to programs being ‘decent’. Different words are used but it seems to me that trying to encapsulate the same thing. But decency is a bit like a rhinoceros – it’s hard to describe but you know it when you see it. The codes refer to this in various ways – community standards, decency, appropriate, acceptable. A number of the codes also refer to the importance of ‘context’.
  • The Codes implicitly or explicitly establish the importance of freedom of speech. But they also seek to put protections in place to ensure that people can make information choices and that children are protected. The Codes also ensure that licensees and individual presenters are aware of their legal requirements before content is broadcast.
  • In investigating complaints, the ACMA considers The objects of the Broadcasting Services Act 1992 Code requirements (including relevant guidelines) Previous ACMA and relevant court decisions ‘ Accepted community standards’ Demographic characteristics It is worth noting that in 2011-12, the ACMA conducted nine investigations into the various code provisions relating to ‘decency’. Of these, two resulted in breach findings.
  • The ACMA considers that the term ‘generally accepted standards of decency’ refers to the current consensus of recognised present day standards of propriety. Such standards are not hard and fast either over time or across all sections of the community. Determining the current consensus of recognised present day standards of propriety is not an easy task.   Previously, where the ACMA has found breaches of the decency provisions of the code it has had regard to a number of matters including: the subject matter or themes dealt with: for example, care needs to be taken with material that is sexually explicit or extremely sensitive the tenor or tone of the broadcast: for example, was it light-hearted or threatening; matter-of-fact or salacious the language used in the broadcast: for example, was it abusive, profane, vulgar or lewd the attitudes conveyed: for example contemptuous disregard for human life or suffering
  • The ACMA received 170 complaints about The Kyle and Jackie O Show program broadcast on 29 July 2009 by 2DAY FM. The program featured a segment in which a 14 year old girl was attached to a lie-detector and questioned by her mother about her sexual history and truancies. The ACMA found that, even having regard to the likely characteristics of the licensees service, the licensee had breached the relevant code provision. In reaching this finding , the ACMA considered the manner of the segment, noting that interviewing a child about sexual activity is not indecent per se, as in some circumstances there may be an empathetic examination of the subject matter. In this instance, the broadcast sensationalised and rendered as mere entertainment an extremely sensitive topic. The ACMA also took account of the ill-considered response of Kyle to the girl revealing she had been raped at age of 12 (‘is that the only experience?’). I’ll get back to this investigation shortly in considering what options the ACMA has open to it when dealing with a breach.
  • In this investigation, the ACMA found that 5AA breached provisions of the Commercial Radio Australia Codes of Practice 2011 on decency and complaints-handling on two separate occasions in June 2012.   The investigation arose from comments Bob Francis made about asylum seekers and disparaging language he used with respect to a female journalist, who he identified by name and her job title.   The ACMA considered that Mr Francis’ comments about asylum seekers conveyed a disregard for the numerous fatalities that have occurred at sea and that the cumulative effect of his comments about the female journalist offended standards of decency. 5AA suspended Mr Francis for six days in the wake of his comments. Mr Francis also received additional training regarding the decency provisions of the Code.  
  • The subject matter of the segment is an interview by the presenter with the Author of a book titled Sex and the Olympics: Condomania . The presenter and the author discuss various topics related to the sexually charged environment of the Olympics. A the conclusion of the segment, one listener telephoned to query, in jest, whether if dressed as a sumo wrestler, the girls would come after him. And subsequently following a commercial break, the presenter stated: CS: [name of listener] has reminded me, on that same subject that at the Sydney 2000 games, the Ugandan athletes complained to officials. They complained that the condoms they were issued with were too small. What skites!! While the topic may have been offensive to the complainant personally the ACMA finds that the content broadcast did not offend against generally accepted standards of decency. The reference to Ugandan athletes was made in the context of a discussion in which a range of nationalities were referred to; the topic being discussed was a legitimate study on the culture of sex in the Olympic village and any references to sex or sexual conduct were either factual and statistical or otherwise jocular and light hearted.
  • We often get asked ‘why can’t you just take the presenter off the air?’. We have a range of powers with which to address breaches of the BSA, licence conditions, program standards or industry codes.   We take a graduated approach – meaning the action we take is in keeping with the seriousness of the breach. The ACMA’s action is also targeted to the licensee – and not the presenter.
  • The ACMA commissioned research: Attitudes to Radio Content 2009 as there were concerns that the rise in complaints to the ACMA about commercial radio content highlighted potentially broader issues about the treatment of participants in some types of live hosted entertainment programs on commercial radio.   Live hosted entertainment radio programs: Adequacy of community safeguards for the protection of participants found that there were concerns especially if the participant was a child. The ACMA worked with the commercial radio industry to develop codes of practice that include specific provisions for addressing the issues raised in the investigation, including preventing the exploitation of participants in commercial radio programs. During a broadcast of the K&J show on 22 November 2011, Kyle Sandilands made derogatory comments directed towards a female journalist following an unfavourable review of his debut TV Show. The broadcast amounted to a breach of 1.3(a) because: The terms used were deeply derogatory and offensive and conveyed in a menacing and vitriolic tone; Expressions were used such as ‘you should be fired from you job’ and I’m going to hunt you down’, ‘piece of shit’, ‘fat bitter thing’ and ‘little troll’ which would be understood as aggressive and extreme in context; and The content was of a kind more likely to be expected in a private interaction than in a public forum or broadcast. The ACMA considered an appropriate enforcement option given the compliance history and the gravity of the nature of the breach finding was to impose an additional licence condition. The licensee had breached the equivalent provision in 2009 (Lie Detector) and also in 2004 (Lowie’s Hot 30 Countdown). This is the second additional licence condition that the ACMA had imposed on 2Day FM (the first being in response to the Lie Detector breach). The condition elevates the code provision in relation to decency to a condition on 2DAY’s licence, and was initially applicable to all 2Day FM programs for a period of 5 years. This was subsequently altered by the AAT when the matter was appealed by 2Day, to only the programs Hot30 Countdown and The Kyle and Jackie O Show or any other radio program presented live to air by Kyle Sandilands. The condition also set training obligations on the licensee and the requirement to hire extra content monitors to dispose of any inappropriate content before going to air, and maintain the 30 second delay. By elevating the code provision to a licence condition, the consequences of a breach are also elevated.
  • 2DAY In response to the incident and public complaints,  the licensee implemented new policies and procedures involving additional safeguards for program participants, including broadcasting delay and the use of the ‘dump’ button.   Following its breach finding, the ACMA imposed an additional licence condition concerning the protection of the welfare and wellbeing of children who are featured or referred to on radio. 5AA Following its breach finding, the ACMA recommended that, in addition to these remedial actions, an on-air apology be made to the journalist attacked as it considered an apology as the appropriate measure in this matter. Mr Francis made an on-air apology to the journalist in response to the ACMA’s recommendation.
  • The Issues Paper asks a number of pertinent questions: do we need code interventions to moderate material that is deemed to offend decency? is the ‘accepted community standards’ test effective, appropriate and meaningful? how should the ACMA determine the current consensus of recognised present day propriety? Have we got it right? what do the demographic characteristics of the audience of a relevant program tell us about attitudes to content? should broadcasters provide listeners with consumer advice and information to assist them to make appropriate decisions about the material they listen to? what information would be helpful and how should it be provided? I hope we can pick up some of these issues in the Q & A session .
  • I have focussed on regulatory interventions. Of course, individuals and groups can also take action as they see fit. If something, or someone offends you, easy option is to switch off. If someone feels strongly about something, they can apply pressure to advertisers. In some cases they may walk away, although this may be just in the short term option. Social media has been used recently to rally support and be a platform for like-minded people to communicate and take action. This is of course all after the event and provides no disincentive for broadcasters to stay within the line of what is ‘decent’.
  • Louise Benjamin, Authority Member, ACMA: Where do you draw the line

    1. 1. Where do you draw the line?Miss Louise Benjamin,Authority Member, ACMA
    2. 2. Why do we have codes of practice?> Broadcasting Services Act 1992 established co-regulatory environment> Section 123 of the Act states that industry groups willdevelop in consultation with the ACMA applicablecodes of practice> s123(2) of the Act states that codes may relate to:(a)Preventing the broadcasting of programsthat, in accordance with communitystandards, are not suitable to bebroadcast by that section of the industry
    3. 3. Why Contemporary communitysafeguards inquiry?> Each industry group has a different approach> Incremental changes to codes over the last 20 years> Industry codes are regularly, but separately, reviewed> Technological shifts – time for more holistic +principles-based examination
    4. 4. What do the Codes have incommon?> Community standards [Commercial Radio,Community Radio]> Community attitudes [Commercial Radio]> Offend [Commercial Radio]> Decency [Commercial Radio]> Harm or offence [ABC]> Appropriate [SBS]> Acceptable [SBS, ANRA, ASTRA]> Distress or alarm [Community Radio]
    5. 5. Why Code protections?> Freedom of speech> Community expectations> Protection of children> Making an informed choice
    6. 6. ACMA investigations> Need to consider• The objects of the Broadcasting ServicesAct 1992• Code requirements (including relevantguidelines)• Previous ACMA and relevant courtdecisions• ‘Accepted community standards ofdecency’• Demographic characteristics
    7. 7. ‘Accepted community standards ofdecency’> Refers to the current consensus of recognisedpresent day standards of propriety> Such standards are not hard and fast either over timeor across all sections of the community> Determining the current consensus of recognisedpresent day standards of propriety is not an easy task
    8. 8. Case studies> 2DAY – The Kyle & Jackie O Show• Broadcast 29 July 2009• 14 year old girl questioned about her sexualhistory while attached to a lie detector• Breach of 1.5(a) of the CRA Codes• Inappropriate to ask a child about their sexualactivity• Manner of the segment that offendedcontemporary standards of decency i.e.sensationalise and render as mere entertainment
    9. 9. Case studies> 5AA – Bob Francis• Broadcast 4 and 6 June 2012• Comments about asylum seekers anddisparaging language he used with respectto a female journalist• Breach of 1.5(a) of the CRA Codes• Disregard for numerous fatalities andcumulative effect of his comments offendedstandards of decency
    10. 10. Case studies> 2GB – Chris Smith Afternoon Show> Broadcast 1 June 2012> Segment dealing with condoms and Ugandanathletes was highly offensive and contravenedcommunity standards> No breach of 1.3(a)> May have been offensive to the complainantpersonally the ACMA finds that the content broadcastdid not offend against generally accepted standardsof decency
    11. 11. Enforcement and compliance> Range of powers> Graduated approach – response commensurate withthe seriousness of the breach> Encourage voluntary compliance> Informal resolution> Administrative action> Civil and criminal action
    12. 12. Compliance and enforcement> 16 May 2012 the ACMA imposed an additionallicence condition on 2DAY> Elevated the code provision in relation to decency toa condition on 2DAY’s licence> Term : Five years> Conditions:o In respect of the programs Hot30 Countdown and The Kyleand Jackie O Show or any other radio program presentedlive to air by Kyle Sandilandso Staff trainingo In respect of The Kyle & Jackie O Show, employ twocontent monitors, and maintain 30 second delay
    13. 13. Compliance and enforcement> 2DAY breach resulted in:• New policies and procedures• Additional licence condition – treatment ofunderage participants in programming, includingthat the welfare and wellbeing of the child isparamount> 5AA breach resulted in:• Suspension• Additional training• On-air apology
    14. 14. Core principles> What do we need to consider?• Do we still need code interventions?• Is the ‘accepted community standards’ testeffective?• How should the ACMA determine?• Demographic characteristics – significant?• Consumer advice?
    15. 15. Community action> Switch off> Pressure advertisers> Social media campaigns

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