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Investigation Report No. 2730File No. ACMA2011/1960

Licensee Australian Broadcasting Corporation

Station ABC TV1 NSW

Type of Service National broadcasting

Name of Program Media Watch

Date/s of Broadcast 19 September 2011

Relevant Code Standards

Standards 2.1, 2.2, 4.1 and 5.3 of the ABC Code of Practice 2011

Investigation Conclusions:The conclusions of the Australian Communications and Media Authority are that the Australian Broadcasting Corporation:

did not breach standards 2.1 and 2.2 of the ABC Code of Practice 2011 in relation to the statement, “It’s an opinion we share. We've said so before. And the Tele is getting more blatantly one-sided as the government's poll figures slide. A classic example, just last week”;

did not breach standards 2.1 and 2.2 of the ABC Code of Practice 2011 in relation to the statement, “…But 2007 was an untypical year in Norway – old slot machines had been removed, and new ones not yet installed. Norsk Tipping itself thinks that, overall, the survey proves the opposite to what the Tele reported”;

did not breach standards 2.1 and 2.2 of the ABC Code of Practice 2011 in relation to the statement, “I don't agree. In a news story, it's not legitimate to cherry pick facts and ignore one side of an important argument. That's not journalism, its propaganda; and it undermines democracy”;

did not breach standards 2.1 and 2.2 of the ABC Code of Practice 2011 in relation to the statement, “[The] ... story was indeed exclusive because it told us exclusively about Clubs Australia’s interpretation of the figures in the Norsk Tipping survey”;

ACMA Investigation Report 2730 – Media Watch broadcast by ABC TV1 on 19 September 2011

did not breach standard 4.1 of the ABC Code of Practice 2011 in relation to gathering and presenting news and information with due impartiality;

breached standard 5.3 of the ABC Code of Practice 2011 in relation to making allegations about a person or organisation and failing to make reasonable efforts in the circumstances to provide a fair opportunity to respond.

ACMA Investigation Report 2730 – Media Watch, broadcast by ABC TV1 on 19 September 2011 2

The complaintThe Australian Communications and Media Authority (the ACMA) received a complaint regarding an edition of the program Media Watch broadcast by ABC TV on 19 September 2011. The complainant (the Writer) alleged that he had not been given a fair opportunity to respond to allegations made in the program about an article written by him published in The Daily Telegraph newspaper, that various statements made in the program about him, the article and The Daily Telegraph were untrue and that the program was not presented with due impartiality.

The ACMA has investigated the ABC’s compliance with standards 2.1, 2.2, 4.1 and 5.3 of the ABC Code of Practice 2011 (the Code).

Matters not pursuedIn his complaint to the ABC and to the ACMA, the Writer raised the issue of defamation. The Writer was informed that the ACMA has no jurisdiction to make findings that a person has been defamed, or to make any orders for redress for defamation, and that consequently that aspect of his complaint would not be investigated.

The programMedia Watch is described on the ABC’s website as:

Australia’s leading forum for media analysis and comment’. […] Media Watch turns the spotlight onto those who literally ‘make the news’: the reporters, editors, sub-editors, producers, camera operators, sound recordists and photographers who claim to deliver the world to our doorsteps, radios, computers and living rooms. We also keep an eye on those who try to manipulate the media: the PR consultants, spin-doctors, lobbyists and “news makers” who set the agenda.

The edition broadcast on 19 September 2011 (the Segment) was concerned with the independent inquiry into print and online media regulation that had recently been announced by the Minister for Broadband, Communications and the Digital Economy. A transcript of the extract from the Segment that was the basis of the complaint can be found at Appendix A. A transcript of the full Segment can be found on the ABC website1.

The Segment also focused on an article that had been published in the Sydney newspaper The Daily Telegraph on 14 September 2011 (the Article). The Article reported on poker machine reforms in Australia that were being proposed by the Federal government and Prime Minister Julia Gillard. These proposed reforms included that mandatory pre-commitment spending limits be introduced on poker machines across Australia.

The Article was entitled “Gillard is gambling on failed system” and cited a study undertaken in Norway, the “only country in the world to have introduced a mandatory pre-commitment spending limit”. Amongst other things, it reported on the results of the Norwegian research, and stated that the reforms had “failed” in that country. The Article appears at Appendix D.

1 www.abc.net.au/mediawatch/transcripts/s3321170.htm


http://www.abc.net.au/mediawatch/transcripts/s3321170.htm

The presenter stated that the Article “told us exclusively about Clubs Australia’s interpretation of the figures in the [Study]” and concluded that “in a news story, it's not legitimate to cherry pick facts and ignore one side of an important argument. That's not journalism, it’s propaganda; and it undermines democracy.”

AssessmentThis investigation is based on submissions from the complainant, the ABC and Media Watch, as well as a copy of the broadcast provided to the ACMA by the ABC. Other sources have been identified where relevant.

In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an “ordinary reasonable 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.2

The ACMA examines what the “ordinary, reasonable viewer” would have understood the Segment to have conveyed. It considers the natural, ordinary meaning of the language, context, tenor, tone and 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 - Whether:

reasonable efforts were made to ensure that material facts were presented accurately and in context; and

factual content was presented in such a way that it would have materially misled the audience

Relevant Code standardsStandard 2.1 of the Code states:

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

The considerations which the ACMA generally applies in determining whether or not a statement complained of was compliant with the ABC’s obligations in standard 2.1 are set out at Appendix E.

2 Amalgamated Television Services Pty Ltd v Marsden (1998) NSWLR 158 at 164-167


Standard 2.2 of the Code states:

2.2 Do not present factual content in a way that will materially mislead the audience. In some cases, this may require appropriate labels or other explanatory information.

FindingsThe ABC did not breach standards 2.1 or 2.2 of the Code in relation to the following:

“It’s an opinion we share3. We've said so before. And the Tele is getting more blatantly one-sided as the government's poll figures slide. A classic example, just last week”;

“…But 2007 was an untypical year in Norway – old slot machines had been removed, and new ones not yet installed. Norsk Tipping itself thinks that, overall, the survey proves the opposite to what the Tele reported”;

“I don't agree. In a news story, it's not legitimate to cherry pick facts and ignore one side of an important argument. That's not journalism, its propaganda; and it undermines democracy.”

“[The Writer’s] story was indeed exclusive because it told us exclusively about Clubs Australia's interpretation of the figures in the Norsk Tipping survey. In fact, the only person quoted in the entire story was Clubs Australia president Peter Newell.”

Reasons“It’s an opinion we share. And the Tele is getting more blatantly one-sided as the government’s poll figures slide. A classic example, just last week.”

Complainant’s Submissions

The complainant’s submissions on this point are at Appendix B.

Broadcaster’s Submissions

The ABC’s submissions on this point are at Appendix C.

Reasons

The first issue for the ACMA is whether the statement was an opinion of the presenter, or a statement of fact.

Footage is shown of Senator Stephen Conroy, the Minister for Broadband, Communications and the Digital Economy, in a press conference. Senator Conroy states: “The campaign that they have been running against the government has been blatant; it breaches its own journalistic ethics of News Limited, and I have them here ... some of the reporting recently in the Daily Telegraph fails one... two... three of the first three. But that’s a personal opinion”. The camera then cut to the presenter who stated: “It’s an opinion we share. And the Tele is getting more blatantly one-sided as the government’s poll figures slide”.

This introduction makes it clear that rather than being assertions of fact, as claimed by the complainant, these comments were opinions being expressed by the presenter. The ordinary,

3 Referring to a speech made by Senator Stephen Conroy in which he alleged that Sydney newspaper The Daily Telegraph had been running a blatant anti-government campaign.


reasonable viewer would have viewed the presenter’s comments in this way. As such, they are not subject to the accuracy standards as outlined in standards 2.1 and 2.2 of the Code.

“It’s not legitimate to cherry pick facts and ignore one side of an important argument” and the description of the Article as “propaganda”





Reasons

The relevant comment made by the presenter in relation to the Article was a statement of opinion and is accordingly not subject to the requirements outlined in standards 2.1 and 2.2 of the Code.

The comment (in bold) was made in the following context:

Voiceover (excerpt from a Sydney Morning Herald article) – That newspapers might take an editorial line strongly for or against a party policy is a legitimate part of the community conversation that underpins democracy.

The presenter– Well, I don’t agree (emphasis added). In a news story, it’s not legitimate to cherry-pick facts and ignore one side of an important argument. That’s not journalism; it’s propaganda. And it undermines democracy.

By prefacing his comments with the words “I don’t agree”, the presenter was making it clear that the statements that followed were his opinion on the subject. Accordingly, these comments are not subject to the requirements of standards 2.1 and 2.2 of the Code.

“As far as they go, those figures are accurate. Here they are in the annual report of Norway’s gambling monopoly Norsk Tipping. But 2007 was an untypical year in Norway. Old slot machines had been removed and new ones not yet installed. Norsk Tipping itself thinks that overall the survey proves the opposite to what the Tele reported.”





Reasons

The relevant comments (in bold) were made in the following context:

The presenter: …A classic example, just last week:

Voiceover: Gillard is gambling on failed system. The poker machine restrictions Julia Gillard is staking her prime ministership on have failed in the only country in the world to have introduced a mandatory pre-commitment spending limit. An independent study of 3000 people in Norway found serious problem gambling had increased from


1.3 per cent to 2.1 per cent in the past three years, despite players having betting limits.

— Daily Telegraph, 14th September, 2011

The presenter: As far as they go, those figures are accurate. Here they are in the annual report of Norway's gambling monopoly, Norsk Tipping. But 2007 was an untypical year in Norway – old slot machines had been removed, and new ones not yet installed. Norsk Tipping itself thinks that, overall, the survey proves the opposite to what the Tele reported.

Voiceover (quoting Norsk Tipping): The 2010 poll identified a significant rise in the number of players without problems compared with the 2008 survey...which suggests that both official money game policy and Norsk Tipping's measures against compulsive gaming have had the desired effect.

The ordinary reasonable viewer would have understood the relevant comments as statements of fact. There is no indication that they are the opinion of the presenter. Accordingly, the comments are required to meet the accuracy requirements as outlined in standards 2.1 and 2.2 of the Code.

In July 2007, in response to ongoing concerns over the detriment caused by problem gambling, the Norwegian government banned all electronic gaming machines from Norway. In January 2009, new gaming machines—known as video lottery terminals—were introduced into Norway under the sole control of Norsk Tipping.4 The following statistics, which were briefly shown onscreen at the time the relevant statement was made, indicate the proportion of compulsive gamblers in Norway in the following years:5

Year2005 1.7%2007 1.3%2008 1.9%2010 2.1%

The complainant submitted that the presenter “suggested that the Article was attempting to mislead readers by basing its argument on statistics obtained in 2007”, that “the programme failed to reveal to viewers that the Annual Report referred to by [the presenter] shows that as far back as 2005, every single year prior to the 2010 survey contained a lower proportion of ‘compulsive gamblers’ than in 2010” and that “the figures clearly show that mandatory pre-commitment measures have not reduced the number of serious problem gamblers.”

The presenter did not explicitly say the Article was misleading. He stated that 2007 was an untypical year in Norway and that, overall, Norsk Tipping believed the study to have produced the opposite result to what the Article had reported.

4 www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011-2012/GamingMachines#_ftn2

5


http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011-2012/GamingMachines#_ftn2

http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011-2012/GamingMachines#_ftn2

As stated during the Segment, the Norsk Tipping report included the following

The 2010 poll identified a significant rise in the number of players without problems compared with the 2008 survey (up by 1.8 percentage points, or about 165 000 people). This is a positive trend, which suggests that both official money game policy and Norsk Tipping’s measures against compulsive gaming have had the desired effect.

The report also accounted for the rise in the incidence of compulsive players (an increase of only 0.2% between 2008 and 2010) by stating that this rise was “within the margin of error for the 2008 survey” before adding that “there appears to be a general decline in the proportion of Norwegians with a gaming problem”.6

These conclusions were not reported in the Article, which opened and finished with the view that poker machine restrictions had failed in Norway.

The ACMA considers that this excerpt from the report, as well as the absence of any reference to it in the Article, supports the presenter’s claim that “Norsk Tipping itself thinks that, overall, the survey proves the opposite to what the Tele reported” and that accordingly, his statement was an accurate one.

Accordingly, the statement was accurate and presented in context. The ordinary, reasonable viewer would not have been materially misled by it.

[The Writer’s] story was indeed exclusive because it told us exclusively about Clubs Australia’s interpretation of the figures in the Norsk Tipping survey.





Reasons

The relevant statement followed references to an Australian Associated Press article which had reported that anti-pokies campaigners had accused Clubs Australia of cherry-picking misleading data from Norway. It referred to Clubs Australia’s argument that the Norway study had found serious problem gambling had increased, and a quote from Senator Xenophon.

The relevant statement (in bold) was made in the following context:

The presenter– Get the idea? Everyone’s point of view gets a guernsey. Or, as News Limited’s professional conduct policy, clause 1.3 puts it...

Voiceover – Try always to tell all sides of the story in any kind of dispute.

The presenter– But the Daily Telegraph didn’t. [The Writer’s] story was indeed...

Voiceover – Exclusive.

6 www.norsk-tipping.no/selskapet/english/annual_reports


http://www.norsk-tipping.no/selskapet/english/annual_reports

The presenter– Because it told us exclusively about Clubs Australia’s interpretation of the figures in the Norsk Tipping survey. In fact, the only person quoted in the entire story was...

Voiceover – Clubs Australia President Peter Newell.

The statement made by the presenter was factual in nature. The words did not include language indicating that it was an opinion. Rather, it was stated as an assertion of fact. The ordinary, reasonable viewer would have interpreted it as such.

The statement would have conveyed to the ordinary reasonable viewer that:

the Article had offered a single interpretation of the results in the Norsk Tipping survey

that interpretation was the interpretation of Clubs Australia.

The ABC submitted and the ACMA accepts that an “interpretation” is “an explanation given” or “a construction placed upon something”.

Media Watch submitted that the Article offered an interpretation of the survey figures, “in the plainest terms, in its opening paragraph”:

The poker machine restrictions on which Julia Gillard is staking her prime ministership have failed in the only country in the world to have introduced a mandatory pre-commitment spending limit (emphasis added).

This was the same interpretation placed on the Norsk Tipping Survey by Clubs Australia in its media release of 14 September 2011 (the Media Release)7 which was headed “Mandatory pre-commitment fails to reduce problem gambling”.

The complainant argued that the Article in fact “reflected [the Writer’s] own interpretation of the figures, having reviewed the entire 2010 survey, the relevant pages from the Annual Report and the Norwegian newspaper reports on the issue.”

However, the fact that the Writer conducted his own research and placed his interpretation on the Norsk Tipping survey is not to the point. The fact remains that the Writer’s interpretation was virtually identical to that of Clubs Australia. In the context of a segment dealing with “one sided” reporting, the fact that the one interpretation presented was shared by others (including the Writer) is irrelevant.

Although the Writer included factual material and statistics in the Article that did not appear in the Media Release, the fact remains that only one “interpretation” was offered.

Accordingly, the presenter’s statement that the Article told us “exclusively about Clubs Australia’s interpretation” is an accurate one and the ABC did not breach standards 2.1 and 2.2 of the Code in relation to it.

Issue 2: Whether news and information were gathered and presented with due impartiality

Relevant code standardStandard 4.1 of the Code states:7 www.clubsqld.com.au/gm-reforms/media-coverage/articles/


http://www.clubsqld.com.au/gm-reforms/media-coverage/articles/

4.1 Gather and present news and information with due impartiality

The considerations which the ACMA generally applies in determining whether or not a statement complained of was compliant with the ABC’s obligations in Standard 4.1 are set out at Appendix F.

Complainant’s submissionsThe complainant submitted to the ACMA that “the presenter in the broadcast made a number of allegations about [the Article] that were unfounded, unbalanced and untrue”.

Broadcaster’s submissionsThe ABC stated the following in relation to its compliance with standard 4.1 of the Code:

... assessing impartiality requires consideration of all relevant factors, including the type, subject and nature of the content and the likely audience expectations of it. Media Watch is a program of comment, analysis and criticism; it is not a news program or a program which reports on current affairs. Its focus is squarely on media and journalism. [The ABC] considers that the Media Watch audience is likely to be familiar with the program’s established format and the fact that the host expresses a viewpoint on the matters covered.

On review, having regard to the nature of the program and the subject of the story, [the ABC] has found no evidence to suggest that Media Watch’s decision to criticise The Daily Telegraph and the particular item authored by [the Writer] were improperly influenced by political, sectional, commercial or personal interests, or were reflective of undue partiality or prejudgement. To the extent that ACMA considers standard 4.1 to be relevant to [the Complaint], our view is that there has been no breach of this standard.

Finding The ABC did not breach standard 4.1 of the Code.

ReasonsIn accordance with the considerations stated in Appendix F, a program that presents a perspective that is opposed by a particular person or group is not inherently partial. Whether or not a breach of Standard 4.1 of the Code has occurred will depend on the themes of the Segment, any editorial comment, the overall presentation of the Segment and the circumstances in which Media Watch is prepared and broadcast.

The Code makes it clear that impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented.

In this case, the presenter explored what he claimed to be one-sided reporting by the Daily Telegraph, in the context of the opinions publicly expressed by Senator Stephen Conroy, and an editorial from the Sydney Morning Herald which referred to editorial bias in the Daily Telegraph’s news pages and opinion columns. The issue was being publicly debated and did not originate with the presenter.


Further, Media Watch is a program that routinely calls into question the actions of the media and of journalists. The ordinary, reasonable viewer would be cognisant of this fact and would set his or her expectations accordingly.

The ACMA considers that the presenter’s tone and choice of language did not portray prejudgement or personal affection or enmity in a manner or to an unacceptable degree in this context. The fact that the Segment served to call the Article into question and made allegations against the Writer does not make it inherently partial.

There is no evidence that the criticism of the Article was improperly influenced by political, sectional, commercial or personal interests, or that it was reflective of undue partiality or prejudgement.

Accordingly, standard 4.1 of the Code has not been breached.

Issue 3: Whether reasonable efforts were made to provide a fair opportunity to respond to allegations

Relevant code standardStandard 5.3 of the Code states:

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





FindingThe ABC breached standard 5.3 of the Code.

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

Was an allegation made about a person or organisation?

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

The ABC has published a Guidance Note dealing specifically with the interpretation of standard 5.3 of the Code, which has been reproduced below at Appendix G (the Guidance Note).

The ABC has submitted that, having regard to both the Code and the Guidance Note, it was not intended that Media Watch should be subject to standard 5.3. As stated in the Guidance Note:

Section 5.3 applies to news and current affairs and other types of factual content, such as documentaries.


[...]

This Guidance Note does not apply to...

content genres in which the provision of an opportunity to respond is not a recognised standard – criticism and review of artistic works is one example; comedy and satire is another.

The ABC and Media Watch further submitted that Media Watch is not obligated to offer the opportunity to respond to the presenter’s opinion and that to create such an obligation would unduly constrain journalistic enquiry or artistic expression. It also sought to characterise Media Watch as falling into the category of “criticism and review”. While acknowledging that Media Watch “does sometimes engage in a form of investigative reporting about the media”, the ABC stated that “this type of investigative reporting does not form the core of Media Watch’s output, and the program was not engaging in this type of investigative reporting in the broadcast on 19 September 2011”.

Media Watch can be distinguished from other programs of criticism and review in that it regularly consists of factual investigation, rather than a critique of works of art, which is by its nature a subjective and abstract exercise. Media Watch regularly investigates questions of fact; it collates them and reports on them.

Accordingly, the ACMA considers that Media Watch does not fall within the category of programs in which “the provision of an opportunity to respond is not a recognised standard”.

Media Watch itself has acknowledged in its submissions that an “opportunity to respond” is a recognised standard on the program, whenever allegations are made:

When we are dealing with ‘allegations’ about media behaviour, we do offer an opportunity to respond. Where the facts seem to us to be clear cut, and we are acting as a program of criticism and indeed on occasion of satire, we do not feel obliged to do so.

The program also submitted the following:

Standard 5.3 is applicable primarily to normal news, current affairs and factual programs. It applies to Media Watch, too, insofar as factual allegations are concerned.

The Guidance Note specifies the types of conduct that will attract the operation of standard 5.3, namely “action or inaction that may be unlawful, improper, incompetent, negligent, corrupt, dishonourable or antisocial”. The ABC has submitted that its comments regarding the Writer were not sufficiently grave to fall within these categories.

The ACMA rejects this view. An accusation of failing to abide by one’s professional code comfortably falls within a number of the classes of behaviour referred to above.

In this instance, the complaint is that the presenter named the Writer and alleged that he had breached clause 1.3 of the News Ltd Code of conduct (the Code of Conduct): “Try always to tell all sides of the story in any kind of dispute”.

In the context of the Segment, the ACMA considers that the presenter’s comments were not so straightforward, or, in the words of the ABC, “clear cut”, that they could be classed as a simple statement of fact as opposed to an allegation.

Clause 1.3 of the Code of Conduct requires that journalists try to tell all sides of a story. The primary focus therefore would appear to be on the efforts that are made by journalists in this regard. Accordingly, determining whether a breach of the clause has occurred would involve a consideration of more than what was actually published. For example, it logically would also involve considering the relevant dispute, its ‘sides’ and the efforts made prior to publication.


In this case, the segment focussed exclusively on what was published.

No reference was made to the Writer’s claimed original intention to include a quote from Federal Minister Jenny Macklin in the Article, offering a different interpretation of the survey results.

Such an intention may well have been relevant to whether the Writer did ‘try’ as the clause requires. It shows, at least, that the question of whether the Writer had “[tried] ... to tell both sides of [the] story”, was not as self-evident as the presenter suggested.

As stated by the complainant in his submissions, “Media Watch failed to contact [the Writer], the Editor, the Managing Editor or any other member of the Daily Telegraph staff to provide a fair opportunity to respond to the...allegations made against [the Writer] during the program”.

The ABC does not deny that no efforts were made by it in this regard.

It does not follow that Media Watch would be required to offer an opportunity to respond “whenever any unflattering imputation against an individual or a media outlet could be attributed to the presenter’s judgements, and regardless of the fact of the matter”, as was submitted by the Media Watch. It is only where material and conduct is of the kind outlined in the Guidance Note (above) that the operation of standard 5.3 will be triggered.

In making an allegation against the Writer, Media Watch was obliged to make reasonable efforts to offer the Writer a fair opportunity to respond. It made no such efforts. Accordingly, the ABC has breached standard 5.3 of the Code.


Appendix ATranscript of the SegmentSenator Stephen Conroy: The campaign they have been running against the government has been... blatant, it breaches its own journalistic ethics of News Limited, and I have them here. Some of the reporting recently in The Daily Telegraph fails one... two... three of the first three. But that’s a personal opinion.

The presenter: It’s an opinion we share. We've said so before. And the Tele is getting more blatantly one-sided as the government's poll figures slide.

A classic example, just last week:

Voiceover (VO): Gillard is gambling on failed system

THE poker machine restrictions Julia Gillard is staking her prime ministership on have failed in the only country in the world to have introduced a mandatory pre-commitment spending limit.

An independent study of 3000 people in Norway found serious problem gambling had increased from 1.3 per cent to 2.1 per cent in the past three years, despite players having betting limits.


The presenter: As far as they go, those figures are accurate. Here they are in the annual report of Norway's gambling monopoly, Norsk Tipping. But 2007 was an untypical year in Norway – old slot machines had been removed, and new ones not yet installed. Norsk Tipping itself thinks that overall, the survey proves the opposite to what the Tele reported.

VO: The 2010 poll identified a significant rise in the number of players without problems compared with the 2008 survey...which suggests that both official money game policy and Norsk Tipping's measures against compulsive gaming have had the desired effect.

— Norsk Tipping Annual and Social Report 2010,

Well, you can argue anything with figures.

Here are some parts of an Australian Associated Press report on the same topic:

VO: Anti-pokie campaigners have accused Clubs Australia of cherry picking misleading data from Norway ...

Clubs Australia argues a study of 3,000 people in Norway, had found serious problem gambling had increased in the past three years following pokies reforms....

Independent senator Nick Xenophon said Clubs Australia was comparing "apples to camels."

— Sydney Morning Herald online, 14th September, 2011

The presenter: Get the idea? Everyone's point of view gets a guernsey. Or as News Ltd's Professional Conduct Policy clause 1.3 puts it:

VO: Try always to tell all sides of the story in any kind of dispute.

— News Ltd, Professional Conduct Policy


The presenter: But The Daily Telegraph didn't. [Writer’s] story was indeed:

VO: Exclusive


The presenter: because it told us exclusively about Clubs Australia's interpretation of the figures in the Norsk Tipping survey. In fact the only person quoted in the entire story was:

VO: Clubs Australia president Peter Newell


The presenter: The curious thing is that nobody's even surprised any more. The Sydney Morning Herald, editorialising about the new media inquiry, said last week that what it called 'Murdoch papers' have made a:

VO: ... frequent practice of letting editorial bias show not only in opinion columns but also in news pages ...

— Sydney Morning Herald, 16th September, 2011

The presenter: But that's their right, says the Herald:

VO: That newspapers might ... take an editorial line strongly for or against a party or policy is a legitimate part of the community conversation that underpins democracy.

— Sydney Morning Herald, 16th September, 2011

The presenter: Well, I don't agree. In a news story, it's not legitimate to cherry pick facts and ignore one side of an important argument. That's not journalism, its propaganda, and it undermines democracy.


Appendix B


Issue 1: Whether:


factual content was presented in such a way that would have materially misled the audience

“It’s an opinion we share. And the Tele is getting more blatantly one-sided as the government’s poll figures slide. A classic example, just last week.”

To the ABC

... [The presenter] accused [the Writer] of breaching News Limited’s Professional Conduct Policy and suggested that [the Writer] was deliberately and malevolently ignoring the Federal Government’s argument on the issue.

[...]

[The presenter] suggested that the article was written as part of a Daily Telegraph conspiracy against the Federal Government. This is a baseless and defamatory claim. The article was a fair report of the 2010 Norsk Tipping Annual Report and the 2010 Norsk Tipping survey on gambling. All claims made in the article were based on statistics published in the Annual Report and widely covered in Norway at the time they were published. What makes [the presenter]’s claims of political conspiracy even more outrageous, is the way the issue was reported in the Daily Telegraph was consistent with coverage that the issue received in Norway. For example, the Norwegian Aftenposten newspaper reported the issue the same way the Daily Telegraph did, by reporting the serious problem gambling figures as the main news point.

To the ACMA

What is noticeably absent from the program and any of the words uttered by [the presenter] was that [the Writer] had not on this or on other occasion acted in furtherance of some conspiracy or as a propagandist. Therefore it was not open to him to attack [the Writer’s] professional standing and integrity without having made even the merest enquiry to establish the true facts as distinct from the ABC’s ‘undisputed’ and ‘self-determined’ facts.


To the ABC

[The presenter] then proceeded to question [the Writer’s] integrity as a journalist, stating “it’s not legitimate to cherry pick facts and ignore one side of an important argument”. He went on to liken [the Writer] to a propagandist.


To the ACMA

[The presenter] and Media Watch accused [the Writer] of being a propagandist and a biased journalist and of breaching the News Ltd code of conduct.

[...]

... it is not so bound by its the [sic] code of practice the ABC response then seeks to characterise that statement as “strongly-worded opinion”.

The characterisation of the statement as opinion fails the test of common sense, ordinary usage of language and the test applied in the courts as to what constitutes an opinion. What the ABC fails to do is note that an opinion is a conclusion based on facts truly stated. Its facts obviously are not truly stated. Its definition of opinion is one based on facts it believes are true.

Importantly there are no words whatsoever in the above statement that would lead any reasonably-minded person to view that it was an opinion.

The statement is as dogmatic as it is clear. It asserts in no uncertain terms that it was not legitimate for [the Writer] to cherry-pick facts and ignored one side of an argument.

The words “that’s not journalism, it’s propaganda” are unadorned by any indication that, that is the opinion of the speaker. Rather it asserts them as bald and unequivocal statement of fact.

“As far as they go, those figures are accurate. Here they are in the annual report of Norway’s gambling monopoly Norsk Tipping. But 2007 was an untypical year in Norway. Old slot machines had been removed and new ones not yet installed. Norsk Tipping itself thinks that overall the survey proves the opposite to what the Tele reported.”

[The presenter] also suggested that the article used misleading statistics in order to push the Daily Telegraph’s political agenda. He stated that “Norsk Tipping itself thinks that, overall, the survey proves the opposite of what the Tele reported”. This statement is incorrect and takes the article out of context. [the presenter] went on to suggest inconsistencies between the statistics in the Annual Report, and those published in the Daily Telegraph, stating “the 2010 poll identified a significant rise in the number of players without problems compared with the 2008 survey ... which suggests that both official money game policy and Norsk Tipping’s measures against compulsive gaming have had the desired effect”. The Daily Telegraph article clearly stated that in total the rate of people with no gambling problems rose slightly from 85.5 per cent to 87 per cent. The article did not try and hide this, nor did it attempt to spin the figures to suggest that there were no positive outcomes from the surveys. The focus of the article was the fact that the number of serious problem gamblers had increased, despite the mandatory pre-commitment.

Further to this, [the presenter] suggested that the article was attempting to mislead readers by basing its argument on statistics obtained in 2007, which the programme describes as “an untypical year in Norway.” What the programme failed to reveal to viewers was that the Annual Report referred to by [the presenter] shows that as far back as 2005, every single year prior to the 2010 survey contained a lower proportion of “compulsive gamblers” than in 2010. Hence,


notwithstanding the irregularities in 2007, the figures clearly show that mandatory pre-commitment measures have not reduced the number of serious problem gamblers.

“[The Writer’s] story was indeed exclusive because it told us exclusively about Clubs Australia’s interpretation of the figures in the Norsk Tipping survey. In fact, the only person quoted in the entire story was Clubs Australia President Peter Newell.”

To the ABC

... [the Writer] in fact contacted Federal Minister Jenny Macklin’s office for comment and quoted her in [the] original story. Unfortunately, for space issues, a decision was made beyond [the Writer’s] control by sub-editors to cut the quotes from Ms Macklin ... Had Media Watch made reasonable efforts it would have ascertained these facts, which were omitted by [the presenter].

[...]

[the presenter] stated that the article “told us exclusively about Clubs Australia’s interpretation of the figures in the Norsk Tipping survey”. This is simply untrue. The article reflected [the Writer’s] own interpretation of the figures, having reviewed the entire 2010 survey, the relevant pages from the Annual Report and the Norwegian newspaper reports on the issue. The fact that [the presenter] omitted these facts from his report demonstrates a significant failure to make proper and adequate enquiries as to the facts on which he was supposedly supporting.

To the ACMA

The ABC it in its [sic] conclusion that the facts of this matter are “undisputable facts” is simply false.

The facts are that [the Writer] did conduct research and approached relevant people for the other side of the story and included that in [the Article] submitted for publication.

[...]

For the ABC complaints process to suggest that it is a matter of opinion as to whether [the Writer] breached the code is just plain wrong. [The Writer] did “try ... to tell both sides of the story” as the Code states. A sub-editing mistake deleted the paragraphs which would have stopped this accusation.

[...]

The ABC asserts that the fact was (despite making no enquiry as to the true facts) that [the Writer] had relied on the interpretation of figures of Clubs Australia in [the Article] and that [the Writer] had not approached a relevant Minister for the contrary material...

These “indisputable facts” were both false, as an enquiry of [the Writer] ... would have revealed that [the Writer] had conducted [his] own research as to the relevant figures and approached the relevant Minister for their side of the story before it was deleted from the story by sub editors beyond [the Writer’s] control.


Issue 3: Whether reasonable efforts were made to provide a fair opportunity to respond to allegationsTo the ABC:

In his letter of complaint to the ABC, the complainant stated:

Section 5.3 of the ABC Code of Practice 2011 states:

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

Media Watch failed to contact [the Writer], the Editor, the Managing Editor or any other member of The Daily Telegraph staff to provide a fair opportunity to respond to the defamatory allegations made against [the Writer] during the program.

This is extremely hypocritical, given the scathing and unfounded attacks that [the presenter] made on [the Writer’s] journalistic integrity throughout the program. In his report on [the Article], [the presenter] accused [the Writer] of breaching News Limited’s Professional Conduct Policy and suggested that [the Writer] was deliberately and malevolently ignoring the Federal Government’s argument on the issue.

[...]

The complainant went on to list what he perceived to be the allegations made against the Writer one by one, as indicated in Issue 1 (see above).

He then stated the following:

... By providing [the Writer] with no opportunity to respond to the allegations, [the presenter] was able to quote [the Article] out of context, without giving [the Writer] any right of reply, and suggest that [the Writer] was running an agenda, rather than reporting on facts.

To the ACMA:

The complainant subsequently submitted the following to the ACMA with regards to clause 5.3 of the Code:

The ABC response is inadequate because not only does it totally disregard the clear and common meaning of the words contained in Section 5.3 [sic] of its Code of Practice it engages in a jabberwocky like reinterpretation of those words to suit its desired outcome and has proffered a response that can only be described as self-serving and circular.

I believe this is an important test case as the ABC code of conduct unambiguously states that the person or organisation who are [sic] the subject of allegations should be contacted prior to allegations being made. If the response to this complaint were to be taken as a precedent of how ABC journalists should act in future, section 5.3 of the code of conduct should be abandoned by the ABC altogether and ABC journalists need not seek a right of reply from any source. Accordingly how ACMA views this case is critical to the fair treatment of people by the ABC and Media Watch.

[...]

... One could hardly imagine a more serious accusation against a journalist. It defies belief then that the ABC complaints process failed to see the simple matter of contacting [the Writer] prior


to the broadcast, as appropriate ... All Media Watch had to do to avoid this was make one phone call or send one email and allow [the Writer] a say in the program. For them to fail to acknowledge that was a fair approach – and for the ABC to back them – is both shameful and hypocritical.

[The presenter] in the broadcast made a number of allegations about [the Article] and [the Writer] which were unfounded, unbalanced and untrue.

The complainant proceeded to list the allegations he claims were made against him, as outlined in issue 1 (see above).

He then stated the following:

The ABC response dated 16 November 2011 is inadequate because it fails to interpret the Code of Practice by giving effect to the ordinary English meaning of the words contained therein. It seeks to obfuscate the meaning of the Code and thereby divert from dealing with the central complaint ...

In essence the ABC and its letter of 16 November 2001 argues:

1. Allegations do not include statements of established fact.

2. An allegation is only to be interpreted as an assertion which the ABC has not established to its reasonable satisfaction is necessarily true ...

3. The Code does not require the ABC when expressing “an opinion, analysis or review to seek a response before expressing a conclusion or opinion”. That is only necessary when a matter is an allegation namely a matter the ABC has not already made its mind up on.

[...]

8. Section 5.3 [sic] of the ABC Code of Practice replies primarily to normal News, current affairs and factual programs but only to Media Watch as factual allegations are concerned and given it interprets any adverse material as being an expression of opinion it is therefore not bound by its own code in that respect.

[...]

It is apparent ... the ABC sets itself up as the arbiter of what are the undisputable facts and then defines them as such and thus not as “allegations made against a person”. To the extent the ABC is unable to characterise matters as “undisputable facts” and then seeks to describe them as comments thereby carefully sidesteps the requirements of ordinary decency, journalistic fairness and its own Code.

[...]

Of course, the ABC’s construction of section 5.3 [sic] of the Code it might say they are not allegations and the comment is soundly based because they are indeed the facts (in their view “indisputable facts”). In other words because the ABC as Judge, Juror and Executioner has found them to be the true facts they no longer have the quality of an allegation made by the ABC. One only needs to state the argument to see that it is facetious.

The ABC confidently and defiantly states on page one of its letter of 16 November:

“an allegation is an assertion which the ABC has not necessarily established to its reasonable satisfaction as necessarily true”.


Thus the ABC can escape the standards set by itself in its Code of Practice by asserting that it has satisfied itself that [the Writer’s] work as a journalist was propaganda and that [the Writer] had cherry-picked the facts and had ignored one side of an important argument. To its mind they are the facts and that is all that matters to elevate them beyond allegations.

[...]

The ABC in its response to achieve its result of dismissing my complaint and not applying the Code has to discombobulate the meanings of various words. Its narrow and legalistic approach to the meaning of the word allegation is to attribute to it the character of the claim of fact by someone ...which that person claims to be able to prove and that the allegations remain assertions without proof until they cannot be proved. Thus once the ABC has proved them to be facts (to its own mind) it is no longer required to apply 5.3 of the Code and seek to make reasonable efforts in the circumstances to provide a fair opportunity to respond. Namely once it has adjudicated as to what the facts are there is no need to seek from the person affected their input as to the truth of the matter. Of course this also conveniently ignores that a statement of opinion can in certain circumstances contain an allegation about a person.

[...]

... the ABC takes the view that opinions can never contain allegations nor are they statements of fact and therefore not caught by 5.3 of the Code of Practice. This means in practice that all the ABC has to do is satisfy itself that it has an opinion and express it without regard to any fair opportunity for the person affected by the opinion. This can occur whether based on proper facts or factual flawed facts such as the ABC’s “undisputed facts” in this case.

The ABC’s statement that it had no reason to doubt the validity of any of those facts, notwithstanding they were simply untrue, excused it from making any enquiry under its Code of Practice.

On this basis section 5.3 of the Code of Practice lacks utility, would make any complaint futile and is a licence to those within the ABC to ignore basic journalistic standards.

This is an unsatisfactory situation.


Appendix C

ABC’S Submissions

Issue 1: Whether:


factual content was presented in such a way that would have materially misled the audience

“It’s an opinion we share. And the Tele is getting more blatantly one-sided as the government’s poll figures slide. A classic example, just last week.”

[The ABC] considers that the issue of whether [the Article] breached the News Limited Professional Conduct Policy was, in the context of the Media Watch story, dealt with as a matter of opinion.

[...]

The program included Senator Conroy’s claim that The Daily Telegraph had been running a blatant campaign against the Government that breached the News Limited Professional Conduct Policy, and as noted above, The presenter expressed agreement with Senator Conroy’s opinion that some of the newspaper’s recent reporting had breached this policy. He then opined, “And the Tele is getting more blatantly one-sided as the government’s poll figures slide”. It was in this context that the discussion of [the Article] began.


[The presenter]’s reference to “propaganda” was made in the specific context of expressing disagreement with a Sydney Morning Herald editorial which argued, essentially, that it is reasonable or acceptable for newspapers to take an editorial line for or against a party or policy, in both opinion columns and news pages. [The presenter] went on to say, “In a news story, it’s not legitimate to cherry-pick facts and ignore one side of an important argument. That’s not journalism, it’s propaganda, and it undermines democracy”. While [the presenter]’s statement was made in that general context, it is accepted that, as this part of the Media Watch program was related to the review and criticism of [the Article], it did imply that in the presenter’ opinion, [the Article] was part of the “propaganda” published by the newspaper.

[...]

In its context in the program, we accept that conveyed [the presenter]’s opinion that [the Article] had ignored one side of the argument...

“As far as they go, those figures are accurate. Here they are in the annual report of Norway’s gambling monopoly Norsk Tipping. But 2007 was an untypical year in Norway. Old slot machines had been removed and new ones not yet installed. Norsk


Tipping itself thinks that overall the survey proves the opposite to what the Tele reported.”

... taking [the Article] as a whole, it is clear that the forcefully expressed thesis of [the Article] was that the Norsk Tipping annual report provides, by virtue of what it asserts about the proportion of the population regarded as “moderate” and “high-risk” gamblers, good evidence that the introduction of pre-commitment spending limits had “failed” in Norway as an effective means of addressing problem gambling and hence there was good reason to doubt the wisdom of imposing any similar pre-commitment spending limit here in Australia. There is nothing in [the Article] which suggests any possible doubt about that thesis being correct.

Further, with regard to the use of statistics from 2007 as a point of comparison to the 2010 statistics, Media Watch set out the basis for the opinion that statistics from 2007 were likely to be unusual and hence that comparison of statistics from 2007 and 2010 did not provide an appropriate basis on which to draw relevant conclusions.

... the Media Watch story explained the facts on which the opinions were based, and that there was no reason to doubt the accuracy of the facts on which those opinions were expressed ...

Media Watch submitted the following:

The program went on to cite some indisputable facts (or so it seemed to us) about [the Writer’s] story. We agreed that the figures he quoted were ‘accurate enough’. We argued that there were other possible interpretations of those figures than that the Norwegian experiment had ‘failed’. We contrasted his report on the Norsk Tipping survey with the AAP’s treatment of the same subject, where various viewpoints were aired. We stated that, despite News Ltd’s Professional Conduct Policy requiring that reporters ‘try always to tell all sides of the story’, [the Writer’s] story did not. We stated that it expressed only the interpretation of the figures espoused by Clubs Australia, and quoted only its President.

These are not allegations, but statements of fact. [The Writer] can argue that he did his own research and came to his own conclusions; the fact remains that his interpretation of the figures coincided precisely with Clubs Australia’s, and readers were given no hint that there are other interpretations, including Norsk Tipping’s own. It may be that [the Writer] approached the relevant Minister and included a quote from her in his original story, but it did not get printed and is therefore irrelevant to the argument that the story as published was completely one-sided.

“[The Writer’s] story was indeed exclusive because it told us exclusively about Clubs Australia’s interpretation of the figures in the Norsk Tipping survey. In fact, the only person quoted in the entire story was Clubs Australia President Peter Newell.”

[The Writer has] stated that [he] did, in fact, seek comment from the Federal Government and intended that comment to be included in the story, but the comment was removed from the story prior to publication. It is noted, however, that [the presenter] did not make any statement about what [the Writer] did or did not do in the preparation of the story; rather, he was clearly commenting on the story as published. It is a matter of fact (not allegation) that the story was printed under [the Writer’s] by-line and, as published, it did not include any indication of the Government’s perspective.

[...]


[The ABC understands that the complainant asserts] that this statement was inaccurate because the story in fact conveyed [the Writer’s] own interpretation of the Norsk Tipping survey figures rather than, or at least in addition to, Clubs Australia’s interpretation.

Media Watch has pointed out that the interpretation of the figures in the story was the same as that put forward in Clubs Australia’s media release. Further, Media Watch notes that the statement in the program meant simply that the only interpretation of the figures offered in the story was consistent with that propounded by Clubs Australia. Nothing in the Media Watch program suggested that it was not also [the Writer’s] own interpretation.

While [the ABC] accepts that most of the interpretation of figures discussed in [the Article] was not attributed to Clubs Australia and there is no reason to doubt that [the Writer] analysed the figures ... as part of the process of researching and writing the story, the fact remains that [the Article] set out only one interpretation of the figures. Further, that interpretation was the interpretation propounded by Clubs Australia (as [the Writer] was clearly aware); that it was also [the Writer’s] own interpretation does not alter that.

[...]

It is acknowledged that [the Article] did contain reference to the finding in the Norsk Tipping annual report that there had been a slight rise in the proportion of the population with no gambling problems. It is also acknowledged that [the Article] contained reference to the finding that “the overall number of problem gamblers decreased” (as a statement which refers to number rather than proportion, and is in any event at odds with the quote from Peter Newell which is reproduced without comment or criticism at the end of [the Article]).

The ABC later submitted the following:

The ABC considers that the inclusion of the statements “overall the number of problem gamblers decreased” and that “the survey found the rate of people with no gambling problems in Norway rose slightly from 85.5 per cent to 87 per cent” in [the Writer’s] story did not amount to presenting an additional or alternative interpretation of the survey figures. They were simple facts, with which Clubs Australia would no doubt agree. By including them within the story, [the Writer] was reporting the survey results, not interpreting them.

“Interpretation” is relevantly defined in the Macquarie Dictionary as “an explanation given” or “a construction placed upon something”. Simple citation of figures does not constitute the presentation of an interpretation; to do so, the citation must be presented with an explanation of or a construction placed upon the thing being interpreted. Considering the citations within the context of the story, it is clear to the ABC that the only interpretation they formed part of was the one summarised by ACMA as “the view that the proposed reforms had been a failure in Norway”, an interpretation acknowledged by ACMA to be identical to the one expressed by Clubs Australia.

It also submitted the following:

... It is not to the point that [the Article] itself included other material which did not provide an interpretation of the Norsk Tipping figures. This was irrelevant – or immaterial – to the focus of the program’s criticism. The fact that various political players were supportive of mandatory commitment and were pursuing reform would have been familiar to many readers of [the Article]. What [the Article] provided was an analysis of how reasonable those political activities were in the light of the Norsk Tipping findings. By only providing one perspective of these


findings – a perspective “that the reforms proposed for Australia had been a failure in Norway” – the program’s view was that The Daily Telegraph had not satisfied its own policies.


Media Watch also submitted the following:

... [the Article] was not ‘required’ to provide an interpretation of the figures. But there can be no doubt that it did so, in the plainest terms, in its opening paragraph

[...]

It is a conclusion that may or may not have been reached by the complainant after independent research. However, as the ACMA has conceded, it is an interpretation of the figures shared by Clubs Australia, and propounded in a Clubs Australia media release issued to the rest of the media on the morning that the Daily Telegraph published its ‘exclusive’ report.

Every sentence of the Article) with the exception of a few pars near the end about Aristocrat’s views on the viability of introducing mandatory commitment-ready machines) serves to strengthen that interpretation.

The half-sentence and the sentence that the ACMA has pulled out of the Article, and used to claim that it presented more than one interpretation of the survey, are not, in context, doing anything of the sort. They are reporting figures in such a way as to support the opening paragraph’s interpretation.

[...]

Are there other interpretations of the survey? Yes there are: there is Norsk Tipping’s; and Dr Charles Livingstone’s – one of Australia’s foremost experts on poker machine addiction, whom Media Watch consulted; and that of the main proponents of mandatory pre-commitment in Australia, Andrew Wilkie MP and Senator Nick Xenophon; and of the Gillard government – to name a few.

Did a reaction to the Norsk Tipping report by any of these people appear in the Article? No it did not. Were any of them quoted? No they were not, except indirectly by Clubs Australia’s Peter Newell, who quoted Nick Xenophon only to rebut him.

[...]

Media Watch said that the Article “told us exclusively about Clubs Australia’s interpretation of the figures in the Norsk Tipping survey.”

That statement is not of course intended to imply, and would not have been taken by the ordinary, reasonable viewer to mean, that the Article contained nothing but a Clubs Australia interpretation of the figures in the Norsk Tipping report. Obviously it contained more than that.

The comment was intended to imply, and would have been taken by an ordinary, reasonable viewer to mean, that the only interpretation of the figures in the report proffered in the Article was that shared by Clubs Australia, and that any other interpretation was excluded. That the [Article] mentioned, fleetingly, the exceedingly well-known fact that at that time Julia Gillard and Andrew Wilkie supported mandatory pre-commitment in Australia does nothing to counter the accuracy of Media Watch’s statement. Neither they, nor anyone other than Peter Newell, was given the opportunity to comment on ‘the figures in the Norsk Tipping survey’.

[...]


In my opinion it would be hard to find an ‘ordinary, reasonable person’ who, having read the Article, and having been made aware of the various interpretations that have been put on the figures in the Norsk Tipping survey (including Norsk Tipping’s own), would agree that that passage is either inaccurate or misleading.

Issue 3: Whether reasonable efforts were made to provide a fair opportunity to respond to allegationsTo the Complainant

The ABC submitted the following to the complainant with regards to its obligations under clause 5.3 of the Code:

... we note that the reference in standard 5.3 to “allegations” needs to be understood in light of two matters:

(a) An “allegation” is just that; it does not include a statement of established fact even when that fact reflects negatively on someone. In the context of factual material, an “allegation” is an assertion which the ABC has not established to its reasonable satisfaction is necessarily true. Even when facts reflect negatively about someone, it would be entirely impractical for journalists to be required to afford an opportunity to respond even in relation to clearly established facts.

(b) As discussed in the “Note on Interpretation” at the start of the ABC’s Editorial Policies, the Editorial Policies (of which the Code of Practice forms part) are to be “applied with due regard for the nature of the content under consideration” and in ways which “do not unduly constrain journalistic enquiry or artistic expression”. It would be unduly onerous and quite impractical to expect that in relation to a story which engages in analysis or review it is necessary to seek a response before expressing a conclusion or opinion, even a critical one, relating to the material being analysed or reviewed. Accordingly, for such stories, which set out the basis for the conclusions and opinions presented in them (and hence are not conveying bare or unexplained allegations), there is no requirement to seek a response merely because those conclusions or opinions carry some criticism of a person.

Media Watch submitted the following:

Media Watch is an unusual program for the ABC. It allows a single presenter to express forceful opinions based on facts presented. In this respect it is unlike any other program on ABC Television

[...]

Standard 5.3 is applicable primarily to normal news, current affairs and factual programs. It applies to Media Watch, too, insofar as factual allegations are concerned. However this program has never felt obligated to offer an opportunity to respond to the presenter’s opinions. Commonly, when the program does put allegations (for example, allegations of factual inaccuracy or distortion) to an editor, a small part of the response will be run on the program, viewers will be referred to the full response posted on the program’s website, and the presenter will conclude the item with an observation (frequently a pungent one) about the editor’s response and/or the item in question. Media Watch has never felt it necessary to go back to the editor and say “[The presenter]... is going to voice this opinion, what is your response?”


So the issue is, were “allegations”, in the sense intended by Standard 5.3, made about [the Writer] and/or the Daily Telegraph? Or were incontrovertible facts laid out, and an opinion based on those facts voiced by the presenter?

[...]

In the program in question, [the presenter] stated, as an opinion, that “the Tele is getting more blatantly one-sided as the government’s poll figures slide. A classic example, just last week.”

That is certainly a strongly-worded opinion. It is not, it seems to us, an “allegation” to which it was necessary to seek a response...

The program went on to cite some indisputable facts (or so it seemed to us) about [the Article] ... These are not allegations, but statements of fact... None of this, in our opinion, amounted to an “allegation”. It was, as we say, merely stating the facts upon which Holmes’ prior and concluding opinions were based.

[The presenter] concluded with another strongly-worded opinion [went on to discuss the presenter’s “cherry-picking” and “propaganda” comment mentioned above]. In our view, this was not an “allegation” in the sense intended by standard 5.3, but simply a general opinion about what is or isn’t news, based on the specific facts presented.

The ABC then went on to address the complainant’s assertions regarding what he claimed to be the various allegations that had been levelled against him one by one.

Briefly, for statements that ABC considered to have been factual, it stated as follows:

For the reasons discussed earlier, [the ABC] does not have to consider that it was necessary for the Media Watch program to have sought your response before setting out the facts and expressing an opinion ... Accordingly, [the ABC] does not consider that there was a breach of standard 5.3...

For statements that the ABC considered to have been statements of opinion, it stated as follows:

[The ABC] considers that the issue of whether [the Article] breached the News Limited Professional Conduct Policy was, in the context of the Media Watch story, dealt with as a matter of opinion. Further, Media Watch, as a program of media analysis and criticism which had set out the basis for the opinion expressed, was not required to make efforts to provide [the Writer] or The Daily Telegraph an opportunity to respond to it. Accordingly, [the ABC] does not consider there was a breach of standard 5.3 in relation to this issue.

The ABC then stated as follows:

For the reasons explained above, [the ABC] is satisfied that the program did not breach standard 5.3. To the extent that factual material is relevant, there was no reason to doubt the validity of any of those facts and hence the statements of fact did not constitute “allegations” for the purposes of standard 5.3. Further, to the extent that the Media Watch program expressed opinions which were critical of [the Article], the context in which those opinions were expressed (namely in the course of a program conducting analysis and review and explaining the factual basis for the opinions expressed therein) means there was no requirement to seek [the Writer’s] response prior to publication of those opinions.


To the ACMA:

The ABC submitted the following to the ACMA with regards to compliance with clause 5.3 of the Code:

... we wish to reiterate the importance of section 1 of the Code which requires each of the standards to be “interpreted and applied with due regard for the nature of the content under consideration in particular cases”.

As stated earlier, Media Watch is a program of comment, analysis and criticism. It is fundamentally a “review” program, not entirely dissimilar to programs which critique and review other types of published material which is accessible to audiences ... These programs of criticism and review make a valued contribution to cultural life in Australia. Their format is well-understood by audiences. There is no general expectation that critical commentary aired on these programs will be captured by the 5.3 requirement to provide a person with an opportunity to respond prior to broadcast. Similarly, when Media Watch critiques published material and sets out the basis for the conclusions and opinions it presents, there is no requirement to seek a response merely because those conclusions or opinions carry some criticism of a person.

The ABC later submitted the following to the ACMA:

Nature of the content and applicability of standard 5.3

... The standards in the ABC Code of Practice are to be interpreted by reference to section 1, which reads –

1. Interpretation

In this Code, the Standards must be interpreted and applied in accordance with the Principles applying in each Section. From time to time, the ABC publishes Guidance Notes which do not in themselves impose obligations on the ABC, but which may be relevant in interpreting and applying the Code.

The Standards in Parts IV and V are to be interpreted and applied with due regard for the nature of the content under consideration in particular cases. The ABC is conscious that its dual obligations – for accountability and for high quality – can in practice interact in complex ways. It can be a sign of strength not weakness that journalism enrages or art shocks. The Standards are to be applied in ways that maintain independence and integrity, preserve trust and do not unduly constrain journalistic enquiry or artistic expression.

Particularly relevant to this case is the Guidance Note Fair Opportunity to Respond. It sets out the scope of standard 5.3 as follows:

Scope

The ‘Note on Interpretation’ at the outset of the Editorial Policies – Principles and Standards draws attention to the need to apply standards with due regard for the nature of the content under consideration in particular cases. Section 5.3 applies to news and current affairs and other types of factual content, such as documentaries.

[...]

This Guidance Note does not apply to...

content genres in which the provision of an opportunity to respond is not a recognised standard – criticism and review of artistic works is one example; comedy and satire is another


This guidance makes clear that standard 5.3 has a more limited application than ACMA’s report proposes to ascribe to it. In particular, it makes clear that the standard is relevant only to a sub-set of ABC content – “news and current affairs and other types of factual content, such as documentaries” – and provides examples of genres which might otherwise fall within “other types of factual content” to which standard 5.3 specifically does not apply – such as criticism and review, and (factually-derived) comedy and satire.

The ABC acknowledges that Media Watch does sometimes engage in a form of investigative reporting about the media ... The standard in section 5.3 on fair opportunity to respond is applicable to Media Watch’s investigative reporting, as much as it may be applicable to similar content by the news and current affairs programs of the ABC. However, this type of investigative reporting does not form the core of Media Watch’s output, and the program was not engaging in this type of investigative reporting in the broadcast on 19 September 2011.

Standards similar to section 5.3 of the ABC Code routinely appear in the codes of practice of organisations involved in journalism and are understood to be aimed at their news and current affairs coverage and not, for instance, at their book reviews.

It is important that, in considering section 5.3 in a case involving a program as unusual as Media Watch, neither the ABC nor the ACMA creates a result that distorts regular application of the section 5.3 standard to the news and current affairs content for which it is designed.

What is an allegation for the purposes of standard 5.3?

... In considering what section 5.3 does mean, it is again relevant to turn to the Fair Opportunity to Respond Guidance Note. This note states that what amounts to allegations which may require provision of a fair opportunity to respond include “action or inaction that may be unlawful, improper, incompetent, negligent, corrupt, dishonourable or antisocial”. The scope of standard 5.3 is thus further clarified. It is directed at matters of considerable gravity.

[...]

In the ABC’s submission, the specific content which the ACMA cites ... as having triggered the requirement to provide a fair opportunity to respond does not amount to such an allegation. The content was not an allegation specific to the Writer, and in any case, it was not serious enough to trigger the section 5.3 requirement.

[...]

Media Watch’s Approach

... the unique character of Media Watch is relevant. The premium the program places on accuracy routinely motivates it to go beyond the ‘reasonable efforts’ obligation required for compliance with the ABC Code of Practice. As set out earlier, the program has put in place fact-checking practices which are without parallel in the Australian media. It is primarily in the interests of accuracy that the program seeks responses from those criticised prior to broadcast: in order to get the facts right. It is not because the program is routinely making allegations of the type which invoke standard 5.3.

In this case, accuracy was not at issue. The subject of the program’s criticism was the newspaper. The newspaper published a story which presented only one perspective on a controversial matter of public policy. This was a legitimate subject for Media Watch’s scrutiny. It did not amount to an allegation.

The ABC also submitted the following:

Media Watch is a program of criticism and review, quite distinct from other factual programs presented by the ABC. We note that the ACMA seeks to distinguish Media Watch from the criticism and review genre on the basis that “it is primarily a program of factual investigation” which “investigates questions of fact, collates them and reports on them”. However, the program does much more than that; it voices opinions – often in a sardonic or satirical style –


about the merits and quality of published material. This falls very comfortably within the realm of criticism and review, and inevitably involves subjective elements.

Media Watch further submitted the following:

[Media Watch] is not a news or current affairs program; it consists, to a far greater extent than most ABC programs, of a mixture of factual investigation and the opinions or judgments of the presenter.

In general, Media Watch does approach editors or journalists where there seems to be any doubt about what was published, why it was published, or whether there might be good reasons for what seemed to the program to be problematic. In other words, we seek the media outlet’s input as part of our research. This is subtly different from the right of response covered in 5.3.

[...]

... 5.3 should not apply to Media Watch in all circumstances when mentions are made that reflect on the competence of journalists or media outlets, because it is a program of criticism and even at times of satire. When we are engaged in a form of investigative journalism, we do so as a matter of course, and essentially as part of our research. Where we are dealing with ‘allegations’ about media behaviour, we do offer an opportunity to respond. When the facts seem to us to be clear cut, and we are acting as a program of criticism and indeed on occasion of satire, we do not feel obliged to do so.

... the ACMA’s finding would have the effect of compelling Media Watch to offer a ‘right of reply’, whenever any unflattering imputation against an individual or a media outlet could be attributed to the presenter’s judgments, and regardless of the facts of the matter. This would materially change the program’s tone and style, which is much appreciated by a substantial audience.

[...]

The ABC has argued... that the facts were indisputable: quite clearly, only one interested party, Clubs Australia, was given a chance to comment on the survey results, and only one interpretation of the figures in the survey – that they demonstrated the failure of mandatory pre-commitment – was to be found in the Article. Even if there were explanations for this... it would not materially alter the one-sidedness of [the Article] as published. Newspapers, and broadcasters, should be held to account for what they actually publish, and for ensuring that it accords with their own codes of conduct.

The ACMA hangs much of its reasoning for finding a breach of 5.3 on its previous finding – that we were merely ‘alleging’ that the Article breached the Policy, because the facts were not indisputable, and indeed that Media Watch’s account was factually inaccurate.


Appendix D

The Article, as Printed in The Daily Telegraph , p.2, 14 September 2011


Appendix E


Considerations which the ACMA has Regard to in Assessing the ABC’s Compliance with Clauses 2.1 and 2.2 of the ABC Code of Practice 2011 Assessment of Factual accuracy

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.8

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.

In that regard, the relevant statement must be evaluated in its context , i.e. contextual indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener/viewer.

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

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

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


for the reporter is to present factual material accurately will ordinarily require that the competing assertions of fact be presented accurately as competing assertions.

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


Appendix F

Considerations which the ACMA has Regard to in Assessing the ABC’s Compliance with Clause 4.1 of the ABC Code of Practice 2011In determining whether or not material complained of was compliant with the ABC’s obligations under clause 4.1, the ACMA generally has regard to the following considerations:

The meaning conveyed by the relevant material is assessed according to what an ‘ordinary, reasonable listener’ would have understood the program concerned 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.9

Achieving impartiality requires a broadcaster to present content in a way which avoids conveying a prejudgment, or giving effect to the affections or enmities of the presenter or reporter in respect of what is broadcast. In this regard:

o The ACMA applies the ordinary English meaning of the word ‘impartial’ in interpreting the code. The Macquarie Dictionary (Fourth Edition) defines ‘impartial’ as: ‘not partial; unbiased; just’. It defines ‘partial’ to include: ‘biased or prejudiced in favour of a person, group, side, etc., as in a controversy’.10 ‘Bias’ is defined as: ‘a particular tendency or inclination, especially one which prevents unprejudiced consideration of a question’.11

o The ACMA considers that a helpful explanation of the ordinary English usage of the term ‘bias’ is set out by Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng12 as follows:

‘Bias’ is used to indicate some preponderating disposition or tendency, a ‘propensity; predisposition towards; predilection; prejudice’.13 It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is ‘any thing which turns a man to a particular course, or gives the direction to his measures’.

A program that presents a perspective that is opposed by a particular person or group is not inherently partial. Whether a breach of clause 4.1 has occurred will depend on the themes of the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast.

9 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp.164-167.10 Meaning 5.11 Meaning 2.12 (2001) 205 CLR 507 at 563 [183] Gleeson CJ and Gummow J at 538 [100] agreeing.13 Oxford English Dictionary (Second Edition), meaning 3(a).


Presenters and reporters can play a key role in setting the tone of a program through their style and choice of language. The manner in which a report is presented or reported can influence the conclusions that an ordinary reasonable viewer/listener would draw from a broadcast.

The nature of current affairs reporting requires reporters and presenters to be questioning, and at times sceptical, in their analysis of important issues. However, while probing and challenging questions may be used to explore an issue, programs must demonstrate a willingness to include alternative perspectives without prejudgment.

A perspective may be quite reasonably favoured if all the evidence supports it; it is only where the favouring is undue in some way that the code is breached.

A perspective may be ‘unduly’ favoured in a variety of ways, including editing, juxtaposition of material, editorial comment or reporter’s comments.


Appendix G

ABC Guidance Note – Fair Opportunity to Respond

Issued: 12 December 2011

Status of Guidance NoteThis Guidance Note, authorised by the Managing Director, is provided to assist interpretation of the Editorial Policies to which the Guidance Note relates. The Editorial Policies contain the standards enforceable under the ABC’s internal management processes and under the ABC’s complaints handling procedures.

It is expected the advice contained in Guidance Notes will normally be followed. In a given situation there may be good reasons to depart from the advice. This is permissible so long as the standards of the Editorial Policies are met. In such situations, the matter should ordinarily be referred upwards. Any mandatory referrals specified in Guidance Notes must be complied with.

Key Editorial StandardsExcerpts of key editorial standards relevant to this Guidance Note are set out below. Other editorial standards may also be relevant, depending on the specific circumstances applying in each case.

5 Fair and honest dealing

Opportunity to respond

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

Mandatory referralsIn the rare circumstances in which it seems necessary for the ABC to report serious allegations without first seeking a response at all, it is mandatory to refer up and consult Legal.

In addition to the mandatory referral to ABC Legal in editorial standard 5.9, staff are required to refer all content matters with legal implications to ABC Legal for advice. See the Consulting ABC Legal Guidance Note for further information.

ScopeThe ‘Note on Interpretation’ at the outset of the Editorial Policies – Principles and Standards draws attention to the need to apply standards with due regard for the nature of the content under consideration in particular cases. Section 5.3 applies to news and current affairs and other types of factual content, such as documentaries.

The focus of this Guidance Note is on the provision of a fair opportunity to respond prior to disclosure of allegations. When allegations are made during live content it is necessary to consider offering an opportunity to respond in the ordinary course of ongoing coverage (see below ‘What if allegations are made in a live broadcast?’).

This Guidance Note does not apply to –

content that is found to be flawed after broadcast or publication and an opportunity to respond is provided as part of the editorial remedy; or

content genres in which the provision of an opportunity to respond is not a recognised standard – criticism and review of artistic works is one example; comedy and satire is another.


The editorial standard in section 5.3 should not be taken to change the usual conventions for fair reporting of courts, commissions of inquiry and other proceedings in which the person who is the subject of allegations has an opportunity in due course to respond in those proceedings.

Why the requirement to provide a fair opportunity to respond?In the course of fulfilling its statutory duty to provide independent news and information, the ABC reports allegations including about action or inaction that may be unlawful, improper, incompetent, negligent, corrupt, dishonourable or anti-social. To make such disclosures in the public interest is a core function of the media in a free society.

One of the recognised standards of journalism is the provision of an opportunity to respond to allegations. It is fundamental to fairness. Providing an appropriate opportunity to respond to allegations – and adequately and fairly including that response in the story – can also make the difference between having or not having a defence in some legal contexts. For example, the law may excuse defamatory material which cannot be proved to be true if, among other things, the broadcaster made a reasonable attempt to obtain and present a response from the person who claims to have been defamed.

Seeking a response can help to achieve accuracy by providing an opportunity for errors to be identified and misunderstandings to be clarified.

Obtaining a response can also contribute to the quality of a piece of journalism by enriching the detail, sharpening the point or opening fresh angles of enquiry.

How much information should be given to the respondent?The opportunity is more likely to be regarded as fair if you err on the side of clarity and precision rather than be vague and broad about what is being alleged and the basis for it.

Provide sufficient information to allow the person or organisation to understand the allegation and its basis. It is not usually enough to tell the person that you wish to talk to them about some general topic. Even if you believe the person is familiar with the allegations already, you should not assume that and should set out the relevant information.

Subject to any specific need to keep the identity of a source confidential, it is preferable if the person is told the source of the allegations as that information may enable the person to provide a more detailed and effective response. Summaries should be accurate. In most cases there is no need to provide access to the raw material on which allegations are based.

Bear in mind the need to ensure practical protection of sources – see the Attribution / anonymity of sources Guidance Note.

How much time should be allowed for a response?The person must be given a reasonable time to respond. The amount of time which it is reasonable to allow for a response before the allegation is made public depends in every case on the circumstances. No set formula can or should be fixed. What is a reasonable time will be determined by looking at the situation from that person’s perspective – not the perspective of the media. If the matter results in legal action, it is unlikely that a court would give any weight to the fact that the media wanted to publish a story at a particular time, except in rare circumstances such as where disclosure is urgent in the public interest, for instance where public safety is at immediate risk.

The urgency for disclosure will vary in different situations. While it is preferable to carry responses in the same piece of content that makes the allegation – preferable for the audience as well as the subject – it is not always possible. Urgency for disclosure in the public interest will ordinarily have greater weight than the urgency felt from competitiveness with other media outlets or the self-imposed urgency that scheduling or other internal factors can generate. Where there are legal issues, it may be critical that the response is carried in the same piece of content that makes the allegations.


The amount of time to allow will depend on factors such as –

the complexity of the issues raised;

the extent to which the person or organisation already had knowledge of the allegation and its basis;

language difficulties, remote locations, or the number of links in a chain of communications between the subject and the ABC;

the possibility the person may need to locate records to refresh his/her memory;

the significance of other matters which the person may have to deal with at the same time; and

the extent to which the subject of the allegations is media savvy or inexperienced with media.

If at all possible, communicate with the person directly. Contacting a person’s advisors or representatives may not be sufficient, even if the person has a reputation for being associated with the advisor or representative. For example, contacting a company for comment about the conduct of one of its directors may not be sufficient from a legal point of view. When dealing with an advisor or representative, always stress that it is important the person himself/herself be notified and involved. There are some situations, however, where it is likely to be acceptable to deal with an advisor or representative, such as where the advisor or representative is also the person’s lawyer or their personal media advisor. For senior politicians, for example, dealing through their authorised spokesperson will be sufficient in most situations.

By what methods?Provide the opportunity to respond – and be willing to receive a response – by whatever methods are available and appropriate in the circumstances. It may be through personal meetings, email, phone, fax or other means of contact. Intermediaries may assist. Social media (such as Facebook, Twitter or LinkedIn) may facilitate contact. Responses can be oral or written. The opportunity to respond can occur on-air (e.g. during a recorded interview) or off-air (e.g. where the subject is telephoned and notes of their response made).

If a person will not be participating in a recorded interview, it is useful to make written enquiries by letter, fax or email, setting out the allegations as described above. This provides evidence which can be used in court. If a person refuses to take calls, making written enquiries provides good evidence of having made a reasonable attempt to obtain a response from the person.

In some cases, where conventional methods have not worked and the issue is serious or the urgency great, it may be necessary to doorstep a person. If a response is sought from a person but further investigations call into question aspects of that response, it will often be necessary for the person to be given a further opportunity to respond to the apparent flaws in, or problems with, the person’s initial response.

Conveying the response to the audienceOnce obtained, a response should be treated fairly and accurately. It may generate new angles of enquiry. The manner in which the response is conveyed to the audience is a matter of editorial discretion. A response need not necessarily appear in full or verbatim.

If the person provides a response, it is usually necessary for that response to be in the initial story and any other story reporting the same matters. This is particularly the case where the allegation is later the subject of a defamation or other legal action. It is usually irrelevant to the question of legal liability that the response was put in a subsequent story.

A response should be reported in such a way that a reasonable audience member would understand how the response that was received by the ABC addressed the allegations that were put to the subject of the allegations.


A response needs to be included in the story in appropriate detail and presented reasonably. Simply stating that the person ‘denies the allegations’ may not be sufficient if the person provided a more detailed response. For example –

o The more detailed and complex the allegations, the more likely that it will be necessary to include the person’s response in some detail so that the connection between the person’s response and the key issues involved is made clear to the audience.

o If a story contains an ‘attack’ on a person and the person’s response is reduced to one or two seemingly ‘obligatory’ or ‘throw away’ statements, or the response is presented sarcastically, it may appear that the audience is being led to give little or no weight to the person’s response. That may result in a court or complaints-handling body concluding that the person’s response has not been adequately and fairly presented.

It is not advisable to present a person’s response and follow it with further material that throws doubt on the veracity of the person’s response.

What if no response can be obtained?Some subjects of allegations avoid, ignore or decline opportunities to respond. They cannot, by withholding a response, control whether the ABC discloses information which may be adverse to them. Inability to obtain a response will not prevent the ABC from disclosing allegations where it is appropriate to do so.

Keep notes of unsuccessful efforts to provide opportunities to respond. When the allegations are broadcast or published, it is usually appropriate to let audiences know that efforts were made to get a response. It can boost credibility and engender trust. Give as much detail about the efforts as is editorially appropriate.

In some circumstances, there may be sufficient public interest in publishing quickly such that the person to whom allegations relate need not be afforded an opportunity to respond. This could happen, for example, where the public needs to be informed about a person for whom the police are searching and who is considered dangerous. However, such situations are rare and the story would need to be carefully worded.

More generally, legal advice should be obtained for all stories which may contain defamatory material or have other legal risks so that the risks can be assessed and discussed prior to publication.

In the rare circumstances in which it seems necessary for the ABC to report serious allegations without first seeking a response at all, it is mandatory to refer up and consult Legal.

Assessing ‘reasonable efforts’Whether the efforts made are reasonable to provide a ‘fair opportunity to respond’ must be judged according to the particular circumstances of every case. Factors to consider include the following –

o The extent to which the person or organisation is the focus of the allegations –

Not every person or organisation mentioned in a story is affected to the same degree. The impact of allegations on some may be heavier than on others. This affects assessments about who ought to be provided with an opportunity to respond and, if so, what efforts are required to make the opportunity a fair one in the circumstances.

o The seriousness of the matter –

Efforts to provide an opportunity to respond should generally be commensurate with the seriousness of the allegation. A matter can be innately serious – for example, an allegation of high-level corruption. A matter can be serious because of its effects or implications, even though the core behaviour is not innately grave. For instance, a health official or police officer


may act or not act through simple negligence, inadvertence, or a judgement call. But the effects of their decision may be such that the matter becomes serious.

Depending on the circumstances, variables which may be relevant in assessing ‘reasonable efforts’ in general or ‘seriousness’ in particular, include –

o The characteristics of the subject in light of the nature of the allegations –

To illustrate: is it a party of touring rock musicians or a conference of school principals which is accused of anti-social behaviour in a hotel?

o The age of the allegations or of their factual basis –

To illustrate: is the claim that the nominee for judicial office drove recklessly in his or her youth, or that he or she has been flouting the rules of the road more recently? Will certain allegations be just as serious for, say, a priest, no matter how old the allegations or their factual basis may be?

o The situation of the subject at the time the allegations are to be disclosed –

To illustrate: a claim that an MP never completes expenses-related paperwork has different implications depending on whether it is made in a story about the MP’s impending retirement or in a story two days prior to voting in a tight election in which the MP is standing in a marginal seat.

o The complexity of the matter –

The importance of a response tends to increase in proportion to the complexity of the allegations and their basis, simply because there is greater risk of misunderstanding or incorrect information. Complexity can include complicated facts, detailed or interweaving chronologies, multiple disputed recollections, incomplete or jargon-laden documentation, statistical data or interpretations by experts in specialised fields such as finance, science or law.

o The directness of the approach –

Directness is relevant in two senses. First, consider the need for efforts to make direct contact, as distinct from indirect contact, with the affected person, having regard to the extent of focus on them and the likely impact on them of disclosure of the allegations. Second, how direct, in the sense of up-front and clear, is the information provided to the affected person about what they are being asked to respond to?


What if allegations are made in a live broadcast?The core of the editorial standard is fairness. Where it can be reasonably expected that allegations are going to be made in a live broadcast, plan for it to the extent practicable in the circumstances. The advice given above can help.

Where allegations are made unexpectedly during the course of a live broadcast, reasonable efforts should be made to treat fairly the person who is the subject of the allegation, recognising the context is a live broadcast. For example, a presenter may remind the audience that what has been said is simply an allegation. A presenter may challenge the maker of the allegation for evidence. Depending on the circumstances, an initial response may be received by phone, text or tweet in time for the substance of that response to be fairly conveyed to the audience who heard the allegation made live. Where no response is obtained live, consider giving the audience notice that the subject of the allegation will be given an appropriate opportunity to respond in future, if not on air then online.


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