Investigation Report 2468File Nos. ACMA2010/1628

Broadcaster General Television Corporation Pty Ltd

Station GTV

Type of service Commercial television broadcasting service

Names and dates of programs

Channel Nine News 28 March 2010

Relevant Code Clauses 4.3.1 and 4.3.11 of the Commercial Television Industry Code of Practice 2010

Decision Breach of clause 4.3.1 [factual accuracy]No breach of clause 4.3.11 [correction or significant errors of fact]

ACMA Investigation Report 2468 – Channel Nine News – GTV – 28/3/10

The complaintThe complaint relates to a news item broadcast by General Television Corporation Pty Ltd, the licensee of GTV, on 28 March 2010. The complainant (Save Albert Park Inc (SAP)) alleged that a statement made in the report regarding the Grand Prix attendance figures was inaccurate.

The investigation has considered the licensee’s compliance with clauses 4.3.1 [accuracy of factual content] and 4.3.11 [correction of significant errors of fact] of the Code.

The programChannel Nine News is broadcast at 6.00 pm daily. The relevant news item reported on the last day of the Formula One Grand Prix in Melbourne on 28 March 2010 and focused on the following:

rain at the commencement of the race resulting in some cars crashing;

police uncovering a fake ticketing scam;

Australian racing driver Mark Webber; and

English racing car driver Lewis Hamilton being booked for speeding off the course.

The news item included the following footage:

Grand Prix cars racing in the rain and some crashing;

interviews with Australian racing car driver Mark Webber and his fans;

interview with actor John Travolta at the venue regarding Mark Webber;

racing car driver Michael Schumacher driving into the venue;

racing car driver Lewis Hamilton in a car on the track;

interviews with people at the track commenting on Lewis Hamilton;

the Victorian Premier commenting on Lewis Hamilton; and

military planes flying over the racing course.

At the conclusion of the report, the reporter stated:

And as I said, after leading from the start for 20 odd laps, Italy is now out. Jenson Button has been leading for the last two laps. Mark Webber is still in it, he’s now in sixth position. And when it comes to the crowd figures today, 108,500, which is an improvement on last years’ figure of 105,000. We’ll have more details in sport.

The complainant submitted that the final statement made by the reporter was inaccurate.

AssessmentThis investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.

ACMA Investigation Report 2468 – Channel Nine News – GTV – 28/3/10 2

Issue 1: Presentation of factual material

Relevant Code clauseNews and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensees:

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

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

The considerations which the ACMA generally applies in determining whether or not a statement complained of was compliant with the licensee’s obligation to present factual material accurately include the following:

The meaning conveyed by the relevant statement or footage is assessed according to what an ‘ordinary, reasonable viewer’ would have understood the program concerned to have conveyed. 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, not 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.1

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

The primary consideration would be whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material presents as a statement of fact or 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 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 viewer, and the form of words introducing the relevant statement is not conclusive.

Inferences of a factual nature made from observed facts would usually still be characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be 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 presented is not presented accurately, that would amount to a breach of the clause.

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

ACMA Investigation Report 2468 – Channel Nine News – GTV – 28/3/10 3

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.

FindingThe licensee breached clause 4.3.1 of the Code.

Complainant’s submissionsThe complainant submitted to the ACMA that2:

… I wish to advise that Save Albert Park Inc. considers the statement, “And when it comes to the crowd figures today, 108,500, which is an improvement on last year’s figure of 105,000” to be incorrect in both instances. There has been enough media scrutiny of the Australian Grand Prix Corporation (AGPC) to show there is serious doubt as to the veracity of their attendance figures and we have included examples in this letter. This event is mainly paid for with public money and a compliant media is used to continue that funding. The media and indeed, Save Albert Park have a duty to report the truth.

To reiterate Save Albert Park’s case… we submit that the 2010 broadcast by Channel 9 should have said the figures are estimates and given the prior alerts from Save Albert Park and the many doubts expressed in other media stories, Channel 9 should have taken reasonable steps to verify the accuracy of what they were broadcasting. If they had done some scrutiny, they could have also said the figures are in dispute.

To give examples of the lack of accuracy of the attendance figures reported in the media, leading sporting journalists in the major daily newspapers, motor racing websites and Crikey.com.au as well as the Victorian Ombudsman, The Victorian Auditor-General, the AGPC’s testimony in VCAT and a State Government commissioned economic impact report have all pointed out this problem. The AGPC has no means of accurately counting the number of spectators at its event. Crikey.com.au, for example, published this year a detailed spreadsheet showing a serious discrepancy between the AGPC’s shrinking sales revenue and a significant, continuing decline in the number of grandstand and corporate box seats when compared with attendance figures, all showing that the AGPC overestimates its attendance figures.

“Of course, the crowd will be exactly the same as it was last year, as it always is, as commercially it must be, whether it is or not. It will be just over 300,000. Tomorrow's count was completed last night. We can't tell you how we know this. It's commercial-in- … no, no, we can't even tell you that.” - extract from Walkley award winning article by Greg Baum, “Plucking figures from thin, choking air” The Age, 15 March 2008

We have clearly stated to Channel 9 (and other media outlets) in 2007, 2008, 2009 and again in 2010 in a number of Save Albert Park media releases and in letters that the Australian Grand Prix Corporation’s figures are estimated and we don’t believe the AGPC is telling the public the truth. We also mentioned that even the AGPC admitted at a 2007 VCAT hearing, “There was no way we could determine exactly how many people were actually in the venue.”

The Victorian Auditor-General’s office published a report in May 2007 that indicated the various ways the count can be overstated and I quote from page 108: “These numbers (estimate of total attendance) are estimates based on ticket sales, observations of the numbers of corporate and grandstand seats occupied, and the observations of general admission areas. The numbers are not precise because there are no turnstiles. Also,

2 In a letter dated 4 November 2010

ACMA Investigation Report 2468 – Channel Nine News – GTV – 28/3/10 4

corporate and grandstand seats are sold only as 4 day tickets, but they may not be used every day.” The report is available here: http://www.audit.vic.gov.au/reports__publications/reports_by_year/2007/20070523_major_events.aspx

Channel 9 News are aware that these figures have been in dispute but it appears they have never bothered to check the accuracy of what it reports nor did they investigate our claims of “seven years of auditable data”, which is available for anyone to check.

Our letter to [NM], Executive Producer News GTV 9, 15 April 2010 mentioned this as follows:

“As there is a continued dispute about the accuracy of these numbers then an attempt should be made by the media to check the accuracy of what they report. SAP has seven years of auditable data on the GP’s attendances and believes the AGPC’s figures in recent years are inflated by over 80%!! SAP has always been willing to show the media our crowd count methodology but the AGPC’s method is a secret, even under FOI.”

Mr [NM], Executive Producer News GTV 9, admitted (in a letter 20 May 2010) that his reporters were advised to be “sceptical of attendance estimates”. However, the news coverage of 28th March 2010 once again accepted the AGPC figures as fact without checking, once again, the accuracy of what it reported, hence our complaint to you.

The attachments, as listed below, show you the AGPC’s admission the figures are estimated. The AGPC’s media releases were edited to the extent that the media organisations they were addressed to have been omitted, to protect SAP's sources. I also include two sheets of photographs of the crowd in 2009 and 2010. Scenes like this should have had the alarm bells ringing in the Channel 9 newsroom regarding the veracity of the crowd numbers. Also relevant are the attached 2008 letter from SAP to Mr [MV], Channel 9 news director and SAP’s 2008 and 2009 Media Releases.

The complainant provided copies of the following documents:

media releases which the complainant emailed to the licensee on 16 March 2008 and 19 March 2009 disputing the reported attendance figures and requesting that the licensee state that the attendance figures are ‘estimates’;

media releases emailed by the Australian Grand Prix on 26, 28 and 29 March 2009 and 25, 26, 27 and 28 March 2010, to undisclosed recipients, referring to ‘estimated’ attendance figures on the first four days of the event; and

photographs of crowds at the Grand Prix taken by the complainant in 2009 and 2010.

Licensee’s submissionsThe licensee submitted to the ACMA that3:

In preparing the Report, Nine relied on the official attendance figures provided by the Australian Grand Prix Corporation as to the number of people who attended the event. The information was provided by way of a public release (see Attachment 1) and is still available on the website as of [14 October 2010] (see Attachment 2). Given that entry to the event is by way of ticket only, and that tickets are scanned at the point of entry, Nine believes that it was entitled to rely on the accuracy of the information provided by the event organiser on how many people were admitted to the event and that the statement was therefore correct for the purposes of the Code.

Further, ACMA states in Investigation Report 2257, that the relevant statement must be evaluated in its context (namely contextual indications from the rest of the broadcast) and

3 In a letter dated 14 October 2010

ACMA Investigation Report 2468 – Channel Nine News – GTV – 28/3/10 5

assessed according to what an ‘ordinary, reasonable viewer’ would have understood the program concerned to have conveyed. Nine notes that the provision of crowd figures for events such as the Grand Prix, Royal Easter Show and the AFL Grand Final are regularly provided when reporting on such events. Nine maintains that the ordinary, reasonable viewer would understand that the figure provided is not necessarily accurate to the person and is instead the figure provided by the organiser which is based on a range of factors such as the tickets issued and admission through the gates. In this regard, Nine maintains that the statement complied with clause 4.3.1 of the Code.

The licensee provided a copy of a page of the Australian Grand Prix’s website which stated:

News

Fast facts from Sunday at Albert Park

By the numbers

Sunday’s action was watched by a trackside crowd of 108,500, taking the four-day aggregate to 305,000 – the best overall attendance in five years.4

AssessmentThe relevant statement made by the reporter was as follows:

And when it comes to the crowd figures today, 108,500, which is an improvement on last years’ figure of 105,000.

Does the statement constitute factual material?

The statement was presented in an unequivocal and unquestioning manner and the delegate considers that an ordinary, reasonable viewer would have understood it to have been a factual statement.

What would the statement have conveyed to an ordinary reasonable viewer?

The ordinary reasonable viewer would have understood the statement to mean that 108,500 people attended the Grand Prix on the day of the broadcast compared to 105,000 in the previous year.

Was the information conveyed accurate?

The delegate notes that the Australian Grand Prix published conflicting information regarding the attendance figures at the event on 28 March 2010. The Grand Prix’s website stated that the event was ‘watched’ by 108,500 ‘taking the four-day aggregate to 305,000’ and its emailed Media Release referred to the ‘estimated’ attendance figure that day as 108,500 and the total ‘estimated’ attendance for 2010 as 305,000.

While it is not clear that the licensee received the Media Release on 28 March 2010, the delegate considers that the licensee would have been aware of the debate surrounding the attendance figures at the Grand Prix as seen by the following letters to the complainant responding to complaints lodged in the past three years5:

As you point out, and as we’ve reported, there is indeed controversy over the Grand Prix attendance counts.

4 http://www.grandprix.com.au/default.aspx?s=newsdisplay&id=4398 5 A summary of the correspondence between the complainant and the licensee in relation the Grand Prix

attendance figures in 2008, 2009 and 2010 is at Attachment A.

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…In this case we should have, as you suggested, stated that the figure of 108 thousand was an estimate from the Grand Prix Corporation.6

…

…Following concerns raised with me by Save Albert Park last year, we made a concerted effort to attribute crowd estimates to the Grand Prix Corporation. An email to that effect was sent to all staff before this year’s event.7

…

Again this year, reporters were advised to be sceptical of attendance estimates.8

While the licensee submitted that it relied on the information on the Grand Prix’s website, which did not refer to the figures as estimates, it appears to have accepted that the attendance figures should be reported as ‘estimates’ as seen in the correspondence cited above.

The delegate finds that, having regard to the circumstances at the time of preparing and broadcasting the program, the licensee failed to present factual material accurately by reporting the attendance figures as fact in the news item broadcast on 28 March 2010.

The delegate does not agree with the licensee’s submission that in the context of the news item as a whole, the ordinary, reasonable viewer would understand that the figures were not necessarily accurate and were ‘based on a range of factors such as the tickets issued and admission through the gates’. It is noted that the relevant statement was broadcast at the conclusion of the news item and there was no suggestion in the report itself to indicate that the figures were estimates.

Issue 2: Corrections of significant errors of fact

Relevant Code clauseNews and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensees:4.11 must make reasonable efforts to correct significant errors of fact at the earliest opportunity. A failure to comply with the requirements of clause 4.3.1 to broadcast factual material accurately will not be taken to be a breach of the Code if a correction, which is adequate and appropriate in all the circumstances, is made within 30 days of the licensee receiving a complaint or a complaint being referred to the ACMA (whichever is later).

Finding The licensee did not breach clause 4.3.11 of the Code.

ReasonsThe delegate has found, for the purposes of clause 4.3.11 of the Code, that the relevant statement was inaccurate. The delegate does not consider, however, that the inaccuracy of the statement is significant in terms of clause 4.3.11 of the Code. The error did not disrupt, overall, the focus of the news item which primarily reported on the rain at the last day of the

6 In a letter dated 16 April 2008 relating to a Channel Nine News report on the Grand Prix on 16 March 2008.7 In a letter dated 28 April 2009 relating to a Channel Nine News report on the Grand Prix on 26 March 2009.8 In a letter dated 20 May 2010 relating to a Channel Nine News report on the Grand Prix on 28 March 2010.

ACMA Investigation Report 2468 – Channel Nine News – GTV – 28/3/10 7

Grand Prix and two of the drivers who participated in the race. The reporting of the attendance figures was presented as a final comment by the reporter and was not the focus of the report.

ACMA Investigation Report 2468 – Channel Nine News – GTV – 28/3/10 8

Attachment A

Summary of correspondence between the complainant and the licensee On 2 April 2008, the complainant stated:

It was disappointing to hear your reporter claim, “the heat didn’t deter 108,000 fans from turning up at Albert Park”.

…

On behalf of the community group Save Albert Park, I had emailed all electronic media outlets prior to Sunday’s Grand Prix, including Channel 9, with this media release…

Save Albert Park has auditable data, after seven years of extensive GP crowd counts that suggests that AGPC inflates its figures by over 100,000 attendees.

We look forward to your use of that term – estimated attendances by the AGPC – in all reports.

On 16 April 2008, the licensee stated:

As you point out, and as we’ve reported, there is indeed controversy over the Grand Prix attendance counts.

Generally when it comes to crowd numbers, we base them on police estimates. In this case we should have, as you suggested, stated that the figure of 108 thousand was an estimate from the Grand Prix Corporation.

On 9 April 2009, the complainant stated:

A Save Albert Park Media release was sent via email to the GTV9 news desk Thursday 19 March 2009 about the reporting of F1 Grand Prix crowd attendances. I also enclose this for your perusal.

The report on channel nine 6pm news of Thursday 26 March 2009 said, “the Grand Prix Corporation says an estimated crowd of just over 43,000 turned out for day one compared to last year’s 46,000 and record Thursday crowd of more than 77,000 in 2005”, yet the pictures showed the grandstand (capacity: 19,590) with less than 5% of seats occupied and almost no spectators in general admission surrounding the circuit, while the cars were on the track. The 43,000 figure was not challenged and the proceeding figures were reported as fact.

Shouldn’t too this 43,000 figure have been challenged when it is known the AGPC’s figures are mere estimates and that SAP has challenged their numbers year after year and alerted you to this? For 10 years various media outlets have questioned the “rubbery” figures put out by the Australian Grand Prix Corporation.

In Nine’s 6pm news, Saturday 28 March 2009 [the reporter] spoke of dwindling crowds and then goes on to report , “so far the attendances after three years have totalled just under 182,000 people”.

A second SAP Media Release on the Code of Practice for the reporting of F1 Grand Prix crowd attendance figures was sent via email to the GTV news desk on the Saturday night of 28 March 2009…

Do you have a policy on the reporting of F1 Grand Prix attendance figures? If so, can you please explain this policy?

…

ACMA Investigation Report 2468 – Channel Nine News – GTV – 28/3/10 9

On 28 April 2009, the licensee stated:

You ask about our policy on reporting crowd numbers. Following concerns raised with me by Save Albert Park last year, we made a concerted effort to attribute crowd estimates to the Grand Prix Corporation. An email to that effect was sent to all staff before this year’s event.

As far as I am aware, we were the only commercial news service to forcibly point out that attendances were down on previous years and that was using the Corporation’s own figures.

As we’ve done in the past, we’ll also cover the Auditor-General’s report on the success or otherwise of this year’s twilight event, both in terms of attendances and losses.

On 15 April 2010, the complainant stated:

Perennially Save Albert Park (SAP) has sent media release to Channel 9 prior to the Formula One Grand Prix on the reporting of the Australian Grand Prix Corporation’s (AGPC) attendance figures. Perennially SAP has written complaints to the channel about incorrect reporting on these figures.

In 2010 more than one media release was sent on this topic but again (and correct me if I’m mistaken as I only got a glimpse of the 6pm Channel 9 News, Sunday 28 March 2010) a figure of 308,500 was given as the four day attendance total. This figure was given as fact when it is not. The AGPC’s media releases also state their figures are estimates.

At a 2007 VCAT hearing, [MM] from the AGPC stated the AGPC had no way of knowing accurate attendance figures.

…

As there is a continued dispute about the accuracy of these numbers then an attempt should be made by the media to check the accuracy of what they report. SAP has seven years of auditable data on the GP’s attendances and believes the AGPC’s figures in recent years are inflated by over 80%!! SAP has always been willing to show the media our crowd count methodology but the AGPC’s method is a secret, even under FOI.

On 20 May 2010, the licensee stated that:

Nine News is confident that our coverage of the grand prix was fair and impartial. Again this year, reporters were advised to be sceptical of attendance estimates.

As in previous years, we’ll cover the Auditor-General’s report on the success or otherwise of this year’s event once details are available.

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