investigations... · web viewsheikh (referred to here as sh) who sent letters to the families of...

Investigation Report No. 2273

File No. 2009/2067

Broadcaster Channel Seven Sydney Pty Ltd

Station ATN

Type of service Commercial television broadcasting service

Name of program Today Tonight

Date of broadcast 25 May 2009

Relevant Code provisions

Clauses 4.3.1, 4.3.2, 4.3.5, 1.8.6 and 4.3.11 of the Commercial Television Industry Code of Practice 2004

Date finalised 22 January 2010

Decision Breach of clause 4.3.1 [factual accuracy]

No breach of clause 4.3.2 [public panic]

No breach of clause 4.3.5 [privacy]

No breach of clause 1.8.6 [proscribed material]

No breach of clause 4.3.11 [correction of errors of fact]

ACMA Investigation Report – Today Tonight broadcast by ATN on 25 May 2009

The complaintOn 19 August 2009, the Australian Communications and Media Authority (ACMA) received a complaint regarding a segment broadcast during Today Tonight on 25 May 2009 by Channel Seven Sydney Pty Ltd, the licensee of ATN. The complainant alleged that the segment:

contained factual inaccuracies; misrepresented viewpoints; invaded the privacy of one of the subjects of the segment; created public panic about Muslims; and insulted and gave a negative image of Muslims.

The complainant was not satisfied with the licensee’s response to his initial complaint and referred the matter to the ACMA for consideration.

The complaint has been investigated in accordance with clauses 4.3.1, 4.3.2, 4.3.5, 1.8.6 and 4.3.11 of the Commercial Television Industry Code of Practice 2004 (the Code).1

Matters not pursuedThe complainant also requested that the ACMA investigate allegations that the segment contained defamatory statements and caused danger to the life of some Australian citizens. The ACMA has no jurisdiction to investigate these issues and has not pursued them in this investigation.

The complainant also alleged that the program did not present news fairly and impartially. Given that Today Tonight is a current affairs program, it is not subject to the requirements to present news fairly and impartially in accordance with clause 4.4.1 of the Code. Accordingly, the ACMA has not pursued this aspect of the complaint.2

The programToday Tonight is a half-hour current affairs program broadcast by the licensee at 6.30pm weeknights.

On 25 May 2009, Today Tonight broadcast a segment titled “Sheikh Attack” reporting on an alleged fake Muslim Sheikh (referred to here as SH) who sent letters to the families of soldiers who had been killed in the war in Afghanistan.

The program presenter introduced the segment as follows:PRESENTER: Now to the attacks on the families of our fallen. A man who claims he is a senior Islamic cleric has been targeting the families of the Australian soldiers who have been killed in Afghanistan. Islamic

1 Sections 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s jurisdiction in relation to complaints made under codes of practice.

2 The ACMA advised the complainant of the matters that it is unable to investigate in a letter dated 28 August 2009.

ACMA Investigation Report – Today Tonight broadcast by ATN on 25 May 2009 2

community leaders say he is a fake and they have challenged him to come forward.

The segment commenced with video footage of one of SH’s followers (SA). The reporter then interviewed the father-in-law (MM) of a soldier who was killed in Afghanistan who had received a letter from SH, a representative of the Australian Muslim community (KT) and a retired Brigadier General (AD). Video footage was also shown of SH handing out leaflets on the street, SH’s website, a second SH follower (Z) and a funeral of a soldier killed in Afghanistan. At the end of the segment, the reporter filmed the alleged post office box and home address of SA and interviewed a couple who lived in SA’s apartment block.

A transcript of the segment is at Attachment A.

AssessmentThis investigation is based on submissions from the complainant3, the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources consulted have been identified where relevant.

Issue 1: Whether the licensee presented factual material accurately Relevant code clause

News and Current Affairs Programs4.3 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;

ConsiderationsThe 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.4

3 The submission included correspondence between the complainant and the licensee.4 Amalgamated Television Services Pty Limited (1998) 43 NSWLR 158 at pp.164-167.


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.

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.

In determining which statements constitute 'factual material', the ACMA considers each in the context of the segment as a whole.


Complainant’s submissionsThe complainant submitted that the following statements were inaccurate:

Item

Statement Submission

1 Reporter: Tracking down the fake Sheikh isn’t easy. His website is registered to a woman called [SA].

‘This is an inaccurate report. If you go to ‘who is search’ for domain names and check the domain name of [SH’s] website […] you can easily find out that [SH’s] website is registered to [SH’s] name. The Seven Network by broadcasting inaccurate reports was trying to support its claim that the sheikh was a fake and his website was registered to a different person’s name.’

2 Reporter: This is one of the few videos of the so-called Sheikh handing out protest leaflets. Otherwise, he never shows his face to the public.

‘This statement is not true. In the past 10 years, [SH has] had many public activities including speeches in the mosque and other public places for the Muslim community, teaching Islamic sciences in public classes, few protests (in Perth, Sydney and Canberra) etc. All documents and videos are available and some of the videos have been already posted on the website and YouTube. In one of the broadcasted videos, [SH] was teaching in a public class and in another broadcasted video [SH] was giving a speech to an audience of a few hundred Australian Muslims including Muslim clerics in a hall situated in Granville, Sydney. Obviously ‘Today Tonight’ had to censor the audience to be able to support its claim that [SH] has never shown his face to the public except once. It seems that ‘Today Tonight’ was in a hurry to create a ‘show’ and it didn’t realise that the two broadcasted videos were actually evidence against its own claim.

Beside this, [SH] had a few protests in Martin Place in front of Channel 7 in the past two years […] and those protests were witnessed by both Channel 7 and the police [ …]’

3 Reporter: [MM] is the father-in-law of one of those Australian soldiers [MH], killed in action in Afghanistan earlier this year. Like

‘‘Today Tonight’ introduces the father-in-law of the dead Australia solider [MH] and states that he has received an insulting letter from [SH], then the father-in-law of [MH] reads some


other Australian families, he’s been sent one of [SH’s] insulting letters.

[MM then read from the letter.]

quotes of the letter he claims he has received.

Firstly the truth is that those quotes belong to a different letter which has been sent to the family of [MF], NOT [MH]. The short letter which has been written to the father of [MH] (Not the father-in-law) and a copy to his mother and his wife did not contain any of those quotes at all. Secondly […], those quotes have been cut and they have been taken out of context. ‘

4 [MM]: As each of our Australian soldiers have passed away whilst serving overseas, an organisation has sent letters to the widows, to the parents, to the in-laws, basically calling the passed soldiers criminals, murderers, referring them and comparing them with Hitler.

‘The father-in-law of [MH] falsely claims that an organisation has sent letters to the families of the dead Australian soldiers. This is also untrue. The truth is that no organisation has sent any letters to the families of the dead Australian soldiers. [SH has] sent the letters as an individual with […] personal letterhead and [SH] personally signed the letters.’

5 Reporter: Ten Australian soldiers have been killed in Afghanistan. The families of six have been contacted by [SH] and his followers…

‘This is not true. Only [SA] has called some of the families to offer her condolences and only on one occasion, she has just delivered [SH’s] letter.

‘Today Tonight’ by using plural word ‘followers’, in fact has claimed that all followers have contacted the families of dead Australian soldiers to harass them. As a result of the letter ‘s’ in the word ‘followers’, some of the threats we have received have been against other people who have not been involved.’

6 Reporter: [SA’s] home address is a flat in this block but every time we visited no-one was at home.

’Today Tonight’ has shown a property and has interviewed its neighbour and has claimed it was [SA’s] HOME. This was not true.’

Licensee’s submissionsThe licensee submitted that:

Item


1 Reporter: Tracking down the fake Sheikh isn’t easy. His website is registered to a woman called [SA].

‘References to ‘[SH’s] website’ are made throughout the segment, but in the context of the story it is clear that [SH’s] actual existence is questionable.


Given the lack of an identity verification process for ‘.com.au’ web addresses, Seven considers the only evidence of true ownership by an existing person is [SA]. [SA] is not only associated with [SH] and his website, but she is also the registered owner of the contact telephone number to [SH’s] website.

In the context of the story, it is evident that although [SH’s] website may be registered to the name [SH], the substantive contact behind the website is [SA].’

[…]

‘Information that supports Today Tonight’s assertion that [SA] is the owner of the [SH] website is attached. This information includes:

A. The whois.com search results for the [SH] website domain name.

B. The search results found for information about the owner of the PO Box address registered for the [SH] website domain name – belonging to an unknown Spiritual Consultation business, not [SH]. The telephone number provided for the PO Box address is disconnected.

C. The contact details for the [SH] website (telephone/fax number).

D. An Auction Event Listing for the telephone/fax number listed on the [SH] website which indicates the number is registered to [name of company]. The number is connected.

E. A full company extract indicating [SA’s] status as sole director of [name of company].

F. The whois.com search results for the […] website advertised through the [SH] website which also indicate [a company] as the registered owner.

Seven believes in the context of the report that it was reasonable to suggest that [SA] is the only existing individual behind the [SH] website. Not only is the information provided to identify [SH] as a true person unconvincing, but the overarching view of respectable Muslim clerics


is that [SH] does not exist. This information was presented in the segment.

Based on the information available at the time of broadcast, Seven believes it was reasonable to assert that [SH’s] existence is questionable. Seven further considers it reasonable to deduce from the information available at the time of broadcast that [SA] is the only real link to the [SH] website. Accordingly, Seven believes the material presented in the segment was accurate.

2 Reporter: This is one of the few videos of the so-called Sheikh handing out protest leaflets. Otherwise, he never shows his face to the public.

‘[The complainant] states that the report claimed that [SH] showed his face in public ‘only once’. We have reviewed the segment and confirm that [this] recollection is incorrect. The narrative provided in the segment is as follows:

This is one of the few videos of the so called Sheikh handing out protest leaflets. Otherwise he never shows his face in public.

Seven believes the ordinary reasonable viewer would understand from the above dialogue and vision presented in the segment [SH], or a person [SH] claims to be […] has appeared in public more than ‘once’ although these appearances are not frequent. The statement clearly expresses that a ‘few’ appearances did in fact exist. Seven believes the above statement was accurately presented in accordance with our obligations under the Code.’

3 Reporter: [MM] is the father-in-law of one of those Australian soldiers, [MH], killed in action in Afghanistan earlier this year. Like other Australian families, he’s been sent one of [SH’s] insulting letters.

[MM then read from the letter.]

‘[The complainant] claims that excerpts of the letter which are included in the segment are not in the letter sent to [MM] as claimed in the report. We obtained a copy of the letter to [MM] and confirm that the excerpts were in fact taken from this letter.

In relation to [the complainant’s] comments regarding the substance of the letter to [RH], the father of soldier [MH], we confirm that this letter was not discussed in the report. Seven is not obliged to present all material available to it and we believe the accuracy of the report is not affected by omitting details of the letter to [RH].’


[…]

‘Seven does not hold a copy of the letter that was sent to [MM]. […] further investigation into the content of the letter to [MM] was undertaken. The story’s researcher […] confirmed that he reviewed the letter at the time of broadcast and the excerpts included in the report were in fact contained in the letter sent to [MM]. [MM’s] discussion and reading of the letter in the report confirm this fact […]’

We note that several letters published on the [SH] website contain similar content to the letter sent to [MM].’

4 [MM]: As each of our Australian soldiers have passed away whilst serving overseas, an organisation has sent letters to the widows, to the parents, to the in-laws, basically calling the passed soldiers criminals, murderers, referring them and comparing them with Hitler.

[The complainant’s] letter states that [MM’s] use of ‘an organisation’ is an inaccurate description for [SH] and [his] following. When asked to discuss the actions of [SH] and his following, [MM] stated:

As each of our Australian soldiers have passed away whilst serving overseas an organisation has sent letters to widows, parents, to the in-laws, basically calling the past soldiers criminals, murderers, referring to them and comparing them to Hitler.

Seven does not believe [MM’s] use of the term ‘organisation’ is incorrect. The letters were sent and delivered by [SH] and [his] following. The letters delivered each include an official header and reference to the [SH] website which contains links to a discussion board, an events bulletin, public forums, a 1300 contact number, and media releases. [MM] clearly believed the format of the letter(s) was impersonal and likely to be from or on behalf of the [SH] website ‘group’, rather than [SH] (an individual who is suspected not to exist).

5 Reporter: Ten Australian soldiers have been killed in Afghanistan. The families of six have been contacted by [SH] and his followers…

Seven does not agree that the ordinary reasonable viewer would interpret the above phrase as pertaining to ‘all’ followers. The phrase refers to the letters sent by [SH] and instances where a follower has contacted the family by telephone and in person. This point was explored in the segment. Furthermore,


[SH’s] existence itself is questionable and therefore the individual(s) behind [SH’s] façade is unknown. Seven considers a generic description such as ‘[SH] and his followers’ sufficient to describe [SH] and/or [his] group.

6 Reporter: [SA’s] home address is a flat in this block but every time we visited no-one was at home.

‘Seven is confident the material regarding the location of [SA’s] home was correct at the time of broadcast. The material was obtained from a publicly accessible company search database which indicates the information for [SA’s] company [name of company] as current. The personal address for [SA] is that which is filmed in the report.

[…]

[SA’s] home address details are contained in the following searched information:

A. A full company extract which includes [SA’s] personal address.

B. A Google-map image of [SA’s] personal address, as depicted in the segment.’

FindingThe licensee breached clause 4.3.1 of the Code in relation to Item 1.

ReasonsThe complainant has identified six statements broadcast in the segment which he submits are inaccurate. It is considered that an ordinary, reasonable viewer would have understood each of these statements to be statements of fact. They are presented in an unequivocal and unquestioning manner. As such, the licensee must comply with the requirement of accuracy. Item 1The complainant submitted that the following statement was inaccurate on the basis that the website is registered to SH and not SA:

Reporter: Tracking down the fake Sheikh isn’t easy. His website is registered to a woman called [SA].

The licensee submitted that although the website may be registered to SH, the substantive contact behind the website is SA. It argued that it was reasonable to suggest that SA is the only individual behind the SH website and to assert that SH’s existence is questionable.

The delegate considers that the identity of the contact behind SH’s website is not relevant to the issue of whether the statement is accurate. The search results for SH’s website at www.domains.whois.com refer to SH as the


http://www.domains.whois.com/

‘organisation name’, ‘admin name’ and ‘tech name’5. Although SA may be connected to the website, her name does not appear on the registration of the website.

On this basis, it is considered that the statement that SH’s website is registered to SA is inaccurate. Accordingly, the licensee has breached clause 4.3.1 of the Code. Item 2The complainant submitted that the following statement was inaccurate on the basis that SH has attended many public gatherings for the Muslim community in the past 10 years:

Reporter: This is one of the few videos of the so-called Sheikh handing out protest leaflets. Otherwise, he never shows his face to the public.

The complainant referred to videos of SH on the internet. It is noted that SH’s website contains video footage of SH in public protesting on Australia Day, which is used by the licensee in the segment showing the Sheikh handing out leaflets on the street. The only other video of SH in public is footage of the Sheikh chained to a gate in front of NSW Parliament House. The remaining video footage of SH on his website depicts him giving talks indoors and attending a conference of scholars in Madrasah.6 It is unclear whether these talks are private or open to the public.

YouTube contains two other videos of SH, titled [AB] Protesting Islamic Republic and [AMB]7 Poetry both of which show footage of SH talking indoors. It is also unclear whether these talks are private or public.An ordinary, reasonable viewer would have understood the reporter’s reference to a ‘few’ videos to mean more than one. The delegate considers that it is reasonable for the licensee to rely on videos of SH posted on the web to determine whether he has been seen in public. Given that it is unclear whether the talks given by SH indoors are public or private and there are two videos of SH in clearly public places, the delegate finds the licensee presented factual material accurately having regard to the circumstances at the time of preparing and broadcasting the program.

Accordingly, the licensee has not breached clause 4.3.1 of the Code. Item 3The complainant contended that the excerpts from a letter read out by MM (MH’s father-in-law) in the segment were not sourced from a letter to MM or to RH, the father of MH, the soldier who was killed in Afghanistan. The complainant submitted that the quotes were sourced from a letter sent to the family of another soldier, MF.

5 http://www.domainregistration.com.au/domains/whois/index.php 6 It is unclear in which country this footage is filmed. 7 AB and AMB are other titles for SH.


http://www.domainregistration.com.au/domains/whois/index.php

The licensee submitted that it does not hold a copy of the letter sent to MM. It provided copies of other letters sent by SH to the families of deceased Australian soldiers and stated that the letter to MM is similar to these letters.

Although the letter to MM may be similar to other letters sent by SH, the delegate is not in a position to assess the accuracy of the excerpts read out in the segment without citing the actual letter. In circumstances such as these where there are conflicting claims and where there is no independent information available, the delegate is not satisfied that there has been a breach of the Code. Item 4The complainant submitted that the following statement was inaccurate:

MM: As each of our Australian soldiers have passed away whilst serving overseas, an organisation has sent letters to the widows, to the parents, to the in-laws, basically calling the passed soldiers criminals, murderers, referring them and comparing them with Hitler.

The complainant stated that the letters were not sent by an organisation, rather they were sent by SH with his personal letterhead. The licensee submitted that the letters included an official header and a reference to SH’s website.

The delegate has used the ordinary meaning of the word ‘organisation’ as defined in the Macquarie Dictionary (Fourth Edition):

organisation noun 6. a body or persons organised for some end or work7. the administrative personnel or apparatus of a business

It is noted that seven of the eight letters sent to the Australian soldiers which are posted on SH’s website include SH’s website address at the top or bottom of the letter and all the letters were signed by SH.

The delegate considers that it was not incorrect to state that ‘an organisation’ sent the letters. SH’s website appears to act as a central point for the Sheikh’s messages and speeches and indicates that SH has a number of followers. It also contains media releases and a comments forum. Given that the website appeared on the letters to the families of the soldiers, the delegate finds that the licensee did not breach clause 4.3.1 in this instance. Item 5The complainant submitted that the following statement was inaccurate:

Reporter: Ten Australian soldiers have been killed in Afghanistan. The families of six have been contacted by [SH] and his followers…

The complainant contended that by using the plural, ‘followers’, the segment inferred that all followers have contacted the families of the deceased Australian soldiers, and this is inaccurate.

The delegate considers that an ordinary, reasonable viewer would not have understood from this statement that every one of SH’s followers had


contacted the families of the deceased soldiers. The statement was made in the context of referring to the letters sent to the families of the six soldiers. The full statement made by the reporter is as follows:

Reporter: Ten Australian soldiers have been killed in Afghanistan. The families of six have been contacted by [SH] and his followers. They are [LW] (photo), [JM] (photo), [MF] (photo), [GS] (photo), [MH] (photo) and [BT] (photo). The letters are normally sent via funeral parlours, but you wouldn’t believe the audacity of this group.

The reporter then states that one of SH’s followers handed a letter to a widow of one of the deceased soldiers at his funeral.

In this regard, the delegate is satisfied that an ordinary, reasonable viewer would have understood that some letters were sent by SH and one particular letter was hand delivered by one of SH’s followers.

Accordingly, the licensee has not breached clause 4.3.1 of the Code. Item 6

The complainant submitted that the following statement was inaccurate:Reporter: [SA’s] home address is a flat in this block but every time we visited no-one was at home.

The licensee provided a copy of a company extract which indicates SA’s personal address. On this basis, the delegate considers that the statement referring to SA’s address was accurate.

Accordingly, the licensee has not breached clause 4.3.1 of the Code.

Issue 2: Whether the licensee represented viewpoints fairlyRelevant code clause


…

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;

Complainant’s submissionsThe complainant submitted that the following viewpoints were not represented fairly and were broadcast out-of-context:

Item


1 [SA]: I regret to say I am a terrorist, I admit and formally confess that for many years I have been a terrorist.

‘…but they have not shown the rest of the video that [SA] has explained what she meant by the word ‘terrorist’. So obviously people who have watched the show thought [SA] meant the


‘violent’ terrorism which is illegal under Australian law. They have intentionally made [SA’s] comments to be taken out of context and as a result they have accused her of being a violent terrorist’.

2 [MM] reading from [SH’s] letter:

Why should we call a pig a hero? Why should we respect the contaminated body of an Australian solider?

Such a son is evil, and an evil son deserves hell. An evil son deserves God’s punishment. God will send an evil son to hell.

‘‘Today Tonight’ has cut some parts of [SH’s] sentences in [SH’s] letters sent to the families of the dead Australian soldiers. The comments have been taken out of context as a result of this censorship. Two examples: In one of [SH’s] letters the topic is about the news regarding innocent civilians killed by Australian troops in Afghanistan. The letter tries to say that if such news is true and if an Australian solider has really killed the innocent civilians in Afghanistan, we should not respect such a soldier, and such a soldier is evil […]. Unfortunately ‘Today Tonight’ has mentioned half of the sentence and has cut the rest which is ‘who has murdered the innocent civilians’.

The second example is about ‘evil son’ in the same letter. The letter explains that ‘IF’ a soldier kills civilians, such a soldier is evil but they have not mentioned the whole statement. The statements have been made in general, but ‘Today Tonight’ by cutting some parts has made them look like they are statements made particularly to the families of Australian soldiers. Channel 7 by reporting inaccurately and unfairly has tried to accuse [SH’s] letters as being ‘insulting letters’ and it has tried to convince the audience that [SH] has harassed the family of the dead Australian soldiers. If they wouldn’t cut some quotes of the letters, it would be clear that the letters have not been written to insult and harass the families as ‘Today Tonight’ has claimed…’


Item


1 [SA]: I regret to say I am a Seven does not consider the material presented


terrorist, I admit and formally confess that for many years I have been a terrorist.

to be inaccurate. In the excerpt shown, [SA] ‘confesses’ that she is a terrorist. The definition of ‘terrorist’, according to the definition provided on the [SH] website is:

Any person, group, society or country that has any kind of unfair act whether it’s with violence or without violence, with the shedding of blood or without the shedding of blood, against the body, mind, status, property, politics, culture, belief or religion of oneself or another person, group, society or country is a terrorist.

Seven considers [SA’s] claim that she is a terrorist (as per the definition above) is not dissimilar to the way in which an ordinary, reasonable viewer would interpret the term.

We also believe that the viewer, by virtue of his or her worldly affairs would be aware of the highly sensitive approach taken by the government for any real terrorist threat and naturally conclude from the Department of Defence’s lack of action (as stated in the report) that [SA’s] claim was unsubstantiated. This is elucidated by the segment’s focus on hurtful letters, rather than [SA’s] ‘terrorist confession’.

[…]

The Today Tonight report in question presented the entirety of the information regarding [SA’s] ‘confession’ as it appears on the [SH] website. […] Given that the material used in the report is identical to that which is presented on the [SH] website, we believe it was a fair representation of [SH’s] viewpoint.’

2 [MM] reading from [SH’s] letter:



[…]Seven also included readings of one of the letters by [MM]. Although we are not able to review the excerpts in the context of the letter sent to [MM], [SH’s] letter to […] provides enough information to reasonably deduce that the material is identical to that which is present in his letters to two other families of deceased Australian soldiers which are shamelessly published on the [SH] website.

Seven believes the excerpts used in the report were represented fairly and in accordance with


the Code. Despite the use of hypothetical language in [SH’s] letters, it is clear after reading the entirety of the letter that the hypothetical scenario directly refers to the deceased soldier.

The first excerpt included in the report is as follows:

Such a son is evil, and an evil son deserves hell, an evil son deserves God’s punishment…God will send the evil son to hell

The above excerpt is wholly contained in the letter to [the family of MF] (attached) and its hypothetical nature is purely a superficial mask for the true message being conveyed, namely that “anyone who attacks another country and oppresses its people…is in the evil’s side and …she/he will go to hell”. Moreover, the letter declares that “we must speak out against the wrong policy of our Government” and “you should not stay silent, you should criticise the wrong policy of our Government if you really love Australia”. Seven believes that the letter, read in its entirety, suggests that the deceased solider is “such a son” as described hypothetically. [SH’s] use of hypothetical language does not disassociate the soldier addressed in the letter and to assert such a defence is nonsensical. Seven considers the inclusion of why he is evil (ie, because he kills innocent civilians) is immaterial to the point being made in the segment, namely that the letters are “insulting” and “harassing”.

The second excerpt in the report is as follows:

Why should we call a pig a hero? Why should we respect the contaminated body of an Australian solider…

The above statement read by [MM] is also present in [SH’s] letter to [another soldier’s father]. In a similarly constructed hypothetical way, [SH’s] offensive comments directly pertain to the deceased Australian solider. There is no ambiguity in [SH’s] below statement […]:

I feel sorry for you for the loss of a member of your family but I don’t feel sorry for the


solider who has murdered the civilians. I feel bad that you have lost your son but I don’t feel bad that a murderer of innocent civilians has lost his life.

[emphasis added]

Moreover, the letter expands on the statement, asserting that all Australian soldiers and supporters of their invasion into Afghanistan are “evil”:

An Australian solider who kills an Afghan is evil and any period, group or government who supports or respects such an evil act is evil as well. When the body of the murderer of the civilians is sent back to Australia we must not respect the body…If an Australian murderer deserves respect why not a German killer?

Seven considers the descriptions provided for the aforementioned letters to be accurate. Furthermore, to suggest that the letters make mere “hypothetical” suggestions which do not pertain to the Australian solider(s) is a misconstrued interpretation of the true message portrayed by this letter. Seven’s view is supported by the confirmation of the report’s accuracy by all the families who received [SH’s] letters.

FindingThe licensee did not breach clause 4.3.1 of the Code in relation to presenting viewpoints fairly.

ReasonsClause 4.3.1 of the Code requires licensees to 'represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program'. The Code does not require licensees to present all views relevant to the program, nor does the Code require there to be balance in the representation of views in news or current affairs programs.

In addition, the Code does not require licensees to use all material available to them at the time of preparing and broadcasting a news or current affairs program. Rather, the Code requires that if a licensee does purport to represent a viewpoint, then it must do so fairly and in such a way as not to misrepresent an opinion or the person to whom the viewpoint is attributed.


Item 1The segment broadcast the following video footage of SA:

SA: I regret to say that I am a terrorist. I admit and formally confess that for many years I have been a terrorist.

The complainant submitted that the video footage of SA was incomplete, broadcast out-of-context and that it accuses SA as being a ‘violent terrorist’.

The licensee contended that SA’s claim that she is a terrorist, as per the definition of terrorist on SH’s website, is not dissimilar to the way in which an ordinary, reasonable viewer would interpret the term.

The footage of SA is available on YouTube and on SH’s website. The first part of the transcript (2.50 minutes/5.34 minutes) is as follows:

In the name of God, the beneficent, the merciful. I regret to say I am a terrorist. I admit and formally confess that for many years I have been a terrorist. But I’ll try not to be anymore. Unfortunately, I have been involved with many terrorists in Australia. I confess that many times I have committed terrorist acts in Australia. I hope the AFP does not arrest me for this confession because what I mean by terrorist acts is a general meaning of terrorism according to the definition of terrorism in Islam. The definition of terrorism from the point of view of Islam has been available on [SH’s] website on the page, Terrorism. According to the Islamic view of terrorism, anyone who oppresses him or herself or others is a terrorist. On the other hand, anyone who commits a sin is a terrorist because oppression is a sin. In the past, I have committed sins and I still don’t claim that I am innocent. One of my sins was that I did not research about Islam earlier and I did not convert sooner. I confess that I have oppressed myself and others by committing sins. The oppression is terrorism and I admit that I have been a terrorist…

The reference to Islam’s definition of ‘terrorist’ on SH’s website is as follows:Any group, society or country that for evil cause/s has any kind of unfair act whether it’s with violence or without violence, with the shedding of blood or without the shedding of blood, against the body, mind, status, property, politics, culture, belief or religion of oneself or another person, group, society or country is a terrorist.

The issue to determine is whether, in omitting to broadcast SA’s reference to SH’s definition of ‘terrorist’, the licensee represented SA’s viewpoints fairly.

The ordinary meaning of the word ‘terrorist’ is defined in the Macquarie Dictionary (Fourth Edition) as:

terrorist noun 1. someone who uses or favours terrorising methods of resisting a government or of governing

The delegate considers that the ordinary, reasonable viewer would have understood SA’s statement that she is a ‘terrorist’ as consistent with SH’s definition of a ‘terrorist’. The word does not necessarily imply that violence is used. On this basis, there is no reason to believe that the material broadcast gave an unfair representation of SA’s viewpoint or that the material omitted would have changed the impression given in the broadcast.


Item 2The complainant submitted that the excerpts of SH’s letter read out in the segment have been edited in the following respect:

1. The following excerpt should have been followed with the statement: ‘who has murdered the innocent civilians’ which was contained in the letter:


2. The following excerpt should have been preceded with the statement: ‘if a soldier kills civilians” which was contained in the letter:


The complainant argued that the editing of the statements ‘made them look like they are statements made particularly to the families of Australian soldiers.’

The licensee submitted that the excerpts used in the report were represented fairly and that despite the use of hypothetical language in SH’s letters, it is clear after reading the entirety of the letter that the hypothetical scenario directly refers to the deceased soldier.

As indicated above, the delegate does not have a copy of the letter read out in the segment. An assessment will therefore be made on the basis of the quotes provided by the complainant.

Given that the letters were sent to the families of deceased Australian soldiers who fought in Afghanistan, the delegate considers that the ordinary, reasonable viewer would have understood the letters to refer to the soldier who had died and not a hypothetical soldier. Accordingly, it is considered that the omitted material referring to soldiers killing innocent civilians would not have changed the meaning of the excerpts broadcast in the segment.

On this basis, the delegate finds that the licensee represented SH’s viewpoints fairly.

Issue 3: Whether the licensee presented material in a manner that created public panic Relevant code clause


…

4.3.2 must not present material in a manner that creates public panic;


Complainant’s submissionsThe complainants submitted that:

‘Today Tonight’ in fact has a member of the family of a dead Australian soldier to claim that some Muslims have sent him an insulting letter. This false accusation has created public panic and has caused danger for some Muslims in particular and for the Australian Muslim community in general. The whole show of ‘Today Tonight’ was in a manner that stirs up racial violence…


Firstly, Seven […] rejects [the complainant’s] contention that the report concerns the Muslim community as a whole.

Additionally, clause 4.3.2 of the Code provides that ‘licensees must not present material in a manner that creates public panic’. The issue discussed in the report concerns ‘insulting letters’ that are sent to the families of dead Australian soldiers. Seven does not consider the sending of letters to be a matter likely to create public panic.

Furthermore, [the reporter] confirms that the Australian Federal Police and the Australian Defence Department are aware of [SH] and [his] following which itself signifies that the issue is sufficiently monitored by a body capable of taking action should they believe a risk to the Australian community exists.

FindingThe licensee did not breach clause 4.3.2 of the Code.

ReasonsIt is considered that the intention of clause 4.3.2 is to prevent licensees from presenting material that would have the result of causing relatively widespread fear and terror in the community. In this regard, the definition of the words ‘panic’ and ‘public’ in the Macquarie Dictionary (Fourth Edition) is noted:

panic noun1. a sudden demoralising terror, with or without clear cause, often

as affecting a group of persons or animals.2. an instance, outbreak, or period of such fear.

adjective3. (of fear, terror, etc.) suddenly destroying the self-control and

impelling to some frantic action.4. of the nature of, due to, or showing panic: panic haste.

verb, panicked, panicking. verb (t)5. to affect with panic.

verb (i)6. to be stricken with panic.

c


phrase7. be at panic stations, to be in a situation requiring extreme

measures; be chaotic.

publicnoun

8. the general public. the people constituting a community, state or nation

9. a particular section of the people: the novel-reading public10. public view or access: in public

The complainant submitted that the segment created public panic by making a false accusation that a member of the family of a deceased Australian solider received an insulting letter from Muslims.

It is considered that an ordinary, reasonable viewer would not perceive from the licensee’s broadcast that there was any threat to the public at large. The segment was not presented in a sensational manner and focused on the actions of SH in relation to sending letters to the families of deceased Australian soldiers and allegations that SH is not a genuine Sheikh.

Accordingly, the licensee has not breached clause 4.3.2 of the Code.

Issue 4: Did the licensee use material relating to a person’s personal or private affairs, or which invaded an individual’s privacy Relevant code clause


…

4.3.5 must not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, other than where there is an identifiable public interest reason for the material to be broadcast;

Considerations of clause 4.3.5Clause 4.3.5 states, in broadcasting news and current affairs programs, a licensee must not use material relating to a person’s ‘personal or private affairs’, or which ‘invades an individual’s privacy’. The Code’s wording indicates a breach of clause 4.3.5 may occur when the material is found to satisfy one arm of the clause.

However, the Code permits the licensee’s use of material of ‘personal or private affairs’, or material which invades an individual’s privacy, where there is ‘an identifiable public interest’ for the material to be broadcast.


‘personal or private affairs’

The Code does not define ‘personal or private affairs’ or ‘invasion of privacy’. Accordingly, the ACMA refers to the Macquarie Dictionary’s (Fourth Edition) ordinary meaning of clause 4.3.5’s relevant terms.

personal, adjective1. of or relating to a particular person; individual; private: a personal

matter.

private adjective1. belonging to some particular person or persons; belonging to oneself;

being one's own: private property.2. relating to or affecting a particular person or a small group of persons;

individual; personal: for your private satisfaction.3. confined to or intended only for the person or persons immediately

concerned; confidential: a private communication.

affair noun1. anything done or to be done; that which requires action or effort;

business; concern: an affair of great moment; the affairs of state.2. (plural) matters of interest or concern; particular doings or interests: put

your affairs in order.The Privacy Guidelines for Broadcasters (2005) (the Privacy Guidelines) state, ‘material relating to a person’s private affairs’ includes, but is not necessarily limited to, the health, personal relationships, financial affairs or private conduct of the individual.

The Privacy Guidelines’ general rule on the broadcast of private material states, the broadcast of private material occurs when:

the material relates to a person’s private affairs so that its broadcast is likely to cause harm or distress to a reasonable person in the position of the individual; and

an individual is identifiable from the material broadcast.The ACMA assessed what an ‘ordinary, reasonable viewer’, in their position, would consider private.8

‘invasion of privacy’

The Privacy Guidelines do not currently expand on the definitions of the term, ‘invasion of privacy’, provided by dictionary definitions and court decisions.

The ACMA considers an invasion of personal privacy may occur when there is an unwanted or uninvited intrusion upon a person’s private affairs or seclusion.

The court in Grosse v Purvis found an intrusion into a person’s seclusion may result in an invasion of that person’s privacy where there is:

a willed act…which intrudes upon the privacy or seclusion of the plaintiff, in a manner which would be considered highly offensive to a reasonable person of

8 See Considerations of clause 4.3.1 at Issue 1 above.


ordinary sensibilities, and which causes…detriment in the form of mental, psychological, or emotional harm or distress…9

An activity or conduct that a person is engaged in can be considered private where that type of activity or conduct is something which an ordinary reasonable viewer would consider to be private, or have a reasonable expectation that such activity should be unobserved and would consider the broadcast of such material to be highly offensive.‘public interest’

The Code recognises a balance must be struck between keeping the Australian public informed of news and current affairs, with respect for individual privacy.

The Code’s ‘Advisory Note’ on ‘privacy ’ provides some guidance to licensees on striking this balance. The ‘Advisory Note’ states:

The Code of Practice requires [licensees] to strike this balance by only using material relating to a person’s personal or private affairs or which invades an individual’s privacy, where there is an identifiable public interest reason for

the material to be broadcast.

Consistent with this approach, the Privacy Guidelines state:Not all matters which interest the public are in the public interest. Whether something is in the public interest will depend on the circumstances including, for example, whether a matter is capable of affecting people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or others.

The Privacy Guidelines also identify examples of individual privacy matters where an intrusion may be justified. This includes, but is not limited to:

Criminal conduct Public health or safety Consumer affairs/protection Matters of politics, government, and public administration Matters relating to the conduct of organisations, such as corporations,

businesses, and trade unions, which impact on the public Seriously anti-social conduct which causes harm to others.

Complainant’s submissionsThe complainants submitted that:

‘Today Tonight’ has shown a property and has interviewed its neighbour and has claimed it was [SA’s] HOME. This was not true. However, if that property would supposedly be [SA’s] home, Channel 7 had no right to invade an individual’s privacy and release one’s personal information. Beside this, Channel 7 by introducing a property to the public as [SA’s] home, has caused inconvenience for the people who are occupying that property.

9 [2003] QDC 151 at [444].



The material presented does not provide the address of the property, nor did it depict any identifying landmarks or street names in the vision. Rather, limited vision of a red brick building (filmed from the street) is presented with the following description:

[SA’s] home address is a flat in this block, but every time we visited, no-one was home.

Therefore, we believe that the report complies with the privacy provisions in the Code, notwithstanding its broadcast in the public interest.


ReasonsWhether the broadcast included material relating to an individual’s personal or private affairs or invaded an individual’s privacyThe complainant alleged that the licensee breached the privacy of SA by filming her home. The licensee submitted that the material broadcast did not provide the address of the property, nor did it depict any identifying landmarks or street names in the vision.

The footage in the segment showed the outside of SA’s apartment block. The reporter interviewed the occupants of one of the apartments who were standing on their balcony and asked whether they had seen the ‘lady in number 4’. The occupants replied that ‘she is with her husband in Bankstown somewhere’.

The Privacy Guidelines state that information that is readily available to the public would generally not be considered to be material relating to a person’s personal or private affairs. However, the Guidelines also indicate that the broadcast of personal information, such as a person’s address or other identifying details, may be considered private, even if such information has some limited public availability. For example, publication of addresses is recognised as a sensitive matter as it can lead to harassment.10

In this case, as indicated in Issue 1 above, footage of SA is contained on SH’s website and her address is publicly available in a company extract. It is noted, however, that SA’s full name is not revealed on the website and is therefore not identifiable from the footage. As such, it is considered that SA’s address is not readily available to the public.

The issue therefore to determine is whether SA was identifiable from the footage broadcast on the program. The delegate is satisfied that the footage

10 The Australian Broadcasting Authority (ABA) found that the public interest in telling a story which included other private information did not extend to the broadcast of an address. The ABA took the view that broadcast of a person’s address ‘should only occur where a strong public interest can be identified’.


of the apartment block does not include any identifying information which would enable viewers to identify SA’s street address or suburb. Furthermore, the comments provided by the occupants of the apartments do not reveal the address of SA.

For these reasons, the delegate finds the material complained about does not relate to the ‘personal or private affairs’ of SA such that the licensee’s broadcast invaded SA’s privacy or breached clause 4.3.5 of the Code.

Accordingly, the public interest for the broadcast of this information does not need to be considered.

Issue 5: Provoke or perpetuate intense dislike, serious contempt or severe ridiculeRelevant Code clauseProscribed Material

1.8 A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to:

…

1.8.6 provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference.

Interpretation of clause 1.8.6 of the CodeThe ACMA adopts the general approach set out below in applying clause 1.8.6 of the Code. ‘ordinary, reasonable viewer’The ACMA considers what the ‘ordinary, reasonable viewer’ would have understood the program concerned to have conveyed.11

Clause 1.8.6Given the way in which the complaint is expressed, the ACMA has assessed whether or not intense dislike and serious contempt were provoked rather than severe ridicule.

When a statute or code contains no definition, the ordinary English language meaning is used. The ACMA adopts the ordinary English language meanings of the word ‘provoke’ as relevantly set out in the Macquarie Dictionary (Fourth Edition).

Provoke verb 2. to stir up, arouse or call forth;

3. to incite or stimulate (a person etc. to action)

Consequently, in deciding whether there has been a breach of clause 1.8.6 of the Code, the ACMA has considered whether an ordinary reasonable viewer would regard the programs as ‘likely, in all the

11 See Issue 1 above for the court’s approach to the ordinary, reasonable viewer.


circumstances’ to stir up, arouse, or call forth or to incite or stimulate intense dislike or serious contempt ‘intense dislike’ and ‘serious contempt’

The Macquarie Dictionary (Fourth Edition) includes the following relevant definitions:

intense adjective 1. existing or occurring in a high or extreme degree.2. acute, strong, or vehement, as sensations, feelings, or emotions.

dislike verb 1. not to like; regard with displeasure or aversion: I dislike him; I dislike having to work.

serious adjective 5. weighty or important; 6. giving cause for apprehension; critical

contempt noun 1. the act of scorning or despising; 2. the feeling with which one regards anything considered mean, vile or worthless

Use of the words, ‘serious’ and ‘severe’ indicate that the Code contemplates a very strong reaction and sets a high test for the prohibited behaviours. It is not sufficient that the behaviour induces a mild or even strong response or reaction.12 ‘likely, in all the circumstances’

Use of the words, ‘likely in all the circumstances’ imposes an objective test13 and implies a real and not remote possibility; something which is probable.14

‘on the grounds of religion’

The phrase ‘on the grounds of’ is interpreted as requiring that there be an identifiable causal link between the prohibited ground (here religion) and the action complained of (here intense dislike and serious contempt).

In informing its interpretation of the code provision, ACMA notes that there is a great deal of judicial interpretation in relation to the words ‘on the grounds of’ in the context of discrimination law. The phrase is expressed, variously, in other legislation as ‘by reason of’, ‘on the basis of’ and ‘because of’. The Victorian Racial and Religious Tolerance Act (RRTA) uses the same words as the code, i.e. that the reaction must be ‘on the grounds of’ the personal characteristic. The Victorian Court of Appeal in Catch the Fires Ministry & Ors v Islamic Council of Victoria Inc15 held that the RRTA determines whether the words or conduct are unlawful by reference to their effect on the relevant audience. Nettle J held that:

The question was whether, having regard to the content of the statements in the context of the whole seminar, and to the nature of the audience…the natural and ordinary effect of what was stated was to encourage [the requisite feelings of hatred etc.]

12 ACMA has set out this test before in relation to the consideration of these elements of the code. See for example, Investigation 1909 – 12 February 2009.

13 Creek v Cairns Post Pty Ltd (2001)112 FCR 352 at 12.14 See discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs

(1994) 34 ALD 773 at 778-779. 15 [2006] VSCA 284.


Neave J in the same case cited with approval the decision in Kazak v John Fairfax Publications Ltd where the NSW Administrative Decisions Tribunal said:

There must be a causal connection between the race of the person or group of persons concerned and the feelings of hatred, serious contempt or severe ridicule which are incited by the public act…The grounds on which the public act was performed is not relevant, it is the ground on which the reader was incited to hatred etc which is relevant.

Complainant’s submissionsThe complainant submitted that:

As a result of the dishonesty and cutting part of the video of [SA], some people have been wondering why an Australian citizen has formally confessed for involvement with terrorist activities but still ASIO and AFP have done nothing? The unfair and inaccurate report of “Today Tonight” not only has insulted Muslims and it has given a negative image to Islam but it has also made ASIO and AFP look bad and negligent.[…]‘Today Tonight’ emphasises on ‘harassing’ the family of dead Australian soldiers by Muslims’ and as a result it has incited violence in our society. If any racial violence similar to Cronulla riots occurs in Australia, Channel 7 will be responsible for that.


It is clear that the report does not attack the Muslim community or their religious beliefs. Rather, the report only criticises [SH’s] group’s actions. Moreover, several unfavourable viewpoints of the Muslim community about [SH] and [SH’s] family are presented in the segment making it clear that the story is not criticising Muslims generally.

Seven acknowledges that the segment was not favourable to [SH] or [SH’s] following, but does not believe its legitimate criticism of [SH’s] actions amounts to a report which provokes “intense dislike, serious contempt or severe ridicule” against [SH’s] group on the grounds of ethnic origin or religion.

Seven does not consider, nor does the report claim, that [SH’s] actions were based on or associated to religious or ethnic motives. The only comments in the report relating to [SH’s] religion or ethnic origin are to identify [SH] and the individuals associated with him. That said, the report also presents the view of Muslim spokesman [KT] who questions the legitimacy of [SH’s] religious standing, stating “someone is pretending they are doing [these actions] in the name of Islam”.

Notwithstanding the above clause 1.9.3 of the Code provides that a broadcast will not be contrary to section 1.8.6 “if said or done in broadcasting a fair report of any event or matter of identifiable public interest’. Seven considers the subject matter of the report to be a clear


matter of public interest given the involvement of the Australian Federal Police and the Department of Defence. Accordingly, Seven is confident the broadcast is in accordance with the provisions of the Code.


ReasonsThe complainant submitted that the segment gave a negative image of Islam and incited violence in society. The licensee contended that the report did not attack the Muslim community or their religious beliefs. Rather, it only criticised the actions of SH’s group.

In determining whether the licensee has breached clause 1.8.6, the ACMA must:

identify of the relevant individual/group;

identify of the relevant grounds on which the individual/group was targeted; and

determine whether the broadcast provoked severe ridicule against the relevant individual/group.

If a finding is made that the licensee breached clause 1.8.6, consideration must then be given as to whether any of the exemptions provided in clause 1.9 apply. Identification of the relevant group

An important part of the assessment process is identifying the group of persons who are the target of the alleged intense dislike and serious contempt. In doing so, consideration needs to be given to whether an ordinary reasonable viewer would have identified the relevant group from the material broadcast.

In this case, the delegate considers that an ordinary reasonable viewer would not have understood that the subject of the segment related to Muslims as a group. The segment focused on the actions of SH sending letters to the families of deceased Australian soldiers and allegations that SH is not a genuine Sheikh as indicated by the following statements:

Presenter: Now to the attacks on the families of our fallen. A man who claims he is a senior Islamic cleric has been targeting the families of Australian soldiers killed in Afghanistan. Islamic community leaders say he is a fake and they have challenged him to come forward…

Reporter: And for [SH] and his small band of followers that war on oppression includes harassing the families of Australian soldiers killed in action.

Reporter: Fake or not, this is his very real website. Here the so-called Sheikh makes his cyber-ravings against Australian soldiers. He even lists


the families of fallen soldiers he has intimidated with letters and phone calls. It’s then followed up with videos presented by his two co-called followers, [SA] and [Z].

It is also noted that a representative of the Muslim community in Australia, KT, alleged that SH is not genuine, thus indicating that the segment was not concerned with the Muslim community as a whole:

KT: I genuinely believe that SH is a fake and others in the community believe this person is a fake.

Given that the delegate has found that there is not an identifiable ‘group’ in the segment in terms of clause 1.8.6, there is no need to consider whether the program provoked or perpetuated intense dislike or serious contempt of Muslims on the grounds of religion.

In any event, the delegate considers that the grounds on which any feelings of dislike or contempt of SH and his followers might have been provoked, were not on the grounds of religion but the particular actions of the group reported in the program.

In conclusion, the delegate finds that the licensee did not breach clause 1.8.6 of the Code.

Issue 5: Corrections of significant errors of fact Clause 4.3.11 of the Code states:

News and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensees:…

4.3.11 must make reasonable efforts to correct significant errors of fact at the earliest opportunity.

Complainant’s Submissions The complainant has requested that the licensee make reasonable efforts to correct the errors of fact at the earliest opportunity.

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

ReasonsThe delegate, in relation to Item 1, has found that the licensee breached clause 4.3.1. In assessing the licensee’s compliance with clause 4.3.11, the question is whether this inaccuracy was significant.

It is considered that the relevant statement ([SH’s] website is registered to a woman called [SA]) does not amount to a significant error of fact in that it did not disrupt, overall, the focus of the segment that SH had sent letters to the families of Australian soldiers who had died in Afghanistan.


Given that the factual error concerned is not considered to be significant, the licensee is not subject, in relation to this matter, to clause 4.3.11 of the Code.


ATTACHMENT ATranscript of the Today Tonight segment broadcast on 25 May 2009

Presenter: Now to the attacks on the families of our fallen. A man who claims he is a senior Islamic cleric has been targeting the families of Australian soldiers killed in Afghanistan. Islamic community leaders say he is a fake and they have challenged him to come forward. [The reporter] has this exclusive investigation:

SA (a Muslim woman in a veil): This is a message for the majority of the Australian nation for the troops who have invaded and occupied Iraq (the woman then lifts her veil and spits).

MM: I’d describe them as a bunch of faceless, gutless and insulting individuals.

SA: I do not honour the soldiers who go to unjust wars. I do not feel for murderers.

KT: Somebody is pretending that they are doing it in the name of Islam.

SA: This is the only thing that they deserve (the woman then lifts her veil and spits).

Reporter voiceover (to footage of SA speaking): They call themselves the soldiers of Allah, the army of Islam.

SA: I regret to say that I am a terrorist. I admit and formally confess that for many years I have been a terrorist.

Reporter: Her name is [SA], a 28 year old Australian who converted to Islam and is now the mouthpiece of a Muslim cyber-cleric called [SH] or [AB].

SA: What is the main reason that [SH’s] website was established? The answer is simply, war on oppression.

Reporter voiceover (to footage of SH): And for [SH] and his small band of followers that war on oppression includes harassing the families of Australian soldiers killed in action.

MM: As each of our Australian soldiers have passed away whilst serving overseas, an organisation has sent letters to the widows, to the parents, to the in-laws, basically calling the passed soldiers criminals, murderers, referring [to] them and comparing them with Hitler. (Reading from the letter):


Reporter voiceover (to footage of MM reading the letter and a photo of MH): [MM] is the father-in-law of one of those Australian soldiers, [MH], killed in action in Afghanistan earlier this year. Like other Australian families, he’s been sent one of [SH’s] insulting letters

MM (reading from the letter):



MM: For these grieving people to be presented with these vilifying pieces of rubbish is absolutely amazing.

SA (to the sound of gunfire): Thank you.

MM: We don’t know who they are, they don’t show their face. Basically they’re just a bunch of cowards.

Reporter voiceover (to footage of SH giving a speech): And this is the man himself, or so everyone is led to believe, [SH] or [AB]. He claims to be the son of a highly placed Iranian Ayatollah. He’s now living in Sydney. (To footage of SH handing out leaflets on the street) This is one of the few videos of the so-called Sheikh handing out protest leaflets. Otherwise, he never shows his face in public.

Reporter to KT: Is there a Sydney cleric called [SH]?

KT: Not to our knowledge. Actually, I’ve asked a number of Imams and nobody has heard of this person.

Reporter: Have they heard of a [AB]?

KT: No, we’ve been trying to make enquiries about this person, to find out the identity of this person for well over a year now and there’s been nothing.

Reporter voiceover (to footage of the reporter and KT walking on the footpath): If anyone would know about this so-called Sheikh, it would be the Australian Muslim community. Lebanese Muslim spokesman [KT].

Reporter: Do you believe SH is a fake?

KT: I genuinely believe that SH is a fake and others in the community believe this person is a fake.

Reporter voiceover (to footage of SH’s website and footage of SH): Fake or not, this is his very real website. Here the so-called Sheikh makes his cyber-ravings against Australian soldiers. He even lists the families of fallen soldiers he has intimidated with letters and phone calls. It’s then followed up with videos presented by his two co-called followers, [SA] and [Z].

Z (in a veil): As a solider of Islam, I am very excited and I can’t wait till I go to war on oppression, but I wait till I receive guidelines from SH about jihad.

Reporter voiceover (to footage of Z’s video): [Z] is clearly reading from prepared cue cards held directly below the camera. The backdrops for these video ramblings are always the same, a text from the Sheikh’s website or just a plain screen. Always critical of Australia and its troops, yet congratulating the Bali bombers

Z: I have written a letter for the families of martyr [A], martyr [IS] and martyr [M] and I have congratulated them for having a martyr in their family.


MM: If they’re so passionate about this cause, then why don’t they go back and support the cause from within instead of on an exterior basis upsetting a bunch of people who are just doing a job?

AD: These letters, and I’ve read a couple of them, are absolutely reprehensible.

Reporter voiceover (to footage of AD in an office): Retired Brigadier General, [AD] turned author is a counter-terrorist specialist and he teaches Arabic studies at […].

AD: The wives and families should never be subjected to this, but they need to know that real Australians, and that’s 99.9% of us, they have our undying gratitude and absolute support.

Reporter voiceover (to footage of soldiers firing guns): Ten Australian soldiers have been killed in Afghanistan. (To footage of a coffin being carried by soldiers): The families of six have been contacted by [SH] and his followers. They are [LW] (photo), [JM] (photo), [MF] (photo), [GS] (photo), [MH] (photo) and [BT] (photo). The letters are normally sent via funeral parlours, but you wouldn’t believe the audacity of this group.

MM: One widow was actually presented with letters at her husband’s funeral.

Reporter voiceover (to footage of a coffin carried by soldiers, a photo of BT, BT’s widow and SH’s website): The woman calling herself [SA] attended [BT’s] funeral to hand the Sheikh’s letter to his widow, then boasted about it on their website.

AD: Religion at its core has some wonderful issues but leave it out of politics, leave it out of the military and leave these families alone.

Reporter voiceover (to footage of SH handing out leaflets): Tracking down the fake Sheikh isn’t easy.

(To footage of the outside of a building a post office box): His website is registered to a woman called [SA]. The address, this small post office box set into the side of a shopping centre in Sydney’s inner west. Box [number] gets the Sheikh.

(To footage of an apartment block showing the back of a man’s head standing outside a garage): [SA’s] home address is a flat in this block but every time we visited no-one was at home.

Reporter to a man and woman standing on a balcony in the apartment block: Have you seen the lady in number 4 at all?

Man: No, she is with her husband in Bankstown somewhere.

Reporter (walking down the street): The Australian Federal Police has told us they are aware of [SH] and his website but they wouldn’t confirm or deny that they’re investigating, in fact, if they are doing anything about the so-called Sheikh and his female associates. The Australian Defence Department is angry, families are receiving letters and phone calls so soon after losing their


loved ones. But even with all its might and power, the Defence Department is powerless to stop them.

Reporter voiceover (to footage of SH speaking and a funeral): This self-styled Ayatollah is now warning us of an imminent terrorist attack. But he claims his group will not be behind it. He also has a new group – [HB] – starting soon. The Ayatollah maintains that they will continue their war on so-called oppression even if it means harassing more families.

KT to reporter: It is doing a lot of damage and it’s good that your program is actually clearing this matter up.

Reporter: What is your challenge to [SH] tonight?

KT: If this person is genuine, then I challenge him to come forward to the reputed Imams in person, not behind anonymous letters, and introduce himself and argue his point. (To footage of SH) I believe in freedom of speech but not to the point where people masquerade behind a possibly fake identity

(Previous footage of SA spitting).

Presenter: [The reporter] reporting.


investigations... · web viewsheikh (referred to here as sh) who sent letters to the families of...

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