CLC Submission to Proposed Commercial Television Industry Code of Practice 2015 Communications Law Centre, UTS

Transcription

1 Communications Law Centre, UTS Submission to Proposed Commercial Television Industry Code of Practice /04/2015

2 INTRODUCTION This submission only deals with three areas of the proposed Commercial Television Industry Code of Practice 2015: News and current affairs Advertising and disclosure of commercial agreements Complaints and Code administration. References to Code of Practice 2010 are to the current Commercial Television Industry Code of Practice, January 2010 (incorporating amendments to July 2013). References to Code of Practice 2015 are to the draft Code released for public comment on 20 February In each section, comments and recommendations made by the CLC appear in boxes after a short description of the impact of the proposed changes. NEWS AND CURRENT AFFAIRS CODE SECTION 3 NEWS AND CURRENT AFFAIRS Accuracy The obligations on licensees under Code of Practice 2015 to ensure accuracy in news and current affairs programs are reduced in three respects: 1. The previous requirement for both news and current affairs programs to broadcast factual material accurately (4.3.1) has been replaced by a requirement that material facts included in the program are presented accurately (emphasis added) (3.3.1). 2. A new clause (3.3.2) applying only to accuracy has been added so that in assessing whether the material facts are presented accurately, a licensee is able to take into account the facts known at the point of time of the broadcast in question. This is in addition to the existing provision stating that accuracy is to be determined in the context of the segment in its entirety. 3. A new introductory clause states that in interpreting the whole news and current affairs section (and assessing whether there has been of these requirements), licensees are now able to have the following taken into account: the time pressures associated with the preparation and broadcast of such programming (3.1.2). These provisions are in addition to the following clause, which previously only applied to the accuracy requirement, but has been moved to the introductory section so that it applies to all news and current affairs provisions: This section must be interpreted taking into account all of the circumstances at the time of preparing and broadcasting the material (3.1.2(a)). The CLC acknowledges the challenges of gathering and accurately reporting and presenting news and commentary in the contemporary media environment, especially where some online publishers are free to publish news and information without adhering to a set of industry standards. However, the absence of adequate standards in some sectors is not sufficient reason to introduce changes to the Code which could allow a dramatic drop in standards within commercial television. The CLC recognises that all the matters nominated in Code of Practice 2015 are relevant to some extent and recommends they be retained in a list of factors to be taken into account, but subject to an overriding recognition of the importance of factual accuracy. The concessions provided within the Code are now so extensive that the requirement for accuracy is seriously compromised. In particular, the CLC considers there is undue prominence given to the facts known at the point in time of the broadcast in question. There is a risk this provision could prompt broadcasting of incorrect or incomplete facts, provided nothing contradictory is known at the time, without the additional checking that would ordinarily be conducted. This could have a harmful effect on individuals concerned or on public debate. In addition, the CLC considers the current requirement to broadcast factual material accurately is more appropriate than the proposed narrowing to presentation of material facts accurately. While it may be

3 reasonable to provide for different methods of correction of factual material, depending on whether the facts are material to the issue (see below), the overall obligation should be to ensure that facts are accurate. In addition, the material facts formulation does not sufficiently encompass cases of omission i.e. where omission of important facts leads to inaccuracy. Corrections Code of Practice 2010 requires licensees to make reasonable efforts to correct significant errors of fact at the earliest opportunity (4.3.11). It also provides that if a licensee makes a correction which is adequate and appropriate in all the circumstances there will be no breach of the accuracy requirement in Code of Practice reduces the obligations on licensees in three ways: 1. It removes the requirement for the correction to be adequate and appropriate (3.3.3). 2. It also appears to allow for the correction to be expressed as a clarification (the requirement is to make reasonable efforts to correct or clarify significant and material errors of fact ). 3. A new provision explicitly allows for the correction to be made on the licensee s website or on the official website of the Program (3.3.5(b) and (c)). The CLC strongly opposes these changes. All corrections should be subject to a requirement that they be adequate and appropriate. Significant errors of fact require a proportionate response. Although it may be appropriate to correct minor matters via a website, inaccuracies in material facts (or omission of material facts) should be corrected in the same or a later edition of the program, on-air not online, where they have more chance of being seen by people who were misinformed. The CLC also recommends the deletion of proposed (part of current ) which establishes there is no breach of the accuracy requirement if a correction is published. The publication of a correction may well avert the need for any further action (including enforcement action if the matter is referred to the ACMA), but it does not cure the original failure to comply with the obligation to ensure accuracy. There may be many people who saw the original broadcast who do not see the correction. Although a goal such as overall balance may be achieved over time, accuracy must be judged on each report. Fairness Code of Practice 2010 requires that both news and current affairs programs represent viewpoints fairly (4.3.1). An introductory clause indicates the news and current affairs provisions are intended to ensure (among other things) that news is presented impartially (4.1.4). In Code of Practice 2015 licensee obligations are reduced as follows: 1. The requirement that both news and current affairs programs represent viewpoints fairly has been deleted and replaced with a requirement that news programs present news fairly and impartially (3.3.6(a)). This means that for current affairs programs, there is no longer any requirement for fairness. 2. For current affairs programs, there is an explicit exemption from any requirement of impartiality: Current affairs programs are not required to be impartial and may take a particular stance on issues (3.3.8). 3. For news programs, a new clause indicates there is no requirement to allocate equal time to different points of view etc: Nothing in clause requires a licensee to allocate equal time to different points of view, or to include every aspect of a person s viewpoint, nor does it preclude a critical examination of or comment on a controversial issue as part of a fair report on a matter of public interest (3.3.7). The CLC strongly objects to the removal of the requirement for fairness in current affairs programs. There is no justification for this change if anything, the need to ensure fairness is enhanced in an increasingly competitive media environment. Impartiality, however, is a different concept and the CLC has no objection to the insertion of clause provided there is still an obligation that the program is fair. 3

4 The CLC also has concerns about the changing treatment of individuals in news and current affairs. Code of Practice 2010 targets material which misrepresents a person ( representing viewpoints fairly ), whereas Code of Practice 2015 only requires that the news itself is fair. In addition, new clause explicitly provides more flexibility to a licensee in representing a person s viewpoints; current clause (avoiding unfairly identifying a single person or business when commenting on a group) is removed altogether; and current clause (not portraying an individual person or group in a negative light by placing gratuitous emphasis on age, race etc) is also removed. While the CLC agrees with the idea in that equal time is not a measure of fairness, the cumulative result of the provisions in Code of Practice 2015 is that an individual person who considers they have been misrepresented or unfairly treated could find it much more difficult to complain about the material. The CLC considers the fair treatment of individuals in news and current affairs reports should be a cornerstone of the standards of practice applying to all sectors of the media. We recommend the reinstatement of the provision requiring that viewpoints be represented fairly. Privacy Code of Practice 2010 at clause states that a licensee 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 (emphasis added). However, a licensee will not be in breach of the clause if they obtain the person s consent prior to broadcast ( ). An additional provision ( ) requires special care to be exercised in relation to children s privacy and consent of a parent or guardian to be obtained in certain situations involving children. Code of Practice 2015 at clause 3.4 reduces licensee obligations in six ways: 1. It removes the explicit protection afforded against material which invades an individual s privacy. 2. It restricts the application of the clause to material broadcast by a licensee, rather than material used by a licensee (3.4.1). 3. It narrows the domain of a person s personal or private affairs by stating that "material that is publicly available or recorded in a public place is not private information (3.4.2). 4. It omits the word identifiable from the phrase identifiable public interest (3.4.1(a)). 5. It introduces an element of implicit consent which negates the obligation to protect privacy (3.4.1(b)). 6. It removes the specific protections relating to children. Invasion of privacy The omission of the words material which invades an individual s privacy narrows the protection afforded to people who are the subject of news and current affairs programs. The clause now only protects against the broadcast of material relating to a person s personal or private affairs. Neither Code of Practice 2010 nor Code of Practice 2015 recognise there are other ways in which an individual s privacy may be affected by the actions of a licensee, such as through the use of surveillance technology, the unfair collection of information, and intrusive filming and investigative work. For example, the ACMA s Privacy Guidelines for Broadcasters explains how an intrusion on a person s seclusion can be a breach of privacy: A person s seclusion may be intruded upon where: - he or she would have a reasonable expectation that his or her activities would not be observed or overheard by others; and - a person of ordinary sensibilities would consider the broadcast of these activities to be highly offensive. (Test from Lenah Game Meats, Gleeson CJ). The CLC recommends that clause in Code of Practice 2015 be expanded to expressly protect against invasions of privacy in both the gathering and presentation of news and current affairs. Broadcast purpose The employment of the word broadcast in place of the word use narrows the circumstances in which a licensee may be found to breach a person s privacy. The broadcasting of material is just one way in which 4

5 material may be used, and there are other exploitations of material that may have an impact upon a person s privacy: for example, personal or private material may be exploited to help form or frame a news item that invades a person s privacy without the personal or private material being specifically broadcast or referred to. The word use implies a broad prohibition on all aspects of the exploitation of material in the creation of news stories. It may also apply to the broadcaster s actions in publishing personal or private material on non-broadcasting platforms such as social media and online versions of news items. The broader term use is appropriate, especially in circumstances where broadcast content may specifically direct viewers to associated website content, and the provisions of the Code of Practice form part of the licensee s exemption from the more onerous requirements of the Privacy Act. The CLC recommends that the word use should be reinstated in order to ensure the Code applies to all circumstances in which the exploitation of private or personal information may have privacy implications. Material publicly available or recorded in a public place The exclusion of material that is publicly available from a consideration of a breach of privacy narrows the protection afforded to people who are the subject of news and current affairs programs. Information may be publicly available but in a restricted way. In some cases but not all the broadcast or other use of that material may be unfair or harmful and an invasion of the person s privacy. This depends upon the circumstances in which the information is used. This point is particularly significant in light of the fact that a vast amount of information about people is accessible online through social media sites and search engines. The fact that information is publicly available does not necessarily mean it is acceptable to bring it to the attention of the public within news broadcasts. The ACMA has acknowledged in its Privacy Guidelines that the absence of access restrictions to material on social media sites will be an important consideration but not determinative. Similarly, the exclusion of material that is recorded in a public place from a consideration of a breach of privacy narrows the protection afforded to people who are the subject of news and current affairs programs. Standing on public land to film a person who is on private land, for example, may still breach the person s privacy. The test is not whether the land was public or private but whether the person s seclusion has been intruded on (whether the person had a reasonable expectation of privacy etc, noted above). The CLC recommends that the exemption relating to publicly available information be removed or amended so that it does not make the public availability a determinative factor in establishing whether there has been a breach of privacy. The CLC recommends the deletion of the exemption relating to material recorded in a public place. Public interest The omission of the modifying word identifiable from the phrase identifiable public interest arguably reduces the public interest standard that licensees must demonstrate in order to justify an invasion of privacy. The word identifiable suggests that the public interest at stake must be closely associated with the circumstances of the case. While the Code of Practice 2010 provision would benefit from the addition of the word clear which is used in the ACMA Guidelines ( clear and identifiable public interest ), the current formulation at least to some extent implies that the public interest at stake is one that is generally recognised as, or easily argued as being, a public interest. It also assists in encouraging the weighing of privacy and public interest elements before gathering of the material, or at least before broadcast. However, even with the word identifiable, the requirement for an identifiable public interest is arguably too broad to be a satisfactory justification for an invasion of privacy. The protection of privacy is itself in the public interest and therefore the invasion of a person s privacy should only be permitted where, in the circumstances, it is justified in the public interest. As the ACMA (and the case law) recognises, not all matters that interest the public are in the public interest. The expression in the public interest (as used in current clause ) is to be preferred to a public interest reason etc as it helps to make this distinction. Other useful aspects of the ACMA s Guidelines are: 5

6 Whether something is in the public interest will depend on all the circumstances, including whether a matter is capable of affecting the community at large so that citizens might be legitimately interested in or concerned about what is going on. Any material that invades a person s privacy in the public interest must directly or indirectly contribute to the public s capacity to assess an issue of importance to the public, and its knowledge and understanding of the overall subject. It should be proportionate and relevant to those issues, and not disclose peripheral facts or be excessively prolonged, detailed or salacious. The Australian Press Council has also recently revised the privacy clause in its Statement of Principles and the applicable Explanatory Note in order to better balance the protection of privacy and the importance of free expression, as follows: 5. Avoid intruding on a person s reasonable expectations of privacy, unless doing so is sufficiently in the public interest. Sufficiently in the public interest : The necessary level of justification in the public interest is proportionate to the gravity of the potential breach of the Principles. Relevant factors to consider may include, for example, the importance in the public interest of: a) ensuring everyone has genuine freedom of expression and access to reliable information; b) protecting and enhancing independent and vigorous media; public safety and health; due administration of justice and government, personal privacy, and national security; c) exposing or preventing crime, dishonesty and serious misconduct or incompetence (especially by public figures). The CLC recommends that further consideration be given to how the public interest requirement should be expressed, but as a minimum, the expression public interest reason etc should be replaced with either clear and identifiable public interest or clearly and identifiably in the public interest. Implicit consent In both versions of the code there are two exceptions to the requirement not to use private material: where there is a public interest reason (see above) and where there is consent. Clause of Code of Practice 2010 says: a licensee will not be in breach of this clause if the consent of the person (or in the case of a child, the child s parent or guardian) is obtained prior to broadcast of the material. There are two aspects in which proposed clause 3.4.1(b) in Code of Practice 2015 weakens the current requirements on licensees: 1. consent can now be implicit as well as explicit (currently there is no reference to implicit consent, only to consent ); 2. there is no longer any requirement for consent to be obtained prior to broadcast of the material. The CLC agrees that in some circumstances consent can be implied and notes the examples provided in the ACMA Guidelines (where someone is a willing participant in an interview or where they actively draw attention to material that might otherwise be considered private). However, as the ACMA indicates, the consent needs to be informed consent voluntarily given by a (legally) competent person with an understanding of the matters agreed to. The person needs to have a reasonable understanding of the circumstances in which the material will be used. This could include knowledge that the network may use the person s comments and reactions on its websites and social media as well as in the program itself and that the material might be used repeatedly on this and other programs. A person s understanding of such arrangements, and whether their consent is informed, will be much more difficult to establish if the broadcaster does not explicitly explain them and obtain consent. Of course, the circumstances surrounding the use of private information are much wider than interviews. On the current drafting, it appears a broadcaster could obtain private information about a person, publish it without consent, and rely upon the person s failure to complain or respond to an or telephone call as implied consent. Accordingly, the CLC recommends the proposed changes to the Code be deleted. If Free TV wishes to include a reference to implied consent, it should be accompanied by a provision explaining the need for 6

7 consent to be informed consent, and it should specifically exclude situations involving children or vulnerable people. In addition, consent must be given before broadcast. Children The additional provision in Code of Practice 2010 ( ) requiring special care to be exercised in relation to children and for consent to be obtained in some cases has been removed. This clause covers reports on sensitive matters involving a child s personal and private affairs, but it also covers matters that were not strictly private matters, i.e. they could be the subject of public information but need to be handled sensitively: The consent of a parent or guardian should be obtained before naming or visually identifying a child in a report on a criminal matter involving a child or a member of a child s immediate family, or a report which discloses sensitive information concerning the health or welfare of a child, unless there are exceptional circumstances or an identifiable public interest reason not to do so. The CLC recommends existing clause be reinstated and the first limb (requiring special care in sensitive matters involving personal or private affairs) be extended to cover vulnerable people as well as children. Appropriately, there is a requirement in current 3.2.1(d) for a licensee to exercise sensitivity in material featuring bereaved relatives or people who have witnessed or survived a traumatic incident. But there is no like protection for children or vulnerable people, even when their private affairs are the subject of a report. There is no justification for the removal of , particularly as the current clause does not act as a prohibition on such material special care could simply mean the de-identification of a child through pixellation or some other means. The CLC also recommends the reinstatement of the second limb, requiring consent of a parent or guardian before identification in reports on criminal matters or reports disclosing sensitive information concerning the health or welfare of a child. As the ACMA notes in its Privacy Guidelines, parental consent on its own will not always be sufficient, and special care is required in some cases. However, this part of does provide an important protection in situations where there could be serious harm, and the provision already includes an exemption for exceptional circumstances or an identifiable public interest reason. It is difficult to imagine any circumstances where a report which does not qualify as exceptional circumstances or in the public interest could reasonably include sensitive health information about a child without at least obtaining the consent of a parent or guardian. Under Code of Practice 2015, no consent would be required if there is a public interest reason for the material to be broadcast. In summary, the removal of both limbs of existing clause and the addition of clause (which says material publicly available is not private information) mean that the rules relating to protection of children are seriously weakened. The CLC recommends these proposed changes be abandoned. News updates, news flashes and promotions for news and current affairs programs Under Code of Practice 2010, news updates and news flashes are currently subject to specific rules requiring factual material to be accurate and viewpoints represented fairly; for news to be presented fairly and impartially; and for factual material to be clearly distinguished from commentary and analysis (4.3.1, and 4.4.2). The provisions relating to privacy, avoidance of public panic etc also apply. Under Code of Practice 2010 promotions for news and current affairs programs are also subject to a requirement for accuracy and fairness, having regard to brevity and the circumstances at the time, although they are not required to represent all aspects or viewpoints (4.5). Code of Practice 2015 reduces the obligations on licensees as follows: 1. News updates, news flashes and promotions are now only required to comply with the various rules to the extent practicable, taking into account the additional consideration of brevity (3.1.3). The CLC recommends this change be reversed. No reason has been offered for the lessening of the current requirements. This material can still cause harm if it is inaccurate or unfair. Some of this material is designed to attract viewers to later news programs. Understandably, it may feature the most newsworthy aspects of a story, without the context of the full report, and the risks may therefore be greater. No one has suggested 7

8 updates, flashes and promotions should not contain such material, but equally, there is no reasonable case for them to be exempt from requirements of accuracy and fairness. Other provisions Under Code of Practice 2015, a requirement for news programs to clearly distinguish factual material from commentary and analysis (3.3.6) is unchanged. Similarly, clauses dealing with suicide (3.2.1(c)), bereaved relatives and witnesses (3.2.1(d)), and warnings before seriously distressing or offensive material (3.2.1(a) and (b)) are essentially the same, although an explicit reference to images of dead or seriously wounded people (current clause 4.3.3) has been removed. Licensee obligations have been reduced by the removal of the following provisions: 4.3 In broadcasting news and current affairs programs, licensees: must not present material in a manner that creates public panic; should avoid unfairly identifying a single person or business when commenting on the behaviour of a group of persons or businesses; when commenting on the behaviour of a group of persons or businesses, it is not unfair to correctly identify an individual person or business as part of that group if; the licensee can be reasonably satisfied that the individual person or business engages in that behaviour; or the licensee discloses that the individual person or business does not engage in that behaviour must take all reasonable steps to ensure that murder or accident victims are not identified directly or, where practicable, indirectly before their immediate families are notified by the authorities; must not portray any person or group of persons in a negative light by placing gratuitous emphasis on age, colour, gender, national or ethnic origin, physical or mental disability, race, religion or sexual preference. Nevertheless, where it is in the public interest, licensees may report events and broadcast comments in which such matters are raised; The CLC objects to the removal of these provisions. While public panic might seldom, if ever, have been witnessed, the avoidance of reports which might provoke such a reaction is a marker of the standards of professional media. In an environment where much of social media in particular does not subscribe to industry standards, maintaining provisions of this kind in the Code for commercial television serves a useful purpose. Current clause embodies an important principle of particular application to current affairs programs that an individual who is a member of a larger class should not be unfairly targeted as representing all of that class. The CLC recommends that the head clause (4.3.7) should be reinstated and the exceptions laid out in sub-clauses should be deleted. The exceptions seriously undermine the principle and licensees have a sufficient safeguard in itself: it is permissible to identify a single person when commenting on the group, but unfairly doing so will be a breach of the Code. Identification of murder or accident victims before immediate families are notified by authorities is also an important principle embodied in the standards of practice of most professional media. Again, licensees already have safeguards in that they must only take all reasonable steps (i.e. they must not ensure they do so) and indirect identification is to be avoided where practicable. Similarly, avoiding gratuitous emphasis on age, race etc is a common feature of journalism standards of practice and should be maintained, especially given the express permission given for such commentary where it is in public interest. 8

9 OTHER CHANGES THAT MIGHT AFFECT NEWS AND CURRENT AFFAIRS PROGRAMS Public interest Generally, the words used to describe reporting matters that are in the public interest have changed. References to an identifiable public interest purpose, an identifiable public interest reason, and a matter of identifiable public interest have become a public interest purpose, a public interest reason and a matter of public interest. This point is noted in relation to the privacy provisions, above, but it applies more generally to the news and current affairs section. As indicated above, the CLC recommends that further consideration be given to how the public interest requirement should be expressed, but as a minimum, the expression public interest reason etc should be replaced with either clear and identifiable public interest or clearly and identifiably in the public interest. This formulation provides better protection to people who might be affected by news and current affairs reports. It also better positions the Code as a guide in the gathering and presentation of news and current affairs, rather than simply as a tool in retrospectively assessing performance. Matters not constituting a breach of the Code Section 1.13 in Code of Practice 2015 reproduces section 1.5 in Code of Practice 2010 which establishes a licensee will not be in breach of the Code in certain situations. Section 1.5 is currently part of a section in Code of Practice 2010 titled Compliance with Code and includes two other sections, 1.6 and 1.7. In Code of Practice 2015, section 1.5 is included in the first section of the Code titled, Application. The provisions of both versions of the Code, with one exception, appear to apply to news and current affairs programs as well as to other programs. This can assumed from the wording of current clause 1.7 which specifically states that clause does not apply to news the obligation to remedy failures under that clause is replaced by the obligation to correct errors of fact under Sections in Code of Practice 2010 are as follows: 1.5 Licensees must seek to comply fully with the Code, but a failure to comply will not be a breach of the Code if that failure was due to: a reasonable mistake; reasonable reliance on information supplied by another person; an act or failure to act of another person, or an accident or some other cause beyond the licensee s control, provided that the licensee took reasonable precautions and exercised due diligence to avoid the failure; an act or failure to act which, in all the circumstances, was clearly peripheral or incidental, and unlikely to offend or materially mislead viewers. 1.6 Where it is possible to remedy a failure to comply with the Code resulting from one or more of the circumstances in Clause 1.5, licensees must do so promptly. 1.7 To avoid doubt, Clause 1.6 does not apply to errors of fact in news and current affairs programs, which are subject to Clause The first two aspects of 1.5 are unchanged in Code of Practice Current clauses and have been replaced with 1.1.3(d) and 1.1.3(c), while a new clause 1.1.3(e) has been added. The new provisions are as follows: (c) the broadcast of material which was accidental, peripheral or incidental; (d) an act or failure to act of another person which was outside of the licensee s control, or an accident or technical/engineering issue or some other cause beyond the licensee s control; or (e) any other minor or trivial matter. Sections 1.6 and 1.7 do not appear in Code of Practice These changes to the current Compliance with Code section reduce licensee obligations by broadening the scope of the exemptions, as follows: 9

10 1. The exemption relating to incidental or peripheral material has been expanded to include accidental material. 2. To gain the benefit of the exemption in Code of Practice 2010, a licensees currently needs to demonstrate both that the material is incidental and peripheral and that it was unlikely to offend or materially mislead viewers. The second requirement has been removed from Code of Practice The scope of the exemption relating to matters beyond the licensee s control has been significantly widened by the removal of the requirement for it to demonstrate it took reasonable precautions and exercised due diligence. 4. A new exemption covering any other minor or trivial matter has been added. 5. The removal of clause 1.6 means there is no longer a requirement to promptly remedy a failure to comply with the Code, where it is possible. In addition, the class of matters covered by that exemption now includes a technical/engineering issue, although this may already have been covered by the more general aspect of the provision. As these provisions apply to news and current affairs programs, it would be possible for licensees to rely on failures of third parties, the occurrence of accidents etc to remove the obligations relating to accuracy and fairness. This may well be appropriate in a number of circumstances anticipated by the section. However, the CLC considers the general exemption for reasonable reliance by the licensee on information supplied by another person should NOT apply to news and current affairs. Actions of a licensee which have some effect on accuracy, fairness, protection of privacy etc should be assessed under the specific standards applying to those programs. Breaches should not be excused on grounds more appropriately applied to engineering failures, program supply arrangements etc. Further, the CLC considers it reasonable for a licensee to continue to be required to demonstrate, at least in cases where there is some significant effect, that it took reasonable precautions and exercised due diligence to avoid the failure. In fact, the CLC recommends this requirement apply to any situation where the licensee seeks to rely on this clause to avoid breach of the Code, other than in the case of trivial matters. The CLC has no objection to accidental material being added to the exemption relating to peripheral or incidental material, but recommends the reinstatement of the current requirement to demonstrate that the material was unlikely to offend [or seriously offend ] or materially mislead viewers. The element of likelihood in the Code of Practice 2010 version gives the licensee reasonable protection, while also protecting viewers against breaches which were avoidable because they were reasonable foreseeable. The scope is further narrowed by the requirement that the content materially mislead viewers, and the CLC would support an amendment to require that the material seriously offend. Finally, the CLC recommends the reinstatement of the requirement in current clause 1.6 to promptly remedy the breach. There is already a safeguard provided to the licensee in that it is only required to do this where it is possible. While the comments above are made specifically in relation to the treatment under Code of Practice 2015 of news and current affairs, in the case of section 1.1.3, the comments should be taken as applying generally to all content. Proscribed material Categories of material that must not be broadcast Section 2.5 in Code of Practice 2015 picks up one of several matters described as proscribed material in current clause 1.9 and renames it material not suitable for broadcast. This section concerns material which is likely in all the circumstances to provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons because of the age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference of the person or group of people. Code of Practice 2015 reduces licensee obligations in relation to this clause as follows: 1. Clause dealing with intense dislike etc on the basis of age, race etc now only applies where a licensee knowingly broadcasts the material. 2. The provoking or perpetuating of the intense dislike etc must be in regard to a reasonable person. 3. Code of Practice 2015 removes the licensee obligation to not broadcast material which is likely in all the circumstances to simulate news or events in such a way as to mislead or alarm viewers (1.9.1). 10

11 4. Code of Practice 2015 removes the licensee obligation to not broadcast material which is likely in all the circumstances to depict the actual process of putting a subject into a hypnotic state (1.9.2) 5. Code of Practice 2015 removes the licensee obligation to not broadcast material which is likely in all the circumstances to be designed to induce a hypnotic state in viewers (1.9.3). 6. Code of Practice 2015 removes the licensee obligation to not broadcast material which is likely in all the circumstances to use or involve any technique which attempts to convey information to the viewer by transmitting messages below or near the threshold of normal awareness (1.9.4). 7. Code of Practice 2015 removes the licensee obligation to not broadcast material which is likely in all the circumstances to seriously offend the cultural sensitivities of Aboriginal and Torres Strait Islander people or of ethnic groups or racial groups in the Australian community (1.9.5). 8. Code of Practice 2015 removes the licensee obligation to not broadcast material which is likely in all the circumstances to present participants in reality television programs in a highly demeaning or highly exploitative manner (1.9.7). The comments below and in relation to the exemptions apply specifically to news and current affairs, but also to other material. The CLC supports the insertion of a reasonable person test in but opposes the insertion of knowingly. The Code outlines standards of practice applying to commercial television. It rightly nominates aspects over which licensees take responsibility and in relation to which they make decisions about programs, content, guests etc. The transmission of the kind of material covered by is a matter over which licensees should continue to take responsibility, with the test applying to the effect on viewers, not the knowledge of the licensee. The addition of a reasonable person test should assist in the practicable application of the section, and in any event, it is subject to very wide exemptions in 1.10/ Similarly, the CLC considers that the requirement in concerning cultural sensitivities should be retained. It only applies to material which seriously offend and, as with 1.9.6/2.5.2, it is subject to wide exemptions. The CLC would support some streamlining of the other protections in 1.9.1, 1.9.2, and by replacing the current provisions with a clause which was designed to prevent the broadcast of material likely to harm, deceive or seriously mislead viewers. The CLC is aware that was inserted into the Code some years ago following an investigation by the ACMA. If the Authority is of the view that the section is no longer required, the CLC would have no objection to its removal. Exemptions Section 1.10 in Code of Practice 2010 and section in Code of Practice 2015 set out the circumstances in which the material proscribed in section 1.9/2.5.2 will not be a breach of the Code. The exemptions are wide and cover conduct in good faith: in an artistic work (the examples of a comedy or satire program are given) (2.5.3(a)); in material on academic, scientific or artistic matters in a broadcast with a public interest purpose (2.5.3(b)); in a broadcast such as a news or current affairs report or comment on a matter of public interest (2.5.3(c)). Under Code of Practice 2015 licensee obligations are reduced in the following respects: A requirement that the conduct is done reasonably as well as in good faith has been removed from the first two provisions. As noted above, references to an identifiable public interest purpose and a matter of identifiable public interest have become a public interest purpose and a matter of public interest. In addition, under in Code of Practice 2015, the conduct (presumably, the making of the statement likely to provoke serious contempt etc, rather than the broadcasting of the program by the licensee) must be said or done in good faith for any of the exemptions to apply. A good faith requirement already applies to the first two exemptions in 1.10 under Code of Practice 2010, but not to the third. Under the third exemption (2.5.3(c), which includes a report or comment in a news or current affairs program), the report 11

12 itself is no longer required to be a fair report or fair comment, just a report of, or comment on, a matter of public interest. The CLC opposes the removal of the requirement in proposed 2.5.3(a) and (b) for the conduct to be done reasonably as well as in good faith. The scope of the exemptions is already wide, and the clause deals with the treatment of harmful material. It is appropriate that a test of reasonableness, rather than the more easily satisfied in good faith is applied. Comments on the use of public interest purpose etc are provided above. The CLC also recommends the concept of fairness in fair report and fair comment be retained and the provision strengthened by replacing these terms with fair and accurate report and fair and accurate comment. In section /2.5.3(c), the conduct to be considered is that of the licensee in broadcasting the report, not the person making the statement. The change proposed by Free TV reduces the editorial responsibility of the licensee for the impact of the program, provided the person making the statement was acting in good faith. It is appropriate that the more objective and easily applied test of fair and accurate report/comment be used in relation to the report itself. ADVERTISING AND DISCLOSURE OF COMMERCIAL AGREEMENTS CODE SECTION 5 (ADVERTISING LIMITS) CODE SECTION 4 (DISCLOSURE OF COMMERCIAL AGREEMENTS) CODE SECTION 2 (CLASSIFICATION AND PROSCRIBED MATERIAL) CODE SECTION 6 (ADVERTISING RESTRICTIONS) Distinguishing program and non-program content Sections 1.16 and 1.17 of Code of Practice 2010 deal with commercials, community service announcement, program promotions and station promotion, whether they occur between programs in a commercial break within a program as a visual or audio superimposition over a program. The Code requires this material to be readily distinguishable by viewers from program material. Section 1.18 of Code of Practice 2010 deals with other paid content, requiring it to be distinguishable from other program material, either because it is clearly promoting a product or service, or because of labelling or some other form of differentiation. Code of Practice 2015 reduces licensee obligations as follows: 1. The requirement that commercials, CSAs and promotions be readily distinguishable from program material has been removed. 2. The requirement that other paid content be distinguishable from program material has been removed. It should be noted there is a provision in two of the AANA codes of practice (the Food and Beverages: Advertising and Marketing Communications Code, and the Code for Marketing and Advertising Communications to Children) which require commercial content to be distinguished from program content in some limited situations. The Free TV Code of Practice 2015 does refer to these codes in section 5.7.1; however, the clause only includes an expectation of compliance with the AANA codes and the expectation is not placed on licensees, but on advertisers who are not bound by the Free TV Code. Licensees are required under Children s Television Standards 28 to ensure that during C periods advertisements and sponsorship announcements are clearly distinguishable as such to child viewer, but this requirement is clearly of very limited application. The CLC strongly objects to the removal of provisions in Code of Practice 2010 which require commercial content to be distinguishable from program or editorial content. This requirement should be a foundation of professional media content, especially but not exclusively, news and current affairs. The CLC encourages innovation in presentation of commercial content, but considers there should also be a public interest protection against the potential for viewers to be misled or even deceived. The AANA codes only loosely refer to the principle that program and non-program matter should be distinguishable from one another and are inadequate as a substitute for obligations in the Commercial Television Industry Code of Practice. 12

13 A general requirement for the distinguishing of all program and non-program matter has existed in regulation in one form or another since the inception of television in the 1950s. Given the likely evolution of native advertising online, product placement and other surreptitious advertising and sponsorship practices, it is even more important to include this requirement in the standards of practice which apply to the commercial television industry. Disclosure of commercial agreements The requirements for disclosure of commercial agreements have been significantly reduced in Code of Practice 2015, as follows: 1. The categories of agreements and programs to which the rules apply have been narrowed. 2. The need for disclosure to be made during the program itself has been removed. Categories of agreements and programs the disclosure rules apply to The requirements under Code of Practice 2010 for the disclosure of commercial arrangements apply to factual programs, namely current affairs, documentary programs and infotainment programs. A commercial arrangement is defined in section of Code of Practice 2010 as: an agreement or arrangement under which a licensee, an independent producer or a presenter agrees with a third party to endorse or feature the third party s products or services in a factual program in exchange for consideration. For the avoidance of doubt, the free provision of a product or service for review is not a commercial arrangement. A commercial arrangement is defined in section 8 of Code of Practice 2015 as: an arrangement under which a licensee, or a presenter employed by a licensee, agrees with a third party to endorse or feature the third party s products or services in a Factual Program in return for payment or other valuable consideration. Under Code of Practice 2010 the following obligations apply: 1.20: If a licensee enters into a commercial arrangement in relation to a factual program, and the third party s products or services are endorsed or featured in the program, the licensee must disclose the existence of that commercial arrangement. 1.21: A licensee will require each presenter it employs to appear in a factual program to inform the licensee of any commercial arrangement under which the presenter agrees to endorse or feature a third party s products or services in the program : If a presenter informs the licensee of the existence of such a commercial arrangement and the presenter endorses or features the third party s products or services in the program, the licensee must disclose the existence of that commercial arrangement. 1.22: If a licensee commissions the production of a factual program by an independent producer, the licensee will require that, if the independent producer (or any presenter employed by the independent producer to appear in the program) enters into a commercial arrangement in relation to the program, and the third party s products or services are endorsed or featured in the program, the independent producer must disclose the existence of that commercial arrangement. Under Code of Practice 2015, only the following obligation applies: 4.1.1: If a factual program endorses or features a third party s products or services in accordance with a Commercial Arrangement, the licensee must bring this to the attention of viewers in accordance with clause Under Code of Practice 2015 there is also an express exemption for the provision of products and services at no charge, including for the purposes of review. The CLC notes that in no longer requiring licensees to require employed presenters to inform them of their commercial agreements, Code of Practice 2015 is risking the development of a culture that developed in the commercial radio industry prior to the Commercial Radio Inquiry. 13

14 However, the CLC s main objection to the proposed changes is that the omission of 1.22 and the restricted definition of commercial arrangement mean licensees will no longer need to disclose arrangements between independent production companies and other parties. Contractual arrangements are a matter for licensees, but to a viewer there is no difference between being misled by a licensee s employee or by an independent producer. Section 1.22 should be reinstated. The CLC also recommends the disclosure rules apply to all presenters, guests and talent, regardless of whether they are employed by the licensee. It is the licensee s responsibility to inquire into such arrangements and to take steps to disclose any interests to viewers. In addition, CLC strongly recommends that the disclosure requirements be applied to news programs as well as the categories of program covered by factual program. In fact, CLC recommends the disclosure rules be applied to all program types, where the licensee either produces or commissions the content. Viewers are entitled to know when statements about products or services endorsed or promoted in a program might be motivated by a commercial arrangement between the supplier and the broadcaster or its employees and contractors. Method of disclosure Code of Practice 2010 imposes the following requirements relating to the method of disclosure: 1.23: A disclosure required by this clause must be made either during the program or in the credits of the program and should adequately bring the existence of any such commercial arrangement to the attention of viewers in a way that is readily understandable to a reasonable person. Under in Code of Practice 2015, a disclosure may be made in one or more of the following ways: (a) during the Factual Program; or (b) in the closing credits of the Factual Program; or; (c) in a Billboard appearing directly before, during or after the Factual Program; or (d) on the official website of the Factual Program; or (e) on the licensee s website; or (f) any other way that adequately brings the arrangement to the attention of viewers. These changes reduce licensee obligations in two respects: 1. They remove the requirement to feature the disclosure in the program itself (whether on-screen, as a voiceover, or in the credits). 2. They remove the requirement applying to each act of disclosure that it adequately bring the agreement to the attention of viewers. These requirements are significantly weaker than those imposed by Code of Practice The CLC strongly objects to the suggestion that notification on a website in any way constitutes effective and adequate disclosure to the viewers of a program broadcast on television. The proposed changes should be discarded and the provisions of existing section 1.23 reinstated. Program promotions Section 3 of Code of Practice 2010 requires: 3.1.1: No program classified higher than PG is promoted in programs directed mainly to children; 3.1.2: Higher classified programs are only to be promoted elsewhere in the G and PG viewing periods if the excerpts shown comply in every respect with the classification criteria of those viewing periods. (Section 3 then goes on with prescriptive rules re. the placement of program promotions in certain time periods and classifications). Code of Practice 2015 Code removes these obligations, with requiring in effect that program promotions do not have a higher classification than the program in which they appear. 14