investig… · web viewa social message about the option of continuing an unwanted pregnancy even...

Investigation report no. BI-231Summary

Licensee Network Ten (Perth) Pty Limited

Station TEN

Type of service Commercial -— television

Name of program Advertisement for the ‘notbornyet’ campaign by Emily’s Voice

Date of broadcast 7 September 2016

Relevant legislation Schedule 2 of the Broadcasting Services Act 1992

Date finalised 22 February 2017

Decision Breach of subclause 4(2) [identification of certain political matter] Breach of paragraph 7(1)(j) [comply with subclause 4(2)]

BackgroundIn September 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 170 of the Broadcasting Services Act 1992 (the BSA) into the broadcast of an advertisement for the ‘notbornyet’ campaign by the organisation Emily’s Voice (the advertisement).

The advertisement was broadcast on TEN by Network Ten (Perth) Pty Limited (the licensee) on 7 September 2016 at approximately 5.15 pm.

The ACMA received a complaint alleging that there was a failure to broadcast the required particulars immediately following the broadcast of political matter, namely the advertisement.

The ACMA has investigated the licensee’s compliance with subclause 4(2) of Schedule 2 to the BSA, which requires a licensee to cause the announcement of the required particulars immediately after broadcasting political matter at the request of another person, in a form approved in writing by the ACMA. Compliance with this provision is a licence condition (paragraph 7(1)(j) of Schedule 2 to the BSA).

The advertisementThe advertisement is 30 seconds long and is part of the ‘notbornyet’ campaign by the organisation Emily’s Voice.

A detailed description of the advertisement is at Attachment A.

Assessment and submissionsWhen assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone, images and any inferences that may be drawn. This is assessed according to the understanding of an ‘ordinary reasonable’ viewer.

Australian courts have considered an ‘ordinary reasonable’ viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.1

Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the legislation.

This investigation has taken into account the complaint (at Attachment B) and submissions from the broadcaster (at Attachment C). Other sources are identified in this report where relevant.

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

ACMA Investigation report – Advertisement for the ‘notbornyet’ campaign by Emily’s Voice broadcast on TEN on 7 September 2016 2 of 22

Issue: Identification of political matter

Relevant legislation Schedule 2 to the BSA: Standard conditions

4 Identification of certain political matter

(2) If a broadcaster broadcasts political matter at the request of another person, the broadcaster must, immediately afterwards, cause the required particulars in relation to the matter to be announced in a form approved in writing by the ACMA.

Clause 1 provides definitions of ‘person’, ‘political matter’ and ‘required particulars’:

person includes a political party, a corporation and any other association (whether incorporated or unincorporated).

political matter means any political matter, including the policy launch of a political party.

required particulars, in relation to a political matter that is broadcast, means:

(a) if the broadcasting was authorised by a political party:

(i) the name of the political party; and

(ii) the town, city or suburb in which the principal office of the political party is situated; and

(iii) the name of the natural person responsible for giving effect to the authorisation; and

(b) if the broadcasting of the political matter was authorised by a person other than a political party:

(i) the name of the person who authorised the broadcasting of the political matter; and

(ii) the town, city or suburb in which the person lives or, if the person is a corporation or association, in which the principal office of the person is situated; and

(c) the name of every speaker who, either in person or by means of a sound recording device, delivers an address or makes a statement that forms part of that matter.

7 Conditions of commercial television broadcasting licenses

(1) Each commercial television broadcasting licence is subject to the following conditions:

[…]

(j) the licensee will comply with the requirements of clauses 3, 3A, 4, 5 and 6;

[…]

FindingThe licensee breached subclause 4(2) of Schedule 2 to the BSA with respect to the broadcast of the advertisement and, as a consequence, breached the licence condition at paragraph 7(1)(j) of Schedule 2 to the BSA.


ReasonsIn assessing compliance with subclause 4(2) of Schedule 2, the ACMA considers:

Was the advertisement political matter?

If so, was it broadcast at the request of another person?

If so, did the licensee cause the required particulars to be announced immediately afterwards in the form approved by the ACMA?

The complainant submitted:

An advertisement, by the organisation Emily's Voice … primarily contained advertising or content about political issues … did not include an announcement of certain particulars in a form approved by the ACMA.

The licensee submitted:

[…] the commercial was not approved within, or closely surrounding, an election period (federal or state). There was no political or significant public debate surrounding pro-life or pro-choice issues at the time the advertisement was reviewed and classified.

Furthermore, the advertisement did not purport to persuade viewers to vote a certain way or actively campaign for a certain cause. There was no reference within the advertisement to ‘pro-life’ causes. Rather, the commercial is very mild in nature and focused on a ‘family man’ who was ‘coping just fine’ with having a large family. The only call to action was to visit the website, ‘notbornyet.com’.

[…]

Network Ten contends that [the] assessment [prior to broadcast] was correct and the circumstances were also applicable to the date and time of broadcast. That is, the broadcast did not occur within, or closely surrounding, a federal or WA state election. There was no political or significant public debate surrounding pro-life or pro-choice issues at the time the advertisement was broadcast. The advertisement itself made no reference to pro-life or pro-choice issues.

In response to the ACMA’s preliminary report, the licensee further submitted:

The Advertisement […] did not participate in the political process or attempt to influence or comment upon that process. The Advertisement did not engage with, or allude to, any specific issue of a political nature with regard to abortion.

[…]

There was no engagement or advocacy about abortion law or regulation or in fact any mention of that issue.

[…]

The most obvious reading of the Advertisement's message was that a couple, despite their trepidations, elected to go through with the unexpected pregnancy and were happy they did so. There was no negative theme around terminating the pregnancy.

[…]

The Advertisement may be attempting to influence individual behaviour rather than any political process because there is no political process to influence.

[…]


The Advertisement did not suggest that expectant parents should continue with a pregnancy. Rather, the Advertisement indicated that even in challenging circumstances, parents have the option to continue with a pregnancy and this may lead to a positive outcome. We strongly submit that this did not constitute an attempt to participate in or influence or even comment upon a political process, the administration of government, or any individual participating in that process.

[…]

An expression of an opinion on the possible conduct of individuals within the current legal framework is not a political matter unless it also suggests that the framework should or should not be changed. The Advertisement made no case for the change or maintenance of the existing framework.

[…]

Campaigns encouraging certain social or health behaviours are not automatically political. There are many circumstances where a discussion around pregnancy termination is not in any way political. Advising couples or women on the options available when confronted with an unplanned pregnancy is not and should not be seen as inherently political.

[…]

There was no public or political discussion regarding abortion and no proposed abortion regulation at the time of CAD’s classification and broadcast by TEN, unlike poker machine gambling policy and regulation. The Advertisement did not attempt to inform or influence viewers about abortion regulation.

[…]

Was the advertisement ‘political matter’?

In determining whether or not material that has been broadcast is political matter, the ACMA has regard to:

the context surrounding the broadcast the content of the broadcast the overall presentation of the material including the tone, style and emphasis; and the nature and style of any accompanying audio or visual material. 2

‘Political matter' is defined in clause 1 of Schedule 2 very broadly to mean ‘any political matter, including the policy launch of a political party’. What is or is not political matter is an objective test and must be determined on a case by case basis. In some cases, the balance can be a fine one.

Some matters broadcast will obviously be political matter, for example a broadcast designed to affect how a person will vote in an election. However, it is not necessary for material to explicitly promote a particular political party, political candidate or party policy for it to be political matter.

Subclause 4(2) is also not restricted to material broadcast during federal or state election periods or to times of significant public debate on certain issues. Even when advertisements are broadcast outside an election period or are not on behalf of a political party, they may still be political matter and be required to be ‘tagged’.

It may be sufficient for material to be political matter if it seeks to persuade the audience to a particular political point of view, even where there is no current proposal to change the law about the issue. It may also be enough if the broadcast of the matter is likely, directly or indirectly, to influence the audience about a political issue, regardless of the intention of the

2 See ACMA Investigation 2686 (NRL First Preliminary Final broadcast by TCN9 on 23 September 2011).


person requesting that the matter be broadcast. It is also not essential that the approach be express, rather than indirect, for the broadcast to be political matter.

The intention of subclause 4(2) is that, in the course of political debate, listeners and viewers are informed about who is trying to persuade them to think or to act in response to political matter. Hence, subclause 4(2) applies so that the audience knows the name of the person trying to influence them and whether the advertiser belongs to a political party or some other group. This disclosure ensures people authorising this type of material are accountable for the material broadcast.

Context surrounding the broadcast

The man in the advertisement advises viewers to visit ‘notbornyet.com’, which is the website for the ‘notbornyet’ media campaign by the organisation Emily’s Voice.3 The ‘notbornyet’ website features ‘real stories’ about people who have continued with pregnancies and includes information about risks associated with abortion as well as refuting arguments in favour of abortion. As such, it has a focus that opposes abortion.

The licensee submitted that the relevant material is the matter broadcast rather than extraneous material. The ACMA considers that the advertisement’s invitation to visit ‘notbornyet’ conveys to the ordinary reasonable viewer that they should pursue a particular point of view about which they can learn more by visiting the website.

The licensee submitted that the advertisement was broadcast at the direction of the organisation, Emily’s Voice. The advertisement refers to Emily’s Voice via an on-screen logo. Emily’s Voice states on its website that its vision is:

To be an organisation responsible for significantly reducing the abortion rate in Australia without shaming and condemning women, regardless of the choice they make.4

Emily’s Voice encourages Australian citizens to ‘vote for political candidates who value the unborn’,5 and the Emily’s Voice website emphasises its goal of changing community views on abortion:

Galaxy polls last weekend [August 2014] in Tasmania and in February 2012 in Toowoomba showed a total of 47,000 people said they were now more opposed to abortion as a direct result of the truthful and hopeful advertising campaigns.6

The ACMA notes that Free TV’s Commercial Advice Division (CAD) advises that:

It is usually advertising by Government, lobby groups and other interest groups that will require consideration under the political matter provisions of the BSA.

[…]

Under certain circumstances advocacy advertising by lobby and other interest groups may fall within the political matter provisions of Schedule 2 […]

The ACMA considers that Emily’s Voice is an interest group, being a group of people that seek to influence public policy on the basis of a particular common interest or concern, and that it seeks to do this through its media campaign, ‘notbornyet’.

3 http://notbornyet.com/about/ accessed on 24 October 2016.4 https://emilysvoice.com/about-emilys-voice/mission/ accessed 11 January 2017.5 https://emilysvoice.com/get-involved/movement-for-life/ accessed 25 October 2016.6 https://emilysvoice.com/support-for-abortion-falls-in-response-to-emilys-voice-campaigns/ accessed 25 October

2016.


https://emilysvoice.com/support-for-abortion-falls-in-response-to-emilys-voice-campaigns/

https://emilysvoice.com/get-involved/movement-for-life/

https://emilysvoice.com/about-emilys-voice/mission/

http://notbornyet.com/about/

The subject of abortion is a contentious political issue, with many in the community holding strong opposing views on the subject. It is an issue that raises questions about rights and has a strong political dimension.

The regulation of abortion is an ongoing issue of public debate in Australia. It is the subject of state and territory legislation. In some states it is a criminal offence, subject to exceptions, and in others it is a legal, on demand service, available in the earlier stages of pregnancy.

The licensee submitted that there was no public or political discussion regarding abortion and no proposed abortion regulation in Western Australia, the state in which the advertisement was broadcast, or at the federal level at the time of CAD’s classification and its broadcast in September 2016.

It is not necessary that there currently be a high level of public discourse at a government level about a matter for it to meet the threshold of political matter. However, in this case, abortion law was a topic of law reform discussion in Australia at the time of broadcast.

On 17 August 2016, a bill was introduced into the Queensland Parliament relating to the timing of abortions and reasons for which the procedures can be performed in Queensland.7 This bill was referred to a parliamentary committee which is due to report on 17 February 2017.8 Similarly, on 11 August 2016, a bill was introduced in the Parliament of New South Wales relating to the repeal of offences for abortion9 and the bill was referred to a legislation review committee.

Abortion remains a political issue in Western Australia, as demonstrated by a march on the Western Australian Parliament House in May 2016.10 It is apparent that abortion law was and is an issue of ongoing and significant debate in the Australian community.

The licensee submitted that an expression of an opinion as to the possible conduct of individuals is not political matter unless it also suggests whether or not the surrounding framework should be changed. The ACMA takes the view that it is not necessary for there to be an explicit call to change the legal framework within a broadcast for it to fall within the meaning of political matter.

The content of the broadcast

The advertisement features a man wearing ‘hi-vis’ work attire. He is sitting in his utility vehicle and speaking directly to the camera as he recalls the circumstances of his wife’s first pregnancy and says, ‘I can remember thinking, how are we going to cope?’ He exits the vehicle and enters his family home.

The advertisement continues with the man and his seven children in the family kitchen/living room. As he holds a newborn baby, the man says, ‘I reckon, I’ve coped just fine’. At the same time, the words ‘I coped … you can too’ appear as on-screen text.

The advertisement concludes with the man standing in a kitchen, surrounded by his family as they each hold up what appear to be ultrasound images of human foetuses. The man tells viewers to ‘visit notbornyet.com’. The Emily’s Voice logo and the text ‘notbornyet.com’ are then superimposed in the lower half of the screen.

7 https://www.parliament.qld.gov.au/work-of-committees/committees/HCDSDFVPC/inquiries/current-inquiries/18-HealthAbortion

8 Health (Abortion Law Reform) Amendment Bill 2016 https://www.parliament.qld.gov.au/work-of-committees/inquiries

9 Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016 https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=2919

10 http://www.therecord.com.au/news/local/record-crowd-makes-stand-at-pro-life-march-and-rally/ accessed 18 January 2017.


http://www.therecord.com.au/news/local/record-crowd-makes-stand-at-pro-life-march-and-rally/

https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=2919

https://www.parliament.qld.gov.au/work-of-committees/inquiries

https://www.parliament.qld.gov.au/work-of-committees/committees/HCDSDFVPC/inquiries/current-inquiries/18-HealthAbortion

https://www.parliament.qld.gov.au/work-of-committees/committees/HCDSDFVPC/inquiries/current-inquiries/18-HealthAbortion

Although the political message of the advertisement is subtle, and it does not mention the term abortion, the ACMA considers that the ordinary reasonable viewer would perceive the advertisement to have an anti-abortion message.

The overall presentation of the material including the tone, style and emphasis

The advertisement presents raising children as a desirable life choice, even when a pregnancy is unplanned. Although abortion is not directly mentioned, there is an emphasis in the advertisement on continuing with an unplanned pregnancy.

The advertisement does not promote a product, a service, a business entity, an industry group or a particular religion, nor does it ask viewers to make charitable donations; rather, it promotes a particular point of view.

While the advertisement has a social dimension regarding individual health choices, the ACMA considers that it goes beyond providing information about the man’s personal story and the message of support for continuing with an unwanted pregnancy even in difficult circumstances. It is attempting to influence the viewpoints of viewers. The text onscreen ‘I coped … you can too’ and the call from the man to ‘visit notbornyet.com’ encourages viewers to get more information about the issue of abortion which is raised indirectly in the advertisement. Together with the use of ultrasound images, these elements signal to the ordinary reasonable viewer that the advertisement is intended to influence viewers to accept a particular view on abortion.

The licensee submitted that the advertisement may be attempting to influence the behaviour of individuals who may find themselves in an unplanned pregnancy rather than a political process. The ACMA considers that the effect of the advertisement is to seek to influence public opinion about abortion and to invite the audience to engage with the view of abortion that is held by Emily’s Voice.

Nature and style of accompanying audio and visual material

The ACMA is of the view that the use of multiple human foetal ultrasound images creates a strong visual association between the advertisement’s message and the issue of abortion. Such imagery is commonly used as part of public campaigns opposing abortion and advocating laws to restrict or prevent the availability of abortion.

The ordinary reasonable viewer would understand, including from the use of the ultrasound images in the advertisement, that the advertisement promotes a particular view of unplanned pregnancy that opposes abortion as an option.

Conclusion

Taking the broadcast as a whole, the advertisement may be characterised as attempting to influence public opinion on the formulation of public policy about abortion as part of the political process, in conjunction with a social message about the option of continuing an unwanted pregnancy even in difficult circumstances.

The ACMA is of the view that a key purpose of the advertisement was to promote the aims and objectives of Emily’s Voice and to change people’s views about abortion, and as a consequence, build a broader constituency that opposes abortion in a contemporary context in which the laws about abortion continue to be actively debated in Australia. For this reason, there are strong political dimensions to the advertisement.


The ACMA considers that if, as here, a broadcast is likely to, directly or indirectly, affect a person’s opinion on a matter of political controversy it is political matter and falls within subclause 4(2).

For these reasons, the ACMA finds that the advertisement constitutes ‘political matter’ for the purposes of subclause 4(2) of Schedule 2 to the BSA.

If so, was the political matter broadcast at the request of another person?

The material was broadcast at the request of the organisation Emily’s Voice.

If so, did the licensee cause the required particulars to be announced immediately afterwards in the form approved by the ACMA?

The ACMA’s approved form for broadcasting the required particulars immediately following the television broadcast of political matter, is a spoken announcement accompanied by images or words.11

It is not in dispute that the required particulars were not broadcast by the licensee. That is, the licensee did not broadcast any of the following required particulars in the approved form:

the name of the person who authorised the broadcasting of the political matter

the town, city or suburb in which the person lives or, if the person is a corporation or association, in which the principal office of the person is situated

the name of every speaker who, either in person or by means of a sound recording device, delivers an address or makes a statement that forms part of that matter.

Although ‘notbornyet’ and Emily’s Voice were identified in onscreen text during the advertisement, the required particulars were not broadcast immediately after the advertisement in the approved form, as required by subclause 4(2).

Accordingly, the licensee breached subclause 4(2) of Schedule 2 to the BSA and consequently also breached the licence condition set out in paragraph 7(1)(j) of Schedule 2 to the BSA, which requires compliance with the subclause.

11 http://www.acma.gov.au/theACMA/political-matter-tv-content-regulation-i-acma


http://www.acma.gov.au/theACMA/political-matter-tv-content-regulation-i-acma

THIS PAGE IS INTENTIONALLY BLANK


Attachment ATranscript of advertisement for the ‘notbornyet’ campaign by Emily’s Voice broadcast on TEN on 7 September 2016

Main character appears to be a middle aged Australian. He is dressed in ‘hi-vis’ work attire. Throughout the advertisement he speaks directly to the camera.

VISUAL AUDIO

ON-SCREEN

TEXT

1.Medium close up of the man as he sits in the driver’s seat of his utility vehicle. Shot from inside the vehicle.

We were only married four weeks, and my wife told me she was pregnant with our first child.

2.

Medium close up of the man as he exits the driver’s seat of his utility vehicle and opens the back door of the car to retrieve his bag. Shot from outside the vehicle.

I was your typical bloke. A bit slow to grow up and I avoided commitment.

3. Close up of the man closing the rear door of the car before he starts to walk off screen.

We didn’t have a cracker between us.

4.

Medium long shot of the man walking away from his vehicle and towards the camera. He is holding his bag and flannel jacket.

I can remember thinking ‘How are we going to cope?’

Facing fatherhood?

5.

Close up of the man’s work boots as he walks past the camera. The camera pans back to show his body as he walks up some stairs to a front door.

6.

Close up of the face of a young girl, approximately 3 years old, looking at something in front of her before looking up and smiling at something off camera.

Well, 17 years later,

7. Close up head shot of the man speaking directly to the camera.


VISUAL AUDIO

ON-SCREEN

TEXT

I coped…you can too

8.

Long shot of approximately eight people ranging in age to include teenage and young children interacting as a family in a kitchen/family room. The man is in the middle holding a newborn baby who is asleep in his arms.

we’ve just had our seventh child

9.

Close up head shot of the man talking directly to the camera before he looks down. The camera pans down to show he is looking at a newborn baby asleep in his arms.

and I reckon, I’ve coped just fine.

10.Midshot of three family members (2 daughters and a son) sitting at a table laughing and colouring-in.

11.

Mid shot of the man and two older daughters sitting at a table. One daughter is reading a book, the other is holding the newborn baby as they all laugh together.

12.

Medium close up of a girl, approximately 3 years of age holding a human foetal ultrasound image towards the camera. Another girl, approximately 6 years of age smiles next to her.

Visit notbornyet.com Emily’s Voice notbornyet.com

13.

The man stands in the middle of eight family members. Everyone is smiling as they each hold human foetal ultrasound images out towards the camera.


Attachment B

Complaint to the ACMA dated 7 September 2016:

An advertisement, by the organisation Emily's Voice, ABN 42 127 890 055, which primarily contained advertising or content about political issues or issues of public interest, did not include an announcement of certain particulars in a form approved by the ACMA.


Attachment C

Licensee submission to the ACMA dated 27 September 2016:

Comments on compliance with the BSA

[…]

The advertiser, Emily’s Voice, booked an advertising campaign with the licensee for broadcast from 30 August 2016 to 17 September 2016, featuring more than one commercial. This campaign included the broadcast of the commercial, subtitled Gavin’s Story […] at the date and time in question.

The commercial was broadcast without any particulars such as the name and details of the person or party authorising the broadcast (commonly known as the ‘tag’). The commercial was broadcast ‘at the request of’ another ‘person’, namely Emily’s Voice.

Issue: Whether the licensee broadcast political matter

In approving and classifying the commercial for broadcast, [it was] considered that the commercial did not constitute political matter and hence was not required to be ‘tagged’.

[T]he commercial was not approved within, or closely surrounding, an election period (federal or state). There was no political or significant public debate surrounding prolife or pro-choice issues at the time the advertisement was reviewed and classified.

Furthermore, the advertisement did not purport to persuade viewers to vote a certain way or actively campaign for a certain cause. There was no reference within the advertisement to ‘pro-life’ causes. Rather, the commercial is very mild in nature and focused on a ‘family man’ who was ‘coping just fine’ with having a large family. The only call to action was to visit the website, ‘notbornyet.com’.

According to the website, Emily's Voice seeks culture change through truthful, hopeful and sensitive media campaigns linked to the Notbornyet website where people can learn more about life-related issues, and find out where to get practical help.

Network Ten contends that [the] assessment [prior to broadcast] was correct and the circumstances were also applicable to the date and time of broadcast. That is, the broadcast did not occur within, or closely surrounding, a federal or WA state election. There was no political or significant public debate surrounding pro-life or pro-choice issues at the time the advertisement was broadcast.

The advertisement itself made no reference to pro-life or pro-choice issues. Hence we submit that the material broadcast did not, in these particular circumstances, constitute ‘political matter’ for purposes of subclause 4(2) of Schedule 2 to the BSA. As such, the licensee did not need to follow the broadcast of the material with the ‘particulars’ required under subclause 4(2) of Schedule 2 to the BSA and therefore did not breach the licence condition at paragraph 7(1)(j) of Schedule 2 to the BSA.


Licensee further submission to the ACMA dated 22 December 2016:

What is political matter?

‘Political matter' is defined in the BSA to mean "any political matter, including the policy launch of a political party."12

In the Preliminary Report, the ACMA also stated that "any matter broadcast that advocates a certain point of view with regard to government and its policies, or political parties and their policies, will very likely fall within the definition of political matter regardless of when it was broadcast." The former Australian Broadcasting Authority (ABA) Guidelines for the broadcasting of political matter contained a nearly identical statement.13 We submit that the Advertisement cannot be characterised as advocating a view in relation to the WA or Federal Government policies on abortion or the policies of other political parties.

We note another significant statement in the ABA Guidelines, to which the ACMA did not refer in the Preliminary Report, was:

To be political matter, the matter broadcast must, when viewed objectively, be capable of being properly characterised as participation in the political process or an attempt to influence or comment upon that process, the administration of government or those who participate in these activities.14

TEN agrees with this articulation of the distinguishing characteristics of political matter. It takes a practical view of what 'politics' entails to create a clear and ascertainable description of what 'matter' is 'political'. Further, TEN supports the contention that the relevant material to be assessed is "the matter broadcast" rather than some extraneous material.

An example of where the ACMA has considered and applied the distinction between political matter and other social commentary can be found in Investigation Report No. 2844. In that matter, the ACMA considered the following radio advertisement, which was placed by the NSW Minerals Council:

This is Ben. And he helps employ everyone in this Baulkham Hills conveyor belt factory. He also employs accountants and environmental experts and all of these Alexandria-based hydraulic engineers.

That’s because Ben is a miner. Which means his hard work is helping to create thousands of jobs for people in Sydney. New South Wales miners. World-class miners.15

The broadcaster was the subject of a complaint that the advertisement did not include the required particulars under subclause 4(2) of Schedule 2 to the BSA.

The ACMA found that although the broadcast of this material "took place in a context which included active political campaigns, on the part of environmental and farming groups, against the expansion of the New South Wales mining industry", the material did not constitute 'political matter' because "the material itself did not engage with, or allude to, any specific issue of a political nature raised in these campaigns."16 With respect, that decision is correct. There was no allusion to political participation or action of any kind in that broadcast, and those factors are a practical and reasonable basis on which to identify political matter.

12 Broadcasting Services Act 1992 (Cth), Schedule 2, clause 1.13 See Australian Broadcasting Authority, Guidelines for the broadcasting of political matter, 17 June 2004, page 5.14 See ABA Guidelines page 5.15 See ACMA Investigation 2844 (advertisement broadcast by 2UUS on 27 June 2012), page 2.16 ACMA Investigation 2844, page 4.


The ACMA used similar language in a relatively recent finding that a Godfrey's Vacuum Cleaners advertisement had not breached subclause 4(2) of Schedule 2 to the BSA because it had not "participated in the political process as it did not engage with, or allude to, any specific issue of a political nature or discuss any political process or political matter."17

We submit the Advertisement likewise did not participate in the political process or attempt to influence or comment upon that process. The Advertisement did not engage with, or allude to, any specific issue of a political nature with regard to abortion, as outlined in further detail below. The Advertisement conveyed the message that women and couples have the option to continue with an unplanned pregnancy, even in difficult circumstances and this can be a positive option.

Was the Advertisement 'political matter'?

In the Preliminary Report, the ACMA noted that in the past it has answered the question as to whether or not material constituted political matter with regard to:

• the content of the broadcast; • the overall presentation of the material including the tone, style and emphasis;• the nature and style of any accompanying audio or visual material; and• the context surrounding the broadcast.

TEN notes that the above factors appear to be of the ACMA's own devising and not mandated under any legislative instrument. These four factors were also articulated in the ABA Guidelines. The first three points of the ACMA's scope of inquiry focussed on the material broadcast.

The content of the Advertisement itself

The Preliminary Report described the content of the Advertisement, being a man arriving home and stating that despite initial trepidation he is 'coping just fine' with having a large family, before a final shot of that family holding foetal ultrasound images and a call to visit the website 'notbornyet.com'.

We submit the content of the Advertisement itself yielded very little basis for the Preliminary Finding. There was no engagement or advocacy about abortion law or regulation or in fact any mention of that issue. It would appear that the ACMA shared this view as it made no comment beyond describing the Advertisement.

The overall presentation of the material including the tone, style and emphasis

The ACMA's total analysis of the "overall presentation of the material including the tone, style and emphasis" comprised the following sentence:

From the overall presentation of the advertisement and its positive tone, with an emphasis on the traditional family unit and having children, the ordinary reasonable viewer would understand that the advertisement was promoting a particular view on abortion.

If the ACMA meant to suggest that the content of the Advertisement expressly or inferentially participated in a political discussion around abortion, then it should state that and provide clear reasons. Nor do we consider that there was an ‘emphasis’ on the traditional family unit. The most obvious reading of the Advertisement's message was that a couple, despite their trepidations, elected to go through with the unexpected pregnancy and were happy they did so. There was no negative theme around terminating the pregnancy. The Preliminary Report

17 See ACMA Investigation 3086 (Godfrey's Vacuum Cleaners Advertisement broadcast by TCN9 on 13 May 2013).


did not draw a clear link between that statement and any supposed participation in public policy debate around the legality or availability of abortions.

Clearly it is possible to extol the virtues of the mining industry in the context of active political campaigns both for and against its economic and environmental consequences without engaging with or alluding to any specific issue of a political nature raised in those campaigns. It must also therefore be possible to make the statement that carrying on with an unexpected pregnancy, rather than (by implication) terminating the pregnancy can lead to rewarding outcomes, without engaging with the political or legislative dimensions of the issue of abortion, however “inherently political” that issue may or may not be. The Advertisement may be attempting to influence individual behaviour rather than any political process because there is no political process to influence.

Nature and style of accompanying audio and visual material

The Preliminary Report concluded its consideration of the third point, the "nature and style of accompanying audio and visual material", with the statement:

Although there is not an express reference to abortion in the advertisement, the issue is alluded to as the ultrasound images create an association with pregnancy, and along with the remaining images and vocals, suggest that expecting parents should continue with pregnancy.

That is the total of the Preliminary Report's identification of any imputed position the Advertisement might disclose on the issue of abortion. The Advertisement did not suggest that expectant parents should continue with a pregnancy. Rather, the Advertisement indicated that even in challenging circumstances, parents have the option to continue with a pregnancy and this may lead to a positive outcome. We strongly submit that this did not constitute an attempt to participate in or influence or even comment upon a political process, the administration of government, or any individual participating in that process.

The ACMA acknowledged that the Advertisement did not contain any express statement about abortion. To the extent there was any view indirectly communicated, it was only by showing a positive outcome for a family who continued with an unexpected pregnancy.

An expression of an opinion on the possible conduct of individuals within the current legal framework is not a political matter unless it also suggests that the framework should or should not be changed. The Advertisement made no case for the change or maintenance of the existing framework.

The context surrounding the broadcast of the Advertisement

This factor deals with circumstances beyond the broadcast. The Preliminary Report's only reference to the material appearing at the URL 'notbornyet.com', was the statement that it was the website for the 'notbornyet' media campaign by the organisation Emily's Voice. The notbornyet.com website states:

Notbornyet is the campaign website of Emily’s Voice, a not-for-profit charity started to help Australians fall in love with the unborn, and encourage and support women with an unplanned or crisis pregnancy.

The logo for Emily’s Voice was also displayed in the Advertisement. The ACMA stated in the Preliminary Report that, “According to the Emily’s Voice website, which Gavin encourages the viewer to visit…”.

This description of the Advertisement is factually incorrect as Gavin did not encourage viewers to visit the Emily’s Voice website at any point. As the ACMA described in the


Preliminary Report, the Advertisement closed with Gavin saying, “visit notbornyet.com”. The URL notbornyet.com was also visually presented. While the Emily’s Voice logo appeared, there was no verbal reference to Emily’s Voice and no visual or verbal reference to emilysvoice.com. Nor are there any links at notbornyet.com to emilysvoice.com. Viewers were directed to notbornyet.com.

TEN is concerned that the Preliminary Report relied on this inaccurate description of the Advertisement to bring in the material available at www.emilysvoice.com, including its stated objective: "To be an organisation responsible for significantly reducing the abortion rate in Australia without shaming and condemning women, regardless of the choice they make".

We note the ABA Guidelines state that “The intent of the person requesting that the matter be broadcast will not usually be a relevant consideration.” This was also expressed by the ACMA in Investigation Report No. 2253 with regards to the television series, Going Bush, funded by Forestry Tasmania. Yet the Preliminary Report sought to highlight the objective and other statements found at emilysvoice.com. Regardless, neither the aim stated by the ACMA nor the content of the Advertisement disclose any actual or intended engagement with the political process.

Unless it is simply impossible for Emily's Voice to request the broadcast of any advertisement without that advertisement constituting 'political matter', in TEN's submission the context the ACMA cites in the Report did not elevate the meaning of the Advertisement to a political engagement of any kind. In Investigation Report No. 2844, the ACMA found that the NSW Minerals Council, a highly politically-engaged industry group, made an a-political statement on the value of mining, in the context of significant public debate on that very topic. It must therefore be possible for an organisation like Emily's Voice which has no active political engagement to make a similarly neutral statement that a woman or couple might find it rewarding to have a child which she or they did not plan on having. In other words, the identity of an organisation making a statement does not automatically make that statement 'political matter'.

The ACMA stated that on emilysvoice.com, the organisation encourages Australian citizens to ‘vote for political candidates who value the unborn’. When TEN attempted to access the link specified by the ACMA, the page could not be found. Nonetheless, this ‘context’ is so remote to the broadcast itself that in TEN's view it cannot reasonably be considered to inform the question as to whether the content of the Advertisement is political matter.

In support of the Preliminary Finding, the ACMA also referred to the fact that abortion is subject to regulation, including criminal regulation, across Australia, gave a brief summary of regulations affecting the accessibility of abortions in Western Australia, and predicted that any future legislative proposals or amendments relating to abortion would likely be highly controversial and contested. It concluded, “The ACMA is of the view that, in contemporary Australia, the issue of abortion is inherently a political matter.”

Ten is very concerned about the introduction by the ACMA of the concept that a subject matter or issue can be categorised as inherently a political matter.

We note that in Investigation Report No. 2171, the ACMA stated:

ACMA is of the view that on an objective assessment, the subject matter of this advertisement was inherently political as it concerned the application of a new Government policy, namely the First Home Owners Boost.18

That advertisement’s subject matter dealt with a very specific government policy that had formed part of an economic security strategy announced by the Prime Minister and Treasurer

18 See ACMA Investigation 2171 (Political matter broadcast by 2KM from 5-14 November 2009), page 6.


a few months earlier. This is quite different to the circumstances in this investigation where the ACMA is applying this concept to a broad issue or subject.

In particular Ten is concerned as to how the ACMA will determine which topics or issues fall into the category of being inherently political because there is no guidance in the Preliminary Report.

It cannot be on the basis of whether an issue is regulated or not or whether an issue has ever been the subject of a political process or debate because almost any issue falls within this scope.

The very fact that regulations exist around pregnancy terminations does not render the topic inherently political. Regulations exist around almost all medical procedures and almost every topic or subject matter can become political, particularly in the area of reproduction, childbirth and child rearing. There is an ongoing debate and public discussion around the rate of caesarean section births in Australia and whether it is too high. In this debate there are calls for various policy changes to achieve a lower rate or ensure mothers are making informed choices. Clearly any future legislative proposals or amendments on this issue would be highly controversial and contested. Does the ACMA therefore consider that topic is inherently political? Breastfeeding is another topic of debate and discussion with regulations and laws prescribing where mothers can and cannot breastfeed and active debate around whether mothers should breastfeed or bottle feed. Is breastfeeding or child nutrition an inherently political issue? TEN contests that while all of these topics could become political matter, none of them could be called inherently political and neither can pregnancy termination.

Campaigns encouraging certain social or health behaviours are not automatically political. There are many circumstances where a discussion around pregnancy termination is not in any way political. Advising couples or women on the options available when confronted with an unplanned pregnancy is not and should not be seen as inherently political.

This is why we have the additional guidance of when something goes beyond being contentious or controversial and becomes political.

Again, TEN submits the Advertisement simply did not engage in the political dimension of the issue. It is not a political matter to state that if a woman or couple faced with an unexpected pregnancy choose to continue with the pregnancy, support is available and the experience is potentially rewarding. Nor, as stated previously, is there any political discussion in the broadcast licence area in question. The Advertisement simply did not engage in any political process or Government / political party policy about the regulations affecting the accessibility of abortions to which the ACMA refers.

If the Advertisement had advocated changes to the WA abortion regulations articulated by the ACMA, then we would agree that it would constitute political matter. Or if the Advertisement advocated a position in relation to proposed changes to abortion regulation by the WA Government or other political parties or interest groups. However, this was clearly not the case.

Further, while TEN accepts the ACMA's position that 'political matter' is not restricted to election periods or times of significant public debate, there is currently no political or public debate concerning the regulatory or policy framework for abortions, nor is any major political party advocating for change to that framework. That being the case, the political debates or processes in which the Advertisement could be inferred to engage are far more narrow and circumscribed, and given the fact that the Advertisement made no comment on the political or regulatory status quo as it relates to abortions, it cannot be said to be political matter engaging with the issue.


Precedents

We submit the ACMA’s Preliminary Finding is out of step with previous ACMA decisions which Commercials Advice (CAD) relied on when reviewing the Advertisement. The Advertisement and context can be readily distinguished from previous ACMA investigations regarding political matter. We have already discussed Investigation Report No. 2844 (NSW Minerals Council). In Investigation Report No. 2566 the ACMA stated:

What is or is not ‘political matter’ is a question of fact to be determined on consideration of the surrounding circumstances and on the available evidence.

On 24 February 2011, the Prime Minister announced the Government’s ‘climate change framework’, which includes a ‘carbon price mechanism’ to commence from July 2012. Since that time, the carbon tax issue has been widely debated in the media [emphasis added]. It is also noted that the Australian Liberal Party voices its opposition to the carbon price mechanism and provides resources for the public to voice their opposition on its website, such as a carbon tax petition, carbon tax living costs poster and Labor’s broken promise poster. In this regard, the delegate considers that the carbon price mechanism was a political issue at the date and time of the broadcast [emphasis added].

Whilst the announcement contained information pertaining to the ‘no carbon tax’ rally, such as the place, time and date of the rally, the delegate considers that it went beyond providing information. The delegate considers that it was not simply a promotional segment in relation to the afternoon program, as submitted by the licensee. The announcement advocated opposition to the Government’s carbon price mechanism and encouraged listeners to actively participate in such opposition by attending the ‘no carbon tax’ rally. In this regard, it sought to both inform and influence viewers. Accordingly, the delegate considers the announcement satisfies the definition of political matter.19

Clearly whether a policy is a political issue and the subject of political and public debate at the date and time of broadcast is a significant relevant factor as expressed by the ACMA. The circumstances of Investigation Report No. 2566 can be distinguished from the Advertisement in question. The Advertisement did not make any reference to a government policy, much less advocate a stance on government policy although the ACMA referred to statements on emilysvoice.com to imply a notion of advocacy. Unlike the carbon tax issue, there was no such political or public debate occurring in relation to abortion regulation in the Perth licence area at the date and time of CAD’s classification and the subsequent broadcast.

Investigation Report No. 2686 concerned remarks criticising the government’s plan to introduce mandatory pre-commitment (MPC) for poker machine gambling broadcast during coverage of an NRL match. In considering whether the licensee broadcast political matter, the ACMA stated:

MPC had been a controversial topic for several months and was the subject of a proposed Federal Government legislation. Accordingly, the ACMA considers that MPC was a political issue at the time [emphasis added]. While the material broadcast contained information…it also sought to influence viewers to oppose MPC. The ACMA therefore considers that the material in the broadcast relating to MPC constituted political matter.20

Again, the Advertisement and surrounding context can be distinguished from the Nine NRL ‘Pokies’ broadcast. There was no public or political discussion regarding abortion and no proposed abortion regulation at the time of CAD’s classification and broadcast by TEN, unlike poker machine gambling policy and regulation. The Advertisement did not attempt to inform or influence viewers about abortion regulation.

19 See ACMA Investigation 2566 (announcement broadcast by 2CC on 14 March 2011), pages 4-5.20 See ACMA Investigation 2686 (NRL First Preliminary Final broadcast by TCN9 on 23 September 2011), page 5.


In Investigation Report No. 2171, the ACMA found that the advertisement for the First Home Owners Boost was “inherently political” as it concerned the application of a new Government policy, namely the First Home Owners Boost.21 Clearly, an advertisement about applying to take up a specific new Government scheme is distinguishable from the Advertisement which made no reference to any Government policy or program.

In Investigation Report No. 2253, the ACMA stated:

However, matter that is simply promoting a product or service would not fall within the definition of political matter merely because it refers to something that is political.22

The ACMA noted, ‘the overall presentation was one of light hearted entertainment and information rather than one that would be characterised as overtly political’. Similarly, the Advertisement was light-hearted and not at all political.

In summary the precedents relied upon by CAD where ‘political matter’ was considered refer to specific government policies that were the subject of active political and public debate and the advertisements sought to both inform and influence viewers/listeners about that policy. As described above, this differs to the circumstances in the investigation before us. We submit the ACMA Preliminary Finding is inconsistent with previous Investigation Reports.

Undue Regulatory Burden

The regulatory burden implied by the ACMA’s Preliminary Finding is significant. It implies that CAD and broadcasters should not only examine the content of the broadcast but also conduct research well beyond that content into the identity, values and objectives of the person placing that advertisement and any identifiable issue. It also introduces a new concept of ‘inherently political' subject matter without giving any guidance as to how this material is to be identified.

Given that subsection 4(2)(a) of the BSA states that the Parliament intends that the ACMA regulate broadcasting services in a way that “enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services”, this cannot be an acceptable outcome.

Indeed, the breadth of the approach the ACMA adopts in making the Preliminary Finding results in the concept of 'political matter' having an indeterminate scope and introduces significant uncertainty into the meaning of 'political matter'.

Further, CAD may have to review and subsequently remove CAD numbers for thousands of advertisements that it has considered to not be ‘political matter’ previously but may now become political should the Preliminary Finding not change. In turn, licensees will have to check their systems to make sure no such advertisements are broadcast. This of course would also have a detrimental financial effect upon advertisers who have already booked media due to CAD approval and the broadcasters that are currently broadcasting the advertisements that have received CAD approval.

The role of CAD

We note that the Report made no reference to CAD, despite their integral role in this process which was outlined in TEN’s previous submission. TEN acknowledges that as the licensee it is ultimately responsible for compliance with the BSA. However, in practice CAD reviews advertisements prior to broadcast by commercial television stations for the purposes of:

21 See ACMA Investigation 2171 (Political matter broadcast by 2KM from 5-14 November 2009), page 6.22 See ACMA Investigation 2253 (Going Bush broadcast by TNT on 8, 15 and 22 February 2009), page 7.


• classifying the advertisement under the Commercial Television Industry Code of Practice;

• ensuring the advertisement includes the authorisation tag if required by the Broadcasting Services Act 1992 (Clause 4 of Part 2 of Schedule 2); and

• protecting broadcasters from liability for publishing defamatory material.

Commercial free-to-air television broadcasters then rely on the CAD clearance to comply with their regulatory obligations. This long-standing process is well understood in the industry. We request that the ACMA makes this process clear in the Report.

Conclusion

The Preliminary Report stated, “Any future legislative proposals or amendments about abortion would be a highly controversial and contested issue in the public and political domain.

The ACMA is of the view that, in contemporary Australia, the issue of abortion is inherently a political matter.” However, as the ACMA itself has previously stated, “What is or is not political matter needs to be determined on a case-by-case basis.”23

In this instance we strongly submit that the Preliminary Finding is incorrect and the Advertisement, with regard to the surrounding context, does not participate in the political process or attempt to influence or comment upon that process, the administration of government or those who participate in these activities, for the reasons outlined above.

23 See ACMA Investigation 2253 (Going Bush broadcast by TNT on 8, 15 and 22 February 2009), page 7.


investig… · web viewa social message about the option of continuing an unwanted pregnancy even...

Documents