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Investigation Report 2800

File No. ACMA 2012/602

Broadcaster TCN Channel Nine Pty Ltd

Station TCN Sydney

Type of service Commercial television broadcasting service

Name of program A Current Affair

Date of program 5 March 2012 (program) and 2-5 March 2012 (promotions)

Relevant Code Clauses 4.3.1, 4.3.5, 4.5 and 7.11 of the Commercial Television Industry Code of Practice 2010

Decision Breached clause 4.3.1 [factual accuracy]

Did not breach clause 4.3.1 [factual accuracy]

Breached clause 4.3.5 [privacy]

Did not breach clause 4.5 [factual inaccuracy in any news/current affairs promotion]

Breached clause 7.11 [complaints handling]

ACMA Investigation Report 2800 – A Current Affair – TCN Sydney – 2-5 March 2012

The complaintOn 5 April 2012, the Australian Communications and Media Authority (the ACMA) received a complaint concerning both a segment in the A Current Affair program, broadcast by TCN Channel Nine Pty Ltd, the licensee of TCN Sydney (the Licensee), and promotions broadcast by the Licensee which advertised that segment. The complainant submitted that the program was factually inaccurate, that it contained violations of his wife’s privacy and that the promotions for the program were also inaccurate.

The ACMA has considered the complaint against clauses 4.3.1 (factual accuracy), 4.5 (factual accuracy of promotions), 4.3.5 (use of material relating to a person’s personal or private affairs), and 7.11 (failure to provide a substantive written response to a complaint) of the Commercial Television Industry Code of Practice 2010 (the Code).

Matters not under investigationIn his complaint to the ACMA, the complainant (the Complainant) alleged defamation on the part of the Licensee. He also claimed that the Licensee’s reporter “stole” his wife’s driver’s licence and had not given it back, which was “against the law”.

The ACMA does not have jurisdiction to make any decisions in relation to such allegations, and accordingly these aspects of the complaint have not been investigated by the ACMA.

The Complainant also claimed that statements in relation to his children being forced to change their names breached their privacy. In his complaints to both the Licensee and the ACMA, the Complainant did not raise breaches of privacy in relation to these statements. As such, this aspect of the complaint has not been made in accordance with the Code and the ACMA has not considered it.

The programA Current Affair (the Program) is a current affairs program broadcast on weeknights at 6.30pm. On 5 March 2012, the relevant segment (the Segment) ran for over 19 minutes and reported on the alleged conduct of the Complainant, a former Australian Olympian and media figure (NB), as well as his wife (LB), (collectively, the Bs). A number of promotions for the Segment (the Promotions) were also broadcast in the three days before the Program went to air.

The Segment featured a presenter introducing the story (the Presenter), a reporter (the Reporter), interviews with a number of parties allegedly defrauded by the Bs (including GM, MN and FB) and members of NB’s estranged family. It also included an unannounced interview with NB himself in France. In addition, some archival footage of a story that the Program had run about the Bs in 2009 was included in the Segment. Footage of the Bs going about their everyday lives, apparently recorded without their knowledge, also featured.

The Promotions featured a narrator (the Narrator) and some very brief excerpts of interviews and other footage from the Segment.

A transcript of the Segment can be found at Appendix A. A transcript of the Promotions can be found at Appendix B.

ACMA Investigation Report 2800 – A Current Affair – TCN Sydney – 2-5 March 2012 2

AssessmentThe ACMA’s assessment is based on a letter of complaint and further correspondence and documentation from the Complainant to the ACMA, correspondence between the Licensee and the Bs, submissions from the Licensee to the ACMA and a copy of the Segment and the Promotions provided by the Licensee.

The statements set out at Issues 1 and 2 (below) were identified by the ACMA as falling within the scope of the Complainant’s initial complaint to the Licensee. They were sent to both the Complainant and the Licensee, who were invited to make any submissions in relation to them.

Other sources used have been identified where relevant.

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

Australian courts have considered an “ordinary, reasonable” viewer to be:

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

In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn. In assessing the accuracy of factual material which is presented, the ACMA will also consider relevant omissions (if any).

Once this test has been applied to ascertain the meaning of the material broadcast, it is for the ACMA to determine whether the material has breached the Code.

Issue 1: Presentation of factual material

Relevant Code ClauseNews and Current Affairs Programs

4.3 In broadcasting news and current affairs programs, licensees:

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

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

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


AssessmentClause 4.3.1 imposes separate obligations on licensees – where factual material is presented it must be presented accurately and where viewpoints are represented, they must be represented fairly. In assessing a licensee’s compliance with those obligations, the ACMA must first assess whether the statements complained of would have been understood by the ordinary reasonable viewer as a statement of fact or an expression of opinion or viewpoint. It is only then that the ACMA can assess whether the material was presented accurately (facts) and fairly (viewpoints), as the case may be.

The principles which the ACMA generally applies in distinguishing between a statement of fact and an expression of opinion or viewpoint are set out at Appendix C.

The Complainant’s submissions in relation to clause 4.3.1 generally can be found at Appendix D.

The Licensee’s submissions in relation to clause 4.3.1 are summarised in the body of the report (below).

Category A: Statements that are not factual materialFindingThe Licensee did not breach clause 4.3.1 of the Code in relation to the following statements.

ReasonsThe ACMA considers that the following statements were not factual material for the purposes of clause 4.3.1:

Reporter – “The gold medal Olympian turned gold medal conman.” Reporter – “[The Bs work hard] at spending other people’s money. From mums and

dads to multi-millionaires, Australian celebrities and international stars.” Reporter – “[The Bs] are currently holed up in a villa somewhere hatching their next

plan.” Reporter – “[The Bs] are currently hiding out in the south of France.” The following exchange:

o Reporter – “[LB] put on the website that [FB] is a liar and a thief.”o NB – “He is!”o Reporter – “So are you! So is she!”

Reporter – “Behind the scenes, [the Bs] were living it up, bleeding the company dry [in relation to MN’s company N].”

The ACMA considers that statements of this kind are, of their nature, emotive, hyperbolic and/or opinion. The ACMA is satisfied that, in the context of the Segment in its entirety, the ordinary reasonable viewer would not have interpreted them as statements of fact.

As these statements are not factual material, they are not subject to the accuracy requirements outlined in clause 4.3.1. The Licensee accordingly did not breach the Code in relation to them.


Category B: Factual statements - inconclusiveFindingThe Licensee did not breach clause 4.3.1 of the Code in relation to the following statements.

ReasonsThe ACMA considers that the following statements are factual material for the purposes of clause 4.3.1.

Claims in relation to MN Reporter – “[NB] targeted an unsuspecting [MN] on the Gold Coast.” MN – “[LB] was constantly manipulating the books in our business, umm... presenting

false documents, signing documents that she shouldn’t be signing...” MN – “Yeah, we had to... we had to sell our house. It’s totally changed my life.”

Claims in relation to GM

Reporter – “The snow job was elaborate and well-planned; legitimate-looking share certificates signed by director [NB] and secretary [LB] were actually counterfeit [in relation to GM’s business].”

Reporter – “Fake share certificates... [in relation to GM’s business].”

Reporter – “[GM]’s money disappeared when [LB] managed to change the bank authorisation, that required [GM] or his wife’s signature on any withdrawal form. As you can see, [LB] scribbled out that instruction on the document, then ticked the box above it, permitting her or [NB] to withdraw any amount of money they liked.”

Claims in relation to FB

Reporter – “[LB] had already started scamming [FB].”

Reporter – “This is the vehicle [LB] bought with company money as her company car [while working for FB]. Now, she was told to buy a basic Toyota Camry. But she came back to the office with this: a far more expensive designer Hummer, and it doesn’t stop there. Instead of putting it in the name of the company she worked for, she put this car in the name of a second company. But that company doesn’t even exist.”

Reporter – “There was double-invoicing. Triple-invoicing [in relation to FB’s business].”

FB – “For one week of work, [LB] charged one month. Then, she did double invoicing of her relocation package. She basically used my credit card to buy some plane tickets.”

FB – “[The Bs] used the registration number of XS Commerce, the existing company, but she just gave a different name to the Las Vegas Motor Vehicle Department.”

The ACMA is satisfied that the ordinary, reasonable viewer would have interpreted these as statements of fact. They were either factual assertions by parties interviewed in the Segment or inferences of a factual nature based on those assertions.

The ACMA must determine whether this factual material was presented accurately in the context of the Segment in its entirety, having regard to the circumstances at the time of the broadcast.


Submissions

The Complainant has submitted that the allegations of MN, GM and FB are false, but said that in order to respond fully to these allegations he would have to present a large volume of material and evidence which could not occur within the confines of his complaint.

In relation to the claims of GM, the Complainant provided a statement written and signed by Mr [KF] (KF), the former accountant of the Bs, annexing bank statements, correspondence, share allocation forms, share transfer forms, company minutes and deeds (the KF Statement).

In relation to the claims of MN, GM and FB, the Licensee submitted that it relied upon the allegations of each of those parties included in the Segment, and that the Segment was an accurate report of those allegations.

In relation to the claims of GM, the Licensee also relied on a share certificate and bank authorisation depicted in the Segment. In relation to the claims of FB, it relied on other documents including a case report, a statement of account, invoices and a letter written by carmaker BMW.

The ACMA has carefully considered the bases for the factual material broadcast, including:

The interviews with MN, GM and FB The documents referred to in the Complainant’s and the Licensee’s submissions.

The interviews

There is no contention that the claims of MN, GM and FB were not fairly represented. The ACMA is satisfied that the claims of each of these interviewees were reported as such, and that these claims were based on the interviewees’ recalled experiences and dealings with the Bs.

In the Segment, the Reporter put a number of these claims to the Complainant and he denied them.

The documents

The ACMA has considered the following documents said to support the claims variously of the interviewees or the Bs:

the KF Statement, provided by the Complainant, which provides a detailed description of a transaction carried out (ostensibly between the Bs and GM).

images of both the share certificates (the Share Certificates) and the bank authorisation document (the Bank Authorisation) relating to GM’s business, as submitted by the Licensee.

In relation to FB’s claims, a Las Vegas Metropolitan Police Department case report (the Case Report) dated 5 February 2012, detailing a claim that a female named [EG] (using the alias “[EL]”, LB’s new name (EL)) spent company money on a vehicle for herself, instead of on a vehicle for the company;

a statement of account in French, relating to an unnamed company ostensibly in the name of FB, showing a portion of December 2011’s expenses (the Statement of Account);


two invoices issued by EL and [L Luxury] (ostensibly an entity controlled by the Bs), both dated 30 November 2011, claiming expenses from [XV] (an entity ostensibly controlled by FB) (the Invoices);

a letter dated 31 December 2011 from a BMW dealership to EL confirming her purchase of a Hummer (the BMW Letter); and

a rental application (undated) ostensibly made by EL in relation to premises located in Las Vegas, with a move-in date of 15 December 2011 (the Rental Application).

The ACMA notes while the KF Statement refers to a number of the documents that featured in the transaction between the Bs and GM, it does not assist in determining whether the Share Certificate and Bank Authorisation documents shown in the Segment were genuine. Nor do the images of the Share Certificates and the Bank Authorisation that were broadcast prove that LB had acted fraudulently. There are possible alternative explanations as to why the Bank Authorisation had been amended in the manner apparent.

The submissions of both the Complainant and the Licensee in relation to the KF Statement, Share Certificates and the Bank Authorisation are, therefore, inconclusive.

The Case Report, Statements of Account, Invoices, BMW Letter and Rental Application Form do not in themselves prove the claims made in relation to FB. The Case Report does not include findings of guilt and the remaining documents do not establish that expenses and purchases were illegitimate, as there could be a number of explanations for them.

Reasons

In deciding whether factual material has been presented accurately, the ACMA does not necessarily discern the ultimate truth.

In this case, the accuracy of each of the factual statements based on the claims of MN, GB and FB is vigorously contested. This is apparent from the Segment itself which shows NB disputing or explaining the allegations put to him by the Reporter.

Having considered all the material before it, the ACMA regards none of it as conclusive of the matters in contest. Accordingly, in these particular circumstances, the ACMA must reach a non-breach finding due to the inconclusive nature of the evidence.

Claims in relation to the Bs forcing their children to change their names

Reporter – [To NB] “You’ve made your 17 year-old daughter change her name.” Reporter – “In this email, [LB], calling herself [EL], reminds her daughter [B] that her

new name is now [M], and that she must change her email account so that all future emails come from the name [M], not [B].”

The ACMA is satisfied that the ordinary, reasonable viewer would have interpreted these as statements of fact.

Submissions

The Complainant made no submission in relation to the factual accuracy of these statements.

The Licensee submitted that the allegation was put to NB during the Segment and that his denial of it also featured. It also stated that an image of the email referred to by the Reporter (the Email) was shown during the Segment.


Reasons

While the Email is shown on screen during the Segment, this footage is not determinative of whether:

NB ‘made’ his daughter change or name; or An email in those terms was actually sent.

Once again, the ACMA considers the evidence and submissions in this matter to be inconclusive. Accordingly, it finds that the Licensee did not breach clause 4.3.1 of the Code.

Statement relating to child support

Reporter - “[NB] has been able to leave Australia and change his name while owing [his son RS] an estimated 200,000 in child support.”

The ACMA is satisfied that the ordinary reasonable viewer would have interpreted the statement as one of fact.

Submissions

The Complainant submitted that the allegation was false and that correspondence from the Child Support Agency showed a zero balance owing since mid-2008.

The Licensee submitted that the statement omitted the preceding words “[RS] is one of three children estranged from their famous father. His mum [TB] is furious that...” and submitted that it was an accurate report of allegations made by NB’s ex-partner [TB] and son [RS], and the matters included in the Segment.

Reasons

The ACMA considers that the ordinary, reasonable viewer would have understood from the statement that NB had left the country and changed his name while owing the said sum.

The Complainant has provided the ACMA with a letter from the Child Support Agency, Department of Human Services (the DHS) dated 26 November 2012, stating that NB made a substantial lump sum payment on 28 March 2008 which cleared his (then) outstanding child support debt and that his DHS account balance had been $0 since that date.

The DHS letter, while relevant, excludes neither;

the possibility that NB owed child support independently of the DHS – for example, through a private agreement not registered with the DHS; nor

the possibility that, prior to 28 March 2008, NB left Australia and changed his name owing an estimated $200,000 in child support.

In the circumstances, the ACMA considers that the submissions made by both parties are inconclusive on this point, and it therefore finds the Licensee did not breach clause 4.3.1 in relation to it.

Miscellaneous claims

Reporter – “And [NB] has been telling people he writes songs for stars, like Grammy-award winner Carrie Underwood.”

Reporter – “[LB] claims celebrity house renovator Jeff Lewis from the American smash hit TV show Flipping Out has signed her up.”

The ACMA is satisfied that the ordinary reasonable viewer would have interpreted these as statements of fact. They were inferences of a factual kind.


Submissions

The Complainant offered no submissions in relation to either of these statements, other than those contained at Appendix D.

In relation to the first statement, the Licensee submitted that the allegation was accurate at the time of broadcast in light of NB’s website (http://[NL].wordpress.com/about/), and information from two sources, [SZ] and [GG], who each allege that NB told them he had written a song for Carrie Underwood.

In relation to the second statement, the Licensee submitted that “[FB] alleged to [the Licensee] that [LB] made this representation to him when he interviewed her for the job position.”

Reasons

The ACMA has reviewed the website referred to by the Licensee as substantiation for the first statement above in its submissions (the Website). The Website, headed “Songwriter”, claimed that NB (using his new name, NL (NL)) had commenced a new career “as a full time and now prolific songwriter”. There was no claim, however, that NB had penned any songs for “stars”, nor is there any mention of Carrie Underwood.

Once again, the ACMA regards the evidence and submissions of the Complainant and Licensee as inconclusive. Accordingly, it finds that the Licensee did not breach clause 4.3.1 of the Code.

Category C: Other factual statementsFindingThe Licensee breached clause 4.3.1 of the Code in relation to the following statement made by the Presenter during the Segment:

“As we go to air tonight, police in France, the United States and Australia are all investigating allegations of fraud against [the Bs]”.

ReasonsThe ACMA is satisfied that the ordinary reasonable viewer would have interpreted the statement as a statement of fact.

Submissions

The Complainant submitted the allegation was false and:

The only hint of an investigation was the material presented by [the Reporter] in the ACA program which was generated from a complaint by [the Reporter] and the ACA producers to the French police. Moreover, upon simple questioning in response to the allegations by [the Reporter], French police saw no reason to look into the matter any further.

The Licensee submitted the following:

Attachment A to this submission is a copy of a Las Vegas Metropolitan Police Department case report confirming an investigation into allegations of fraud – namely, that [LB] purchased a company car in the name of a fictitious company. [The Licensee] maintains that information available to it at the time of broadcast confirmed that [the Bs] were also the subject of the investigations by police in France and Australia.


Reasons

The ACMA considers that the statement would have conveyed to the ordinary, reasonable viewer that at the time the Segment went to air (5 March 2012), both NB and LB were under investigation for fraud by Australian, French and United States police.

The ACMA has reviewed the Case Report (mentioned above), which shows that as of 5 February 2012, a case was “active” in relation to an individual by the name of [EG], going by the alias of [EL]. It makes no mention of NB. The Licensee has accordingly produced no evidence in support of its claim that any police investigation was open in relation to NB in the United States at the time the Segment went to air.

Further, the Licensee has produced no evidence in relation to the claim that police investigations were ongoing against either of the Bs in either France or Australia.

The ACMA notes that this statement can be contrasted with those in Category 2 (above) in that those statements were essentially competing assertions, based on the accounts of individuals who had first-hand experience of the incidents in question, and who had recounted that experience during the Segment. No such first-hand accounts featured in connection to this statement.

In further submissions to the ACMA, the Licensee has said:

In France, [the Licensee] recorded [LB] being arrested and questioned by police. Further, our story shows [FB] ... making an allegation to the local police about LB committing fraud against him and his company...

In the United States, we attached [the Case Report] in our first submission, which demonstrates that LB is being ‘investigated for fraud’... Please note, [NB] was in possession of the car referred to in the attached case report and therefore the statement used in this report included both [the Bs’] names.

In Australia, the fraud squad has repeatedly confirmed they are continuing investigations into [the Bs]... in the circumstances at the time of the broadcast, [the Licensee] was informed that there was a warrant out for [NB]’s arrest relating to unpaid child support. If requested, our Producer can arrange a letter from the fraud squad confirming their investigations into [the Bs] to substantiate the statement in question...

The ACMA is not persuaded by these submissions.

The fact that the Segment shows FB detailing that he had made a formal complaint to French police in relation to LB does not constitute evidence that a French police investigation was open into her actions at the time the Segment was broadcast. Further, the Segment shows LB being arrested and interviewed by French police, before, in the words of the Reporter, she is ‘released from the police station after several hours of interrogation.’

The ACMA has seen no compelling evidence to suggest that any French police investigation into LB was ongoing at the time the Segment was broadcast. It has also seen no evidence that any French police investigation was ever opened in relation to NB.

The ACMA also considers that the Licensee’s additional submissions regarding any US police investigation into the Bs are unconvincing. While the Case Report shows that a police investigation was open into LB for fraud on 5 February 2012, it makes no mention of NB. The ACMA is not persuaded by the submission that ‘NB was in possession of the car referred to in the [Case Report] and therefore the statement used in this report included both [the Bs]’ names.’ There is no mention of NB’s name, nor of anyone the Licensee claims to be NB, in the Case Report.


The ACMA is further not persuaded by the Licensee’s submissions in relation to any Australian police investigations into the Bs. The ACMA has seen no evidence of any fraud squad investigations into the Bs referred to by the Licensee. It is noted that the Licensee has had a number of opportunities to provide such evidence but has not done so.

Accordingly, the ACMA is satisfied that the Licensee has breached clause 4.3.1 of the Code in relation to the above statement.

FindingThe Licensee did not breach clause 4.3.1 of the Code in relation to the following statement made by the Reporter during the Segment: “The stage for the arrest was set in the seaside town of Biarritz.”

ReasonsThe ACMA is satisfied that the ordinary reasonable viewer would have interpreted the statement as a statement of fact.

Submissions

The Complainant submitted there was no arrest by the French police, merely questioning in response to a complaint by the Reporter.

The Licensee submitted that the Segment includes FB confirming that he lodged a complaint with French police requesting the arrest of NB, vision of LB being taken into a French police station for interrogation, NB’s response to the effect that the car had been “wrongly reported stolen”; and the statement: “[LB] is released from the police station after several hours of interrogation”.

Reasons

The ACMA considers that the statement would have conveyed to the ordinary, reasonable viewer that preparations for a potential arrest of LB had taken place in Biarritz, France, and that those preparations had been orchestrated by FB.

The ACMA is not persuaded by the Complainant’s submission that the ordinary, reasonable viewer would have understood from this statement that LB had been arrested by French police.

The ACMA notes that pursuant to clause 4.3.1.1 of the Code, an assessment of whether factual material is accurate is to be determined in the context of the segment in its entirety. In this regard, the ACMA acknowledges the Licensee’s submission that the words “back in France, [LB] is released from the police station after several hours of interrogation” featured in the Segment, in close proximity to the statement in question. The ACMA considers that the ordinary, reasonable viewer would have understood from the inclusion of these words that LB was questioned, but not arrested, by French police.

The ACMA considers that the statement was accurate. Accordingly, the Licensee did not breach clause 4.3.1 of the Code in relation to it.


Issue 2: Presentation of factual material in promotions


4.5 In broadcasting a promotion for a news or current affairs program, a Licensee must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program promotion, and its brevity. A licensee is not required by this clause to portray all aspects or themes of a program or program segment in a program promotion, or to represent all viewpoints contained in the program or program segment.

FindingThe Licensee did not breach clause 4.5 of the Code.

ReasonsDuring the Promotions, the Narrator made the following statement in relation to NB:

“TV star, now, international conman.”

The Complainant did not make any submissions in relation to this statement, other than those found at Appendix D.

The Licensee submitted the following:

To the extent ACMA considers this to be a statement of fact, which is not conceded, [the Licensee] relies upon the allegations by persons including [MN], [GM] and [FB] as substantially included in the segment.

As with the statements falling within Category A under clause 4.3.1 (above), the ACMA considers that this would not have been understood by the ordinary, reasonable viewer as factual material.

As such, the comment is not subject to the accuracy requirements imposed by the Code, and the Licensee did not breach clause 4.5.

Issue 3: Use of material relating to personal or private affairs


4.3 In broadcasting news and current affairs programs, licensees:

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

In assessing a segment’s compliance with clause 4.3.5 of the Code, the ACMA also takes into account the ACMA’s ‘Privacy guidelines for broadcasters, 2011’ (the Privacy Guidelines).


Complainant’s submissionThe Complainant submitted that:

... I have proof that [the Reporter] personally stole my wife’s international driver’s licence from an unlocked vehicle and then featured it in her story to show my wife’s change of name. This was a severe breach of privacy showing numerous personal details including her date of birth, licence number and personal address etc...

Licensee’s submissionThe Licensee submitted that:

[The Licensee] maintains that this is clearly a circumstance where the details contained in the international driver’s licence apparently issued to [LB] under her alias related directly to an identifiable matter of public interest. The segment was a report of allegations that [the Bs] were living overseas under different names, and engaging in fraudulent activities similar to those they were alleged to have engaged in Australia. Central to those allegations was the fact that the person previously known as [“EL”] was in fact the same person previously known as [LB], and was the person in possession of a car which was alleged to have been obtained under false pretences. That fact was evidenced to viewers by the details included in the international driver’s licence.

Again for the record, [the Licensee] denies the complainants’ other allegations in relation to the relevant document.

FindingThe Licensee breached clause 4.3.5 of the Code.

ReasonsIn considering whether the Licensee has complied with clause 4.3.5 of the Code, the ACMA must determine:

> whether a person was identifiable from the broadcast material; and if so,

> whether the broadcast used material relating to a person’s personal or private affairs or which invaded a person’s privacy.

If the answer to both of the above questions is yes, then there has been a breach of clause 4.3.5 of the Code, unless there is an identifiable public interest reason for broadcasting the material.

Whether a person was identifiable from the broadcast material

The Privacy Guidelines indicate that a person is identifiable if, from the broadcast (including audio or visual material), the person’s identity is apparent or can reasonably be ascertained.

In the Segment, LB was referred to repeatedly by name, and numerous pieces of footage and images of her were broadcast. The ACMA is satisfied that LB’s identity would have been readily ascertainable from the Segment.

Whether material was used that related to a person’s personal or private affairs

During the Segment, an image of LB’s international driver’s licence was featured. The document included her name, place of birth, date of birth and residential address in France. The Licensee does not dispute this.


The ACMA has previously taken the view that a person’s residential address falls within what can be classified as an individual’s personal or private affairs.2

The ACMA is therefore satisfied that the material used in the broadcast related to LB’s personal or private affairs, in the sense contemplated by clause 4.3.5.

Whether there was an identifiable public interest reason for broadcasting the material

The broadcast of material relating to a person’s personal or private affairs will not breach the Code if there is an identifiable public interest reason for the material to be broadcast. The public interest is assessed at the time of the broadcast.

Whether something is in the public interest will depend on all the circumstances. Generally, the broadcast of such material must contribute to the public’s knowledge and understanding of the issues involved in the overall subject.3

The ACMA’s Privacy Guidelines identify a number of issues which may be in the public interest:

Public interest issues include public health and security; criminal activities; corruption; misleading the public; serious anti-social behaviour; politics; government and public administration; elections; and the conduct of corporations, businesses, trade unions and religious organisations.

The Licensee has submitted that “central to” the allegations contained in the Segment was “the fact that the person previously known as [EL] was in fact the same person previously known as [LB]”, that she had fled the country to continue participating in fraudulent activities and that “that fact was evidenced to viewers by the details included in the international driver’s licence.”

In the circumstances of this broadcast, showing the residential address of LB did not and could not contribute to the public’s knowledge and understanding of the issues canvassed. Upon viewing LB’s international driver’s licence, it is clearly of French origin which in turn suggests that LB was resident in France. The inclusion of her street address in the Segment was unnecessary.

Accordingly, there was no identifiable public interest reason for the inclusion of LB’s address.


... it is important to emphasise the fact that the image did not show her complete address to constitute a breach of privacy. Rather... a residential street is listed in French. At the time of the broadcast, LB was living in America and not at this address shown in the image...

In order to accurately explain the fraud allegations it was relevant to show the image to demonstrate LB’s name change to provide evidence that the Bs have new identities set up in different names, thus there was a public identifiable interest in showing the image.

The ACMA is not persuaded by these submissions. Whether or not the street number of LB’s address was shown, it is considered that the broadcast of the street name of her address nonetheless constitutes her ‘personal or private affairs’ for the purposes of clause 4.3.5. The fact that the address was written in French has no bearing on this issue, given that it is considered that the ordinary, reasonable viewer would have been able to ascertain that the text in question was LB’s address.

2 See Investigation Report #27733


In the circumstances and in the absence of an identifiable public interest, the ACMA considers that the Licensee has breached clause 4.3.5 of the Code.

Issue 4: Provision of a Substantive Written Response

Relevant Code ClauseTime Limits on Responses to Code Complaints

7.11 Subject to clause 7.15,4 a licensee must provide a substantive written response to a complaint that satisfies the requirements in clause 7.2.5

7.16 Where a matter raised by a complainant is or has become the subject of legal proceedings brought against the licensee by the complainant or an associated person, the licensee is not required to provide a substantive written response to the complainant in respect of that matter. If a licensee does not provide a substantive written response to a complainant in respect of a matter raised by the complainant, the licensee must:

7.16.1 acknowledge the complaint in writing as soon as practicable, but in any case no longer than 30 working days after the receipt of the complaint; and

7.16.2 inform the complainant that they may make a complaint to the ACMA about the matter.

Background

On 6 March 2012 (the day after the Segment was broadcast), the Complainant wrote a letter to the Licensee, headed “Concerns Notice”. That heading and its contents (which alleged “substantial liability on your part in defamation and in injurious falsehood” and threatened court proceedings) suggested that the substantive issue was defamation.

On 29 March 2012, the Complainant wrote two further letters to the Licensee headed “Concerns Notice” (one from NB and one from LB but otherwise identical) (the 29 March Letters). These letters refuted the contents of the Segment in its entirety and alleged breaches of the Code, specifically citing clauses 4.3.1 and 4.3.5.

On 30 March 2012, the Complainant sent a further two letters also dated 29 March 2012 to the Licensee (once again, one from NB and one from LB but otherwise identical), the contents of which were identical to the 29 March Letters other than the fact that the words “Concerns Notice” had been removed (the Complaint) and a different fax number had been substituted.

4 Clause 7.15: “If a person makes multiple Code complaints about a program or series of programs, the licensee is only obliged to respond to the first complaint, unless the subsequent complaints raise new and distinct issues.

5 Clause 7.2: The main requirements of this Section apply to any complaint about a matter covered bythe Code which:

7.2.1 is received by a licensee, or lodged in accordance with clause 7.5.3, not more than 30 days after the relevant broadcast;

7.2.2 is in the form specified in Clause 7.5, and7.2.3 identifies, in sufficient detail:

7.2.3.1 the material broadcast (including by reference, if possible, to the date and time of broadcast of the material, or in the case of a television program series, the particular episode of the series the subject of the complaint);

7.2.3.2 the nature of the complaint; and7.2.3.3 the identity of the complainant.


On 5 April 2012, the Licensee responded to the Complainant (the Licensee’s Response). It denied liability regarding any potential defamation claim in relation to the Complainant. It also stated the following:

In relation to your letter of 29 March 2012, [the Licensee] denies any breach of the Code, including without limitation each allegation that [the Licensee] failed to present factual material accurately or invaded the privacy of any person.

Given your letter of 6 March 2012 asserts itself as a Concerns Notice pursuant to the relevant legislation and indicates that you have commenced or intend to commence Court proceedings in relation to the matters complained of, in accordance with clause 7.16 of the Code, [the Licensee] is not obliged to substantively respond to the allegations contained in your letter of 29 March 2012.

Licensee’s Submissions

The Licensee’s submissions in relation to clause 7.11 of the Code can be found at Appendix E.

Finding

The Licensee breached clause 7.11 of the Code.

Reasons

The Complaint was made to the Licensee on either 29 or 30 March 2012; in either case, it was made within 30 days of the relevant broadcast (2-5 March 2012) (clause 7.2.1). It referred to the Code, including excerpts from it, and sufficiently identified the broadcast material complained of. These letters met the requirements of clauses 7.2 and 7.5 of the Code6 and accordingly constituted valid complaints to the Licensee for the purposes of the Code.

It follows that the Licensee was required under clause 7.11 of the Code to provide a substantive written response to the Complaint, (which had alleged breaches of clauses 4.3.1 and 4.3.5).

The Licensee’s Response makes it clear that it does not dispute that the Complaint was a Code complaint, referring to it as a “[complaint] pursuant to the Commercial Television Industry Code of Practice”. It did not, however, respond to the complaint that the Licensee breached clauses 4.3.1 and 4.3.5 of the Code.

The ACMA is not persuaded by the Licensee’s submissions in regard to clause 7.16 (i.e. that the Licensee was not obliged to respond due to the fact that the Complainant had sent the 6 March “Concerns Notice” letter to the Licensee). While a Concerns Notice has a particular legal status under Australian defamation law7 and the letter sent on 6 March may have

6 See above for clause 7.2. Clause 7.5 reads as follows:7.5 In this Section, a Code complaint is a complaint which satisfies clause 7.2 and which is:

7.5.1 sent by mail to the licensee; or7.5.2 sent by facsimile to the licensee’s main facsimile number; or 7.5.3 from 1 March 2010, made by lodging the electronic form on the Free TV Australia

website 3.7 See the Defamation Act 2005 (NSW), Defamation Act 2005 (Vic), the Defamation Act 2005 (Qld),

Defamation Act 2005 (WA), Defamation Act 2005 (SA), Defamation Act 2005 (Tas), Defamation Act 2006 (NT)


constituted a “Concerns Notice” for the purposes of defamation law,8 a concerns notice does not, by itself, constitute legal proceedings for the purposes of clause 7.16 of the Code.

At the time of the Complaint, no legal proceedings had been commenced, nor did the matter become the subject of legal proceedings in the period between the broadcast complained of and the date on which the complaints were responded to by the Licensee.

Accordingly, the Licensee was required to respond to the substantive issues raised in the Complaint, including responding to the allegations of breach of clauses 4.3.1, 4.3.5 and 4.5 of the Code. The Licensee has therefore breached clause 7.11 of the Code.


... as [the Licensee] considered that this was primarily a legal matter covered by defamation law, [the Licensee] could be prejudiced by providing a more detailed response in that the complainant was seeking to use the Code process as a form of pre-commencement discovery to obtain information for use in court proceedings to which he would not otherwise be entitled. For that reason, [the Licensee] does not consider this is a breach of this clause when considering clause 1.5, which states: ‘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.’

While [the Licensee] was otherwise prepared to provide a Code response, given the nature of the legal letters sent by the complainants, [the Licensee] considered it could not to do [sic]. [The Licensee’s] lawyers dealt with the letter as a Concerns Notice and a defamation claim.

The ACMA is not persuaded by the Licensee’s submission that the Licensee’s failure to provide a substantive written response was due to a ‘reasonable mistake’ pursuant to clause 1.5 of the Code. The ACMA notes that the words ‘Concerns Notice’ did not appear in the Complaint, and that this document specifically alleged breaches of the Code, going so far as to cite the individual clauses that the complainant considered to have been breached.

Accordingly, the ACMA considers that the Licensee has breached clause 7.11 of the Code.

8 For example, subsection 14(2) of the Defamation Act 2005 (NSW)


Appendix ATranscript of the Segment – A Current Affair – 5 March 2012Presenter – We begin with our international investigation into disgraced Olympic Gold Medallist [NB] and his wife [LB]. Tonight, we expose the couple’s notorious business deals that now stretch across four countries, people left out of pocket and demanding answers. Here’s [the Reporter’s name]’s exclusive report.

NB – I love Australia, I’m a proud Australian...

Commentator – [NB] for Australia...

GM – He’s not an icon. He’s not someone to look up to. He’s scum.

Commentator – Australia bring in the mean machine to another gold medal!

NB – I represented Australia proudly...

Reporter – You’re a disgrace to Australia!

Commentator – What a magnificent swim!

MN – The Australian public should really see him for what he is.

Reporter (narrated) – And tonight, Australians will.

Reporter – What a piece of work you’ve turned into!

Reporter (narrated) – As A Current Affair takes you on a roller-coaster race around the world, exposing the swimming superstar’s scandalous sins. Four countries...

GM – They’ve done Australia, they’ve done the US, they’ve done France, they’ve done the UK...

Reporter (narrated) – Dozens of victims...

SZ – It’s disgusting, it’s... you feel violated

Reporter (narrated) – Millions and millions in missing money...

Unnamed Female – They should go to prison.

Reporter (narrated) – Leaving families in Australia and overseas shattered.

MN – Hang on (crying)... stop for a sec.

Reporter (narrated) – Tonight, we infiltrate the Olympic champion’s gated hideouts in Las Vegas and the south of France, uncover his new identities secretly set up in London. This is an ambush that’s taken two weeks in travelling.

Unnamed Cameraman – All right, yep... I got ‘im.

Reporter (narrated) – An ambush [NB] never dreamed would succeed on the other side of the world.

Reporter – G’day [NB]! Or should I call you [NB’s new name] these days?

Reporter (narrated) – This time, the gold medal Olympian turned gold medal conman had nowhere to run. A new name...

Reporter – You can change your name but you can’t change your ways, can you?

Reporter (narrated) – A new country...


Reporter – Australia, the UK, America, France. Where’s your next scam gonna be?

Reporter (narrated) – A new scam.

NB – There’s no story in the (censored) truth.

Reporter (narrated) – In just minutes, [NB]’s charade of a new life came crashing down around him.

Reporter – What about all the people that you haven’t paid in Australia?

NB – Tell me! Who?

MN – He’s destroyed our lives.

Reporter (narrated) – Long after the swimming suspensions, assault charges and TV disgraces reading the news drunk on air, [NB] targeted an unsuspecting [MN] on the Gold Coast. That’s where we last exposed the swimming legend and his B-grade reality TV star wife, [LB]. This is where [NB] and [LB] are currently operating. It’s the Gold Coast’s most exclusive address, the Sovereign Islands.

MN – They’re global trotters with umm... high ambitions of... of making it to the big time.

Reporter (narrated) – Tell me how you’re affording to live the lifestyle you are.

NB – This is so... cos we work hard.

Reporter (narrated) – ... at spending other people’s money. From mums and dads to multi-millionaires.

Unnamed Male – They’d sold my shares for two million dollars.

Reporter (narrated) – Australian celebrities and international stars.

Unnamed Female – We’re talking hundreds of thousands of dollars.

MN – They’re fraudulent, they’re liars, they’re out to... deceive.

Reporter (narrated) – [MN] owned Nitro. A sports drink company that had just won the naming rights to the Gold Coast GP. It was a once in a lifetime opportunity that was shattered. Because behind the scenes, [NB] and [LB] were living it up, and bleeding the company dry.

MN – It still... still gets me! Umm... financially, it... almost ruined me. So... umm... hang on (crying). Stop for a sec.

Reporter (narrated) – [NB] spent [MN]’s money on a hand-built V8 GTS Holden.

Car Salesman - [NB]’s one has got about three and a half grand’s worth of extras.

Reporter (narrated) – Only 500 of these collector cars were ever made.

Reporter – This car is close to $100,000.

NB – [Reporter’s name]...

Reporter (narrated) – [MN] also financed [LB]’s $130,000 luxury 4-wheel drive, purchased after [car company’s name] successfully sued her in the Supreme Court, repossessing the prestige car she wouldn’t make repayments on.

Reporter – What about the boat?

Reporter (narrated) – And little did [MN] know he was also about to fund this 58-foot princess power cruiser for [NB].


Unknown – What did you say this is worth new?

Boat Salesman – About $2.2 million.

Unknown – 2.2. Ok.

MN – Yeah, we had to... we had to sell our house. It’s totally changed my life. It’s... it’s umm... it’s been a hard lesson. Really tough.

GM – [NB] brings the people in, and then [LB] actually... sticks all the... set of steak knives in.

Reporter (narrated) – [GM] and his wife lost their savings and the family home.

GM – At least two and a half million dollars plus.

Reporter (narrated) – The snow job was elaborate and well-planned; legitimate-looking share certificates signed by director [NB] and secretary [LB] were actually counterfeit.

Reporter – Fake share certificates...

NB – [Reporter’s name]...

Reporter (narrated) – [GM]’s money disappeared when [LB] managed to change the bank authorisation, that required [GM] or his wife’s signature on any withdrawal form. As you can see, [LB] scribbled out that instruction on the document, then ticked the box above it, permitting her or [NB] to withdraw any amount of money they liked.

Reporter – [LB] has altered bank documents.

NB – Never.

Reporter – She has!

NB – Absolutely not...

GM – The personal toll to me... me and my family is absolutely devastating.

MN – They’ve destroyed our lives, umm... and they’re still on the run.

Reporter (narrated) – After our last story went to air, [NB] and [LB] fled Australia. But, like a drug addict craves a regular hit, these luxury-living low-lives craved fast cash and a rich supply of it. So it’s not surprising then that we tracked them down here, to sin city.

Reporter – Who did they introduce themselves as?

SZ – [EL] and [NL].

Reporter – And they called each other those names?

SZ – [EL] and [NL], yeah!

Reporter (narrated) – Not only did they escape police and ASIC investigations when they left Australia, that’s also when they decided to escape their notorious names. Aussie swimming legend [NB] has now reinvented himself into Mr [NL], an expensive furniture designer and owner of online store [company name].

Reporter – Since when have you been an expert in luxury furniture?

NB – Well... I’ve never been an expert in luxury furniture.

Reporter – That’s what the website says. It’s... lies.

NB – It’s not necessarily lies, but...

Reporter – But it’s lies! It’s lies! It’s more lies!


NB - ... so the product is sensational.

Reporter (narrated) – He also calls himself a prolific music producer, with his own publishing company. And has been telling people he writes songs for stars, like Grammy-award winner Carrie Underwood.

Reporter – You’re a music composer now?

NB – Yeah, I’m writing songs.

Reporter – Who for?

NB – Myself!

Reporter – What about Carrie Underwood?

NB – Of course you’d love Carrie Underwood to sing one of your songs...

Reporter (narrated) – [LB] has been very creative too; she’s now Mrs [EL], claiming to be a weight-loss guru with her own diet “E-Book”. She also wants to be an international celebrity, signing up with a star-making website, begging for her fame with a strange sop-story about needing to be saved after her botched boob-job made her put on 30 kilos, but underneath all the flab, she has an amazing body. And in her spare time, she’s a furniture designer as well; in fact, she claims celebrity house renovator Jeff Lewis from the American smash hit TV show Flipping Out has signed her up.

Reporter – How well did they have their act down pat?

SZ – Oh, perfectly, because, you know, they’re using these names and the children are there...

Reporter - And what sort of parents drag their kids into their life on the run?

NB – We want a... we want a fresh life for our kids...

Reporter – You’ve had... you’ve made your 17 year-old daughter change her name...

NB – We didn’t, she wanted to!

Reporter (narrated) – In this email, [LB], calling herself [EL], reminds her daughter [B] that her new name is now [M], and that she must change her email account so that all future emails come from the name [M], not [B].

FB - They still are crooks, whether they are called [L] or [B].

Reporter (narrated) – French businessman [FB] was expanding his extreme video company into America, by opening an office in Las Vegas. And he hired [LB] to do it.

FB – She was trying to get me to set up 50 companies; one in every state in the United States, and ahh... with bank accounts going for every company. That was really fishy.

Reporter (narrated) – But what [FB] didn’t know was that [LB] had already started scamming him.

FB – For one week of work, she charged one month. Then, she did double invoicing of her relocation package. She basically used my credit card to buy some plane tickets.

Reporter (narrated) – Meanwhile, the poisonous pair were also shopping around for a massive mansion. [SZ] is [FB]’s partner.

SZ – It was a 7,000 square foot hou... not house, it’s a mansion! And it was, you know, a rental of... I think $5,000 a month.


Reporter (narrated) – It screams of the rental rort [NB] and [LB] pulled in Australia. They moved in and refused to pay tens of thousands of dollars in rent and damages on this place.

SZ – She was looking in the most expensive neighbourhoods, you know, in Las Vegas.

Reporter (narrated) – Of course, to rent their luxury mansion, they had to fill out an application. And just take a look at the litany of lies. As [EL], she claims to have been running the whole company for two years. Her salary has, incredibly, jumped to 30,000 more than the truth. She owns a $100,000 designer Porsche. The former bankrupt also answered no to ever filing for bankruptcy. She answered no to ever being evicted. And it was no again to ever wilfully refusing to pay rent.

Reporter – Have you been bankrupt? No. Have you ever not paid rent? ...

NB – Where...

Reporter – ... No. Yes, you’ve been bankrupt, yes you’ve not paid rent...

NB – Where’s that...

Reporter (narrated) – You lied on all the forms...

NB – Where’s that? Where are the forms? Show me the forms.

Reporter (narrated) – This is the vehicle [LB] bought with company money as her company car. Now, she was told to buy a basic Toyota Camry. But she came back to the office with this: a far more expensive designer Hummer, and it doesn’t stop there. Instead of putting it in the name of the company she worked for, she put this car in the name of a second company. But that company doesn’t even exist.

FB – They used the registration number of XS Commerce, the existing company, but she just gave a different name to the Las Vegas... umm... ahh... Motor Vehicle Department.

Reporter (narrated) – Have a listen to the phone recording of [LB] speaking to the Hummer salesman after [FB] sent an employee to the Las Vegas dealership to investigate.

[LB] – So what was he actually here trying to achieve?

Car Salesman – I don’t know.

LB – Was he trying to get the car changed into his name?

Reporter – Did you really think you’d take the Hummer?

NB – You know what? We just wanna try and do our best to get ahead...

Reporter (narrated) – For [FB], that was the last straw. On the internet, he found all of our previous A Current Affair stories exposing [NB] and [LB].

FB – They are just... you know, a couple of monsters. You don’t want them to come in your life.

Reporter (narrated) – A full internal investigation was launched into [LB]’s activity with company money in Las Vegas. [FB] now claims that from just the few weeks she worked there, the business is out of pocket more than $55,000.

Reporter – There was double-invoicing. Triple-invoicing.

NB – There was not!

[A series of images of various invoices and bank statements, the details of which cannot be completely made out].


GM – She claimed... ahh... flights to China, umm... reimbursement, and err... we paid it out... wrote a company cheque for her to be reimbursed and at the same time she was doing an internet transfer.

MN – [LB] was constantly manipulating the books in our business, umm... presenting false documents, signing documents that she shouldn’t be signing...

SZ – You feel so violated. Ahh... cos you take someone in, you trust them...

Reporter (narrated) – So Frenchman [FB] hatched a plan, flying [LB] over to France from Las Vegas under the guise of a work conference.

FB – I went that morning to the police station and I asked them if they could arrest her directly from the hotel. It was better to get her arrested right away.

Reporter (narrated) – The stage for the arrest was set in the seaside town of Biarritz. [FB] organised to pick up [LB] in the foyer of the Plaza Hotel. But when she arrived, it was French police who were waiting for her.

FB – [LB]! [LB] (censored)! [LB]!

SZ – I guess they allowed her to make a phone call after the interrogation... she made a phone call to [NB] telling him... I think you should return the car, because they could get you, uh... as... stealing the car.

Reporter – What about the phone call [LB] made to you from the police station in Biarritz: quick, give them back the Hummer, they’re going to report it stolen.

NB – Yeah cos I don’t want to get pulled over if the vehicle’s been wrongly reported stolen.

Reporter (narrated) – While [LB] was being held at the police station in France, this is [NB] in Las Vegas: frantically cleaning out the Hummer before US police come searching for it.

Reporter – So he gave the car back; he knew...

SZ – He gave it to ‘em.

Reporter – He knew they were in trouble.

SZ – Yeah.

Reporter (narrated) – Without his wife’s access to easy money, it seems over in Las Vegas, [NB] is pretty skint. With the Hummer having been taken from him, he’s on a push bike, and uses it to visit a pawn shop. He also puts his brand new Apple computer up for sale for less than half of what he paid for it a few weeks earlier. And here he is at the shops wanting to buy a two dollar can of beer. But he can’t scrape together two dollars in change from his pocket. He rides home and returns later to buy that single can of beer. Back in France, [LB] is released from the police station after several hours of interrogation. The investigation continues. Stripped of her job, income, mobile phone and laptop, [LB] went into damage control. She needed [NB] to leave Las Vegas and join her here in the south of France where they’re currently holed up in a villa somewhere hatching their next plan. And believe me: they’re angry, they’re desperate and they’re on the warpath.

FB – I received from her a phone call where she was threatening to reveal some confidential information about our company...

Reporter (narrated) – Just two days after she was released by police, [FB] says [LB] called him, demanding money. The phone call came from a private house three hours drive away in the village of [name of village].


FB – Requesting the amount of $50,000, which you can pretty much consider obviously is blackmail.

Reporter – So unless you gave her $50,000, she was going to tell your competitors about the company.

FB – That’s what she said on the phone.

Reporter (narrated) – Then came this letter via email. [LB] was giving [FB] two days to meet her demands. And, she wanted the Hummer.

SZ – She wants the car back, she wants uhh... money, she says it’s owed to her...

Reporter (narrated) – [FB] refused to cave in, so two weeks ago, [LB] set up this website slandering him.

Reporter – What about the new website she’s set up to defame him?

NB – What website’s that? I don’t know what you’re talking about.

Reporter (narrated) – But suddenly, [NB] did remember what I was talking about.

Reporter – She put on the website that he’s a liar and a thief.

NB – He is!

Reporter – So are you! So is she!

NB – I am not! Absolutely not!

Reporter – She said “oh, he doesn’t pay his contractors”. You don’t pay people.

NB – Rubbish!

Reporter (narrated) – The venom from this poisonous pair is now flowing thick and fast.

Voiceover (allegedly quoting from correspondence sent by NB) – We will f**k your brand in the a**s for as long and hard as you would a $10 hooker on a Friday night! I will personally make sure there is nothing left.

Reporter (narrated) – Take a look at the threatening email [NB] has just sent a former colleague.

Voiceover (allegedly quoting from correspondence sent by NB) – With my last dying breath I will do everything in my power to let people know what you c**ts are really all about, if you ever see me out and about then you better hope you see me first.

SZ – They’re... they’re vicious! They’re... they don’t care about who they hurt, who they come across, who they run over, ummm... they... they just care about themselves! They’re selfish, evil, mean people.

Reporter (narrated) – This is a warrant for the arrest of [NB]. It was drafted in 2000, when the Olympic hero failed to appear in court for not paying maintenance to his son, [RS]. But this warrant was never formalised because his family feared if they sent him to jail then all hope would be lost of him ever coming back into his little boy’s life.

Reporter – Why do you feel that your dad has to be made accountable now?

RS – Because... he’s obviously done a lot of bad things and I don’t think he’s gonna stop unless someone stops him.

Reporter (narrated) – [RS] is one of three children estranged from their famous father. His mum [TS] is furious [NB] has been able to leave Australia and change his name while owing


[RS] an estimated 200,000 in child support. She and her son believed there was a government order in place preventing him from ever fleeing the country.

TS – I remember coming across him crying in the shower... just sobbing.

Reporter – What about all your other children that you don’t see? You’ve never cared about them.

NB – It’s their choice as much as mine [Reporter’s name]...

Reporter – Do you have a message for your dad?

Rhys Strand – I don’t think he deserves a message at all.

Reporter (narrated) – [NB] and [LB] are currently hiding out in the south of France. We tracked them down to this well-gated house in the French countryside.

Reporter – Where to now?

NB – Like I’m gonna tell you where we’re going. You’ll probably end up finding us...

Reporter (narrated) – I’m waiting for the call, because the next person you scam will call me.

FB – They’re gonna scam the wrong guy, they’ll put a bullet in your head. I think that’s what’s gonna happen to them if they continue.

GM – Now we got four countries, we got an opportunity to put these people exactly where they belong: is behind bars.

MN – It’s time to pay. It’s time to pay.

NB – Oh... rubbish.

Reporter – Can that many people be wrong?

NB – You’re the biggest shit-stirrer in Australia!

Presenter – And the dogs are barking, because as we go to air tonight, police in France, the United States and Australia are all investigating allegations of fraud against [NB] and [LB].


Appendix BTranscript of the Promotions – A Current Affair – 2-5 March 2012Promotion 1

Narrator – Olympic gold medal legend.

Commentator (from archival footage of a swimming race) – And [NB] for Australia, the mean machine...

Narrator – TV star. Now, international conman.

GM – He’s not an icon. He’s scum.

Narrator – On A Current Affair, our race around the world, to expose the notorious [NB].

Reporter – You destroy people’s lives.

Narrator – His new scam so outrageous, he’s changed his name to [NL]. Now, the confrontation he never saw coming.


Narrator – Monday on A Current Affair with [the Presenter].

Promotion 2

Narrator – Olympic gold medal legend.

Commentator (from archival footage of a swimming race) – And [NB] for Australia...

Narrator – TV star. Now, international conman.


Narrator – A Current Affair tonight.


Appendix C

Principles applied by the ACMA in assessing clause 4.3.1 of the CodeIn determining whether or not a statement complained of was compliant with the Licensee’s obligation to present factual material accurately (having regard to the circumstances at the time of preparing and broadcasting the program), the ACMA generally has regard to the following considerations:

The meaning conveyed by the relevant statement is assessed according to what an ‘ordinary, reasonable listener/viewer’ would have understood the program concerned to have conveyed. Courts have considered an ordinary, reasonable listener/viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable listener does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.9

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

The primary consideration would be whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material presents as a statement of fact or an expression of opinion.

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

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

Inferences of a factual nature made from observed facts would usually still be characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be an inference of a judgmental or contestable kind.

While licensees are not required to present all factual material available to them, if the omission of some factual material means that the factual material actually broadcast is not presented accurately, that would amount to a breach of the clause.

In situations where witnesses (to an event or circumstance) give contradictory accounts and there is no objective way of verifying the material facts, the obligation for the reporter is to present factual material accurately will ordinarily require that the competing assertions of fact be presented accurately as competing assertions.

The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude

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


that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.

Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion.


Appendix D

Complainant’s submissions in relation to Issues 1 and 2 (generally)The Complainant submitted the following to the Licensee concerning clauses 4.3.1 and 4.5 of the Code:

...you have alleged, that:

i. We are guilty of fraud;ii. [The Bs] are liars and frauds;iii. We are confidence tricksters (“con artists”) and/or “ruthless scammers”;iv. We prey on unsuspecting Australians, in particular sporting personalities;v. We are “on the run”;vi. We are wanted by authorities in four countries.vii. We have been arrestedviii. We have destroyed marriagesix. We fled the country and changed our name to create scams and defraud more

people

Further to the above, the segments featured several persons claiming to have been defrauded by ourselves, including but not limited to [JF], [MN], [FB] and [GM] (“the interviewed persons”).In the articles the interviewed persons and you made further allegations, that:

i. We funnelled monies from the accounts of [company N] and [MN];ii. We went into [MN]’s business and because of our actions destroyed itiii. That parties have lost their homes because of our actionsiv. We provided forged shareholder certificates to [GM];v. [NB] owes child support and skipped the country without paying it.vi. [LB] provided faked invoices, registered a vehicle in a company name that did not

exist, unauthorised use of his credit card and was never appointed Managing Director and bought a car without permission to [FB];

vii. We provided faked shareholder certificates to [GM];viii. [NB] claimed to be a songwriter and was having Carrie Underwood record one of his

songsix. [LB] was going to be appearing on an upcoming season of Bravo TV series with

celebrity Jeff Lewis;x. [NB] has sent [the Reporter] a threatening emailxi. We left the country and changed our name in the UK for the purpose of defrauding

more unsuspecting peoplexii. That we forced our children to change their namesxiii. That we were hiding out and were on the run

There was and is no factual foundation for any of the imputations made in the segments and the broadcast thereof, therefore, is in severe breach of [the Code]...

The Complainant subsequently submitted the following to the ACMA:

The articles that were presented contained no factual foundation whatsoever for any of the imputations that were made. The imputations were extremely damaging, aggressive and reckless including but not limited to that we committed fraud, were tricksters, had forged invoices and shareholder agreements. Had altered bank documents [sic], that I owed child support, that we had ripped people off that we are wanted by authorities in 4 different countries and that we are on the run.


[...]

She also was NOT arrested by police and is NOT wanted by police in any country.

[...]

The claim was also made that we had forced our children to change their names when in fact our children have not changed their names as she claimed, [L] my 3 year old has the name he was born with [LMB] and our 17 year old daughter asked if she could change her name some 13 months after having left Australia in Sept 2010.


Appendix E

Licensee’s submissions in relation to Issue 4The Licensee submitted the following to the ACMA in relation to compliance with clause 7.11 of the Code:

[The Licensee] received a letter from [NB] dated 6 March 2012 which in express terms made clear that it was a Concerns Notice for the purposes of the Uniform Defamation Legislation, preparatory to commencing legal proceedings, and making specific allegations of defamatory imputations having been conveyed. [The Licensee] then received letters from [the Bs] of 29 March 2012, which purported to raise matters pursuant to the Code but replicated identically the matter particularised as imputations in the Concerns Notice, all of which are more properly matters addressed in defamation law and not the Code. Further, on 14 June 2012, [the Licensee] received a letter from [a law firm] (who are primarily defamation practitioners) acting for [NB], putting [the Licensee] on notice that [the law firm] was advising [the Bs] in relation to the commencement of proceedings and requiring [the Licensee] to preserve all relevant materials for use in litigation.

The substance of the Complainants’ letters of 29 March 2012 was a general allegation that “there was and is no factual foundation for any of the imputations made in the segments and broadcasts thereof”. [The Licensee]’s response of 5 April 2012 was a considered one, which acknowledged and addressed the substance of the allegations made by [the Bs] in their three letters – namely, [The Licensee] acknowledged and denied each of the complaints’ allegations that the segment contained material that was false, defamatory, criminally defamatory, malicious, negligent, factually inaccurate or invaded privacy. The response also included the particulars required by 7.14.10 In the circumstances, the fact that [the Licensee] did not address the detail of every one of the particularised imputations – particularly given the absence of any detail as to how each was alleged to be inaccurate and a failure to acknowledge the material in the segment presented in substantiation of those allegations – does not, in this instance, constitute a failure to provide a substantive response.

All correspondence from [the Licensee] to [the Bs], [their lawyers] or the ACMA would potentially be discoverable in the foreshadowed proceedings, noting that plaintiffs have 12 months from the time of publication to commence any proceedings. The defamation legislation does not require [the Licensee] to make any disclosures or provide any material to [the Bs] until such time as [the Licensee] is required to file a defence, and the circumstances in which plaintiffs may seek preliminary discovery of material or information are limited and strictly proscribed. [The Licensee] maintains that the ACMA must take into account that [the Licensee] is deprived of all such protections in the ACMA investigation process. Where a litigant has indicated a clear intention to commence proceedings and taken steps in furtherance of that intention (such as issuing a statutory Complaints Notice), there is a risk that the ACMA investigation process can be misused by plaintiffs as a substituted form of preliminary discovery or more simply a fishing expedition, to gain access to materials and information to which that plaintiff would not otherwise be entitled.

10 Clause 7.14 of the Code reads as follows: “In all cases where a complaint complies with the requirements of clause 7.2 (and does not fall within clause 7.3) a licensee’s substantive reply will also advise the Complainant that he or she may refer the matter to the ACMA if not satisfied with the licensee’s response.


An overly literal and narrow interpretation of 7.16 renders the protections afforded by that clause redundant, on the basis that the ACMA investigation process operates on a much shorter timetable than the statutory limitation period for defamation. This facilitates abuse of the process by allowing plaintiffs to “double dip” – essentially, serve a complaints notice under the legislation, then lodge an ACMA complaint (even in identical terms), wait for an ACMA investigation process to complete, during which time the defendant is forced to discover information and materials, obtain a finding, then commence proceedings for defamation with the benefit of all additional materials obtained from the ACMA process (including any finding by the ACMA, if applicable). This is evidenced in this case by the fact that the complainants’ “code complaint” is in substantively identical terms to their “Concerns Notice”.

[The Licensee] also notes that at law, defendants can prove the substantial (as opposed to literal) truth of an imputation as a complete defence to defamation, as well as proving contextual truth – which is quite different from the obligations the ACMA imposes in practice upon licensees defending investigations pursuant to 4.3.1. [The Licensee] further notes that the ACMA investigation process does not generally afford potential defendants other protections otherwise afforded to them by law, including rules of evidence, statutory interpretation and precedent.

The requirement for responses to be “substantive” must be considered on each occasion in the context of the specific circumstances of the complaint, and in light of the objectives of the Code and of 7.16. For these reasons, [the Licensee] maintains that any finding that [the Licensee]’s response to the [Bs] failed to comply with 7.11, would be manifestly unfair and inappropriate. If the ACMA does not agree, [the Licensee] further maintains that clause 7.15 properly applies in these circumstances, for the reasons set out above.


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