ACMA media release 92/2008 – 17 July

17 July 2008

Broadcast of Californication episode breached code

The Australian Communications and Media Authority has found that Network Ten (Sydney) Pty Ltd and Network Ten (Perth) Pty Ltd breached the Commercial Television Industry Code of Practice on 29 October 2007, by broadcasting an episode of Californication that was incorrectly classified MA (Mature Audience). The finding is in response to two separate complaints about sexual activity and nudity depicted in episode 10 of the series.

ACMA found that sexual activity depicted in a scene in the program was not discreetly implied or discreetly simulated (as required under the code), due to the length of the scene, the amount of detail it contained and its conceptual strength. While Network Ten advised that the program had been edited to meet the Australian classification guidelines, ACMA decided that the editing was insufficient and as a result the program was not suitable for television. The MA category comprises the strongest material that is permitted for broadcast on commercial television (apart from the Adult Violence (AV) category).

‘Network and licensee management have a collective responsibility in ensuring compliance with the code,’ said ACMA Chairman Chris Chapman.

Network Ten will be required to distribute the investigation report to its classifiers and ensure that future classification decisions are consistent with ACMA’s findings, including any subsequent broadcasts of the Californication episode in question.

‘If, in spite of these actions, a Network Ten licensee subsequently breaches the MA classification guidelines in respect of a drama program, it could warrant use of ACMA’s formal powers,’ said Mr Chapman.

In considering appropriate responses to this breach, ACMA noted that this is the first classification-related breach of the code by Network Ten since 2005. It is also the first time a commercial television licensee has been found to have breached the MA classification in relation to the broadcast of a drama program since 2003.

‘The publication of breach findings over time serves to inform all commercial broadcasting licensees – not only those to whom the breach findings relate – and the community, about the types of program material that are considered appropriate for the classifications contained in the code,’ said Mr Chapman.

Investigation report #1947, 1981 is available on the ACMA website.

Media contact: Donald Robertson, ACMA Media Manager, on (02) 9334 7980.

Backgrounder

ACMA conducts various types of investigations under the Broadcasting Services Act 1992 (the BSA). Investigations under Part 11 of the BSA are conducted in response to complaints received by ACMA relating to a possible breach by:

• a licensed broadcaster: of the BSA, the regulations, a licence condition, a class licence or a code of practice; or
• the ABC or SBS: of a code of practice.

Role of ACMA

ACMA’s role in dealing with complaints under industry codes is prescribed by the BSA. Under section 148 of the BSA, a code complaint must be made first to a licensee and can only be made to ACMA if the complainant is not satisfied with the licensee’s response. In addition, ACMA can instigate its own investigation and the Minister for Broadband, Communications and the Digital Economy can direct ACMA to conduct an investigation.

In addition, ACMA’s performance of this role is also informed by Section 5 of the BSA, which requires ACMA to, among other things:

• produce regulatory arrangements that are stable and predictable;
• deal effectively with breaches of the legislation; and
• use its powers in a manner that is commensurate with the seriousness of the breach concerned.

This requires ACMA to use its enforcement powers appropriately and to identify the most effective and proportionate way of dealing with breaches. This is further reinforced in the Explanatory Memorandum to the BSA.

This statement reflects Parliament’s intention in enacting the co-regulatory framework and ACMA’s prescribed role within that framework.

ACMA’s powers

ACMA has a range of powers intended to enable it to deal effectively with breaches of the rules (including, in particular, the program standards and licence conditions) established by the BSA or the codes developed under the BSA, all in a manner commensurate with the seriousness of the breach.

Where there has been a breach of the Commercial Television Industry Code of Practice, ACMA may accept an enforceable undertaking for the purpose of securing future compliance with the code or impose an additional licence condition under section 43 of the BSA requiring a licensee to comply with the code (for example, if there is a breach by a number of licensees relating to the same obligation). For a licence condition to be imposed under section 43 of the BSA, ACMA first needs to give the licensee written notice of its intention to impose the licence condition; the licensee must be given a reasonable opportunity to make representations to ACMA in relation to the proposed licence condition which ACMA must consider under natural justice principles and the proposed licence condition must be published in the Commonwealth Gazette before becoming effective. The licensee can apply for ACMA’s decision to be reviewed by the Administrative Appeals Tribunal.

ACMA may also seek through negotiated agreement actions by broadcasters to improve compliance. For example, ACMA has on many occasions agreed measures with licensees involving action by them intended to ensure compliance problems are addressed and are effective. Such measures have often succeeded in improving behaviour within licensees (and Networks).

If a licence condition is successfully imposed and a licensee breaches such an additional licence condition, then as alternatives to suspending or cancelling the licence, ACMA has power to issue a remedial direction requiring compliance. In the event that the licensee does not comply with a remedial direction, ACMA may:

• pursue a civil penalty;
• refer the matter for prosecution as an offence;
• suspend or cancel the licence; or
• at any time, accept an enforceable undertaking (including provisions dealing with compliance with a code).

If ACMA has convincing evidence that a code of practice has failed to provide appropriate community safeguards in relation to a matter, it can determine a new program standard to apply to a particular section of the broadcasting industry.

MA classification

Clause 2.4 of the Commercial Television Industry Code of Practice specifies that non-film programs must be classified in accordance with the Television Classification Guidelines set out in Appendix 4 of the code. Clause 5 of the Television Classification Guidelines states that:

Complaints process—Codes of Practice

If a person wishes to complain about something of concern they have seen or heard on a program broadcast by a radio or TV station, and the matter is covered by a code of practice, the person must, by law, first make a written complaint to the station.

When making a complaint to ACMA, a complainant must provide a copy of the complaint to the station, a copy of the station’s reply if this has been received, and any other relevant correspondence with the station. ACMA takes all complaints seriously (except for those that are frivolous or vexatious or not made in good faith) and acknowledges all complaints in writing.

For a valid complaint, ACMA considers the information provided and offers the relevant station an opportunity to provide its perspectives on the matter. When all relevant information is available, ACMA assesses the complaint against the relevant licence condition or code of practice. When an investigation is completed, ACMA is required to notify a complainant of the results of an investigation under Part 11 of the Act. The form this notification takes is not specified in the Act—sometimes it is in the form of a letter, but more usually it takes the form of an investigation report, which is provided to both the complainant and the licensee concerned.

Generally, personal or private information provided in a complaint, including name and address details, are not disclosed to the licensee concerned if it is a licence condition matter. However, as code complaints are first made to a licensee, code complaints are usually made available to the licensee concerned. ACMA’s usual practice is to not provide personal or private information in an investigation report.

Under the Act, ACMA has discretion whether or not to publish the report of an investigation conducted under Part 11 of the Act. ACMA is not required to publish an investigation report if publication would disclose matter of a confidential character or be likely to prejudice the fair trial of a person. If ACMA intends to publish an investigation report that may adversely affect the interests of a person, ACMA must give the person an opportunity to make representations in relation to the matter.