ACMA media release 107/2008 – 28 August

28 August 2008

ACMA finds that coarse language in Ramsay’s Kitchen Nightmares exceeded M classification guidelines

The Australian Communications and Media Authority has found that Channel Nine South Australia Pty Ltd breached the Commercial Television Industry Code of Practice on 6 March 2008, by broadcasting Ramsay’s Kitchen Nightmares – Secret Garden with an incorrect M (Mature) classification. The finding arose out of a complaint about coarse language in the program.

ACMA found that the program contained both aggressive coarse language and very coarse language, neither of which is permitted in M-classified programs. While the code allows frequent coarse language in M-classified programs (where it is particularly important to the storyline or program context) ACMA determined it was not justified in this case.

ACMA concluded that the program should have been classified MA (Mature Audience). Programs which are classified MA are considered suitable for viewing only by persons aged 15 years or over in view of the intensity and/or frequency of coarse language or other material contained in the program. Such programs must be broadcast in the later MA time zone.

‘The code establishes a scale for the level and amount of coarse language that is permissible in programs at each classification level, and requires programs that contain more impactful coarse language to be classified appropriately,’ said Chris Chapman, ACMA Chairman.

‘In this instance, while classified M, the program was actually aired in the later MA classification time zone, where more impactful coarse language is permitted. Nevertheless, licensees are required to correctly classify programs to ensure that viewers are aware of the level of material they are likely to encounter in a program, and that the program is promoted at appropriate times.’

The licensee is an affiliate of the Nine Network. Both the licensee and the Nine Network conceded that the program contained very coarse language that is not permissible in M-classified programs, and have confirmed that the very coarse language contained in the program will not be broadcast in any future programs.

More generally, ACMA is investigating a number of complaints about broadcasts of other Ramsay’s Kitchen Nightmares programs by the licensee and other Nine Network affiliates. ACMA intends to consider appropriate remedial action, taking into account all relevant findings and action taken by the licensees, once all of these investigations have been completed.

Investigation report 2021 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.

ACMA’s performance of this role is 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 to 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.

The M and MA classifications

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 BSA. The form this notification takes is not specified in the BSA—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 BSA, ACMA has discretion whether or not to publish the report of an investigation conducted under Part 11 of the BSA. 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.