FEDERAL COURT OF AUSTRALIA

Channel Seven Perth Pty Limited v Australian Communications and Media Authority [2014] FCA 669

THE COURT ORDERS THAT:

1.    Pursuant to s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the time within which the applicant may make the claims for relief in this Application on the grounds specified therein be extended up to and including the date of filing thereof (21 February 2013).

2.    The Application be dismissed.

3.    The applicant pay the respondent’s costs of and incidental to the Application as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In 2012, Channel Seven Perth Pty Limited (Seven) operated the commercial television station known as TVW Perth. For some years prior to 2012, the Seven network had broadcast a one hour current affairs program once a week on Sunday evenings at 6.30 pm. That program was called Sunday Night.

2    On 4 March 2012, Seven broadcast a segment (the segment) as part of the Sunday Night program which went to air on that day. The segment ran for approximately 28 minutes and reported on the sinking of a mobile platform used for oil extraction purposes (T2) in the Gulf of Mexico during a hurricane in September 2011 as well as the four day ordeal suffered by its crew thereafter, four of whom died. The segment was very critical of the owner of the oil platform and the owner of an Australian ship which was in the vicinity of the platform for some days immediately prior to the full onset of the hurricane. That ship was a 70 metre (245 feet) long offshore support vessel (vessel) owned by an Australian marine service provider (MM). The vessel was, at the time, contracted to the operator of the T2. In the segment, Seven reported that the vessel had failed to come to the assistance of the crew of the T2 during the hurricane despite the fact that, at all relevant times, it had been positioned a relatively short distance away and could have come to their aid.

3    During the segment, some events were re-enacted, some real footage was deployed and the reporter undertook various interviews. The reporter interviewed surviving members of the crew of the T2 and family members of those who died during the incident. In addition, the American lawyer representing various persons suing in civil proceedings in the USA in respect of the incident (RS) was also interviewed.

4    The complainant, who is the Managing Director of MM, alleged that:

(a)    The segment was factually inaccurate in breach of cl 4.3.1 of the Code; and

(b)    In the segment, Seven failed to represent viewpoints fairly.

5    The complaint was investigated by the ACMA.

6    Prior to finalising its Investigation Report, the ACMA provided a Preliminary Investigation Report to Seven and sought comments from it in relation to that Preliminary Investigation Report.

7    By Investigation Report 2803 dated 10 December 2012 (the Report), the ACMA determined that Seven:

(i)    Had breached cl 4.3.1 of the Code in relation to the following statements:

(a)    “[MM] has been accused in a US Court of murder and cowardice”; and

(b)    “The shipping company has been accused in a US Court of an act of murder and cowardice at sea’; and

(ii)    Had breached cl 4.3.1 of the Code in relation to the representation of MM’s viewpoint concerning whether the Captain of the MM ought to have attempted a rescue of the crew of the T2.

8    The ACMA determined that other alleged breaches had not been made out.

9    As was the case in the other two matters involving the Seven network and the ACMA in respect of which Reasons for Judgment were published this day (Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority [2014] FCA 667 (the Adelaide judgment) and Channel Seven Brisbane Pty Limited v Australian Communications and Media Authority [2014] FCA 668), in the Report, the ACMA described the process which it undertook to assess the complaint and the test which it ordinarily would apply in determining what the ordinary reasonable viewer would take from a broadcast.

10    The ACMA then proceeded to deal with the statements concerning the allegation of murder under the heading Issue 1: Presentation of factual material. Its consideration of those statements commenced at p 6 of the Report.

11    At pp 6–8, under the heading Reasons, the ACMA said:

The two statements (underlined) were made by the Reporter and the Presenter in the following contexts:

•    Presenter – First tonight, betrayal on the high seas. When a hurricane brewed over the Gulf of Mexico last September, the 10 crew members of a mobile work platform [T2] knew they could be in serious trouble. But they were assured they would be rescued by a massive Australian-owned ship sitting just a few kilometres away ...When the Australian ship steamed away, what the men endured for four terrifying days floating in the churning waters was harrowing. The shipping company has been accused in a US Court of an act of murder, and cowardice at sea.

•    Reporter – [Calls the Managing Director’s name]. Your company has been accused in a US court...

The Managing Director – This is not the right place to do this...

Reporter – ...of murder and cowardice.

The latter exchange was repeated on three separate occasions during the Segment.

Does the content constitute factual material?

The two statements were presented in an unequivocal and unquestioning manner. Accordingly, the ACMA considers that they would have been interpreted by the ordinary, reasonable viewer as being of a factual nature.

What would the statements have conveyed to an ordinary, reasonable viewer?

The comments would have conveyed to the ordinary, reasonable viewer that MM was facing criminal charges of the most serious kind, in a United States court.

The ordinary reasonable viewer would be familiar with the crime of murder and it is this terminology that would resonate in the circumstances. The Segment repeatedly uses the words “accused”, “court” and “murder”, which are stated emphatically by the Presenter, the Reporter, the lawyer interviewed during the Segment (RS) and others interviewed. These are terms that are powerful indicators of criminal proceedings.

The mere conjunction of the term ‘cowardice’ (which the ordinary reasonable viewer may well understand is not a crime) with ‘murder’ does not counteract the effect of these indicators.

The ACMA notes the Code requirement to assess the accuracy of factual material in the context of the segment in its entirety. In this regard, the ACMA is not persuaded by [Seven’s] argument that the reference to a “civil claim for damages” (the Civil Action) at a separate stage during the Segment clarifies this issue. The link between the Civil Action and the impugned statements is not clear. In these circumstances, the isolated references to the Civil Action do not displace or clarify the impression conveyed, especially when that original impression was conveyed with such strength in the opening of the Segment.

In this regard, it is noted that the inclusion of comments by RS further adds to the impression of criminal proceedings by introducing the term ‘manslaughter’ which the ordinary reasonable viewer would understand as a criminal law concept:

RS: I think when you know someone is in danger and you abandon them to that danger, it’s murder; at the minimum manslaughter. When you intentionally go in the other direction and know that their life is threatened and you have an obligation to save them. I don’t know what you’d call it; I’d call it murder (emphasis added).

Was the information conveyed accurate?

MM is not the subject of criminal proceedings in the United States. It was, rather, at the time of the broadcast, a joint Defendant to the Civil Action. During the course of the Civil Action, the Plaintiffs submitted that the actions of the MV were “cowardly and tantamount to murder at sea”.

In this regard, [Seven] has submitted that these statements ‘accurately convey information that the plaintiff survivors “accuse” [MM] and others of murder.’ [Seven]’s view is that ‘in making these claims [it] relied on the claim filed by the plaintiffs which included very serious accusations against [MM].”

However, the context on which [Seven] seeks to rely was not apparent from the broadcast. [Seven]’s obligation, under the code, is to present factual material accurately. In each case, whether this is achieved is a matter of judgement, including a consideration of the way in which the information is communicated.

The ACMA remains of the view that, in these circumstances, [Seven] has not discharged its obligations under the Code. The ACMA’s views on what the statements would have conveyed have been dealt with above in detail.

The ACMA is accordingly of the view that [Seven] has breached clause 4.3.1 of the Code in relation to the above statements.

12    The ACMA then considered various statements to the effect that the vessel had failed to endeavour to save the occupants of the T2 in breach of the law of the seas. In respect of that allegation, the ACMA concluded that there was sufficient material in the segment to convey to the ordinary reasonable viewer that the obligation to mount a rescue at sea was not absolute.

13    The ACMA then moved on to consider whether MM’s viewpoint in relation to the reasons why the Captain of the vessel had not attempted a rescue and whether a safe rescue was possible in the circumstances had been fairly represented in the segment.

14    The ACMA commenced consideration of this matter by extracting cl 4.3.1 of the Code.

15    At the top of p 11 of the Report, the ACMA said:

In determining whether or not a licensee has represented a viewpoint fairly (having regard to the circumstances at the time of preparing and broadcasting the program), the ACMA takes into account that the Code does not require a licensee to present all material which it obtains. If the licensee purports to represent a viewpoint, however, it must do so fairly.

The overriding requirement is that the program (that is, whatever goes to air in its entirety), must represent viewpoints fairly. A program may omit material, but must not misrepresent a viewpoint in doing so.

Further, circumstances including misleading editing or inappropriate juxtaposition of material in the representation of a viewpoint can contribute towards that representation being rendered unfair in the sense contemplated by clause 4.3.1.

16    At pp 11–13, the ACMA set out its Reasons for finding a breach of cl 4.3.1 of the Code in this regard in the following terms:

[Seven] was not obliged to include all of the material at its disposal in relation to the complainant’s viewpoint. However, MM’s explanation as to why the captain of the [vessel] did not attempt a rescue and/or whether a safe rescue was possible was not adequately represented.

Significantly, the broadcast referred extensively to these matters and canvassed and included the comments and views of several others (including the reporter) on them. For example:

SM: The fact those guys could did not have to go into the water, they could have saved them...that Captain had a choice. And he refused. He chose to tum his back on them.

Reporter: Now let’s be clear about this: at this stage, on the Tuesday, would there have been any difficulty at all in the [vessel] attempting a rescue of you blokes?

The captain of the T2: Not...

Reporter: ...the [T2]

The captain of the T2: Not a vessel of that size.

Reporter: Although the weather is getting worse, crewman [TD] says a safe rescue was still possible...is there any doubt in your mind that the Captain of the [vessel] had plenty of time and plenty of safety to rescue you?

TD: Definitely.

Reporter: Your claim filed in court...

RS: Yes

Reporter: calls this murder

RS: Whadda you call It?

Reporter: Do you think it was murder?

RS: I think when you know someone is in danger and you abandon them to that danger, it’s murder; at a minimum manslaughter. When you intentionally go in the other direction and know that their life is threatened and you have an obligation to save them, I don’t know what you’d call it; I call it murder.

Reporter: Under the law of the sea, the code of the sea, a mariner should have attempted a rescue.

[Seven] had considerable material at its disposal prior to the broadcast which, if presented, could have fairly conveyed MM’s viewpoint on these issues. The Documentation was provided to [Seven] some two weeks before the Segment was broadcast. It included a detailed explanation outlining MM’s version of events, including:

•    the belief that the [vessel] was under no legal obligation to attempt a rescue;

•    the view that the maritime obligation to attempt a rescue of individuals in distress comes with limitations, and a detailed description of Article 98 of the UNCLOS (cited above);

•    the weather conditions that the [vessel] was facing during the Incident and the view that they were extremely hazardous, to the extent that attempting a rescue of the T2 would have put the safety of the [vessel] and its crew in jeopardy.

The omission of MM’s views on these issues materially affects the impression of the Incident that is conveyed to the ordinary, reasonable viewer. The failure to represent MM’s viewpoint fairly resulted in viewers being unable to attain a proper understanding of the Incident the [vessel’s] involvement in it, the propriety of its crew’s actions, the decision that its Captain (the Captain) ultimately made and related complexities.

The ACMA notes that the sole representation of MM’s viewpoint concerning the propriety of the Captain’s decision consisted of the following statements of the Managing Director:

•    “He did not flee, he did not flee. Don’t say that.”

•    “His duty of care is to the people on his vessel. He had 37 people on his vessel, his fundamental duty of care was for those 37 people. And that’s it.”

•    “I’m totally comfortable with the decision … It was the right decision.”

•    “It’s not my responsibility to say sorry. I’ll say sorry because they lost their lives at sea but I won’t say sorry because we’ve done something wrong.”

[Seven] submitted that the inclusion of the above comments in the Segment amount to evidence that the Managing Director’s views were “presented...with clarity and conviction”.

However, the unplanned and impromptu style of the interview, the numerous interruptions to the Managing Director’s responses and the interview’s brevity, coupled with the failure to otherwise present MM’s viewpoint by reference to the written material it had provided, meant that [Seven] fell short of a fair representation of MM’s viewpoint.

The ACMA is not persuaded by [Seven]’s subsequent submissions that “the combination of the broadcast of the viewpoints expressed in the interview with the Managing Director of [MM] and the posting of the statement on [Seven’s] website had the effect of conveying fully and fairly [MM’s] viewpoint as to whether or not the [MM] ought to have attempted a rescue of the crew of [T2]”.[Seven]’s obligation under the Code is to present material that is broadcast in such a way that it fairly represents viewpoints. [Seven] cannot, in this context, rely on (or to expect viewers to rely on) material other than that which was contained in the broadcast.

Accordingly, the ACMA finds that [Seven] breached clause 4.3.1 of the Code in relation to the unfair representation of MM’s viewpoint on this issue.

The Regulatory Framework

17    I set out the relevant provisions constituting the regulatory framework in which Seven’s complaints about the ACMA’s decisions must be considered in the Adelaide judgment (at [33]–[56]). I adopt and incorporate those paragraphs into these Reasons for Judgment.

Consideration

The First Breach Finding – Accusation of Murder and Cowardice

18    Seven relied upon five grounds (grounds 1 to 5) in support of its claims for relief in respect of this finding. It contended that the finding involved errors of law within the meaning of s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), jurisdictional error and an improper exercise of power within the meaning of s 5(1)(e) of the ADJR Act.

Ground 1 – Reliance on Inferences rather than Factual Material Broadcast

19    Seven submitted that the ACMA failed to consider the material that was actually broadcast and, instead, drew inferences from that which was broadcast and then asked itself whether those inferences were factually correct. Seven referred to the ACMA’s statement of its “ordinary, reasonable viewer” test on p 4 of the Report and submitted that that test involved an impermissible two step approach. That is to say, the test did not accord with the approach required by cl 4.3.1 of the Code.

20    Seven next submitted that the ACMA effectively read into the segment an additional proposition to the effect that MM was facing criminal charges in a United States court. Having discerned that assertion in the statements made throughout the segment, the ACMA then found that, because MM was not, in fact, facing such charges, the factual material in the broadcast had been presented inaccurately.

21    Seven submitted that there was no express statement anywhere in the segment to the effect that MM was facing criminal charges in a United States court. The ACMA had identified this assertion by a process of inference from that which was actually said. Seven submitted that this mode of reasoning illustrates why an investigation into inferences is a different exercise from the task required by cl 4.3.1.

22    I do not think that the ACMA’s approach to the complaint concerning the accusation of murder was flawed in the manner submitted by Seven. When confronted with a complaint such as the present complaint, the ACMA is obliged to consider whether certain material broadcast during the segment about which complaint is made is properly characterised as factual material and is then obliged to consider, in respect of material so identified as factual material, whether that factual material is accurate in the context of the segment in its entirety.

23    As submitted on behalf of the ACMA, a determination by the ACMA as to whether a licensee has broadcast factual material accurately under cl 4.3.1 necessarily entails consideration of:

(a)    Whether the content conveyed is “factual” in nature or is an expression of opinion;

(b)    What content or meaning is conveyed by particular material that has been broadcast, visually or aurally; and

(c)    Where the content is found to be factual in nature, whether it is accurate having regard to the segment in its entirety.

24    In my judgment, the ACMA will inevitably be called upon to identify the particular material in the broadcast which is the subject of complaint and to determine whether that material is properly characterised as “factual”. That exercise will ordinarily require the ACMA to consider the meaning of the material which has been identified as the material to be considered under cl 4.3.1. The test which the ACMA has posed for itself is a perfectly reasonable one to be applied in most cases. The meaning conveyed by visual images and language can never be determined only by reference to the meaning intended to be conveyed by the maker of the relevant statement or the presenter of the program. It is always a two way street and necessarily involves a consideration of how the relevant material strikes the listener or viewer.

25    Here, the ACMA concluded that the comments conveyed that MM was facing criminal charges of the most serious kind in a United States court. That assertion was an assertion of fact and was plainly untrue. The conclusion reached by the ACMA as to the substance of the material broadcast in the segment and the meaning conveyed by that material was a question of fact and was resolved by the ACMA in a manner which was clearly open to it.

26    Seven has failed to make out ground 1.

Ground 2 – Failure to Consider the Murder and Cowardice Statements in the Context of the Segment as a Whole

27    Seven submitted that, because the ACMA did not give the same weight to the specific mention of a civil action as Seven would have liked it to have given to that mention, the ACMA had simply not viewed the statements about which complaint was made in context. This criticism of the ACMA does not bespeak a failure on the part of the ACMA to look at the broadcast material in context. Indeed, in my judgment, the ACMA clearly took into account contextual matters.

28    In any event, as submitted on behalf of the ACMA, even if the interpretation claimed by Seven of the murder accusation statements was an available interpretation in the context of the segment as a whole, the fact that the ACMA preferred another available interpretation of those statements does not mean that its conclusion did not involve a consideration of context. At par 19 of its Written Submissions, the ACMA analysed in detail all of the contextual matters relied upon by it and demonstrated by that analysis that the interpretation placed upon those statements by it in the Report was clearly available.

29    Ground 2 has not been made out and I reject it.

Grounds 3, 4 and 5 – Unreasonable Factual Finding, No Evidence for Factual Finding

30    Given that the ACMA’s interpretation of the relevant statements was an available interpretation of those statements, there is no room for notions of perversity or irrationality in respect of its conclusions. I reject these grounds.

31    As submitted on behalf of the ACMA, the fact that it gave less weight to certain aspects of the segment than Seven would have liked does not give rise to reviewable error.

The Second Breach Finding – Failure to Represent MM’s Viewpoint Fairly (Ground 6)

32    Seven submitted that, in dealing with this complaint, the ACMA asked itself the wrong question. It contended that the ACMA impermissibly focussed on matters of style and manner rather than substance. It also submitted that it was irrelevant that MM had provided additional material which, if broadcast, may have provided further insight into MM’s explanation of events. It went on to submit that the Code does not require that any given viewpoint be represented comprehensively or with any particular degree of prominence. It said that the Code is not concerned with dictating the editorial content of broadcasts. Seven ultimately submitted that the effect of the ACMA’s reasoning in the present case was that any failure to present all of the material available to it was likely to be construed as a failure to represent a viewpoint “fairly”.

33    I have set out the ACMA’s reasoning on this matter at [15]–[16] above.

34    Seven’s submissions mischaracterise the ACMA’s approach to the complaint that Seven did not represent MM’s viewpoint fairly. The ACMA quite clearly acknowledged and gave effect to the proposition that it was not incumbent on a licensee, in every case, to present all of the material on a particular point which it has in its possession. The ACMA did not address its consideration of the second breach alleged against Seven by asking whether Seven had included all of the material in its possession.

35    As submitted on behalf of the ACMA before me, no error is disclosed in the ACMA considering, as one of the factors relevant to its assessment of the second breach alleged against Seven, Seven’s failure to present MM’s viewpoints on the vessel’s actions by reference to all of the material available to Seven prior to the broadcast. Seven chose to ignore the detailed explanation provided to it by MM approximately two weeks before the broadcast. It did so at its peril insofar as the requirement to present viewpoints fairly was concerned.

36    At par 32 of its Written Submissions before me, the ACMA said:

In analysing whether a viewpoint has been represented fairly (as opposed to, for example, whether a viewpoint has been “referred to” or “mentioned” in a broadcast) it is essential to have regard to the quantitative and qualitative aspects of the presentation of that viewpoint. Such aspects will include, inter alia, the time in a segment afforded to the viewpoint, the sources to which it is attributed, the manner, tone, tenor and language in which it is expressed, and the juxtaposition of the presentation of that viewpoint with the presentation of other viewpoints on the particular issue. A construction of the obligation in cl 4.3.1 which paid no heed to the “style and manner” in which opposing viewpoints on current affairs issues are conveyed would, in a medium such as television, significantly weaken the capacity of the clause to ensure the fair presentation of news and current affairs programs: Code, cl 4.1.1; BSA, s 123(2)(d).

37    I agree with those Submissions and I accept them.

38    Seven has failed to make out its challenge to the second breach finding.

Conclusions

39    At the hearing before me, Seven sought an order pursuant to s 11(1)(c) of the ADJR Act extending the time for making the present application to the date when it was filed. That order was consented to by the ACMA. I propose to make the order sought.

40    Seven has failed to make out any of its challenges to the breach findings in question in the present proceeding. The proceeding must therefore be dismissed with costs.

41    There will be orders accordingly.

Associate:

Dated:    24 June 2014