REPORT OF INVESTIGATION WIN TELEVISION NSW PTY LTD AUSTRALIA’S FUNNIEST HOME VIDEO SHOW 12 MAY 1998
File No. 1998/0894 Complaint No. 10579 Investigation No. 644
INTRODUCTION On 9 November 1998 the Australian Broadcasting Authority (the ABA) received a written complaint in relation to the broadcast by WIN Television NSW Pty Ltd (WIN) of an episode of a comedy program titled ‘Australia’s Funniest Home Video Show’. The episode was broadcast on 12 May 1998 at 7.30pm in the ‘PG’ classification period. The complainant alleged that a segment in the episode displayed an intensity of violence that was unacceptable for the ‘PG’ classification. The complainant wrote to WIN on 14 May 1998. WIN responded on 11 November 1998, however, the complainant was not satisfied with the response from WIN and wrote to the ABA on 6 November 1998. In response to the complaint the ABA, on 2 December 1998, sought written comments from WIN as well as a copy of the episode. The comments and tape were delivered to the ABA on 13 January 1999. The ABA supplied WIN with a preliminary report on 28 January 1999, inviting WIN to comment on the preliminary view before the ABA made its decision in relation to the matter. WIN declined to provide any further comments.
LEGISLATIVE FRAMEWORK Section 123 of the Act requires that each industry sector develop codes of practice relating to program content issues and complaints handling processes. The Commercial Television Industry Code of Practice (the Code) was registered by the ABA in September 1993. Under section 148 of the Broadcasting Services Act 1992 (the Act), if a person has made a complaint to a broadcaster about a matter that is covered by a code of practice, and if that person has not received a
response within 60 days, or if they are dissatisfied with the response they have received, then that person is entitled to refer their complaint to the ABA. Section 149 of the Act requires the ABA to investigate complaints referred to it in these ways, unless it is satisfied that the complaint is frivolous, vexatious or not made in good faith.
RELEVANT CODE PROVISIONS ‘Australia’s Funniest Home Video Show’ was classified PG by WIN. Therefore the program is subject to the requirements of Section 2 of the Code “Classification”, particularly those set out at Clause 2.12, the PG Classification. The objective this section of the Code states:
2.12 Material classified PG may contain adult themes or concepts but must remain suitable for children to watch under the guidance of a parent or guardian.
The specific Code requirement is:
2.12.1 Violence: Any violence depicted must be inexplicit, discreet or stylised and appropriate to the story line or program context. No overly realistic, bloody or horrific depictions of violence are permitted.
The response from the licensee to the complainant is subject to the requirements of Section 7 of the Code ‘Handling of Complaints to Licensees’. Clause 7.2 states, amongst other things:
This Section applies to any matter covered by the Code which is the subject of a written complaint to a licensee which adequately identifies the material broadcast, the nature of the complaint, and the identity of the complainant. Letters of complaint need not specify the Section of the Code to which the complaint relates.
Clause 7.8, also relevant here, states:
Where a viewer complains in writing of material within thirty days of its broadcast, the licensee must seek to provide a substantive written response within ten working days. That response will also advise the complainant that he or she may refer the matter to the Australian Broadcasting Authority if not satisfied with the licensee’s response.
Further, Clause 7.9 states:
When a licensee cannot provide a substantive response within ten working days, the licensee will undertake in writing to provide a substantive reply within a further 20 days.
THE PROGRAM / SEGMENT The program is a compilation of amateur video tape recordings. The segments are grouped together and presented by themes, for example, children misbehaving, or animals being cute, mishaps at weddings etc. ‘Voice overs’, sound effects, and the studio audience reactions are provided for the segments to increase the humour of the incident. At the conclusion of the program the audience vote for the funniest segment and the winners are awarded prizes.
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The segment in question appeared in a collection of ‘sporting mishaps’, such as skiers crashing into one another, and gymnasts collapsing. The segment, 11 seconds long, consisted of a soccer match with a referee who had stopped play and was passing judgement on players. A voice over, aping a strong accent, was provided:
I’m disappointed with all of you, I don’t expect grown men to behave like that, don’t you know that it’s only a game. How dare you call soccer just a game!
The referee is punched in the face by one of the players, the punch is accompanied by a sound effect and the audience reaction is featured at the end of the segment.
THE COMPLAINT In the complainant’s letter to WIN he states:
My complaint is in regards to the segment showing the assault on the Soccer Referee. The Referee in question had dismissed two players from the field of play, and was then struck from behind in a most cowardly fashion.
Two things that worry me are: How the producers of Australia’s Funniest Home Video Show could possibly say that the assault of a sporting official is suitable material for their show, and How people in general could find such an incident entertaining in any form.
In his letter to the ABA dated 6 November, the complainant states:
On the 12 May 1998, there was a segment on the WIN T.V. network programme Australia’s Funniest Home Video Show. I found the segment showing the assault of a soccer referee to have been most unsavoury, and I believe totally unsuitable for a family programme of this nature. After many phone calls on my part to the Wagga Wagga office, I did receive an answer today. I find the answer to be unsatisfactory and submit this letter for your consideration. Of particular concern to me is the fact that the segment to which my complaint refers to is still considered by the WIN management to be within the context of “Australia’s Funniest Home Video Show”. I ask again, how could WIN management find the assault of a sporting official to be suitable material for presentation in what is basically a family comedy show.
LICENSEE’S COMMENTS In WIN’s letter to the complainant dated 11 November, Mr Trevor Clarke, Program Manager stated:
We believe the scene about which you have written was within the context of the program…
Mr Clarke also stated:
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As you have already made a verbal complaint in a telephone conversation with our Wagga Wagga office, your concerns have been brought to the attention of the Federation of Australian Television Stations (FACTS) as a matter for the Code of Practice. If you find this written reply unsatisfactory you may wish to write to FACTS.
In its letter to the ABA dated 11 January 1999, WIN’s Mr Mike Posetti, Station Manager, stated:
WIN Television understands Section 7 of the ‘Commercial Television Industry Code of Practice’, and once again apologises for the typing mistake in the reply to the complainant. Our staff understand clearly the procedures for handling and referring complaints onto the ABA.
A (VHS) copy of the program was included. WIN commented that the program had been relayed from TCN Channel Nine Pty Ltd (TCN 9) in Sydney and WIN sought comments from TCN 9 regarding the episode in question. These included:
• • •
The producers don’t often use these type of videos, and by showing it does not mean that they condone the activity. This clip was shown with a series of sporting mishaps, accordingly, the activity in the clip was to be taken in context with these unfortunate events. Australia’s Funniest Home Video show is a comedy and nothing is presented in a serious manner, therefore unlike other programs where such an action would be considered violent, this is more cartoon-like. Generally the sound effects put on videos emphasises the light hearted manner in which the video is shown. All videos are screened to ensure the safety of people & animals involved. The producers agree that there are certain situations that should not be made fun of, however the nature of comedy is such that it makes fun of many situations and objects. It is, therefore impossible not to offend some members of the community, as everyone has varied attitudes and outlooks. The producers are aware of their social responsibility and the material shown in the timeslot does not adhere [sic] to the guidelines set by ‘Commercial Television Industry Code of Practice’. The show has a rating of PG, therefore we rely on the sensibilities of parents to supervise and advise children when viewing the program, and to ensure that they are not misinterpreting the content of the show. In respect to this particular video, we would hope that parents would advise children that this is unsatisfactory behaviour, and the offender would have been disciplined after the event.
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•
In a telephone conversation on 17 February 1999, Mr Posetti stated that the program was on relay from TCN 9 and was not able to be altered. WIN had no control over the program and therefore could not be held accountable for its content.
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Mr Posetti apologised for the mistaken information that the program manager had told the complainant. He stated that all obligations regarding complaint procedures had been relayed to staff and that WIN’s systems for dealing with complaints was excellent. Mr Posetti forwarded a copy to the ABA, of an apology sent to the complainant which concerned WIN’s delay in responding to the complaint. The ABA received the copy on February 17, 1999. Finally, Mr Posetti informed the ABA that a copy of the preliminary report had been sent to TCN 9.
ASSESSMENT Classification - Violence The ABA believes the segment displayed violence in excess of that permitted under Clause 2.12.1. of the Code.
Violence: Any violence depicted must be inexplicit, discreet or stylised and appropriate to the story line or program context. No overly realistic, bloody or horrific depictions of violence are permitted.
The ABA is of the view that the punch to the referee’s head was explicit, indiscreet and not stylised. The effect of the image was heightened by the sound effects rather than giving it a ‘light hearted’ tone and the overall impact was not lessened by either the introductory comments, or by the nature of the other clips.
The ABA does not agree with WIN’s argument that:
Australia’s Funniest Home Video show is a comedy and nothing is presented in a serious manner, therefore unlike other programs where such an action would be considered violent, this is more cartoon-like.
The ABA is of the view that the segment has much more force than a cartoon creation. It is not the stylised sort of fight that might be found in a production for children. The protagonists are real, not cartoon, and their actions and emotions would also be ‘real’ to a child. The ABA’s view is that WIN has breached Clause 2.12.1 of the Code.
Complaints Handling WIN’s comments to the complainant regarding his complaint are of concern to the ABA. WIN advised the complainant that from his telephone conversation with WIN’s Wagga Wagga office his concerns would have been brought to the attention of the Federation of Australian Commercial Television Stations (FACTS) as a matter for the Code of Practice. WIN then advised the complainant if he found the information in WIN’s response to him unsatisfactory then he might write to FACTS. This advice is not in line with the requirement of Clause 7.8 and 7.9 of the Code. The complaints handling procedures set out in the Code apply to any matter covered by the Code which is the subject of a written complaint to a licensee which adequately identifies the material broadcast, the nature of the complaint, and the identity of the complainant.
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In other words, the original letter of complaint to WIN should have been assessed against the Code. A response should have been provided to the complainant within 30 days. The complainant should have also been advised that he or she might refer the matter to the Australian Broadcasting Authority if not satisfied with the licensee’s response. WIN’s response: 1. Did not substantively address the Code issues raised by the complainant; 2. Did not refer the complainant to the ABA; 3. Was made 6 months after the complainant’s initial letter. Therefore the ABA’s view is that WIN has breached Clauses 7.8 and 7.9 of the Code.
CONCLUSION For the above reasons the ABA is of the view that WIN has breached Clause 2.12.1 and Clauses 7.8 and 7.9 of the Code.
ACTION TAKEN Classification – Violence In a telephone conversation with the ABA held on 17 February 1999, Mr Posetti advised that, as the program is one taken on relay from TCN 9, WIN can not exercise editorial control over it. The ABA notes that WIN Television NSW Pty Ltd is an affiliate of Nine Network Australia Pty Ltd, and that the majority of programming on this station is taken on real-time relay from TCN 9 in Sydney. The ABA notes the defence clauses set out in Section 1 of the code. These state:
Compliance with the Code 1.3 Licensees must endeavour to comply fully with the Code, but a failure to comply will not be a breach if that failure was due to: 1.3.1 1.3.2 a reasonable mistake; reasonable reliance on information supplied by another person;
1.3.3 an act or default of another person, or to an accident or to some other cause beyond the licensee’s control, and the licensee took reasonable precautions and exercised due diligence to avoid the failure.
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1.4
Where it is possible to remedy a failure to comply with the Code resulting from one or more of those circumstances, licensees must do so promptly.
It is the ABA’s view that these defences may apply in this case. However, while the ABA acknowledges the operational difficulties taking a program on live feed may cause to a regional station, it is the ABA’s view that this does not obviate an affiliate licensee’s general responsibility to ensure compliance with the requirements of the Code. The ABA considers that WIN is ultimately responsible for compliance with the requirements of the Code. Details of the findings in this investigation will be provided to TCN 9 for their consideration in future production and classification of the program.
Complaints Handling The ABA is aware that WIN’s response to the complainant was made six months after receiving the complaint, it provided the complainant with incorrect information and it did not address the Code issues raised by the complainant. The ABA notes that WIN has apologised to the complainant in their letter of 10 February 1999, for the manner in which WIN dealt with the complaint. WIN stated to the complainant that they had reviewed their complaint procedures after this incident. WIN’s letter still did not address the complaint against the Code. Clause 7.10 of the Code relevantly provides:
If the material complained of was provided on broadcast relay by another licensee, or was otherwise the responsibility of another licensee, the first licensee may refer the complaint to that licensee for written response direct to the complainant. If a licensee does so, it will advise the complainant within ten working days of receipt of the complaint, and provide the complainant with the name of a contact person at the second licensee.
However, WIN apparently chose not to pursue this option and took responsibility for the complaint. The ABA is concerned at the apparent lack of familiarity with the complaints handling procedures set out in Section 7 of the Code, demonstrated by WIN in this instance. WIN’s assurance that procedures have been reviewed is noted. The ABA will continue to monitor WIN’s performance in this regard.
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DECISION I, Andree Wright, Director Policy and Content Regulation Branch, being the appropriate delegated officer of the Australian Broadcasting Authority, determine that on 28 May 1998 the licensee of WIN Television NSW Pty Ltd, breached clauses 2.12.1, 7.8 and 7.9 of the Code. The program ‘Australia’s Funniest Home Video Show’ was broadcast by WIN Television NSW Pty Ltd, and contained violence that was unacceptable for a PG classification. Following a complaint from a viewer, WIN Television NSW Pty Ltd did not respond to the complaint in the manner set out in the Code.
Signed:
----------------------------Andree Wright day of
dated this
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