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					Investigation Report No. 2541
File No.               ACMA2011/155


Broadca ster           Australian Broadcasting Corporation


Station                ABQ Brisbane


Type of Service        National broadcasting


Program                Foreign Correspondent


Date                   9 February 2010


Relevant Code          ABC Code of Practice 2007
                       Claus es 3.2 and 7.2
Date Finalised         23 March 2011


Deci sion              Breach of clause 7. 2 (response within 60 days)
                       No breac h of clause 3.2 (accuracy)




ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)
The complaint
The complainant has raised issues about the accuracy of several as pects of the pro gram
Foreign Correspondent broadcast on ABQ on 9 February 2010.
The complainant wrote initially to the ABC on 18 February 2010. The ABC responded on
1 June 2010. The complainant then wrote again to the ABC (6 and 13 June 2010), alleging
that the response of 1 June had not addressed his issues of concern, and raising further
concerns. The ABC responded on 6 July 2010.
The complaint has been examined in relation to claus es 3.2 and 7.2 of the ABC Code of
Practice 2007.

The program
Foreign Correspondent is a half-hour current affairs program. The broadcast on 9 February
2010 (entitled ‘Hell or High Water’) dealt with the aftermath of the civil war in Sri Lanka and in
particular attempts by members of the Tamil population to leave Sri Lanka.
The program focused to a considerable extent on a group of 150 Tamils who, according to the
program, had left what was described as ‘the southern port of Matara’ in November 2009,
bound for Australia. The reporter related that they had been stopped by a Sri Lankan naval
patrol and taken back to Matara to face charges of illegal migration. The program included
footage of what was purported to be the group’s court hearing at the Mat ara Magistrates
Court, and scenes in the street with relatives of the group after most of them were released
on bail.
Later in the program there was further footage of one of the people released, who will be
referred to in this report as A, at his home in Batticaloa, in north-east Sri Lanka. This section
of the program explored A’s reasons for wanti ng to go to Australia and his experiences in
remand after the navy interc eption, and gave further details of the failed attempt of November
2009.
The program als o included an exchange between the reporter and the President of Sri Lanka,
filmed at a public meeting, where the President gave his views on the phenomenon of Tamils
coming to Australia in boats.
As at 23 March 2011, the program was publicly available on the ABC’s website at
http://www.abc.net.au/ foreign/content/2010/s2814960.htm.

Assessment
The investigation is based on submissions from the complainant, including copies of his
correspondence with the ABC and the ICRP; and a DV D copy of the broadcast, provided by
the ABC. Other sources used have been identified where relevant.




ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)                                    2
Issue 1: Accuracy
Relevant clause of the code
3      News and current affairs content
       3.2   Every reasonable effort, in the circumstances, must be made to ensure that the factual
             content of news and current affairs is accurate and in context.

In assessing the AB C’s compliance with clause 3.2 of the code, the ACMA generally has
regard to the considerations outlined at Appendix 1.
Complainant’s submissions
The complainant’s concerns relate to the following aspects of the program:
       a) the account of events in Matara;
       b) the material relating to Tamils’ reasons for wanting to leave S ri Lank a;
       c) the account of how A funded his attempt to leave S ri Lank a;
       d) the material relating to the level of bail set per person, purportedly by the Matara
          Magistrates Court; and
       e) the material relating to A’s experiences on remand.

Finding
The ABC did not breach clause 3.2 of the code.

Reasons
a) Account of events in Matara
Relevant material

The relevant mat erial is the following:
       REPORTER
       In November last year, 150 Tamils made a daring bid for freedom. They left the
                                                               1
       southern port of Matara in small fishing boats like this bound for Australia, but their
       journey ended in chains. A Sri Lankan naval patrol spotted the men in Sri Lankan
       waters. They were taken back to Matara and thrown in jail.

       REPORTER
       They waited at sea for a promised ship to pick them up. It never came. Instead, the
       navy found them.

Complainant’ s submi ssi on

As expressed in letters to the ABC, the complainant considers this account implausible for the
following reasons:

     There are ‘no Sri Lankan Tamils in the entire Southern Province’;

     Matara is not a port or a fisheries harbour – the closest port is Galle, to the west of Matara;




1
    The words ‘boats like this’ were accompanied by vision of a small boat moving through ocean.




ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)                                     3
   Sri Lankan Tamil boat people
       pay deep sea fishing trawlers to drop them off on the coast off Malaysia and Indonesia, from
       where they get a boat to travel to Australia ... Wh y would they tra vel all the way down to Sinhala
       speaking southernmost tip of Sri Lanka, travel by boat to deep ocean and wait ten days to g et in
       to a cruise liner!! As already explained there are other easier ways of travelling across to the
       coast of Indonesia or Malaysia ;

    and

   Sri Lanka is a ‘poor third world country; it can NOT afford a Naval Presence around the
    Island only in selected PORTS, Sri Lanka does NOT have a radar detection system to
    monitor coastal ocean activities’.

ABC submi ssi on

The ABC was asked if it had any documentary evidence (eg a contemporaneous report in a
Sri Lankan newspaper) to back up the account of events provided in the broadcast. The ABC
responded:
     The code does not require documentary evidence from a third party in order for the
     accuracy standard to be met. This would be unreasonably limiting and would
     hamper the ABC’s ability to co ver national and world affairs.

The ABC was also asked, in the event that it does not have such documentary evidence, for
an account of the efforts the program team made to verify the account while preparing the
program. The ABC responded:
     The ABC filmed inside the court room at Matara … The ABC’s presence within the
     courtroom, aided by a local assistant, … enabled the ABC to confidently report the
     details of the act of illegal migration, for which the 150 Tamils were being held in
     custody.

Assessment

It is considered that the broadcast conveyed, as fact, that 150 Tamils left Matara in fishing
boats in November 2009; were spotted by a Sri Lankan navy patrol; were ret urned to Matara;
and faced court in Matara charged with illegal migration.

This material was therefore subject to the requirements of clause 3.2 of the code, which
requires that every reas onable effort, in the circumstances, be made to ensure that the factual
content is accurate. The delegate has not been provided with definitive proof that the events
related in the program actually took place as reported. Nevertheless the delegat e considers
that the requirements of clause 3.2 were met, taking into account that:

    a) the ABC’s efforts to ensure that factual content was accurate amounted to ‘every
       reasonable effort’ in the circumstances; and

    b) the complainant’s objections do not amount to proof that the events related in the
       program did not take place as stated.




ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)                                             4
The ABC’s efforts: As submitted by the ABC, and partially confirmed by the content of the
broadcast itself, the ABC sent a production team to Sri Lanka. The delegate accepts that this
team visited Mat ara; employed a local assistant; was present during the court appearance of
the 150 Tamils who had supposedly taken part in the attempt to leave Sri Lanka from Matara;
and interviewed at least one participant in the attempt, namely A, about his experiences. The
delegate is satisfied that these efforts amounted, in the circumstances, to ‘every reasonable
effort’.

The complainant’s objections: The delegate is not persuaded by the obj ections raised by the
complainant in his letters to the ABC:

     As regards the presence of Tamils in the Southern Province where Matara is located, it is
      noted that the broadc ast did not present the 150 Tamils, or their relatives, as permanently
      resident in Matara. On the cont rary, the broadcast included the individual case of A and his
      mother, and made clear that their place of residence is Batticaloa, in the north -east.

     As regards the nature of Matara, publicly available information indicates that, while Mat ara
      is not a commercial port under the governance of the Sri Lanka Ports Authority, it is a ‘port’
      in the sense of a harbour from which fishing boats can, and do, depart for and return from
      the sea. For example:

      o    An article in the British newspaper The Independent reported on 14 January 2005
           that ‘in the Matara region, more than 20,000 families rely on the sea for their
                        2
           livelihood’;

      o    a Food and A griculture Organisation (FAO) press release of 3 December 2005
           announced the distribution of 49 out board mot ors and 2,208 nets to approximately
           210 fisherpeople in Matara that day, in an effort to assist fisherfolk to restart their
                                                   3
           livelihoods following the 2004 tsunami;

      o    an article in a Sri Lankan newspaper, The Island (online edition) of 20 March 2007,
           reported an address by Special Projects Minister Mahinda Wijesekara at ‘a meeting
           held at ‘Wellawatta, Totomuna in Matara’ to discuss the pressing problems of the
                                            4
           fisheries community living there; and

      o    Google Maps Australia shows the ‘Thotamuna Fishery Harbour’ located in Matara,
                                                5
           near the mouth of the Nilwala River.

     As regards the existence of ‘easier ways’ of illegally departing Sri Lanka, the complainant
      has not provided any evidence of his contention. Further, even if some Tamils have left Sri
      Lanka in deep-sea fishing trawlers, this does not mean that the particular group of Tamils
      who featured in the program had this option available. Finally, the program conveyed that



2
  Tom Parker: ‘We will not move, say beachfront people of a lost paradise’, The Independent,
    14 January 2005, www.independent.co.uk/news/world/asia, accessed 4 February 2011.
3
  Office of the FAO Representative in Sri Lanka and Maldives: ‘FAO and MFAR collaborate with Italian
    Civil Protection, Japan and Belgium to restart livelihoods in Matara’, FAO press release,
    3 December 2005.
4
    ‘SLFP no longer a party of feudalistic Walawk arayas’, The Island, 20 March 2007,
      www.island.lk, accessed 17 December 2010.
5
    www.maps.google.com.au, search value: Thotamuna Sri Lanka, accessed 4 February 2011.




ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)                                      5
    these Tamils expected to be transferred to a ‘ship’, not a cruise liner, as referenced by the
    complainant.

   As regards the Sri Lankan Navy’s possession of a radar detection system, it is noted that
    the broadcast contained the following statements about the Sri Lankan Navy’s action:

         REPORTER
         A Sri Lankan naval patrol spotted the men in Sri Lankan wate rs.

         REPORTER
         The navy found them.

    Thus the broadcast did not represent that the Sri Lankan Navy had detected the group of
    150 Tamils through a radar detection system.

In his correspondence with the ACMA, the complainant has provided additional reasons for
impugning the plausibility of the account broadcast:

    Familiarise yourself with a map of Sri Lanka, and its demography, especially location of Batticaloa
    and Matara keeping in mind central area of Sri Lanka rises to 2500 metres (8200 feet) above sea
    level and south east of Sri Lanka is a nature reserve with no roads, wonder how they travelled to
                           6
    Matara and stayed.

    Non Sinhala speaking 150 Sri Lankan Tamils would have had to drive around very likely with their
    own transport, for a radius of 30km from Matara and convince Sinhala speaking fisher folk to let
    them use their boats, even if they decided not to alert local police, and offered their boats, these poor
    fisher folk would have insisted on accompanying Sri Lankan Tamils in the boats to ensure their only
    means of livelihood, the boats would be returned to their point of origin.
    150 Sri Lankan Tamils from small town of Batticaloa in the east … would travel very likely via
    Colombo to the non Tamil speaking southernmost tip of Sri Lanka, to hire many boats to hail a cruise
    liner, knowing Sri Lankan situation would require the nerve of James Bond.
    Whoever thought of this mode of operation either does not possess knowledge of Sri Lanka or had
    an ulterior motive.7

With regard to the difficulties of travelling from Batticaloa to Matara, the delegate does not
accept that these would render the account broadcast implausible. As the complainant
himself noted in his submission of 19 December 2010, it is possible to travel from Batticaloa
                                 8
to Matara by rail via Colombo.

With regard to the organisational difficulties, it is noted that the broadcast did not represent
that the 150 Tamils had themselves liaised wit h Matara fisherfolk, either individually or as a
group. The broadcast represented that the attempt ed departure had been organised by
‘people smugglers’:

    REPORTER
    [A and his family] had to sell their house and land to raise $20,000 for the people smugglers.




6
  Complainant to the AC MA, 5 December 2010.
7
  Complainant to the AC MA, 19 December 2010.
8
  www.ourlanka.com , accessed 24 February 2011.




ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)                                           6
The Sri Lankan P resident also gave as his view that the illegal departure of Tamils from Sri
Lanka is organised:

   PRESIDENT
   It was organised by the LTTE.

In summary, the ABC made ‘every reasonable’ effort, in the circumstances, to ensure the
accuracy of the account broadcast, and the complainant’s reasons for believing it implausible
do not persuade.

b) Material relating to Tamils’ reasons for wanting to leave Sri Lanka
Relevant material

An exploration of Tamils’ reasons for wanting to leave Sri Lanka was a major theme of the
entire program and it is therefore difficult to isolate particular passages. However, it may be
considered to include the following statements by the reporter:

   REPORTER
   This is the Catch 22 for young, ethnic Tamils. They face suspicion of involvement in the civil war, so
   it’s dangerous to stay in Sri Lanka, but it’s dangerous to leave.

   REPORTER
   They tell stories of daily harassment from a government and military dominated by ethnic Sinhalese.

   REPORTER
   There’s a lot of talk about whether they’re fleeing persecution or are simply economic migrants, but
   the reality is that for these people it’s one and the same. The war has destroyed their livelihood, their
   sense of safety, an y hope they had of a decent life for their families.

   REPORTER
   Tamils like [A and his family] aren’t just separated from their Sinhalese neighbours by race and
   language, but also religion. Their ancestors migrated from southern India and they’ve maintained
   their Hindu beliefs. The Sinhalese who make up three quarters of the population are overwhelmingly
   Buddhist. In many societies this wouldn’t be a problem, but in Sri Lanka Buddhist faith goes hand in
   hand with Sinhalese identity and nationalism.

   REPORTER
   For many Tamils, the events of the past year have destroyed any reason for staying in Sri Lanka.

There were also statements from Tamils, for example:

   A’S MOTHER
   There is no money here. We have no land, no food, no house; nothing.

   TAMIL WOMAN (MATARA STREET SCENE)
   Not safe in Sri Lanka.

   A
   Fearing for my life I wanted to go somewhere to live happily. No-one in my family could get work. I
   wanted to go so I could look after the family … I received threats. I’d already lost my father. My uncle
   also disappeared. I didn’t want this to happen to me as well … I’m 24 years old and I’ve never felt
   that we have rights … They looked at me as a traitor.




ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)                                           7
In addition, there was the following passage:

      REPORTER
      [The President of Sri Lanka] denies that … Tamils are now fleeing from reprisals.
      REPORTER (to the President)
      Sir, we’re from Australian television, there is much concern about Tamils coming to Australia in
      boats. Will that problem be s olved?

      PRESIDENT
      Yes, don’t worry, I think it is solved, most of the problems. Because it was organised by the LTTE
      because that was the way of – you know – they were drug dealers and traffickers: drugs, arms and
      smuggling humans.

      REPORTER
      But the asylum seekers tell a different story.

Complainant’ s submi ssi on

The complainant submitted:

      Sri Lanka is a poor third world country; an y Sri Lankan, whether they be Tamil, Sinhala, Muslim,
      Burgher etc, would be better off in Australia, just as much as most people l iving in Africa would be
      better off in Australia, It has nothing to do with race or religion. Sri Lanka has a low standard of living
      and low economic opportunities … More than half my batch mates at the University of Colombo were
      Tamils … Most Sri Lankan Tamils when they migrate say there are no basic human rights in Sri
      Lanka for Tamils; this has been their politics for a long time.

Assessment

Given the complainant’s submission, the first issue is whether the material broadcast would
have conveyed to an ordinary, reasonable viewer, as fact, that the reason some Tamils
want ed to leave Sri Lank a was that they faced persecution on the grounds of race and/or
religion.

The broadcast did convey, as fact, that Tamils constitute a minority within Sri Lanka, and a re
ethnically, linguistically and culturally distinct from the majority population. However, the
accuracy of this proposition does not appear to be in dispute. On the danger encountered by
young et hnic Tamils in particular, the reporter’s statement, while contested, is consistent with
other publicly-available information about the situation in Sri Lanka in 2009, and is therefore
                                      9
considered accurate on that basis.

Overall, however, it is considered that an ordinary, reasonable viewer would have understood
that a fear of persecution on racial and/or religious grounds was one of a number of versions
of possible reasons of the exodus of Tamils which was presented and explored in the
broadcast. In this respect, it is noted that the broadcast included the Sri La nkan President’s
point of view that the ex odus was promoted and organised by the LTTE. It also included the
Sri Lankan President’s denial that Tamils were fleeing from reprisals, and alluded to ‘talk’



9
    See, for example, the US Department of State’s 2009 Human Rights Report: Sri Lanka, 11 March
      2010, which noted that ‘Outside of the conflict zone, the overwhelming majority of victims of human
      rights violations, such as extrajudicial killings and disappearances, were young male Tamils’.
      www.state.gov/g/drl/rls/hrrpt/2009/sca/136093.htm , accessed 17 March 2011.




ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)                                               8
about ‘whether they’re fleeing persecution or are simply economic migrants’. Further, the
broadcast presented a range of testimonies from Tamils themselves, many of which
demonstrated a mixture of considerations, including a concern to better themselves
economic ally (‘There is no money here’; ‘No one in my family could get work’).

The broadcast concentrated on the reasons for leaving, or wanting to leave, as given by
Tamils themselves. As such, the reporter’s statements in this regard repeatedly included a
subjective element in their formulation (‘for these pe ople …’, ‘for many Tamils …’), indicating
that he was conveying some Tamils’ version of their situation rat her than making assertions of
fact. It is noted in this respect, in addition, that he referred to the Tamils’ account of their
situation as a ‘story’ (‘The asylum seek ers tell a different story’). Consequently, the
presentation was such that the broadcast, viewed as a whole, did not convey, as fact, that the
reason some Tamils wanted to leave Sri Lanka was that they fac ed persecution on the
grounds of race and/or religion. As such, the material of concern to the complainant did not
constitute ‘factual content’ and was not subject to the requirements of clause 3.2 of the code.

c) The account of how A funded his attempt to leave Sri Lanka
Relevant material

The relevant mat erial is the following:

   REPORTER
   [A and his mother] had to sell their house and land to raise $20,000 for the people smugglers.

Complainant’ s submi ssi on

The complainant submitted:

   I was by Sri Lankan standards a well-paid professional living in Colombo yet when I migrated all my
   rupee savings when converted was 3500 AUD due to Sri Lanka’s foreign exchange rate … It is not
   possible to sell a house and a block of land in Batticaloa in the East to pay 20,000 AUD to people
   smugglers.

In a submission to the ACMA, he referred further to Tamils in Batticaloa having ‘sold their
house and block of land for a questionable 20,000 AUD (to whom)’.

Assessment

The first issue is whether the material broadcast constituted ‘factual content’. Considered in
isolation, it might be considered factual content, as the reporter made an unqualified assertion
about a matter that would lend itself to verification. However, it is noted that the statement
was made in the following context:

   REPORTER
   The asylum seekers tell a different story. We caught up with the mother and son we’d met at prison
   back at their rented home in Batticaloa in the north-east. They had to sell their house and land to
   raise $20,000 for the people smugglers. [A] told me he had taken the boat to avoid being killed.

Considered in this context, the material might well have been interpreted, by an ordinary
reasonable viewer, as relating a subjective version of events provided to the reporter by A
and his family. In this respect, it is noted that the passage began with the reporter referring to
a ‘story’ told by asylum-seekers and was immediately followed by a sentence which began
‘[A] told me …’.



ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)                                        9
It is, however, not necessary to reach a concluded view on the nature of the content, since in
any case, the ABC is considered to have made every reasonable effort, in the circumstances,
to ensure the accuracy of the assertion, given that it sent a production team to Sri Lanka,
employed a local assistant, visited Batticaloa and interviewed the persons involved. It is
accepted that the delegate has not been provided with definitive evidence that A’s family sold
their house and land for $20,000. On the other hand, the complainant has not provided any
evidence that the information was inaccurate, and bases his s ubmission on generalities about
the economic situation of the count ry. Taking all these matters into account, it is considered
that clause 3.2 would be met, even taking the material to be ‘factual cont ent’ .

d) The material relating to the level of bail set per person, purportedly by the
Matara Magistrates Court
Relevant material

The relevant mat erial is the following statement:

   REPORTER
   Relatives must now scramble to find $3,000 to release each man, a sum many simply can’t afford.

Complainant’ s submi ssi on

The complainant submitted:

   I was by Sri Lankan standards a well-paid professional living in Colombo yet when I migrated all my
   rupee savings when converted was 3500 AUD due to Sri Lanka’s foreign exchange rate … It is not
   possible to sell a house and a block of land in Batticaloa in the East to pay 20,000 AUD to people
   smugglers. I also doubt Magistrates Court setting bail at 3,000 AUD.

ABC submi ssi on

The ABC was asked if it had any documentary evidence to back up the statement made
about the amount of bail set in the case. The ABC responded as for Issue 1(a) above. The
ABC was also asked, in the event that it does not have such documentary evidence, for an
account of the efforts the program team made to verify the account while preparing the
program. The ABC responded:

   The ABC filmed inside the court room at Matara. The program’s Sri Lankan assistant confirmed that
   each of the Tamil prisoners who appeared in court that day on the charge of illegal migration had bail
   set at $3000.

Assessment

It is considered that the broadcast conveyed, as fact, that the Matara Magistrates Court set
bail for the 150 Tamils at $3,000 each. The delegate has not been provided with definitive
proof that bail was set at this amount, but considers nevertheless that the requirements of
clause 3.2 were met, taking into account that:

    a) the ABC’s efforts to ensure that the information was accurat e amounted to ‘every
       reasonable effort’ in the circumstances, given that the ABC sent a production team to
       Sri Lanka which was present at the court and employed a local assistant; and

    b) the complainant has not provided any evidence that the information was inaccurate,
       and bases his submission on generalities about the economic situation of the count ry.




ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)                                       10
e) Material relating to A’s experiences on remand
Relevant material

The relevant mat erial is the following:

      A
      When we got our meals they said that we were Australians. They would say, ‘You Australians stand
      behind; others can stand in the front’.

Complainant’ s submi ssi on

The complainant submitted:

      I also doubt fellow prisoners calling asylum seekers Australians; it is just not in the Sri Lankan
      vocabulary. Besides, if the fellow prisoners were Sinhala as you say they would not be able to
      converse in Tamil, just as much as Tamils from the North or the East would not be able to converse
      in Sinhala only the educated can converse in English.

Assessment

The first issue is whether an ordinary, reasonable viewer would have considered the material
factual content. It is noted that the statement is immediately preceded by a statement from the
reporter:

      REPORTER
      [A] claims they were crammed into the worst cells and were beaten and bullied by Sinhalese
      prisoners. [Emphasis added by the AC MA]

Accordingly, an ordinary reasonable viewer would have taken the statement about the Tamil
prisoners being called Australians as a claim being made by A rather than an assertion of
fact. As such the material was not ‘factual content’ and was not subject to the requirements of
clause 3.2.

Issue 2: ABC response
Relevant code clause
7       Complaints
        7.2   … The complainant will receive a response from the ABC within 60 days of receipt of their
              complaint.

ABC submission
Given that the ABC responded on 1 June 2010 to the complainant’s complaint of 18 February
2010, the ABC was asked for comments on its compliance with clause 7.2 of the code. The
ABC responded:

      The ABC acknowledges and regrets that a substantive response was not provided to [the
      complainant] within 60 days; in contravention of section 7.2 of the code. The ABC apologised to [the
      complainant] for the delay in providing its response, 10 and the matter was brought to the attention of
      ABC News management.



10
     The ABC’s response to the complainant of 1 June 2010 begins:




ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)                                           11
Finding
The ABC breached clause 7.2 of the code.
Reasons
The ABC’s response to the complainant was sent more than 60 days aft er receipt of his
complaint.




    Thank you for your letter regarding the Foreign Correspondent report Hell or High Water. I apologise for the
    delay in responding.




ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)                                                  12
APPENDIX 1: CONSIDERATIONS WHI CH THE ACMA HAS REGARD TO IN ASS ESSING
THE ABC’S COMPLIANCE WITH CLAUS E 3.2 OF THE ABC CODE OF PRACTICE 2007

          The meaning conveyed by the relevant statement is assessed according to what an
           ‘ordinary, reasonable viewer’ would have understood the program concerned to have
           conveyed. 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. 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.11

          ACMA must assess whether the relevant statement would have been understood by
           the ordinary reas onable viewer as a statement of fact or an expression of opinion.

          The primary consideration would be whet her, according to the natural and ordinary
           meaning of the language used and the substantive nat ure of the mess age conveyed,
           the relevant material presents as a statement of fact or an expression of opinion.

           o 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 reas onable viewer.

           o 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 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 obs erved 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 present ed accurately, that would amount to a breach of the clause.

          In situations where witnesses give contradictory accounts and there is no objective
           way of verifying the mat erial facts, the obligation 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
           whet her the statement is factual material or opinion, i.e. it is not possible to conclude
           that because a statement was made by an interviewee, it was necessarily a
           statement of opinion rather than factual material.




11
     Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp.164 -167.




ACMA Investigation Report – ABQ – Foreign Correspondent (9/ 2/10)                                   13

				
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