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«COMMERCIAL RADIO INQUIRY Report of the Australian Broadcasting Authority Hearing into Radio 2UE Sydney Pty Limited February 2000 Sydney ISBN 0 642 ...»

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In the rest of the world, Government’s force cable companies to put the free-to-air signals on their cable systems so people get a better TV service.

So why is the Government in Canberra trying to stop our cable companies offering the same service in Australia?

The Government says it’s about copyright issues.

But this doesn’t make much sense, especially when you look at what’s happening in the rest of the world.

As I said, the network’s signal don’t get tampered with, and most of the time the pictures just look clearer over cable and you don’t have to have an aerial cluttering up your roof.

Unfortunately with this re-broadcast issue, the Government is missing the point that a lot of people are going to be inconvenienced by this and denied a valuable service.

Fortunately, this is not a done thing yet in Canberra.

If you agree with me that the Government is getting it wrong on this, why don’t you talk to your local MP, or better still, give the Communications Minister, Senator Alston, a call in Canberra and tell him what you think.985 Material Broadcast by Mr Laws

On 11 March 1998, Mr Laws broadcast the following:

Listen those people in Canberra just never cease to amaze me. Listen to this latest thing, right?

The federal government, in its wisdom, sad yesterday it had decided to stop cable television companies from rebroadcasting over cable the signals from the commercial television networks and the ABC and SBS. So in other words, when you’ve got cable television in your house, when you push ‘9’ you get channel 9. You get free to air television but it comes on the cable and you have the one remote control. When you press ‘2’ you get the ABV and so on.

Now I think there’s about half a million homes around Australia that subscribe [to] cable television so there are going to be a hell of a lot of people wondering what the government has done by making this ruling. The cable television companies rebroadcast the signals from the networks as a service for their customers and they don’t charge anything at all for this on cable service. So if you’ve got cable you push ‘1’ and you get whatever’s on 1, I’m not sure what’s on 1. You push ‘2’ and you get the ABC. When you get to ‘7’ you get Channel 7, then you get 9, you get 10, but it’s all on the one remote control, so you are sitting there with the one unit and that’s all there is to it.

FOX.0002.0249 Now the cable companies don’t charge you anything for this at all. That’s a good thing. I mean if you’ve ever had bad reception from your aerial, the cable fixes that and you get terrific reception, even on SBS. SBS is dying in its bleep, absolutely, and we’ve got to do everything we can to save SBS according to the government, well this is a way to do it, because at least you got a decent picture if it came through on cable.

The cable companies do all of this without tampering with the network signals at all and they put the channels in exactly the same spot as they appear on your regular TV set and they do it quite legally. It’s all really about making things more convenient for people to watch their televisions and it seems very clear to me that the cable companies provide a terrific service here. I am not talking about one particular cable company, I am talking about cable companies and what they do is good.

In the rest of the world, governments force cable companies to put the free to air signals on the cable systems so the people get a better television service. That’s what they do, they say, ‘well okay, you can have cable television but you’ve got to put the free to air in its right place on your cable.’ So why in the world could you tell me, is the government in Canberra trying to stop our cable companies offering the same service in Australia that is known and accepted all over the world?

The government says, the stuff they talk, they say it’s about copyright issues. What BS! It doesn’t make any sense, especially when you look at what’s happening in the rest of the world.

As I said, the network signals don’t get tampered with at all, most of the time the pictures just look clearer over the cable and you don’t have an aerial cluttering up your roof.

Now I am [a] Channel 9 freak as you know because I watch my friends, plural, because I have a whole lot of friends on Channel 9. I see a better picture when I watch it through the cable that I get when I watch it through the regular aerial. I can actually see SBS. On a regular aerial I can’t see SBS.

But you know, with this rebroadcast issue, the government is missing the point that a lot of people are going to be hugely inconvenienced by this ruling and denied a service that I think is a valuable service. Elderly people in particular, are people who are incapacitated and spend a lot of time looking at television because it’s [one] of the only amusements they have. If they have cable television, they are going to have to have two remote controls. When you want to watch free to air television you’ve got to grab another one and you’ve got to switch - it’s just craziness!

I don’t think it’s done yet. They are talking about doing it. I don’t think it’s done yet but if you agree with me that the government is getting it wrong, and you are getting it wrong, Richard Alston, what a nice man you are, but Richard look, you’ve screwed up on that CD thing and this is wrong. This is really wrong.

Elsewhere in the world it’s accepted and it works wonderfully well, but look, if you agree with me and there have got to be half a million people listening to us who have got cable without having to tamper round. Nobody’s losing anything, you still get all the commercials, you get better quality. I would think Channel 9 would be delighted because the picture is better. SBS at least can be seen by people.

If you think they’ve got it wrong, get in touch with them in Canberra. Get in touch with Richard Alston, fax him or give him a telephone call and tell him it’s dumb. Yet another dumb thing. When are they going to stop doing dumb things and do something bright or talk to someone before they do it? 986

–  –  –

Mr Laws’ Submission to the Hearing

Mr Laws made the following submission in relation to this broadcast:

The existence of the commercial relationship between Foxtel and Mr Laws must have been apparent to the listeners. He had been reading advertisements live for Foxtel on his program and had been giving it other ‘plugs’ for many months leading up to the making of these comments. His listeners must have known he was an enthusiastic supporter of the Foxtel Cable Television Network.

Secondly, … at least since 21 December 1997, there had been extensive publicity in the newspapers that John Laws was to front a pay television show on the Foxtel network which was to commence on 30 March 1998.987 Exhibit 17 reveals this was mentioned in the newspapers on at least twenty two occasions prior to this broadcast being made. This probably does not take into account references made by Laws on-air to his forthcoming cable television program. His listeners must have known where he was coming from when he made these comments, and that he was not ‘disinterested’.

Thirdly, when he made these comments, they represented his genuinely held opinions which he expressed for the primary purpose of informing his audience about these important pay television issues. He said in his statement, and he was not cross examined to the contrary, that what he said he believed to be true and of interest to his audience. While he used the notes provided to him by Foxtel as the basis for his comments, he expanded upon the notes in order to explain the issues to his audience. The decision whether, and in what manner, to make these comments was his own.

If one reads Mr Laws’ comments, one cannot point to anything misleading about the manner in which they were presented. It is not suggested there was anything wrong in anything he said or implied. All that Counsel Assisting can point to is the bare fact that he omitted to disclose a fact which his listeners must have known in any event, namely, that he had a commercial relationship with Foxtel. It is submitted that this omission, in all the circumstances, did not mean that Mr Laws’ comments were presented in a misleading manner – especially in the absence of any evidence from listeners that they believed he was entirely disinterested upon the subject of pay television. One could not live in Australia and not know he was a keen supporter of pay television and was about to host a flag ship program for the Foxtel cable television service. Listeners may be taken to know or infer he would be paid for this service.988 2UE’s Submission to the Hearing In addition to the general submissions made by 2UE, 2UE also made the following

submissions in relation to this broadcast:

There are particular features of the broadcast and the announcer’s position which would have dispelled, or limited the scope and nature of the assumption of disinterestedness.

The fact of a commercial arrangement between FOXTEL and John Laws had not been withheld – the existence of such a relationship was clearly in the public domain.989 Laws had been undertaking live read advertisements for FOXTEL prior to this broadcast and this would also have affected the formation of any assumption by listeners.

Exhibit 17.

Submission made by Mr John Laws submission – Foxtel, paragraph 13.

See, for example, Exhibit 17; Transcript, Mr Mockridge, pp. 331-337; and Paragraph 52 of the written submissions of Counsel Assisting A Laws live read was booked for this day. A contemporaneous live read may affect the way in which a listener would consider any opinion expressed by Laws concerning the advertiser.

There does not appear to be any dispute that the broadcast represented the genuine views of John Laws.990 FOXTEL had established prior to preparation of the notes, that the material represented Mr Law’s views. Mr Mockridge gave unchallenged evidence that, in his view, the information set out in the notes was not provided, under the relevant endorsement agreement.991 Additions and changes to the material changed the emphasis of the broadcast from the notes provided by FOXTEL.

The broadcast refers to ‘cable companies’. FOXTEL is not named in the broadcast.992 Foxtel’s Submission to the Hearing

Foxtel made the following submission in relation to this broadcast:

it is not right to say … that the ‘text’ of the broadcast on 11 March 1998 came from FOXTEL.

The broadcast incorporated material from FOXTEL, but added to and changed FOXTEL’s notes substantially. The extensive material Mr Laws himself incorporated concerning the extent to which the announced Government policy disadvantaged the elderly and SBS significantly altered the emphasis of FOXTEL’s notes.

… to the extent that there is any suggestion that the broadcast concerning re-transmission on 11 March 1998 involved favourable on-air editorial comment for FOXTEL, it must be remembered that the material ultimately derived from a joint statement of both FOXTEL and Optus dated 10 March 1998993 and concerned a matter of great public interest.994 The Panel’s Findings The Panel finds that this broadcast is a current affairs program. It purports to concern matters focussing on political and social issues of relevance to the community.

The Panel finds the available fact of Mr Laws’ contractual agreement with Foxtel Management Pty Limited was withheld. The existence of Mr Laws’ agreement with Foxtel was not disclosed in the broadcast.

The Panel finds the available fact was relevant because:

the issue was important to Foxtel. Foxtel sent talking points to Mr Laws;995 ♦ Outline paragraph 22; Transcript, Mr Mockridge, pp. 343-344.

Transcript, Mr Mockridge, p. 353.

Radio 2UE Supplementary Submission: John Laws Broadcasts – Breach of Clause 2.2(d) of Code of Practice 2, F1 Exhibit 20.

Exhibit 21; Submission made by Foxtel – Submission 2, pp. 6-8.

FOX.0002.0249 ♦ the broadcast was favourable to Foxtel. Although Mr Laws does not distinguish between Foxtel and other pay television providers, Mr Laws says ‘Now the cable companies don’t charge you anything for this at all. That’s a good thing’;996 ♦ Mr Laws acted as an advocate for the issue raised by Foxtel, namely allowing retransmission of free to air television signals on pay television. Mr Laws says ‘If you think they’ve got it wrong, get in touch with them in Canberra. Get in touch with Richard Alston, fax him or give him a telephone call and tell him it’s dumb. Yet another dumb thing. When are they going to stop doing dumb things and do something bright or talk to someone before they do it?’;997 and ♦ the notes prepared by Foxtel form the basis for the broadcast by Mr Laws. The entire text of the notes can be found throughout the broadcast: Mr Laws did not substantially change Foxtel’s notes. Where Mr Laws added to these notes in the broadcast, the Panel is of the view that these additions do not substantially alter the emphasis of the notes.

Differences between the material provided to Mr Laws and the material broadcast by Mr Laws are not germane to whether this broadcast is misleading due to the withholding of a relevant available fact, namely a commercial arrangement between Foxtel and Mr Laws. The Panel therefore does not accept the submission of 2UE in this regard.

The Panel notes 2UE’s submission that a ‘Laws live read was booked for this day and a contemporaneous live read may affect the way in which a listener would consider any opinion expressed by Laws concerning the advertiser.’ The Panel also notes 2UE’s submission that Mr Laws was undertaking live read advertisements prior to this broadcast and this would also have affected listeners’ assumptions regarding disinterestedness or otherwise.

However, live read advertisements must not be presented as news programs or other programs.998 To the extent that any advertising campaign read live by Mr Laws associated him, in the minds of listeners, with the interests of Foxtel, the Panel notes that this would cause it to be concerned that a breach of clause 3.1(a) of the Code may have occurred.

The Panel therefore does not accept the submissions of 2UE or Mr Laws in this regard.

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