«COMMERCIAL RADIO INQUIRY Report of the Australian Broadcasting Authority Hearing into Radio 2UE Sydney Pty Limited February 2000 Sydney ISBN 0 642 ...»
In the breaches alleged in relation to clause 2.2(d), the fact withheld from broadcast is the existence of a commercial relationship between Messrs Jones or Laws and the person about whom the broadcast is concerned. When ‘affiliations of an announcer’ extend to commercial relationships with sponsors, and that fact is withheld from a broadcast in relevant circumstances, clause 2.2(d) of the Codes is breached.
2UE and Mr Laws also submitted in relation to some broadcasts that the assumption of disinterestedness was limited by the activities of Messrs Jones or Laws off-air in relation to their sponsors. For example it was submitted that as Mr Laws had been publicly associated with the Australian Trucking Association (through public appearances, blockade interventions, musical compilations, product placement and a press release) over some years and that this must condition listeners’ expectations regarding his disinterestedness or otherwise. While this may be the case for some listeners, the Panel is of the view that listeners should not be required to have an historical knowledge of the presenter’s activities.
Mr Jones said in his submission to the hearing:
Radio 2UE Supplementary Submission: Alan Jones Broadcasts – Breach of Clause 2.2(d) of Code of Practice; Radio 2UE Supplementary Submission: John Laws Broadcasts – Breach of Clause 2.2(d) of Code of Practice It is reasonable to assume that a listener would believe, in the absence of evidence to the contrary, that material is presented accurately and fairly.38 With respect to the question of the commercial arrangements of presenters, however, he
In this case what is at issue is whether listeners were entitled to believe, from the manner in which particular material was broadcast, that there was no commercial arrangements between the presenter and the person who was the subject of the broadcast.39 …
that it would be:
unreasonable and unfair to assume that a listener would make any particular assumption about the existence of terms of commercial arrangement between the presenter and persons or entities who are referred to in material broadcast.40
He submitted further, that with respect to Code 2:
It is not obvious that the existence or content of a commercial arrangement between a presenter and a person mentioned on the presenter’s radio program is a ‘relevant available fact’ within the meaning of clause 2.2(d) whenever the presenter mentions that person on air.’41 In his evidence, and in his submissions, Mr Jones stated that his contracts had no influence
on the material he broadcast. He submitted that his:
lack of explicit awareness of those terms [of his contracts] was part of his explanation for the discrepancy between those terms (or implications which could have been drawn from them) and his actual conduct on air.42
Mr Warren of the Media Entertainment and Arts Alliance said in submissions to the hearing:
We have noted the evidence given to this inquiry by Mr Jones that the payments he received had no impact on the views he formed or the comments he made. Well, with respect, that’s not a decision he had any right to make. That was a judgement only his listeners had the right to make, and by failing to disclose to them that key information about payments received they were denied the right to make that decision or that judgment for themselves.
It is the Panel’s view that the disclosure of any relevant commercial interest by a presenter is an essential element of fairness in the presentation of broadcast material. Under Code 2, listeners are entitled to believe, in the absence of specific disclosure to the contrary, that there was no commercial arrangement between the presenter and the person who was the subject of the broadcast.
THE NEED FOR DISCLOSURETalkback radio is an important source of information for many Australians and some talkback presenters are highly influential figures in contemporary Australian society. It is Submission, Mr Jones, para. 30.
Submission, Mr Jones, para. 45.
Submission, Mr Jones, paras 32.
Submission, Mr Jones, para. 28.
Submission, Mr Jones, para. 71 therefore desirable and in line with Parliament’s objective at section 3(g) of the Act, that the audience of a talkback program should be able to rely on the accuracy and fairness of information imparted during that program by the program’s presenter.
The existence of a commercial arrangement between a third party and a talkback presenter would be a relevant fact in any assessment of material broadcast by that presenter which relates in any way to the third party concerned. Disclosure of such a commercial arrangement is therefore necessary for compliance with clause 2.2(d) of the Codes. Listeners must be able to determine for themselves what weight to put on statements made by radio announcers.
The Panel is of the view that the existence of a commercial arrangement between a talkback announcer and another party should be disclosed on-air.
Even if, as was submitted by Mr Laws, the identities of those with whom an announcer had personal sponsorship agreements were common knowledge, the Panel is of the view that disclosure of the agreements would still be necessary. In Mr Laws’ case, the Panel does not accept the submission that the identities of those with whom he had such agreements were, in fact, common knowledge.
The Panel does not accept Mr Laws’ argument that the identities of those with whom he had personal sponsorship agreements were common knowledge, and that, therefore disclosure of these agreements was not necessary.43 In evidence, Mr Conde and Mr Brennan (persons holding senior management positions at 2UE) and Ms Brownlow (Mr Laws’ producer) admitted that they were not aware of the existence of some of Mr Laws’ agreements, including those with the Road Transport Forum (Australian Trucking Association) and the Registered Clubs Association of NSW.44 In particular, Mr Brennan stated in evidence that although when listening to ‘The John Laws Morning Show’ he sometimes heard Mr Laws mention Star City, the Road Transport Forum, the Registered Clubs Association of NSW, RAMS and QANTAS, he had no idea at the time that Mr Laws had commercial agreements with these organisations.45 An ordinary listener, therefore, could not be expected to have a greater level of knowledge of these commercial agreements than someone like Mr Brennan, a person with undoubted experience in commercial radio and responsible for the programming of the station on which the program was presented.
The Panel is of the view that all listeners are entitled to assume that presenters are ‘disinterested’, or lack a commercial interest, in the topics on which they express an opinion.
The Panel is also of the view that listeners are entitled to make up their minds as to whether an on-air comment by a presenter has been influenced by a commercial arrangement between Transcript, Mr Laws p. 769.
Transcript, Mr Conde, pp. 1532-1533; Transcript, Mr Brennan, pp. 1223-1227; Transcript, Ms Brownlow, pp. 700-703.
See Transcript, Mr Brennan, p. 1272:
Mr Hilton. Being the experienced broadcaster and business person that you are, would you infer from that that there just might be a commercial relationship between John Laws and Star City?
Q. You wouldn’t think that at all?
Q. It wouldn’t occur to you?
A. No. You can have a close association with an organisation because you have great friends there....
that presenter and a third party. In order to be able to make up their minds, listeners must therefore be informed of the existence of any such agreements.
If, in the presentation of material, the existence of relevant agreements between a presenter and other parties were withheld, this non-disclosure would be misleading and would constitute a breach of clause 2.2(d) of the Codes.
4 Code of Practice 3 – Advertising
Code 3 of the Commercial Radio Codes of Practice is as follows:
Purpose: The purposes of this Code are to ensure that advertisements comply with others Codes where applicable, and to limit the time devoted to advertisements.
MEANING OF ‘ADVERTISEMENTS’ One of the key issues in interpreting Code 3 is the meaning to be attributed to the word ‘advertisements’.
‘Advertisement’ is not defined in the Act or in the Codes. As a result, when investigating complaints relating to advertisements, the Authority has to date relied on the common law meaning as determined through judicial interpretation. For the purposes of interpretation of Code 3, the Panel takes, as its starting point, this common law meaning.
In Rothmans of Pall Mall (Aust) Ltd v Australian Broadcasting Tribunal, the Full Federal Court held that:46 the question is an objective one, the intention of the producer/broadcaster is irrelevant;
the material must, on its face, be calculated or designed to draw attention to or promote the use of the product;
the material broadcast does not cease to be an advertisement because it is calculated to amuse or instruct, or to enhance the general reputation of the advertiser or because some viewers may value it more for these qualities than for its commercial message;
payment for the advertisement is not necessary and material could be an advertisement even if it is transmitted without consensual arrangement between the broadcaster and the advertiser.
In Queensland Television Ltd v Australian Broadcasting Tribunal,47 the Federal Court held that it is not necessary that there be a business or commercial element to advertising in the sense of it necessarily being associated with the derivation of profit, or the promotion of goods and services as an incident of commerce.
(1985) 58 ALR 675 (1987) 77 ALR 471 In Director of Public Prosecutions v United Telecasters,48 the High Court, in considering a segment of a television broadcast of the 1984 Grand Final of the NSW Rugby League
competition, commented on what may constitute an advertisement:
Clearly, material may be designed or calculated to draw public attention to a product or to promote its use without explicit description or exhortation. Indeed, an advertisement may be of a subliminal character. Short of that, there are many means, subtle or otherwise, of drawing public attention to a product.
Similar reasoning was used by Deane & Toohey JJ in Australian Capital Television Pty Ltd v
The Commonwealth.49 Their Honours stated (at 171):
The word ‘advertisement’ in Part IID [of the Broadcasting Act 1942] was deliberately left undefined. It would appear that ‘advertisement’ would seem to be used in a broad general sense which would encompass any broadcast or telecast of material ‘designed or calculated to draw public attention’ regardless of whether the broadcast or telecast ‘serves a purpose other than that of advertising’.
McLachlan and Mallam conclude in Media Law and Practice:
So, an ‘advertisement’ is something designed or calculated to draw public attention to, or promote the use or sale of, a product. As a matter of ordinary construction and, in any event, as implied by Sch 2 cl 2(1) and 9(6) of the Act and s 31 of the Australian Broadcasting Corporation Act 1983, it is not necessary, to constitute an advertisement, that the broadcaster have received payment or other consideration for the broadcast of material.
The Panel understands that the use of the word ‘product’ includes a service, person or organisation.
In interpreting Code 3, the Panel has encountered a difficulty with the width of the common law definition of advertisement. The effect of the Code is to prohibit advertisements from being presented as news or as any other kind of programming, other than as advertisements.
It recognises that the promotional purpose of an advertisement may be concealed, for example by disguising it as news or comment. Also program material may be designed or calculated to have a number of purposes, one of which may be to draw attention to or to promote an organisation, product or service.
Were the Authority to apply the common law definition of an advertisement, any material that merely ‘drew public attention to… a product’ would breach the Code, unless it were part of a program that was clearly an advertisement. Application of the common law approach to Code 3 would appear to proscribe a great deal of legitimate promotion of, or publicity for, goods and services provided as part of magazine programs, interviews, reviews, opinion pieces or in other ways. This does not appear to be intention of Code 3.
The Panel believes that Code 3 is meant to apply only to paid advertisements and has read the term accordingly. Thus, the proper meaning of Code 3.1 is to prohibit the presentation as news programs or other programs any material that fits within the common law definition of an advertisement, in circumstances where that material is broadcast for payment or other valuable consideration. In taking this view, the Panel draws the industry’s attention to an apparent deficiency in the drafting of the present Code 3.
Recommendation The Panel recommends that FARB consider introducing a definition of advertising in the revision of Code 3.
Broadcast at the Request of a Sponsor 2UE submitted in relation to matter broadcast alleged to breach clause 3.1(a) which 2UE did
not receive valuable consideration:
This broadcast is not an advertisement for the purposes of clause 3.1(a) because it did not arise out of any arrangement between the licensee and the third party.
A broadcast is not an advertisement merely because of the fact that it mentions a third party, even if the reference is favourable to that third party. It is an essential ingredient of an advertisement that it be broadcast at the request of a third party. For the Panel to find that a particular broadcast was an ‘advertisement’ the Panel must be satisfied that the proximate cause of the broadcast going to air was the request or wish of the third party. The evidence before the Panel does not permit it to make such a finding.50 The Panel does not accept that there needs to be a specific request by a sponsor on each