But the limited enforcement options available to ACMA have been known for many years. Here we’ll consider the other angle: how identical material broadcast in the same program on pay TV and free-to-air is subject to different rules and how that means some practices are fine on one platform but not on another. We have this opportunity because Sky News, as well as being shown on Foxtel, is broadcast on WIN and Southern Cross free-to-air channels in regional Australia, and ACMA examined the program’s compliance with both the Subscription Broadcast Television Codes of Practice (applying to pay TV) and the Commercial Television Industry Code of Practice (applying to free-to-air television).
In response to multiple complaints from former Prime Minister Kevin Rudd, ACMA looked at segments of Outsiders broadcast on four different days. While one of the segments was ‘Outsiders News’, most of the breaches came from segments titled ‘Outsiders Weather and the Sceptics Ice-Age Watch’, presented by Rowan Dean. ACMA considered this segment to be news content within a current affairs program. Foxtel, the licensee for Sky News, disputed this characterisation, but clips on YouTube clearly show Dean standing in front of a screen discussing recent developments in weather and climate.
Let’s start with accuracy. In one important way, ACMA has greater scope to examine the accuracy of current affairs content on free TV than on pay TV. On pay TV, the code requirement to present content ‘accurately, fairly and impartially’ only applies to news segments and not to the other parts of a current affairs program. But on free to air, ACMA is not restricted to examining only the news segments. It can apply a rule in the Commercial Television Code that requires current affairs programs to ensure that factual material is presented accurately. In principle, the difference between the two codes is crucial: it means that on free-to-air – but not pay TV – panel discussions, editorials and other segments where the presenters are citing research and other information will be subject to an accuracy requirement. In fact, this difference had no effect here because ACMA only looked at the news segments anyway, so the test was essentially the same. On this score, ACMA found – in the four broadcasts on Foxtel, WIN and Southern Cross – the same two breaches and three non-breaches of the accuracy requirements.
But in another respect, ACMA is more restricted in examining current affairs programs on free TV. This is because an obligation to ensure fairness and another to distinguish factual material from commentary and analysis only apply to news programs, not to current affairs programs, even if they contain news segments.
This difference did have consequences. In the Foxtel investigation, ACMA looked at a statement by the presenter on the Vostok ice cores – ‘Clearly, the temperature drives carbon dioxide and not the other way around’ – and found that the program failed to make sufficiently clear whether this was derived from an analysis sent in by a viewer or a separate factual assertion of the presenter. This was not considered in the WIN and Southern Cross investigations because there is no distinguishability rule for current affairs in the Commercial Television Code.
Similarly, the rules on fairness in current affairs programs in the two codes can lead to different outcomes. In the Subscription TV code, there is a general rule that news (including news in current affairs programs) must be fair, whereas in the Commercial TV Code there is no general fairness rule, only a requirement that viewpoints included in the program must not be misrepresented. Sometimes these two provisions line up. For example, ACMA found a segment had misrepresented a report of the Australian Institute of Marine Science (AIMS) when the program said, ‘The coral reefs are fantastic … They’ve come out and said there’s never been so much coral’, without also mentioning AIMS’s warnings on the fragility and longer-term uncertainty of coral reefs. Under the Subscription TV Code, this did not amount to a fair presentation of the findings of the AIMS report; under the Commercial TV Code, it mispresented the views of AIMS. Accordingly, it was a breach of both codes.
But sometimes they don’t align. Another segment used small subsets of data from the Japanese Meteorological Agency (JMA) showing some cooling in temperatures over the last 30 years to suggest, in the words of the complainant, that ‘the research conducted by JMA contradicts scientific expectations of global warming’.
In this case, ACMA found a breach of the fairness rule applying to Sky News on Foxtel because the program did not inform viewers of limitations in the methodology or that the conclusions were significantly different from those made by the JMA itself or of ‘the availability of over 100 more years of temperature data (from the same source) from which a more robust trend line might have been derived’. The same presentation of the same data in the same program on WIN and Southern Cross did not, however, amount to a breach of the Commercial TV Code because there is no general fairness rule for current affairs programs, only a rule that viewpoints included in a program must not be misrepresented. On this occasion, JMA’s views were not actually included, so they could not be said to be misrepresented.
The investigation is perhaps the starkest example I’ve seen of the implications of applying different media standards to the same content appearing on two broadcast platforms.
Derek Wilding, CMT Co-Director