File no. Acma2014/314 Broadcaster

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  In April 2014 the Australian Communications and Media Authority (the ACMA) commenced an investigation into the program Conversations with Richard Fidler, broadcast by the Australian Broadcasting Corporation (the ABC) on 6WF on 15 October 2013.
  
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  The program is described on the ABC radio’s website¹ as
  

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  Elsewhere on the ABC website² the program is described as:
  

Conversations is funny, surprising and often deeply moving.

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  On 15 October 2013 the program featured the interviewee recounting stories from her life including her experiences growing up in a particular Christian community and her work as a dominatrix in New York.
  
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  A transcript of the broadcast is at Attachment A.
  
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  In her complaints to the ABC, the complainant alleged that:
  

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  ‘the stories told by [the interviewee] are gross distortions’
  
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  the program included ‘lies’ about the person referred to as the interviewee’s uncle
  
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  references to ‘the practices of home schooling, exorcisms and living in a closed religious community are all lies.’
  

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  In particular, the complainant disputed a number of specific assertions made by the interviewee including:
  

In her interview she refers to an Uncle who was the pastor of the fundamentalist Christian church she attended within the closed religious community she was brought up in. She also claims this uncle routinely carries out exorcisms […]

These are lies:

[The interviewee] has never lived in a closed community, she lived on a few acres of land in the township [town] just north of Perth with her mother.

[The Uncle] has never been a Pastor, let alone a Pastor at a cult like church […]

[The Uncle] has never carried out an exorcism in his life.

[The interviewee] has never been home schooled […]

[The interviewee] did not escape her mother to live with [her] grandmother for three years before going to university, she has never lived with [her] Gran

[…]

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  The complainant also considered that the program included ‘faith based bigotry that seemed to be the agenda of the interview’ and stated:
  

Both Richard Fidler and [the interviewee] seemed intent on mockery and ridicule with Fidler stating his own personal opinions in this interview with derisive comments like “…there’s something quite mean spirited about Christians attitude concerning the rapture…like nah nah nah nah I told you so!” … [The interviewee’s] recounts painted all the Christian people she grew up with in a very negative light.

[…]

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  Relevant extracts of the complainant’s submissions to both the ABC and the ACMA are at Attachment B.
  
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  The ABC responded to the complainant that it did not agree that Mr Fidler was intent on ridiculing and denigrating a faith and that:
  

[...]

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  Relevant extracts of the ABC’s response are at Attachment C.
  

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  The complainant also considered that the program included ‘defamatory statements’ about the uncle referred to in the interview. The ACMA does not have jurisdiction to make decisions in relation to defamation matters. Accordingly, these aspects of the complaint have not been investigated.
  
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  In her complaint to the ACMA, the complainant also raised concerns about impartiality and considered that the program breached the Code as it ‘was not giving Christian belief fair treatment’. As the complainant did not first complain to the ABC about alleged compliance with standard 4 (impartiality) of the Code as required under section 150 of the Broadcasting Services Act 1992 (the BSA), the ACMA has not pursued this aspect of the complaint in this investigation.
  

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  This investigation is based on submissions from the complainant, the ABC’s response to the complainant and a copy of the relevant broadcast provided to the ACMA by the ABC. Other sources used have been identified where relevant.
  
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  In assessing content against the Code the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ listener or viewer.
  
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  Australian courts have considered an ‘ordinary, reasonable’ listener or viewer to be:
  

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  The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images and inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).
  
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  Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then assesses compliance with the Code.
  
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  The ACMA’s investigation has considered the ABC’s compliance with standards 2.1 and 7.7 of the Code.
  

The ABC did not breach standard 2.1 of the Code.

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  Standard 2.1 of the Code provides:
  

2.1 Make reasonable efforts to ensure that material facts are accurate and presented in context.

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  Relevant Principles in relation to accuracy in the Code include the following:
  

The ABC requires that reasonable efforts must be made to ensure accuracy in all fact-based content. The ABC gauges those efforts by reference to:

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  The type, subject and nature of the content;
  
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  The likely audience expectations of the content;
  
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  The likely impact of reliance by the audience on the accuracy of the content; and
  
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  The circumstances in which the content was made and presented.
  

[...]

The ABC should make reasonable efforts, appropriate in the context, to signal to audiences graduations in accuracy, for example by querying interviewees, qualifying bald assertions, supplementing the partly right and correcting the plainly wrong.

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  The type, nature and content of a program and the likely audience expectations of that content play a role in determining reasonable efforts in ensuring accuracy.
  
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  The program Conversations with Richard Fidler is an interview format which allows listeners to hear an individual’s experiences of life. The ACMA considers it likely that the audience would expect the program to deliver a first person account of that person’s own experiences.
  
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  The requirement to ensure accuracy only applies to material facts, not opinion. The considerations the ACMA uses in assessing whether content is factual in character are set out at Attachment D.
  
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  The ACMA considers that the content of the program contains a mixture of opinions and assertions which can be characterised as factual.
  

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  The ACMA notes that some of the statements which the complainant alleges are inaccurate are opinions, as they are subjective and judgemental statements.
  
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  For example, the complainant has asserted that reference to the Christian group as a ‘closed’ religious community is inaccurate. The ACMA notes that Mr Fidler referred to the religious community as a ‘closed’ community on one occasion. The ACMA considers that his reference to a ‘closed’ religious community is a judgment made by Mr Fidler on the basis of the interviewee’s views and recollections on growing up as a member of a particular Christian group. The ordinary reasonable listener would have understood him to use this term to describe a group that sets itself apart in some way from other Christian communities.
  
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  The ordinary reasonable listener would have also understood statements made by the interviewee concerning the nature of the community as being ‘fundamentalist’, and what this entailed, were opinion inasmuch as they were subjective and conveyed the interviewee’s views and recollections of her life.
  
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  Other matters disputed by the complainant were not explicitly stated by the interviewee or Mr Fidler but were inferences drawn by the complainant from what was said. For example, the interviewee talks about the conduct of exorcisms within the church, but does not specifically attribute the conduct of such exorcisms to her uncle. Nor does she state that her uncle was a Pastor in the church.
  
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  Accordingly the requirement to ensure factual accuracy is not applicable in the cases discussed above.
  

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  The program also contains statements that may be characterised as factual assertions. Some of the specific assertions made by the interviewee that were disputed by the complainant, include:
  

‘he [my uncle] started this church in that area, in the town’

‘I moved to Grandma’s’

‘so there was exorcisms, they [the church] did do some exorcisms’

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  In considering the context of the program, which gives the listener the opportunity to hear the personal recollections of the interviewee, the ACMA considers the ordinary reasonable listener would have understood that they were listening to a very personal and subjective account and would not have relied too heavily on one person’s recollections in assessing the accuracy of any factual statements.
  
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  When considering whether the ABC made reasonable efforts to ensure material facts were accurate and presented in context the ACMA also notes:
  

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  the focus of the lengthy interview was the interviewee’s memories of childhood as part of a Christian community, her emergence to attend school and university, her work as a dominatrix in New York, her interest in Judaism and study of theology, rather than a focus on allegations against the church community and it members
  
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  it was not unreasonable of the ABC and the presenter to rely on the interviewee’s account of her recollections of her own life
  
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  the passage of time can affect the standard of verification reasonably required and many of the events recounted, particularly those disputed by the complainant, are from the interviewee’s childhood.
  

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  On this basis, the ACMA considers the ABC made reasonable efforts to ensure factual accuracy in the context of the program. Accordingly the ACMA finds that the ABC did not breach standard 2.1 of the Code.
  
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  The complainant also considers that the program breached standard 2.2 which prevents the ABC from presenting factual content in a way that will materially mislead the audience.
  
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  For the reasons stated above, the ACMA considers that ABC took reasonable steps to ensure factual accuracy and did not present factual content in a way that would materially mislead the audience.
  

The ABC did not breach standard 7.7 of the Code.

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  Standard 7.7 of the Code provides:
  

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  Standard 7.7 of the Code must be applied in accordance with the overarching principles of standard 7. These include the following:
  

Applying the harm and offence standard requires careful judgement. Context is an important consideration. What may be appropriate and unacceptable in one context may be appropriate and acceptable in another. Coarse language, disturbing images or unconventional situations may form a legitimate part of reportage, debate, documentaries or a humorous, satirical, dramatic or other artistic work.

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  In applying the harm and offence standard the context of the program is significant. As noted above, the program provides listeners with the opportunity to hear the interviewee’s recollection of events in her life.
  
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  The ACMA notes that the interviewee’s childhood involvement in the church and her move away from her early faith based beliefs are central to her story. While some of the views expressed during the broadcast may be seen as presenting the Christian faith in a negative light, the discussion of religion is within the bounds of the interviewee’s experiences and how they impacted her life and is therefore relevant within the context of the program.
  
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  The ACMA also notes that Mr Fidler asks the interviewee on two occasions whether the church offered any benefits, asking whether the church had been able to help the interviewee’s mother and those members within the church that the interviewee said had drug and alcohol addiction problems.
  
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  While some of the comments made by Mr Fidler were critical of certain aspects of the ‘fundamentalist’ Christian faith described by the interviewee, the ACMA considers that the ordinary reasonably listener would have understood that these were made in the context of the interviewee’s experiences and would not be considered as encouraging or condoning prejudice against the Christian faith.
  
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  Accordingly the ACMA finds that the ABC has not breached standard 7.7 of the Code.
  
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  The complainant also considers the program breaches standard 7.1 which requires the ABC to ensure that content likely to cause harm or offence is justified by the editorial context. The ACMA notes that some of the views expressed concerning the ‘fundamentalist’ religious community have the potential to cause offence to those that may belong to, or associate themselves, with that community. However, for the reasons stated above, the ACMA considers them justified by the editorial context.