Investigation Report No. 2847

File No. ACMA2012/998

Broadcaster Australian Broadcasting Corporation

Station ABC TV Victoria

Type of Service National broadcasting

Name of Program Lateline

Date of Broadcast 10 May 2012

Relevant Code Provisions

Standards 2.2, 4.1 and 4.5 of the ABC Code of Practice 2011

Date Finalised 16 August 2012

Decision No breach of Standard 2.2 (not presenting factual content in a way that will materially mislead the audience)No breach of Standard 4.1 (impartially presenting news and information)No breach of Standard 4.5 (not unduly favouring one perspective over another)

ACMA Investigation Report – edition of Lateline broadcast by ABC TV on 10 May 2012

The complaintOn 13 July 2012 the Australian Communications and Media Authority (the ACMA) received a complaint regarding a segment of the television program Lateline broadcast by the Australian Broadcasting Corporation (the ABC) on 10 May 2012.

The complainant alleged that the segment was misleading, biased and ‘lopsided’.

The programLateline is a current affairs program broadcast weeknights on ABC TV at around 10:30 pm. The program focuses on both Australian and international current affairs and generally comprises three or four segments, during which a particular issue is covered in some depth.

On 10 May 2012 the program, hosted by Tony Jones, included a segment that focussed on an interview with the President of the United States of America, Barack Obama, during which he publicly endorsed same-sex marriage, the first time a US President had done so whilst in office. The interview took place on 9 May 2012 and was broadcast on the American ABC television network.

The segment lasted for approximately four minutes and was presented by reporter Jane Cowan. It featured the following elements:

excerpts from the interview with President Obama, which was the main element of the segment;

footage of same-sex couples exchanging vows;

footage of soldiers in the Middle East, with a voice-over mentioning that ‘soldiers who risk their lives but can’t marry the person they love’;

President Obama discussing what prompted his ‘change of perspective’;

Ms Cowan stating that the President’s ‘change of heart’ was prompted by earlier pro same-sex marriage comments from the American Vice-President;

an interview with a same-sex couple;

interviews with an Australian Greens Senator and with the Australian Prime Minister, who have differing views on same-sex marriage;

brief comments from an American male opposing same-sex marriage;

an excerpt from a speech by Republican presidential candidate Mitt Romney, during which he outlined his opposition to same-sex marriage;

Ms Cowan explaining that an overwhelming majority of young American Democrats supported same-sex marriage whilst African-Americans and Hispanics typically opposed it.

AssessmentThis investigation is based on submissions from the complainant and the ABC and an electronic copy of the broadcast provided to the ACMA by the ABC.

ACMA Investigation Report – edition of Lateline broadcast by ABC TV on 10 May 2012 2

The ‘ordinary, reasonable viewer’ testIn assessing content against the ABC Code of Practice 2011 (the Code), the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable viewer’.

Australian 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. That person 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 affairs1.

The ACMA asks what the ‘ordinary, reasonable viewer’ would have understood this program to have conveyed. It considers the natural, ordinary meaning of the language, context, tenor, tone and inferences that may be drawn.

Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the Code.

Complainant’s submissionsIn his complaint to the ABC, the complainant stated:

Jane Cowan’s uncritical report on President Obama’s allegedly new gay marriage position was misleading.

Jane Cowan uncritically reported: “The president talked about soldiers who risked their lives but can’t marry the person they love, and people he knows who are living in committed monogamous gay relationships.”

The piece was lopsided, and didn’t give the other side a fair hearing. It was stacked, for the most part, with emotional pro-gay marriage arguments.

Obama was heard: “Malia and Sasha, they’ve got friends whose parents are same-sex couples. It wouldn’t dawn on them that somehow their friends’ parents would be treated differently. It doesn’t make sense to them and frankly, that’s the kind of thing that prompts a change of perspective.”

To which a supportive Cowan added, “The change of heart comes on the heels of these comments from the vice president.”

For the record, this “change of heart” is a myth. Obama was for redefining marriage in 1996. He was against redefining marriage in 2008. And he is now for redefining marriage in 2012. In other words, he was flip-flopping. There was no “change of heart” at all.

Obama’s views didn’t evolve, they flip-flopped.

To my understanding, Malia was born in 1998, Sasha was born in 2001. Here’s Obama in 1996 though. “I favour legalizing same-sex marriages, and would fight effort to prohibit such marriages.”

1 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167

(references omitted).

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Viewers were not informed about his flip-flopping and about the many contradictions associated with his supposed conversion.

In his complaint to the ACMA, the complainant stated:

I sent a complaint to the ABC. But I’m unhappy with their response because they haven’t addressed some of my specific concerns.

For instance, take the rewriting of history in relation to Obama’s position on marriage. Viewers were led to believe that Obama’s position on gay marriage had evolved and he was now supportive.

In reality, Obama came out for gay marriage in 1998. Then he renounced his old position. Still, the ABC failed to report his flip-flop.

Broadcaster’s submissionIn its response to the complaint, the ABC stated:

We are satisfied that the US President formally expressing his support for gay marriage was newsworthy. We cannot agree that by reporting the President’s newsworthy position on the matter, that there was any editorial requirement for the report to evolve into a debate on the issue that included critics of his stance. The report contrasted the view of President Obama with Prime Minister Gillard, who was shown in the report expressing her opposition to the concept of gay marriage.

Lateline has provided comprehensive coverage of the issue of gay marriage, from a broad range of perspectives over time, and will continue to do so on a newsworthy basis. This approach is in keeping with the impartiality standards in section 4 of the ABC Editorial Policies.

Most of your concerns appear to focus on President Obama’s own justifications, such as the gay parents of his children’s friends, gay members of the military and so on. We are satisfied that the reporting of his position is in keeping with the accuracy standards in section 2 of the ABC Editorial Policies.

Your personal interpretation that the reporter was “supportive” is noted. On review, we are satisfied that she did nothing more than state the facts of the matter; we have not been able to detect anything even remotely resembling “support”.

Issue 1: Whether factual content was presented in a way that would have materially misled an audience

Relevant Code Standard2.2 Do not present factual content in a way that will materially mislead the audience. In

some cases, this may require appropriate labels or other explanatory information.

FindingThe ABC did not breach Standard 2.2 of the Code.

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ReasonsGiven the wording of the relevant Code provision, the ACMA must assess whether any inaccuracy in the material would have ‘materially’ misled the audience about a matter of substantial import or consequence, to the extent that it would have been likely to influence the overall impression that the audience would have taken from the program.

From the correspondence, the ACMA understands that the complainant regarded the segment as misleading because of the reference to President Obama’s public endorsement of same-sex marriage as a ‘change of heart’. During the segment President Obama referred to a ‘change of perspective’ on his part regarding the issue of same-sex marriage. Following this remark from President Obama, reporter Jane Cowan stated:

The change of heart comes on the heels of these comments from the Vice President.

This is followed by a statement from the American Vice President that he is ‘absolutely comfortable’ with the idea of same-sex marriage.

The complainant alleged that:

For the record, this “change of heart” is a myth. Obama was for redefining marriage in 1996. He was against redefining marriage in 2008. And he is now for redefining marriage in 2012. In other words, he was flip-flopping. There was no “change of heart” at all.

Obama’s views didn’t evolve, they flip-flopped.

[…]

Viewers were not informed about his flip-flopping and about the many contradictions associated with his supposed conversion.

As has been reported in the media both in Australia and overseas, prior to his public endorsement of same-sex marriage on 9 May 2012, President Obama’s position had been to support civil unions between same-sex couples, but not full marriage rights2. The complainant does not appear to dispute this, stating: ‘He [i.e. President Obama] was against redefining marriage in 2008’. In the ACMA’s view it was therefore not materially misleading for the ABC reporter to refer to President Obama’s public and open endorsement of same-sex marriage in May 2012 as a ‘change of heart’. Furthermore, whilst the complainant has referred to the reporting of ‘President Obama’s allegedly new gay marriage position’ as ‘misleading’, the reporter did not refer to President Obama’s public endorsement of same-sex marriage as a ‘new’ position.

In the ACMA’s view it was also not materially misleading to omit to mention that in 1996 Barack Obama had stated that he was in favour of legalizing same-sex marriage, or to omit to inform viewers of what the complainant described as President Obama’s ‘flip-flopping’ on the issue. The segment did not purport to provide viewers with a history of Barack Obama’s public position on same-sex marriage or a summary of the ‘evolution’ of this position. The focus of the segment was to report on President Obama’s historic and public endorsement of same-sex marriage and the reaction to this endorsement from various sections of American

2 See for example http://www.nytimes.com/2012/05/10/us/politics/obama-says-same-sex-marriage-should-be-legal.html?_r=1&pagewanted=all and http://www.smh.com.au/world/evolved-obama-backs-gay-marriage-20120510-1ydsj.html

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society, as well as to contrast President Obama’s current views with those of others, including Mitt Romney, the leader of the Republican Party.

On this basis, the ACMA considers that the reference to President Obama’s ‘change of heart’ would not have materially misled an ‘ordinary, reasonable viewer’ of the segment.

Accordingly, the ACMA considers that the requirements of Standard 2.2 of the Code have been met.

Issue 2: Whether news and information was gathered and presented impartially

Relevant Code Standard4.1 Gather and present news and information with due impartiality.

FindingThe ABC did not breach Standard 4.1 of the Code.

ReasonsThe ACMA’s general considerations as to whether or not material complained of is compliant with the ABC’s obligations under Standard 4.1 of the Code are set out at Appendix A.

For the following reasons the ACMA is if the view that the segment was presented with ‘due impartiality’:

Whilst the complainant has described the segment as ‘uncritical’, the primary purpose of the segment was not to debate the issue of same-sex marriage or to debate the merits of Barack Obama’s public endorsement of same-sex marriage, but to report on the fact that for the first time in history an incumbent American President had publicly endorsed same-sex marriage.

Neither the program’s presenter, Tony Jones, nor the reporter, Jane Cowan, provided their thoughts or opinions regarding same-sex marriage.

There is no evidence to suggest that anything said by either Mr Jones or Ms Cowan during the segment conveyed a prejudgement or gave effect to their affections or enmities.

As well as featuring Barack Obama’s endorsement of same-sex marriage, the segment also included the views of several people who were opposed to same-sex marriage, including Republican presidential candidate Mitt Romney.

Accordingly, the ACMA considers that the requirements of Standard 4.1 of the Code have been met.

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Issue 3: Whether one perspective was unduly favoured over another

Relevant Code Standard4.5 Do not unduly favour one perspective over another.

FindingThe ABC did not breach Standard 4.5 of the Code.

ReasonsThe ACMA’s general considerations as to whether or not material complained of is compliant with the ABC’s obligations under Standard 4.5 of the Code are set out at Appendix A.

The complainant has alleged that:

The piece was lopsided, and didn’t give the other side a fair hearing. It was stacked, for the most part, with emotional pro-gay marriage arguments.

However, for reasons similar to those outlined above in the assessment of compliance with Standard 4.1 of the Code, the ACMA is of the view that the program did not ‘unduly favour one perspective over another’3.

As stated above, the purpose of the segment was to report on President Obama’s public endorsement of same-sex marriage. It was therefore neither inappropriate nor unjustified for the segment to focus on an interview with President Obama’s during which he outlines the reasons for his public endorsement of same-sex marriage.

Nevertheless, the ACMA also notes that the segment included:

a short interview with an American who was opposed to same-sex marriage;

an excerpt from an interview with the Australian Prime Minister, Julia Gillard, during which she affirmed that she was against recognition of same-sex marriages; and

an excerpt from a speech given by Republican presidential candidate Mitt Romney, during which he outlined his opposition to same-sex marriage.

Accordingly, the ACMA considers that the requirements of Standard 4.5 of the Code have been met.

3 The Macquarie Dictionary online relevantly defines ‘unduly’ as: ‘inappropriately; improperly; unjustifiably’ and ‘perspective’ as: ‘a mental view or prospect’.

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Appendix AIn determining whether or not material complained of is compliant with the ABC’s obligations under Standards 4.1 and 4.5 of the Code, the ACMA generally has regard to the following considerations:

Achieving impartiality requires a broadcaster to present content in a way which avoids conveying a prejudgement, or giving effect to the affections or enmities of the presenter or reporter in respect of what is broadcast. In this regard:

o The ACMA applies the ordinary English meaning of the word ‘impartial’ in interpreting the Code. The Macquarie Dictionary (Fifth Edition)4 defines ‘impartial’ as: ‘not partial; unbiased; just’. It defines ‘partial’ to include: ‘biased or prejudiced in favour of a person, group, side, etc., as in a controversy’.

o The ACMA considers that a helpful explanation of the ordinary English usage of the term ‘bias’ is set out by Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng5 as follows:

‘Bias’ is used to indicate some preponderating disposition or tendency, a ‘propensity; predisposition towards; predilection; prejudice’6. It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgement. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is ‘anything which turns a man to a particular course, or gives the direction to his measures’.

A perspective may be quite reasonably favoured if all the evidence supports it; it is only where the favouring is undue in some way that the Code is breached.

A program that presents a perspective that is opposed by a particular person or group is not inherently partial. Whether a breach of the Code has occurred will depend on the themes of the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast.

Presenters and reporters can play a key role in setting the tone of a program through their style and choice of language. The manner in which a report is presented or reported can influence the conclusions that an ordinary reasonable listener would draw from a broadcast.

The nature of current affairs reporting requires reporters and presenters to be questioning, and at times sceptical, in their analysis of important issues. However, while probing and challenging questions may be used to explore an issue, programs must demonstrate a willingness to include alternative perspectives without prejudgement.

4 Online edition at http://www.macquariedictionary.com.au5 (2001) 205 CLR 507 at 563 [183] Gleeson CJ and Gummow J at 538 [100] agreeing.6 Oxford English Dictionary (Second Edition), meaning 3(a).

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