******

So far in December Adultshop.com have not had much luck with the OFLC. Their DVD subsidiary Calvista have just had two more titles banned.  DVD's of LAID UP and LET ME BREATHE were both hit with RC ratings by the Classification Board.

News concerning two previously banned titles. Metro Interactive have censored the DVD's of I WAS TIGHT YESTERDAY 05 and PURE FILTH 03. Both revised versions have just been awarded X18+ (Explicit Sex) ratings.

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The Australian Communications and Media Authority are calling for public submissions for a review of reality TV programming. The closing date is February 1st 2007.

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Currently before Parliament is the Classification (Publications, Films and Computer Games) Amendment Bill 2006. 

It intends to amend the:

Broadcasting Services Act 1992, Classification (Publications, Films and Computer Games) Act 1995 and Freedom of Information Act 1982 to facilitate the integration of the Office of Film and Literature Classification into the Attorney-General’s Department; and Classification (Publications, Films and Computer Games) Act 1995 in relation to: the functions of the Classification Board and the Classification Review Board; the operation of the National Classification Scheme; repeal expired or redundant provisions; and transfer responsibility for delegated legislation from the Director of the Classification Board to the Attorney-General.

***

Classification (Publications, Films and Computer Games) Amendment Bill 2006
Stage First Reading 
Private No
Name Attorney-General portfolio 
Bill number 06195
Date 07 December, 2006 
Database Bills
Source House

Classification (Publications, Films and Computer Games) Amendment Bill 2006 is available as a PDF file

2004-2005-2006

The Parliament of the Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

***

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT BILL 2006: Second Reading

Date 07 December, 2006 
Database House Hansard

Speaker Ruddock, Philip, MP (Berowra, Attorney-General, LP, Government) 
Page 9
Proof Yes 
Source House
Stage Second Reading 
Type Speech
Context BILLS 
Main Committee No

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT BILL 2006 
Second Reading 

Mr RUDDOCK (Berowra—Attorney-General) (9.48 a.m.)—I move:

That this bill be now read a second time.

The Classification (Publications, Films and Computer Games) Amendment Bill 2006 amends the classification act to implement government policy on the accountability framework for statutory agencies and to ensure the national classification scheme’s ongoing smooth operation in a changing technological environment.

The bill facilitates the integration of the Office of Film and Literature Classification into the Attorney-General’s Department.

Classification Board and Classification Review Board functions remain unchanged. But the Director of the Classification Board will cease to have agency management powers and financial responsibilities. The Attorney-General’s Department will provide staff to support each of the boards and assume responsibility for their financial administration.

These changes reinforce the independent functions of the Classification Board and the Classification Review Board. The bill confines the existing powers of the director to matters associated with the board and gives separate statutory powers to the convenor for matters associated with the review board.

The bill also transfers from the Director of the Classification Board to the Attorney-General, as the minister administering the act, responsibility for delegated legislation, consistent with ministerial responsibility.

This includes the power to determine markings to be displayed about classified material—to be exercised in consultation with state and territory censorship ministers. The minister, rather than the director, will also determine fee waiver principles to be applied by the director and the convenor when waiving fees payable under the act for applications.

The bill also makes amendments to improve the operation of the national classification scheme—responding to industry concern about marketing imperatives and the law’s application in light of changing technology. They streamline the classification process and reduce the regulatory burden on industry. These amendments have been the subject of consultation including with state and territory censorship ministers.

Descriptions or translations such as sub-titling, captioning, dubbing or audio descriptions, and navigation functions such as interactive menus, are increasingly added to already classified films. Currently, these constitute ‘modifications’, necessitating the film’s reclassification.

However, descriptions or translations do not provide new content. They provide access to already classified material for the ageing population, and for people with language barriers, or visual or hearing impairments. Likewise, menu functions merely facilitate navigation around new media such as DVDs. They include ‘play’ or ‘fast forward’ functions, or menu options to navigate between selections.

Following amendment, such descriptions or translations and navigation functions will no longer be considered modifications requiring reclassification.

This bill also facilitates the addition of related but new material to already classified feature movies when they are re-released on disc for sale or hire. These include additional scenes, interviews with the director, and even featurettes taking their meaning from the content of the film.

Currently, these additions mean that the disc constitutes a new ‘film’ as defined, and must be classified, even though the feature movie on the disc has already been classified. Additional content rarely results in a classification different from that of the feature film on the disc.

The bill provides for an additional content assessment scheme whereby a person appropriately trained and authorised by the director may recommend to the Classification Board the classification and consumer advice for additional content released with already classified or exempt films. The Classification Board will retain responsibility for classifying the film. But its consideration will be assisted by the assessment of an authorised assessor.

The scheme contains safeguards to ensure the integrity of the system. These include requiring the board to revoke classifications in specified circumstances which demonstrate that the assessment on which the classification was based was highly unreliable and the board would otherwise have made a different classification decision.

In addition, the director has a power to revoke, in specified circumstances, an additional content assessor’s status or, in serious cases, bar them from being an assessor for up to three years, or bar an applicant from using the additional content assessment scheme for up to three years. These powers are permissive, and only exercisable under certain conditions. They are designed to deter users from abusing the system or providing lax or inadequate assessments of additional content. Decisions by the director to revoke an assessor’s status or bar an assessor or applicant from using the scheme may be reviewed by the Administrative Appeals Tribunal.

The additional content assessment scheme was developed following public consultation on a discussion paper released earlier this year. The amendments are modelled on the existing authorised computer games assessor scheme which has been operating successfully for a number of years.

The bill contains several other minor amendments which respond to changing technology and marketing initiatives and miscellaneous technical amendments.

The amendments contained in this bill will ensure the national classification scheme continues to serve both industry and the public well—responding to the needs of the rapidly evolving world of entertainment media but guaranteeing the reliability of classification information for consumers.

I commend the bill to the House.

Debate (on motion by Ms Roxon) adjourned.

***

A comment regarding the above amendments.

"The minister, rather than the director, will also determine fee waiver principles to be applied by the director and the convenor when waiving fees payable under the act for applications."

In the past, Des Clark, the Director of the OFLC, has allowed fee waivers to groups such as the Australian Family Association. Much to their displeasure, he had also refused them. With the Attorney-General calling the shots, these groups are going to have a much easier time challenging ratings.

******

The above is just another example of how minority groups such as the Australian Family Association are getting their voice heard. If you are one of the silent majority then I suggest you go out and purchase yourself a copy of Richard Dawkin's new book THE GOD DELUSION. It's an essential read for anyone concerned about the increasing religious influence in society. 

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Twentieth Century Fox have lost their appeal to have the December 4th M rating of ERAGON dropped to PG. Instead the consumer advice was changed from 'Moderate Violence' to 'Moderate Fantasy Violence'.

Australian Government
Classification Review Board
11 December 2006
MEDIA RELEASE 

Eragon classified M upon review 

A 4-member panel of the Classification Review Board has determined, in a unanimous decision, that the film, Eragon is classified M with the consumer advice, “Moderate fantasy violence”. 

In the Classification Review Board’s opinion, Eragon warrants an M classification because it contains frequent scenes of violence and menace of moderate impact. 

“The film includes depictions of a young woman writhing in pain and a graphic representation of an arrow piercing a man’s forehead in close-up,” said Classification Review Board Convenor, Maureen Shelley.

“Despite the fantasy genre mitigating the impact of individual scenes, the cumulative effect of the repeated violence is such that it requires a mature perspective.” 

M is an advisory classification. Films classified M are not recommended for persons under 15 years of age. There are no legal restrictions for the M classification. 

The Classification Review Board convened today in response to an application from the distributor, 20th Century Fox Film Distributors, to review the M classification of Eragon made by the Classification Board on 4 December 2006. 

In reviewing the classification, the Classification Review Board worked within the framework of the National Classification Scheme, applying the provisions of the Classification (Publications, Films and Computer Games) Act 1995, the National Classification Code and the Guidelines for the Classification of Films and Computer Games. 

The Classification Review Board is an independent merits review body. Meeting in camera, it makes a fresh classification decision upon receipt of an application for review. This Classification Review Board decision takes the place of the original decision made by the Classification Board.

The Classification Review Board’s reasons for this decision will appear on the OFLC website when finalised.

******

Here are a couple of the more interesting recent complaints heard by the Advertising Standards Board. Lots more can be found at their website (adstandards.com.au) under complaints.

The following two are from advertisements that were either modified or discontinued.

Advertising Standards Board Case Report 

1. Complaint reference number 455/06 
2. Advertiser Sony Computer Entertainment Aust (Tekken – Dark Resurrection) 
3. Product Toys & Games 
4. Type of advertisement TV 
5. Nature of complaint Discrimination or vilification Other – section 2.1 
6. Date of determination Tuesday, 14 November 2006 
7. DETERMINATION Upheld – discontinued or modified

DESCRIPTION OF THE ADVERTISEMENT 

This television advertisement for a computer game begins in the style of late-night “adult” commercials and opens with a female voiceover asking “Guys. Are you looking for a little one-on-one girl action fantasy?” As computer-generated images of three young women appear on screen the voice continues “Well Lili, Anna and Christie are waiting for you right now”. A short burst of game play is shown with martial arts action and noises, and a continuation of the female voiceover in an aggressive tone “Waiting to kick your **** ass, you ****. C’mon.” 

THE COMPLAINT 

Comments which the complainant/s made regarding this advertisement included the following: 

The girl looks under the age of consent…That she is a computer-generated image is, I believe, irrelevant to the issue that an image of a child is being sexualised. 

THE ADVERTISER’S RESPONSE 

Comments which the advertiser made in response to the complaint/s regarding this advertisement included the following: 

Our intent was humour not offence. 

The premise of the ad is indeed taking the well-known “late-night” adult advertising and subverting it, so that rather than being passive women, the characters are shown as dominant and assertive over the type of man that might have fallen for the initial set-up. With the intended take-out being that the characters “punish” male viewers who “fall” for the advertising, by threatening to beat them up – NOT provide and sexual gratification. 

It is also our understanding that all of the characters within the game are intended to be adults. There was certainly no intention to sexualise a child within the advertising. 

THE DETERMINATION 

The Advertising Standards Board (“Board”) considered whether this advertisement breaches section 2 of the Advertiser Code of Ethics (the “Code”). 

The Board viewed the advertisement several times and considered whether the advertisement contravened the provision of the Code dealing with sex, sexuality and nudity. 

In particular, the Board considered the first shot of the advertisement which depicted a computerised image of a young girl. The Board agreed that the girl - although clearly a computer-generated image – appeared to be well under the age of sexual consent. 

The Board then considered the image in the light of the voiceover which the Board considered to be highly sexual in nature. The Board agreed that the sexual nature of the voiceover strongly sexualised the image of a child. The Board did not accept that the computer-generated nature of the image was relevant to whether or not it depicted a sexualised child. The Board considered that the use of an image of a child in an overtly sexual context was a depiction that was not sensitive to the relevant audience, or any audience. 

The Board found that the advertisement contravened the section Code 2.3 of the code dealing with sexuality. 

The Board therefore upheld the complaint. 

ADVERTISER’S RESPONSE TO DETERMINATION 

The advertisement ceased broadcasting on September 20 2006 and we have no further plans to broadcast it again in either its current or modified form.

******

Advertising Standards Board Case Report 

1. Complaint reference number 371/06 
2. Advertiser Roadshow Film Distributors Pty Ltd “Lady in the Water” 
3. Product Entertainment 
4. Type of advertisement TV 
5. Nature of complaint Other - Causes alarm and distress to children 
6. Date of determination Tuesday, 10 October 2006 
7. DETERMINATION Upheld – discontinued or modified 

DESCRIPTION OF THE ADVERTISEMENT 

There are three versions of this television advertisement which are set in the grounds of a hotel “The Cove” and feature eerie atmosphere and music. 

The first begins with sounds of something moving furtively through undergrowth as a young child whispers “There is a creature. It’s not in the closet. It’s not under the bed. It’s in the backyard” and a woman screams as she is carried to safety in the arms of a man. They enter a house and the door handle is seen rattling behind them as they frantically ascend a staircase. The shadow of a creature can be seen against the window. A man standing in the rain looks at a woman with pale face and eyes as the child’s voice sings “Who’s afraid of the big bad wolf?” 

A second version is shorter and fast-paced, having dialogue including “They came among us” … “ Something strange is going on around this building”…”Waiting for her return” and a man asking a woman “How many of you are there?”…”The nightmare that waits in your own backyard.” 

A third version mentions the other movies of M. Night Shyalaman and reminds us “His movies have explored the dark corners of our fears. Now he reveals the nightmare that waits in your own backyard.” A man is seen surfacing in a swimming pool, then checking the water with a torch, then inside his room, furtively opening the door and saying “Oh my god”. 

THE COMPLAINT 

Comments which the complainant/s made regarding this advertisement included the following:

 …disturbing imagery… 

…has supernatural overtones and is very scary. 

THE ADVERTISER’S RESPONSE 

Comments which the advertiser made in response to the complaint/s regarding this advertisement included the following: 

The content of the television commercials is within the context of the product we are advertising… 

Roadshow Films has ensured that all advertisements for “Lady in the Water” campaign have been carefully scrutinised both internally and externally to ensure they are appropriate and suitable in light of all circumstances to the Australian viewing public. 

THE DETERMINATION 

The Advertising Standards Board (“Board”) considered whether this advertisement breaches section 2 of the Advertiser Code of Ethics (the “Code”). 

The Board noted that the advertisement had been given a “J” classification which means that it is a PG style advertisement and must not be broadcast during PG timezones. The Board noted that, particularly during weekend sport and early evening television, the advertisement was likely to be seen by children. The Board also noted that the movie being advertised was a PG classified movie. 

The Board noted that the complaints related to distress to children caused by the advertisement. The Board viewed the advertisement and considered that the images, commentary and sound effects in the advertisement were likely to be frightening, particularly the condensed images of the apparent werewolf and of the woman’s ghostly face. 

The Board noted that although the film held a “PG” film censorship classification, the condensed nature of the scary images might have increased the impact of the advertisement beyond the intended film classification. 

The Board was of the view that the advertisement constituted a portrayal of the threat of violence and that this threat of violence was not appropriate during a timezone when children were likely to be watching television, and would not be minimised by parental supervision.

In the context of the advertisement being shown during these times, the Board formed the view that the advertisement breached clause 2.2 of the Code. 

The Board noted, however, that if the advertisement had been in a more restricted timezone and not shown during time slots where viewing by children was likely, they would not have upheld the complaint. 

In the circumstances, however, the Board found that the depiction did contravene the provisions of the Code relating to violence. 

The Board therefore upheld the complaint. 

ADVERTISER’S RESPONSE TO DETERMINATION 

I wish to confirm that we have discontinued use of all TVC advertisements for LADY IN THE WATER. All TVC’s came off air on the 14th September 2006 .

******

The Democrats Senator Natasha Stott Despoja, this week put the following questions on notice.

The Senate meets at 9 am

Notifications prefixed by an (*) appear for the first time.

*2903 Senator Stott Despoja: To ask the Minister representing the Attorney-General—

(1) (a) Can the Attorney-General explain why it was necessary to remove the classification policy support function of the department’s Canberra operation; and (b) was the Office of Film and Literature Classification (OFLC) advice of inferior quality or was it not in accord with the conservative views of the Government.

(2) Given that the Remuneration Tribunal Determination 2006/13 indicates that the total remuneration packages for the Director and Deputy Director of the OFLC have been reduced, respectively, from $245 000 to $191 370 and $206 490 to $164 510: (a) can the Attorney-General release the submission made to the Remuneration Tribunal; if not, can the review on which the submission might be based be released; (b) can the Attorney-General advise why the Remuneration Tribunal Determination makes the exception of continuing with the higher remuneration for the Director and Deputy Director, despite the downgrading of the remuneration levels; and (c) are the positions now different and simpler and as a result deserve a lower level of remuneration.

(3) Will the cost savings afforded by this new structure be passed on to industry in the form of lower classification fees.

******

Released this week is the 2005-06 Annual Report of the Classification and Review Boards. You can download it from www.oflc.gov.au.

Alternatively, a hard copy can be had by calling or e-mailing the OFLC.

Tel (02) 9289 7100
e-mail oflcswitch@oflc.gov.au.

ATTORNEY-GENERAL THE HON PHILIP RUDDOCK MP 
NEWS RELEASE 
28 November 2006 
218/2006 
CLASSIFICATION BOARD & CLASSIFICATION REVIEW BOARD 2005-06 ANNUAL REPORT TABLED 

Attorney-General Philip Ruddock tabled the 2005–06 annual report for the Classification Board and Classification Review Board in Parliament today. 

Mr Ruddock said he was pleased with the way the Classification Boards had continued to respond to strong and controversial themes in entertainment media. 

“They continue to receive large numbers of applications and continue to make challenging decisions about films, publications and computer games which reflect the diversity of opinion in the community,” Mr Ruddock said. 

The Classification Board finalised 9,730 applications during the reporting period and the Classification Review Board finalised 25 applications. 

The 2005–06 annual report marks the last report from the Director of the Classification Board, Mr Des Clark. 

“His leadership has seen the classification system respond to significant challenges while keeping pace with community standards and expectations. I thank Mr Clark and pay tribute to his stewardship,” Mr Ruddock said. 

Mr Clark’s term as Director will expire in April 2007 after serving the maximum statutory term of seven years. 

The annual report is available on the Office of Film and Literature Classification website at: www.oflc.gov.au. 

******

Following last weekends negative publicity, Red Ant Enterprises have dropped the game RULE OF ROSE from their schedules.

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Confirmation that the MA15+ game Scarface: The World is Yours, has been slightly modified for the Australian market. Missing are an advertisement for the Scarface (film) DVD, and the prologue of the game that contains violent clips from the film.

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Eros Magazine Vol.7 No5. is out now. Subscription information, and a selection of some of the articles can be found here.

The feature article is 'Noooooo...Sex! Christians Take on Taliban Tactics In Victoria', Frank Hodges's look at problems faced by the Club X store in Shepparton.

******

What will become of RULE OF ROSE now that the Sunday tabloids are on the case? The game has yet been rated by the Classification Board.

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Calvista have taken the scissors to a couple of recently banned titles. Censored versions of PORN WARS 2 and DANGEROUS SEX have both now been passed X18+ (Explicit Sex)

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THE SHADOWERS can now be viewed at the Art Gallery of NSW. This piece of video art had previously came in for some attention from the OFLC.

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The recent copyright amendment discussions included these comments by representatives of the games industry. Both used the classic "What about the children?" defence.

The two speakers are:

Maurice Gonsalves, Partner, Mallesons Stephen Jaques, Legal Representatives for Interactive Entertainment Association of Australia

and

Chris Hanlon, Chief Executive Officer, Interactive Entertainment Association of Australia.

STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS: Copyright Amendment Bill 2006: Discussion

Date: 07 November, 2006 
Committee: STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
Reference: Copyright Amendment Bill 2006 
Place: Canberra
Questioner: Senator LUNDY; Senator LUDWIG; CHAIR 
Responder: Prof. Fitzgerald; Mr Clapperton; Mr Knight; Mr Gonsalves; Mr Hanlon; Mr Scott; Mr Small
Page: 21 
Proof: Yes
Database: Committees Considering Bills
Proof: Yes
Source: Senate

Mr Gonsalves—Yes, we do have a view about that. We think that having provisions that prohibit contracting out have the potential to damage online emerging markets because they interfere with the freedom of copyright owners and consumers to strike a deal and contract on certain terms in relation to the use of works.

I will come back to Senator Ludwig’s question about whether this legislation achieves the balance. I believe that it does. There are numerous protections in the legislation. One is the requirement that the TPM be used in connection with the exercise of copyright. That in itself can be interpreted by a court to eliminate the potential abuses that we have seen in the US.

Furthermore, there are two very specific carve-outs which address those issues as explained in the explanatory memorandum. So I think there is ample scope for a court to avoid abuse of these provisions. I would like to discuss very briefly why it is so important for pure access controls to be protected without a link to copyright infringement. Again, it is because of the emerging and increasing online exploitation of copyright works. Xbox Live, for example, is a service made available by Microsoft for players around the world through the internet to play Xbox online. The playing of that computer game may or may not involve a reproduction. It may not involve a copyright right at all. Clearly there is a subscription model here—you pay to play the game online.

If the access controls which are applied to that game to protect the subscription model can be freely circumvented then that is the end of that business. That is why those sorts of models need to be protected. There are also potential child protection issues as well, because parental locks can be used and access controls can actually prevent children from gaining access to inappropriate material. Again, having strong protection for access controls allows the taking of action against those who might seek to peddle tools to get around those sorts of parental locks or circumvention devices.

Mr Hanlon—I would like to make one final comment in relation to this access copy control issue. All the academic arguments we have heard today and the way that this legislation is worded is extremely important. It has an impact in the marketplace. In relation to the games industry, people do not chip a $1,000 games console to get around the problem and the inconvenience of not being open to play some NTSC game they bought in America; they do it to play pirated games. It is a $100 million problem in our industry. It has implications other than just piracy.

As Maurice mentioned, in the games industry now we embed the OFLC classification code—the P, PG, M, MA, M15+—in disks now. That is an access control. If access controls are not recognised under this legislation, it means that the additional efforts we go to to ensure that parents can monitor what games kids are playing in their homes is also compromised. All these decisions have a huge impact in the marketplace, particularly in relation to piracy.

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Three new reports from the ACMA. Two problem promotions for BLUE HEELERS and THE SUPERNATURAL, and too many 'Fucks' in HOW TO BE A PROPERTY DEVELOPER.

Australian Communications and Media Authority
15 November 2006
MR 137/2006

ACMA finds Blue Heelers promotion on STQ 7 exceeded G classification

The Australian Communications and Media Authority has found that Channel Seven Queensland Pty Ltd, the licensee of STQ Regional Queensland, breached the Commercial Television Industry Code of Practice (the code) by broadcasting a promotion for Blue Heelers that failed to comply with the restrictions in G viewing periods and the G classification requirements.

On 6 January 2006, ACMA received a complaint about a promotion for Blue Heelers, which was broadcast by STQ 7 on 2 October 2005. The complainant alleged that the promotion contained content that was unsuitable for broadcast during family viewing periods.

ACMA determined that the licensee breached clause 3.8.3 of the code by failing to comply with the restrictions in G viewing periods with regard to violence. This clause provides that promotions in G viewing periods must not contain any form of violence to children. The code also provides that material classified G must be very mild in impact.

In ACMA's view, the promotion entirely concerns the discovery of the body of a murdered schoolgirl, and the cumulative impact of the visuals and the strong theme is stronger than 'very mild'. The Seven Network, on behalf of the licensee, accepted the breach finding.

Because there have been a number of breaches of the program promotions provisions over the last two years, ACMA requested the Seven Network to provide appropriate assurances regarding steps it has taken to prevent the likelihood of future breaches.

In response the Seven Network has:

reviewed its promotion classifications and scheduling procedures; created a new internal promotion category to identify program promotions suitable for placement in programs mainly directed to children or programs with a substantial child audience; upgraded the procedure for assessing the classification for promotions; introduced a computerised scheduling system which eliminates the possibility of human error in promotions scheduling; and reminded all promotions staff of the obligations and requirements of the code. ACMA is satisfied that the Seven Network has comprehensively addressed the compliance issues raised by the breach finding.

The investigation report is available on the ACMA website

Media contact: Paul Slocum, Communications and Publishing Manager, (03) 9963 6966.

Backgrounder

ACMA conducts various types of investigations under the Broadcasting Services Act 1992 (the Act). Investigations under Part 11 of the Act are conducted in response to complaints received by ACMA relating to a possible breach by:

a licensed broadcaster of the Act, the regulations, a licence condition, a class licence or a code of practice; or the ABC or SBS of a code of practice. If a person wishes to complain about something of concern they have seen or heard on a program broadcast by a radio or TV station, and the matter is covered by a code of practice, the person must, by law, first make a written complaint to the station.

However, if a complaint relates to a matter covered by a licence condition, the person can complain directly to ACMA and need not complain to the station first.

There is a different code of practice for each broadcasting sector, and each code of practice contains a section that explains the complaints process that applies to that sector.

As some codes impose time limits for complaints, it is advisable that persons who wish to make a complaint write to the radio or TV station as soon as possible. For instance, the code of practice that applies to commercial television broadcasters enables them to decide to not respond in writing to complaints that are made more than 30 days after the date of broadcast.

When making a complaint to ACMA, persons must provide a copy of their complaint to the station, a copy of the station's reply if this has been received, and any other relevant correspondence with the station. ACMA takes all complaints seriously (except for those that are frivolous or vexatious or not made in good faith) and acknowledges all complaints in writing.

For valid complaints, ACMA considers the information provided and offers the relevant station an opportunity to give its side of the story. When all relevant information is available, ACMA assesses the complaint against the relevant licence condition or code of practice. When an investigation is completed, ACMA is required to notify a complainant of the results of an investigation under Part 11 of the Act. The form this is to take is not specified in the Act - sometimes it is in the form of a letter, but more usually it takes the form of an investigation report, which is provided to both the complainant and the licensee concerned.

***

Investigation Report No. 1652

File no. PF2006/188 
Licensee Channel Seven Queensland Pty Ltd 
Station STQ 7 
Type of service Commercial Television Broadcasting Service 
Program name A promotion for Blue Heelers. 
Date of broadcast 2 October 2005 
Relevant code: Commercial Television Industry Code of Practice 2004: 
* Clause 2.4 (Classification of Other Material) 
* Clause 3.8 (Restrictions in G Viewing Periods and in Certain Other G Programs) 
*Clause 2 of Appendix 4 (The G Classification)

Investigation Conclusion

Channel Seven Queensland Pty Ltd, the licensee of STQ 7, breached Clause 2.4 of the Commercial Television Industry Code of Practice (the Code) by not complying with Clause 3.8.3 (Restrictions in G Viewing Periods and in Certain Other G Programs) and the G Classification requirements in Clause 2 of Appendix 4.

The Complaint

On 6 January 2006 the Australian Communications and Media Authority (ACMA) received a complaint about a promotion for Blue Heelers broadcast by Channel Seven Queensland Pty Ltd, the licensee of commercial television broadcasting service STQ 7. The complainant alleged that a promotion for Blue Heelers, broadcast during the G classified Disney feature film The Country Bears on 2 October 2005 at 6.30pm in the PG time zone, contained content that was offensive and unsuitable for broadcast during family viewing periods.

Not satisfied with the written response provided by Network Seven, the complainant forwarded the matter to ACMA for investigation.

The Program Promotion

The 20 second promotion advertises an episode of the Australian police drama series, Blue Heelers.

It begins with text on screen which reads: “Australia’s most successful crime drama.” Male voice over states: “In the history of Australia’s most successful crime drama…”

The first shot shows a night time scene outdoors: a male looks with some concern at something offscreen. The same male reaches out to touch the shoulder of a bare-chested male leaning against a tree. The bare-chested male turns towards him and a closer shot reveals that he has blood on his face. Voice over says: “There has never been a more shocking episode.”

A uniformed female police officer stands by a sports field in daylight. A uniformed male police officer, standing by a grandstand, turns to look back at a figure in the foreground. This cuts to a shot in which female police officer appears to comfort a young female. Voice over says, “A schoolgirl’s murder leads you to the most evil discovery imaginable.” A brief overhead shot shows two uniformed male police officers watching a third police officer approach a group of trees through which a body wearing a dress can be seen.

A fast moving montage includes shots of: A male police officer picks up what appears to be a purse on a chain. A blonde female stands at the glass window of a cell door, dragging her fingers down the glass. A male’s hands clutch a stained cloth. This shot has been tinted blue but in the context of this sequence the stain is clearly inferred to be blood. A laughing male is dragged out of his chair by the scruff of his collar, implicitly during police interrogation. Hands remove a young female’s photo ID from the purse. A male police officer photographs the crime scene near the oval.

A stooping male with a torch straightens himself up. Voice over says: “Parental discretion is advised.” This dissolves over the close up image of a young female’s face. The text: “Parental discretion advised” appears over the female’s face. The image zooms in to the female’s eye to reveal the text: “Blue Heelers”. Voice over says: “Wednesday on Seven.” This shot cuts to a final screen featuring the text: “Blue Heelers. Wednesday. 8.30. All new.”

Assessment

In assessing the licensee’s compliance with the Code, ACMA considered a recording of the promotion complained about and submissions supplied by Network Seven on behalf of the licensee on 3 March 2006.

The promotion for Blue Heelers has been assessed against clauses 2.4 and 3.8 of the Commercial Television Industry Code of Practice and clauses 2.1 and 2.2 of Appendix 4 to the Code. This promotion was broadcast during a G classified program that screened in part between 7.00pm and 8.30pm. Clause 3.8 requires that the G program promotions criteria apply to material broadcast in breaks in G programs in this time period.

Relevant provisions

The Code contains the following provisions:

Classification of Other Material

          2.4 All other material for broadcast: Subject to Clauses 2.3 and 2.4.1, all other material for broadcast must be classified according to the Television Classification Guidelines (set out in Appendix 4) or, where applicable, the stricter requirements of Section 3: Program Promotions and Section 6: Classification and Placement of Commercials.

Restriction in G Viewing Periods and in Certain Other G Programs

3.8. Special restrictions apply to the content of program promotions in G viewing periods, or in G programs which start at 3.30pm on a weekday, or which are broadcast between 7.00pm and 8.30pm on any day. All such program promotions must comply with the G classification requirements set out in paragraph 2 of Appendix 4, and in addition must include no material which involves any of the following:

3.8.1 the use of guns, other weapons or dangerous objects in a manner clearly

intended to inflict harm on, or to seriously menace, people or animals;

3.8.2 punches, blows or other physical or psychological violence against people or

animals (other than in sequences that clearly depict comedy or slapstick

behaviour);

3.8.3 any form of violence or cruelty to children;

3.8.4 sequences that involve loss of life;

3.8.5 close-up vision of dead or wounded bodies;

      3.8.6 any visual depiction of suicide or intended means of suicide;

3.8.7 anything which has more than a very low sense of threat or menace;

3.8.8 visual depiction of nudity or partial nudity;

3.8.9 visual depiction of, or verbal reference to, sexual behaviour, except of the

most innocuous kind;

3.8.10 socially offensive or discriminatory language.

The General Classification

2. Material classified G is not necessarily intended for children but it must be very mild in impact and must not contain any matter likely to be unsuitable for children to watch without supervision.

2.1 Violence: Visual depiction of physical or psychological violence must be very restrained. The use of weapons, threatening language, sounds or special effects must have a very low sense of threat or menace, must be strictly limited to the story line or program context, must be infrequent and must not show violent behaviour to be acceptable or desirable.

Licensee’s submission

Network Seven stated in a submission dated 1 March 2006, that Blue Heelers “is a police drama and is classified M. The program promotion shows various snippets of the Mount Thomas police officers in action. The voice over for the promotion indicates that the officers are investigating the murder of a local school girl which leads to a shocking revelation. While the promotion uses dramatic music and does warn that parental discretion is advised for the particular episode of the program, the promotion itself does not contain any violence, coarse language or use of weapons and depicts only a very low sense of threat or menace. Seven believes that this promotion satisfies the relevant provisions of the Code.”

Findings And Reasons

Findings

For the reasons stated below, the licensee did not comply with Clause 3.8.3 or Clause 2 of Appendix 4 of the Code and has therefore breached Clause 2.4 of the Commercial Television Industry Code of Practice 2004.

Reasons

          • Clause 3.8.3 explicitly prohibits material which “involves… any form of violence or cruelty to children”.

          • The promotion clearly involves violence to a child as it entirely concerns the discovery of the body of a murdered schoolgirl.

          • Although the shots are brief and contain relatively little visual detail, they are mostly sequenced in chronological order, establishing a clear narrative depicting the discovery of the body of a murdered schoolgirl and the interrogation of suspects. It includes visuals of a man with a bloody face at a location later revealed to be the crime scene, the discovery of a girl’s body and many shots of apparently distressed police officers. Voice over narration clearly establishes the context for these images, “A schoolgirl’s murder leads you to the most evil discovery imaginable.”

          • Clause 3.8.7 prohibits “anything which has more than a very low sense of threat or menace”. And Clause 2 of Appendix 4 notes that, “Material classified G… must be very mild in impact and must not contain any matter likely to be unsuitable for children to watch without supervision.” The cumulative impact of the visuals described above and the strong theme (the murder of a schoolgirl) is greater than very mild.

          • The promotion highlights the intensity of this particular episode of Blue Heelers. Voice over narration says, “In the history of Australia’s most successful crime drama there has never been a more shocking episode,” emphasising the horrific nature of the crime. The promotion concludes with sharp music stings and an ominous voice over which warns, “Parental discretion advised”. This further contributes to the impact of the promotion.

Network Seven’s response to preliminary breach finding

On 9 August 2006, ACMA forwarded a copy of its preliminary report to Network Seven inviting comment on its preliminary breach finding. Network Seven was also invited to make submissions about remedial action it would take in the event that a breach finding was made.

In its reply to ACMA, dated 21 August 2006, Network Seven noted that it accepted the findings of ACMA in relation to the breach of Clause 3.8.3 and Clause 2 of Appendix 4 of the Code.

Action taken

Network Seven stated that, to avoid future breaches of this nature, a copy of ACMA’s final investigation report will be distributed to the relevant classification and programming staff.

It is noted that this is the first breach of classification provisions by Network Seven licensees since January 2005 when an M classified promotion was screened during a PG time zone due to a scheduling error. However, in 2004, Network Seven licensees were found to be in breach of the Code three times for program promotions which were incorrectly classified.

In considering this matter, ACMA is seeking further information from Network Seven regarding the processes it will have in place to prevent future breaches in relation to program promotions.

Decision

I, Andree Wright, Executive Manager, Content, Codes and Education Branch, being the appropriate delegated officer of the Australian Communications and Media Authority, determine for the above reasons that the licensee of Channel Seven Queensland Pty Ltd breached Clause 2.4 of the Commercial Television Industry Code of Practice (the Code) by not complying with Clause 3.8.3 (Restrictions in G Viewing Periods and in Certain Other G Programs) and the G Classification requirements in Clause 2 of Appendix 4.

******

Australian Government
Australian Communication and Media Authority
15 November 2006 
MR 138/2006

ACMA finds How To Be A Property Developer in breach of ASTRA Codes of Practice

The Australian Communications and Media Authority has found that FOXTEL Cable Television Pty Limited (FOXTEL) breached the ASTRA Codes of Practice Subscription Broadcast Television July 2003 (the codes) by broadcasting a program, How To Be A Property Developer, which failed to comply with the PG classification requirements for 'language'.

On 21 April 2006, ACMA received a complaint about How To Be A Property Developer, an XYZnetworks program which was broadcast by FOXTEL's The LifeStyle Channel on 2 November 2005. The complainant alleged that the program contained coarse language that exceeded what is permissible within the PG classification category.

ACMA determined that FOXTEL breached clause 3 of the codes by broadcasting material that was not consistent with the language requirements of the PG classification guidelines.

The codes state that the coarse language should be mild and infrequent, and be justified by context. In ACMA's view the program contained moderate coarse language that was not infrequent.

ACMA notes the licensee's decision voluntarily to classify non-drama programs such as How To Be A Property Developer in addition to the requirement under the codes to classify films and drama programs only.

ACMA commends the following undertakings by FOXTEL in relation to the breach:

FOXTEL is to implement ASTRA Codes training, including training on classification obligations, on a six-month basis; 

FOXTEL's Executive Director - Content, Product Development and Delivery, has written to FOXTEL channel managers regarding program classifications; and 

FOXTEL and XYZnetworks are to collaborate to streamline complaint handling processes to ensure that all complaints are promptly brought to the attention of the relevant parties. ACMA acknowledges FOXTEL's sound history of compliance with the codes in the area of program classification and considers this action addresses the compliance issue raised by the investigation. ACMA will continue to monitor the licensee's performance in this regard.

The investigation report is available on the ACMA website

Media contact: Paul Slocum, Manager, ACMA Communications & Publishing on (03) 9963 6966

Backgrounder

ACMA conducts various types of investigations under the Broadcasting Services Act 1992 (the Act). Investigations under Part 11 of the Act are conducted in response to complaints received by ACMA relating to a possible breach by:

a licensed broadcaster of the Act, the regulations, a licence condition, a class licence or a code of practice; or the ABC or SBS of a code of practice. If a person wishes to complain about something of concern they have seen or heard on a program broadcast by a radio or TV station, and the matter is covered by a code of practice, the person must, by law, first make a written complaint to the station.

However, if a complaint relates to a matter covered by a licence condition, the person can complain directly to ACMA and need not complain to the station first.

There is a different code of practice for each broadcasting sector, and each code of practice contains a section that explains the complaints process that applies to that sector.

As some codes impose time limits for complaints, it is advisable that persons who wish to make a complaint write to the radio or TV station as soon as possible. For instance, the code of practice that applies to commercial television broadcasters enables them to decide to not respond in writing to complaints that are made more than 30 days after the date of broadcast.

When making a complaint to ACMA, persons must provide a copy of their complaint to the station, a copy of the station's reply if this has been received, and any other relevant correspondence with the station. ACMA takes all complaints seriously (except for those that are frivolous or vexatious or not made in good faith) and acknowledges in writing all complaints.

For qualifying complaints, ACMA considers the information provided and offers the relevant station an opportunity to provide its perspectives. When all relevant information is available, ACMA assesses the complaint against the relevant licence condition or code of practice. When an investigation is completed, ACMA is required to notify a complainant of the results of an investigation under Part 11 of the Act. The form this notification is to take is not specified in the Act - sometimes it is in the form of a letter, but more usually it takes the form of a more formal investigation report, which is provided to both the complainant and the licensee concerned.

Generally, personal or private information provided in a complaint, including name and address details, are not disclosed to the licensee concerned if it is a licence condition matter. However, as code complaints are first made to a licensee, code complaints are usually made available to the licensee concerned. ACMA's usual practice is to not provide personal or private information in an investigation report.

Under the Act, ACMA has discretion whether or not to publish the report of an investigation conducted under Part 11 of the Act. ACMA is not required to publish an investigation report if publication would disclose matter of a confidential character or likely to prejudice the fair trial of a person. If ACMA intends to publish an investigation report that may adversely affect the interests of a person, ACMA must give the person an opportunity to make representations in relation to the matter.

ASTRA Codes of Practice Subscription Broadcast Television July 2003

The ASTRA Codes of Practice 2003 state:

3 PROGRAM CLASSIFICATION CODE

Licensees will classify films and drama programs, applying the program classification system contained in the Guidelines for the Classification of Films and Computer Games issued by the Office of Film and Literature Classification which appear below (relevant extract - the Categories) and at Attachment B. Classifications, together with appropriate consumer advice, will be provided to ensure adequate warning regarding program content as set out in clauses 3.4 and 3.5.

Licensees will use their best endeavours to ensure that, where other programs are classified they will carry only OFLC classification symbols. This classification will have particular regard to the protection of children and will take into account the OFLC Guidelines below.

3.1 Program Classifications

Licensees will apply the Guidelines for the Classification of Films and Computer Games (the Guidelines) issued by the Office of Film and Literature Classification to all films and drama programs. The full text of the Guidelines effective March 2003 can be found at Attachment B of these codes.

The Guidelines are a tool for classifying films and drama programs. They help explain the different classification categories, and the scope and limits of material suitable for each category.

Classification decisions are to give effect, as far as possible, to the following principles:

adults should be able to read, hear and see what they want; minors should be protected from material likely to harm or disturb them; everyone should be protected from exposure to unsolicited material that they find offensive; the need to take into account community concerns about: depictions that condone or incite violence, particularly sexual violence; and the portrayal of persons in a demeaning manner. 

The Categories

PG Parental Guidance Impact test

The impact of the classifiable elements for material classified PG should be no higher than mild.

Note: Material classified PG may contain material which some children find confusing or upsetting, and may require the guidance of parents or guardians. It is not recommended for viewing by persons under 15 without guidance from parents or guardians.

Classifiable elements 

LANGUAGE

Coarse language should be mild and infrequent, and be justified by context.

***

Investigation Report No. 1701 
File no. 2006/927 
Licensee FOXTEL Cable Television Pty Limited (FOXTEL) 
Channel The Lifestyle Channel 
Type of service Subscription television broadcasting
Name of program How To Be A Property Developer
Date/s of broadcast 2 November 2005 
Relevant legislation/code ASTRA Codes of Practice
Subscription Broadcast Television (July 2003)

Investigation conclusion 

On 2 November 2005 the licensee breached clause 3 of the ASTRA Codes of Practice Subscription Broadcast Television (July 2003) by broadcasting material that was not consistent with the language requirements of the PG classification guidelines. 

The complaint 

On 21 April 2006, the Australian Communications and Media Authority (ACMA) received a complaint about the PG-classified television program, How To Be A Property Developer. The program was broadcast by FOXTEL's 'The Lifestyle Channel' at approximately 8:30 pm on 2 November 2005. 

The complainant alleges that the program contained coarse language that exceeded what is permissible within the PG classification category.

 In his complaint to ACMA, the complainant also referred to coarse language used in the PG-classified program Heat in the Kitchen, also broadcast by FOXTEL's 'The Lifestyle Channel'. However as the complainant did not refer to a time or date of broadcast for this program in his original letter of complaint to the licensee, this aspect of the complaint has not been investigated. 

Not satisfied with the responses provided by FOXTEL, the complainant forwarded the matter to ACMA for investigation. 

The program 

The Lifestyle Channel program guide describes How To Be A Property Developer as follows: 

Everyone thinks they could make a fortune wheeling and dealing in the property market, if only they had the cash to start. But is it really that easy? Would you have the skills and the judgement to make a profit from buying and selling houses? In this new six-part series, property developer Gary McCausland follows the progress of two couples who are given the opportunity to find out if they make the grade as they become property traders - with the sole aim of making as much money as they can. With £250,000 each, two couples are given just nine months to buy and sell a minimum of three properties to invest in and which to sell. Watch as they negotiate with builders, try their hand at stripping floors, seek out bargains at salvage yards and try their luck at auction. Will it be as easy as they think to make a quick profit, or will they make some horrible - and costly - mistakes along the way? There's a lot to be gained - if they're successful, they'll get to keep the profits. 

The episode broadcast on 2 November 2005 was approximately one hour in duration and followed the progress of two couples as they bought properties in England and renovated them with the intention of selling them to make a profit. The licensee claims that a consumer warning alerting viewers to 'language that may offend' was broadcast before the commencement of the program. This warning did not refer to the program classification, nor was a classification symbol displayed throughout the duration of the program. FOXTEL submits, however, that the 'PG' classification symbol was contained in the on-screen FOXTEL Digital Guide. 

Assessment 

A copy of the program on VHS videotape was viewed and comments supplied by the licensee at ACMA's request were considered. 

Issues 

The complainant's concerns raise questions as to whether the program contains coarse language unsuitable for a PG classification. The complaint was therefore assessed against clauses 3 and 3.1 of the ASTRA Codes of Practice Subscription Broadcast Television (July 2003) (the Codes). 

Relevant code provisions 

The Codes contain the following provisions: 

3. PROGRAM CLASSIFICATION CODE 

Licensees will classify films and drama programs, applying the program classification system contained in the Guidelines for the Classification of Films and Computer Games issued by the Office of Film and Literature Classification which appear below (relevant extract - the Categories) and at Attachment B. Classifications, together with appropriate consumer advice, will be provided to ensure adequate warning regarding program content as set out in clauses 3.4 and 3.5. 

Licensees will use their best endeavours to ensure that, where other programs are classified they will carry only OFLC classification symbols. This classification will have particular regard to the protection of children and will take into account the OFLC Guidelines below. 

3.1 Program Classifications 

Licensees will apply the Guidelines for the Classification of Films and Computer Games (the Guidelines) issued by the Office of Film and Literature Classification to all films and drama programs. The full text of the Guidelines effective March 2003 can be found at Attachment B of these codes. 

The Guidelines are a tool for classifying films and drama programs. They help explain the different classification categories, and the scope and limits of material suitable for each category. 

Classification decisions are to give effect, as far as possible, to the following principles: 

(a) adults should be able to read, hear and see what they want; 

(b) minors should be protected from material likely to harm or disturb them; 

(c) everyone should be protected from exposure to unsolicited material that they find offensive; 

(d) the need to take into account community concerns about: 

(i) depictions that condone or incite violence, particularly sexual violence; and 

(ii) the portrayal of persons in a demeaning manner.

The Categories … 

PG Parental Guidance 

Impact test 

The impact of the classifiable elements for material classified PG should be no higher than mild. Note: Material classified PG may contain material which some children find confusing or upsetting, and may require the guidance of parents or guardians. It is not recommended for viewing by persons under 15 without guidance from parents or guardians.

Classifiable elements 

LANGUAGE 

Coarse language should be mild and infrequent, and be justified by context. 

Complainant's submissions 

In correspondence to FOXTEL, dated 3 November 2005 and 27 January 2006, the complainant alleged that: o the program contained constant, obscene language, with f-language being used liberally; and o the content of FOXTEL's programs rated PG do not fall within the bounds of the terminology applied to the PG rating.

Licensee's submissions 

In regard to clauses 3 and 3.1 of the Codes the licensee submitted: o Clause 3 of the Codes requires licensees to classify film and drama programs. How To Be A Property Developer is not a film and falls outside the definition of 'drama' contained within the Codes as it is a reality show and not scripted. Accordingly, FOXTEL is not obligated to classify the program. 

o Clause 3 of the Codes requires the licensee to use its best endeavours, where other programs are classified, to use only OFLC symbols. This must take into account the Guidelines issued by the OFLC and have particular regard to the protection of children. The requirement to take account of the Guidelines should be contrasted to the requirement to apply the Guidelines as is the case with respect to drama and film. 

o In this case, FOXTEL used OFLC symbols and How To Be A Property Developer was given a classification of PG. While this rating does not appear in the warning board, the PG rating that the complainant refers to was contained in the on-screen FOXTEL digital guide.

o The coarse language contained in the program was not used in a threatening or violent sense and occurred in the context of dealing with the challenges and pitfalls of home renovation. 

o The coarse language was justified by context and the impact of the coarse language was no higher than mild.

o The warning board provided viewers with sufficient warning that coarse language was contained in the program. How to be a Property Developer was shown at 8:30 pm, at a time when it is less likely that a younger viewer would be affected. Both of these factors provide protection for children.

Finding 

For the reasons stated below, the material broadcast by the licensee was not consistent with the PG classification guidelines and therefore the licensee has breached clause 3 of the ASTRA Codes of Practice Subscription Broadcast Television (July 2003). 

Reasons 

o It is noted that the Codes require only films and drama programs to be classified and as the current program is neither a film or drama program, it is not required to be classified. However, as the licensee has given the program a PG classification, the licensee is obliged to ensure that the classification 'will have particular regard to the protection of children and will take into account the OFLC Guidelines'. Any distinction between 'applying' and 'taking into account' this classification does not alter this obligation placed on the licensee. 

o The OFLC Guidelines make clear that the language permitted in PG classified programs should be 'mild', 'infrequent' and 'justified by context'. 

o The program contains approximately 27 uses of the word 'fuck', including the words 'fuck', 'fucking' and 'fuckers'. There was no apparent attempt to obscure any of the coarse language contained in the program. 

o It is considered that this language is not 'mild' language, rather it is at the level of 'moderate' coarse language suitable for the M classification. 

o Twenty-seven uses of the word 'fuck' in a one-hour program is not considered infrequent. 

o It is considered that some of the coarse language is used in a somewhat aggressive manner, either when talking about other people or to people directly. This is considered to heighten the impact of the coarse language. For example: 

o The builder speaking directly to the camera about his employers says, "If I was working for a developer and I was treated like they treat me, I'd have told 'em to stick it up their fucking arses, and walked off ages ago". 

o The employer says to the builder, "If you're not going to have any fucking respect for me, you can just do one now… You've walked off the job, you owe us fucking work". Shortly after this, the same woman says to the camera, "What an absolute fucking loser". 

o It is noted that a consumer warning alerting viewers to 'language that may offend' was screened prior to the commencement of the program. However, as the program was classified PG, the level of coarse language contained in the program would have likely exceeded what a viewer would reasonably expect in a PG classified program, regardless of the broadcast of the consumer warning immediately prior to the program's commencement. Accordingly, the consumer warning would not have sufficiently alerted viewers who were aware of the program's classification to the level of coarse language contained in the program. 

o As the program was classified PG, viewers should reasonably expect that the program would be suitable for children under the age of 15 to watch with adult supervision. The licensee's submission that as the program was broadcast at the later timeslot of 8:30 pm and as such a younger audience would be less likely to be affected, is not a relevant consideration where a program has been classified.

FOXTEL response to preliminary breach finding 

On 7 September 2006, ACMA forwarded a copy of its preliminary breach report to the licensee inviting comments on its preliminary breach finding. The licensee was also invited to make submissions about remedial action it would take in the event that a breach finding was made. 

In its reply to ACMA, dated 25 September 2006, the licensee disagreed with ACMA's finding. The licensee maintained that the requirement to "take into account" the OFLC Guidelines should be contrasted to the requirement to "apply" the Guidelines. In relation to this point, the licensee submitted: 

o The requirement to take into account the Guidelines suggests an element of discretion is permitted in the interpretation of the Guidelines and the terms 'mild' and 'infrequent'. As the Guidelines do not provide a number of uses of coarse language that would constitute frequent use, frequency (as well as impact test) must be assessed against other measures such as community standards and the context of the program. 

o Determining whether the use of coarse language falls within the boundaries of the Guidelines is subject to varying values and expectations of different viewers.

The licensee also maintained that the coarse language in the program was mild, infrequent and justified by context, for the following reasons: 

o The use of coarse language in the program was justified by context in that it was used in the context of dealing with the challenges and pitfalls of home renovation. 

o The impact of the word 'fuck' is no higher than mild. This view of community standards is supported by Magistrate Hellpern's judgement in the case of R v Dunn (27 August 1999), as well as the fact that only one complaint was made to ACMA about coarse language used in the program. 

o The coarse language in the program was not used in a threatening or violent sense, with menace or in a way likely to cause fear or intimidation. The impact was not heightened by the way in which the language was used. 

o Frequency is not defined in the Guidelines and must be viewed in conjunction with all other parts of the classifiable element of Language. Accordingly, where the use of coarse language is mild and justified by context, frequency must be defined in a much broader sense.

The licensee also maintained that particular regard for children was exercised for the following reasons: 

o The OFLC Guidelines were taken into account when classifying the program, and a warning board was displayed before the program. 

o The program was targeted at viewers over 25 and the subject matter was unlikely to appeal to children. The likelihood of children viewing the program was significantly reduced and this is supported by audience ratings for the program. 

o As the only place the classification appeared was in the on-screen digital guide, the warning board provided a significantly more prominent warning for consumers.

The delegate remains of the view that as the licensee had given the program a PG classification, the licensee is obliged to ensure that the classification 'will have particular regard to the protection of children and will take into account the OFLC Guidelines'. The delegate remains of the view that the coarse language used in the program was not mild, infrequent and justified by context, and therefore does not comply with the PG classification criteria for language. 

Action taken 

FOXTEL has noted in its response that classification training was conducted in August 2006 by XYZnetworks for the channels they manage, including The Lifestyle Channel. 

ACMA notes that FOXTEL has taken the following steps in response to the breach finding: 

o FOXTEL will implement ASTRA Codes training, including training on classification obligations, on a 6 month basis. 

o FOXTEL's Executive Director - Content, Product Development and Delivery, has written to the channel managers requesting that the sensitivities of FOXTEL's viewers be respected and to err on the side of caution when classifying programs. 

o FOXTEL and XYZnetworks are working together to streamline the complaint handling process to ensure that all complaints are promptly brought to the attention of the relevant parties.

The delegate considers these actions address the compliance issues raised by the investigation and notes that the licensee has not breached this provision of the code during the last three years. The licensee's performance in this regard will continue to be monitored. 

Decision 

I, Andrée Wright, Executive Manager, Codes, Content and Education Branch, being the appropriate delegated officer of the Australian Communications and Media Authority, determine for the above reasons that the licensee, FOXTEL, in relation to the broadcast of an episode of How To Be A Property Developer on 2 November 2005, breached clause 3 of the ASTRA Codes of Practice Subscription Television (July 2003) by incorrectly classifying material as PG. 

******

Australian Government
Australian Communication and Media Authority
17 November 2006
MR 139/2006

ACMA finds The Supernatural promotion on ATV Melbourne exceeded PG classification 

The Australian Communications and Media Authority has found that Network Ten (Melbourne) Pty Ltd (ATV), the licensee of commercial television service ATV Melbourne, breached the Commercial Television Industry Code of Practice (the code) by broadcasting a promotion for The Supernatural that failed to comply with the restrictions in PG viewing periods and the PG classification requirements.

On 16 June and 10 July 2006, ACMA received two complaints about a promotion for The Supernatural, which was broadcast by ATV on 27 May 2006. The complainants alleged that the promotion contained content that was unsuitable for broadcast during family viewing periods.

ACMA determined that ATV breached clause 2.4 of the code by failing to comply with the restrictions in PG viewing periods.

The code states that promotions in PG viewing periods must not contain anything which has more than a mild sense of threat or menace. The code also states that material classified PG must be mild in impact.

In ACMA’s view the promotion, which showed a child frightened by a sinister robed figure outside and within the child’s bedroom, has an impact which is greater than mild.

In response to the finding, Network Ten has undertaken to distribute ACMA’s report to the relevant classifiers and promotions’ producers and use the finding as an example in regular code training sessions with staff, to ensure future compliance.

ACMA is satisfied that Network Ten has addressed the compliance issues raised by the breach finding.

The investigation report is available here on the ACMA website.

Media contact: Paul Slocum ACMA Communication and Publishing Manager on (03) 9963 6966.

Backgrounder

ACMA conducts various types of investigations under the Broadcasting Services Act 1992 (the Act). Investigations under Part 11 of the Act are conducted in response to complaints received by ACMA relating to a possible breach by:

a licensed broadcaster of the Act, the regulations, a licence condition, a class licence or a code of practice; or the ABC or SBS of a code of practice. If a person wishes to complain about something of concern they have seen or heard on a program broadcast by a radio or TV station, and the matter is covered by a code of practice, the person must, by law, first make a written complaint to the station.

However, if a complaint relates to a matter covered by a licence condition, the person can complain directly to ACMA and need not complain to the station first.

There is a different code of practice for each broadcasting sector, and each code of practice contains a section that explains the complaints process that applies to that sector.