Picture this…you’re sitting back enjoying a good game of rugby league between the Manly Sea Eagles and the Brisbane Broncos. The score is 16-4 at half time. Just as the players run out to start the second half, commentators Ray Warren and Phil Gould make robust comments on the mandatory pre-commitment for gambling which the government was planning to introduce, such as "the proposed mandatory pre-commitment that they’ve put forward is a rubbish policy" and "I’ve never seen a more stupid policy in all my life". Read the transcript and the Australian Communications and Media Authority (ACMA) Investigation Report here.
Hold on…doesn’t that seems a little heavy for half time entertainment at a game of football? Was that a political advertisement in breach of the Broadcasting Services Act?
Well a number of people thought so and complained to ACMA that the comments appeared to be an advertisement from Clubs NSW or Clubs Australia, who at the time were running a campaign against mandatory pre-commitment, with no authorisation details broadcast. ACMA went on to investigate.
What does the law say?
Under the Broadcasting Services Act (the Act), if a broadcaster broadcasts political matter at the request of another person, the broadcaster must, immediately afterwards, cause the required particulars to be announced (Schedule 2 cl 4). This is generally the screen you see or voice over you hear at the end of an advert where the a person speaks really quickly "AuthorisedbyJohnBloggs,XYCompany,Sydney.SpokenbyJaneSmith".
So, what is "political matter"?
Under the Act, political matter is defined very broadly, as "any political matter", meaning that it is broader than just advertisements relating to election campaigns or lobby groups advertisements. It has been interpreted to mean any matter, when viewed objectively, must be able to be characterised as participation in the political process or as an attempt to comment upon that process. This definition could encompass advertisements that are broadcast outside election periods, advertisements that are not related to or authorised by a political party and those that relate to current political topics, such as the carbon tax or even coal seam gas.
When considering if material is political matter, ACMA looks at the overall presentation of the material, the nature and style of accompanying audio or visual material and the context surrounding the broadcast.
Must be broadcast at the request of another person
The second part of this test is that the political matter must be broadcast at the request of person other than the licensee. If it is, then the required particulars must be announced. Generally this will be the case when an advertiser or lobby group gives a TV station an advertisement to run.
Was Channel 9 in breach?
According to ACMA, although the comments made by Ray Warren and Phil Gould were "political matter" as it was a controversial topic and the subject of proposed legislation, it didn’t need to be identified as such as it was not broadcast at the request of another person. In this case Channel 9 took the initiative which led to the broadcast of the political material.
ACMA also found that Channel 9 was not paid to broadcast the material, and so it was not a "commercial". This meant it didn’t have to be distinguishable from other program material as required by the Commercial Television Industry Code of Practice 2010.