Current affairs programs like Today Tonight and A Current Affair enable ordinary Australians to voice their grievances in circumstances where traditional avenues to justice (i.e. the Courts) are increasingly out of reach. These programs are hugely popular. It follows that the more extravagant the allegation, the higher the ratings.  However, what happens if the allegations over-reach?

A recent successful complaint against the Nine Network by former Australian swimmer, Olympian and sports media personality, Neil Brooks, and his wife Linda of Channel Ten’s reality show The Mole “fame” gives rise to questions about:

  • The nature of the bargain between current affairs shows and the public. True it is they owe a duty to their audience, but what is the extent of the duty owed to the target of their indignant wrath?
  • Whether the Australian Media and Communications Authority (“ACMA”) have sufficient teeth. ACMA is the regulatory authority which made findings in the Brooks’ favour, but they were limited to the publication of an acknowledgment on one of the Nine Network’s websites.
  • Whether the justice offered by ACMA, whilst imperfect, is nevertheless swifter and cheaper than Court, thereby offering an important avenue of complaint for impecunious plaintiffs.

** We have endeavoured to apply a current affairs touch to the story that follows, with plenty of bolded text.  If reading out loud, feel free to use a breathless tone.

A Case Study: Neil and Linda Brooks

In February 2012, the Nine Network’s A Current Affair broadcast a story about Neil and Linda Brooks.  The couple were referred to as the “modern day Bonnie and Clyde”, reportedly under investigation by police for ripping off dozens of victims for millions of dollars in four countries across three continents. To rub salt into the wounds, the reporter exposing the Brooks’ “scandalous sins” was (formerly, at least) a close friend of Neil’s.

Neil and Linda Brooks submitted a formal complaint to ACMA under the Commercial Television Industry Code of Practice 2010 (the “Code”) claiming the program was not factually accurate and had breached their privacy (in addition to other complaints). Before we get to the specifics of the case, here is a brief introduction to the regulatory context.

The Legislative Framework

Pursuant to section 123 of the Broadcasting Services Act, commercial radio and television broadcasting licensees (“Licensees”) are directed by Parliament to develop codes of practice in consultation with ACMA. These codes are then regulated by ACMA. It is within this framework that we find section 4 of the Code, which is intended to ensure that commercial television news and current affairs programs are presented accurately, fairly and with care (having regard to the likely composition of the viewing audience and, in particular, the presence of children). News and current affairs programs must also take account of personal privacy issues and cultural differences in the community when presenting their stories.

When presenting a current affairs program, Licensees are obliged to (amongst other things):

  1. Broadcast factual material accurately and represent viewpoints fairly (cl 4.3.1); and
  2. Not use material in relation to a person’s personal or private affairs, unless there is an identifiable public interest reason to do so (cl 4.3.5).

In assessing whether factual material is accurate, ACMA first needs to determine whether the representation would have been understood by the “ordinary or reasonable viewer” as a “statement of fact”.  In relation to privacy, ACMA must assess whether: (a) a person was identifiable from the program because of material broadcast relating to a person’s personal or private affairs; and, if so, (b) whether there was an identifiable public interest to broadcast the material.

ACMA’s Findings

Material broadcast not considered “factual”

In assessing the Brooks’ complaint, ACMA found that certain statements were emotive, hyperbolic and/or opinion which the ordinary reasonable viewer would not have interpreted as “statements of fact”. Therefore, the Nine Network could not be in breach of section 4.3.1 of the Code for having made them. These statements included:

  • The gold medal Olympian turned gold medal conman”
  • “The Brooks’ work hard at spending other people’s money. From mums and dads to multi-millionaires, Australian celebrities and international stars”
  • The Brooks’ are currently holed up in a villa somewhere hatching their next plan”
  • The Brooks’ are currently hiding out in the south of France”

We will let you decide whether– as the “ordinary or reasonable viewer” – you would interpret these statements as “statements of fact”. Regardless, are community standards met by permitting current affairs programs to make these sorts of statements with impunity under the Code?

Inconclusive evidence

One of the more serious allegations in the segment was that Linda Brooks took money from an investor and issued fake share certificates.  Denying this, the Brooks provided ACMA with a variety of documents including a declaration made by an accountant describing the share purchase transaction which annexed bank statements, correspondence, share allocation forms, share transfer forms, company minutes and deeds. The Nine Network submitted images of the allegedly fraudulent share certificates issued and bank authorisation forms in support of their case that the material presented was accurate.

ACMA found that the material submitted by the Nine Network did not prove that the Brooks had acted fraudulently. However, the material provided by the Brooks did not help ACMA to determine whether the Nine Network’s evidence was genuine or not.  Accordingly, ACMA regarded the evidence inconclusive so finding that the Nine Network did not breach the Code.

The program also claimed Neil Brooks owed about $200,000 in child support. In response, Neil Brooks provided a letter from the Department of Human Services (dated November 2012) which showed he had a $0 child support balance owing since mid-2008. The Nine Network did not appear to put on any evidence to support its assertion. Notwithstanding this, ACMA found that the DHS letter did not exclude the possibility that Neil Brooks owed child support independently of the DHS (i.e. through a private agreement). Accordingly, ACMA found the evidence was inconclusive and that the Nine Network did not breach the Code.

ACMA made a number of other similar findings in relation to inconclusive evidence.

We ask:  Is an inconclusive finding in the above circumstances appropriate? What are appropriate standards of fair reporting which the community should expect, particularly if they do not have ready access to legal resources? Should the evidence threshold for a media outlet – before publishing damaging personal allegations – be low or high?  Is there a risk the media might push the boundaries more if the target does not have apparent access to financial resources? [PS: We don’t have any answers; that’s for you to debate.]

Breaches of the Code and the sanction

ACMA found that the Nine Network did breach the Code by making the following statements (which the Brooks were able to prove false):

  • As we go to air tonight, police in France, the United States and Australia are all investigating allegations of fraud against Neil and Linda Brooks”
  • The stage for the arrest was set in the seaside town of Biarritz”

ACMA also found that the Nine Network breached the privacy provision of the Code by broadcasting an image of Linda Brooks’ international driver’s licence which included her name, place of birth, date of birth and residential address in France, in circumstances where there was no public interest to do so.

In response to ACMA’s findings, the Nine Network was required to publish an “acknowledgment” of the findings on the A Current Affair website. The ACMA report does not offer any direction about where it should be located on the website.  No other sanctions applied.

We ask: Does a website acknowledgement of wrongdoing match the sanctions one might obtain in a defamation action (damages)? Or is the outcome appropriate because it represents swift, less expensive justice with a lesser burden on the parties? Is a website acknowledgement sufficient to vindicate the Brooks’ reputation?  Who is likely to read it?  Or is it the broader publicity which ACMA’s findings attracted (they were widely reported) the most prominent deterrent and remedy? [PS: Again, we don’t have any answers; that’s for you to debate.]

Where to from here

In the spirit of true community engagement, it would be interesting to poll people who have complained to ACMA about media coverage and won. Relevant questions include:

  • Did they find the experience worthwhile, particularly if they lacked the resources to go to Court?
  • Was the experience stressful or not? [Noting that court can often be very stressful]
  • Did the positive findings offer sufficient vindication, even if the sanctions did not involve damages?
  • If there was one thing they could change about the process, what would it be?