Communications Law Centre Limited A.C.N. 003 623 630
25 June 1996
Ms Kath Letch
25 Fitzroy Street
Fitzroy, VIC, 3065
Dear Ms Letch,
This letter sets out:
This letter discusses only the finding that the broadcast of 3 September breaches RPS 3(b), which provides:
A licensee may not transmit a program which:
(b) gratuitously vilifies:
any person or group on the basis of ... religion ...
The Radio Program Standards formulated by the Australian Broadcasting tribunal ("ABT") applied because the CBAA Codes of Practice had not been registered at the time of the broadcasts and complaints.
The program presenter, Adam Joseph ("Joseph"), announced that a demonstration would take place outside the Church of Scientology building in Russell Street the following week and interviewed the organiser Cyril Vosper ("Vosper"), a well known and long time critic of the Church. In the course of the interview, Vosper made numerous allegations about the Church, including: its use of nasty methods to silence people; the absence of freedom or democracy within the Church; the destruction of Vosper's first marriage by the Church; the Church having a lot in common with Nazism; and its denial of the freedom of others. At the start and during the interview, Joseph anticipated that he would receive complaints from the Church, as he had on other occasions. He also referred to the Church's attitude towards Vosper and responded to matters raised by Vosper. In response to Vosper's comparison of the Church with Nazism, he said "that's a pretty heavy claim". He also acknowledged that people are entitled to act according to their free will: "regardless of whether they spend all their money that should also be their right if they're silly enough to do that". It was evident that Joseph was sympathetic to Vosper and critical of the Church.
... whether any program matter on "The Liar's Club" on 3, 7 or 24 September individually or collectively, freely, without claim or merit, unjustifiably or without requiring proof, lowered or lessened in value; reduced to a lower standing or level; brought disgrace or dishonour upon; depreciated or disparaged; defamed or traduced; regarded as worthless or of little value; or contemned or despised the religion of Scientology or its practicing members, Scientologists (para 10.2).
While it is a standard legal method of construing the meaning of terms to consult the dictionary definitions, we consider that the ABA's interpretation of the meaning of "gratuitous" is incorrect. Of the three dictionary definitions cited in paragraph 5.3, only the second, "done, made, adopted or assumed without any good ground or reason; un-called for; unjustifiable; acting without reason or justification" is applicable in the context of vilifying speech. The other two meanings relate to something that is provided free of charge, that is, the concept of a gift. It is therefore wrong to frame the question as whether the program matter "freely, without claim or merit" or "without requiring proof" vilified the Church.
Later in the decision, when the ABA considers whether the broadcast was gratuitous, it diverges from its stated definition, which included the words "without reason or justification" to requiring "responsibility or justification" (p 14).
The interpretation of "gratuitous" matters, because the ABA claims that it is through the inclusion of this qualification that RPS 3(b) provides a measure of protection for free speech. In proscribing only that vilification which is gratuitous, RPS 3(b) contemplates situations in which vilification may be justified (p 14).
The ABA does not explain what is necessary to meet the requirements of "responsibility or justification". Does it require proof of the substance of the allegations which would too onerous and would "chill" debate. Or is it sufficient justification that the remarks were made in the context of an ongoing debate? If it is the latter, then the allegations made in the program were not gratuitous for the reasons set out in the following paragraphs.
The only consideration of whether the program content was gratuitous appears to where the ABA says that:
Mr Vosper had no new material to present but simply wished to publicise a demonstration as part of his long personal crusade against Scientology around the world. He had no criticism to make of the actions of the Australian Church of Scientology or its members. Yet in order to publicise this event, he projected a view that the Church of Scientology in every place and its members everywhere are as bad as Nazism (p 14).
These criticisms are directed at establishing that Vosper's allegations were made without responsibility or justification and hence gratuitous (even though the ABA decided that Vosper's remarks did not, of themselves. breach RPS 3). Given that the Church is an international organisation of which the Australian Church is a part, we do not understand why the ABA regards it as significant and worthy of criticism that Vosper did not discuss the Australian Church and its members or why this contributed to its finding that there was no reason or justification for his comments. Nor do we understand why discussion of the demonstration and the reasons for holding it did not constitute a reason or justification for making allegations about the Church.
At no point in the decision does the ABA consider any of the controversies that have surrounded the Church and whether there was any validity in Vosper's allegations. His strongest statement - the comparison to Nazism - was problematic (as is any such comparison), but it is a mistake to isolate as if it had been made in a calculated way merely to publicise the demonstration. It is equally open to argue that it was part of an ongoing debate and this particular aspect of Vosper's view was corrected later in that debate. It is also arguable that Vosper's other remarks raised serious allegations about the conduct of the Church which it is in the public interest to debate publicly. He did not engage in insult for insult's sake, but explained his reasons for mounting the demonstration and contributed to ongoing public discussion of the Church's conduct. We do not wish to be understood to be agreeing with Vosper's views as stated. Rather, we want to demonstrate how unsteady is the foundation for the finding of gratuitous vilification in such a context.
Discussion and criticism of religious institutions and the conduct of followers of a religion can be distinguished from criticism and abuse of a religion and its followers on the basis of beliefs. For example. widespread allegations of sexual abuse perpetrated within Catholic institutions, debates about the ordination of women, celibacy and homosexuality within the clergy and allegations of terrorism by so-called Islamic extremists involve discussion of religious institutions and conduct, rather than tenets of faith. and do not habitually give rise to accusations of vilification.
It is true that the ABA is not in a position to pass judgment on the Church or to make findings about the truth or otherwise of the allegations, but this does not prevent it from acknowledging that the Church has been the subject of debate and controversy, and that therefore, the allegations, when situated within this context, and in the context of Vosper's ongoing public stance against the Church, were not gratuitous.
The basis of the decision is that Vosper's remarks, although not in themselves gratuitous vilification, did not stand alone. "They were made in the context of a radio interview in which the compere made a series of remarks that indicates his sympathies clearly lay with Mr Vosper and that he endorsed or agreed with a number of Mr Vosper's views" and while Joseph's response to the Nazi comparison ("that's a pretty heavy claim") indicated that he did not necessarily agree with it, the overall impression was that Joseph supported Vosper's views on the Church (p 10).
The following quotes represent the basis of the decision:
... Mr Joseph converted Mr Vosper's views from being ones which stood alone to ones which had the licensee's apparent support and confirmation through his words as the program compere. They gained strength from his presentation and in gaining strength assumed the character of gratuitous vilification on the basis of religion. The ABA is of the view that a program can gratuitously vilify a group through the mere conduct of a presenter which by implication reinforces vilifying statements made by an interviewee. The ABA is of the view that broadcasters and presenters should generally exercise great care in the treatment of material to be broadcast which is critical of any religion (p 14; our emphasis).
The comments in the segment were not the result of an isolated call from a listener, but gained weight from the presenter, and as such carry with them a certain authority from the broadcaster. It is for this reason that comments made by "broadcasters" are often judged against a higher level of responsibility than comments which are made by one-off callers to "talk-back" programs (pp 18-19).
In conclusion, the ABA says that the segment "went beyond a discussion of an issue with the result that it gratuitously vilified a religion or group of people on the basis of their religion" (p 18) and that the broadcasts were not tempered by attenuating factors "such as the way in which the presenter delivered the remarks".
First, RPS 3 has nothing to say about this way of attracting liability for vilification. Broadcasters should be able to examine the standards to which they are subject and find clear statements about their responsibilities and potential liability. The ABA does not cite any previous authority on the issue of the presenter's conduct, from the ABT or otherwise. Secondly, this approach is uncertain and subjective, going beyond the actual words spoken by the presenter and into the realm of implication and sub text. It ascribes to the presenter the words of the interviewee, as though the presenter had spoken the words himself. This can be distinguished from the principles of defamation law relating to the liability of broadcasters for comments of an interviewee or talk-back caller. What makes the broadcaster liable in those situations is the fact that it has participated in the tort by publishing the defamatory comment to a mass audience, not the attribution of the defamatory material to its journalist.
We note that the ABA's approach is consistent with that of the NSW Anti-Discrimination Board, whose guidelines in relation to the media and vilification say that journalists' conduct of interviews and talk-back sessions can give rise to liability for vilification. (We enclose a copy of the relevant sections of the guidelines for your information.) The ABA's decision does not refer to the Board or its guidelines.
Although we are critical of this approach, we are prepared to accept that it is a useful guide to conduct. But it is not a useful adjunct to an enforceable standard (as RPS 3 was). Vigorous debate, especially on radio, would become very difficult, and certainly turgid, if presenters were required to imagine, in an instant, how their conduct (even silences?) coupled with the interviewee's or talk-back caller's words, might offend, and then self-correct.
We consider that the ABA's finding that Joseph's conduct amounted to gratuitous vilification is incorrect on the following grounds:
Even assuming that the ABA's approach is correct - and we do not - in order for the presenter to vilify by his conduct of the interview (as opposed to his words), there must have been vilifying speech to which the conduct relates. For example, a presenter invites a caller to repeat vilifying statements, or encourages or fails to challenge clearly gratuitous and abusive criticism on the basis of religion. In this case, the ABA decided that Vosper's comments did not amount to vilification (p 10; although on p 14, it refers to "vilifying statements made by an interviewee"). Therefore it is illogical that vilification occurred once Joseph "converted" Vosper's views into ones that had the "licensee's apparent support and confirmation". If, as the ABA decided, Vosper's words did not gratuitously vilify, then there were no "warning bells" telling Joseph not to endorse vilification or allow it to continue.
As a result, the potential application of the decision is indeterminate. The decision tells us that the ABA considered that there had been gratuitous vilification, but it is not possible to say which words breached the standard. This offends against the principle that laws that restrict speech should be capable of reasonable definition so that those who may be subject to them can determine in advance what speech is likely to offend against them. The ABA's decision does not meet this requirement.
Another of the factors taken into account by the ABA was the absence of "attenuating material". To what extent did the ABA's analysis of the subsequent broadcasts, particularly Joseph's failure, in the first instance, to live up to the spirit of RPS 8 (opportunity to reply) in the second broadcast colour this finding by creating the impression of a pattern of vilification? The question to be decided. as framed by the ABA, asks whether the material broadcast in the three programs individually or collectively vilified gratuitously the Church, suggesting that this was the ABA's approach. If this was the case then the ABA applied the reverse of its statement that "neither RPS 3(a) nor RPS 3(b) imports a balance test or requirement able to be satisfied by comments in subsequent programs" in considering the context of the subsequent programs so as to make the finding of vilification.
In addition it is unlikely that any administrative law remedies (which provide an opportunity for challenging the decisions of government departments and public bodies) are available. Section 204 of the Act which specifies the ABA's decisions that can be reviewed by the Administrative Appeals Tribunal, does not include decisions about complaints in relation to compliance with program standards or codes of practice. The AAT would be the most preferable form of review of this type of decision, because it can review decisions on their merits. That is, it is not confined to considering whether decisions are legally correct, but can make judgments about the reasoning adopted by the decision maker and substitute its own decision. The other avenue of administrative review is in the Federal Court via the Administrative Decisions (Judicial Review) Act 1977 (Cth), but this requires proof of an error of law in relation to the decision. We consider that while the ABA's reasoning and interpretation of the facts can be criticised it is extremely unlikely that they could be found to amount to errors of law providing grounds of review.
There are also time limitation problems in relation to administrative review of the decision, as both the AAT and Federal Court avenues require applications to be made within 28 days of the decision. In certain circumstances it is possible to seek an extension of this time limit.
Notwithstanding the lack of an avenue for formal review of the decision, we consider that it is important to notify the ABA of your criticisms and concerns. It may be possible to request the ABA to conduct an internal review (a procedure that exists in relation to freedom of information applications). At the very least, the ABA should be notified of your concerns, as decisions on the interpretation of standards and codes are comparatively rare, and this is the first time an Australian broadcasting regulator has considered the issue of religious vilification. It is important that your criticisms form part of the record in this matter so that if the ABA is required to consider any future complaints on this issue, it is on notice that this decision was criticised and that it should not necessarily be applied as a precedent.
As you noted in your letter, the decision is relevant to the recently registered CBAA Codes of Practice, clause 2.3 of which provides:
Community broadcasting licensees shall not broadcast material which may stereotype, incite, vilify, or perpetuate hatred against, or attempt to demean any person or group on the basis of ethnicity, nationality, race, gender, sexual preference, religion, age or physical or mental disability.
The drafting of this clause is problematic. It is obviously intended to deal with a number of controversial forms of speech, but this is at the expense of it having any real meaning or being capable of practical application. The language is expansive, ranging from stereotyping and demeaning through to perpetuating hatred and vilifying, and includes a reference to incitement that fails to specify what must not be incited (presumably it is intended to be reference to inciting hatred).
On its face, the provision makes no attempt to balance the competing interests of free speech and protection from vilification. There is no additional requirement of gratuitousness, which the ABA interpreted as providing a safeguard against unnecessary restriction of speech, nor are there exceptions for fair and accurate reporting, discussion of public interest issues and works of artistic, literary and scientific merit such as are found in Commonwealth and NSW anti-discrimination legislation. Nor, like RPS 3, does the code say anything about the possibility of a radio presenter becoming liable for vilification through conduct of an interview or talk-back session. Yet such matters might be implied into the code when it is being applied to a complaint. This is unsatisfactory, because the code should specify the factors that are relevant in determining whether a broadcaster has breached the code.
The drafting of the CBAA code was not central to your original inquiry, and these observations are only made in passing. However, it is a matter that you may wish to raise with the CBAA with a view to reconsidering the current wording. To this end, we set out below some examples of how other broadcasting and print media codes deal with this issue. You will see that there is greater emphasis on avoiding discrimination, gratuitous emphasis and stereotyping and on recognition of the competing interest in free speech though the provision of exceptions.
Clause 1.6.6 of the Code of Practice prohibits programs likely to "stir up hatred, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, nationality or ethnic origin, physical or mental disability, race, religion or sexual preference". Clause 1.7 provides exceptions for matters said or done reasonably and in good faith:
1.7.1 in broadcasting an artistic work (including comedy or satire); or
1.7.2 in the course of any broadcast of a statement, discussion or debate made or held for an academic, artistic or scientific purpose or any other identifiable public interest purpose; or
1.7.3 in broadcasting a fair report of, or a fair comment on, any event or matter of identifiable public interest.
Clause 2.4 (Discrimination) of the ABC Code of Practice provides: "The presentation or portrayal of people In a way which is likely to encourage denigration of or discrimination against any person or section of the community on account of race, ethnicity, nationality, sex, age, physical or mental disability, occupational status, sexual preference or the holding of any religious, cultural or political belief will be avoided. The requirement is not intended to prevent the broadcast of material which is factual, or the expression of genuinely-held opinion in a news or current affairs program, or in the legitimate context of a humorous, satirical or dramatic work."
Clause 2.1 (Prejudice, racism and discrimination) of the Code of Practice puts the emphasis on seeking, through its programming, to counter attitudes of prejudice and discrimination. Clause 2.5 provides, in relation to religion, that "the SBS will responsibly examine the role of religion in society and report on developments in religions. In doing so, the SBS will not support any particular religion over any other, nor intentionally provide a medium for one religion to denigrate another. The SBS recognises the importance of religion for the communities that make up Australia's pluralist society. The SBS is aware that programming dealing with religion has the potential to cause cross-cultural tensions. Accordingly, the SBS is sensitive and careful in dealing with issues of religion".
In relation to print media, the Australian Press Council's Statement of Principles provides:
8. A newspaper should not place gratuitous emphasis on the race, nationality, religion, colour, country of origin, gender. sexual preference, marital status, or intellectual or physical disability of either individuals or groups. Nevertheless, where it is in the public interest, newspapers may report and express opinions upon events and comments in which such matters are raised.
In conclusion, we consider that the ABA's decision has serious implications for free speech and that 3RRR should inform the ABA of its concerns and criticisms. Please contact myself or Jenny Mullaly if you wish to discuss further the matters we have raised.
Communications Law Centre
[signed] J. Mullaly per