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Complaints

14 Sep 2016 - 16:01 | Version 5 |

Contributed by DominicGomez and current to 1 May 2016

A person may complain to the ACMA if they believe Australians can access unlawful content online using an Australian ISP or Australian content host. Complaints must be made in writing and can be lodged using the online complaints form from the ACMA's website at www.acma.gov.au.

When a complaint is received

ACMA will investigate a complaint made to it.

If the material is on an Australian site

If ACMA finds that content hosted in Australia is unlawful, ACMA can direct the internet content host to remove the content from their service. This is called a 'take-down notice'. If ACMA issues such a notice, the Australian content host must remove the content by 6pm on the next working day or risk penalties.

In serious cases (for example, child pornography), State or Territory police can also become involved. Depending on the State or Territory, the content provider, the internet content host and the ISP may all be prosecuted and face a fine or a jail term if it is found that they knew the content was illegal.

If the material is hosted outside Australia

If the RC or X content is hosted outside Australia, the co-regulatory scheme does not apply to the Internet content host. However, ACMA will notify suppliers of approved content filters about the content so they can block subscribers' access. Australians can subscribe to an approved filter for free. For information on the National Filter Scheme, go to http://www.netalert.gov.au/filters.html.

Even if the content is hosted overseas, Australian ISPs are still subject to the scheme. An Australian ISP is issued an access-prevention notice by ACMA, it must comply with internet industry codes of practice or an industry standard, or take reasonable steps to block the offending overseas-hosted material. The codes of practice require an ISP to have an approved filter on its system for this purpose.

An ISP following ACMA's direction or notice is protected from civil proceedings. However, if an ISP does not comply, it is guilty of a criminal offence for each day the contravention continues. If successfully prosecuted, an ISP could be fined 50 penalty points per day the offence continues, that is, $5500 per day for an individual and up to $27,500 per day for a corporation.

In serious cases the Australian Federal Police or the relevant overseas law enforcement agencies may become involved.

ACMA can refer content it considers to be of a sufficiently serious nature to an Australian police force for investigation.

Journalistic ethics

Over the centuries there has been a constant tension between governments and other powerful vested interests, such as big business, on the one hand, and journalists and their publishers on the other. This is notwithstanding the fact that major media corporations have become vested interests in their own right. Journalists, in particular, have developed a set of ethical principles and work procedures designed to provide a transparent and fair approach to reporting.

In Australia, the Australian Journalists' Association (a division of the Media, Entertainment and Arts Alliance (MEAA)) code of ethics has been developed. It is a voluntary code, but has a powerful influence. Complaints about alleged breaches of the code by members can be taken up with the MEAA (see Complaints below).

However, many people involved in publishing from the production of a sports newsletter to a news site on the internet are not trained (let alone paid) journalists, even though they might be performing similar functions. Anyone disseminating information, whatever the medium, should take note of the ethical considerations journalists must face. Journalists' ethical guidelines have been reprinted below, with permission from the Journalists Section of the MEAA.

Freedom of speech

Unlike the United States, which has a Bill of Rights in its constitution which includes protection of freedom of speech, Australia does not have a constitutional Bill of Rights. In Australia, we do not have such a defined right. However, the High Court of Australia has read an 'implied right' into our Constitution, which limits the government's power to restrict free communication about government and political matters.

As recently as 2008, the Full Federal Court ruled that a regulation designed to stop people being 'annoying' during the World Youth Day celebrations was unenforceable. In that case, the court found a freedom of speech by considering that in making the regulation, Parliament could not have intended that people would be prevented from exercising free speech simply because other people might find it annoying.

In 2006, new uniform defamation legislation came into force throughout the States and Territories of Australia. The uniform laws resolved the problem of each State and Territory having its own defamation laws which previously meant that each State and Territory potentially had a different way for matters to be reported in the media. Australian jurisdictions also have different rules about the reporting of court proceedings, particularly in criminal, children's and family law matters.

MEAA Code of Ethics

1. Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. Do not suppress relevant available facts, or give distorting emphasis. Do your utmost to give a fair opportunity for reply.

2. Do not place unnecessary emphasis on personal characteristics, including race, ethnicity, nationality, gender, age, sexual orientation, family relationships, religious belief, or physical or intellectual disability.

3. Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source's motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.

4. Do not allow personal interest, or any belief, commitment, payment, gift or benefit, to undermine your accuracy, fairness or independence.

5. Disclose conflicts of interest that affect, or could be seen to affect, the accuracy, fairness or independence of your journalism. Do not improperly use a journalistic position for personal gain.

6. Do not allow advertising or other commercial considerations to undermine accuracy, fairness or independence.

7. Do your utmost to ensure disclosure of any direct or indirect payment made for interviews, pictures, information or stories.

8. Use fair, responsible and honest means to obtain material. Identify yourself and your employer before obtaining any interview for publication or broadcast. Never exploit a person's vulnerability or ignorance of media practice.

9. Present pictures and sound which are true and accurate. Any manipulation likely to mislead should be disclosed.

10. Do not plagiarise.

11. Respect private grief and personal privacy. Journalists have the right to resist compulsion to intrude.

12. Do your utmost to achieve fair correction of errors.

Guidance Clause

Basic values often need interpretation and sometimes come into conflict. Ethical journalism requires conscientious decision-making in context. Only substantial advancement of the public interest or risk of substantial harm to people allows any standard to be overridden.

Laws governing the way the media can report on legal matters are mostly grounded in common law. In Australia, the media covers many legal matters, such as police investigations, the appearance of criminals before the judiciary and juries, and court proceedings generally.

As a general rule, details of crimes and police investigations can be reported with reasonable immunity up until the time a charge is laid, subject to defamation and racial hatred laws, for example. From the time a charge is laid, reports are restricted to the details of charges and those charged. Under certain legislation related to sexual assault or juvenile matters, or at the direction of a court, the name of the person charged may not be able to be reported. This may extend to the reporting of the names of people, such as parents, that might lead to the identification of those who the court has directed not be named (see Contempt ).

Unless there are specific restrictions set down by a court, any member of the public, including the media, can attend court and witness proceedings. This is commonly referred to as an open justice system. The law has also established that members of the public and the media generally can not be excluded from proceedings merely to save a defendant or a witness from embarrassment. Unless directed by a court, a journalist who has been asked not to report something can decline the request.

However, restrictions on what journalists can and cannot report in specific cases are contained in various pieces of NT and Commonwealth legislation, including the Evidence Act (NT), the Care and Protection of Children Act (NT), the Adoption of Children Act (NT), the Sexual Offences (Evidence and Procedure) Act and the Family Law Act 1975 (Cth). One of the main criticisms levelled at journalists is that they do not report every detail of a court case or other legal matter. Most journalists write stories that can easily be understood by lots of people. The courts recognise this by allowing journalists to publish and broadcast stories which may not be word for word accounts, but are accurate and fair and put together in good faith. However, there are several restrictions on what journalists and their media organisations can do when it comes to reporting legal related matters. There are laws to ensure everyone charged with an offence is given a fair trial (see Contempt below), laws to protect the reputations of the courts, judges and individuals, and laws to make sure certain community standards are upheld.

In general, courts do not allow proceedings to be documented by television or still cameras, or by audio recording. Upon application, media organisations have from time to time been allowed access by video and still cameras in cases of public importance to provide 'establishment shots' as well as judicial rulings.

Reporting parliamentary proceedings and accounts of public meetings

Reporting parliamentary proceedings in the NT is governed by common law, as well as specific restrictions under the Legislative Assembly (Powers and Privileges) Act (NT).The Speaker of the Legislative Assembly has also issued specific Media Guidelines for broadcasters.

As with the reporting of court proceedings, there is a general principle that members of the public have access to all parliamentary proceedings, including that of parliamentary committees. Journalists have a general right to report these proceedings, subject to certain committee proceedings being held in camera; that is, in secret.

However, as with court reporting, journalists are not required to report parliamentary proceedings word for word. As long as reports are accurate and fairly represent proceedings, a journalist has absolute privilege in reporting parliament. Absolute privilege extends to the media the 'privilege' members of parliament have against defamation and contempt of court charges to journalists (see Defamation ).

Reports of public meetings are also regulated by the laws of defamation.

In general, the NT Legislative Assembly does not allow proceedings to be filmed or recorded. Nor can still photographs be taken. Access by the media is subject to the Legislative Assembly (Powers and Privileges) Act (NT) and rulings from time to time by the Speaker of the Assembly. The Speaker has issued detailed guidelines, especially regarding filming and recording, to the Parliamentary Press Gallery. Since 2001, the Speaker has allowed the recording and filming of Question Time, the period of a parliamentary sitting where MPs ask questions of Ministers. Upon application, media organisations have from time to time been allowed access by video and still cameras in debates of public importance and to provide 'establishment shots'.

Contempt

Although Australia has an open justice system, it also operates under the principles of 'innocent until proven guilty' and 'everyone has a right to a fair trial'. Laws are in place to ensure journalists respect these principles. Breaking these rules may lead to charges of contempt of court.

For example, according to the law of contempt, journalists are not allowed to publish material about an accused person's criminal past after charges are laid and in the run up to or during a committal, trial or hearing. There are also restrictions about what can be reported once someone is charged with an offence and this includes the publication of images of those charged.

A journalist must not report an alleged confession or make public material that has not been presented to the jury. This aims to ensure that jury members base their decision on the evidence presented to them in court, not on preconceived beliefs derived from what they have learnt from newspapers, radio, television or the internet. A journalist who is offered information about a person who is going through the court system cannot publish it if it has, as a matter of practical reality, the tendency to interfere with either the fair trial of a person or the administration of justice. For example, a media organisation should not publish a photo or video of an accused person where the identity of the person who committed the alleged crime may be an issue in a trial.

The laws of contempt prohibit the publication of material that may influence proceedings before a court. If a judge believes a media report amounts to contempt the judge can discharge a jury and abort a trial, which may lead the Director of Public Prosecutions to recommend action be taken against the relevant journalist and media organisation. Likewise, there are strict rules about approaching a juror, both during and after a trial. Such approaches may also be held in contempt of court.

A report of a court proceeding may contain material that would otherwise be regarded as defamatory. Unless otherwise directed by the court, such reporting has absolute privilege; that is legal action cannot be taken against the journalist in reporting it (see Defamation ).

A journalist can also commit contempt by writing or broadcasting a story that lowers public confidence in the court system. This includes attempts to dissuade a person who is involved in litigation from pursuing that course.

Freedom of information and privacy legislation

Persons publishing in the media may need to consider the relevance of freedom of information and privacy laws in certain circumstances.

The Northern Territory's Information Act allows access to NT Government information under Freedom of Information (FOI) principles. Freedom of information laws also exist under Federal legislation (see Freedom of information and privacy legislation ).

Privacy laws are also in a state of rapid redevelopment. Federal privacy legislation now also applies to private sector organisations, as well as the Commonwealth Government and its agencies. On 11 August 2008, the Australian Law Reform Commission reported on the extent to which the Privacy Act 1988 (Cth) and related laws continue to provide an effective framework for the protection of privacy in Australia and recommended significant changes. Some of the proposed changes include combining the privacy principles that apply to the government and the principles that apply to private business together to form Unified Privacy Principles. Another proposed reform is to remove the journalist exemption.

Unlike privacy laws in some European countries, the law applying to the publication of photographs and images is not well developed. As a general principle, media organisations do not need to seek specific permission of an individual to reproduce images of that individual (taken by the organisation or another person) in the presentation of news stories, especially in the context of those photographs being taken of the subject in a public place. The law is far less clear on the use of photographs of people in non-public places and for commercial purposes and where the person is well-known. Care must also be taken to ensure that the context of the photograph is not defamatory.

Other restrictions

Media organisations are also restricted by laws designed to protect and uphold community standards on language, people's beliefs and morality. For example, publishers need to ensure that they do not breach the Racial Hatred Act (Cth) (see Discrimination ). Radio and television stations must abide by certain conditions laid down in their licences and newspapers have to abide by requirements under NT law. For instance, the NT News can only publish letters from writers who have provided to the paper their names and addresses. As a matter of practice, organisations such as the NT News should make all reasonable efforts to determine the bona fides of the writers of letters. All media organisations are required to keep copies of material published or broadcast [Broadcasting Services Act (Cth) s.117(2)], and to produce that material if requested to by police and during any legal proceedings. Such material may also be liable for production in contempt or defamation proceedings, and may have to be handed over as part of discovery or on the issue of a subpoena. The material must be handed over on a court order.

Government obligations

The Australian Broadcasting Corporation Act 1983 (Cth) requires the ABC to provide 'innovative and comprehensive broadcasting services of a high standard' [s.6]. At present, it provides a national television service and up to five radio networks (Local Radio, Radio National, Triple J, ABC Classic FM and News Radio (including parliamentary broadcasts)) to most Australians, by satellite to remote areas, and Radio Australia, an international service targeting the Asia Pacific region.

The Special Broadcasting Service Act 1991 (Cth) requires SBS to provide 'multilingual and multicultural radio and television services that inform, educate and entertain all Australians and, in doing so, reflect Australia's multicultural society' [s.6]. The SBS radio service broadcasts in 68 languages, SBS television in more than 60 languages, and Internet services are available in more than 50 languages.

ABC and SBS charter obligations are not enforceable by individuals. Communities wanting particular services should make a case to the ABC or SBS, or the Federal Government, which funds them.

Complaints

In addition to the various legal remedies that may be available for a breach of the law (for example, suing for defamation, racial hatred or breach of copyright), a person who has a complaint about a journalist or media organisation, but does not want to take legal action, has a number of avenues for making a complaint.

They should first make their complaint directly to the publisher, such as the owner or editor of the relevant newspaper, radio or television station. Complaints about material published on the internet may also be made to the publisher's ISP.

If this avenue brings no satisfaction, and the person wants to pursue the matter, they can complain to:

The Australian Communications and Media Authority (ACMA)

ACMA is the government department responsible for regulating online content, including internet and mobile phone content, and enforcing Australia's anti-spam law. ACMA also plans the channels that radio and television services use, issues and renews licences, regulates the content of radio and television services and administers the ownership and control rules for broadcasting services.

ACMA will not consider your complaint unless you have first contacted the relevant broadcaster and allowed them 60 days to resolve your complaint. If you are unhappy with the broadcaster's response, or you have not received a response at all, you can then refer the complaint to ACMA using the form available at the website at www.acma.gov.au. Complaints should then be sent to:

Assistant Manager
Investigations Section
Australian Communications & Media Authority
PO Box Q500
Queen Victoria Building
Sydney NSW 1230
Fax: 0293347799
Email: broadcasting@acma.gov.au

The Media, Entertainment and Arts Alliance (MEAA)

If you believe a journalist has breached the Code of Ethics in any way, you should lodge a written complaint stating:
  • the name of the journalist
  • the action that you believe is unethical
  • the point or points of the Code that you believe have been breached.
The Branch Secretary refers the complaint to the Judiciary Committee, who are experienced journalists elected to the Committee every two years by members of the Journalists section of Media Entertainment and Arts Alliance in each State. The Judiciary Committees then meet to consider the complaint, and can dismiss or uphold the complaint, or hold hearings into the complaint. If the Committee upholds the complaint, then they can:
  • censure or rebuke the journalist
  • fine the journalist up to $1000 for each offence
  • expel the journalist from membership of the Alliance. Information regarding complaints about journalists is published and distributed to journalist members on a yearly basis.
Complaints should be in writing and sent to:

Media Entertainment and Arts Alliance
Federal Secretary
PO Box 723
STRAWBERRY HILLS NSW 2012
Ph: 02 9333 0999
Fax: 02 9333 0933
Email: mail@alliance.org.au

The Australian Press Council

The Council looks into complaints made about newspapers and other publications and their journalists. Complaints must be in writing. Contact details are:

149 Castlereagh Street, Sydney, NSW 2000
Tel: 02 9261 1930
Fax: 02 9267 6826
www.presscouncil.org.au

The Australian Broadcasting Corporation (ABC)

The ABC has its own internal complaints systems and will investigate matters raised by members of the public. Contact details are:

PO Box 9994, Sydney, NSW 2000
Tel: 02 9334 7700
Fax: 02 9334 7799
email@abc.net.au

Time limits

Various time limits may apply for a person who wants to take legal action or make a complaint. A person should not delay in seeking expert advice about action that may be available to them.

Other organisations that receive complaints

Commercial Radio Australia Ltd

Commercial Radio Australia is the national industry body representing Australia's commercial radio broadcasters. Commercial radio broadcasters must comply with a Code of Practice available at www.commercialradio.com.au.

A complaint must be made to the relevant broadcaster in writing by letter or fax, and you must provide your name and address, and adequately identify the material broadcast and the nature of the complaint. The broadcaster must provide a reply within 30 days, otherwise the complaint can be referred to ACMA.

Level 5
88 Foveaux Street
Surry Hills NSW 2010
Tel: 02 9281 6577
Fax: 02 9281 6599
mail@commercialradio.com.au

Free TV Australia

The content of free-to-air commercial television (for example Channels 7, 9 and 10) is regulated under the Commercial Television Industry Code of Practice which has been developed by Free TV Australia and registered with the Australian Communications and Media Authority (ACMA). The Commercial Television Industry Code of Practice is available at www.freetv.com.au.

Complaints about suspected breaches of the Code must be made in writing, and to the television station in the first instance.

First Floor
44 Avenue Road
Mosman NSW 2088
Tel: 61 2 8968 7100
Fax: 61 2 9969 3520
contact@freetv.com.au

Australian Subscription Television & Radio Association (ASTRA)

ASTRA is responsible for subscription (or pay-tv) codes of practice. This includes the Codes of Practice for Subscription Broadcast Television, Subscription Narrowcast Television, Open Narrowcast Television and Subscription Narrowcast Radio services.

A complaint in the first instance should be made to the relevant Broadcaster (Foxtel, Austar, Trans-ACT or Select-TV etc). A complaint must adequately identify the matter complained of, the nature of the complaint, and the identity of the complainant. The Broadcaster has 60 days to respond. If no response is received, you can complain directly to ACMA.

55 Pyrmont Bridge Road
Pyrmont NSW 2009
Ph: 61 2 9776 2684
Fax: 61 2 9776 2683
Email: astra@astra.org.au

Australian Advertising Standards Bureau (ASB)

The Board of the ASB will consider a written complaint submitted to the Advertising Standards Bureau in regard to an advertisement that may be in breach of section 2 of the AANA Code of Ethics, the Code for Advertising to Children or the Federal Chamber of Automotive Industries Voluntary Code.

Complaints can be made by letter, fax or online at www.adstandards.com.au/pages/screening.asp.

Level 2
97 Northbourne Avenue
TURNER ACT 2612
Tel: (02) 6262 9822
Fax: (02) 6262 9833
Email: administration@adstandards.com.au

More information about where to direct your media-related complaint is provided by ACMA at www.acma.gov.au/webwr/consumer_info/publications/brochures/broadcasting_complaints.pdf.

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