Al-Manar Television programming Investigation report DECEMBER 2010

Transcription

1 Al-Manar Television programming Investigation report DECEMBER 2010

2 Canberra Purple Building Benjamin Offices Chan Street Belconnen ACT PO Box 78 Belconnen ACT 2616 T F Melbourne Level 44 Melbourne Central Tower 360 Elizabeth Street Melbourne VIC PO Box Law Courts Melbourne VIC 8010 T F Sydney Level 15 Tower 1 Darling Park 201 Sussex Street Sydney NSW PO Box Q500 Queen Victoria Building NSW 1230 T F Commonwealth of Australia 2010 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Commonwealth. Requests and inquiries concerning reproduction and rights should be addressed to the Manager, Editorial Services, Australian Communications and Media Authority, PO Box Law Courts, Melbourne Vic Published by the Australian Communications and Media Authority

3 Contents Executive summary The nature of the Al-Manar program content Key findings of the report Proposed reform of the Anti-terrorism Standards Part 1: Introduction Terms of reference Submissions to the investigation Why the ACMA conducted the investigation/compliance assessment Regulatory requirements Part 2: Al-Manar Television Investigation and assessment methodology Al-Manar Television service Transmission, reception, programming Overall methodology for the investigation and selection of content for assessment Part 3: Investigation into Al-Manar Television content Findings 17 Open Narrowcast Code provisions relevant to breach findings 18 Breach finding 1 With the Viewers, clause 1.2 of the Open Narrowcast Code 22 Breach finding 2 With the Event, clause 1.3 of the Open Narrowcast Code 24 Non-breach findings 26 Part 4: Assessment as to whether there are appropriate community safeguards 28 Introduction 28 Methodology for the assessment of community safeguards 28 Discussion of the Al-Manar Television Service and programming issues 35 Adequacy of the current regulatory framework 37 Proposal for reform 39 Consultation on proposed amendment to Anti-terrorism Standards 41 acma iii

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5 Executive summary The Australian Communications and Media Authority (ACMA) has completed its investigation into programming on the Al-Manar Television open narrowcasting service, in response to the terms of reference published on 4 February The investigation has sought to ascertain whether the service s program content broadcast into Australia between December 2008 and January 2010 complied with regulatory obligations relating to terrorist related material, as well as racial vilification and hate speech. The investigation, while of the ACMA s own motion, was in response to community concerns about the strongly themed political, religious and cultural content on the service and the fact that the service is associated with the Hizbullah organisation. Al-Manar Television is a service which originates from Lebanon, is owned by the Lebanese Communications Group and is broadcast in Arabic. It is transmitted in this region by an Indonesian owned and operated satellite and is currently received in Australia via satellite on a fortuitous basis. Al-Manar Television is regarded by the ACMA as an open narrowcasting television service and, in Australia, is regulated in accordance with the Broadcasting Services Act 1992 (BSA), Open Narrowcast Television Codes of Practice 2009 (Open Narrowcast Code) and the Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2008 (Open Narrowcast Standard). The nature of the Al-Manar program content The Al-Manar Television service broadcasts a variety of programming formats, including news and current affairs, children s programs and drama programs. The Al-Manar service regularly broadcasts religious programs, some of which feature Shi a and Sunni Muslim clerics and scholars, instructing followers of the Muslim faith in various aspects of religious life. The Al-Manar Television service broadcasts programming which is political in nature, including: > martyr memorial programming and martial programming, such as patriotic songs and images of Hizbullah martyrs > political programming, such as speeches by Hizbullah leaders and persons of significance > other political interstitial programming, such as graphics and images, which support the Hizbullah opposition to Israel. The programming broadcast on the Al-Manar Television service is dynamic, in the sense of appearing to be responsive to the concerns of the day, especially during periods of national and regional significance. The research undertaken during the investigation has provided background for the ACMA about the context of the Al-Manar Television service and its association with Hizbullah. It also offers an explanation for the political and ideological nature of some of the programming assessed during the course of the investigation. acma 1

6 The ACMA is satisfied that parts of the Open Narrowcast Code are operating to provide appropriate community safeguards in respect of strongly themed material which incites racial hatred or gratuitously vilifies a person or group on the basis of, among other things, nationality, ethnicity, race or religion. However, the ACMA is concerned about whether there are appropriate safeguards against other material which could be reasonably understood as advocating the doing of a terrorist act. The programming material examined during the course of the investigation demonstrated that there was a risk that the Anti-terrorism Standards would not prevent the broadcast of strongly themed, unclassified programs, which advocate the doing of a terrorist act. While the ACMA did not identify material that recruited, sought funding for or advocated terrorism in the Al-Manar programming, it is nonetheless concerned that certain styles or forms of programming (for example, martial, martyr memorial and unmediated party political programming) could amount to advocacy of a terrorist act in periods of heightened conflict within the region. This is of concern to the ACMA as the current Anti-terrorism Standards do not prohibit the broadcast of strongly themed, unclassified programs, which advocate the doing of a terrorist act. The community takes a serious view of material which advocates terrorism, given the consequences for society following successful terrorist threats and/or attacks. The ACMA takes the view that community standards require strong regulation of terrorist related activities including the prohibition of material that advocates the doing of a terrorist act. Key findings of the report The ACMA has made the following findings as a result of the investigation. Namely, that the licensee of Al-Manar Television, Lebanese Communication Group: > breached clause 1.2 of the Open Narrowcast Code by broadcasting the current affairs program, With the Viewers, on 15 November 2009, as the program was not presented fairly > breached clause 1.3 of the Open Narrowcast Code by broadcasting the current affairs program, With the Event, on 28 February 2009, as the program was likely to gratuitously vilify a group on the basis of ethnicity and religion > did not breach the relevant provisions of the BSA, the Open Narrowcast Code or the Open Narrowcast Standard in the nine other programs assessed by the ACMA. Proposed reform of the Anti-terrorism Standards The ACMA proposes to improve the regulation of (both open and subscription) narrowcasting television services by amending the Open Narrowcast Standard as well as the Broadcasting Services (Anti-terrorism Requirements for Subscription Narrowcasting Television Services) Standard 2008 (Subscription Narrowcast Standard) to prohibit content that is likely to advocate the doing of terrorist acts. The proposed amendment would extend the Open Narrowcast Standard and the Subscription Narrowcast Standard (together referred to as the Anti-terrorism Standards ) so that they prohibit the advocating or instructing of a terrorist act by including the words of section 9A of the Classification (Publications, Films and Computer Games Act) 1995 (Classification Act). This section of the Classification Act provides that material on the internet, in publication or in film, which advocates or instructs on the doing of terrorist acts, is classified as refused classification (RC). The proposed reforms are based on the ACMA s preliminary assessment that the Open Narrowcast Code, the Subscription Narrowcast TV Codes of Practice 2007 (the Subscription Narrowcast Code) and the Anti-terrorism Standards are not operating to provide appropriate community safeguards in respect of material of this kind. The 2 acma

7 reforms would also better align the regulation of broadcast material with material published elsewhere, including online. The alignment with the regulation of online material would enable licensees, content providers and viewers to better understand the scope of obligations in relation to terrorist related content provided in Australia. The ACMA welcomes written submissions from members of the public, narrowcasters and other interested persons regarding the proposal to amended standards. The closing date for submissions is 12 February Submissions should be sent by to: acma 3

8 Part 1: Introduction The ACMA commenced the investigation of Al-Manar Television content in this report under section 170 of the Broadcasting Services Act 1992 (BSA) on 21 January 2010, due to public concern about the Al-Manar Television service and its broadcast into Australia. Terms of reference On 4 February 2010, the terms of reference for the investigation were published on the ACMA website, and are as follows: 1. To assess a range of content using the available recordings of Al-Manar Television programming broadcast into Australia since December 2008, and review specific content of which the ACMA is aware or is made aware, to determine compliance with: a. the licence conditions applicable to broadcasting services provided under class licences and as set out in clauses 11(1)(b), 11(1)(c) and 11(3) of Schedule 2 to the BSA b. clauses 1.2 and 1.3 of the Open Narrowcast Television Codes of Practice 2009 (Open Narrowcast Code) c. the Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2008 (Open Narrowcast Standard). 2. To make an assessment as to whether the provisions of the Open Narrowcast Code, the Open Narrowcast Standard and the obligations on the licensee within the BSA provide adequate safeguards for the community in relation to content which is assessed during the course of the investigation. 3. In undertaking the investigation, the ACMA may have regard to: a. community and industry standards b. international regulatory approaches c. relevant research d. specialist knowledge within the Commonwealth e. relevant Internet content regulation f. any other relevant matters. Submissions to the investigation With the publication of the terms of reference, the ACMA invited public referrals of specific content relevant to the investigation, calling for submissions to be made by 5 March The ACMA received two submissions during the course of the investigation, from: > a member of the public > the Australia Israel Jewish Affairs Council (AIJAC). The ACMA also notes material regarding the Al-Manar Television investigation from the Executive Council of Australian Jewry (ECAJ), dated 14 September 2009, which is available on ECAJ s website. 1 1 See 4 acma

9 Why the ACMA conducted the investigation/compliance assessment This investigation was in part prompted by continued community concern about the nature of programming broadcast on Al-Manar Television following Investigation Report 2158 (published in July 2009). 2 Investigation Report 2158 found references in some Al-Manar programming to a listed terrorist organisation (Hizbullah); however, no content assessed could reasonably be construed as directly recruiting people to join, or participate in the activities of, Hizbullah, or as soliciting funds for (or assisting in the collection or provision of funds for) Hizbullah. As a consequence, no breach of the Open Narrowcast Standard was found in that previous investigation. Notwithstanding this finding, the government asked the ACMA to continue to monitor this matter and to ensure that programs broadcast in Australia did not breach the Anti-terrorism Standards, relevant codes or licence conditions. Against this background, the AIJAC referred concerns about Al-Manar Television to the Minister for Broadband, Communications and the Digital Economy (the minister) in the second half of 2009, while the ECAJ made formal written submissions to the government and the ACMA on behalf of the community in September These approaches to government highlighted the nature of programming broadcast on Al- Manar Television and expressed concern that broadcasts possibly contained racial vilification and hate speech, as well as possible terrorism-related content. In response to these concerns, the ACMA announced a broad-ranging investigation into Al-Manar, including consideration of any specific complaints about content referred to the ACMA. 3 Regulatory requirements Al-Manar Television, as received in Australia, is an open narrowcasting television service. It is reported to have links to the Hizbullah organisation. Al-Manar Television is currently received in Australia via satellite on a fortuitous basis. The ACMA has jurisdiction under the BSA over broadcasts received in Australia, even if the programming originates in another country and is transmitted via satellite from overseas. Al-Manar Television broadcasts into Australia are regulated in accordance with the BSA, the Open Narrowcast Code and the Open Narrowcast Standard. The narrowcasting services category is based on definitions in section 17 and section 18 of the BSA. A service will be an open narrowcasting service if it is: > receivable in Australia > available freely > not 'made available only on payment of subscription fees (whether periodical or otherwise). 4 Open narrowcasting services are regulated under Australian law, even if a channel is targeted at a non-australian audience. There are many open narrowcasting services available via satellite in Australia. Sections 17 and 18 of the BSA indicate that the defining characteristic of a narrowcasting service is that its reception is limited in some way. Subsection 18(1) of the BSA provides that open narrowcasting services are broadcasting services: (a) whose reception is limited: 2 The investigation report is available at: 3 ACMA media release 18/ February ACMA to investigate Al-Manar TV. 4 See subsection 17(b) of the BSA. acma 5

10 i. by being targeted to special interest groups; or ii. by being intended only for limited locations, for example, arenas or business premises; or iii. by being provided during a limited period or to cover a special event; or iv. because they provide programs of limited appeal; or v. for some other reason; and (b) that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services. For a service to qualify as open narrowcasting, it need only satisfy one criterion at subsection 18(1)(a) of the BSA. 5 The ACMA had regard to the above criteria in determining whether Al-Manar Television, as transmitted into Australia, was an open narrowcasting service and therefore subject to the provisions in the Open Narrowcast Code and Open Narrowcast Standard. In particular, subparagraphs 18(1)(a)(i) and 18(1)(a)(iv) of the BSA were considered to apply to the Al-Manar Television service for the following reasons: > 18(1)(a)(i) targeted to special interest groups The Al-Manar Television service (transmitted by an Indonesian owned and controlled satellite) is available to a 'special interest group' within Australia by being produced in Arabic and by targeting an Arabic speaking audience. The ACMA's Guidelines on Narrowcasting Services on Television state that 'a service comprised of programs which are predominately in a language other than English may appeal only to people who are fluent in that language, and may fall within the narrowcasting category for this reason. > 18(1)(a)(iv) the service provides programs of limited appeal In providing programs entirely in Arabic, targeted to that 'special interest group', the service is considered of limited appeal in Australia. In this respect, the service is considered an open narrowcasting service because its appeal is limited to that specific sector of the community who understand Arabic. Accordingly, Al-Manar Television is an open narrowcasting television service (and therefore subject to the Open Narrowcast Standard and the Open Narrowcast Code) because it meets key limiting criteria specified in paragraph 18(1)(a) of the BSA, and because it is an 'open' service provided on a non-subscription basis to persons with the appropriate reception equipment. Anti-terrorism Standards The ACMA determined the Anti-terrorism Standards under Part 9 of the BSA on 1 December The Open Narrowcast Standard, in respect of terrorist related material, provides that a licensee providing open narrowcasting television services must not broadcast programs that would be reasonably understood as: > directly recruiting a person to join, or participate in, the activities of a listed terrorist; or > soliciting or assisting in the collection or provision of funds for a listed terrorist. 5 Under section 19 of the BSA, the ACMA may determine additional criteria or clarify the existing criteria for the purposes of distinguishing between categories of services. There are no section 19 determinations in place for open narrowcasting television services. 6 Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2008 and the Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard acma

11 For the purpose of the standard, listed terrorist means: (a) a listed terrorist organisation within the meaning of the Criminal Code Act 1995; or (b) a proscribed person or entity listed in the Gazette by the Minister for Foreign Affairs pursuant to section 15 of the Charter of the United Nations Act As noted above, Al-Manar Television is considered to be an open narrowcasting television service subject to the Open Narrowcast Standard. Open Narrowcast Code The Open Narrowcast Code was registered by the ACMA in February Among other things, it sets out general guidelines for programming on an open narrowcasting television service and requires that content of program material is consistent with standards acceptable to the relevant audiences. Relevantly, the Open Narrowcasting Code provides that: > Clause 1.2 Narrowcasters will present accurate and fair news and current affairs programs and, where practicable, will ensure that: (a) factual material will be clearly distinguished from commentary, analysis or simulations; and (b) news or events are not simulated in a way that misleads or alarms the audience. > Clause 1.3 Narrowcasters will not broadcast programs which are likely to incite or perpetuate hatred against or gratuitously vilify any person or group on the basis of ethnicity, nationality, race, gender, sexual preference, transgender status, HIV/AIDS status, religion, age, colour or disability. A narrowcaster may not broadcast a program which is likely in all the circumstances to seriously offend the cultural sensitivity of Aboriginal and Torres Strait Islander people or culturally and linguistically diverse communities in Australia. Relevant licence conditions under the BSA The licence conditions applicable to broadcasting services provided under class licences are contained in Part 7 of Schedule 2 to the BSA. The following licence conditions, among others, apply to the provision by a person of a broadcasting service under a class licence: > Clause 11(1)(b) The person who provides an open narrowcasting service must comply with program standards applicable to the licence under Part 9 of the BSA. The Open Narrowcast Standard is a program standard applicable to open narrowcasting television services. > Clause 11(1)(c) The person who provides the open narrowcasting service must not use the broadcasting service in the commission of an offence against another Act or a law of a State or Territory. > Clause 11(3) The person who provides the open narrowcasting service must not broadcast a program that has been classified RC or X 18+ by the Classification Board. Other regulation and offence provisions The ACMA has examined compliance by the Al-Manar Television service with Australian regulatory obligations under the BSA, clauses of the Open Narrowcast Code (including clause 3.4) and applicable sections of the Open Narrowcast Standard. acma 7

12 Compliance with relevant provisions of the Criminal Code Act 1995 and offences relating to racial hatred and vilification have been considered in relation to the applicable class licence conditions set out in Schedule 2 to the BSA. The relationship between Al-Manar Television and Hizbullah Al-Manar Television has publically reported links to the Lebanese Shi a political party and militia group, Hizbullah. 7 Hizbullah, as a whole or in part, is a listed terrorist organisation for certain purposes under Australian counter-terrorism and anti-terrorism law. It has been reported that Al-Manar Television is, either in part or substantially, funded by Hizbullah; that many of its prominent shareholders are Hizbullah party members 8 ; and that the service is used to promote the views of Hizbullah. 9 While the ACMA does not have any direct evidence of any relationship between it and Hizbullah, many public record sources point to a close and connected relationship between the organisations. 10 The ACMA notes that while the Al-Manar Television service provides a diverse range of programming formats, Hizbullah s viewpoint is strongly represented and promulgated on the Al-Manar Television service, particularly in the frequent, repetitive broadcast of political, martial, martyr memorial and religious programming. The ACMA s assessment of the Al-Manar Television service is consistent with the available research literature concerning Al-Manar Television in terms of the motifs and themes identified in the programming, including themes of resistance against Israel and a strong Hizbullah presence. The status of Hizbullah under Australian law Australia proscribes terrorist organisations under the Criminal Code Act 1995, and organisations and individuals under the Charter of the United Nations (Terrorism and Dealing with Assets) Regulations 2008 (UN Charter Regulations). Hizbullah and a number of its associated entities are listed on Australia s terrorist lists, including: Hizbullah s External Security Organisation (ESO), Hizballah, Party of God; Islamic jihad; Islamic Jihad Organisation; Revolutionary Justice Organisation ; Organisation of the Oppressed on Earth; Islamic Jihad for the Liberation of Palestine; Organisation of Right against Wrong, Ansar Allah and Followers of the Prophet Muhammed. 11 In its submission to the investigation, AIJAC maintains that: Hizbullah is a Lebanese organisation proscribed as a terrorist entity by the US, Canada, Israel and the UN. The UK proscribes Hizbullah s External Security Organisation. 7 Baylouny, Al-Manar and Alhurra: Competing Satellite Stations and Ideologies; Baylouny, Not your Father s Islamist TV: Changing Programming on Hizbullah s Al-Manar, Arab Media and Society, Issue 9, Fall 2009; Avi Jorisch, Beacon of Hatred: Inside Hizballah's al-manar Television, Washington Institute for Near East Policy, United States Department of Treasury, Press Release, 23 March Accessed 17 May Baylouny, Al-Manar and Alhurra: Competing Satellite Stations and Ideologies; Avi Jorisch, Beacon of Hatred: Inside Hizballah's al-manar Television. 10 For example, see: Anne-Marie Baylouny, Not your Father s Islamist TV: Changing programming on Hizbullah s al-manar, Arab Media & Society, Issue 9, Fall 2009.; Dina Matar and Farah Dakhlallah, What it means to be Shiite in Lebanon: al-manar and the Imagined Community of Resistance, Westminster Papers in Communication and Culture, 2006, University of Westminster, Volume 3(2). p30; Paul Cochrane, Bombs and broadcasts: Al-Manar s Battle to stay on air, Arab Media & Society, February 2007; Assam Nasr, An Historical Perspective on Fundamentalist Media: The Case of Al-Manar Television, Global Media Journal, Volume 6, Issue 11, Fall 2007; Olfa Lamloum, Hezbollah s Media: Political History in Outline, Global Media and Communication, Volume 5(3): ; Maura Conway, Terror TV? An Exploration of Hizbollah s Al- Manar Television, Working Papers in International Studies, Centre for International Studies, Dublin City University, Working Paper 10 of 2008; Zahera Harb, Aiming at Liberation: Al-Manar Media Campaigns against the Israeli occupation of Southern Lebanon ( ), Middle East Journal of Culture and Communication, Volume 2 (2009) pp All are listed under the Charter of the United Nations (Terrorism and Dealing with Assets) Regulations 2008 with the exception of the ESO which is listed under the Criminal Code Regulations acma

13 Australia also proscribes Hizbullah s External Security Organisation, describing the internal Hizbullah operation as a sanctioned resistance group. 12 The Commonwealth s national security website provides the following information about Hizbullah s ESO: ESO constitutes a distinct terrorist wing within Hizballah s structure. Since entering the Lebanese Parliament in 1992 and the Government in 1995, Hizballah has sought to strengthen its public image as a respected resistance movement and lessen its reputation as a terrorist group Hizballah is committed to armed resistance to the state of Israel and aims to liberate all Palestinian territories and Jerusalem from Israeli occupation. Hizballah actively promotes terrorist attacks in the Palestinian arena to reduce the possibility of agreements or accords between Palestinians and Israel. Ultimately, Hizballah aims to create a Shia Islamic state in Lebanon and remove all Western and Israeli influences in the region. Given its close links to Iran and Syria, ESO has the capability to execute its terrorist objectives. Hizballah uses a separate terrorist arm to conduct attacks and accordingly, recent terrorist activity generally attributed to Hizballah is likely to have been conducted by ESO, either wholly or as a major contributor. 13 The Criminal Code list The Attorney-General administers the Criminal Code list. Hizbullah s ESO was listed in Australia on 5 June It was re-listed on 5 June 2005, 25 May 2007 and on 15 May The ESO is a clandestine organisation of which little is known, due to the secrecy surrounding much of its operations. 15 The government has provided historical and political information about the ESO on the website, alongside information on the other 18 terrorist organisations now officially listed. The Charter of United Nations Act list The Minister for Foreign Affairs and Trade administers the Charter of the United Nations Act list. The list relates to Australia s obligations with respect to the suppression of terrorist financing imposed by the United Nations on member states and those states are to determine for themselves who such persons and entities are. The Commonwealth Government provides the following information on the asset freezing regime: On 28 September 2001, in response to the 11 September terrorist attacks in the United States, the UNSC adopted resolution 1373 (2001), imposing a series of obligations on UN Member States to suppress terrorism. Sub-paragraph 1(c) of resolution 1373 obliges Member States to: Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities Australia implements resolution 1373 through Part 4 of the Charter of the United Nations Act 1945 ( the Act ) and through regulation 20 of the Charter of the United Nations (Dealing with Assets) Regulations 2008 ( the 2008 Regulations ). The Minister for Foreign Affairs must list a person or entity on a case-by-case basis if he or she is satisfied that the person or entity is associated with terrorism as described in sub 12 Australia/Israel Jewish Affairs Council submission to the ACMA, March pp See 14 See f_terrorism_organisations_hizballah_external_security_organisation. 15 See acma 9

14 paragraph 1(c) of resolution These names are listed in the Commonwealth Gazette and it becomes a criminal offence to deal with their assets or to make assets available to them. These names are also included on DFAT s Consolidated List. 16 This Consolidated List includes the Hizbullah organisation in its entirety, and its aliases listed above. 16 See Accessed 29 April acma

15 Part 2: Al-Manar Television Investigation and assessment methodology Al-Manar Television service Transmission, reception, programming The Al-Manar Television service is reported to have begun broadcasting in Lebanon in 1991, with its first broadcast via satellite in Al-Manar Television s stated objectives are as follows: The Channel approaches Arabs and Muslims all over the world with an open unifying speech. It assumes objective policy motivated by the ambitions of participation in building better future for the Arab and Muslim generations by focusing on the tolerant values of Islam and promoting the culture of dialogue and cooperation among the followers of the Heavenly religions and human civilizations. It focuses on highlighting the value of the human being as the centre of the Godly messages which endeavour to save his dignity and freedom and develop the spiritual and moral dimensions of his personality. Al-Manar avoids cheap incitement in dealing with developments and activities, and it stresses objectively on the adoption of the fair and just causes of the whole nation. Al-Manar was able in a very short period to occupy a leading post among the other Arab satellite stations and to draw a large number of Arab viewers inside the Arab world and in the countries of immigration, and it became the true reflection of what each and every Muslim and Arab thinks and believes in. Al-Manar is an active member of the Arab states broadcasting union, part of the Arab League. 18 Transmission of the Al-Manar Television service The ACMA has confirmed that the Al-Manar Television service is being carried by an Indonesian owned and controlled satellite, PT Indosat Tbk (PT Indosat). The satellite company advised the ACMA that it is an Indonesian based company that provides telecommunication services, including transponder lease services, to its customers. 19 PT Indosat also confirmed that it provides transponder services to Al-Manar pursuant to a commercial arrangement. 20 The licensee advised that Al-Manar leases satellite services from PT Indosat. 21 During the investigation, PT Indosat Tbk also confirmed that: Al-Manar is transmitted on the Global beam in Palapa-D satellite based on the available capacity at the start of the transmission which was previously transferred from Palapa C satellite. [Al-Manar] is no longer transmitted from the Palapa C satellite since the operation of Palapa C was took over by Palapa D satellite. 22 PT Indosat advised the ACMA that the Palapa D satellite was launched on 27 December Anne Marie Baylouny, Al-Manar and Alhurra: Competing Satellite Stations and Ideologies, George C Marshall European Center for Security Studies, September 2005; Avi Jorisch, Beacon of Hatred: Inside Hizballah's Al-Manar Television; Dina Matar and Farah Dakhlallah, What it means to be Shiite in Lebanon: Al-Manar and the Imagined Community of Resistance, Westminster Papers in Communication and Culture, 2006, University of Westminster, Volume 3(2). p See accessed 24 February Letter from PT Indosat Tbk, dated 16 July Letter from PT Indosat Tbk, dated 16 July Letter from Lebanese Communication Group, dated 12 July Letter from PT Indosat Tbk, dated 16 July acma 11

16 Reception of the Al-Manar Television service The Al-Manar Television service is not encrypted and is capable of being received in Australia by satellite dish on a frequency in the C-band. The frequency for reception can be obtained from the Lyngsat website and other websites. 23 The Lyngsat website records Al-Manar Television as one of seven free television services (together with several encrypted television services) carried on the Palapa D satellite. 24 As noted above, PT Indosat provides satellite transponder lease services for broadcasting and telecommunications applications. The service provided to Al-Manar Television involves rental of a specified bandwidth on the Palapa D satellite. Satellite coverage spans India, Australia and Papua New Guinea. 25 Al-Manar Television provides the television program material or content stream, while Indosat delivers that channel of program material via satellite and unaltered. This channel is received by persons having equipment appropriate for receiving that service, using satellite direct-to-home (DTH) facilities. During the course of the ACMA investigation, both the licensee and PT Indosat confirmed that PT Indosat Tbk does not have the right to repackage or reformat the program stream provided by Al-Manar Television in order to insert local advertising or program promotions tailored to local audiences, or vary program schedules. Further, the licensee stated that the Al-Manar Television channel does not vary between regions receiving its transmission from Lebanon. 26 In summary, the Al-Manar Television signal is a single feed which is the same across the territories in which the Al-Manar Television service is received. 27 Al-Manar Television programming The Al-Manar Television service broadcasts a variety of program formats, including news and current affairs, children s programs and drama programs. The Al-Manar service regularly broadcasts religious programs, some of which feature Shi a and Sunni Muslim clerics and scholars, instructing followers of the Muslim faith in various aspects of religious life. The service is comprised of other religious programming, such as interstitials, sermons, prayers and Hadith. 28 The service broadcasts dramatised historical programs and documentaries containing a variety of themes, such as an historical docu-drama about the formation of the State of Israel. The Al-Manar Television service broadcasts programming that is political in nature, including martyr memorial programming and martial programming, such as patriotic songs and images of Hizbullah martyrs; political programming, such as speeches by Hizbullah leaders and persons of significance; and other political interstitial programming, such as graphics and images, which support the Hizbullah opposition to Israel. For example, graphical representations of the State of Israel s flag breaking into small pieces or short interstitial programs featuring statements made by Hizbullah martyrs were common motifs in the programming reviewed. The service broadcasts programming which is supportive of Hamas and the Palestinian resistance against The other free services are Lejel Home Shopping, Metro TV (Indonesia), Jak TV, TV Anak Space Toon, NHK World TV and U channel. 25 See Indosat website: 26 Letter from Lebanese Communication Group, dated 12 July Letter from licensee dated 12 July A hadith is a [R]eport of the words and deeds of Muhammad and other early Muslims; considered an authoritative source of revelation, second only to the Quran (sometimes referred to as sayings of the Prophet). Hadith (pl. a hadith; hadith is used as a singular or a collective term in English) were collected, transmitted, and taught orally for two centuries after Muhammad's death and then began to be collected in written form and codified. They serve as a source of biographical material for Muhammad, contextualization of Quranic revelations, and Islamic law. Excerpt sourced from Oxford Islamic Studies online, accessed 22 April acma

17 Israel, including broadcasting martial programming, political programming and advertisements for Palestinian charities. The Al-Manar Television service also broadcasts advertisements, the majority of which are for two charities, Al-Emdad (also known as the Al Khomeini Charity Fund) and the Palestinian Martyrs Fund. Advertisements for skin and haircare products as well as advertisements for beverages are also broadcast. The Al-Manar Television service broadcasts non-veiled women in many programs, although most female presenters of programs wear a hijab 29 and jilbab. 30 Current affairs programming often incorporates a plurality of perspectives, including programs on issues affecting young people, women and society generally. The ACMA found that during periods of national and regional significance, including periods of religious and political significance, such as Ashura 31 (December 2009), Martyrs Day 32 (November 2009) and the release of the political manifesto (November/December 2009), broadcasts on the Al-Manar Television service repeated programming with recurring themes and motifs associated with those religious or political occasions. For example, around the time of the Martyrs Day speech on 11 November 2009, the ACMA noted that a large volume of martyr memorial and martial programming was broadcast on 15, 17 and 23 November Excerpts of the speech were repeated as interstitials. The speech was discussed in news and current affairs programs. Overall methodology for the investigation and selection of content for assessment The ACMA is an evidence-informed regulator. In addition to drawing on its own experience in overseeing the regulatory framework for narrowcast television the ACMA assessed selected Al-Manar Television program material broadcast into Australia between December 2008 and January In accordance with the terms of reference, the ACMA s selection methodology involved three broad categories of Al- Manar Television programming: 1. daily programming 2. content referred to the ACMA via the minster s referral or public submissions 3. material selected at times of geopolitical interest. As described above, the material reviewed indicated that the Al-Manar Television service is comprised of a broad variety of programming and is dynamic, in the sense of appearing to be responsive to the concerns of the day, especially during periods of national and regional significance. Nature of programs scrutinised more closely From the three categories of programming above, the ACMA selected particular Al- Manar Television programs for full translation and a more detailed assessment against Australian broadcasting regulatory obligations. In doing so, and in the absence of a complaint about specific Al-Manar content, the ACMA: 29 The Macquarie Dictionary defines hijab as the traditional Islamic headscarf worn by women, which covers the hair, neck and shoulders. 30 The Macquarie Dictionary defines jilbab as a long loose-fitting coat or garment as worn by some Muslim women. 31 Ashura marks the tenth day of the Muslim month of Muharram, and is commemorated as the anniversary of the martyrdom of Imam Hussein at Karbala. This event is central to the core identity of Shi a Muslims. 32 This annual speech commemorates the anniversary of the first Hizbullah suicide bomber, Ahmad Qassir. On 11 November 1982 Qassir drove a bomb-laden vehicle into the Israeli military headquarters in Tyre killing 141 people (75 Israelis and others, including Lebanese prisoners). 33 The regulatory framework is set out in relevant licence conditions, the Narrowcasting Television Code of Practice and the Anti-terrorism Standard acma 13

18 > Only considered content known to have been broadcast into Australian territory via the PT Indosat satellite. Selections were made from each of the three categories of content on the basis of the availability of those broadcasts within the ACMA s recordings of Al-Manar Television. > Only considered material broadcast after 1 December 2008, so current regulation applies. > Undertook a general review of the selected content with a view to identifying and isolating material which it then assessed against the regulatory framework. > Focused on material which contained references to, or depicted, Hizbullah and its motifs, leaders and fighters. In taking this approach, the ACMA was able to be certain: > of the source of the material > that the material was broadcast into Australian territory > the material could be independently translated by the ACMA s translator. Programming material selected for translation and assessment by the ACMA is set out in the table below. Table 1 Programming material selected for translation and assessment by the ACMA Date of broadcast 26 December December th day of Ashura 15 December 2009 Advertisement 15 December 2009 Interstitial 1 December 2009 Manifesto speech 17 November November November March February 2009 Program 8th day of Ashura Drama program Current affairs Current affairs Children s program Current affairs Description Speech given by the Secretary-General of Hizbullah, Sayyid Hassan Nasrallah. Speech given by the Secretary-General of Hizbullah, Sayyid Hassan Nasrallah. Donation for al-emdad charity. 15 December 2009 Interstitial Our Dignity is Attributed to Martyrdom. Message to resistance fighters. Martyr memorial of Jihad Malek Hammoud. We Want Lebanon Strong and United. Speech given by the Secretary-General of Hizbullah, Sayyid Hassan Nasrallah. Syrian-produced drama series. Youth. Presenter discusses social networking sites with viewers. Ma a Al Mushahideen (With the Viewer). Presenter discusses the war in Yemen with viewers. What is it? Children explaining their illustrations. With the Event. Presenter discusses Islamic and Christian Holy sites with guest. Material referred from the minister and material contained in the submission of the Australia-Israel Jewish Affairs Council (AIJAC) In October 2009, the minister referred material to the ACMA for consideration. The material was provided to the minister by AIJAC in August The material is comprised of a list of video clips and transcripts collected and translated by the proprietors of the website known as MEMRITV. The material includes a list of 14 clips 14 acma

19 of content allegedly broadcast by the Al-Manar service between 29 May 2001 and 6 February The clips appear to be hosted online by the MEMRI organisation on its MEMRITV website ( 34 The ACMA has been unable to confirm that this material was broadcast into Australian territory. The investigation reviewed a selection of specific content of which the ACMA was made aware by the minister and specific content referred to it by AIJAC in its submission to the investigation. AIJAC s submission to the investigation AIJAC also made a separate submission to the investigation. The submission contains, among other things, excerpts of material allegedly broadcast by Al-Manar Television in the Middle East. The ACMA notes that the majority of the excerpts have been sourced from MEMRITV. The material comprises a list of excerpts allegedly broadcast by Al-Manar Television between December 2008 and 25 December There was an overlap between the material contained in AIJAC s submission and the material referred by the minister. MEMRITV as the source of the referred material MEMRITV is operated by the Middle Eastern Media Research Institute. 35 The MEMRI organisation is known to be a partisan Washington-based think-tank. During the course of the investigation, the ACMA wrote to MEMRITV regarding the source of its material. MEMRITV subsequently confirmed in writing that: [..] we receive and record Al-Manar TV using terrestrial satellite receiving equipment at our Jerusalem office. We receive and record through Arabsat (aka Badr) satellite, as well as through Nilesat. [..] we receive Al-Manar on Nilesat (frequency , Polarisation Vertical, Symbol rate 27500) and on Arabsat/Badr (frequency 11823, polarisation vertical, symbol rate 27500). 36 In relation to the translation of the material, the MEMRI organisation confirmed that: MEMRI staff translated the material from Arabic to English. MEMRI staff created the English subtitles contained in the material. MEMRI staff created the English transcripts of the material. The source of the material was our recording of Al-Manar TV via satellite television. MEMRI s Jerusalem office hosts our MEMRITV monitor project, which monitors Al-Manar. 37 The ACMA asked MEMRITV for information on its knowledge of Al-Manar s uplink arrangements from Lebanon, specifically whether Al-Manar Television broadcasts a single broadcast stream or multiple broadcast streams of its programming. The purpose of seeking this information was to determine whether the programming stream uplinked by Al-Manar Television to Arabsat or Nilesat from Lebanon was the same material which Al-Manar Television uplinks to Indosat. MEMRITV confirmed that: In general, I have no knowledge of Al-Manar s uplink arrangements. However, I doubt that Al-Manar TV uses multiple signals. There are Lebanese (and other) TV channels 34 The Middle Eastern Research Institute (MEMRI) is a Middle Eastern press monitoring organisation. Its headquarters are located in Washington DC, with branches in Jerusalem, Berlin, London, Rome, Shanghai and Tokyo. MEMRITV provides a free source of English language translations of material published in Arabic and Persian script, and publishes its analysis and reports on its website. Source: 35 See which describes MEMRI in the following terms: The Middle East Media Research Institute (MEMRI) explores the Middle East through the region s media. MEMRI bridges the language gap which exists between the West and the Middle East, providing timely translations of Arabic, Persian, Urdu- Pashtu, and Turkish media, as well as original analysis of political, ideological, intellectual, social, cultural, and religious trends in the Middle East. Founded in February 1998 to inform the debate over U.S. policy in the Middle East, MEMRI is an independent, nonpartisan, non profit, 501(c)3 organization. MEMRI s headquarters is located in Washington, DC with branch offices in London, Rome, Jerusalem, Baghdad, Shanghai and Tokyo. MEMRI research is translated to English, French, Spanish, German, Italian, Polish, Russian, Chinese, Japanese, and Hebrew. 36 from MEMRITV dated 23 March from MEMRI dated 11 March acma 15

20 that use multiple signals, and when they do, they indicate this. You can see this, for instance, in the list of free-to-air Lebanese channels on the Internet: Here, you can clearly see that LBC TV is, in fact, LBC America, LBC Australia, LBC Europe, and LBC sat. Another example is Future TV. If you go to the future TV website ( and click on schedule, you are asked to chose which grid you would like to watch: Satellite (Middle East & North Africa) America & Australia, News Channel, or Terrestrial. In this case, there are multiple signals. But on Al-Manar TV website ( they offer a choice only between what they call local station (which is their terrestrial signal) and what they call SAT station (which is satellite). I am not aware that anyone ever claimed that Al-Manar uses multiple satellite signals and I have seen no indication of that. 38 Consolidation of referred materials On the basis of the information received from MEMRITV and due to overlap in the referred material, the ACMA made its selection of programming from the referred materials based on available material pre-recorded by the ACMA from Indosat and known to have been broadcast into Australia during the relevant period covered by the terms of reference. Context and significance of key events covered by Al-Manar Television programming The investigation reviewed a selection of Al-Manar Television programming which related to specific significant events in Lebanon during the period under review, such as speeches of significance made by Hizbullah leaders. Reviewing material on the basis of key speeches and events assisted the ACMA to establish whether these events had any impact on shaping the nature of Al-Manar Television programming and the degree to which Al-Manar Television programming is static or dynamic in terms of the type of content that it produces. The selected material (detailed in the table above) was drawn from the ACMA s stock of available pre-recorded Al-Manar Television programming material. In addition, reliable data, research and analysis, including: an analysis of the previous investigations into Al-Manar Television, related print and online media; desk research; plus the ACMA s commissioned research on the International Regulatory Approaches to Al-Manar Television and terrorism-related content and Key Events in Lebanese Politics December 2008 January 2010 and the Role of Hizbullah, were considered during the course of the investigation to establish specific significant events in Lebanon during the period under review. 38 from MEMRITV dated 23 March acma

21 Part 3: Investigation into Al- Manar Television content Findings This part sets out the findings of the Al-Manar programming reviewed and includes reasons for the ACMA s breach findings. The findings are based on an assessment and analysis of the material selected for full translation from the sample of content reviewed by the ACMA. The material was selected for full translation based on the content assessment methodology discussed in Part 2. Table 2 Summary table of findings Date of broadcast Program Finding 15 November 2009 With the Viewers Breach of clause 1.2 of the Open Narrowcast Code. 28 February 2009 With the Event Breach of clause 1.3 of the Open Narrowcast Code. 1 December 2009 We want Lebanon Strong and United 15 December 2009 Our Dignity is Attributed to Martyrdom No breach of section 7 of the Open Narrowcast Standard. No breach of clause 11(1)(b) or 11(1)(c) of Schedule 2 to the BSA. No breach of clause 3.4 of the Open Narrowcast Code. No breach of section 7 of the Open Narrowcast Standard. No breach of clause 11(1)(b) or 11(1)(c) of Schedule 2 to the BSA. 15 December 2009 A Rebel s Message No breach of clause 3.4 of the Open Narrowcast Code. No breach of section 7 of the Open Narrowcast Standard. No breach of clause 11(1)(b) or 11(1)(c) of Schedule 2 to the BSA. 25 December th Day of Ashura No breach of section 7 of the Open Narrowcast speech Standard. No breach of clause 11(1)(b) or 11(1)(c) of Schedule 2 to the BSA. 15 December 2009 Al-Emdad charity No breach of section 8 of the Open Narrowcast advertisement Standard. No breach of clause 11(1)(b) or 11(1)(c) of Schedule 2 to the BSA. 15 November 2009 Youth No breach of clause 1.2 of the Open Narrowcast Code. 17 November 2009 The First of the Qibla No breach of clause 1.3 of the Open Narrowcast Code. 26 December th Day of Ashura No breach of clause 1.3 of the Open Narrowcast speech Code. 5 March 2009 What is it? No breach of clause 1.3 of the Open Narrowcast Code. acma 17

22 Open Narrowcast Code provisions relevant to breach findings As summarised in the table above, the ACMA has found that the licensee of Al-Manar breached provisions of the Open Narrowcast Code. Under section 123 of the BSA, industry groups representing sectors of the broadcasting industry may develop codes of practice in consultation with the ACMA. The Australian Subscription Television and Radio Association (ASTRA) developed the Open Narrowcast Code which has been registered by the ACMA under subsection 123(4) of the BSA. The Open Narrowcast Code establishes specific obligations for narrowcasters within the co-regulatory framework, in relation to programming (Code 1), handling of complaints (Code 2), and the classification and placement of programs (Code 3) and customer service. The relevant provisions of the Open Narrowcast Code to the breach findings and interpretation of those provisions are set out below. Relevant provisions Clause 1.2 of the Open Narrowcast Code provides: Narrowcasters will present accurate and fair news and current affairs programs, and where practicable, will ensure that: (a) factual material will be clearly distinguished from commentary, analysis or simulations; and (b) news or events are not simulated in a way that misleads or alarms the audience. Clause 1.3 of the Open Narrowcast Code relevantly provides: Narrowcasters will not broadcast programs which are likely to incite or perpetuate hatred against or gratuitously vilify any person or group on the basis of ethnicity, nationality, race [ or] religion... An exemption to clause 1.3 is provided in clause 1.6 of the Open Narrowcast Code, which provides: A narrowcaster will not breach clause 1.3 if a program includes matter said or done reasonably and in good faith: (a) in broadcasting an artistic work, including comedy and satire; (b) in the course of any broadcast or statement, discussion or debate made or held for an academic, artistic or scientific purpose or any other identifiable public interest purpose; (c) in broadcasting a fair report of, or a fair comment on, any event or matter of identifiable public interest. Clause 1.2 of the Open Narrowcast Code The Open Narrowcast Code requires narrowcasters to present accurate and fair news and current affairs programs. The requirement for accuracy applies to factual content only. Expressions of opinion, implications and inferences do not constitute factual content and are not subject to the requirement in clause 1.2. The requirement for fairness relates to the presentation of the program and requires that the principal relevant perspectives on an issue be presented impartially and without bias. Fairness can be achieved by the presentation of countervailing 18 acma

23 viewpoints in the same program. 39 The ACMA does not interpret the requirement for impartiality so as to restrict or prohibit thorough examination of important questions. Achieving impartiality in a program therefore requires a narrowcaster to choose what is to be broadcast in a way which avoids conveying prejudgment or giving effect to the affections or enmities of the presenter in respect of what is broadcast. When assessing a licensee s compliance with clause 1.2 of the Open Narrowcast Code, the ACMA determines whether or not a particular statement is factual content or commentary, analysis or simulation. In doing so, the ACMA s approach is to consider whether the relevant statement would have been understood by an ordinary reasonable viewer as a statement of fact or commentary, analysis or simulation. The primary consideration is whether, according to the natural and ordinary meaning of the language used and the substantive nature of the message conveyed, the relevant material presents as a statement of fact or as commentary or analysis. The ACMA assumes that the programs in question were created for an overseasbased audience, and directed towards audiences with values and concerns related to that target market. However, to the extent that a narrowcast licensee chooses to make such programs available in Australia, they must comply with the Open Narrowcast Code. Therefore, in considering the ordinary reasonable viewer, the ACMA considers that it is required to apply the standard of an ordinary reasonable viewer based in Australia, rather than the audience of the primary intended market of the narrowcaster. In the absence of a complainant asserting that particular factual statements are inaccurate and evidence supporting the assertion, the ACMA notes that there are very significant practical and resource difficulties in assessing compliance with clause 1.2 of the Open Narrowcast Code in the context of news and current affairs programs. For this reason, the ACMA has not considered the requirement of accuracy, but rather confined its consideration to the requirement of fairness only. The ACMA selected material for assessment against clause 1.2 of the Open Narrowcast Code from observing the news and current affairs programming in the daily programming and focusing in on the content in programs containing material which may raise issues of compliance with this clause. When a code or legislative instrument does not define a word, the word is to be given whichever of its ordinary English language meanings is most appropriate to the legislative context in which the word is used. In determining whether the narrowcaster presented news and current affairs programs that were fair, and distinguished factual material from commentary, analysis or simulations, the ACMA adopts the ordinary English language meanings of the following words as relevantly set out in the Macquarie Dictionary (Fourth Edition): Accurate adj: free from error or defect. Fair adj: free from bias, dishonesty, or injustice. Commentary noun: a series of comments or annotations. 39 ACMA Investigation Report Nos 1418 and 1474, Four Corners 'Lords of the Forest' July In this current investigation the ACMA has adopted the approach taken in Investigations 1418 and 1474 and assessed the program as a whole, rather than an approach which undertakes a line-by-line analysis of each statement in a program. acma 19

24 Analysis noun: 1. separation of a whole, whether a material substance or any matter of thought, into its constituent elements (opposed to synthesis). 2. this process as a method of studying the nature of a thing or of determining its essential features. Simulations noun: pretending; feigning. Clause 1.3 of the Open Narrowcast Code Incite or perpetuate hatred or gratuitously vilify In determining whether the broadcast was likely to incite or perpetuate hatred against, or gratuitously vilify, a group or person on the basis of ethnicity, nationality, race or religion, the ACMA adopts the ordinary English language meanings of the following words as relevantly set out in the Macquarie Dictionary (Fourth Edition): Incite verb: to urge on; stimulate or prompt to action. Perpetuate verb: to make perpetual. Perpetual adj: 1. continuing or enduring forever or indefinitely. Hatred noun: intense dislike. Gratuitously adverb: 2. being without reason, cause or justification. Vilify verb: 1. to speak evil of; defame; traduce. Likely Use of the word likely imposes an objective test and has been interpreted to mean something that has a real and not remote chance of occurring 40 ; something which is probable will satisfy this requirement. 41 On the basis of ethnicity, nationality, race or religion The phrase on the basis of requires consideration of the reason or reasons for which the relevant act was done. 42 There must be a causal relationship between the impugned conduct and the personal characteristic said to be the basis for that conduct. Nationality is a concept that refers to a person s legal status, usually determined at time of birth. However, over a lifetime, a person may acquire a number of different nationalities which may be held successively from time to time or even simultaneously where dual nationality is recognised Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at See discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD 773 at Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56 at Maria Macabenta v Minister for Immigration & Multicultural Affairs [1998] FCA 385 (21 April 1998). 20 acma

25 Ethnicity is a broad term which carries with it notions of a distinct community with a shared historical identity. In considering whether a group could be said to have a particular ethnic origin, courts have found that: [ ] a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them a historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents. 44 Australian courts have affirmed that Jewishness is an ethnic or racially protected category under the Racial Discrimination Act 'Race' includes ideas of ethnicity and is not limited to one nationality. 46 The ACMA considers that people from Israel are Israeli nationals. The ACMA also considers that people of Jewish background, including Jewish people not residing in Israel, constitute a specific ethnic and/or racial group, being a population distinguishable from other members of the community by a sufficient combination of characteristics derived from a presumed common past. The ACMA adopts the ordinary English language meaning of the word religion as set out in the Macquarie Dictionary: Religion noun 1. a belief in a supreme supernatural power or powers thought to control the universe and all living things. 2. a particular formalised system in which this belief has been embodied: the Christian belief [ ] 47 Clause 1.6 of the Open Narrowcast Code Clause 1.6 of the Open Narrowcast Code provides that a narrowcaster will not breach clause 1.3 of the Open Narrowcast Code if a program includes matter said or done reasonably and in good faith (in respect of certain programming). Reasonably Reasonableness in relation to the broadcasting of material of the kind referred to in clause 1.3 of the Open Narrowcast Code implies elements of rationality and proportionality. 48 Matter likely to elicit the prohibited effect will be presented reasonably if it bears a rational relationship to the public interest purpose of the broadcast. 49 In good faith Good faith, in relation to the broadcasting of material of the kind referred to in clause 1.3 of the Open Narrowcast Code, implies both subjective and objective good faith King-Ansell v Police (1979) 2 NZLR 531 at Cohen v Hargous; Karelicki v Hargous [2006] NSWADT 209 Toben v Jones (2003) 199 ALR Explanatory Memorandum to the Racial Hatred Bill 1994 at Macquarie Dictionary, online at /p/thes/article_display.html?type=title&first=1&mid=3&last=3&current=1&result=1&databaselist=dictbigmac &query=religion&searchtype=findrank, accessed on 7 July Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105; [2004] FCAFC 16; at [80] (French J). 49 Australian Communication and Media Authority, Investigation Report No (2007) at [8]. 50 Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105; [2004] FCAFC 16; at [96] (French J), [1411] (Carr J). acma 21

26 To act in good faith, the item of public interest must be presented without subjective dishonesty or malice, and must be objectively considered to take a conscientious approach to minimise the prohibited effect. 51 Good faith is absent where material is presented in a manner that carelessly disregards or is wilfully blind to the potential for the prohibited effect. 52 Breach finding 1 With the Viewers, clause 1.2 of the Open Narrowcast Code With the Viewers 53 is described by Al-Manar as a: political program [which] allows viewers to express their points of view on current hot issues. [The program] enables the nation s people to communicate with each other courageously but responsibly to discuss major issues or a present event that requires some consideration. 54 On the basis of Al-Manar s description of the program, the ACMA considers the program to be a current affairs program for the purpose of this investigation and the application of the Open Narrowcast Code. The program schedule indicates that it is broadcast once a week on a Saturday (Lebanon time) and is scheduled for an hour. Finding The ACMA finds that the licensee of Al-Manar Television, Lebanese Communication Group: > breached clause 1.2 of the Open Narrowcast Code by broadcasting the current affairs program, With the Viewers, on 15 November 2009, as the program was not presented fairly. Reasons The ACMA examined With the Viewers, broadcast on 15 November 2009, to determine whether it complied with clause 1.2 of the Open Narrowcast Code. This involved assessing if the program was presented fairly and, where practicable, clearly distinguished factual material from commentary or analysis. As indicated, the ACMA assessed the program as a whole, rather than undertaking a line-by-line analysis of each statement in the program. Relying on the dictionary definition above, a program can be considered to be fair if it is free from bias, dishonesty or injustice. A helpful explanation of the ordinary English usage of the term bias was set out by Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng 55 as follows: Bias is used to indicate some preponderating disposition or tendency, a propensity; predisposition towards; predilection; prejudice. 56 It may be occasioned by interest in the outcome, be affection or enmity, or, as was said to be the case here, by prejudgement. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is anything which turns a man to a particular course, or gives the direction to his measures. 51 Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105; [2004] FCAFC 16; at [102] (French J). 52 Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105; [2004] FCAFC 16; at [102] (French J). 53 Ma a Al-Mushahideen. 54 Description of Ma a Al-Mushahideen on Al-Manar s English website accessed on 18 August (2001) 205 CLR 507 at 563 [183] Gleeson CJ and Gummow J at 538 [100] agreeing. 56 The Oxford English Dictionary 2 nd ed (1989), bias sense 3a. 22 acma

27 It is not necessary for a presenter to present all possible views on a particular issue in a current affairs program where complex issues are explored, and a report that presents a view that is opposed by a particular person or group is not inherently impartial. However, information must be presented in such a way that one side of an issue is not favoured over another and the program does not show prejudice or bias against a particular side. Whether a breach of clause 1.2 has occurred will depend on the issue, any editorial comment, the presentation of the story and the circumstances in which the program was prepared and broadcast. Clause 1.2 does not require all sides of a debate to be given equal time. The Australian Broadcasting Authority (the predecessor to the ACMA) previously considered compliance with the obligation to present a program in a fair manner. Investigation stated: Matters that could lead to a consideration that material has been presented unfairly or partially may include an unfair selection of material from the range of material available, an undue emphasis on certain material, or the unfair juxtaposition of material taken out of context. Presenters and reporters can play a key role in setting the tone of a program through their style and choice of language. The manner in which a report is presented can influence the conclusions that ordinary reasonable viewers draw from a broadcast. 58 In the segment broadcast on 15 November 2009, the presenter and his callers discussed the war in Yemen and other conflicts in the region. The segment took up around 50 minutes of the program. While the program was not required to canvass all possible views on a particular issue, it appeared to be constructed to support a theme stated at its beginning by the presenter. That theme is expressed by the presenter in the following way: Presenter: [W]e will be with you to receive your phone calls through a series of questions that we will ask you. Is there any Arab and Islamic interest generated from the brothers conflict in Yemen? Why there is a need for regional cooperation to confront looming dangers of war that is wanted by the American administration to be ethnic and sectarian? The theme is sustained by deliberately limiting the range of perspectives presented through caller selection. Most callers express the view that the war in Yemen is prompted by Israel, the United States and the West generally, and can be likened to other conflicts that have been designed to prolong Arab political and religious disunity. This understanding is encouraged by the presenter of the program, as he reiterates throughout the segment that with more Arabic unity, American made problems and conflicts can be overcome. In omitting fair information and other viewpoints, the program would have conveyed to the ordinary reasonable viewer a single perspective of the war in Yemen. In editorially constructing the program to support a single point of view for approximately 50 minutes, the ACMA considers the program was biased and unfair in its overall presentation. Accordingly, the ACMA finds that the licensee broadcast a program that was not presented fairly. 57 ABA Investigation Report 1262 Channel Nine News and Nightline broadcast by GTV 9 (Melbourne) September See for example, ACMA Investigation Report Nos 1418 and 1474, Four Corners 'Lords of the Forest' July acma 23

28 Breach finding 2 With the Event, clause 1.3 of the Open Narrowcast Code With the Event 59 is described by Al-Manar as: a live political talk show which focuses on presenting all daily issues and problems in addition to any urgent news in the Lebanese arena. The program deals with Lebanese political events and instantly tries to examine the event's political, economical and social facts. 60 On the basis of Al-Manar s description of the program, the ACMA considers the program to be a current affairs program for the purpose of this investigation and the application of the Open Narrowcast Code. The program schedule indicates that it is broadcast daily and scheduled for an hour and a half. Finding The ACMA finds that the licensee of Al-Manar Television, Lebanese Communication Group: > breached clause 1.3 of the Open Narrowcast Code by broadcasting the current affairs program, With the Event, on 28 February 2009, as the program was likely to gratuitously vilify a group on the basis of ethnicity and religion. Reasons The ACMA examined the program broadcast of 28 February 2009 to determine whether it complied with clause 1.3 of the Open Narrowcast Code. This involved assessing if the program was likely to gratuitously vilify Jewish people on the basis of ethnicity or religion. In this regard, the ACMA has considered whether the program was likely to speak evil of Jewish people without reason or cause in light of the dictionary definition for vilify. In the program broadcast on 28 February 2009, the presenter discussed the excavation processes under and around al-aqsa mosque and the Church of the Holy Sepulchre with Sheikh Abdul Salam al-harash, a Muslim cleric. The discussion is the first in a series of issues raised in the program and is around 10 minutes in length. The presenter and his guest sit across from each other at a desk on the set of the program. The presenter provides an introduction to various topics and raises specific issues for discussion. The format is that of a question and answer style which is common to televised current affairs programs in Australia and internationally. A sample of the dialogue is set out below: Presenter: First of all it is obvious that we should start with these direct, blunt, explicit and live on-air Israeli insults both to Islamic and Christian sanctities. How do you view these insults? Rather than offering direct, relevant comment on the excavations and those responsible for them, the Sheikh responds with critical remarks about Jews, drawing on centuries-old anti-semitic stereotypes: Sheikh: If we move into this regard we must emphasise that the battle of terminologies is ongoing and eternal between glories and villains. Between people who have stance and others who don t, between fundamentalists and the religious people, between moderates and extremists. The battle of terminologies then is a continuing one. If we want to talk about villains, we should remember and go back to a bygone age when offences, slaying of prophets and accusing Virgin Mary May peace be upon her of committing adultery by Jews. We look at 59 Ma a al-hadath. 60 Description of Ma a al-hadath on al-manar s English website:, accessed on 18 August acma

29 these incidents and those who have been invoked with anger who want throughout their whole life and actions to deliberately offend and insult others. We consider these insults to Honourable Jesus, his mother, The Virgin and to our Mater Muhammad May peace of Allah be upon him, his family and his companions a completion of their ancestors have started earlier. The Holy Quran has described them as they never stop anything they start doing, How wretched is what they have been doing. Today we are looking into this offence and the way our community has addressed it. The presenter of the program purports to discuss with the Sheikh a matter of public interest, that being the excavation processes under and around al-aqsa mosque and the Church of the Holy Sepulchre. The language used by the presenter is factual and analytical and is spoken in a serious tone, even if the question itself seems to be tendentious to the point of being loaded. However, the Sheikh (whose comments make up the bulk of the program segment) does not refer to facts and current events but instead responds with a long discourse about Jewish people over history, describing them using such language as: > villains, fundamentalist and extremists > responsible for the slaying of prophets and accusing Virgin Mary [...] of committing adultery > those who want throughout their whole life and deliberately offend and insult others. No balancing or differing points of view are offered during the program. In fact, no real attempt is made to link this racially-based invective to the particular issue that was noted to be the subject of the program (namely, the excavation of the al-aqsa Mosque), nor is any attempt made to draw out any of the range of complex historical and political issues surrounding the excavation. In describing Jewish people in the above manner, the Sheikh makes generalisations which (at best) conflate the actions of individuals collectively with Jewish people as a whole. These generalisations denigrate the entire group by claiming that all Jewish people share the same negative characteristics. In this regard, the ACMA considers that the program was likely to vilify Jewish people on the basis of ethnicity and religion. Further, given that no real attempt was made to link this discourse to the subject matter of the program (except other than a so what can we expect inferential link), the overall context of the program and the statements made by the Sheikh were gratuitous. Applicable exceptions Having determined that the program was likely to gratuitously vilify Jewish people on the basis of ethnicity and religion, the ACMA must consider whether the broadcast falls within any of the exceptions at clause 1.6 of the Open Narrowcast Code. The ACMA considers that the discussion of the events around the al-aqsa mosque and the Church of the Holy Sepulchre would likely have been of public interest to both Lebanese Muslims and Christians. However, the ACMA does not consider that the discussion included matter said or done reasonably as the comments made by the Sheikh bore no rational relationship to an identifiable public interest and had no sensible relation to the excavations around the al-aqsa mosque and the Church of the Holy Sepulchre. The ACMA also considers that the discussion was not broadcast in good faith, as the comments made by the Sheikh were presented with apparent malice towards Jewish people. Further, no conscientious approach was taken by the Sheikh or the presenter to minimise the prohibited effect. The views of the Sheikh remained unchallenged by the presenter at the end of the discussion. As a result, the Sheikh s comments were acma 25

30 presented in a manner that carelessly disregarded the potential to vilify Jewish people on the basis of ethnicity or religion. Therefore, clause 1.6 of the Open Narrowcast Code did not apply so as to exempt the discussion from the prohibition in clause 1.3 of the Open Narrowcast Code. Non-breach findings The ACMA finds that the licensee of Al-Manar Television, Lebanese Communication Group, in relation to the broadcast of: > We Want Lebanon Strong and United, on 1 December 2009: > did not breach section 7 of the Open Narrowcast Standard, by broadcasting a program that would be reasonably understood as directly recruiting a person to join, or participate in the activities of, a listed terrorist > did not breach clause 11(1)(b) or 11(1)(c) of Schedule 2 to the BSA > Our Dignity is Attributed to Martyrdom, on 15 December 2009: > did not breach clause 3.4 of the Open Narrowcast Code by broadcasting a program that was refused classification or classified X18+ (or which would be so rated if presented for classification) > did not breach section 7 of the Open Narrowcast Standard, by broadcasting a program that would be reasonably understood as directly recruiting a person to join, or participate in the activities of, a listed terrorist > did not breach clause 11(1)(b) or 11(1)(c) of Schedule 2 to the BSA > A Rebel s Message, on 15 December 2009: > did not breach clause 3.4 of the Open Narrowcast Code by broadcasting a program that was refused classification or classified X18+ (or which would be so rated if presented for classification) > did not breach section 7 of the Open Narrowcast Standard, by broadcasting a program that would be reasonably understood as directly recruiting a person to join, or participate in the activities of, a listed terrorist > did not breach clause 11(1)(b) or 11(1)(c) of Schedule 2 to the BSA > 7th Day of Ashura Speech, on 25 December 2009: > did not breach section 7 of the Open Narrowcast Standard, by broadcasting a program that would be reasonably understood as directly recruiting a person to join, or participate in the activities of, a listed terrorist > did not breach clause 11(1)(b) or 11(1)(c) of Schedule 2 to the BSA > al-emdad charity advertisement, on 15 December 2009: > did not breach section 8 of the Open Narrowcast Standard, by broadcasting a program that would be reasonably understood as soliciting funds for, or assisting in the collection or provision of funds for, a listed terrorist > did not breach clause 11(1)(b) or 11(1)(c) of Schedule 2 to the BSA > current affairs program, Youth, on 15 November 2009: > did not breach clause 1.2 of the Open Narrowcast Code > drama program, The First of the Qibla, on 17 November 2009: > did not breach clause 1.3 of the Open Narrowcast Code, as the program was not likely to incite hatred of, or gratuitously vilify, a group on the basis of ethnicity, nationality, race or religion > 8th Day of Ashura Speech, on 26 December 2009: > did not breach clause 1.3 of the Open Narrowcast Code, as the program was not likely to incite hatred of, or gratuitously vilify, a group on the basis of ethnicity, nationality or race 26 acma

31 > What is it?, on 5 March 2009: > did not breach clause 1.3 of the Open Narrowcast Code, as the program was not likely to incite hatred of a group on the basis of nationality. The ACMA finds that the licensee of Al-Manar Television, Lebanese Communication Group, did not breach clause 11(3) of Schedule 2 to the BSA. None of the programs assessed by the ACMA during the course of the investigation have been classified RC or X 18+ by the Classification Board, nor were there any films broadcast that were classified R 18+ by the Classification Board. In addition, none of the programs assessed by the ACMA during the course of the investigation would be so rated as RC of X18+if presented for classification. The ACMA assumes that the programs in question were created for an overseasbased audience, directed towards audiences with values and regulation for that target market. However, as noted previously, to the extent that a narrowcast licensee chooses to make such programs available in Australia, they must comply with the Open Narrowcast Code. Therefore, in considering the ordinary reasonable viewer, the ACMA applies the standard of an ordinary reasonable viewer based in Australia, rather than the audience of the primary intended market of the narrowcasting service. acma 27

32 Part 4: Assessment as to whether there are appropriate community safeguards This part of the report provides the ACMA s assessment of the adequacy of community safeguards in the current regulatory framework for narrowcasters under the BSA in relation to content assessed in the investigation. Introduction On 4 February 2010, the ACMA released terms of reference for an investigation under section 170 of the Broadcasting Services Act 1992 (BSA) into programming broadcast into Australian territory on the Al-Manar Television service. As explained in Part 1 of this report, the terms of reference required an assessment of the adequacy of community safeguards of the regulation of narrowcasting television services, namely the: > Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) Standard 2008 and the Broadcasting Services (Anti-terrorism Requirements for Subscription Narrowcasting Television Services) Standard 2008 (together referred to as the Anti-terrorism Standards ) > Open Narrowcast Television Codes of Practice 2009 and the Subscription Narrowcast TV Codes of Practice 2007 (together referred to as the Narrowcasting Codes ) > licence conditions applying to narrowcasters under Schedule 2 to the BSA. The ACMA s focus on the provision of appropriate community safeguards was in part prompted by previous community concern about the nature of programming broadcast on Al-Manar Television following Investigation Report 2158, published in July This part of the report provides the basis upon which the ACMA conducted its assessment of community safeguards. It: > outlines the methodology used for the assessment of community safeguards, including an outline of the international regulatory approaches to Al-Manar Television > outlines the political and cultural context of the Al-Manar Television service and the issues arising in respect of its programming > offers the ACMA s conclusions in respect of the Al-Manar Television service and its recommendations for reform of the Anti-terrorism Standards. Methodology for the assessment of community safeguards The ACMA is an evidence-based regulator and, in addition to drawing on its own experience in overseeing the regulatory framework for narrowcast television 62, its assessment is informed by: 1. international approaches to the regulation of Al-Manar Television and terrorism related content 61 See 62 The regulatory framework is set out in relevant licence conditions, the Narrowcasting Television Code of Practice and the Anti-terrorism Standard acma

33 2. the Australian approach to the regulation of Al-Manar Television and terrorismrelated content 3. submissions from members of the public and stakeholders 4. analysis of community concern and previous investigations into the Al-Manar Television service 5. evidence of the link between Al-Manar Television and Hizbullah 6. evidence about the Role of Hizbullah in Lebanese politics. 1. International approaches to the regulation of Al-Manar Television and terrorism-related content The ACMA s commissioned research from Associate Professor Ben Saul and Dr Daniel Joyce of the University of Sydney suggests that the regulation of Al-Manar Television and terrorism-related content varies between international jurisdictions. The researchers made the following observations in respect of the regulation of Al-Manar Television: A number of jurisdictions have taken action to regulate Al-Manar television in response to offending content. Such action has been both domestic, and in the case of the European Union, regional in approach. In the EU a regional regulatory context has seen France s initial action in banning Al-Manar followed in other European jurisdictions and has provided a strong basis for regulation across borders. The response has been largely to focus on Al-Manar as a satellite television station with the difficulties that this poses in terms of transnational broadcasting and spill over. However, as discussed below, little has been done yet to regulate Al-Manar as content which is now also available over the internet. Further research is needed in this emergent area. 63 The ACMA research surveyed the regulatory approach to Al-Manar Television in the following countries and made the following findings: > In the United States, Al-Manar has been designated as a terrorist organisation because of its association with [Hizbullah]. This led immediately to its removal from Intelsat and to the end of its broadcasts into the American media space. Al-Manar has also been banned under laws to prevent terrorist financing. Related measures in US law have included the imposition of immigration restrictions on those involved with Al-Manar and two criminal prosecutions for Al-Manar personnel for providing material support for [Hizbullah]. However, Al-Manar remains available online. > In Canada, the actions taken in the US resulted in Al-Manar ceasing to be broadcast into Canada via satellite, although again it remains available online. Canada itself has not, however, taken legal measures against Al-Manar, nor has it needed to given that there has been no application to broadcast it and there is no spill over from the US. > In Europe, the pan-european approach has been to support the action taken by France in banning Al-Manar from EutelSat on the grounds of hate speech. The broader European legal framework (previously the Television Without Frontiers Directive, now the Audio Visual Media Services Directive) meant that France s actions against Al-Manar had a wider effect and resulted in action by European regulators which effectively produced a Europe-wide ban on Al-Manar broadcasts. > In particular European countries, the Netherlands banned Al-Manar pursuant to the European framework, as did Spain. In Germany the basis for banning Al-Manar involved both the European framework and domestic constitutional law. The United Kingdom has not, however, taken specific action against Al-Manar Associate Professor Ben Saul and Dr Daniel Joyce, International Approaches to the Regulation of Al- Manar Television and Terrorism-related Content, Report for the Australian Communications and Media Authority, June pi iii. 64 Associate Professor Ben Saul and Dr Daniel Joyce, International Approaches to the Regulation of Al- Manar Television and Terrorism-related Content, Report for the Australian Communications and Media Authority, June pii iii. acma 29

34 Regulatory attempts to ban the service internationally have been jurisdictionally based responses but have met their objective to varying degrees. In many circumstances it is not easy to prevent satellite services being received into individual countries, for example, where the service is fortuitous. 65 Further, Al-Manar and other similar services retain the ability to stream over the internet. 2. Australian approach to the regulation of Al-Manar Television and terrorismrelated content The ACMA regulates narrowcasting television services, such as Al-Manar Television, through the class licence conditions in Schedule 2 to the BSA, the Narrowcasting Codes and the Anti-terrorism Standards. Parts 1, 2 and 3 of this report detail the regulatory framework for narrowcasting services, and provide an analysis of Al-Manar Television s compliance with the regulatory framework. Content that advocates the doing of a terrorist act is regulated through section 9A of the Classification (Publications, Films and Computer Games Act) 1995 (the Classification Act). Section 9A was inserted into the Classification Act in September 2007 to provide greater clarity of the classification of terrorism material. The effect of section 9A is that material which advocates the doing of a terrorist act must be classified as refused classification (RC) by the Classification Board. The explanatory memorandum for the Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007 (the amending Act) provides background to the definition of advocate. The definition of advocate is drawn from the Commonwealth Criminal Code. The Explanatory Memorandum states: Advocate covers direct or indirect advocacy, in the form of counselling, urging or providing instruction on the doing of a terrorist act. It also covers direct praise of a terrorist act where there is a risk that such praise might lead a person (regardless of his or her age or any mental impairment) to engage in a terrorist act. This is intended to capture material that has the capacity to lead the impressionable to engage in a terrorist act. The advocacy would need to be about doing a terrorist act, not merely expressing generalised support of a cause. The definition recognises that some communications about doing a terrorist act are inherently dangerous because they could inspire a person to cause harm to the community. This could be the case where it may not be possible to show a person had any intention that a specific terrorism offence be committed or to communicate the material to any particular person. The category of RC is reflected in the narrowcasting television service licence condition at Clause 11(3) and Clause 11(4) of Schedule 2 to the BSA, which prohibits licensees of narrowcasting television services broadcasting material that has been classified RC by the Classification Board. Additionally, it is reflected by clause 3.4 of the Open Narrowcast Code and clause 3.3 of the Subscription Narrowcast Code for material that is or would so be classified by the Classification Board. Other provisions in Commonwealth and state crimes legislation may indirectly regulate terrorism-related content. 66 For example, the Commonwealth Criminal Code contains the following offences: > sedition (section 80.2) > possessing things connected with terrorist acts (section 101.4) 65 For example, the Al-Manar Television service can be received fortuitously in France via the Nilesat and Arabsat services. 66 The Australian Law Reform Commission notes [..] in Victoria, s 316 of the Crimes Act 1958 (Vic) makes it an offence to take an oath to, among other things, engage in any mutinous or seditious enterprise. The nature of a seditious enterprise is not defined, leaving this to the common law. See ALRC Submission to inquiry into the provisions of the National Security Legislation Amendment Bill 2010 and Parliamentary Joint Committee on Law Enforcement Bill 2010, Accessed 12 October acma

35 > collecting or making documents likely to facilitate terrorist acts (section 101.5) > preparing or planning a terrorist act (section 101.6). While not inconceivable, the ACMA is of the view that it is not particularly likely that a broadcasting service would be used in the commission of the above-mentioned offences. The ACMA has focused on the regulation of terrorism content through the classification scheme, the Anti-terrorism Standards and the Narrowcasting Codes. 3. Submissions from members of the public and stakeholders At the commencement of the investigation the ACMA invited the public, interested stakeholders and the industry to refer specific Al-Manar programming content for consideration. The closing date for submissions was 5 March The ACMA received two submissions, one from a member of the public and one from the Australia Israel Jewish Affairs Council (AIJAC). The submission by a member of the public stated: In all my years watching [Al-Manar Television], excluding the time it was taken off air, I did not see any terroristic like recruiting, or glorifying of terrorism. [Hizbullah] is a political apparatus of the democratically elected government. 67 In its submission to the investigation, AIJAC argued, among other things, that: > [ ] Al-Manar has also incited and perpetuated hatred against people on the basis of their nationality in contravention of the Code of Practice. 68 > Al-Manar is owned and operated by Hizbullah. An understanding of Hizbullah and its relationship to Al-Manar is important in order to properly address the ACMA s responsibilities to the Australian community vis-à-vis Al-Manar. 69 > Since Al-Manar directly [and] indirectly urges the doing of a terrorist act [and] praises the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person to engage in a terrorist act, it is the AIJAC s position that the ACMA should refer Al-Manar to the Attorney-General to be proscribed as a terrorist organisation in its own right Analysis of community concern and previous investigations into the Al-Manar Television service The ACMA has examined submissions from some members of the public and interested stakeholders, academic journals, and print and online media about the Al- Manar Television service (including local print media articles about its continued availability in Australia). Responses to the outcome of Investigation Report 2158 were also considered. 71 For example, the Executive Council of Australian Jewry (ECAJ) published a document on its website in September 2009 which sets out its general concerns regarding Investigation Report 2158 and the current regulatory framework. 72 The ECAJ document does not refer to specific Al-Manar Television content but does raise concerns with the programming in general. The ECAJ submitted that: 67 Individual submission to the Al-Manar Investigation dated 5 February AIJAC submission to the Al-Manar Investigation, Brief on Al-Manar for the Australian Communications and Media Authority, submitted 5 March 2010, p Australia/Israel Jewish Affairs Council, Brief on Al-Manar for the Australian Communications and Media Authority, Submission to the ACMA received 5 March 2010, p1. 70 Australia/Israel Jewish Affairs Council, Brief on Al-Manar for the Australian Communications and Media Authority, Submission to the ACMA received 5 March 2010, p See for example: Broadcast Standards need review, Goulburn Post, 22 September 2009; AIJAC lobbies against Hezbollah TV broadcast, Australian Jewish News, 21 August 2009; Hezbollah OK to broadcast, The Age, 1 August 2009; TV broadcaster cleared of giving aid to terrorism, Canberra Times, 1 August 2009; Hizbullah TV network gets okay to air in Australia, The Jerusalem Post, 4 August 2009; Australia s Terror TV, The Wall Street Journal, 24 August 2009; Terrorist television would violate racial hatred laws, The Age, 7 August 2009; Watchdog slammed on Hezbollah broadcast, The Australian, 3 August Executive Council of Australian Jewry, Inc, Al-Manar Television Transmissions into Australia, 14 September 2009, Accessed 27 April acma 31

36 Al-Manar s programs have reportedly included viciously anti-semitic material, including interlacing anti Israel and anti US rhetoric with medieval anti-semitic stereotypes and themes, including the infamous blood libel (the false and slanderous accusation that Jews kill non-jewish children and use their blood for cooking). 73 This material has assisted the ACMA in making an assessment of the level and nature of community concern. In addition, some members of the public expressed dissatisfaction with the ACMA s previous non-breach findings in Investigation Report 2158, with their concerns focused on racial hatred, vilification and terrorism-related program content. 74 Correspondence included the following comments: > the ACMA s decision to allow a terrorist organisation to broadcast in Australia is unsatisfactory > Hizbullah is a terrorist organisation known for their recruiting projects and therefore should not be permitted to broadcast > Hizbullah broadcasts extremely violent material > permitting Hizbullah to broadcast is out of line with Australian community attitudes > other countries that recognise Hizbullah as a terrorist organisation have banned Hizbullah from broadcasting. In this regard, the ACMA is out of step > Hizbullah broadcast anti-semitic messages. 5. Evidence of the link between Al-Manar Television and Hizbullah Media reports on the availability of Al-Manar Television in Australia have, in the past, focused on the alleged links between Al-Manar Television and the Lebanese Shi a political party and militia group, Hizbullah. 75 The media has expressed strong concern that Al-Manar Television is a mouthpiece of an organisation listed as a terrorist under Australian law, and that Al-Manar Television broadcasts content which glorifies terrorism and advocates the doing of terrorist acts. As noted in Part 1 of this report, many public sources point to a relationship between Al-Manar Television and Hizbullah. 76 In the ACMA s commissioned research, Dr Shanahan explains the link between political participation and media ownership in Lebanon in the following terms: Media ownership and political participation are largely synonymous in Lebanon, despite legislative efforts to broaden the media ownership sectarian base.the use of privatelyowned electronic media as a forum for sectarian political messaging is a consistent feature of Lebanese politics. Measures to counter communalisation of media have been attempted, such as the 1994 Audio-Visual Media Law that requires all private stations granted licences to have only Lebanese shareholders from all religious communities. In practice though, the intent of this law has not been met and stations continue to be identified with a particular community. This applies to all forms of media. 77 Dr Shanahan argues that there is little doubt that Al-Manar is the television media arm of Hizbullah 78 on the basis that some of its shareholders are Hizbullah party members, it is located in the southern suburbs of Beruit and after the public statements of Abdullah Qasir, Al-Manar Television s Chairman, that: 73 Executive Council of Australian Jewry, Al-Manar television Transmissions into Australia, 14 September 2009, p4. 74 In addition to news reports, there were ten written complaints to the ACMA regarding the outcome of investigation See: White Paper should tackle terrorist television, The Australian, 10 March 2010, p12; Hezbollah TV network investigation reopened, Australian Jewish News, 12 February p3; Terror TV claim will be investigated, Sydney Morning Herald, 14 February 2010, 76 See p 10 above. 77 ACMA commissioned research, Dr Rodger Shanahan, Geo-Political Time Line of Lebanese Politics and the Role of Hizbullah. p ACMA commissioned research, Dr Rodger Shanahan, Geo-Political Time Line of Lebanese Politics and the Role of Hizbullah. p acma

37 We have the honour to be the channel of resistance, but I want to explain that Al-Manar Channel is not entirely owned by Hizbullah. It is a shareholding company, and Hizbullah holds a large number of the shares. 79 Other academics, such as Dina Matar and Farak Dakhlallah, argue that: Al-Manar has continued to promote Hizbullah s culture of resistance, considered an integral aspect of the Party s Iranian-inspired Islamic Sphere in Lebanon, and, which along with its constituent resistance identity and culture, are essential products of Hizbullah s institutions which operate today as a holistic and integrated network which produce sets of values and meanings embedded in an interrelated religious and political framework that of wilaya al-faquih (Hard and Leender 2005). 80 Baylouny discusses the relationship between Hizbullah and Al-Manar, referring to the service as Hizbullah s Al-Manar. 81 Baylouny explains that Al-Manar mirrors Hizbullah s stance and projects an image that the organisation foresees as important for its future 82, arguing that: [I]n public relations, no less than in politics Hizbullah has proved to be pragmatic. As Hizbullah has transformed its messages and stance, Al-Manar has also. Al-Manar Television is the land and satellite station of Hizbullah. Hizbullah began its television station in 1991 broadcasting locally in Lebanon. Beginning as resistance media, a station linked to the fight of Hizbullah against the Israeli occupation of southern Lebanon, Al-Manar s start was politicised and religious. 83 The research on the relationship between Al-Manar Television and Hizbullah assisted the ACMA in understanding the unique qualities of the Lebanese broadcasting market and confirmed how the composition of the media market reflects Lebanon s sectarian political structure. As Dr Shanahan observed: [..] it would be surprising in the Lebanese context if a major political organisation such as Hizbullah did not have its own television station. 84 Moreover, the research has provided background for the ACMA about the context of the Al-Manar Television service and offers an explanation for the political and ideological nature of some of the programming assessed during the course of the investigation. 6. Evidence of the role of Hizbullah in Lebanese politics Hizbullah is a listed terrorist organisation for the purposes of Australian anti-terrorism law. 85 Due to the inherent complexity of the subject matter and as provided for in the terms of reference, the ACMA commissioned research about the key events in Lebanese politics during the period December 2009 to January 2010 and the role of Hizbullah, in order to provide background and context to the investigation. 86 Importantly Dr Shanahan observed during the period under review: 79 ACMA commissioned research, Dr Rodger Shanahan, Geo-Political Time Line of Lebanese Politics and the Role of Hizbullah. p Dina Matar and Farah Dakhlallah, What it means to be Shiite in Lebanon: Al-Manar and the Imagined Community of Resistance, Westminster Papers in Communication and Culture, 2006, University of Westminster, Volume 3(2), p Anne-Marie Baylouny, Not your Father s Islamist TV: Changing programming on Hizbullah s Al-Manar, Arab Media & Society, Issue 9, Fall Anne-Marie Baylouny, Not your Father s Islamist TV: Changing programming on Hizbullah s Al-Manar, Arab Media & Society, Issue 9, Fall Anne-Marie Baylouny, Not your Father s Islamist TV: Changing programming on Hizbullah s Al-Manar, Arab Media & Society, Issue 9, Fall ACMA commissioned research, Dr Rodger Shanahan, Geo-Political Time Line of Lebanese Politics and the Role of Hizbullah. p See p10 11 above. 86 Dr Rodger Shanahan, Key Events in Lebanese Politics December 2008 January 2010 and the Role of Hizbullah. ACMA Commissioned Research, May acma 33

38 [..] the Lebanese Israeli conflict consumed relatively little of the political space as a specific issue over the period. Conflict with Israel was largely a product of the Hizbullah Israel confrontation, along with some actions undertaken by Palestinian groups resident in Lebanon. Hizbullah ( Party of God ) was formed as a splinter group of politically active Lebanese Shi a clerics in 1982 following the Iranian revolution of Since 1982, it has been argued that Hizbullah has become an organisation willing to combine pragmatism with militancy depending on the circumstances with which it sees itself confronted. 88 In published work, Dr Shanahan has written: Besides speeches from its senior leadership, the only guide to Hizbullah s broad aims is contained its 1985 Open letter to the Oppressed of Lebanon and the World which effectively acts as a political manifesto, and which among other things calls for the destruction of the state of Israel and the free choice of Islam as the system of government. It also describes as friends all the world s oppressed peoples. 89 Similarly, American scholar, Lara Deeb of the University of California Irvine, writes that: Hizbullah is only one player albeit the most renowned one in Shi i political and cultural life in Lebanon, and can be understood as part of a hala islamiyya, or Islamic sphere. This Islamic sphere is the result of multiple strands of Shi I mobilisation that began in the 1970s and included several key factors with varying political perspectives, methods and ideologies. What united them was an effort to organise Shi i Muslims in Lebanon historically a politically and economically marginalised community to work towards alleviating poverty and disenfranchisement in their communities. The context for these mobilisations included the Lebanese Civil War ( ), the Islamic Revolution in Iran (1979), and most crucially, Israel s two invasions of Lebanon (1978 and 1982) and its continued occupation of south Lebanon until May Hizbullah began as a party of armed resistance to [the] Israeli occupation in the mid-80s, and has since developed into the major political face of the Shi i Islamic mobilization and a legitimate political party that works within the post-civil war Lebanese state Hizbullah also carries a major bloc in parliament and holds a cabinet position as well as numerous elected municipal positions throughout the country. 90 Further literature suggests that Hizbullah is widely regarded as a secretive, hierarchical, disciplined, well organised social, political and military organisation. 91 It provides social services, health care, education and support for the families of its martyrs. 92 As indicated by Dr Shanahan, Hizbullah has a highly disciplined and well performing militia which is regarded as one reason for its continued influence in Lebanon. 93 Dr Shanahan has also noted that: Dr Rodger Shanahan, Hizbullah: Walking the Lebanese Tightrope, Perspectives, Lowy Institute for International Policy, July 2008, p3. 89 Dr Rodger Shanahan, Hizbullah: Walking the Lebanese Tightrope, Perspectives, Lowy Institute for International Policy, July p3. 90 Lara Deeb, Exhibiting the Just-Lived Past : Hizbullah s Nationalist Narratives in Transnational Political Context, Comparative Studies in Society and History, 2008, 50(2), pp See Anne Marie Baylouny, Not your father s Islamist TV: Changing programming on Hizbullah s Al- Manar, Arab Media & Society, Issue 9, Fall 2009; Lara Deeb, Exhibiting the Just-Lived Past : Hizbullah s Nationalist Narratives in Transnational Political Context, Comparative Studies in Society and History, 2008, 50(2), p375; Dr Rodger Shanahan, A Pyrrhic Victory? Hezbollah s Complex Post-War Environment, Democracy and Security, 2008, 4, pp p35; Martin Rudner, Hizbullah: An Organisational and Operational Profile, International Journal of Intelligence and Counter-Intelligence, Volume 23, Number 2, pp p Dr Rodger Shanahan, Hizbullah: Walking the Lebanese Tightrope, Perspectives, Lowy Institute for International Policy, July p8. 93 Dr Rodger Shanahan, Hizbullah: Walking the Lebanese Tightrope, Perspectives, Lowy Institute for International Policy, July p8 ; Dr Rodger Shanahan, A Pyrrhic Victory? Hezbollah s Complex Post- War Environment, Democracy and Security, 2008, 4, pp p acma

39 Hizbullah, or the Party of God, represents another radical Islamist group that has demonstrated its ability to organise itself in a manner that allows it to operate effectively on both the military and socio-political level Unlike many other radical Islamist groups, however, Hizbullah plays a significant role in the formal political institutions of Lebanon. 94 In November 2009, Hizbullah issued a new party manifesto, the first public document outlining its political philosophy since the Open Letter of While the new manifesto is more subtle in its language and less confrontational than the Open Letter of 1985, Hizbullah has not altered its sentiment towards Israel nor resiled from its refusal to recognise Israel. Dr Shimon Shapira, Senior Research Associate at the Jerusalem Centre for Public Affairs, argues that: While its link to Iran as the ultimate source of authority was not mentioned in this or any previous political manifesto, this link that is part of Hizbullah s essence appeared in the Open Letter (Resala Mafthua) of 1985, which remains the founding manifesto of Hizbullah and continues to service as the movement s ideological basis. The preface to the latest manifesto describes the decline of the United States as the sole superpower and the retreat of American power throughout the world. In reflection of these global changes, Hizbullah offers its resistance to Israel and the United States as the model for emulation throughout the world. 96 Research about the geo-political context of the Al-Manar Television service has assisted the ACMA in understanding the cultural, political and religious aspects of Al- Manar Television s programming, and the relevant markets for television in Lebanon. The research demonstrates that Hizbullah is a strong representative in Lebanese politics, is influential in broadcast media and that Hizbullah s ESO has a current capability to commit terrorist acts. The research has provided background information for the ACMA on the role of Hizbullah, its political, social, militia and terrorist activities, and the reasons for its strong presence in Al-Manar Television s programming. Discussion of the Al-Manar Television Service and programming issues Al-Manar Television and its political and cultural context The political and cultural context of Al-Manar Television assists in explaining the nature of its programming. The ACMA acknowledges the political and cultural differences between Australia and Lebanon, including differences in the markets and regulation for broadcast media. In Part 1 of this report, the ACMA acknowledged that Al-Manar Television programs are created for an overseas-based audience, and directed towards audiences with values and concerns related to that target market. 97 The ACMA also made it clear that a narrowcast licensee who chooses to make programs available in Australia must comply with the Open Narrowcast Code. 98 The material reviewed during the course of the investigation demonstrates that the Al- Manar Television service is comprised of a broad variety of programming and formats, ranging from news, current affairs, children s programs and drama programs to religious and political programs. 94 Lieutenant-Colonel Rodger Shanahan, Radical Islamist Groups in the Modern Age: A Case Study of Hizbullah, Working Paper 376, Strategic and Defence Studies Centre, Australian National University. Canberra, June ACMA Commissioned Research, Dr Rodger Shanahan, Geo-Political Time Line of Lebanese Politics and the Role of Hizbullah. 96 Dr Shimon Shapira, Has Hizbullah changed? The 7th Hizbullah General Conference and its continued ideology of Resistance, Intelligence and Terrorism Research Centre, 17 December Al-Manar Television Service: Compliance Analysis and Findings - Part 1. p Al-Manar Television Service: Compliance Analysis and Findings - Part 1. p15. acma 35

40 Impact and intensity of recurring themes in Al-Manar programming The program material reviewed during the course of the investigation demonstrated that the Al-Manar Television service is strongly themed according to Hizbullah s politics, religious interpretation and ideology. The ACMA found a large volume of programming material assessed during the period under review was dedicated to Hizbullah, its resistance, Shi a religious teaching and hostility against Israel. The themes dominant in the programming include: > Anti-American and anti-israel These themes were evident in the political and current affairs programming. The political manifesto speech broadcast into Australia on 1 December 2009 contained strong anti-israel and anti-american themes. It appears in interstitial programming, such as the State of Israel flag breaking into pieces. However, the themes are pervasive and were identified in a range of programming, including children s programming. For example, the What is it? program reviewed by the ACMA contained an anti-israel theme. > The resistance narrative of Hizbullah This theme was strongly represented in the martial and martyr memorial programming, and political programming, such as the speeches of the leader of Hizbullah, Secretary-General Sayyid Husan Nasrallah. The theme operates to construct Hizbullah as a resistance force in Lebanon, depicting images or footage of Hizbullah martyrs, often highlighting the images of Imad Mughniya (a reputed operational commander of the External Security Organisation (ESO) of Hizbullah who was killed by car bomb in Damascus in 2008); Abbas Musawwi (the former Secretary General of Hizbullah who was killed by a missile fired by an Israeli helicopter in 1992); and Sheikh Raghi Harb (believed to be one of the founders of Hizbullah who was shot and killed in his home village in 1984 by a Lebanese man allegedly on the orders of Israel). Mostly, the material appears to glorify the resistance against Israel. > Glorification of Hizbullah martyrs This theme was strongly represented in the martial and martyr memorial programming of which the Al-Manar Television service broadcasts large amounts of interstitial programming. This type of programming includes patriotic songs, clips with militaristic narratives and images of Hizbullah martyrs; speeches by Hizbullah leaders and persons of significance; plus other interstitial programming, such as graphics and images appearing to support the Hizbullah resistance against Israel. The political programming varies in intensity (from relaxed to rousing), subject matter and themes. At times, programming is also supportive of the Palestinian conflict with Israel. > Anti-Semitism This theme was present in current affairs programming. The breach finding in respect of section 1.3 of the Open Narrowcast Code is an example of the anti- Semitism contained in the Al-Manar Television service s programming. Taken together, these themes permeate a large number of the programs reviewed by the ACMA during the course of the investigation. The presence of these strong themes creates a broadcast environment that, at times, has high impact and intensity across the programming for the reason that these themes are unrelenting, partisan and intended to propagate Hizbullah s world view. 36 acma

41 Programming of concern Martial and martyr memorial programming In the Lebanese political context, depiction of fallen soldiers or martyrs is a common form of political communication across the political landscape. 99 The practice is known as memorialisation of martyrs, and occurs through various media, including in television programming and on outdoor billboards in Shi a dominated areas of Beirut, the Biqa' and southern Lebanon. It also involves the public display of Hizbullah martyrs, most of whom are deceased fighters from the Hizbullah militia, with the exception of Imad Mughniya, the former leader of the ESO. The ACMA understands that many groups in Lebanon, including the Lebanese Armed Forces, Christian and Muslim affiliated parties, utilise martyr memorialisation to represent Lebanese identity, resistance and nationalism. Researchers have shown that Hizbullah engages in multiple forms of cultural production in order to construct its identity as a national resistance force. 100 While the ACMA regards this programming as remote from the actual practice of terrorism by Hizbullah s ESO, the repetition of this type of programming may serve to reinforce and strengthen Hizbullah s resistance narrative, which is designed to glorify Hizbullah s militarism and its martyrs. Adequacy of the current regulatory framework Class licence conditions The class licence conditions that apply to open narrowcasting services under Schedule 2 to the BSA provide community safeguards in relation to terrorism-related material and racial hatred material. Clause 11(1)(c) of Schedule 2 to the BSA provides that a person will not use a broadcasting service in the commission of an offence against another Act or a law of a state or territory. The conduct which constitutes a criminal offence must have been carried out by the use of the broadcasting service, that is, by broadcasting something, in order to attract the application of this statutory licence condition. Relevant offence provisions include terrorism-related offences in the Criminal Code Act 1995 and incitement to racial hatred offences like section 20D of the New South Wales Anti- Discrimination Act For open and subscription narrowcasting television, clauses 11(3) and (4) of Schedule 2 to the BSA prohibit the broadcasting of a program that has been classified RC or X18+ by the Classification Board. This category includes material that advocates the doing of a terrorist act as set out in clause 9A of the Classification Act. The current Al- Manar Television investigation has demonstrated that these class licence conditions will only be breached if a program broadcast has been classified RC by the Classification Board. In contrast, Schedule 7 to the BSA (which regulates online content) also refers to content that has a substantial likelihood of being classified RC by the Classification Board. The omission of the phrase substantial likelihood from the class licence conditions for subscription and open narrowcasters makes it difficult to find breaches relating to programs that are likely to incite or advocate terrorist activities. This is because a breach finding of the class licence conditions would not be possible unless the program had already been classified RC by the Classification Board before the material was broadcast into Australia. 99 Dr Rodger Shanahan, ACMA Commissioned Research, Unpublished, May 2010, p See Lara Deeb, Exhibiting the Just-Lived Past : Hizbullah s nationalist narratives in transnational political context, Comparative Studies in Society and History 2008; 50(2); ; Dina Matar and Farar Dakhlallah, What it means to be Shiite in Lebanon: Al-Manar and the imagined community of resistance, Westminster Papers in Communication and Culture 2006, University of Westminster, London, Volume 3, Number 2, pp acma 37

42 Codes of practice Under section 123 of the BSA, industry groups have developed codes of practice in consultation with the ACMA. The open and subscription narrowcasting television industries must comply with their respective codes. The purpose of the Narrowcasting Codes is to establish specific obligations for narrowcasters within the co-regulatory framework, in relation to programming, handling of complaints, and where applicable, the classification and placement of programs and customer service. Relevantly, clause 1.2 of the Open Narrowcast Code contains provisions dealing with accuracy and fairness in news and current affairs programs, such that narrowcasters must ensure that factual material is clearly distinguished from commentary and analysis. Clause 1.3 of the same code contains provisions dealing with racial hatred and vilification. Similar provisions are provided for in the corresponding industry codes applying to subscription narrowcast television services. The ACMA is of the view that the Narrowcasting Codes provide adequate community safeguards in relation to material which is likely to incite or perpetuate hatred against or gratuitously vilify any person or group on the basis of, among other things, ethnicity, nationality, race or religion. In the absence of a complaint in the present investigation, the ACMA was able to make breach findings under the Open Narrowcast Code in regards to Al-Manar Television program material examined during the course of the investigation. The Narrowcasting Codes prohibit the broadcast of programs that are likely to incite or perpetuate hatred. They also prohibit the broadcast of material classified RC (or which would so be classified if presented for classification). 101 In this way they prohibit the broadcast of material that advocates the doing of a terrorist act. However, as discussed below, there is convincing evidence that these codes are not operating to provide appropriate community safeguards. Anti-terrorism Standards The Anti-terrorism Standards provide safeguards for the community against terrorismrelated material. The standards prohibit material which would be reasonably understood as directly recruiting for a listed terrorist or which would be reasonably understood as soliciting funds, or assisting in the collection or provision of funds, for a listed terrorist. The ACMA considers that the community s concerns are not fully addressed by the Anti-terrorism Standards. While the Anti-terrorism Standards provide regulation in addition to the codes of practice and licence conditions applicable to a narrowcasting service, the Anti-terrorism Standards are not broad enough, at present, to address community concerns in relation to material which advocates the doing of a terrorist act. In particular, the current standards do not capture broader terrorist activities, such as those covered by section 9A of the Classification Act, which was introduced in In order to meet the definition of advocacy as contemplated by section 9A of the Classification Act, program material would need to meet the threshold requirement of directly praising terrorist acts in circumstances where there was a risk of inspiring a person to do similar. 102 While the ACMA did not identify material that recruited, sought funding or advocated terrorism in the Al-Manar programming, it is nonetheless concerned that certain styles or forms of programming (for example, martial, martyr memorial and unmediated party 101 See clause 3.4 of the Open Narrowcasting Code of Practice 2009 and clause 3.3 of the Subscription Narrowcast TV Code See Explanatory Memorandum, Classification (Publications, Films and Computer Games) Amendment Act 2007, pp acma

43 political programming) could amount to advocacy of a terrorist act in periods of heightened conflict within the region. Proposal for reform The ACMA acknowledges that there is some community concern surrounding the availability of the Al-Manar Television service in Australia and the nature of the programming broadcast on Al-Manar Television. The ACMA also acknowledges that freedom of speech and freedom of expression must not be unduly restricted, and that a robust and stable democracy, such as Australia, should be able to absorb a broad spectrum of programming, some of which may be offensive to parts of the community. The investigation has shown that the Al-Manar Television service is unquestionably a messenger for Hizbullah s political ideology and aspirations, which corresponds with Lebanese broadcasting market trends identified in the ACMA s commissioned research. 103 However, Al-Manar Television also clearly has a role in providing the Lebanese Shi a community and its diaspora community with local news, current affairs and other programming, such as drama and documentaries, which are of particular interest to that community. The investigation reviewed a large amount of Al-Manar Television programming that was non-partisan, informative, and entertaining. The question is whether current regulation of narrowcasting services provides appropriate community safeguards for programming content examined in the current investigation. The ACMA is satisfied that parts of the Narrowcasting Codes are operating to provide appropriate community safeguards in respect of strongly themed material which incites racial hatred or gratuitously vilifies a person or group on the basis of, among other things, nationality, ethnicity, race or religion. However, the ACMA is concerned about whether there are appropriate safeguards against other material, namely the martial and martyrdom style programming on the service, where these would be reasonably understood as advocating the doing of a terrorist act. Noting the seriousness of the concerns forming the basis of the Al-Manar Television investigation, yet ensuring that freedom of speech is not unduly restricted, the ACMA proposes that the regulation of narrowcasting services be harmonised with existing classification law. While the ACMA acknowledges that there could be a variety of policy responses, including relying on the Narrowcasting Codes to provide safeguards to the community, it considers that the concerns are best addressed by adopting the words of section 9A of the Classification Act in the Anti-terrorism Standards. The ACMA considers that reform of the Anti-terrorism Standards is preferable and that specific provisions for prohibiting the broadcast of programs which, if classified, would be classified RC under clause 9A of the Classification Act should be determined by amendments to the standards. The changes also ensure that standardised practices are introduced across the narrowcasting industry with a limited set of regulatory instruments that meaningfully address the concerns of the community about the broadcast of material which advocates the doing of a terrorist act. The changes will provide transparency and accountability for the ACMA, licensees and the public. Codes not operating to provide adequate community safeguards In order to vary the Anti-terrorism Standards under section 125 of the BSA, the ACMA must be satisfied that there is convincing evidence that a code of practice is not operating to provide appropriate community safeguards. Accordingly, the ACMA finds that the Narrowcasting Codes: 103 Dr Rodger Shanahan, ACMA Commissioned Research, Unpublished, May 2010, pp acma 39

44 > Do not have an application to terrorist material that is easily apparent. The community would have to be very familiar with the Classification Act and the Narrowcasting Codes to appreciate the effect of the codes. This lack of transparency as to the effect of the regulation is even more apparent where licensees have no presence or association with Australia. For example, during the course of the investigation, the ACMA had to inform Al-Manar of the existence of the Open Narrowcasting Code. > Split the regulation of terrorist material on narrowcasting services across the Narrowcasting Codes and the Anti-terrorism Standards which undermine the clarity and effectiveness of the regulation. Encompassing all such relevant regulation in one legal instrument would provide the clarity, certainty and transparency required. > Require complaints be made first to the licensee before coming to the ACMA, which is unusual in the regulation of terrorist related content. This provides difficulties with appropriateness of the complaints process as well as timing and logistics. > If a narrowcaster was broadcasting material that advocated the doing of terrorist acts, it may be difficult for ordinary citizens to make such strong allegations directly to the licensee, but, they would have to do so to meet the requirements of the Narrowcasting Codes. > Further, if material was advocating terrorism it is arguable that it should be dealt with quickly and with high priority because of the seriousness of the material (noting however, the limitations on such action in any event where there is no Australian entity involved). > The approach required by the Narrowcasting Codes is not consistent with other terrorist related allegation/complaint processes in the Commonwealth, whether involving complaints to the Australian Federal Police or National Security website or to the ACMA in relation to online material. > Do not reflect that terrorist activity is of the highest government and community concern and that this warrants strong regulation of material advocating the doing of a terrorist act. > Terrorist related activities are the subject of criminal offences, both domestically and internationally. > Standards impose conditions on licences and are therefore more appropriate than the co-regulatory approach of industry codes when it comes to regulating content that is of serious concern. It also provides more and better options in the event of a breach of the provision. 40 acma

45 Consultation on proposed amendment to Anti-terrorism Standards The standards currently address a significant community concern by prohibiting the broadcast of programs that directly attempt to recruit people, or solicit funds, for a terrorist organisation. The proposed amendments seek to better address community concern by also prohibiting the broadcast of programs that advocate the doing of a terrorist act. The amendment proposed consists of revising the Anti-terrorism Standards to include a new section in the following terms: (1) Content that advocates the doing of a terrorist act must not be broadcast. (2) Subject to subsection (3), for the purposes of this standard, content advocates the doing of a terrorist act if: (a) it directly or indirectly counsels or urges the doing of a terrorist act; or (b) it directly or indirectly provides instruction on the doing of a terrorist act; or (c) it directly praises the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment (within the meaning of section 7.3 of the Criminal Code) that the person might suffer) to engage in a terrorist act. (3) Content does not advocate the doing of a terrorist act if it depicts or describes a terrorist act, but the depiction or description could reasonably be considered to be done merely as part of public discussion or debate or as entertainment or satire. (4) In these standards: terrorist act has the meaning given by section of the Criminal Code (no matter where the action occurs, the threat of action is made or the action, if carried out, would occur). Note: The definition of terrorist act in that section covers actions or threats of actions. The ACMA welcomes written submissions from members of the public, narrowcasters and other interested persons regarding the proposal to amend the standards. The closing date for submissions is 12 February Submissions should be sent by to: [email protected]. acma 41