INVESTIGATION REPORT

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1 File No: 2001/5886 Investigation No: 1105 INVESTIGATION REPORT Licensee Station Type of Service Name of Program Date/s of Broadcast Relevant Legislation/Codes TCN Channel Nine Pty Ltd TCN9 Commercial Television A Current Affair 21 August 2001; 20 August related program preview Commercial Television Code of Practice: Subclauses 4.3.1, and 4.5 THE COMPLAINT On 15 November 2001 the Australian Broadcasting Authority (the ABA) received a complaint from SWAAB Attorneys on behalf of their client, The Australian Society of Plastic Surgeons Inc, in relation to a story broadcast in the program. The complaint alleged that the licensee breached Section 4 of the Commercial Television Industry Code of Practice (the Code) by broadcasting various statements concerning the medical treatment provided by Dr B, a Plastic Reconstructive Surgeon, to his former patient, Ms R. The complaint also alleged that the preview for the same story (broadcast as part of the previous evening s edition of the program) also breached Section 4 of the Code. The complainant contended that the story was inaccurate, not balanced and did not represent viewpoints fairly. Particular issue was taken with the licensee s conduct in broadcasting a story damaging to the professional reputation of a medical practitioner who had been cleared by the District Court of negligence and breach of contract claims some six weeks before the broadcast. The complainant did not accept the licensee s response that it did not breach subclauses 4.3.1, and 4.5 of the Code in broadcasting the material. ABA Investigation Report A Current Affair broadcast by TCN-9 on 20 & 21 August

2 The Program The story complained of predominantly featured Ms R s account of her cosmetic surgery experience and its outcomes. Ms R expressed disappointment with the results of the procedure performed by surgeon, Dr B, and was negative about her encounter with the legal system. The item briefly referred to the outcome of legal action instituted by Ms R against Dr B. Interviews with the President of the Australian Society of Plastic Surgeons, Dr Mutimer, and a former NSW Health Care Complaints Commissioner, Ms Walton, were also featured in the report. Matters not considered by the ABA The complaint alleged that the story was one-sided and contained serious and damaging allegations about Dr B s competency and professionalism in his treatment of Ms R. The Code does not prescribe that current affairs programs be balanced, nor does it include provisions in relation to defamation. Those aspects of the complaint relating to matters of balance and defamation were not considered by the ABA. Issue 1: Whether the program presented factual material accurately Subclause of the Code requires that licensees, when broadcasting news and current affairs programs, must: present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program; The thrust of the complaint is the broadcast of Ms R s allegations against Dr B in circumstances where a court had dismissed those claims. The complaint contended that the licensee had breached the Code. Its reasons for this position included: Ms R s comments to the effect that the treatment she received was negligent treatment were broadcast, when Ms R s own barrister had conceded in court there was no negligence in the manner in which the operation was carried out; the judge had made adverse findings as to Ms R s credibility; and the overall thrust of the story is that Dr B was a negligent surgeon, when in fact he had been cleared by the court of any negligence. In its response to the complainant, the licensee argued: while a significant portion of the story consisted of statements by Ms R, those comments would have been interpreted by ordinary viewers in the context of her failure to convince a court of her claims; the journalist in the story indicated clearly that she had lost the court case; ordinary viewers would have interpreted Ms R s claims as entirely groundless in the knowledge that a judge had heard both sides and found in favour of Dr B; each of the claims expressed by Ms R during the interview would have been interpreted by the ordinary viewer as at best baseless, and most likely as the ABA Investigation Report A Current Affair broadcast by TCN-9 on 20 & 21 August

3 complaint of a person not interested in seeing the truth but only believing what she wanted to believe; Ms R s statement that the judge was biased would have reinforced this view to the ordinary viewer; in the totality, Ms R was presented as a tragic and comic figure; while Nine accepts that the story focussed on Ms R s claims, it did so in a way which would incline viewers not to accept her side; and the reference to the ultimate outcome of the case by the journalist would have confirmed this view. The story, comprising mainly interviews, presented the following as factual material: Ms R sued her surgeon over her face lift and had lost her claim for damages; Dr B was a Plastic Surgeon with 24 years experience; Dr B had told the court that well before the operation took place he warned Ms R of the possible consequences and explained that the face lift could only be a limited procedure because of her age, her history as a smoker and the fact that she had suffered a heart attack ten months earlier; the court did not accept Ms R s story and found in favour of Dr B; Ms R was left with a legal bill of more than $50,000; Dr Mutimer is President of the Australian Society of Plastic Surgeons; Merrilyn Walton is a former Medical Complaints Commissioner who conducted an inquiry into plastic surgery; the cosmetic surgery market is a free market, and operators do not need to be qualified surgeons; following her dispute with Dr B, Ms R underwent corrective surgery with another practitioner; and Ms R requested a fee for recounting her story. The Code does not proscribe what opinions an individual may express in relation to particular matters, regardless of the circumstances. At issue is whether factual material is presented accurately. The ABA is of the view that the expression of a personal viewpoint by an interviewee, as in this matter, does not fall into the category of factual material. The comments expressed by Ms R would, to any reasonable viewer, be regarded merely as her own account or opinion and not the presentation of factual material by the broadcaster. Other than the references to Ms R s statements, the complainant did not identify other material broadcast in the story as being factually inaccurate. The ABA considers that the broadcast presented factual material accurately and therefore did not breach subclause of the Code. Issue 2: Whether the program represented viewpoints fairly The requirement in subclause to represent viewpoints fairly does not require that the program be fair. It requires that, when viewpoints are represented in a program, they must be represented in a manner which is fair, just and impartial. ABA Investigation Report A Current Affair broadcast by TCN-9 on 20 & 21 August

4 The story included the viewpoints given in person by Ms R, Dr Mutimer and Ms Walton. The viewpoints expressed by Ms R received the greater attention and were reported on in some detail. These views referred to: the quality of the cosmetic surgery she received from Dr B; her reasons for undergoing the surgery; the outcome of the surgery; and why she believed she had lost the court case. At issue is whether the program fairly represented the viewpoint of Dr B. The ABA notes that although Dr B was not interviewed for the story, his viewpoint was presented by the reporter in the form of a summary of some of the evidence given by Dr B during the court proceedings: Reporter: Ms R: Reporter: Ms R: Reporter: Ms R: But Dr [B] told the court that well before the operation took place at this private hospital he warned of the possible consequences. He said he explained to [Ms R] the face lift could only be a limited procedure because of her age, her history as a smoker and the fact that just ten months earlier she had suffered a heart attack. No. He never said it? No. What did he say? When I demonstrated what I wished he said yes he could do it. Is it logical if I were warned of all those difficulties that I wouldn t have sought a second opinion? The main thrust of Ms R s comments related to the competency of Dr B and the quality of his cosmetic surgery work performed on her face. Yet the program did not include Dr B s viewpoint on this main allegation. It is clear from the court s written judgment that Dr B s viewpoint on this issue was that he could only perform a limited procedure on Ms R due to her medical history; the surgery he performed was not negligent; and that he performed the services that he was contracted to perform. This evidence was accepted by the court. The omission of Dr B s viewpoint on the claims of negligence directed against him was significant, especially when the experts, Dr Mutimer and Ms Walton, appeared with warnings about unqualified surgeons. A further example involves the reporting of Ms R s allegation that Dr B had said to her it ll be better in time in response to her claim that he butchered the surgery and did a shocking job. Ms R s framing of Dr B s viewpoint in this manner was allowed to go unchallenged and conveyed an impression that Dr B s viewpoint was uncaring towards his patient and to the results of the surgery he performed. By presenting only a very small portion of his evidence, Dr B s views were not presented in their entirety. The ABA is of the view that the resultant report did not do justice to Dr B s viewpoint, particularly as it related to the matter of negligence. ABA Investigation Report A Current Affair broadcast by TCN-9 on 20 & 21 August

5 The ABA considers that Dr B s viewpoint was not represented fairly. Issue 3: Whether because of the circumstances at the time of preparing and broadcasting the program, the presentation in the report of Dr B s viewpoint was reasonable Having concluded that the program did not represent the viewpoint of Dr B fairly, the ABA considered whether the licensee had any benefit from the qualification in subclause 4.3.1, namely having regard to the circumstances at the time of preparing and broadcasting the program. The complainant stated: it was aware that research for the program began in early July just prior to the judgment being handed down; the program went to air some six weeks after the judgment; Dr B was given less than twenty four hours notice of the impending broadcast; Dr B s surgery was contacted by a representative from Channel Nine on the morning the program went to air, at the time Dr B was operating and did not finish his list until approximately 2.00 p.m. that day; having received the message from Channel Nine that day, he did not return the call; and Channel Nine had every opportunity to examine the judgment and ensure that the program was presented in a fair and balanced manner. In responding to the complainant, the licensee stated that A Current Affair attempted to contact Dr B without success and would obviously have been happy to have interviewed him for the Story to present his side personally. The licensee also stated that while it appreciated that Dr B s participation may have confirmed the message that the claims made against him were found to be groundless it did not accept that the story as a whole breached section of the Code. The ABA accepts that at times, the limitations of the commercial television medium prevent the inclusion of every viewpoint on every issue in relation to matters referred to in the course of a current affairs program. The Code does not require this. In this matter the ABA is not aware of any pressing reason for the licensee to have broadcast the report on 21 August 2001: the judgment had been handed down in early July and the interview with Ms R took place a few days prior to the broadcast. There appears to have been no particular impediment and ample time to allow the licensee to ensure that Dr B s viewpoint was fairly represented in the broadcast by his personal comment, or summary of his evidence, or other means. The ABA is of the view that, having regard to the circumstances at the time of preparing and broadcasting the program, Dr B s viewpoint was not presented fairly and therefore the licensee breached subclause of the Code. ABA Investigation Report A Current Affair broadcast by TCN-9 on 20 & 21 August

6 Issue 4: Whether the story unfairly identified a single person or business when commenting on the behaviour of a group of persons or businesses Subclause of the Code states that, in broadcasting news and current affairs programs, licensees: should avoid unfairly identifying a single person or business when commenting on the behaviour of a group of persons or businesses; The complainant alleged that the program unfairly identified Dr B when commenting upon the behaviour of plastic and cosmetic surgeons. The complainant argued: The program involved interviews with Dr Keith Mutimer and Ms Merrilyn Walton which canvassed the need for consumers to be careful in choosing appropriately qualified persons to do their cosmetic surgery. To illustrate these concerns, A Current Affair chose to broadcast an interview with a former disgruntled patient who unsuccessfully sued Dr [B]. The Court had cleared Dr [B] of any negligence and had made some serious adverse findings about the credibility of the disgruntled patient, Ms [R]. The licensee disagreed that it had unfairly singled out an individual. It argued: A Current Affair was reporting on the outcome of a Court case, the reporting of which is clearly a matter of public interest and cannot be characterised as unfairly singling out of an individual, particularly given that the viewer was clearly informed that a Court had found Ms [R] s claim was not made out. The ABA is of the view that the program, taken as a whole, unfairly singled out Dr B. The elements underlying this conclusion are as follows: Dr B is clearly identified in the story by name and image; Dr B is the only plastic surgeon identified, (apart from Dr Mutimer, who appeared as an expert); the program included interviews with experts who commented in general terms on the plastic surgery profession as a whole; the experts, Dr Mutimer and Ms Walton, commented on the importance for patients to ensure that the plastic surgeon has adequate training and credentials; Dr Mutimer warned that patients aren t doing enough homework before going under the knife ; Ms Walton referred to the cosmetic surgery market as a free market and that there are still too many cowboys in the industry ; and the generalised comments given by Dr Mutimer and Ms Walton were interspersed Ms R s critical account of her experience with Dr B. The ABA notes the licensee s argument that it was reporting on the outcome of a court case, and indeed it appears that Dr B was singled out in the program because of the legal proceedings initiated against him by Ms R. Although the story was introduced in terms of Ms R s legal action over a disputed cosmetic surgery outcome, the story also presented a negative portrayal of the plastic surgery profession as a ABA Investigation Report A Current Affair broadcast by TCN-9 on 20 & 21 August

7 whole. The report juxtaposed generalised comments about the behaviour of the industry (i.e. industry cowboys, deficiencies in the credentialling and training of plastic surgeons) with a focus on a single surgeon who was identified by name. Because the report was silent on whether Dr B actually fell into the category of inadequately qualified surgeons referred to by Dr Mutimer and Ms Walton, it conveyed an unfair impression that Dr B was not a good surgeon. The written judgment of the court clearly contradicts this impression, as it indicates that Dr B has a reputation for being a highly skilful surgeon and was not negligent in the treatment he provided to Ms R. The ABA therefore concludes that the program breached subclause of the Code. Issue 5: Whether the preview for the story presented factual material accurately and represented featured viewpoints fairly The complainant alleged that the 20 August 2001 program preview as it related to the story breached clause 4.5 of the Code for the following reason: If one looks at the quotations in the preview it is reasonable to conclude that the doctor the focus of the preview had been negligent and had butchered their patient. Whether the viewer thought that the Doctor was Dr Mutimer or some other doctor, the preview was clearly misleading as no doctor had been negligent. The licensee maintained it did not breach clause 4.5 in broadcasting the program promotion. It argued: The program promotion clearly indicated that Dr [B] had won the case. The claim that the promotion conveyed a message that Dr [B] was negligent is not sustainable given the voiceover she blamed the surgeon for getting it wrong but he won the case. The ABA considered the material complained of, and noted that it was actually part of the previous night s edition of A Current Affair, and not a program promotion. Therefore, the correct Code provision to apply is subclause Clause 4.5 is not relevant. The preview for the story contained very little factual material, and predominantly comprised viewpoints expressed by Ms R, Dr Mutimer and Ms Walton. The ABA considered that the factual material actually contained in the preview was presented accurately. That is: a woman sued her doctor over a face lift, blaming the surgeon for getting it wrong; and the surgeon won the case. Although Dr B s viewpoint was not included in the preview for the story, this is not a requirement of subclause The ABA considers that the viewpoints actually presented in the preview material were represented fairly. ABA Investigation Report A Current Affair broadcast by TCN-9 on 20 & 21 August

8 The ABA concludes that the preview material broadcast on 20 August 2001 complied with subclause of the Code. DECISION I, Andree Wright, Director Policy and Content Regulation Branch, being the appropriate delegated officer of the Australian Broadcasting Authority, determine for the above reasons that TCN Channel Nine Pty Ltd: 1. on 21 August 2001, in its broadcast of A Current Affair, breached the following provisions of the Commercial Television Industry Code of Practice: subclause 4.3.1, by failing to represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program; and subclause 4.3.7, by unfairly identifying a single person when commenting on the behaviour of a group of persons; and 2. on 20 August 2001, in its broadcast of preview material in A Current Affair did not breach subclause of the Commercial Television Industry Code of Practice. Signed: Andree Wright dated this day of June 2002 ACTION TAKEN The licensee, in its response to the ABA s preliminary investigation report on 5 June 2002, advised that the reporter responsible for the preparation of the story will be required to attend a TCN9 training session in relation to the Code of Practice, as well as accuracy in court reporting. The licensee also advised that this matter will be included as case study material for training sessions. The ABA notes the licensee s advice concerning the proposed action to be taken to address the finding made. However, the ABA also notes that on 2 March 1998 it made a similar finding with respect to the licensee s obligation under subclause of the Code to represent viewpoints fairly. As the ABA has not made a relevant finding against the licensee since 2 March 1998, and given the proposed steps to address the issues raised, the ABA will take no further action on this matter at this time, but it may take this matter into consideration if it finds similar future breaches of the Code. ABA Investigation Report A Current Affair broadcast by TCN-9 on 20 & 21 August

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