Hazel Press

ABC Four Corners vindicated on Julian Assange program

Investigation Report No. 3066

 

File no.

ACMA2013/938

 

Broadcaster

Australian Broadcasting Corporation

 

Station

ABN Sydney

 

Type of service

National Broadcaster

 

Name of program

Four Corners

 

Date/s of broadcast

23 July 2012

 

Relevant Legislation/Code

Standards 2.1, 2.2, 4.1 and 4.5 of the ABC Code of Practice 2011

 

Investigation conclusion:

 

The Australian Communications and Media Authority concludes that the ABC:

 

• did not breach standard 2.1 [reasonable efforts to ensure accuracy]

 

• did not breach standard 2.2 [materially mislead the audience]

 

• did not breach standard 4.1 [gather and present information with due impartiality]

 

• did not breach standard 4.5 [unduly favour one perspective over another]

 

of the ABC Code of Practice 2011.

 

The complaint:

 

The Australian Communications and Media Authority (the ACMA) received a complaint by two complainants about a segment of the program, Four Corners, broadcast by ABN Sydney (the ABC) on 23 July 2012.

 

The complaint is that the segment was inaccurate and biased. The ACMA has considered the ABC’s compliance with standards 2.1 [reasonable efforts to ensure accuracy], 2.2 [factual content that will materially mislead], 4.1 [gather and present information with due impartiality] and 4.5 [unduly favour one perspective over another] of the ABC Code of Practice 2011 (the Code).

 

The program:

 

Four Corners is a current affairs program broadcast on the ABC on Mondays at 8.30pm and is described on the ABC’s website in the following terms:

 

Four Corners is Australia's premier television current affairs program.

 

It has been part of the national story since August 1961, exposing scandals, triggering inquiries, firing debate, confronting taboos and interpreting fads, trends and sub-cultures.

 

The segment broadcast on 23 July 2012 ‘Sex, lies and Julian Assange’ was introduced as follows:

 

He humiliated the most powerful country in the world, but his relationship with two Swedish women, and their claims of sexual assault, may yet destroy Julian Assange.

 

It explored the circumstances surrounding allegations of rape and sexual assault made against Mr Assange in Sweden and his departure for London, where an Extradition Order was made for his return to Sweden. It also dealt with his concern that attempts by authorities to return him to Sweden are part of a plan to extradite him to the United States to face action over his WikiLeaks activities.

 

The segment included interviews with the following:

 

• Mr Assange.

 

• The UK (JR), US (MR) and Swedish (PS) legal representatives of Mr Assange.

 

• A representative of the two women who made the allegations against Mr Assange (CB).

 

• An Icelandic MP (BS).

 

• The editor of Expressen newspaper in Sweden (TM).

 

• A representative of the Swedish Pirate Party (RF).

 

• A representative from the Swedish Prosecutor’s Office (KR).

 

• A representative from Iceland Modern Media Initiative (SM).

 

• A representative from Internet Liberty (JZ).

 

 

Assessment:

 

This investigation is based on correspondence between the two complainants and the ABC, submissions from the complainants and from the ABC to the ACMA, and a copy of the broadcast provided to the ACMA by the ABC.

 

Other sources used have been identified where relevant.

 

The ACMA has also considered, where relevant, the Agreed Statement of Facts and Issues between Mr Assange and the Swedish Prosecution Authority in the Supreme Court of the United Kingdom, on appeal from Her Majesty’s High Court of Justice (Administrative Court) (England and Wales). The Statement was referred to by the reporter in the broadcast: ‘Using facts agreed between the defence and prosecution and other verified information, we have pieced together what happened during those crucial three weeks in August.’

 

The complainants contend that it is not feasible to rely on this Statement as it was obtained for the purpose of proceedings in the United Kingdom rather than in Sweden. As the Statement was agreed by the two key parties referred to in the program and directly relates to the events presented in it, the ACMA considers that it is relevant to the accuracy of the factual issues raised in this investigation.

 

Where the Agreed Statement of Facts and Issues verifies material impugned by the complainants, the ACMA considers that the ABC’s reliance on it may discharge the ABC’s obligation to make reasonable efforts to ensure that relevant material facts are accurate and presented in context.

 

Ordinary, reasonable viewer:

 

In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener or viewer.

 

Australian Courts have considered an ‘ordinary, reasonable’ reader (or listener or viewer) to be:

 

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.

 

In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, visual images, context, tenor, tone, and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).

 

Once the ACMA has ascertained the meaning conveyed, it then determines whether the Code has been breached.

 

Matters not pursued:

 

Matters not included in complaint to the ABC.

 

The complaint to the ACMA also contains a number of matters which were not included in the original complaints to the ABC of 10 September 2012 and 26 March 2013.

 

As the complainants did not first complain to the ABC about these matters, as required under section 150 of the Broadcasting Services Act 1992, the ACMA has not pursued these aspects of the complaint in this investigation.

 

ABC’s complaint handling:

 

The complainants requested that the ACMA investigate the length of time taken by the ABC to respond to one of their complaints.

 

Part 3 of the Code states that ‘the ABC seeks to comply fully with the Code and to resolve complaints as soon as practicable’. The ACMA considers that, while the complainants were not satisfied with the ABC’s response (resulting in the complaint to the ACMA), this aspect of the complaint is concerned with the length of time it took for a response to be provided by the ABC to the initial complaint.

 

The ACMA notes that the ABC made a substantive response to the relevant complainant dealing with the numerous issues raised in that complaint. In the circumstances and noting that there is no clause in the Code requiring the ABC to respond within a fixed time frame, the ACMA is not satisfied that the ABC failed to comply with any obligations at Part 3 of the Code.

 

Issue 1: Accuracy

 

Relevant Code standards

 

2.1 Make reasonable efforts to ensure that material facts are accurate and presented in context.

 

2.2 Do not present factual content in a way that will materially mislead the audience. In some cases, this may require appropriate labels or other explanatory information.

 

The relevant Principles in the Code include:

 

Types of fact-based content include news and analysis of current events, documentaries, factual dramas and lifestyle programs. The ABC requires that reasonable efforts must be made to ensure accuracy in all fact-based content. The ABC gauges those efforts by reference to:

 

   • The type, subject and nature of the content;

 

   • The likely audience expectations of the content;

 

   • The likely impact of reliance by the audience on the accuracy of the content; and

 

   • The circumstances in which the content was made and presented.

 

The ABC accuracy standard applies to assertions of fact, not expressions of opinion. An opinion being a value judgment or a conclusion, cannot be found to be accurate or inaccurate in the way facts can. The accuracy standard requires that opinions be conveyed accurately, in the sense that quotes should be accurate and any editing should not distort the meaning of the opinion expressed.

 

The efforts reasonably required to ensure accuracy will depend on the circumstances. Sources with relevant expertise may be relied on more heavily than those without. Eyewitness testimony usually carries more weight than second-hand accounts. The passage of time or the inaccessibility of locations or sources can affect the standard of verification reasonably required.

 

In applying standard 2.1 of the Code, the ACMA usually adopts the following approach:

 

• Was the particular material (the subject of the complaint) factual in character?

 

• Did it convey a ‘material’ fact or facts in the context of the relevant broadcast?

 

• If so, were those facts accurate?

 

• If a material fact was not accurate (or its accuracy cannot be determined), did the ABC make reasonable efforts to ensure that the ‘material’ fact was accurate and presented in context?

 

In applying standard 2.2 of the Code, the ACMA usually adopts the following approach:

 

• Was the particular material (the subject of the complaint) factual in character?

 

• Was that factual content presented in a way that would materially (ie in a significant respect) mislead the audience?

 

The considerations the ACMA uses in assessing whether or not broadcast material is factual in character are set out at Attachment B.

 

Submissions:

 

Relevant extracts from the submissions of the complainants and the ABC are at Attachments C and D respectively.

 

Findings:

 

The ABC has not breached standards 2.1 and 2.2 of the Code.

 

The complainants submitted that the statements set out below were inaccurate. The ACMA has adopted the time codes used by complainant 1. These time references, along with the allegations of inaccuracy, are set out in the complaint to the ABC at Attachment C.

 

In respect of each statement, the ACMA has examined the ABC’s efforts to ensure that the material facts were accurate and presented in context, and whether factual content was presented in a way that would have materially misled the audience.

 

1. Assange’s Swedish residency and work permit application (06.20).

 

The complaint is that the broadcast fails to disclose that when Mr Assange travelled to Sweden in August 2010 for the purpose of establishing WikiLeaks there he also travelled for the purpose of applying for Swedish residency and a work permit.

 

The ACMA considers that the ordinary reasonable viewer would have understood the program to have focussed on the establishment of WikiLeaks in Sweden and events leading to Mr Assange being investigated in Sweden for alleged sexual offences.

 

The ACMA notes that there is no Code requirement for all facts that are potentially relevant to a program to be presented. In this case, any facts concerning Mr Assange’s residency application need only to have been included if the omission of such facts would render the balance of the broadcast misleading. The ACMA is satisfied that it did not do so.

 

The material concerning the establishment of WikiLeaks in Sweden was accurate and presented in context and was not presented in a way that would have misled the audience. As the material is accurate, there is no need for the ACMA separately to assess the efforts taken by the ABC to ensure accuracy.

 

2.  The question of consent (reduced to the use of a condom) (10.07)

 

The complaint is that the program reduces the question of consent to the use of a condom. However, ‘both her [SW] being asleep and the lack of condom (for which there was a clear lack of consent) are the actual allegations. This was ignored.’

 

The relevant statements (in bold) were:

 

PS: He came to Sweden on the 11th of August 2010, and he had this apartment where one of these women lived. She was supposed to be away so he could stay there, but she came home on the Friday night - 13th of August - and then they had consensual sex and he continued to stay in that apartment until the 18th of August. But in the meantime he made acquaintance with the other woman, and one night he travelled to her town in Sweden and they had co -

 

REPORTER: Consensual.

 

PS: Consensual sex.

 

REPORTER: The sex with [SW] in her apartment might have been consensual, but critically there was a question over whether Assange had used a condom. The next day, Assange caught the train back to Stockholm. [SW] stayed at home, worried about the possibility of an STD infection. She later rang [AA], Assange's lover of the previous week.

 

PS: Somehow the two women started to exchange text messages which - with each other and started to discuss what had happened, and they ended up at the police station, but they did not file any charges against Julian.

 

REPORTER: [AA] and [SW] went to Central Stockholm's Klara police station to see if they could compel Assange to take an STD test should he refuse.

 

PS: But the police interpreted what one of the girls said as some sort of sex crime having been committed and that resulted in a prosecutor the same night issuing a warrant of arrest for Julian.

 

The segment then covered the circumstances surrounding Mr Assange’s initial interview with the Swedish police, his departure for London, the issue of a warrant for his arrest and his further WikiLeaks activities and US and Australian responses. It also covered the extradition proceedings in the United Kingdom, discussion of his likely imprisonment on return to Sweden and possible onward extradition to the United States before returning to the events of August 2010.

 

[...]

 

REPORTER: On August 11th 2010, Assange arrived in Sweden to attend a conference organised by the Swedish Brotherhood, a branch of the Social Democratic Party. He was offered [AA]’s apartment while she was away, but [AA] returned home a day early on Friday the 13th. She invited Assange to stay the night, and they had sex. She would later tell police Assange had violently pinned her down and ignored her requests to use a condom. Assange denies this.

 

[...]

 

In the past 24 hours,[AA] had worked closely with Assange, had sex with him, organised a crayfish party on his behalf, and, according to one witness, turned down alternate accommodation for him. It is during this same period that police will later investigate whether Assange coerced and sexually molested [AA].

 

[...]

 

Three days later on August 20th, [SW], accompanied by [AA] went to the Klara police station in central Stockholm to seek advice about whether Assange could be forced to take an STD test. [AA] had gone along primarily to support [SW]. Sometime during [SW]'s questioning the police announced to [AA] and [SW] that Assange was to be arrested and questioned about possible rape and molestation..

 

The nature of the allegations made by the two women against Mr Assange was factual material. It was specific, unequivocal and capable of independent verification.

 

The Agreed Statement of Facts and Issues verifies the nature of those allegations. It notes that the statements by the two women were treated as reports of rape and molestation (par 4); there was an assessment that the evidence did not disclose any offence of rape (par 7); the investigation continued in respect of whether the alleged conduct could constitute some lesser offence than rape, and molestation (par 8) the preliminary investigation would continue into alleged molestation (par 9) the preliminary investigation would be resumed in relation to rape (par11); a detention order was sought in absentia upon the prosecutor’s assertion of the reasonable suspicion of the commission of the offence of rape and the offences of unlawful coercion and two instances of sexual molestation (par 25); the rape allegation was reduced to ‘minor rape’ (par28).

 

The ACMA considers that the issue of consent was presented accurately and in context having regard to the following.

 

• The reporter indicates that the sex with SW ‘might’ have been consensual. It makes no definitive statement.

 

• The broadcast later raises the issue of consent in relation to one of the two women who accused him of being violent as well as ignoring her requests to use a condom.

 

• In the report PS makes it clear that the police interpreted what one of the women had said as ‘some sort of sex crime’.

 

• The reporter also notes that the police investigated whether Mr Assange coerced and sexually molested AA.

 

• The reporter states that Mr Assange was to be arrested and questioned about possible rape and molestation.

 

As such, it was made clear in the program that the allegations being investigated against Mr Assange entailed not only the lack of a condom but broader sexual assault issues involving the question of consent.

 

The ACMA is satisfied that the material facts were accurate and presented in context. As the material is accurate, there is no need for the ACMA to assess the efforts taken by the ABC to ensure accuracy. In addition, factual content was not presented in a way that would materially mislead the audience.

 

3. Statements concerning the absence of a charge (10.50) and future detention without charge (18.18)

 

The complaint is that the reporter claims that neither woman filed charges. However, ‘both women made complaints according to the memo by [the supervising police officer]’ and ‘charges can’t happen until after Assange is interviewed in Sweden..’

 

In relation to future detention the complaint is that, contrary to the implication in the program, ‘pre-trial detention is a fairly standard practice for most suspects of serious crimes...’ and the Swedish court had ruled that Mr Assange would have no restrictions in jail.

 

The relevant statements (in bold) were:

 

PS: Somehow the two women started to exchange text messages - with each other and started to discuss what had happened, and they ended up at the police station, but they did not file any charges against Julian.

 

[...]

 

REPORTER: Assange in fact did go to the Swedish Police ten days after the first allegations were made. He was interviewed but not charged with any offence, and he was free to leave the country while the inquiry continued.

 

[...]

 

JULIAN ASSANGE (on phone): Yes, there are a number of dramatic events that occurred just beforehand. First of all, the Swedish government publicly announced that it would detain me without charge in prison under severe conditions [...]

 

[...]

 

REPORTER: Assange is safe all the time he remains inside the [Ecuador] embassy. But once he steps out it’s certain that he’ll be arrested and extradited to Sweden.

 

PS: The minute he hits Swedish soil he will be arrested. He will be brought to a custody jail. He will be kept there in isolation for four days. He can only meet with me and my co-lawyer. On the fourth day he will be brought into a courtroom in handcuffs in front of a custody judge, and they will decide whether he will be kept in custody up until the final court case is tried, or if [...] he will be released. I will try to get him released of course. But at least four days in Sweden in Swedish prison is - we can't avoid that.

 

Whether Mr Assange had been charged at the relevant time was factual material. It was specific, unequivocal and capable of independent verification.

 

 

The ACMA considers that:

 

• The ordinary reasonable viewer would have understood that in response to the allegations by the two women, an investigation was opened. Swedish police issued a warrant for Mr Assange’s arrest and he attended an initial interview but was not charged. He then left Sweden and a further warrant for his arrest was issued. Extradition proceedings were instituted and appealed in London. Mr Assange had not yet been charged (or prosecuted) with the offences for which the arrest warrants were issued.

 

• The Agreed Statement of Facts and Issues verifies that Mr Assange had not been charged and a decision to prosecute had not been made at the relevant dates. The arrest and extradition were sought in order to interview him in Sweden as part of the investigation into the allegations against him prior to charge or prosecution.

 

• It states that ‘throughout September, October and November [2010...] the investigation was ongoing and that no decision had been taken to charge or prosecute’ (par 22). In November 2010 his detention was sought by the Swedish prosecutor upon its ‘assertion of reasonable suspicion of the commission of’ offences (par 25). His arrest was sought ‘in order to enable implementation of the preliminary investigation’ (par 29). Counsel had been permitted to examine part of the investigation file but had not had access to the complete file because under Swedish law Mr Assange ‘is only entitled to have access to this material once a final decision to prosecute is made’ (par 35). The English High Court held that he was an ‘accused person’ (par 46(c)).

 

As he has not yet returned to Sweden, Mr Assange has not yet been charged and a decision to prosecute has not yet been made.

 

Accordingly, the ACMA is satisfied that the relevant factual material was presented accurately and in context and was not presented in a way that would have misled the audience.

 

In respect of the separate question as to whether Mr Assange would be detained without charge on return to Sweden, the ACMA is satisfied that the statement of Mr Assange’s Swedish lawyer PS, about the likelihood of his arrest and detention until the pre-trial custodial matters are determined, and possibly until he is (prosecuted) or tried, is a professional opinion and that it was accurately conveyed.

 

The statements of Mr Assange about his future detention and ‘severe conditions’ would be understood by the ordinary reasonable viewer to be his viewpoint or opinion. They were in the nature of a prediction of a future event and clearly contestable or judgemental. Opinion is not subject to the accuracy provision of the ABC Code and there is no dispute that these expressions of opinion were accurately conveyed.

 

4. Statements concerning STD tests (10.59) and unsigned statements (27.05)

 

The complaint is that there was no evidence to suggest that police were asked by both women to enforce ‘STD tests’ and that ‘there is nothing in the police record (or anywhere else that we are aware) to suggest that [SW] refused to sign’ her police statement.

 

The relevant statements concerning the STD test and unsigned statements (in bold) were:

 

REPORTER: Three days later on August 20th, [SW], accompanied by [AA] went to the Klara police station in central Stockholm to seek advice about whether Assange could be forced to take an STD test. [AA] had gone along primarily to support [SW]. Sometime during [SW]’s questioning the police announced to [AA] and [SW] that Assange was to be arrested and questioned about possible rape and molestation. [SW] became so distraught she refused to give any more testimony and refused to sign what had been taken down.

 

JR: The circumstances leading up to the issue of the arrest warrant gave cause for grave concern for Julian about the procedures that were adopted in the investigation. We have to remember that when the announcement was put out that he would be subject to a warrant, one of the complainants was upset by that, and later said that she felt railroaded by the police.

 

The ACMA considers that the statements concerning both the STD test and SW’s alleged refusals to give further testimony or to sign the testimony which had been given was factual material. They were specific, unequivocal and capable of independent verification.

 

The ABC has submitted that it relied on the Agreed Statement of Facts and Issues for the reporter’s reference to the women attending the police station.

 

The ACMA notes that the Agreed Statement of Facts and Issues (par 4) states:

 

SW wanted the Appellant to get tested for disease. On 20th August 2010 SW went to the police to seek advice. AA accompanied her for support. The police treated their visits as the filing of formal reports for rape of SW and molestation of AA.

 

The ACMA considers that the statement concerning the STD test is verified by the Agreed Statement of Facts and Issues.

 

On the basis of the Agreed Statement of Facts and Issues, the ACMA is satisfied that the material concerning SW’s attendance at the police station was accurate and presented in context. As the material is accurate, there is no need for the ACMA to separately assess the efforts made by the ABC to ensure accuracy. The ACMA also considers that the factual content was not presented in a way that would have misled the audience.

 

In respect of the statement concerning the refusal of SW to complete her interview or sign her record of interview, the ACMA considers that:

 

• The ordinary, reasonable viewer would have understood that the police interview ended because of SW’s emotional state and that she refused to sign her record of interview.

 

• Allegations of rape against Julian Assange and SW’s and AA’s reaction to events are prominent themes that are explored throughout the segment and their demeanour is relevant in this context. 

 

The ABC submitted that it had relied on publicly available extracts from police records of interviews which indicate that SW had ‘difficulty concentrating’ once she found out during the interview that Mr Assange was to be arrested. The interviewing officer had made ‘the judgement that it was best to terminate the interview’ and noted that the ‘interview was neither read back to [SW] nor read by her for approval; but [SW] was informed that she could do so at a later date’.

 

The ABC also submitted that police interviews with her brother and a work colleague verify that SW attended the police station to get advice from police as to how to compel Mr Assange to submit to testing for sexually transmitted disease, and that she was upset with the way events unfolded.

 

In publically available English translations5 of the interviews, the record of interview with SW’s brother notes:

 

[SW] subsequently explained that she did not want to file charges against Julian, but only wanted him to get tested for infection. She went to the police to seek advice and then the police had filed charges.

 

[...]

 

She was also upset that the episode had been in the newspapers and that there had been so much hullabaloo about it.

 

The record of interview with SW’s work colleague notes:

 

They spoke quite a bit after [SW] had gone to the police and the media frenzy had begun. [SW] was very upset by all the hullabaloo and was very angry with Julian.

 

[...]

 

[M] wanted also to say that, when [SW] visited the hospital and the police, it did not turn out as [SW] wanted. She only wanted Julian to get tested. She felt that she had been run over by the police and others.

 

The ACMA accepts that this indicates that SW had some hesitation and regret about how events unfolded, and that she did not attend the police station for the purpose of having Mr Assange charged with sexual offences. However, there is no material before the ACMA confirming that SW specifically refused to give any more testimony or sign her statement. For this reason, the ACMA has considered what efforts the ABC took to ensure the accuracy of the material.

 

In further submissions to the ACMA, the ABC has linked its reasonable efforts to reliance on the various accounts of witnesses set out above. Noting SW’s state of mind at the time, that her intention when she attended the police was not to make a complaint but to find out if she could compel Mr Assange to take a test for disease, that during the course of the interview she learned that Mr Assange was to be arrested on the basis of her statements, the ABC submitted that SW ‘..was upset and judged to be in no state to continue the interview. Given this scenario, it was reasonable for the program to simply state that [SW] refused to continue with the interview and refused to sign the record of interview.’

 

There is no dispute that the interview was terminated and the police statement was not signed on the day that SW attended because she was too upset to continue. There is also no dispute that the statement has not yet been signed. These facts are consistent with (though not evidence that) SW refused to continue the interview and to sign the record. Although it might have been preferable not to use the word ‘refused’, the ACMA considers that, on balance, the ABC made reasonable efforts to ensure that the information presented was accurate. It also considers that, in the context of the program in which it has been made clear that the police investigation has not been finalised, whether the statement was not signed on the day of the interview because SW refused to, or had no capacity to sign, is not a material fact.

 

As such, the ACMA considers that the ABC met its obligation in respect of standard 2.1 as it made reasonable efforts to ensure that material facts concerning the termination of the police interview were accurate and presented in context. The ACMA also considers that, in accordance with standard 2.2, the factual content was not presented in a way that would have misled the audience.

 

5. Statements concerning departure and return dates – whether Mr Assange was free to leave Sweden (12.30) and his intention to return (13.39)

 

The complaint is that the segment suggests that Mr Assange was not wanted for interview and was free to leave Sweden. However, ‘the exact message from the prosecutor was that no force measures are in place to prevent Assange from leaving Sweden’.  

 

The relevant statements (in bold) were:

 

PS: In mid-September he got a message from his then-lawyer, but the prosecutor did not want him [...] for an interview, and that he was free to leave Sweden, and under that assumption he left Sweden in the afternoon of the 27th of September in good faith that he had sought for and got approval from the prosecutor to leave the country.

 

[...]

 

REPORTER: It is perhaps understandable that Assange had doubts he would receive fair treatment from the Swedish authorities. On September 15th, the prosecutor told Assange he was permitted to leave Sweden. Assange, back in England, would later offer to return within a month. The Swedish authorities said too late - a second warrant had already been issued for his arrest.

 

(to CB) He says that he left the country and then was prepared to come back at any time. Is that your understanding?

 

CB: I don't believe that.

 

REPORTER: He says that he was prepared to come back in October but the prosecutor wanted him back earlier.

 

CB: I don't know. I don't believe he wanted to, he wanted to come freely back to Sweden. I don't think so.

 

The ACMA considers that the question of whether Mr Assange was permitted to leave Sweden was factual material. It was specific, unequivocal and capable of independent verification.

 

The ABC has advised that it based its statements as to Mr Assange’s right to leave Sweden on the Agreed Statement of Facts and Issues.

 

The Agreed Statement of Facts and Issues (par 13) states:

 

On 14th September 2010, the Appellant’s [Mr Assange’s] counsel enquired in writing as to whether the Appellant was permitted to leave Sweden. On 15th September 2010, the prosecutor informed the Appellant’s counsel that he was free to leave Sweden […]

 

It then recites that the prosecutor had contacted Assange’s counsel about a date for interrogation in late September 2010 (par 14) and on 27 September the prosecutor ordered that Mr Assange should be arrested (par 15). He had left Sweden on 27 September (par 17) and he was planning to attend a lecture in Sweden in October (par 18). Telephone interviews were offered and declined (par 19). Mr Assange’s counsel had been unable to contact him (par 21) and following an appeal in Sweden a European Arrest Warrant (EAW) was issued on 26 November (par 30). This was certified invalid and later re-issued on 2 December 2010 (par 34).

 

The Agreed Statement of Facts and Issues makes it clear that the prosecutor had informed Mr Assange, via his Counsel, that he was free to leave Sweden. On the basis of this, the ACMA is satisfied that the statements in the segment concerning Mr Assange’s permission to leave Sweden were accurate and presented in context. As the material is accurate, there is no need for the ACMA to separately assess the efforts made by the ABC to ensure accuracy. The ACMA also considers that factual content was not presented in a way that would have materially misled the audience.

 

The comment by PS, Mr Assange’s lawyer, about Mr Assange leaving Sweden in good faith would be understood by the ordinary reasonable viewer to be his viewpoint or opinion. The surrounding statements about Mr Assange’s offer to return to Sweden were presented as contestable in the report by the subsequent statements from CB saying that he didn’t know, and didn’t believe that Mr Assange was willing to come back.

 

In this context, the ACMA considers that the statement is an expression of opinion that was accurately conveyed rather than a statement of fact and is therefore not subject to the accuracy requirement in the Code.

 

6.  Red Notice (14:00)

 

The complaint is that the segment conveyed ‘completely wrong information’ as to ‘what constituted a Red or Orange notice’. The segment ‘just accepted the false claims of Assange lawyers’.

 

The relevant statements concerning the Swedish prosecution’s issue of a Red Notice (in bold) were:

 

REPORTER: Assange was at his peak, working with some of the most prestigious and influential media outlets in the world - including the Guardian and New York Times. But ominously, 12 days after giving Assange clearance to leave the country, the Swedes issued a warrant for his arrest. Three weeks later WikiLeaks launched the third big hit against America: The Iraq War Logs.

 

Then the Swedish prosecutor upped the ante - with Assange now working on the release of the biggest and most sensitive cache of US cables yet, Sweden issued an Interpol Red Notice for his arrest.

 

JR: You only need to look at the way that Red Notices are used around the world. Red Notices are normally the preserve of terrorists and dictators. The president of Syria does not have a Red Notice alert. Gaddafi in Libya, at the same time Julian's arrest warrant was issued, was not subject to a Red Notice but an Orange Notice. It was an incredibly.. it was incredibly unusual that a Red Notice would be sought for an allegation of this kind.

 

REPORTER: The timing of the Red Notice could not have been worse. US Army soldier Bradley Manning had allegedly leaked more than a quarter of a million classified documents, and Julian Assange was anxious to get them out. They became known as Cablegate.

 

In the context of the description of the permission for Mr Assange to leave Sweden being followed by the issue of a warrant for his arrest, the ACMA considers that:

 

• The ordinary reasonable viewer would have understood the reference to ‘upped the ante’ by issuing a Red Notice, to mean the Swedish prosecutor had taken another procedural step to secure a further interview. This factual matter is not in dispute.

 

• Having regard to the tenor and tone of the statement and surrounding statements, the comments from JR, Mr Assange’s UK lawyer about the issue of a Red Notice being unusual was an expression of opinion, accurately reported.

 

Accordingly, there is no requirement to consider the accuracy requirement in the Code in relation to this statement.

 

7. Statements about onward extradition to the United States - Back doors (17.15) Asylum from Sweden (31:44) Sweden and espionage extraditions (32:00) US allegations of espionage (33.42)

 

The complaint is that:

 

• The program speculates the onward extradition to the US for espionage, however, ‘Sweden does not extradite for military or political crimes..’ as suggested by the program.

 

• ‘Four Corners have obtained Grand Jury evidence which mentions national defence which is espionage which Sweden doesn’t extradite for’.

 

• While Mr Assange claims he could not claim asylum once in Sweden, ‘Sweden can and does offer asylum from the USA..’

 

The relevant statements (in bold) were:

 

PRESENTER:

 

[...]

 

When it emerged that two young Swedish women were pressing charges against him, alleging rape and molestation in somewhat curious circumstances, and extradition proceedings began in the British courts, Assange alleged that America was somehow manipulating the whole process behind the scene, in order to in turn extradite him back to the US to face the judicial music there.

 

[...]

 

REPORTER: Though the task force found that Assange had broken no law, his more immediate worry was that his extradition to Sweden would be a backdoor to onward extradition to the United States.

 

[...]

 

REPORTER: Assange, still hunkered down in the London embassy, has no doubt what his fate will be if he is extradited [to Sweden].

 

JULIAN ASSANGE (on phone): If I was suddenly taken to Sweden, I would not be in a position to apply for political asylum in relation to United States. It would be the end of the road. I would just be taken from one jail to another.

 

JR: The US has said specifically, the US ambassador to London said, they would wait to see what happened in Sweden. And so we are very concerned about the prospect that once matters are resolved in Sweden, he will, there will be an extradition request from there and he will not be able to travel home to Australia and will have to fight extradition in the Swedish courts.

 

REPORTER: The US Ambassador to Australia suggests that Washington isn't interested in the Swedish extradition.

 

[JB], US AMBASSADOR TO AUSTRALIA (May 2012): It's not something that the US cares about, it's not interested in it, it hasn't been involved in it - and frankly, if he's in Sweden, there's a less robust extradition relationship than there is between the US and the UK, so I think it's one of those narratives that has been made up - there's nothing to it.

 

MR, US LAWYER ASSANGE: That's diplomatic speak. That doesn't mean anything. Their last statement three days ago by their spokesperson Linn Boyd says we are continuing our investigation of WikiLeaks. So you can't accept those words.

 

REPORTER: [MR], Assange's New York lawyer, believes there's an easy solution to the issue.

 

MR: If they flatly said, "We do not, we will not prosecute Julian Assange" that would be a very different kind of statement – and, and, in my view, is they should [say] that. I think they should say it, one, because then Julian Assange could leave the Ecuadorian Embassy, go to Sweden, deal with Sweden and continue on with his life.

 

[...]

 

REPORTER: Assange's primary concern is that the Australian Government has never properly addressed the central question: the near certainty that a Grand Jury is investigating WikiLeaks and the possibility of him being charged.

 

JR: We are very concerned about the very prospect of potential extradition to the US. We need only look to the treatment of [BM]. He's been held in pre-trial detention for more than two years now, in conditions for a large part of that detention which the UN Special Repertoire said amount to torture. We are very concerned about the prospect of him ending up in the US, and the risk of onward extradition from Sweden was always a concern and remains a concern.

 

[...]

 

The program also features the condemnation by the then US Secretary of State of WikiLeaks’ activities and reports of threats to US national security, followed by calls for Mr Assange’s death.

 

The ACMA considers that:

 

• The question of onward extradition to the United States is clearly presented as a central concern of Mr Assange and his legal advisors.

 

• The views of his UK and US lawyers are presented as their professional opinions.

 

• The question of whether he would be extradited is presented as contestable through the quote from the US ambassador to Australia.

 

• It is made clear through the reference by JR to the US Ambassador’s comment, and through the statements of MR, that a decision to prosecute and on what grounds has not been made in the US.

 

• Although MR refers to a Grand Jury examining the issue of espionage, the possible ground on which Mr Assange and his lawyers consider he might be extradited is not specified and is left open.

 

• As noted by the complainant, the treatment of the onward extradition from Sweden to the US is speculation.

 

• The question of asylum once in Sweden is Mr Assange’s personal opinion as to what he might be in a position to do in the future, rather than a factual statement about the operation of Swedish asylum laws.

 

Accordingly, the ACMA does not regard the material complained of as factual but rather as contestable viewpoint or opinion. Such material is not subject to the accuracy provision of the ABC Code and there is no dispute that these viewpoints or opinions were accurately presented.

 

The ACMA is satisfied that the question of onward extradition to the US is conveyed as an expression of opinion and it was accurately reported.

 

8. Are rape victims allowed to smile? (22.50)

 

The complaint is that PS ‘appears to state that there is some sort of standard formula that rape victims should follow after being raped’. The ABC has submitted that it is unaware of any such statement being made in the broadcast.

 

The relevant statements by PS concerning the demeanour of the witnesses (in bold) were:

 

PS: You shouldn't write such text messages if you had been raped by that person the night before.

 

[...]

 

This was broadcast during the introduction of the segment and immediately followed by:

 

CB: I will not tell any media of how I am going to represent the women in court. I'm sorry.

 

The reporter then briefly describes Mr Assange’s encounters with SW and AA in Sweden and some of their texts and comments to others. PS comments that the sex between Mr Assange and each woman was consensual.

 

Later in the broadcast the reporter recounts the details of Mr Assange’s business and social activities with AA including his overnight stays with her during a Swedish Brotherhood Conference during which they had intercourse (noting that AA would later tell police he ‘had violently pinned her down and ignored her requests to use a condom’), their attendance at a crayfish party which AA organised for him and her tweets to others about Mr Assange.

 

The introductory interview with PS is then repeated:

 

PS: Well, if you send text messages like that, ‘I've just spent some time with the coolest people in the world’, the night after you then say you were raped - I mean you shouldn't write such text messages if you had been raped by that person the night before.

 

REPORTER: Your client described Julian Assange as a ‘cool man’. I think, one of the ‘coolest men in the world’ that she'd had in her bed.

 

An interview follows with CB, repeating his comment in the introduction that he will not talk about how he will ‘represent the women in court’. The reporter challenges him on how it might look like a ‘fix up’ or as though Mr Assange was being set up.

 

The segment continues with the reporter recounting AA and Mr Assange’s attendance together at a dinner party organised by the Pirate Party and comments from the host RF, followed by:

 

REPORTER: Four Corners has obtained a photograph, lodged with police investigators, from that evening. [AA] is on the left. Afterwards, Assange would again spend the night at her apartment.

 

In the photograph AA appears to be smiling.

 

The ACMA considers that the statements concerning the demeanour of the witnesses were factual material. These statements were specific, unequivocal and capable of independent verification.

 

The ACMA also considers that:

 

• Although there are no direct remarks about whether ‘rape victims are allowed to smile’, the depiction of Mr Assange and each of SW and AA as amicable during the period that gave rise to their claims of rape clearly features in the segment.

 

• In the context of other statements in the program, the ordinary reasonable viewer would also have understood that Mr Assange and his lawyers believed that that the women had been manipulated, and that the rape case was created to damage WikiLeaks  and to facilitate Mr Assange’s extradition to Sweden and from there to the United States of America.

 

The treatment of sexual assault victims is clearly a sensitive matter. However, the allegations by SW and AA women against Mr Assange were central to the events reported. It is clear in the program both that these allegations are made and that they are contested and will likely be the subject of further investigations and court proceedings.

 

The ACMA is satisfied that the material concerning the demeanour of the women was accurate and presented in context. As the material is accurate, there is no need for the ACMA to assess the efforts taken by the ABC to ensure accuracy. In addition, factual content was not presented in a way that would have misled the audience.

 

Accordingly there is no breach of standards 2.1 or 2.2 of the Code.

 

9. Lawyer v malsagarbitrade (23:15)

 

The complaint is that ‘while CB is a qualified and practising lawyer, his role in this case is one of “malsagarbitrade” to the two women [...] To call him the ‘lawyer’’ for the two complainants could give quite the wrong impression to an English-speaking audience who are unfamiliar with the role of the “malsagarbitrade”’.

 

The relevant content is the caption given to CB: ‘lawyer’.

 

The ACMA notes the following statements were made by CB in the broadcast:

 

CB:  I will not tell any media of how I am going to represent the women in court. I'm sorry.

 

CB: I will argue in court. I have of course arguments concerning exactly what you're talking about now, but I will not tell any media of how I am going to represent the women in court. I'm sorry.

 

The ACMA considers that this was factual material. It was specific, unequivocal and capable of independent verification.

 

Having regard to the statements above, the ACMA considers that:

 

• The reference to CB as the ‘lawyer’ for the two women is not inaccurate and was a reasonable description in the circumstances.

 

• As noted in the complaint, CB is a lawyer.

 

• There are various sources available in the public domain referring to CB as the lawyer representing the two women.

 

Accordingly, the material facts were accurate and presented in context.  As the material is accurate, there is no need for the ACMA to assess the efforts taken by the ABC to ensure accuracy. In addition, the factual content was not presented in a way that would have materially misled the audience.

 

10. Leaks real and otherwise (28:15)

 

As noted above, the ACMA’s investigation is confined to those matters raised with the ABC in the first instance.

 

The relevant complaint to the ABC is that, contrary to what the reporter states, there were no documents leaked by the authorities to the tabloids; an unknown party gave the media the full details:

 

The Expressen called the original prosecutor with the full details ready to hand, and she confirmed that Mr Assange had been arrested in absentia. She should not have done this.’

 

The media then applied for police statements under freedom of information processes and the police were obliged to release (redacted) copies. The complainants suggest that unredacted copies were subsequently provided to the press by Mr Assange’s lawyers and that this is the ‘real leak’.

 

The relevant statements (in bold) were:

 

Reporter: The Prosecutor's Office might not have contacted Assange but within hours they let the whole of Sweden know what was going on - leaking to the Expressen tabloid the statements of [AA] and [SW]. The newspaper front page read: "Assange hunted for rape in Sweden".

 

JR: Julian wakes up the following morning to read the newspapers to hear that he's wanted for double rape and he's absolutely shocked.

 

TM: Two of our reporters had information about Julian Assange, and we also had a confirmation from the prosecutor which confirmed, on record, that there was a police investigation against Julian Assange.

 

REPORTER: It was now the case took a strange twist. Within 24 hours, a more senior prosecutor dismissed the rape allegations, leaving only the lesser accusation of molestation. Assange willingly went to the police on August 30th and made a statement.

 

During the interview he expressed his fears that anything he said would end up in the tabloid newspaper Expressen. The interviewing police officer said: "I'm not going to leak anything." The interview was leaked.

 

PS: Why did you leak his name to a tabloid paper?

 

The statements concerning material provided to the press by the Prosecutor’s Office (namely ‘confirmation.. on the record, that there was a police investigation’ and ‘the statements’) were factual material. They were specific, unequivocal and capable of independent verification.

 

Information in the public domain verifies that the original on-duty prosecutor confirmed with the press that there was an investigation against Mr Assange. This was confirmed in the segment, by TM of Expressen, as taking place on the record, and is not disputed by the complainant.  Accordingly, there is no question as to the accuracy of the statements made about the Prosecutor’s Office confirming the investigation.

 

The position with respect to the various statements is more complex.

 

The ABC submitted that the reporter did not say that documents were leaked by authorities to the tabloids, and that the content of ‘statements’ (the word used in the program) could be leaked verbally. It further submitted that:

 

• The Prosecutor’s Office confirmed to Four Corners that it had provided information to Expressen.

 

• The Prosecutor’s Office also confirmed that there was an Ombudsman investigation on foot into the leaking of Mr Assange’s name and information relating to him (though this confirmation was not broadcast). The confirmation did not specify the individual or agency being investigated.

 

• The Expressen reporters knew that something had happened to Mr Assange, but it was only after contacting the Prosecutor’s Office that they discovered the nature of the alleged offences described in AA and SW’s statements.

 

The ACMA has no material which would enable it to assess the nature of any unauthorised disclosure of information by authorities to the press. It has focussed on the particular question raised by the complaint to the ABC of whether the segment accurately represented that documents had been leaked by the Prosecutor’s Office to the press. In that regard, it accepts that the ordinary reasonable viewer would have understood that ‘leaking’ a statement did not necessarily involve providing a copy of a document.

 

The ACMA is satisfied that, on this issue, the ABC made reasonable efforts to ensure that the material facts were accurate and presented in context, and did not present factual content in a way that materially misled the audience.

 

Accordingly, the ABC met its obligations in respect of standards 2.1 and 2.2.

 

11. Appealing a decision (28.57)

 

The complaint is that the reporter states that the case being re-opened was a ‘strange twist’, however, In Sweden, a case decision can be appealed. The reporter didn’t ‘manage to uncover this aspect of the standard legal process’.

 

The relevant statements (in bold) were:

 

JR: The circumstances leading up to the issue of the arrest warrant gave cause for grave concern for Julian about the procedures that were adopted in the investigation. We have to remember that when the announcement was put out that he would be subject to a warrant, one of the complainants was upset by that, and later said that she felt railroaded by the police.

 

[...]

 

REPORTER: It was now the case took a strange twist. Within 24 hours, a more senior prosecutor dismissed the rape allegations, leaving only the lesser accusation of molestation. Assange willingly went to the police on August 30th and made a statement.

 

During the interview he expressed his fears that anything he said would end up in the tabloid newspaper Expressen. The interviewing police officer said: "I'm not going to leak anything." The interview was leaked.

 

PS: Why did you leak his name to a tabloid paper? How, how can you drop the case and reopen the case and how can you, how can you not say that he waited for five weeks in Sweden voluntarily to participate in the investigation? Why do you have to arrest him? Why do you have to keep him in handcuffs? Why can't you conduct this in a proper manner? The rest of the world sees it, but Sweden unfortunately does not.

 

[...]

 

REPORTER: Can you understand that the Australian people may not understand how somebody can be accused in their absence when they haven't even been interviewed, then have that rape case dropped, the arrest warrant removed and then have it re-instituted, all in the space of a few days?

 

KR: Yeah I can very well understand the confusion and, and, that is very difficult to understand, well, exactly how it works.

 

REPORTER: Well you call it confusing, it's, it may be slightly more than that.

 

KR: Well that's the way it works here in Sweden so, well. But I can understand the confusion, definitely.

 

The ACMA considers that statements made by the reporter in reference to the case being dropped and then re-instituted were factual material. These statements were specific, unequivocal and capable of independent verification.

 

The Agreed Statement of Facts and Issues verifies that the rape case was dropped and re-opened while Mr Assange was in England, and that an initial arrest warrant was cancelled.

 

It states that the formal reports were filed as: rape and molestation (par 5); on 20 August 2010 the prosecutor ordered that Mr Assange be arrested (par 6); on 21 August at the conclusion of interviews with SW and AA, the chief prosecutor cancelled the arrest warrant ‘having made the assessment that the evidence did not disclose any offence of rape (against SW)’ (par 7).

 

The preliminary investigation continued in respect of whether the conduct alleged by SW could constitute some lesser offence (par 8); on 25 August the chief prosecutor determined that the conduct alleged against SW disclosed no crime at all and the preliminary investigation would continue in regard to AA on suspicion of the offence of ‘molestation’ (par 9).

 

On 27 August counsel for SW and AA appealed the chief prosecutor’s decision (par 11); on 30 August Mr Assange was interviewed in respect of the molestation allegations (par 10); Mr Assange left Sweden on 27 September (par 17); on 1 September the senior prosecutor decided that the SW investigation would be resumed under the offence of ‘rape’ (par 11); on 24 November a detention order was appealed in Sweden and upheld but the allegations concerning SW were reduced to ‘minor rape’ (par 28).

 

The ACMA considers that:

 

• The facts concerning the dismissal of the rape case, the appeal against this, Mr Assange’s interview in respect of ‘molestation’ allegations and the resumption of the rape allegations and reduction to ‘minor rape’ during his absence from Sweden are verified.

 

• The references by Mr Assange’s UK and Swedish lawyers to concerns over the circumstances leading to his arrest and the propriety of the conduct of the processes, are presented as their professional opinions.

 

The reporter’s comment that this was a ‘strange twist’ is an expression of viewpoint or opinion, which is contextualised by his reference to Australians not understanding such processes and KR’s (the prosecutor’s) concession that it is confusing. It is clearly judgmental or contestable.

 

The ACMA is satisfied that the material facts were accurate and presented in context.  As the material is accurate, there is no need for the ACMA to assess the efforts taken by the ABC to ensure accuracy. In addition, the factual content was not presented in a way that would materially mislead the audience. Further, expressions of opinion were conveyed accurately.

 

12.  Extradition, deportation and rendition (43.20) RF (43:27)

 

The complaint is that ‘there is no dispute that Sweden acted illegally in deporting the two Egyptian men, but it was deportation not an extradition’; the Egyptian men were not Swedish citizens. Sweden has not extradited a person to the US for a military or political crime in the past 50 years, and the expulsion to Egypt was not in compliance with US wishes.

 

The relevant statements were:

 

REPORTER: Once in Sweden he’d be at the mercy of a system which has a record of complying with US wishes. And there's evidence that Sweden has acted illegally in past extraditions involving the US.

 

RF: Sweden has frankly always been the United States' lap dog and it's not a matter we are particularly proud of. The Swedish Government has, essentially, whenever a US official says, "Jump", the Sweden Government asks, "How high?"

 

REPORTER: If that seems like a heavy handed comment, there's evidence to back it up.

 

RF: There was a famous case, last decade, where a couple of Swedish citizens were even renditioned by the CIA in a quite torturous manner to Egypt where they were tortured further, which goes against every part of Swedish legislation, every international agreement on human rights, and not to say human dignity.

 

REPORTER: A United Nations investigation later found against Sweden. The country was forced to pay compensation. For Assange, coupled with his other experiences of the Swedish judicial system, it is perhaps understandable that he fears ending up in Sweden.

 

This follows first-hand accounts by two people who have allegedly been questioned by the US FBI on their associations with WikiLeaks and Mr Assange when travelling to the USA, and JR who believes she has been placed on the US Homeland Security ‘inhibited list’.

 

The reporter’s statement ‘evidence to back it up’ was accompanied by a still image of the cover of an Amnesty International report (the Amnesty Report), which appeared onscreen entitled: ‘Sweden: The case of Mohammed El Zari and Ahmed Agiza: violations of fundamental human rights by Sweden confirmed’.

 

The ordinary, reasonable viewer would have understood the statements to mean that, with the involvement of the US, the Swedish Government had illegally, renditioned or extradited two Swedish citizens to Egypt, and the United Nations had found against the Swedish Government over this.

 

The ABC has provided dictionary definitions of the terms ‘rendition’, ‘extradition’ and ‘deportation’. It also provided Four Corners’ understanding of the circumstances of the handover of the Egyptian men to the US CIA by the Swedish Secret Security service as part of a terror suspect ‘rendition’, and the subsequent investigations by the Swedish Parliamentary Ombudsman and UN Human Rights agencies, and award of compensation. It notes that the description of the two Egyptians as Swedish citizens was incorrect and that an editor’s note has been placed on the online transcript of the report.

 

The statements concerning the two Egyptians are factual matter, capable of independent verification.

 

The facts are verified by material in the public domain.

 

The Amnesty Report confirms that on 18 December 2001,on the basis of US and Egyptian intelligence provided to Säpo (Sweden’s Security Police), the Swedish Government executed an expulsion order and the two Egyptian men were picked up by Säpo and flown in a CIA leased plane to Egypt.

 

Two United Nations Human Rights Committee reports have found that Sweden had acted illegally in ordering the expulsion and deportation of the men on 18 December 2001 on the basis of intelligence services’ information of involvement in an organisation implicated in terrorist activities, resulting in orders for expulsion.

 

The ACMA considers that:

 

• The segment reported the concerns of Mr Assange and his legal team that he would be extradited to the US if he returned to Sweden. The segment did not purport to examine Sweden’s history regarding extraditions.

 

• Sweden has in the past been found to have acted illegally in relation to the expulsion of non-Swedish citizens to Egypt and the US had some involvement in that case as it provided intelligence and a CIA flight.

 

• The references to Sweden ‘having a record’ and to ‘there’s evidence to back it up’ refer to the case of the past expulsion to Egypt, and numerous cases are not required to support the existence of such a record.

 

• Having regard to the context in which it was made, the reference to ‘Sweden complying with US wishes’ is presented as an opinion as to the nature of US involvement in that case and Sweden’s acquiescing to US wishes would be understood to be contestable and judgemental.

 

• In the context of material presented throughout the segment concerning Mr Assange’s fear of extradition, the terms ‘extradition’ and ‘rendition’ were used synonymously to mean forcible delivery or surrender of a person from one authority to another, rather than in a strict judicial sense, and also fell within the broader term ‘deportation’.

 

• RF’s comments about Sweden being the United States ‘lapdog’ and saying ‘how high’ when the US says ‘jump’, were contestable and judgmental in nature and presented as RF’s opinion or viewpoint rather than fact.

 

RF’s reference to the Egyptians as Swedish citizens is factually incorrect, as acknowledged by the ABC. However, the ACMA accepts the ABC’s submission that the reference to the two Egyptian men as Swedish citizens would not have materially misled the audience. The broadcast focused on Sweden’s actions in relation to the two men who were expelled on the basis of terrorism allegations, as opposed to their status as Swedish citizens or otherwise, and in this case neither Mr Assange nor the Egyptians were Swedish nationals.

 

The ACMA finds that in relying on the Amnesty International report and the United Nations report, the ABC made reasonable efforts to ensure that the material facts were accurate and presented in context.  In addition, the factual content was not presented in a way that would have materially misled the audience. Accordingly, there was no breach of standards 2.1 and 2.2.

 

 

Issue 2: Impartiality

 

Relevant Code clauses

 

4.1 Gather and present news and information with due impartiality

 

4.5 Do not unduly favour one perspective over another

 

Relevant Principles in relation to impartiality and diversity of perspectives include the following:

 

Judgements about whether impartiality was achieved in any given circumstances can vary among individuals according to their personal and subjective view of any given matter of contention. Acknowledging this fact of life does not change the ABC’s obligation to apply its impartiality standard as objectively as possible. In doing so, the ABC is guided by these hallmarks of impartiality:

 

• a balance that follows the weight of evidence;

 

• fair treatment;

 

• open-mindedness; and

 

• opportunities over time for principal relevant perspectives on matters of contention to be expressed.

 

[...]

 

Impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented.

 

Assessing the impartiality due in given circumstances requires consideration in context of all relevant factors including:

 

• the type, subject and nature of the content;

 

• the circumstances in which the content is made and presented;

 

• the likely audience expectations of the content;

 

• the degree to which the matter to which the content relates is contentious;

 

• the range of principal relevant perspectives on the matter of contention; and

 

• the timeframe within which it would be appropriate for the ABC to provide opportunities for the principal relevant perspectives to be expressed, having regard to the public importance of the matter of contention and the extent to which it is the subject of current debate.

 

The considerations which the ACMA has regard to in assessing the ABC’s compliance with standard 4 of the Code are found at Attachment E.

 

Submissions

 

Relevant extracts from the submissions of the complainants and the ABC are at Attachments C and D respectively.

 

Finding

 

The ABC did not breach standards 4.1 and 4.5 of the Code.

 

Reasons

 

As indicated at Attachment E, achieving impartiality requires a broadcaster to present content in a way which avoids conveying a prejudgment, or giving effect to the affections or enmities of the presenter or reporter who plays a key role in setting the tone of the program, through their style and choice of language. A program that presents a perspective that is opposed by a particular person or group is not inherently partial. Whether a breach of the Code has occurred will depend on the themes in the program, any editorial comment, the overall presentation of the story and the circumstances in which the program was prepared and broadcast.

 

In this case, the segment explored the circumstances surrounding the allegations made against Mr Assange and the warrant for his arrest. A central theme is his concern, and that of his lawyers, that if he returned to Sweden he would be extradited to the US in relation to his WikiLeaks activities.

 

The complainants’ concerns about impartiality arise from the alleged inaccuracies, the omission of information, and the favouring of one perspective, that of Mr Assange.

 

One of the complainants submitted:

 

My proposition is that the entire program is skewed very heavily towards presenting only Julian Assange’s perspective while ignoring the legitimacy of the Swedish case or the perspective of the two Swedish women who made the allegations.

 

For the reasons outlined above, the ACMA considers that factual material and opinions were presented accurately.

 

The ABC submitted that ‘the report included a broad range of principal relevant perspectives, none of which were unduly favoured over any other. It is important to understand that impartiality does not require that every perspective requires equal time, nor that every facet of every argument is presented’.

 

As indicated above, a program that presents a perspective that is opposed by a particular person or group is not inherently partial. In this case, the ABC presented Mr Assange’s experience of the allegations of rape and sexual assault and his fears (whether founded or not) about potential onward extradition to the US.

 

The ABC is entitled to present and explore Mr Assange’s perspective, as long as the material has been presented accurately, doesn’t convey a prejudgement and does not unduly favour one perspective over another.

 

The ABC also submitted that AA and SW were invited to be interviewed for the program but declined. The ACMA notes that their perspectives in terms of the allegations made against Mr Assange are presented through CB, the lawyer representing the two women, and to some extent interviews with the Swedish Prosecutor’s Office.

 

In reference to RF, the complainants also queried RF’s qualifications to participate in the program. The ACMA accepts the ABC’s submission that ‘as a person with a close association to Assange and who is a member of the Swedish Parliament, [RF] presented a principal relevant perspective on the issues examined in the report. The ACMA also notes that RF was an eyewitness to some of the key events dealt with in the segment and the inaccurate statement made by RF in reference to the two Egyptian men as Swedish citizens has been acknowledged and corrected by the ABC.

 

In terms of the overall presentation of the segment, the ACMA makes the following observations:

 

• The reporter maintained a relatively neutral tone throughout the broadcast and did not use sustained emotive or colourful language. The ACMA considers that the language and tone did not convey any prejudgment, nor did it appear to give effect to any affections or enmities.

 

• The segment made it very clear that there were opposing views. As indicated in the Code’s Principles above, impartiality does not require that every perspective receives equal time, nor that every facet of every argument is presented.

 

• While the majority of those interviewed in the segment supported Mr Assange, the reporter also interviewed the representative of the two women who made the allegations against Mr Assange and the segment broadcast footage of the US Ambassador to Australia commenting on the alleged US extradition of Mr Assange from Sweden.

 

• The fact that equal time was not allocated to each side does not indicate that the broadcast was biased. The ACMA considers that viewers would have been aware that there were conflicting views.

 

The ACMA is satisfied that the broadcast exhibited due impartiality and did not unduly favour one perspective over another. Accordingly, the ABC did not breach standards 4.1 or 4.5 of the Code in relation to the broadcast.

 

Decision

 

The Australian Communications and Media Authority determines for the above reasons that the Australian Broadcasting Corporation, in relation to the broadcast by ABN Sydney of Four Corners on 23 July 2012, did not breach standards 2.1, 2.2, 4.1 and 4.5 of the ABC Code of Practice 2011.