media/Broadcasting... Web viewis sure to surprise, ... in the case of the two episodes under investigation the high threshold test for a breach of clause 1.9.6 has not been

Investigation Report No. 3146

File no. ACMA2013/1600

Licensee Network Ten (Melbourne) Pty Ltd

Station ATV Melbourne

Type of service Commercial television

Name of program The Biggest Loser: The Next Generation

Dates of broadcast 18/3/13 and 2/4/13

Relevant Code Clauses 1.9.6 and 1.9.7 of the Commercial Television Industry Code of Practice 2010

Date finalised 7 February 2014

Decision No breach of clause 1.9.6 [provoke or perpetuate intense dislike, serious contempt or severe ridicule on the grounds of disability]No breach of clause 1.9.7 [present participants in reality television programs in a highly demeaning or highly exploitative manner]

ACMA Investigation Report 3146 – The Biggest Loser broadcast by Network Ten (Melbourne) Pty Ltd on 18 March and 2 April 2013

The complaintOn 27 November 2013, following correspondence clarifying the matters within its jurisdiction, the Australian Communications and Media Authority (the ACMA) commenced an investigation into two episodes of the program The Biggest Loser – Next Generation broadcast by Channel Ten (Melbourne) Pty Ltd (Channel Ten).

The complainant was concerned about the nature of the program generally over the entire season, however, for the purpose of this investigation, identified the following broadcasts:

All of episode 2, broadcast on 18 March 2013; and

A short excerpt from episode 9, broadcast on 2 April 2013.

The complaint submitted that:

‘the portrayal of contestants provokes contempt and ridicule...’; and

‘a reasonable person would easily form the view [from the broadcast] that the contestants are demeaned and exploited.

The ACMA’s investigation is limited to issues raised in the complaint within the scope of clauses 1.9.6 [provoke or perpetuate intense dislike, serious contempt or severe ridicule on the grounds of disability] and 1.9.7 present participants in reality television programs in a highly demeaning or highly exploitative manner] of the Commercial Television Industry Code of Practice 2010 (the Code).

Matters not pursued The complaint documentation included issues of concern in relation to public health. These issues are not matters within the Code and are therefore not investigated.

The broadcastsThe program

The Biggest Loser Australia was first broadcast in 2006. While the series initially involved single contestants competing against each other, in recent years the program has included teams including couples and families. The relevant episodes of The Biggest Loser: Next Generation were part of the eighth season of the program.

The Biggest Loser – Next Generation is described on its website as follows:

This year’s The Biggest Loser is all about the Next Generation and tackling the cycle of generational obesity.

We will follow a number of parents with either their son or daughter. The duos will battle it out to lose weight and fight their demons as they face brand new challenges, twists, eliminations and, of course, transformations.

Returning is host [host’s name] along with favourite trainers – [M], [S] and ‘The Commando’. There's a brand new Biggest Loser house, with four new gymnasiums, and a new weigh-in set up.


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The Biggest Loser: The Next Generation is sure to surprise, entertain, inspire and prove that obesity cycles in Australian families can indeed be broken.1

The 18 March 2013 episode featured the contestants’ first ‘weigh-in’ where each parent and child team was weighed in front of the other contestants and the trainers, and their combined weight recorded. During the weigh-in, the contestants were prompted to make comments about their weight and how it made them feel, as well as what they hoped to get out of the Biggest Loser experience. The episode also covered the contestants’ first exercise training session, and finished with a segment where pairs of contestants were confronted with video footage predicting how the child would look by the time they were their parent’s age, if no lifestyle changes were made.

The 2 April 2013 episode included footage of two contestants being rewarded with a visit from their partners, fitness training sessions and a ‘challenge’ segment. The challenge involved the contestants competing against each other (in a task requiring them to keep one arm above their head while balancing on a beam) to win immunity from being voted out of the competition. The episode also included a segment where one of the trainers instructed the contestants on how to prepare a healthy breakfast.

The part of the 2 April 2013 episode that the complainant has identified for investigation involved an altercation between trainer M and one of the contestants (R) during a training session. During the exchange M tells R to increase the incline on the treadmill he is working on. Eventually, R does increase the incline, and M states ‘did we need to have that argument’. The scene concludes with M commenting (after the event), ‘I will be calling the shots R, shut up.’

The full transcript of this exchange is at Attachment A.

AssessmentThis investigation is based on submissions from the complainant, correspondence between the complainant and Channel Ten and a copy of the episodes provided to the ACMA by Channel Ten. Other sources have been identified where relevant.

In assessing content for compliance with the Codes, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ viewer.

Australian courts have considered an ‘ordinary, reasonable’ reader (or listener of 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.2

In considering compliance with the Codes, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn.

Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then determines whether that material has breached the Code.

1 http://staging.thebiggestloser.com.au/the-show.htm 2 Amalgamated Television Services Pty Ltd v Marsden (1998) NSWLR 158 at 164-167.


3

http://staging.thebiggestloser.com.au/the-show.htm

Issue 1: Provoke or perpetuate intense dislike, serious contempt or severe ridicule

Relevant Code clauseProscribed Material

1.9 A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to:

1.9.6 provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference.

Complainant’s submissionsThe complainant submitted to the licensee that it had breached clause 1.9.6 on the basis that:

Obesity is defined by the World Health Organisation as a disease. It is also a cause of disability.

The Australian Institute of Health and Welfare (http://www.aihw.gov.au/disability-associated-wth-chronic-diseases) defines disability as ‘one or more of 17 limitations, restrictions or impairments which have lasted or are likely to last, for a period of six months or more, and which restrict a person’s everyday activities’...

[...] chronic or recurrent pain or discomfort causing restriction shortness of breath or breathing difficulties causing restriction [...] restriction in physical activities or in doing physical work disfigurement or deformity [...] any other long term condition resulting in a restriction

The Australian Institute of Health and Welfare recognises that the concepts of functioning and disability involve a range of body impairments and activity limitation. The Disability Discrimination Act (DDA) of 1992 provides a similar definition, but is wider than that of the ABS and includes discrimination on the basis of imputed disability. A person whose weight (or lack of it) actually impairs his or her functioning would be covered by the DDA.

Accordingly it seems unequivocal, in an Australian context, that many obese people as compared to non-obese have varying degrees of disability consequent upon their obesity.

The evidence that this section of the Code has been has been breached includes the following:

Australian research showing that viewers of the program developed negative attitudes towards obese people (Attachment 1).

The portrayal of the contestants provokes contempt and ridicule which is evident in the numerous comments made on twitter (Attachment 2).

...Stereotypes held about overweight and obese people have resulted in pervasive levels of discrimination. Messages exhorting obese people to eat less and exercise more may do little except increase the stigmatism and levels of despair experienced by them.

Licensee’s submissions


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http://www.aihw.gov.au/disability-associated-wth-chronic-diseases

http://www.aihw.gov.au/disability-associated-wth-chronic-diseases

The licensee submitted in its response to the complainant that:

The Biggest Loser has a long history of helping people – both participants and viewers – address their weight issues and helping them lead healthier lives. The show is about a complete lifestyle change. For the contestants, the program provides the opportunity to focus on change without any other distraction and with a strong support network. The Biggest Loser: The Next Generation has a particular focus on demonstrating that obesity cycles in Australian families can be broken.

... Nor, to the extent that obesity falls within the scope of clause 1.9.6, is the program likely to provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or a group of persons on the grounds of disability.

FindingThe licensee did not breach clause 1.9.6 of the Code.

ReasonsIn determining whether the licensee has breached clause 1.9.6, consideration must be given to the following:

identification of the relevant person or group and the relevant ground; and

whether the broadcast provoked intense dislike, serious contempt or severe ridicule against the relevant individual/group on that ground.

The ACMA’s interpretation of clause 1.9.6 of the Code is outlined at Attachment B.

Research and Twitter To support its submission that Channel Ten breached 1.9.6 the complainant has provided material including:

An Australian research paper ‘“Cheapening the Struggle”: Obese People’s Attitudes Towards The Biggest Loser’ that reports on the perceptions of obese people of the program and its impact on both their own and other people’s attitudes towards them.3

A selection of comments posted on social media site Twitter about the Biggest Loser program and/or contestants on the program.

The ACMA notes that the research, published in Obesity Management in October 2007, was an in-depth qualitative study with 76 participants.

Although the research pre-dated the episodes and did not relate specifically to them, it found:

69 of the study participants had watched the Biggest Loser at least once.

35 of the participants identified with the personal struggles of the contestants

54 thought the basic concept of the show was a negative one – the show used ‘weight as entertainment,’ was like ‘a side show at some kind of circus,’

11 were concerned about the public humiliation of contestants – in particular showing them binge eating or making them wear revealing exercise clothes

3 http://online.liebertpub.com/doi/abs/10.1089/obe.2007.0065


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51 thought the core concept of the show – weight loss through healthy eating and ‘supported’ exercise was a good one but was unrealistic for people suffering from obesity

Participants had 4 key criticisms:

1. the show’s approach was unrealistic, unaffordable and inaccessible

2. the rate at which contestants lost weight was unhealthy, dangerous or unsustainable

3. the show gave the impression that obese people can change if they are bullied, shamed and degraded

4. the show has a negative impact on societal perceptions of people living with obesity

The criticisms support the hypothesis that the messages viewers were receiving from the Biggest Loser included that ‘big weight loss is possible and all you have to do is apply yourself’ and ‘any one can lose weight if he or she just has the will power’.

The messages were applicable to (then) current approaches to obesity, including the continued acceptance of damaging social stereotypes about obesity resulting in experiences of stigma and discrimination.

It concluded:

At an extreme level, ‘the Biggest Loser’ reflects the general views and attitudes of our society towards obesity. It does little to offer sustainable strategies for weight loss and improved health outcomes at the individual, community or population levels. And it promotes an excessive ‘quick fix’ response to weight loss...

The Twitter comments provided by the complainant are described as ‘A relatively small selection of what is appearing in Social Media, in this case #BiggestloserAu on twitter mostly from the past 3-4 days’. The list is not dated, but attached to correspondence to the licensee of 5 April 2013.

Although the research and Twitter comments do not specifically refer to the particular episodes which are the subject of this investigation, they have been considered in the context of the assessment of clause 1.9.6 of the Code below.

The matters the ACMA take into account in interpreting clause 1.9.6 of the Code are set out at Attachment B.

The relevant groundThe complainant submits that the episode of The Biggest Loser – Next Generation broadcast on 18 March 2013, and the identified segment from the episode broadcast on 2 April 2013 provoked contempt and ridicule against obese people. In doing so, it characterised obesity as a ‘disability’ for the purposes of clause 1.9.6.

The ACMA notes that the definition of disability in the Disability Discrimination Act 1992 (Cth) includes circumstances where a person has total or partial loss of their bodily functions, or malfunction of a part of their body.4 The ACMA accepts the complainant’s submission that in some cases, obesity can cause bodily impairments that impact on an obese person’s functioning. In these cases, obesity may be considered a disability.

The ACMA is, therefore, satisfied that the relevant group is people who are disabled by obesity and the relevant ground is disability for the purposes of clause 1.9.6 of the Code.4 Section 4, Disability Discrimination Act 1992 (Cth)


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Provoke or inciteAs outlined at Attachment B, the ACMA must consider whether the program was likely to stir up, arouse or stimulate an audience to feelings of intense dislike, serious contempt towards persons who are disabled by their obesity. The content must include something more than the use of words that merely convey a person’s intense dislike, serious contempt or severe ridicule towards a person:

There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.5

Intense dislike, serious contempt or severe ridicule

Clause 1.9.6 sets a high threshold for the likely effect of proscribed material. The definitions of ‘intense dislike’, ‘serious contempt’ and ‘severe ridicule’, as outlined at Attachment B, indicate that the Code contemplates a very strong reaction to the prohibited proscribed material.

In addition, Clause 1.9.6 imposes a high threshold in order for the material to be found in breach. The phrase ‘likely in all the circumstances’ imposes an objective test6 that requires a real and not remote chance or possibility7. The use of the words ‘intense’, ‘serious’ and ‘severe’ indicate that the Code contemplates a very strong reaction. It is not sufficient that the broadcast would be likely to induce a mild or even strong negative response or reaction.

The complaint is that viewers of the program developed negative attitudes to towards obese people and that the portrayal of the contestants provokes contempt and ridicule. Stereotypes about obese people result in discrimination and messages exhorting obese people to eat less and exercise more may increase stigmatism.

The ACMA notes that the research supports the argument that some viewers have negative attitudes towards obese people.

However, the ACMA considers that the requisite element of provocation or incitement was absent from each of the episodes identified by the complainant. There was no inflammatory language and there were no strong or explicit terms of condemnation, or expressions of dislike, contempt or ridicule towards contestants, people with obesity or those disabled by obesity. Further, there was no engagement with the audience appealing to it to respond in this way to people on the basis of obesity or disability caused by obesity.

Messages exhorting obese people to eat less and exercise more and the presentation of unrealistic methods of weight loss are not expressions of dislike, contempt or ridicule.

To the extent that negative feelings and feelings of dislike, contempt or ridicule were evoked by the episodes, the material broadcast was not strong, intense or inflammatory enough to be construed as urging the ordinary reasonable viewer to feelings of dislike, contempt and ridicule to the level required at clause 1.9.6 of the Code.

While the Twitter selection indicates that some individuals have used social media site to air negative comments about Biggest Loser contestants, conversely, there is also evidence that some Twitter users empathise with the contestants on the show. The ACMA considers that the sample reaction of Twitter users is not evidence of the response of the ordinary,

5 Trad v Jones & anor. (No. 3) [2009] NSWADT 318 at [161].6 Creek v Cairns Post Pty Ltd (2001)112 FCR 352 at 12.7 See discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD

773 at 778-779.


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reasonable viewer to the episodes under investigation. Additionally, while some comments indicated feelings of contempt and ridicule they did not generally demonstrate feelings to the level specified in the Code (serious contempt or severe ridicule) and none demonstrated that these were responses to any exhortation to share such feelings by the cast of the program.

It is acknowledged that the episodes of The Biggest Loser – Next Generation contain some segments that could encourage moderately negative perceptions of obese people. For example:

During the ‘weigh-in’ in the 18 March episode, contestants are weighed with their shirts off or in crop tops, and footage is shown of them eating fatty foods prior to the start of the competition; and

In the 18 March episode, video footage is shown which predicts how each child contestant will look by the time they are their parent’s age, if they don’t alter their lifestyles – in most cases, the photographic predictions are unflattering and have the effect of ridiculing and upsetting the contestants.

However, the ACMA does not consider that the episodes contain material that would be likely to provoke, serious contempt or severe ridicule against obese people or those disabled by obesity. In coming to this conclusion the ACMA has taken into account the following:

While the episodes contain some unflattering footage, they do not contain any derogatory or offensive statements about obese people or inflammatory language that the ordinary reasonable viewer would understand to be an exhortation to share feelings of contempt or ridicule about the contestants or other obese people;

During the episodes, contestants are given firm but positive encouragement by the trainers and are motivated to continue training and dieting to lose weight, examples include:

o ‘Every time you guys feel like having a cigarette, I want you to remember this moment!’

o ‘That fear – let it drive you’

o ‘Yesterday you stood on those scales and you said that your weight doesn’t affect you. Are you freakin’ kidding yourself?’

o ‘You just take that anger, you take that frustration, and you turn it around. It’s day one. I don’t expect you to be a superstar.’

The program continuously seeks to obtain the contestants’ perspectives on how they are dealing with the challenges thrown up by the programs, how they feel about the state of their bodies, and how they intend to go about improving their health. This my have the effect of allowing the audience to identify and empathise with the participants;

The contestants on the program regularly make statements affirming their desire to remain on the program to lose weight, and refer to their participation as an ‘opportunity’. Examples include:

o ‘From this point onwards, it’s an opportunity for me to help [J] to change her life and for me to change mine, and the rest of my kids.’

o ‘Bring it on”

o ‘You trainers are going to see... the heaviest guy on this show do some bloody unbelievable things when we get training. Damn straight.’


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While the footage of ‘weigh-ins’ and contestants eating may be considered harsh or unflattering to individual participants, it is relevant and justified in the context of the program, which has as its core purpose the coverage of a weight loss competition. Participants are interviewed about the weigh-in and express their fears and anxiety on a number of occasions, thereby further allowing the audience to identify with them and understand their state of mind;

The method of predicting how younger contestants could look when they are older is used as a tool to motivate contestants to continue to lose weight and ‘not become that person’. It contains no derogatory or inflammatory language, and as it is conducted by a health commentator, Dr Norman Swan, the tone is objective. In this context, the exercise has the purpose of discussing the long-term detrimental health effects of obesity as opposed to provoking ridicule or contempt in the contestants on the basis of their disability.

In relation to the excerpt of 2 April 2013, the ACMA notes:

The activity featured, a contestant on a treadmill, would not have been an unexpected challenge in the context of a weight loss competition

The contestant participated voluntarily in the program and the exercise

The altercation with M concerns the setting for the treadmill, comments about the argumentativeness of the contestant and his daughter, and M’s assertion that, as the trainer, she will be ‘calling the shots’.

It did not include any direct language that could be understood by the ordinary reasonable viewer as urging him or her to feelings of intense dislike, serious contempt or severe ridicule on the grounds of the contestant’s obesity or disability.

The ACMA acknowledges the concerns of the complainant about the impact of negative attitudes to obesity and the possibility for people to feel stigmatised as a result of stereotypes about obese people. However, in the case of the two episodes under investigation the high threshold test for a breach of clause 1.9.6 has not been met.

Accordingly, the licensee has not breached clause 1.9.6 of the Code.

Issue 2: Present participants in a reality television program in a demeaning or exploitative manner

Relevant Code clause

Proscribed Material

1.9 A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to:

1.9.7 present participants in reality television programs in a highly demeaning or highly exploitative manner.

Demeaning: A depiction or description, sexual in nature, which is a serious debasement of persons, or a group of persons, within a program.

Exploitative: Clearly appearing to purposefully debase or abuse a person, or group of persons, for the enjoyment of others, and lacking moral, artistic or other values.


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Complainant’s submissions

The complainant stated that the licensee has breached clause 1.9.7 on the basis that:

The Biggest Loser is not an artistic work, comedy or satire. There is no academic, artistic or scientific purpose, and it is not a report of a matter in the public interest. The participants are subject to tactics that induce guilt, shame and fear. A reasonable person would easily form the view that the contestants are demeaned and exploited. Again this is evident from the “twitter feed”.

Licensee’s submissions

The licensee submitted in its response to the complainant that:

Network Ten and Shine Australia (the producer of The Biggest Loser: The Next Generation) are fully aware of the duty of care we have towards all contestants. We take that duty of care very seriously and we understand our responsibilities.

All contestants work with highly qualified and professional trainers, nutritionists and psychologists. The well-being of the contestants is always our number one concern....

...B]y agreeing to compete in the program, the participants consent to the exercise and diet regime recommended by the program’s panel of health and fitness experts. The format and characteristics of The Biggest Loser are well understood by both participants and viewers. Similar to personal training sessions, participants are at times encouraged and challenged in various exercises but of course retain at all times the ability to decline to take part in, or cease participating in, a particular exercise or the program generally. The focus of this series continues to be on a collaborative, educational and supportive weight loss environment.

....While acknowledging you hold a different view, we consider the participants are not presented in a highly demeaning or exploitative manner.

FindingThe licensee did not breach clause 1.9.7 of the Code.

ReasonsFor a breach of clause 1.9.7 of the Code to occur, a broadcast must be likely, in all of the circumstances, to ‘present participants in reality television programs in a highly demeaning or highly exploitative manner’.

Use of the word ‘highly’ indicates that the Code contemplates an extreme scenario and sets a strong test for the prohibited program material. It is not sufficient for the material to present participants in a reality television program in a demeaning or exploitative manner. The participants must be presented in a highly demeaning or highly exploitative manner for a breach of the Code to occur.

A breach of the Code can occur if either of the two parts of the clause is satisfied. The ACMA has considered the broadcasts against each of the two parts.

Highly demeaning


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To fall within the definition of ‘demeaning’ that forms part of clause 1.9.7 of the Code, the depiction or description of a person must be ‘a serious debasement’ of those persons and that serious debasement must be ‘sexual in nature’ (emphasis added). The ACMA has carefully reviewed all of the broadcast material and notes that there is no evidence of depictions or descriptions that were sexual in nature in these broadcasts.

The ACMA is satisfied that the contestants were not, in all of the circumstances, presented in a ‘highly demeaning’ manner in the sense contemplated by clause 1.9.7 of the Code.

Highly exploitative

To fall within the definition of ‘exploitative’, that forms part of clause 1.9.7 of the Code, a program must clearly appear to ‘purposefully debase8 or abuse9 a person or group of persons for the enjoyment of others’.

The Biggest Loser competition, by its nature, involves pressures and challenges, and is premised on the goal of weight loss. As outlined above it is promoted on its website as being ‘all about the Next Generation and tackling the cycle of generational obesity’.

The Biggest Loser franchise follows a well-known format and consequently the type and nature of the challenges featured in the broadcasts would have been understood by the contestants before they participated.

In the episodes reviewed by the ACMA, the contestants participate in various activities that appear designed to test their physical and mental strength, including:

The 18 March 2013 episode features the first ‘weigh-in’ for the season, whereby each pair of contestants is weighed in front of the other contestants, and their weights tallied and discussed;

The 18 March 2013 episode features a segment where the child of each pair is shown computer-generated video footage predicting their appearance as they age, if they don’t make changes to live a healthier lifestyle – the footage in most cases is unflattering and visibly upsets the contestants;

The 2 April 2013 episode features a challenge where the contestants compete against each other to see who could hold their arm above their head for the longest time while balancing on a beam. Each contestant’s arm is attached to a container of water that empties on them when they put their arm down;

Both episodes feature training sessions where the trainers push the contestants to perform various exercise routines – often the trainers can be seen yelling at the contestants in order to get them to move faster or increase the intensity of a task. An example of this is the exchange the complainant has identified between M and R in the 2 April 2013 episode.

The ACMA notes that the program contains a well-known and predictable formula; one with which both the participants and the audience are familiar. Furthermore, the program also made the point clear that weight loss, and measuring that weight loss, was the core goal of the exercise. The participants are fully aware of the nature of the program, the kinds of physical and emotional challenges they are likely to encounter and that form part of the rigours of participation.

8 The Macquarie Dictionary online relevantly defines ‘debase’ as: ‘to lower in rank or dignity’.9 The Macquarie Dictionary online relevantly defines ‘abuse’ as: ‘to do wrong to; act injuriously

towards’.


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Consent and pre-knowledge are factors in determining whether the involvement of contestants in challenges or competitions of the type featured on the program amounts to those contestants being presented in a ‘highly exploitative’ manner.

The ACMA is satisfied that even though the contestants would not have been aware, in advance, of the exact nature of some of the challenges and training sessions that they would be faced with whilst being on the program, they would nevertheless have been familiar with the program’s format, and aware that they would be subjected to numerous challenges (sometimes of a difficult or uncomfortable nature) once they entered the competition. None of the challenges appear to be outside the scope this well known format.

Further, while the contestants were placed under a degree of pressure to take part in the challenges and training sessions, they were also free to withdraw from the competition at any moment.

It is also noted that the audience is similarly well-acquainted with the nature of the program, and that the constant interviews with the participants, exploring how they are dealing with the show’s challenges, further allows the audience to appreciate the nature of what they are enduring and to identify with the contestants.

In both episodes contestants make positive statements about participating in the program, and demonstrate a desire to participate in and win challenges in order to remain in the competition.

The ACMA also considers that while the exchange between M and R in the 2 April 2013 episode escalated, R was not portrayed as a submissive contestant. Rather, R appeared confident to stand up for himself and resist M’s attempts to push him to train harder. Again, the challenge would not have been unexpected, and the contestant would not have been taken unawares by it.

Further, for a breach of clause 1.9.7 to have occurred any exploitative conduct must be to a high level. The ACMA considers that, to the extent that any contestant may have felt exploited, it was not to the level of intensity required by the clause.

Consequently, the ACMA considers that the contestants were not ‘presented in a highly exploitative manner’ within the meaning of the term contemplated by clause 1.9.7 of the Code.


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Attachment AExcerpt from 2 April 2013 episode of The Biggest Loser – Next Generation - Transcript

[Screen shows training room with contestant R on the treadmill]

M: [R], let’s see if we can get that incline up.

R: It’s up, I’m doing what I can, that’s where it’s staying

M: Take it up

[Switches to footage of R speaking to camera, recorded after the event]

R: I was already at 6 on an incline and a 7 on speed and it was really hurting.

[Switches back to the training room]

R: I’ll put it up [M], it’s on 7.

M: Thank you, thank you. Did we need to have that argument?

R: No. I wasn’t argumentative. You were.

M: Goddamn it man, why have you always got to have the last fricken word?

R: I don’t.

[Switches to footage of R speaking to camera, recorded after the event]

R: I respect [M] 100%, but if she’s going to get into my face, I’m going to get into her face, and I don’t care what she says.


R: Lay off a bit, for Christ’s sake. I’m busting my arse here. I’m 45 and overweight.

M: You’re not the only one.

R: Yeah

[Switches to footage of M speaking to camera, recorded after the event]

M: [R] wonders why [his daughter] answers him back. She’s cut from the same cloth. [R] doesn’t shut up. He can’t just suck it up and get on with it.


M: You have to have the last word, every single time [R]. What is it? Why?

R: Do you want me to answer you?

[Switches to footage of M speaking to camera, recorded after the event]

M: You know I understand that things are going to get fiery but I am the trainer, I will be calling the shots [R], shut up.


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Attachment BInterpretation of clause 1.9.6 of the Code

When a statute or code contains no definition, the ordinary English language meaning is used. The ACMA adopts the ordinary English language meanings of the word ‘provoke’ as relevantly set out in the Macquarie Dictionary (Fifth Edition).

Provoke verb 2. to stir up, arouse or call forth;

3. to incite or stimulate (a person etc. to action)

In deciding whether there has been a breach of clause [1.9.6] of the Code, the ACMA has considered whether an ordinary reasonable listener/viewer would regard the programs as ‘likely, in all the circumstances’ to stir up, arouse, or call forth or to incite or stimulate serious contempt or severe ridicule.

Incitement or provocation can be achieved though comments made about a person or group; there is no requirement that those comments include a specific call to action. There is no need for proof of intention to incite or that any one was in fact incited.10 The relevant conduct must have the capacity or tendency to incite others, in the sense of urging, promoting the audience to experience the relevant reaction. Conduct that merely conveys a person’s hatred of, intense dislike, serious contempt or severe ridicule towards a person is not unlawful.

There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.11

‘Intense dislike’,

The Macquarie Dictionary (Fifth Edition) includes the following relevant definitions:

serious adjective 5. weighty or important; 6. giving cause for apprehension; critical

contempt noun 1. the act of scorning or despising; 2. the feeling with which one regards anything considered mean, vile or worthless

severe adj 1. harsh, harshly extreme

ridicule noun 1. words or actions intended to excite contemptuous laughter at a person or thing; derision.

The meaning of the term ‘severe ridicule’ has been considered in a number of cases dealing with vilification on prohibited grounds, most notably in the context of homosexual vilification.

In relation to ‘ridicule’, the NSW Administrative Decisions Tribunal (ADT)12 said of the test in section 20C of the NSW Anti-Discrimination Act (1977) that the words should be given their ordinary dictionary meaning and then quoted the following from definitions set out in Kazak v John Fairfax Publications.13

‘ridicule’ means ‘subject to ridicule or mockery; make fun of, deride, laugh at’ (Oxford); ‘words or actions intended to excite contemptuous laughter at a person or thing; derision’ (Macquarie).

10 Kazak v John Fairfax Publications [2000] NSWADT 77 at [23-29].11 Trad v Jones & anor (No 3) [2009] NSWADT 318 at [61]12 Burns v Dye [2002] NSW ADT 3213 NSW ADT at 40


14

Use of the words, ‘serious’ and ‘severe’ indicate that the Code contemplates a very strong reaction and sets a high test for the prohibited behaviours.14 It is not sufficient that the behaviour induces a mild or even strong response or reaction.15

In relation to the concept of ‘severe’ the New South Wales Administrative Decisions Tribunal said, in the case of Burns v Laws16:

‘severe’ is a qualifier but there is no sharp dividing line between ‘ridicule’ and ‘severe’ ridicule. In any case where the issue arises, a value judgement must be made.

14 The definition of ‘severe ridicule’ is addressed in more detail at pages 13 and 14 of this investigation report.

15 The ACMA has set out this test before in relation to the consideration of these elements of the code. See for example, Investigation 1909 – 12 February 2009

16 (No. 2) [2007] NSWADT 47


15

Documents

media/Broadcasting... Web viewis sure to surprise, ... in the case of the two episodes under investigation the high threshold test for a breach of clause 1.9.6 has not been