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A recent ACMA investigation found Andrew Bolt did not breach the commercial TV code of practice. AAP/Mick Tsikas

Andrew Bolt and ACMA: should ‘hyperbole’ get in the way of accuracy?

Andrew Bolt is a living media ethics case study who just keeps giving.

After a 2011 court case in which Bolt was successfully prosecuted for breaching the Racial Discrimination Act, the Australian Communications and Media Authority (ACMA) recently found his TV show, The Bolt Report, did not breach the Commercial Television Industry Code of Practice (2010) for its handling of a graphic representing a “warming pause”.

Although quite different in substance and topic from racial discrimination, the ACMA case raises similar questions of fair and accurate reporting, the clash over facts, fair comment and the right of readers and viewers to be fully informed.

Fair and accurate reporting

Expectations of fair and accurate reporting are deeply embedded in the fabric of Australian media regulation. The first clause of the journalists’ code of ethics is the most visible expression of this standard in Australia:

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

The Australian Press Council’s first “general principle” goes to accuracy and clarity:

Ensure that factual material in news reports and elsewhere is accurate and not misleading, and is distinguishable from other material such as opinion.

And the 2010 Commercial Television (Free-to-Air) Code of Practice, now superseded by the 2015 code, continues the theme:

In broadcasting news and current affairs programs, licensees:

  • must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program; an assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.

In broadcasting news programs (including news flashes) licensees:

  • must present news fairly and impartially;

  • must clearly distinguish the reporting of factual material from commentary and analysis.

The codes embody a “news not views” framework. If is not news, it must be clearly distinct as such – in the words of the Press Council, made “distinguishable from other material such as opinion”.

Sometimes this is done through direct labelling of a piece as editorial, or even advertorial, but at other times the work of demarcation is felt to be done at genre or program level. That is, certain kinds of programs are not required to declare a departure from news because they represent an ongoing discussion of views, opinions and interpretations.

For example, under the 2015 code:

Current affairs programs are not required to be impartial and may take a particular stance on issues.

Fair and accurate reporting standards run deep, and not just in media regulation. It underpins several defences protecting news reporting under wider Australian law.

The clash over facts

Facts don’t speak for themselves but are extrapolated in particular regimes so that they become truth. This particular Bolt case puts two systems into conflict: science and the quasi-judicial.

The science regime is one activated by the original complaints:

I would call into question the graph used by Mr Andrew Bolt on his program “The Bolt Report” aired on 8 Nov 2015.

It is a small section of a much larger graph that clearly shows climate change is increasing as predicted by science, taking small sections of larger graphs is neither accurate nor scientific.

It is a way to manipulate data to give a false impression of the overall problem. I would request that you seek good science-based evidence to check Mr Bolt’s claims that his graph shows a hiatus in climate change and ask him to correct his statements and apologise for what appears to be the deliberate spreading of incorrect information.

If the scientist who compiled the chart says that Mr Bolt’s interpretation of it is wrong then it is fairly obvious that Mr Bolt’s comments and the information he has given is wrong.

The Project host Waleed Aly activated this regime in his discussion of Bolt’s comments. The show interviewed Carl Mears, the author of the graph Bolt used, who said:

When you do real science you can’t just use the data sets that fit your pre-drawn conclusions, but you really need to look at all the data together.

In particular, Mears complains about the selective use of satellite data over surface data sets.

This regime takes offence at the provision of a graph that shows data from the last 18 years, but excludes the rest of the data set that goes back to 1979.

Advocates of this regime might pick up a flaw in a basic assumption made by ACMA:

The ACMA considers that Mr Bolt used the term ‘warming of the atmosphere’ in a general, non-scientific sense, and that it is sufficiently broad in meaning to include surface air temperatures, which are a measure of the heat present in the atmospheric layer immediately above the land and surface of the ocean.

As someone who has discussed climate change extensively, it is questionable whether Bolt should be judged as using “the term ‘warming of the atmosphere’ in a general, non-scientific sense”. Similarly, should phrases such as “warming pause” be deemed to summarise the claim gleaned from a report that:

The observed global-mean surface temperature has shown a much smaller increasing linear trend over the past 15 years than over the past 30 to 60 years.

The second regime is a quasi-legalistic one. The ACMA judgment has a clear procedural progression. First, you ask: “Was the material factual in character?” Then, you ask: “If so, was the (factual) material accurate?”

This legalism is in action in the ACMA judgment, in the requirement that:

The accuracy requirements in the code only apply to statements of fact and do not apply to statements of opinion. The statement that ‘there has been no real warming of the atmosphere for around 18 years’ was specific, unequivocal and capable of independent verification. Mr Bolt’s concluding statement about choosing ‘facts over fear’ further indicated that the statement was an assertion of fact.

The statement was accompanied by a full-screen image of a graph. The words ‘as I keep showing you’ would have suggested that the graph was presented as evidence in support of the factual assertion about the pause.

Bolt’s comments are situated as comments of fact, rather than opinion. This is the basis of the decision. However, ACMA’s “considerations for determining factual content” says:

The ACMA will have regard to all contextual indications (including subject, language, tenor and tone and inferences that may be drawn) in making its assessment.

In considering this aspect, ACMA concluded:

Much of Mr Bolt’s language was hyperbolic, such as, ‘great global warming scare campaign’, ‘Australians aren’t stupid’, ‘can’t be fooled for long’, ‘all that propaganda’, ‘scaremongers’, ‘there’s been no Armageddon’ and ‘no wonder’. The use of hyperbole indicated that Mr Bolt was giving his subjective personal opinion about the matters being discussed and was not presenting a concluded scientific position about global warming in the segment.

This is the finding’s most confusing aspect. Exploring hyperbole satisfies the requirement for determining factual content by looking at language and tone. But, at the same time, this exploration undermines the baseline decision to treat the project as statements of fact rather than statements of opinion.

It is no surprise Bolt has taken umbrage with the idea that his reports were hyperbole, meaning exaggerated statements or claims not meant to be literally. The reason he draws on a graphic in the first place is to impress a literal reading on the viewer.

Returning to ACMA’s treatment of hyperbole, readers may well wonder: are we dealing with fact or opinion, and where does that leave “the accuracy requirements of the code”? Indeed, ACMA’s guidelines say:

Statements containing hyperbole will rarely be characterised as factual material.

The ACMA decision sidesteps this issue by focusing on statements of fact:

The ACMA therefore finds that, in the context of the segment in its entirety, Mr Bolt’s statement about there being no real warming of the atmosphere over the last 18 years, and the graph used to support that statement, comply with the code.

In other words, Bolt’s claim of “no real warming of the atmosphere over the last 18 years” is sufficiently supported by the graph as to not breach the requirement that licensees:

… must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program.

The ‘hyperbole defence’ and responsibility to inform

So, Fairfax Media is not quite right to report this matter as a question of the regulator saying Bolt is too hyperbolic to be factual. This observation was not core to the issue of Bolt’s use of “statements of fact”. But the introduction of hyperbole into ACMA’s reasoning introduces an ambiguity as to why exactly no breach was found – an ambiguity the Fairfax report captures nicely.

Several elements of the judgment are disquieting and raise further questions.

The first is the way the complaint is handled as a complaint about the use of a graph, when broader issues of accuracy and fair report are touched on by the code’s requirement that reports “must present factual material accurately and represent viewpoints fairly”. Why is the full graph not treated as a viewpoint in its own right?

A narrow focus on the graph rather than the views it embodies allows the licensee to argue “his comments correlate to the graph provided”. It allows ACMA to state Bolt is correct in saying there has been “no real warming” without any discussion of the “real” at all.

The second question has to do with the code’s requirement that:

An assessment of whether the factual material is accurate is to be determined in the context of the segment in its entirety.

ACMA could have looked beyond the graph to consider the matter of accuracy more broadly. It might have come to the same conclusion, but at least the logic of the argument would be more satisfying. The entire segment is a defence of the claim that “the great global warming scare campaign has failed” by referring to a CSIRO survey that confirms Bolt’s view that:

We have more sceptics now than believers … Nearly 46% of Australians say they believe humans are mostly to blame for the warming we’ve seen, but they’re outnumbered by the nearly 39% who say the warming is natural plus the 8% who think there’s actually been no warming, at least lately.

The graph is provided as an illustration of why Australians are thinking they way they are. Put this way, Bolt’s report could be defended as pure polemic: fair comment, honestly held, even if selective in its presentation of the graph.

A third, and perhaps most worrying issue, is the narrow picture of the relationship between facts and opinion that emerges from Bolt’s report and the ACMA case. The ACMA judgment focuses in on a particular claim, that “there has been no real warming of the atmosphere for around 18 years”, but there are other issues at play in the report to do with the handling of scientific data and viewpoints.

There is a wider responsibility to inform the public that is not being considered. A legal construction of statement of facts falls short of the complaints’ general expectations of accuracy.

Basic questions remain unanswered. These include:

  • Is it really OK to selectively present scientific research in this way? Does this satisfy accuracy?

  • Does a statement of fact really provide immunity to wider expectations of presenting factual material accurately and representing viewpoints fairly?

As the Australian media move more toward “views” rather than “news”, these distinctions will become trickier to draw and navigate.

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