Committee on Environment, Communications and the Arts.
Budget Estimates for 2008-09 (Supplementary hearings)

Senator LUDLAM-Thanks, Madam Chair. Just for a change of pace, I would like to ask about the regulation of subliminal advertising on television in Australia. Are you okay to take those?

Mr Chapman-Yes. Ms O'Loughlin and I will take the questions.

Senator LUDLAM-Great; thank you. Can you give us a brief overview of how subliminal advertising is regulated in Australia-just the broad brush.

Ms O'Loughlin-The commercial free TV code of practice contains provisions which require that the commercial broadcasters cannot transmit messages or advertising which are at the threshold of recognition. That is the technical term for what you have characterised as subliminal advertising. That has been in the code for a considerable length of time. As you will be aware, we recently breached Channel 10 for breaches of those code provisions in last year's ARIA presentations.

Senator LUDLAM-That is right. That is commercial free-to-air. What about pay TV and government owned stations, community stations?

Ms O'Loughlin-I think it is limited to free TV, but I might need to take that on notice.

Senator LUDLAM-I would not mind, if you could just confirm that-

Ms O'Loughlin-Yes, I would be happy to do that.

Senator LUDLAM-that the pay stations are not just blipping people with stuff in an unregulated fashion.

Ms O'Loughlin-I do not believe they are.

Senator LUDLAM-I would not have thought so.

Ms O'Loughlin-I am certainly happy to take on board the provisions of their codes.

Senator LUDLAM-I will talk about the ARIAs in a moment, but how prevalent is the practice? How many times a year are you alerted to these sorts of practices?

Ms O'Loughlin-I think this is the first complaint we have had in many years, probably since the code provisions were put into the code.

Senator LUDLAM-Is the code mandatory or voluntary?

Ms O'Loughlin-It is a co-regulatory code, so we can take action against the broadcaster for breaches of the code.

Senator LUDLAM-Can you define for me how and where ‘subliminal' is defined? What is the definition of it?

Ms O'Loughlin-It is not defined in the code, but we have taken the approach-and I need to check my notes on exactly what that one is-

Mr Chapman-The reference is clause 1.8 of the TV code, the Commercial Television Industry Code of Practice. It does not use the word ‘subliminal'. It says:
A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to use or involve any technique which attempts to convey information to the viewer by transmitting messages below or near the threshold of normal awareness. ‘Below or near the threshold of normal awareness' is what has been parleyed into ‘subliminal'.

Ms O'Loughlin-The approach we took was that we considered the threshold of normal awareness to be any image visible to the ordinary, reasonable viewer at normal speed and any image that lasted for three or more frames.

Senator LUDLAM-Three or more frames is okay, because that is above the threshold?

Ms O'Loughlin-Three or more frames is above. It is 24 frames per second for free to-air television, so three frames or above were okay.

Senator LUDLAM-That is about one-eighth of a second?

Ms O'Loughlin-About, yes.

Senator LUDLAM-Did you say you referenced that to the normal viewer? What was the language around who it is benchmarked against?

Ms O'Loughlin-Sorry?

Senator LUDLAM-Maybe if you could just read that short statement again as to the normal viewer.

Ms O'Loughlin-Certainly. There is not a definition in the code, but the approach we took was to look at the threshold of normal awareness as being any image visible to the ordinary, reasonable viewer at normal speed.

Senator LUDLAM-That was the ordinary, reasonable viewer.

Ms O'Loughlin-Yes.

Senator LUDLAM-Is that defined anywhere? It is an interesting term.

Ms O'Loughlin-It is a construct we use quite a lot in our broadcasting investigations to leave aside, say, our own prejudices and look at it from the point of view of just an ordinary, reasonable viewer and how they would view a program.

Senator LUDLAM-There is a huge diversity of people watching television. My question to you in this context is whether that is benchmarked against, for example, an adult's threshold of awareness or a child's. The three frames per second is perceptible to an ordinary, reasonable adult. Are you aware of how that might relate to child viewers, for example?

Ms O'Loughlin-No. I do not think we looked at that matter. We thought that the approach we were taking in the circumstances would help us, as the broadcasting regulator, to come up with what we needed to do, which was to investigate the matter and see whether or not we felt comfortable that the advertising was at the threshold of normal awareness, and this is the construct that we used to have a look at that.

Senator LUDLAM-Perhaps it is more worthwhile to take something like this on notice, but could you provide us with information about where that definition of the three frames per second came from and are you aware of any research in the field on how that threshold would be different for people of different ages?

Ms O'Loughlin-We certainly looked at some of the international investigations around this matter and how other jurisdictions have used it, so I am happy to take that on notice and give you a more complete answer.

Senator LUDLAM-What is the maximum penalty for when a station does knowingly breach the code?

Ms O'Loughlin-There are a range of sanctions available to us under the co-regulatory framework. In terms of codes, in the first instance they range from anything from a licence condition that we can impose on broadcasters through to media directions once those licence conditions are imposed. But in the circumstances of this particular investigation, as I mentioned, it was the first breach of this particular provision of the code by Channel 10 or any broadcaster and we did not feel that those heightened, escalated enforcement actions were necessary.

Senator LUDLAM-Even though, to me, it looked as though they were quite conscious and intentional breaches of the code?

Ms O'Loughlin-I think the broadcasters put to us that it was an attempt by them to do something innovative in their advertising.

Senator LUDLAM-Did they really put that to you?

Ms O'Loughlin-That is what they put to us. I think we were concerned that it did breach the code provisions. I think Channel 10 put to us that they would certainly take very seriously the findings of the breach of the code and not pursue that short cut type of advertising again.

Senator LUDLAM-To your knowledge, that has not occurred?

Ms O'Loughlin-No, and I think the media release that we put out also put the other broadcasters on notice that the authority would take very seriously any further breaches of this provision, given the sensitivities of subliminal advertising in the community.

Mr Chapman-In addition to that, we took the more unusual step of writing to the other networks, with a copy of the determination, pointing out to them, and reiterating, what Ms O'Loughlin just indicated. We felt that it was a practice that would simply be unacceptable if it were to occur again. To take it outside the realm of the licensee or network and actually put it in front of the other networks was a more unusual step for us to take, but we took that step.

Senator LUDLAM-For what reason did it take 10 months for that investigation to be completed?

Ms O'Loughlin-I think any of the investigations we undertake rest on a number of common factors, including that there are requirements under the act in terms of how long broadcasters have to respond to complaints that come to them. From the time of the broadcast, the complaints originally go to the broadcasters themselves. The broadcasters have a period of time in which they can respond to complainants. The complainants then have some time to come to us if they are not happy with those complaints, which usually takes some time. We had a number of separate complaints come to us, so we put those together into one sort of chunk of investigation.