The world according to David Marr

marr.jpgI have a confession to make. I’ve started watching ABC TV Media Watch again, after swearing blind a year or so ago that I’d boycott it because of David Marr’s blatant, hypocritical bias.

He’s no less biased or hypocritical now, but Marr is an amusing, eccentric character in his own right. I get great amusement from watching him deal with a subject of which he deeply disapproves; invariably something to do with crass commercialism or behaviour by a right-wing media personality or politician. Marr purses his lips in prissy outrage, arching his eyebrow in coy disdain. You can see he’d much prefer to be wearing rubber gloves and a surgical mask while he prods his subject with a very long stick to avoid offending his delicate, refined sense of smell.

Monday night’s treatment of alleged misbehaviour by the Nine Network’s Today program was a vintage example of Marr in action. He had two allegations:

  • Today consistently exceeds the ABA’s rules for maximum advertising content (16 minutes per hour) by (on average) a minute or two between 8 and 9am each morning;
  • Sami Lukis’s roving weather reports each half hour are a species of disguised “advertorial” for the venues from which she presents them, and Nine is being naughty in not making “disclosure” of this fact.

The second point is easily dealt with, so I’ll dispose of it first.

Commercial TV is full of “lifestyle” and other programs that make a buck out of “advertorial” material. In fact some of them (e.g. Getaway) consist of little else. Marr seems to think viewers (except him) are complete fools who are incapable of appreciating this fact. But it’s self-evident. It may well be that the ABA Rules contain provisions about disclosure of advertorial sponsorship, and that Nine is technically breaching them. But (as Marr notes disapprovingly) the ABA system is one of co-regulation, and enforcement action will usually only be taken where a complaint is received. I have some concerns with the current co-regulation system (although a lot of them have been satisfied with David Flint’s departure), but complaint-based enforcement isn’t one of them. It’s entirely reasonable to assume that viewers who aren’t naive half-wits are quite capable of understanding that commercial plugs during programming are likely to have been a result of some form of sponsorship (even if it’s only free travel and accommodation for the presenter and crew), and that the lack of any complaints is because no-one except Marr and his ilk has a problem with it.

The problem with Marr’s take on the first allegation/dot point (exceeding hourly “non-program material” limits) is that the ABA’s own rules (Clause 5.2 of the Commercial Television Code of Practice) allow for these sorts of non-scheduled, inadvertent breaches. The relevant part of Clause 5.2 reads:

5.2.2 The amount of non-program matter set out in the Final Schedules for an hour must not exceed the hourly limit in Clause 5.7. The only exception permitted is where non-program matter originally intended to fall in one hour (Hour A) is scheduled in an adjoining hour (Hour B) because of the length of a program segment or segments. This exception is subject to the following conditions:

5.2.2.1 the station’s earlier schedule prepared prior to the determination of break start times shows that the non-program matter falling in Hour B was intended to fall in Hour A; and

5.2.2.2 no more than one break intended in the earlier schedule to fall in Hour A is scheduled in Hour B in the Final Schedules; and

5.2.2.3 the amount of non-program matter contained in that break in Hour B in the Final Schedules, when combined with the amount of nonprogram matter contained in Hour A in the Final Schedules, would not have exceeded the relevant limit for Hour A.

Now, whether Nine’s situation satisfies these conditions is something neither I nor Marr knows. But Nine certainly asserts that it satisfies the rules (as Marr sneeringly noted), and Media Watch didn’t present any cogent basis for disbelieving them. Marr tried to argue that the fact that Today exceeds the 16 minute limit so frequently between 8 and 9am somehow proves that this is a planned rather than unscheduled outcome. But why is that so?

In an incompletely-scripted program like Today that runs for several hours each day, and which includes frequent live crosses to locations all over Australia and the world, it will frequently be impossible to avoid having segments running longer than the scheduled time. The cumulative result will often be that the station will be forced to “catch up” and screen unmet but contracted advertising commitments during the show’s final hour (8-9am). I don’t see anything even slightly wrong with that, as long as the total number of minutes of advertising over the entire 3 hours of the program averages out to 16 minutes per hour. In fact I assume that this is precisely the sort of exigency at which Clause 5.2.2 is aimed.

Marr didn’t claim that Today failed to comply with the 16 minute per hour limit over its entire 3 hour duration, in fact he was conspicuously silent on that point, and you can guarantee he would have said something if they’d exceeded the limit in that global sense. David Marr is quite entertaining to watch, as long as you don’t take anything he says at face value.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Nope
Nope
2021 years ago

Ooh, a “technical breach”, but it’s okay because there’s no enforcement mechanism.

Ken Parish
Ken Parish
2021 years ago

“Nope”

Media Watch said only this about any “commercial arrangements”:

Media Watch approached the developers who confirmed they paid for what they called “an advertorial”.

It’s a very effective way of getting our awareness up.
-Ron Smith (LINK Group Media Communications) statement to Media Watch
However, whether this constitutes a breach of ABA rules depends on the nature of the payment. Rule 1.19 states:
If a licensee enters into a commercial arrangement in relation to a factual program, and the third party’s products or services are endorsed or featured in the program, the licensee must disclose the existence of that commercial arrangement.
Today is clearly “factual program”. But:
“Commercial arrangement”

Stan
Stan
2021 years ago

And not a thing said about Paul McGeough’s little stunt. Poor old Sammy will start getting a big head when her fluff pieces start getting more serious treatment than a SMH smear.

Maybe next week.

David Tiley
2021 years ago

“Today exceeds the 16 minute limit so frequently between 8 and 9am somehow proves that this is a planned rather than unscheduled outcome. But why is that so?”

Because it always happens, and it always happens the same way. They run under time in program content and put in more ads, which they can sell.

Advertorial masquerading as a weather report – an advertorial which they sold as such to people who paid for it as such.

There are several questions – are sharp lawyers getting around a misshapen regulatory system? Yes. Did the developers pay cash? No evidence of this in the program. Air fares and accomodation don’t have to be declared but money does..

Is this corroding the independence of the news? Matter of taste really. But I see commercial sponsorship and product placement sliding further and further into news, current affairs and television dramas. I don’t like it – there is a thing called integrity which is compromised.

We have been there before – interesting to see footage of Casey, for instance, in the fifties answering questions about Maralinga in the US on something called “The Longines Hour”, under a huge advertising banner.

I don’t like the way Media Watch picks nits – I haven’t liked it from the day it started. Snappy little capsule program attacking the superficiality of the media? That covers itself in hammily studied irony?

But I do think the targets are right. Channel 9 would surely do the minutes in the hour thing as a standard policy to increase revenue. Of course they do. And the regulatory system has been taken out and gutted by hypocrites.

The weather report should be the weather report. It is not a matter of whether (sic) people are fooled; it is simply that we should not have to watch the weather report and think “This bit is true and this bit isn’t..” The government provides the info and the citizens watch it cos they want to know about cold fronts scaring cows and how many jumpers to put in the school bag, not to know that some plastic joint in Queensland has a grouse queen sized bed.

The weather report is a public service. They provide it to hang on to viewers who might otherwise piss off, not for direct profit.

I presume Paul M.s “stunt” is the Allawi thing. I thought the jury was out on this and people are looking for evidence?

Ken Parish
Ken Parish
2021 years ago

Here’s another point inherent in “Nope’s” kneejerk reaction that’s worthy of examination. It’s the tacit assumption that there’s something dodgy, perhaps even corrupt, about not always enforcing a particular law (in this case rigorous disclosure of sponsorships), or alternatively (as here) making enforcement complaint-based rather than automatic and universal. Neither assumption is justified.

Two or three years ago in the NT, the Supreme Court held that the Ombudsman didn’t have jurisdiction to investigate alleged wrongdoing by police in the absence of a complaint. A media organisation had drawn allegations of wrongdoing to the Ombudsman’s attention, but had not lodged a complaint, and the Ombudsman had proceeded to investigate the matter of his own motion. The Court held he had no power to do so.

I have significant concerns about the Ombudsman’s police supervisory jurisdiction being complaint-based; there are numerous obvious public interest reasons why the Ombudsman SHOULD be able to investigate such matters of his own motion (not least that citizens might be inhibited for any number of reasons (e.g. fear) from loding a complaint themselves).

Those factors do not apply to complaints of breach of the Commercial Television Code of Practice. I see no reason why investigations of alleged breaches in that area shouldn’t be triggered only by consumer complaint.

On the broader question of whether all laws should always be enforced (in this case, whether the ABA’s failure to investigate Nine, merely because David Marr thinks it should have done so, should be regarded as reprehensible or dodgy), my favourite High Court Justice McHugh J explained the situation well in a passage from the Bateman’s Bay case a few years ago:
The enforcement of the public law of a community is part of the political process; it is one of the chief responsibilities of the executive government. In most cases, it is for the executive government and not for the civil courts acting at the behest of disinterested private individuals to enforce the law. There are sometimes very good reasons why the public interest of a society is best served by not attempting to enforce a particular law. To enforce a law at a particular time or in particular circumstances may result in the undermining of the authority of the executive government or the courts of justice. In extreme cases, to enforce it may lead to civil unrest and bloodshed.
Moreover, any realistic analysis of law, politics and society must recognise that not every law on the statute books continues to have the support of the majority of members of the community or always serves the public interest. Laws that once had almost universal support in a community may now be supported only by a vocal and powerful minority. Yet to attempt to repeal them may be more socially divisive than to allow them to lie unenforced. Moreover, the interests of a society arguably are often furthered by not enforcing particular laws. Some arguments supporting that view were powerfully articulated by Justice Scalia in an extra-judicial address:
“Does what I have said mean that, so long as no minority interests are affected, ‘important legislative purposes, heralded in the halls of Congress, [can be] lost or misdirected in the vast hallways of the federal bureaucracy?’ Of course it does – and a good thing, too. Where no peculiar harm to particular individuals or minorities is in question, lots of once-heralded programs ought to get lost or misdirected in vast hallways or elsewhere. Yesterday’s herald is today’s bore – although we judges, in the seclusion of our chambers, may not be au courant enough to realize it. The ability to lose or misdirect laws can be said to be one of the prime engines of social change, and the prohibition against such carelessness is (believe it or not) profoundly conservative. Sunday blue laws, for example, were widely unenforced long before they were widely repealed – and had the first not been possible the second might never have occurred.”

Ken Parish
Ken Parish
2021 years ago

David,

If it’s true that they’re running UNDER-TIME and then putting in more ads to fill it up, I’d agree that would be a clear breach that ought to be dealt with. But Marr didn’t say that. I’m suggesting that a likely explanation is that they run OVER-TIME (not undertime) in previous hours (i.e. 6-7, 7-8), leaving them with pre-committed ads that they could and should have shown during those previous hours, that they now have no practical choice but to show between 8 and 9am to satisfy contractual requirements. If it’s that latter situation, it’s perfectly OK and in accordance with Rule 5.2.2 (as long as the total number of minutes of commercials over the 3 hours doesn’t exceed the rule). I suggested that this is a likely explanation because of the inherently unpredictable nature of a program like Today in terms of running time of multiple segments over 3 hours. You’ll almost inevitably be running overtime more often than not, and the fact that that’s the case isn’t incriminating.

we should not have to watch the weather report and think “This bit is true and this bit isn’t..”
You don’t have to do that at all. The weather report is true, the rest is advertising. You don’t need to be Einstein or Sherlock Holmes.

Stan
Stan
2021 years ago

No David, the jury is not out–it never even made it to court or a jury –but perhaps we’ll wait a bit longer to see what the Iraqi Justice Minister has to say (besides bemusement). I don’t want to hijack Ken’s thread for today though I’ve plenty to say on this.

Maybe Ken can look at the Iraqi PM’s options (regarding libel law for Iraq based journalists publishing in Australian newspapers) in some future post.

Rex
Rex
2021 years ago

Ken,

You acknowledge that Nine may be “technically breaching” ABA rules regarding the weather report, and you quibble about Marr’s argument on the ad running time between 8 and 9.

You forget though to mention that Marr had a dig at Eddie Maguire’s conflict of interest earlier in his Nine expose.

There is a broad message here that Marr is pointing out pretty eloquently I think. Nine is more interested in the bucks than bothering with any easily ignored self regulation guidelines. Nine is not concerned about conflict of interest, or sticking to the letter of the law because they are more powerful than that. They are Nine, and they can safely ignore it.

Sure, the viewers know that its an advertorial, but does that make it right to breach the guidelines?

The purpose of the 3 examples was to show that Nine has power, and is not accountable.

Marr’s point was well made.

Ken Parish
Ken Parish
2021 years ago

Rex,

I don’t have a problem with the Eddie Maguire item. It was a separate segment. I don’t know whether the advertorial payments are breaches of ABA rules, “technical” or otherwise, for reasons explained earlier. If they ARE breaches, I think it’s fair to label them “technical” (i.e. unimportant) for reasons I also explained earlier. And I’m not “quibbling” about the non-program material content between 8 and 9. I’m questioning whether it is a breach of the Rules at all, which is hardly a quibble. Marr didn’t provide enough information for us to know whether or to what extent Nine has been in breach of the Rules, but attempted to put the worst possible gloss on the situation for Nine. One would have thought that a more proper role for a program that purports to be a media watchdog would be to raise issues of concern in a scrupuloulsy fair way and give as much information about them as reasonably possible. My post is suggesting that this is yet another example of Marr not fulfilling that duty, but instead grinding personal and ideological axes.

Greg
Greg
2021 years ago

I’m with Rex on this one. It’s all very well to find Marr “prissy” and “coy”, but without Media Watch there is no-one, in TV land (plenty in the blogosphere, of course) watching the watchers. You can shoot the messenger and attack the message as much as possible; but 3 cheers for someone within the glass house throwing some stones.

As one gets older the thinly disguised commercials become more and more irritating, wasting my valuable time on trying to sell me something I don’t want to buy. I suppose its a fair cop sneaking hotel ads into Getaway and paver ads into Backyard Blitz, but when there is no context for sneaking ads into the weather (maybe rain gauges or thermometers at a pinch) and all you want is a bleeding min and max, you just want to scream.

Hip, hip hooray for Marr’s righteous indignation. Surely a little indignation is better than no indignation at all?

Ken Parish
Ken Parish
2021 years ago

Greg

I find advertorial stuff irritating as well. But I accept that TV station revenue doesn’t get generated from thin air. It comes from advertising, whether it’s the designated commercial spots themselves or advertorial programming. If commercial stations don’t generate the revenue, they can’t afford to produce or purchase the programming. And, as far as I can see, most viewers don’t object to the advertorial stuff. Programs like Getaway and The Block (which is also heavily advertorial) are very popular. Unlike the ABC and SBS, commercial stations can’t rely on direct government funding (except the very generous advertising revenue they’re currently receiving from the Howard government for all those informative public service ads (for Medicare changes et al) that have nothing whatever to do with the forthcoming election). If you can’t stand commercials and advertorials, watch ABC or SBS, or go and rent a video and skip through the pre-advertising.

yobbo
2021 years ago

These regulations on the amount of ads don’t amount to restraint of trade? If not, they should. I couldn’t care less if channel 9 ran 150 minutes of ads in the 3 hours of the Today show. I have 50 other channels I can watch.

“Free to air” TV is not free. They have to make money somehow, and the exact content-advert mix should be up to the station executives and nobody else.

Nobody is FORCING you to watch “Today”, meanwhile ch 9 are quite obligated to continue paying their employees and suppliers.

Once again, all these media regulations are not the real problem with Australian TV. The real problem is pandering to guys like Packer by not opening up the free-to-air TV spectrum to all comers. That is what will force them to cut down on ad content: Competition, not regulation.

Robert
2021 years ago

Ken, I think this is a very good defence of Today, but I wonder at what point their poor planning should be brought to a halt.

8-9 is the peak morning viewing time. It suits the network’s commercial interests to play more of the ads in the last hour of the show — the ads are worth considerably more then than they are at 6-7.

If the show’s producers run overtime in the less valuable hours on a regular (and, from what Marr’s suggesting, permanent) basis, does it cease to be an accident? Surely they can learn from their mistakes and improve their accuracy as time goes on?

David Tiley
2021 years ago

Let’s not pussyfoot around. If commercial broadcasters can push the limits of the rule and make some extra dosh, they will.

They have a legal right to test the regulations. They have an obligation to their shareholders to maximise revenue. And they would enjoy the duel.

If we worked for them we woud feel the same way. Or we would leave.

John
John
2021 years ago

Unusually, perhaps, I agree with Yobbo. We should auction the commercial free-to-air spectrum, and let the commercials show whatever maximises their revenue. I’d add, though Yobbo might disagree, that the optimality of this policy depends on a properly-funded public alternative.

As he says, no-one is forcing us to watch, and, precisely because there are too many ads, I never do. In fact, I can prove by algebra that no rational person should watch movies on commercial TV.

Rex
Rex
2021 years ago

John,

The open slather arrangment that you and yobbo champion is all very well. It will certainly cause a shake up of the present patterns of advertising, and Packer will hate it. But will it reduce adverts? I suspect not.

It will make much more airtime available for ads, it will lower the cost of placing ads, as the numerous stations compete, but in the end it will be the big networked stations, that can deliver a national audience to the big advertisers that will control the market. The big rating shows will be packed full of high value ads.

A parallel can be drawn with the airline industry, pre and post regulation. The passenger is like the advertisement buyer. There will be plenty more cheap seats available, but you’ll pay big bucks for first class, and they’ll try to cram in as many first class as they can.

All fine and dandy you say? Well it is if quality doesn’t suffer. If with airline de-regulation you get increased risk that’s not good. With broadcast de-regulation, there will be a drive for the lowest common denominator and Australian content will suffer as Investment Banker Mark Carnegie points out.

To my mind, what we have to do is explicitly regulate as a society for more investment in mainstream media, in our Australian culture, and in Australian product. The idea that you can put anybody who sits in my shoes or Peter’s shoes or anybody else’s shoes, either as a director or a manager of a public company, in a situation where you’re asking them to serve two masters, the master of the media culture and the master of profitability, you just can’t do it. Running a business in the media or in any other business in the world today is a really hard thing to do and you have to be single-mindedly focused on the profit motive.

Mork
Mork
2021 years ago

I agree with Yobbo, too. The TV industry is a classic case of what happens with a protected industry: owners make easy money and consumers get screwed.

In fact, I can prove by algebra that no rational person should watch movies on commercial TV.

I’ll go have a look at the link, but that sentence alone made me giggle!

bargarz
2021 years ago

Admittedly I prefer Sunrise to the stick in the muds over at Today…

But I always found it odd how Today’s snow reports always managed to be hosted at Perisher Blue which just happens to have some serious Packer investment presence. Nah that’s no ad!!

jamesquest
jamesquest
2021 years ago

after reading this article and the ‘apologies as comments’ page here i become even more convinced david marr is right and must be forever treasured as the lovable possum stirring poofter he is.

John Quiggin
John Quiggin
2021 years ago

I’m glad you liked my sentence, Mork. Fear of the litigious grandson of its author, and owner of the copyright, forces me concede that I pinched it.

yobbo
2021 years ago

Interesting link on Open Spectrum:

How did we get to the current policy?

The policy began in 1912 as a reaction to the failure of the Titanic’s help signals. The Radio Act of 1912 enabled the Secretary of Commerce to license radio frequencies but did not give him the right to reject applications. By the ‘Twenties, enough broadcasters had jumped in that the technology of the time produced significant interference among signals, a situation the Radio Act of 1927 addressed by declaring the “ether” to be a publicly owned resource that should be doled out in ways that meet public interests.

mark
2021 years ago

But bargarz, don’t you find it irritating how the two presenters (if they’re the same presenters as they had a year ago) always seem to have that “deer in the headlights” look, as if they don’t have a chance in hell of understanding the words that come out of their mouths?

yobbo
2021 years ago

David Koch is far from stupid Mark…

bargarz
2021 years ago

mark,

Nah Channel 9 had been giving me the shits for years. I prefer the informal atmosphere at 7. Koch may be a dag but he aint dumb and he does (at times) stick it to his interview subjects. Give me a dag anyday first thing in the morning anyday over those stuffed shirts.

Plus even though the news @7 has it’s faults and some interviews are amazingly soft it’s nothing that 9 dioesn’t also do. Plus I no longer have to watch 9’s news which seems to think that news consists solely of;

1. Rugby league
2. That brassy bottle blonde at Perisher smegging Blue every winter.
3. Rugby league
4. A fire in Sydney
5. Rugby league

Bah. I have no cable and I’ve never going back to 9.

mark
2021 years ago

I’ll concede that Koch isn’t stupid (given that I don’t know him or even much about him ;-)), but he “looked it” from time to time (it’s not what he said, it’s the way he said it, style of thing), if you get what I mean. Hell, the Sunrise interviews were generally more on-topic (as bargarz points out) and less fluffy than Today’s, but the two presenters always managed to piss me off nonetheless (because of the look…).

Rugby League’s one of the few things worth watching on Ch9, but that’s not necessarily a Bad Thing. It could be worse, there could be *nothing* worth watching…

bargarz
2021 years ago

Yeah but a third of their news bulletin taken up by NRL? Well I guess it could be worse – it often is.

Channel 9 frequently seem to think it’s ok to ditch their morning viewers for days at a time and show smegging golf instead. Just the thing to wake up to. So I just reflect the same loyalty right back at ’em. :)

trackback
2021 years ago

Arbitrage and the video store

A discussion about excessive advertising over at Troppo Armadillo led me to think a bit about the fact that I never watch movies on commercial TV any more, because there are too many ads. Being an economist, I naturally like…