A marriage equality ad that played on Sky News, and which landed Foxtel in hot water with the broadcasting regulator, has been cleared of breaching the same rule on a different Foxtel channel.

The Australian Communications and Media Authority found Foxtel had breached the Broadcasting Services Act last month when it ran the ad during an episode of The Bolt Report on another of its channels, Sky News, without a disclosure notice.

But the campaign that ran on Foxtel’s four lifestyle channels over Valentine’s Day without any political disclosure, which also included station ID ads and station branding, were not in breach because they hadn’t been paid for or requested by anyone else. ACMA found:

“In making this finding, the ACMA emphasises that the legislation does not seek to prevent licensees and broadcasters from advocating on social issues or supporting particular policy initiatives as part of their own broader corporate responsibility programs. The important distinction being, in this case, that if the advertisement and the ‘Love is Love’ campaign were broadcast at the request of another person, there would have been a requirement for the particulars to be announced immediately after the broadcast.”

ACMA acknowledged that broadcasters had the right to campaign on social issues as part of their corporate responsibility programs, but flagged a problem with the law in a decision earlier this year over a broadcast Ray Hadley had made the day before New South Wales byelections in November.

Hadley had voiced ads on Radio 2GZ in Orange, which syndicates his show, telling voters in that electorate to put the Nationals last on their ballots. The day before the election, after interviewing a representative from the NSW Electoral Commission, Hadley replayed the ad, chasing it with an acknowledgement that the ad might not be allowed to run during the election blackout:

“See I’m probably in breach of some electoral law by playing that. But it wasn’t a paid commercial. Therefore I’m probably not in breach of it. It’s simply illustrating the commercial that had previously been paid and because I voiced that commercial, when it was allowed to be played before the blackout. I now say what I would say normally. Do exactly what I said there in Orange and send a message to the Nationals because they’ve forgotten about you, as we saw last night at the rally conducted by Alan [Jones] at the Orange Ex-Services Club.”

From the end of the Wednesday before an election until the close of polls on the Saturday, no political advertising is allowed to be broadcast.

Hadley was not found to be in breach of this rule in an ACMA decision in February, because he had not been paid for the ad when it ran during the blackout period (although it had run as a paid ad before the blackout period).

“Although no breach occurred in this instance, the ACMA notes that the licensee’s broadcast was inconsistent with the intent of the legislation, that no political advertising be broadcast on television or radio in the three days immediately preceding an election,” the ACMA noted in its decision.

Radio station 2GZ told ACMA it had not known the ad would run during Hadley’s program, and it had sought assurances from Macquarie Media (which produces Hadley’s show on its network) that similar broadcasts would not occur in the future.

Peter Fray

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