Adjudication No. 776 (January 1995) [1995] APC 6

ADJUDICATION No. 776 (January 1995)

In dealing with a complaint brought by the Victorian Environment Protection Authority ("EPA") against the Sunday Herald Sun, the Press Council has clarified an aspect of the operational effect of principle 10 of the Council's statement of principles.

The complaint relates to an article published by the newspaper in its 1 May 1994 edition under the headline "OUR TOXIC DUMP" on its front page and the title of "State's sick suburb" on its inside page. The article centres on a confidential report emanating from a 12-month study by Monash University and financed by a Federal Government grant.

The article claims that the report found Dandenong "A highly dangerous toxic dump". Statements in the article include the following: "The report found heavy air and ground water contamination within the 'offensive industries zone' by PCBs and heavy metals such as mercury, lead, manganese, copper, chromium and cadmium"; and "PCBs can cause permanent injury - or in extreme cases, death - after short exposure to small quantities".

Responding to this article, Dr Brian Robinson, the chairman of the EPA, on 5 May 1994, wrote a letter to the editor of the newspaper. Dr Robinson asserts that the article contains "significant errors of fact" and that it does not reflect the findings or recommendations of the Monash University report. He disputes the allegation that Dandenong is a "highly dangerous toxic dump" and claims that there are no scientifically valid data known to the EPA or in the Monash report that would support such an allegation. He further asserts that there is no basis in the report for the other allegations regarding air and ground water contamination; that the authors of the report did not carry out any air testing; that the report clearly states that "the testing for mercury gave invalid results due to sampling problems"; that the claims by the newspaper about the health effects of PCBs are untrue; and that the language used in the article is "alarmist" and "emotive".

On 6 May 1994, the newspaper, in a long letter to Dr Robinson, disputes the various points made by him in his letter to the newspaper. The newspaper editor refuses to publish Dr Robinson's letter, proffering the following explanation: "His statement appeared misleading and we detected inaccuracies in them. While I encourage debate in my newspaper, I will not knowingly publish anything I believe will mislead our readers". The newspaper adds that the EPA has failed to respond to a number of points raised by the newspaper. The EPA argues in its complaint that the newspaper has infringed principles 1, 2, 3, 5 and 10 of the statement of principles.

The Council, after hearing the complaint on 21 October 1994, recommended that both parties should negotiate the publication of a suitable article by the EPA. Obviously, a mutually acceptable settlement of the matter has not been achieved. The points of contention between the newspaper and the EPA relate to a subject which the former has acknowledged to be "complex and difficult". It is not the role of the Council to verify the accuracy of the contentious points. Its main role is to determine whether fairness has been displayed in the publication of purported findings of the Monash University report. The issue in contention in this complaint is whether a newspaper is justified in refusing to publish a submitted letter on the ground that it believes that the letter would mislead its readers. The nub of the matter lies in the operational effect which should be given to principle 10 which states:

"If material damaging to the reputation or interest of an individual, corporation, organisation or specific group of people is published, opportunity for prompt and appropriately prominent reply at reasonable length should be given by the newspaper concerned, wherever fairness so requires."

There is no doubt that the EPA has perceived itself to be an organisation whose reputation is adversely affected by the publication of the article.

In general, the Council believes that a complainant cannot simply invoke principle 10 in order to put into the public arena material which is manifestly false. Where the material is not manifestly false or where falsity can only be established by seeking expert opinion, the Council is of the view that the common sense approach to be adopted is to have a reasonably edited letter published. Where the newspaper disputes the contents of such a letter it is entitled to reiterate its understanding of the contentious points, draw attention to its reliance on expert opinion on the matter and highlight the fact that experts have not challenged or queried the accuracy of the article. The public interest may be better served in this way.

On this occasion the Council cannot determine the truth or falsity of the submitted material or where the fault lies. It expects that both parties will conduct future dealings in the light of the clarified principle 10.