Tickle Me Elmo is a popular children’s toy; it’s also an apt description of the country’s toothless media watchdog, ACMA, in its regulation of Australia’s electronic media, especially the wild child of TV, the Nine Network.

The official name for the way we regulate broadcasting in Australia is “co-regulation”, meaning the broadcasting industry develops its own standards, gets them approved by the regulator, and is held to account against those standards. Unfortunately in practice “co-regulation” is little better than self-regulation, particularly given ACMA is notoriously loathe to use its enforcement powers, which were significantly expanded in 2006, against the wishes of the media moguls, as part of the Howard government’s media law changes.

One of the extra enforcement tools ACMA was given in 2006 was ACCC-style enforceable undertakings. Overnight, ACMA said it has made the Nine Network strengthen its complaint-handling procedures in yet another enforceable undertaking that is supposed to get the network do what other networks are doing; handling and responding to complaints in an efficient and timely manner.

It is the latest in a string of undertakings and investigation findings critical of Nine that stretch back to early 2009. In many of them, complaint handling and inadequate responses forms a big part of the findings against Nine.

As well, there are many other complaints against Nine and some of its programming and advertising that didn’t make it to enforceable undertaking status.

Nine is the most complained about network in the country. Seven and Ten have had complaints made against them as well, but not on the scale of Nine. According to a list below, there have been 17 in the past two-and-a-half years. Some complaints involve Nine in breaches of the code insofar as wrongly classifying content, such as Underbelly and Ramsay’s Kitchen Nightmares series.

But Nine has been allowed to continue to flout the TV code of practice (which regulates content and advertising and internal complaints-handling processes), despite agreeing to improve its procedures (and in one settlement, appointing a complaints-handling executive). The latest undertaking specifically sets out how complaints are to be handled (and for the first time allows for emailed complaints to be made).

Complaints-handling is a key component of what little regulatory system we have for the broadcasters. The broadcasters make it difficult enough for complainants as it is — for a long time they simply refused to acknowledge the existence of email, insisting on written complaints. And you can’t complain straight to ACMA — you’re required to complain to the broadcasters first, and can only complain to ACMA about something you saw or heard if the broadcasters don’t give you a response after a set period, or don’t give you one you like. It’s a system designed to ensure the minimum number of people bother going to the regulator.

These undertakings require the licensee to do something. If it doesn’t, as the name suggests, ACMA can go to court to get an order forcing the licensee to perform, or seek monetary damages if money is involved. These orders last for a set time. In the new one involving Nine, it lasts 17 months from May 6 until the end of next year.

ACMA said in its latest statement that “‘this undertaking follows numerous breaches of complaint-handling provisions since 2006 by the Nine Network, which Nine itself had acknowledged to be unacceptable. By offering this EU, Nine has shown its commitment to address the problem and the ACMA welcomes its pro-active approach.”

“Viewers concerned about code breaches must first complain, in writing, to the station involved. The broadcaster then has 30 working days to respond to the complaint. It is important for members of the public to feel confident that TV stations will respond — substantively and promptly, when they make a complaint about a code matter.”

According to ACMA’s website, since February 2007, Nine and regional affiliate WIN have drawn the most “enforceable undertakings” of the country’s electronic networks.

Before the latest there were three separate undertakings signed between the regulator and Nine, or its Melbourne station GTV Nine. There were two others covering WIN.

That is hardly being “pro-active” as ACMA tries to characterise Nine’s agreement.

Having been forced into one enforceable undertaking, don’t you think the reasonable response of a TV network would be to improve the weak areas and make sure complaints were taken seriously? Nine was found wanting in several more cases, as was WIN.

ACMA’s own performance here must be wondered at. Why did ACMA settle on a 17-month period for the new undertaking? Why not make it renewable with an outside auditing every year of Nine’s performance, punishable by a loss of one minute of advertising and hour a night in prime time for a week? That might make the broadcasters take their obligations seriously.

ACMA is restricted in how it can punish an erring network (that’s as much a fault of the gutless Rudd/Gillard governments, which have bent over backwards to assist the networks in all matters financial and regulatory), but there has to be a point where yet another “enforceable undertaking” is not worth the paper it is written on.

The bottom line is that handling viewer complaints is an essential part of the TV code of practice. Free TV Australia should be condemning Nine for treating viewers so poorly.

The latest undertaking with ACMA tells us Nine does not respect its viewers and thinks they are a burden. Perhaps that explains why the network has seen a 20% drop in its prime time audience so far this year.

And what are Nine’s private equity owners, CVC doing? Nothing except to sit and wait for the market to turn so it can sell and escape this country. CVC should make handling viewer complaints in a timely and adequate fashion a key part of the performance bonuses for everyone at Nine Entertainment and the Nine Network.

According to the News.com.au website this morning, the following are Nine’s failings, as taken from the ACMA list of undertakings and press releases:

  • March 2011: failed to provide caption service on NBN News and A Current Affair
  • November 2010: with Ten, found guilty of promoting interactive gambling services
  • September 2010: Sam Newman and The Footy Shown (AFL) provoked severe ridicule of Malaysian man and forced to pay $200,000 to charity
  • August 2010: incorrectly classified episode of Dante’s Code as AV (adult violence)
  • July 2010: failed to provide caption service on Nine News and RPA
  • May 2010: breached children’s television standards over a prize segment on The Shak
  • March 2010: 60 Minutes unfairly linked school to segregation
  • December 2009: failed to provide caption service for programs on GO!
  • November 2009: with Ten and Seven, breached news accuracy requirements relating to a story on Sudanese refugees
  • November 2009: promotion of Underbelly: A Tale of Two Cities inappropriate G viewing
  • September 2009: A Current Affair failed to present factual material accurately in a story about a debt recovery company
  • August 2009: A Current Affair guilty of designing program to induce hypnotic state in viewers
  • June 2009: A Current Affair failed to present factual material accurately in a story about municipal car park rangers
  • May 2009: Sam Newman and The Footy Show (AFL) provoked severe ridicule of female journalist and mishandled complaints
  • March 2009: A Current Affair failed to present factual material accurately in a story titled ‘Foreign Doctors’
  • February 2009: classification breach on Underbelly and Gordon Ramsay programs
  • February 2009: used racist overtones towards Aboriginal people in National Nine News story about baby bonus scheme