BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
The Edge – listeners asked to call station mid afternoon – hot topic – frequency of sex – reference to self pleasure and pain of some sexual experiences – offensive and inappropriate for children – recommended uphold by broadcaster as inappropriate for children – Principle 7 and guideline 7a – announcer spoken to

Findings
Principle 1 – adult topic during children’s normal viewing times – context and Bill of Rights – no uphold

Principle 7 guideline 7a – agree with broadcaster’s recommendation – uphold – no order

This headnote does not form part of the decision.

Summary

[1] The frequency of sex was the "hot topic" for the listener phone-in programme broadcast by The Edge from 4.05pm on 29 November 2001. One caller asked if the topic included self-pleasure, and another said frequent or long sexual encounters could be painful.

[2] Kay Bannatyne complained to The RadioWorks Ltd, the broadcaster, that the programme was not suitable for children and breached community standards of good taste and decency.

[3] When The RadioWorks failed to respond to the complaint, Ms Bannatyne referred it to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.

[4] In its response to the Authority, The RadioWorks acknowledged that parts of the topic were unsuitable when children might be listening, and upheld that aspect of the complaint in view of the reference to self-pleasure. It said that the announcer had been reminded of standards and had apologised. The RadioWorks declined to uphold the aspect relating to good taste and decency.

For the reasons below, the Authority upholds the Principle 7 aspect of the complaint. It declines to uphold the Principle 1 aspect.

Decision

[5] The members of the Authority have read the correspondence listed in the Appendix. A tape of the broadcast was not provided. The Authority determines the complaint without a formal hearing.

The Programme

[6] The frequency of sex was the "hot topic" for the listener phone-in programme broadcast by The Edge from 4.05pm on 29 November 2001. One caller asked if the topic included self-pleasure, and another said frequent or long sexual encounters could be painful.

The Complaint

[7] Kay Bannatyne complained to The RadioWorks that the broadcast, in view of some specific matters raised, breached the standards relating to the protection of children and, furthermore, the topic breached the requirement for broadcasters to observe standards consistent with good taste and decency.

[8] The specific matters to which Ms Bannatyne said she objected, was a reference to self-pleasure and a comment that frequent or lengthy sexual encounters could be painful. Ms Bannatyne noted that The Edge was popular with the pre-teens and said that 4.05pm was the normally accepted listening time for children.

The Referral to the Broadcasting Standards Authority

[9] As she did not receive a reply from The RadioWorks, Ms Bannatyne referred her complaint to the Broadcasting Standards Authority.

The Standards

[10] After the Authority had referred the complaint to it, The RadioWorks assessed the complaint under the standards nominated by the complainant. They read:

Principle 1

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.

Guideline

1a  Broadcasters will take into consideration current norms of decency and good taste in language and behaviour bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast eg time of day, target audience.

Principle 7

In programmes and their presentation, broadcasters are required to be socially responsible.

Guideline

7b  Broadcasters shall be mindful of the effect any programme may have on children during their normally accepted listening times.

The Broadcaster’s Response to the Authority

[11] The RadioWorks reported:

The original complaint was received by the Radio Station. The announcer concerned was given a copy of the correspondence and was to isolate the recording of the broadcast. From here the correspondence and the recording was misplaced. This human error has prevented our supplying a recording of the broadcast. We have spoken to the announcer who agrees in principle with the content of the complaint.

[12] On the basis that the topic of sex did not breach the standards of good taste and decency, The RadioWorks declined to uphold the Principle 1 aspect of the complaint. However, in acknowledging that children would be listening at that time of day, The RadioWorks said the topic was better suited either later at night or "preferably not at all". It upheld the Principle 7 aspect.

[13] In regard to the action it had taken, The RadioWorks said:

We have spoken to the announcer reminding him of his obligations under the Radio Code of Broadcasting Practice. He has apologised and expressed remorse. As this is the first complaint against the announcer, we believe the action taken to be sufficient.

We have passed on Ms Bannatyne’s concerns to the announcers of The Edge regarding the content of the broadcast.

[14] Finally, The RadioWorks advised:

We apologise for being unable to supply a recording of the broadcast, but ask that the human error factor be taken into account.

The Complainant’s Final Comment

[15] In response, Ms Bannatyne maintained that given contextual issues such as the time of broadcast and the target audience, that Principle 1 had been contravened.

The Authority’s Determination

[16] Ms Bannatyne complained to The RadioWorks about the "frequency of sex" phone-in discussion broadcast on The Edge from 4.05pm on 29 November. Because of a reference to "self-pleasure" during the broadcast, The RadioWorks recommended that the Authority uphold the Principle 7 and guideline 7a aspect of the complaint which requires broadcasters to be mindful of children during their normally accepted listening times. However, arguing that the topic of sex did not breach community standards, The RadioWorks did not uphold the Principle 1 aspect of the complaint. Ms Bannatyne referred that matter to the Authority.

[17] The broadcaster did not provide the Authority with a copy of the programme complained about. It is the Authority’s practice to accept the complainant’s version of the broadcast when the broadcaster is unable to supply a copy of the broadcast. In this case, the Authority notes that the broadcaster expressed its agreement in principle with the content of the broadcast as described by the complainant. The broadcaster’s failure to provide the Authority with a tape of the item complained about on this occasion is not an isolated incident.

[18] When it determines a complaint that a broadcast contravenes Principle 1 of the Radio Code, the Authority is required to determine whether the material complained about breached currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but not determinative of whether the programme breached the Principle. Accordingly, the Authority has considered the context of the broadcast.

[19] The Authority agrees with Ms Bannatyne that the time of the broadcast is a highly relevant contextual factor, and notes that the broadcast complained about took place during children’s usual listening times. It also notes that the topic was not "sex", but the "frequency of sexual activity", which is an adult topic rather than one for children.

[20] The Authority also considers that the type of station is a relevant contextual matter, as is the type of broadcast. The Edge is targeted at young adults, and from the information available to the Authority, the listeners who took part in the programme complained about appeared to fall into that category.

[21] When reaching its decision, the Authority is required to take the New Zealand Bill of Rights Act 1990 into account as another matter of context. Having considered the provisions in the Act, the Authority observes that to find a further breach of broadcasting standards on this occasion would be to interpret the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

[22] Having balanced the relevant contextual matters, the Authority concludes that the broadcast did not breach Principle 1.

[23] Ms Bannatyne also complained that the broadcaster, by discussing the topic shortly after 4.00pm, had not been mindful of children. The RadioWorks recommended that this aspect be upheld because of the reference to "self-pleasure". The Authority accepts the recommendation which it considers entirely appropriate and upholds the Principle 7, guideline 7a, aspect of the complaint.

[24] In regard to its failure to respond to Ms Bannatyne’s complaint, The RadioWorks explained that a staff member had been asked to isolate the tape on receipt of the original complaint, but that the tape (and the correspondence) was mislaid. Notwithstanding its apology, the Authority observes that The RadioWorks seems to have failed to comply with the requirement in s.5(a) of the Broadcasting Act to establish a proper procedure for dealing with complaints.

For the reasons above, the Authority upholds the aspect of the complaint that the broadcast by The RadioWorks of a programme on The Edge between 4.00–5.00pm on 29 November 2001 breached Principle 7 of the Radio Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaint.

[25] Having upheld a complaint, the Authority may impose orders under ss. 13 and 16 of the Broadcasting Act 1989. When The RadioWorks recommended that this aspect be upheld, it spoke to the announcer who acknowledged the substance of the complaint. The Authority accepts that this action was sufficient and does not intend to impose an order.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
9 May 2002

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1. Ms Bannatyne’s Complaint to The RadioWorks Ltd – 15 December 2001
2. Ms Bannatyne’s Referral to the Broadcasting Standards Authority – 5 February 2002
3. The RadioWorks’ Response to the Authority – 25 February 2002
4. Ms Bannatyne’s Final Comment – 8 March 2002