BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

During the course of the evening’s broadcast on The Rock on 28 June 1999, reference was made to a computer image of "a Dalmatian shagging a chick" and an All Black’s sexual orientation. The word "fuck" was used on several occasions in a broadcast on The Rock during the evening two weeks earlier – on 14 June 1999 – and a female caller who objected to being called "a dozy bitch" was told to "fuck off" if she did not like it.

Mr Bartlett complained to The RadioWorks, the broadcaster, that it had breached the Broadcasting Act by using discriminatory, unfair and indecent language. He cited a number of specific instances which he asked the station to address.

The station’s programme director responded that the show was targeted at an audience of males aged between 18–39 years and that its style appealed to them. In the station’s view, those people were entitled to their own radio station which reflected their values, language and attitudes. With reference to the comment about the All Black, the station responded that it was permissible because it was a genuine expression of opinion. As for the use of the word "fuck", it upheld the complaint and advised that it had issued the DJ with a written warning about using such language.

Dissatisfied with the action taken by the station on the complaint about the use of the word "fuck" and its decision on the other aspects of the complaints, Mr Bartlett referred them to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaints that the action taken with respect to a broadcast on 14 June was insufficient, and that broadcasts on 14 and 28 June breached standard R2. It also finds a breach of standard R35. The Authority orders The RadioWorks to broadcast a statement summarising this decision and also orders it to pay costs of $1000.00 to the Crown.

Decision

The members of the Authority have read the correspondence which is listed in the Appendix. No tape of the items was provided. On this occasion, the Authority determines the complaints without a formal hearing.

On the evening of 14 June between 8.00pm and midnight on The Rock, a station managed by The RadioWorks, the DJ told a caller she was "a dozy bitch" and when she objected, added that she could "fuck off" if she did not like it. Around 9.00pm on 28 June, on the same station, an All Black player was described as "a faggot", and around 10.00pm, the DJ invited listeners to e-mail him, saying that he had a kinky image to send them and that it was "worse than the one of the Dalmatian shagging the chick". Later that evening he made reference to a woman performing oral sex.

Mr Bartlett complained to the station that these were not isolated incidents and they demonstrated that The Rock was marginalising women and gay people with its constant homophobia and sexism. In particular, he argued, the content breached the good taste and decency standard, and discriminated against gay people.

In its response, The RadioWorks emphasised that The Rock was a station targeted at a male audience aged between 18-39 years and that its programming was directed at them. It agreed that the station’s approach did not have universal appeal, but argued that those to whom it did appeal were entitled to have their own radio station which reflected their values, language and attitudes.

It reported that a recent audience survey showed that The Rock was the number one station among males aged 18–39 years.

With respect to the remark about the All Black, the station noted that the comment had been made by a caller. The host had cut him off, but then made a comment which the station admitted could have been construed in a negative way. It did not uphold the complaint however, as it argued that the player was a public figure, and that the comment was "a genuine expression of opinion".

As for other material broadcast on 28 June, the station responded that the programme occasionally included "the odd swear word or use of slang" but given the time of day and the target audience, the content was within the boundaries of good taste and decency.

In response to the complaint about the use of the word "fuck" on 14 June, the station advised that it found the standard had been breached. It reported that it had issued the DJ with a written warning and "sternly warned him that this type of language will definitely not be permitted." The station reported that in future, callers who used inappropriate language would be cut off immediately. It also noted that it was running "sweepers" stipulating that the show was for adults only.

When Mr Bartlett referred the matter to the Authority, he expressed his disappointment that only one aspect had been upheld. He noted that on the day he had received the station’s response advising him that the DJ had received a warning about the language, he had heard the word "fuck" broadcast twice and the term "shit" used. In addition, the DJ had made an offensive remark to a woman caller.

Mr Bartlett also reported that he had discussed the complaint with the DJ himself. The DJ’s reported response to the remarks about the All Black was that he deserved it as he was a public figure and made $1 million a year. As for the reference to the woman having sex with a dog, Mr Bartlett said that the station responded that the DJ was "covered perfectly" as he was only referring to an image someone had e-mailed him. Further, the Programme Director informed Mr Bartlett that television was "worse than radio". In his letter to the Authority, Mr Bartlett emphasised that his complaint was not about television but about The Rock which, he said, broadcast inappropriate material between 8.00pm and midnight.

In its report to the Authority, The RadioWorks maintained that the remark about the rugby player had been a "genuine expression of opinion" by the DJ and was therefore not a breach of any standard. With respect to the complaint about the language, it considered that the station’s response had been sufficient.

Finally, The RadioWorks repeated that the station adopted "a raw, politically incorrect approach" which appealed to its target audience. It contended that 18–39 year old males deserved the opportunity to express themselves. It recommended that listeners tune to other stations if they were offended with the programme content.

In his final comment Mr Bartlett took issue with The RadioWorks’ argument that it targeted its broadcast at a group which appreciated its "politically incorrect" approach. He also noted that the station had failed to make available a copy of a tape of the broadcast.

The Authority’s Findings

The complaint focuses on what appears to be the style of broadcasts on The Rock. The complainant contends that the station’s broadcasts include offensive language and demonstrate misogynist and homophobic attitudes which are inconsistent with broadcasting standards. The station, on the other hand, has invited the Authority to condone this "raw, down to earth, politically incorrect approach" as it targets an audience of 18–39 year old males, to whom it says this appeals.

The Authority assesses these complaints against standards R2 and R14 of the former Radio Code of Broadcasting Practice which was still in effect at the time of the broadcast. Those standards require broadcasters:

R2  To take into consideration currently accepted norms of decency and good taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.

R14  To avoid portraying people in a manner that encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is

i)    factual, or

ii)    the expression of serious opinion, or

iii)    in the legitimate use of humour or satire.

The Authority begins with the complaint about the use of the word "fuck", on several occasions on 14 June. It notes that the station upheld this aspect of the complaint, and advised that it had given the DJ a written and verbal warning.

Mr Bartlett was dissatisfied with the action taken as, despite the warning, he said that the same word was broadcast subsequently. However, he reported that the station defended the later broadcast on the basis that the word "fuck" was used by a caller to the programme.

The Authority is not satisfied with this explanation. It reminds the broadcaster that it is responsible for what is broadcast, irrespective of whether the language is used by the DJ or a caller. It is for the station to develop procedures to ensure that it complies with standards. The Authority upholds the complaint that the action taken by the broadcaster in relation to the broadcast on 14 June of the word "fuck" was insufficient.

Next, the Authority deals with the complaints about the sexist and homophobic attitudes expressed on the station which, the complainant contends, are reflected in broadcasts "from dawn till dusk". Some examples included a DJ referring to a woman caller as a "dozy bitch" and telling her to "fuck off" if she did not like being referred to like that; his describing a famous All Black as a faggot; his offering to e-mail listeners a "kinky image" which was "worse than the one of the Dalmatian shagging the chick"; and by his making a reference to oral sex when he asked "Did she go down on you?"

The requirement to abide by standards of good taste and decency is absolute, the Authority observes at the outset, but it is interpreted by examining the context in which any language or behaviour occurs. Here, the station argues, as the programming is targeted to 18–39 year old males and reflects what it calls their values, language and attitudes, no breach of the good taste standard occurred. The Authority is not so persuaded. It does not agree that a broadcaster is absolved of its responsibilities under the Broadcasting Act simply because its target audience condones sexist language and homophobia. As for the DJ’s dealings with the woman caller, it finds objectionable the peremptory and offensive manner in which she was spoken to by the DJ and upholds this aspect as a breach of standard R2.

The next matter is the reference to a named All Black as a "faggot". The station has addressed this as a standard R14 matter only, and although it conceded that the comment "could be construed in a negative way", it did not uphold the complaint, on the basis that it was the DJ’s genuinely-held opinion. The Authority considers this remark raises a standard R2 complaint, which it upholds. It prefers to subsume the standard R14 complaint under this standard as it does not find that the threshold is crossed for the comment to encourage denigration of or discrimination against homosexual people.

Next it turns to the complaint about the "kinky image", which the DJ described as being worse than the one of the "Dalmatian shagging a chick". This exchange, the Authority finds, also exceeds the boundaries of good taste. It rejects the station’s defence that the DJ was simply referring to an image which had been e-mailed to him, and notes that it is apparent that he was apparently willing to disseminate material which he clearly knew was objectionable. Finally it turns to the complaint about the reference to oral sex. It finds this remark also contravenes the good taste standard.

In reaching its decision on these complaints, the Authority notes that it has not been assisted by the station’s responses. It reminds the broadcaster that it is obliged to comply with the provisions of the Broadcasting Act and the Code of Practice promulgated under that Act. It is not a defence to a breach of standards for the station to describe itself as having a "raw, down to earth, politically incorrect approach". Nor is it a defence to claim that 18–39 year old males "deserve the opportunity to express themselves", and that listeners who do not like the programme content can tune in to other stations. The Authority regards the breaches as serious and expresses its concern that the station condoned – and defended – the subject matter and the language which was complained about.

The Authority also records that it has not been assisted by the station’s failure to provide tapes of the programmes. It considers that as listeners are able to phone in and their contributions are broadcast live, they quite clearly constitute open-line programmes. Tapes of such programmes are required to be kept. The station has breached the requirement of standard R35 by not doing so. That standard reads:

R35  For a period of 35 days after broadcast, radio stations shall hold a recording of all talkback and open line programmes and a copy or tape of news and current affairs items.

The Authority finds the station’s cavalier approach to the complaints unsatisfactory. It reminds the broadcaster that it is obliged, under s.6 of the Broadcasting Act 1989, to have proper procedures for dealing with complaints. It was not evident that such procedures were engaged on this occasion.

For the reasons set forth above, the Authority upholds the complaint that the action taken with respect to the broadcast of the word "fuck" on 14 June on The Rock was insufficient. It also upholds the complaints that broadcasts on 14 and 28 June 1999 between 8.00pm–12.00pm breached standards R2 and R35 of the Radio Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaints.

Having upheld a complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act 1989. It invited the parties to make submissions as to penalty. In addition, it sought from the broadcaster a copy of the written warning to the DJ regarding the use of the word "fuck" which it referred to in its correspondence with the Authority.

The Authority imposes the following order:

Order

Pursuant to s.13 of the Broadcasting Act 1989, the Authority orders The RadioWorks to broadcast a statement, to be approved by the Authority, summarising this decision. That statement shall be broadcast within one month of the date of this decision during the evening programme complained about and on a date to be approved by the Authority. The Authority also requests that a tape of the apology be provided.

In addition, the Authority orders The RadioWorks, pursuant to s.16(4) of the Act, to pay costs of $1000.00 to the Crown within one month of the date of this Decision.

That Order shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
4 November 1999

Appendix

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

1.    Mr Bartlett’s Complaint to The RadioWorks – 1 July 1999

2.    The RadioWorks’ Response to the Formal Complaint – 27 July 1999

3.    Mr Bartlett’s Referral to the Broadcasting Standards Authority – 11 August 1999

4.    The RadioWorks’ Response to the Authority – 1 September 1999

5.    Mr Bartlett’s Final Comment – 8 September 1999

6.    Mr Bartlett’s Submission on Penalty – 21 October 1999

7.    The RadioWorks’ Submission on Penalty – 2 November 1999