BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
The Edge – song called “Fuck You” by Lily Allen was broadcast during the afternoon – the “F” in “fuck” was muted – host explained that the word obscured in the song began with “f” and ended in “u, c, k” – allegedly in breach of good taste and decency and responsible programming  

Findings
Standard 1 (good taste and decency) – “fuck” inadequately censored – use of the expletive during children’s normally accepted listening times unacceptable – host’s spelling out of the word “fuck” irresponsible – upheld

Standard 8 (responsible programming) – broadcaster was not sufficiently mindful of the effect the programme content would have on children – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]  A song titled “Fuck You” by singer Lily Allen was broadcast on The Edge at 3.29pm on Tuesday 13 October 2009 and at 1.41pm on Sunday 18 October 2009. The “f” sound in the word “fuck” was obscured leaving “uck you” in the song.  

[2]   After playing the song on 18 October, the host stated:

You’re on The Edge. Lily Allen’s new one...Don’t even know if I’m allowed to say the title of that song to be honest. It’s a naughty word. There’s two words. I’ll do a bit of, ah, radio charades. We will say the second word is “you”...easy charades isn’t it? The first word starts with ‘f’ and ends with ‘u, c, k’ and it’s not firetruck it’s the other one. She’s got a dirty, dirty mouth, doesn’t she, that Lily Allen, naughty girl.       

Complaints

[3]   John Christini made two separate formal complaints to RadioWorks Ltd, the broadcaster, alleging that the broadcast of the song on 13 and 18 October breached standards of good taste and decency.

[4]   With respect to both broadcasts, the complainant argued that the song had been poorly edited and that it was clear that the lyrics contained the word “fuck”, due to the strong “uck” sound that remained. He stated that the song had been played at times when children could have been listening and contended that the broadcasts were “totally inappropriate” for the timeslot. 

[5]   Turning to the 18 October broadcast, Mr Christini noted that the host had explained to listeners that he could not say the song’s title on air, but then went on to say that the first word of the title started with the letter “f” and ended in “u, c, k”. He argued that the actions of the host were inappropriate because children could have been listening.      

[6]   RadioWorks wrote back to Mr Christini stating that, because his second complaint related to the same issue raised in his first complaint, it was going to subsume its consideration of his second complaint.

[7]   Mr Christini wrote back to the broadcaster saying that he did not “consent” to RadioWorks subsuming his second complaint into its consideration of his first one. He also added that he wished to extend his complaints to include Standard 8 (responsible programming).

Standards

[8]   Standards 1 and 8 and guidelines 1a and 8a of the Radio Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guideline 1a

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

Standard 8 Responsible Programming

Broadcasters should ensure that programme information and content is socially responsible.

Guideline 8a

Broadcasters should be mindful of the effect any programme content may have on children during their normally accepted listening times.

Broadcaster's Response to the Complainant

[9]   With respect to both broadcasts, RadioWorks argued that the word “fuck” had been adequately obscured. It contended that, because “no obscene language [was] used in the song” broadcasting standards had not been breached.

[10]   Dealing with the host’s comments, RadioWorks agreed that they were “ill considered” and stated that its programming director had spoken with the host to ensure his actions were not repeated.

[11]   The broadcaster went onto say that, while the host’s comments were ill considered, his spelling out of the word did not amount to a breach of broadcasting standards, “as the word was presented in such a way as to require the listener to independently understand the word from its spelling”. It said that the Authority had previously held a television promo for a programme called “F**K Off I’m Small” had not breached broadcasting standards “for the same sort of reason”.¹

[12]   RadioWorks declined to uphold Mr Christini’s complaints.       

Referral to the Authority

[13]   Dissatisfied with RadioWorks’ response, Mr Christini referred his complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. 

Authority's Determination

[14]   The members of the Authority have listened to a recording of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaints without a formal hearing.

Standard 1 (good taste and decency)

[15]   When the Authority considers an alleged breach of Standard 1, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• the song was broadcast on a Tuesday at 3.29pm and a Sunday at 1.41pm
• the word “fuck” was partially obscured
• the song was broadcast during children’s normally accepted listening times
• the expectations of regular listeners.

[16]   In the Authority’s view, the word “fuck” was inadequately masked and the expression “fuck you” was readily understood. It points out that there is no meaning in the phrase “uck you” and considers that it would have been clear to listeners, including children, that the expression “fuck you” was being sung.

[17]   Taking this into account, the Authority concludes that the broadcast of the song at 3.29pm and 1.41pm – both times when children could have been listening – would be unacceptable to a majority of New Zealanders. Therefore the Authority finds the broadcasts of the song strayed beyond the bounds of good taste and decency.

[18]   With respect to the host’s comments broadcast on 18 October 2009, the Authority finds that his spelling out of the word completely undermined the efforts made to mask the expletive. It considers that older children listening would have been able to understand that the host was spelling the word “fuck”. As a result, the Authority also considers that the host’s remarks strayed beyond the bounds of good taste and decency.

[19]   Having reached this conclusion, the Authority must consider whether to uphold the complaints as breaches of Standard 1.   

[20]   The Authority acknowledges that upholding the Standard 1 complaints would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Turner and TVNZ², the Authority determined that upholding a complaint under Standard 1 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In the Authority’s view, the primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it was broadcast.

[21]   With that in mind, the Authority must consider whether it would be a reasonable and proportionate limit on RadioWorks’ freedom of expression to uphold breaches of Standard 1 on this occasion. It finds that upholding breaches of the good taste and decency standard on this occasion would ensure that radio broadcasters take care to ensure that songs containing the word fuck are not broadcast during children’s normally accepted listening times or, if they are, the word is effectively and completely masked. In this respect, upholding the complaints clearly promotes the objective of Standard 1, and therefore places a justified and reasonable limit on RadioWorks’ freedom of expression. The Authority upholds the complaints that the broadcasts breached Standard 1.

Standard 8 (responsible programming)

[22]   Standard 8 requires broadcasters to ensure that programme information and content is socially responsible. Guideline 8a states that broadcasters should be mindful of the effect any programme content may have on children during their normally accepted listening times.

[23]   For the reasons outlined above in its consideration of Standard 1, the Authority also finds that the broadcaster did not adequately consider the interests of child listeners by failing to ensure that the word “fuck” was adequately masked during broadcasts at 3.29pm and 1.41pm, and because of the host’s comments which spelled out the expletive at a time when children could have been listening.

[24]   Having reached this conclusion, the Authority must decide whether to uphold the complaints as a breach of Standard 8.

[25]   The Authority acknowledges that upholding the responsible programming complaints would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. It acknowledges the importance of section 14 and the values underlying the right to freedom of expression.³ However, "the right of freedom of expression is not an unlimited and unqualified right".⁴ The Authority must ensure that, if it is considering upholding the complaints, the restriction on the broadcaster’s right to freedom of expression would be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[26]   First, the Authority must assess whether, by upholding the complaints, the limit placed on the broadcaster's section 14 right would be "prescribed by law". Parliament has recognised the importance of maintaining standards in relation to the protection of children in section 21(1)(e)(i) of the Broadcasting Act 1989, which states:

21(1) The functions of the Authority shall be -

(e) To encourage the development and observance by broadcasters of codes of broadcasting practice appropriate to the type of broadcasting undertaken by such broadcasters, in relation to -

(ii)  The protection of children

[27]   Further, the Codes of Broadcasting Practice have been developed in conjunction with broadcasters and approved by the Authority. The requirements in Standard 8 that broadcasters should ensure that programme information and content is socially responsible and that they be mindful of the effect any programme content may have on children during their normally accepted listening times, is, in the Authority's view, what was specifically intended by Parliament when it enacted the Broadcasting Act. For these reasons, the Authority considers that upholding the complaints under Standard 8 (responsible programming) would be prescribed by law.

[28]   Second, the Authority must consider whether upholding these complaints would be a justified limitation on the right to freedom of expression. In the Authority's view, the responsible programming standard exists to ensure, among other things, that broadcasters act responsibly and take into consideration the effects programmes may have on child listeners. Accordingly, the Authority considers that upholding complaints about the use of coarse language and irresponsible actions by a host under Standard 8 would place a justified limitation on a broadcaster's right to freedom of expression.

[29]   The Authority must now consider whether it would be a reasonable and proportionate limit on RadioWorks’ freedom of expression to uphold breaches of Standard 8 on this occasion. The Authority has found that the word “fuck” was inadequately censored and that the host’s comments were irresponsible because they undermined the efforts made to mask the expletive. Upholding a breach of the responsible programming standard on this occasion would remind broadcasters to act responsibly and to be mindful of the effect any programme content may have on child listeners during their normally accepted listening times. In this respect, upholding the complaints clearly promotes the objective of Standard 8 (as outlined in paragraph [28] above).

[30]   In these circumstances, the Authority finds that upholding the complaints would be a justified and reasonable limit on RadioWorks’ freedom of expression. It therefore upholds the complaints that the broadcasts breached Standard 8.

For the above reasons the Authority upholds the complaints that the broadcast by RadioWorks Ltd of Lily Allen’s song “Fuck You” on 13 and 18 October 2009, and the host’s comments on 18 October 2009 breached Standards 1 and 8 of the Radio Code of Broadcasting Practice.

[31]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion.

[32]   In the Authority’s view, this decision clarifies its expectations surrounding the broadcasting of songs that contain the word “fuck” on radio during children’s normally accepted listening times. It also notes that the broadcaster’s programme director spoke to the host to ensure his actions were not repeated. In these circumstances, it considers that the publication of the decision is sufficient.

Signed for and on behalf of the Authority

Peter Radich
Chair
15 February 2010

Appendix

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

1.           John Christini’s formal complaints – 13 and 18 October 2009
2.          RadioWorks’ response to the formal complaints – 30 October 2009
3.          Mr Christini’s referral to the Authority – 6 November 2009
4.          RadioWorks’ response to the Authority – 8 December 2009

¹See TVNZ and Hind, Decision No. 2008-005

²Decision No. 2008-112

³See Decision No. 2008-040

⁴P v D and Independent News Auckland Ltd [2000] 2 NZLR 591, at 599, per Nicholson J