BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
The Rock – 14 complaints – offensive language – offensive behaviour – broadcasts inconsistent with maintenance of law and order – denigration of women – discrimination against women – unsuitable for children

Findings in Part I of Decision
Five complaints upheld as breaches of Principle 1; three complaints upheld as breaches of Principle 1 and Principle 7; one complaint upheld on basis that action taken insufficient

Part I interim decision issued – submissions on penalty called for

Submissions on Penalty
Substantive points made by The RadioWorks – "relevant submission" under section 10(1)(b) of the Broadcasting Act 1989

RadioWorks’ Submission
Broadcasting Standards Authority in breach of New Zealand Bill of Rights Act – insufficient weight given to freedom of expression – Authority’s approach inconsistent with Court of Appeal’s Moonen decision

Broadcasting Act – broadcasters responsible for maintaining standards – Radio Code of Broadcasting Practice developed by broadcasters and approved by Authority

Bill of Rights – applies to Authority – applies to determination of complaints

Moonen – five step process – Bill of Rights limits scope of freedom of expression – good taste and decency/social responsibility must be interpreted so as to constitute least possible limitation on freedom of expression – Authority the statutory body charged with interpreting/applying the Act and the Codes – nine complaints upheld in Part I considered de novo

Findings in Part II of Decision
Tree complaints upheld as breaches of Principle I; three complaints upheld as breaches of Principle 1 and Principle 7; one complaint upheld on basis that action taken insufficient

(1) 1 September broadcast – joke about baby playing with blowtorch – Principle 1 – uphold – Principle 7 –
     not mindful of children – uphold

(2) 1 September broadcast – comment about "humping fists" – Principle 1 – no uphold

(3) 4 September broadcast – defecation story – Principle 1 – uphold

(4) 5 September broadcast – Women’s Refuge "joke" – Principle 1 – uphold – Principle 7 – denigrates 
     women – uphold

(5) 7 September broadcast – sexual reference – Principle 1 – uphold

(6) 14 September broadcast – child subject of story about drug use/sexual behaviour – Principle 1 –
     uphold – Principle 7 – not mindful of children – uphold

(7) 21 September broadcast – reference to "come" – Principle 1 – no uphold

(8) 21 September broadcast – allusions to child abuse – Principle 1 – uphold

(9) 12 October broadcast – reference to necrophilia – Principle 1 – action taken insufficient – uphold

Part II interim decision issued – submissions on penalty called for de novo

Order
Total costs to the Crown in the sum of $8250

This headnote does not form part of the decision.

Explanatory Notes – 19 July 2001

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Summary of Decision – Parts I & II

R K Watkins complained to The RadioWorks Ltd, the broadcaster, about 14 items broadcast on The Rock on the mornings of 1, 4, 5, 7, 14, 15 and 21 September 2000, and 11 and 12 October 2000. She considered that aspects of the broadcasts breached the requirement in Principle 1 of the Radio Code of Broadcasting Practice that broadcasters maintain standards consistent with the observance of good taste and decency, and the requirement in Principle 7 of the Radio Code that broadcasters be socially responsible.

The RadioWorks upheld three of Ms Watkins’ complaints as breaches of good taste (Principle 1). The broadcaster declined to uphold the other complaints as breaches of good taste, arguing that, in the context of The Rock’s 18-39 year old male target audience, Principle 1 had not been breached. The RadioWorks declined to uphold any of the complaints as breaches of the requirement that broadcasters be socially responsible (Principle 7), maintaining that each of the broadcasts was a "legitimate attempt at humour" permitted under Guideline 7a of Principle 7.

Dissatisfied with The RadioWorks’ responses, Ms Watkins referred the complaints to the Broadcasting Standards Authority under section 8(1)(a) of the Broadcasting Act 1989.

The Authority considered each of the complaints separately, under Principle 1 (good taste and decency) and Principle 7 (social responsibility) of the Radio Code of Broadcasting Practice.

Part I

In Part I of the Decision, the Authority upheld five of the complaints as breaches of Principle 1, and three of the complaints as breaches of Principle 1 and Principle 7. In relation to one of the complaints The RadioWorks had upheld, the Authority upheld Ms Watkins’ complaint that the action taken by the broadcaster was insufficient.

In January 2001, the Authority released to the parties Part I of the Decision. Part I of the Decision was the Authority’s interim decision, in which it invited the parties to make submissions on penalty in relation to the upheld complaints.

The Authority subsequently received an extensive submission from The RadioWorks. The broadcaster’s submission raised a number of substantive points concerning the New Zealand Bill of Rights Act 1990, and the right to freedom of expression enshrined in section 14 of that Act.

When the Authority invites parties to complaints to make submissions on penalty, it informs the parties that the invitation is not to be regarded as an opportunity to re-litigate the complaints. On this occasion, however, the Authority determined that the broadcaster’s submission was a "relevant submission" which it was required to have regard to under section 10(1)(b) of the Broadcasting Act 1989. The Authority, therefore, determined to consider de novo (afresh) the complaints which it had upheld against The Rock in Part I of the Decision. In considering the complaints de novo, the Authority took into account the substantive points raised in The RadioWorks’ submission.

Part II

In Part II of the Decision, the Authority upheld three of the complaints as breaches of Principle 1, and three of the complaints as breaches of Principle 1 and Principle 7. In relation to one of the complaints The RadioWorks had upheld, the Authority upheld Ms Watkins’ complaint that the action taken by the broadcaster was insufficient.

The Authority released to the parties Part II of the Decision. It again invited the parties to make submissions on penalty, in relation to the complaints it upheld in Part II of the Decision.

The Authority received submissions on penalty from the complainant and the broadcaster. After giving due consideration to the submissions, the Authority determined to order The RadioWorks to pay the sum of $8250 in costs to the Crown, that sum being the total of the penalties for each of the seven upheld complaints.

DECISION – PART I

The members of the Authority have read the correspondence listed in the Appendices. On this occasion the members have not listened to the items complained about. However, the broadcaster does not dispute the complainant’s summaries. The Authority determines these complaints without a formal hearing.

The Complaints

R K Watkins complained to The RadioWorks about morning broadcasts on The Rock on 1, 4, 5, 7, 14, 15 and 21 September 2000, and on 11 and 12 October 2000. The aspects of the broadcasts she complained about were:

• 1 September (7.29am) – joke about charred baby
• 1 September (7.42am) – reference to blonde woman as "stupid bitch" for not knowing
                                       about "Pussy Treats"
• 1 September (8.45am) – discussion about human cloning and how, if God hadn’t
                                       cloned woman from man, "we’d all be humping our fists"
• 1 September (6.22am) – reference to "filthy shocker of a joke" and not listening if
                                       "you are going to write letters to the BSA"
• 4 September (6.20am) – story about high school students and defecation
• 5 September (6.32am) – joke about woman leaving Women’s Refuge
• 7 September (6.22am) – discussion with caller about pop group, "rooting" and
                                       cordless mikes
• 14 September (7.40am) – joke about 4-year-old boy "popping pills, licking pussy, and
                                        moving on"
• 15 September (6.40am) – promo inviting women to "build penises out of play dough"
• 15 September (8.10am) – use of the word "fuck" during interview with music group
• 21 September (6.33am) – story about daughter asking mother: "How did you get the
                                        come out of your hair?"
• 21 September (6.37am) – announcer describes meal out being ruined by children and says: "If it had been me … Slap! Would have given him a tap over the back of the head … a couple of teeth out … he wouldn’t do it again!"
• 11 October (8.21am) – advertising compilation CD for The Rock, announcer jokes about dropping rock on baby, with sound of baby and noise of heavy object landing. Trailer ends with: "There’s something for everyone, except for your crusty old grandmother who pisses her pants when she coughs."
• 12 October (6.28am) – male "pick-up" lines including: He says "If I saw you naked, I’d die a happy man." She replies: "If I saw you naked I’d die laughing." To which he says: "That’s all right with me, as long as you’re still warm when I stick it up your arse."

Ms Watkins considered that the broadcast items referred to above breached standards relating to good taste and decency and social responsibility, and that aspects of the broadcasts also breached standards relating to the maintenance of law and order. She asked that her complaints be assessed under the following standards contained in the Radio Code of Broadcasting Practice:

Principle 1

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

Guidelines

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 2

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the maintenance of law and order.

Guidelines

2a  Care should be taken in broadcasting items which explain the technique of crime in a manner which invites imitation.

Principle 7

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

Guidelines

7a  Broadcasters will not portray people in a manner which 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 does not extend to prevent the broadcast of material which is:

i) factual; or

ii) a genuine expression of serious comment, analysis or opinion; or

iii) by way of legitimate humour or satire.

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

7c  The time of transmission is an important consideration in the scheduling of programmes which contain violent themes.

7d  If a programme is likely to disturb, an appropriate warning should be broadcast.

The RadioWorks’ Responses

In relation to the items broadcast on 1, 4, 5 and 7 September, The RadioWorks responded directly to Ms Watkins and declined to uphold her complaints. It referred her to Guideline 1a of Principle 1 and Guideline 7a of Principle 7 of the Radio Code of Broadcasting Practice to support the comments made on air.

At Ms Watkins’ request, in relation to the complaints about the items broadcast on 14, 15 and 21 September and on 11 and 12 October, The RadioWorks responded directly to the Authority. In its responses, the broadcaster upheld as breaches of good taste three of the complaints. They were:

• use of the word "fuck" during an interview with the rock band Weta on 15 September. Apologising for any distress caused, the broadcaster explained that "unexpected technical difficulties" had prevented the announcer from deleting the expression. The broadcaster reassured the Authority that the incident was "one-off" and would not happen again.
• the advertisement for The Rock’s CD broadcast on 11 October. The broadcaster advised that the advertisement had been withdrawn. It also suggested that this complaint was more appropriately a matter for the Advertising Standards Complaints Board
• one of the male "pick-up" lines broadcast on 12 October. The broadcaster apologised for the "indiscretion" and advised that the announcer concerned had received a "verbal warning" in relation to the incident, and had been reminded of his responsibilities under the Radio Code of Broadcasting Practice.

The RadioWorks declined to uphold the other complaints. It maintained that on each occasion the broadcast was permitted under Guideline 7a of Principle 7 as a "legitimate attempt at humour" targeted at The Rock’s target audience of 18–39-year-old males.

Concerning the remarks broadcast on 21 September about knocking out a child’s teeth, the broadcaster responded that the remarks were "tongue in cheek" and were never intended to be taken seriously. As such, they were a "legitimate attempt at humour" and did not breach standards. However, the broadcaster acknowledged Ms Watkins’ concerns about child abuse and agreed that the remarks were of "an insensitive nature." The broadcaster advised that the announcer concerned had been spoken to and had agreed the comments were inappropriate.

Finally, the broadcaster asked the Authority to take into consideration the costs incurred by The RadioWorks when dealing with Ms Watkins’ complaints. It requested compensation for costs incurred.

The Referrals to the Authority

Dissatisfied with the broadcaster’s response to her complaints about the items broadcast on 1, 4, 5 and 7 September, Ms Watkins referred them to the Authority under section 8(1)(a) of the Broadcasting Act 1989.

In her referral, she commented that it was "obvious from [the broadcaster’s] standardised response that no complaint I bring to the attention of The RadioWorks will be properly addressed." She complained that the broadcaster was not taking its statutory obligation to respond to formal complaints seriously.

The RadioWorks’ responses to the Authority about the 1, 4, 5 and 7 September complaints made the following points:

• It said Guideline 7a of Principle 7 of the Radio Code of Broadcasting Practice allowed broadcasters to use legitimate humour or satire.
• The Authority was asked to note that The Rock "broadcasts disclaimers on an ongoing basis warning the community that the radio station is for adults."
• The broadcaster said The Rock was a well known radio station targeted at 18-39 year old males, who had the "right to enjoy a radio station [which caters] to their humour and their way of life."
• It maintained any on-air reference to the BSA was not a retaliation directed at the complainant.
• The broadcaster expressed concern at the "threatening and abusive language Ms Watkins uses when referring to RadioWorks staff" and asked that Ms Watkins show "some form of restraint" when lodging complaints.
• The broadcaster again asked the Authority to consider costs incurred in dealing with Ms Watkins’ "35-plus" complaints.

The Complainant’s Final Comments

In relation to the broadcaster’s failure to uphold her complaints about the items broadcast on 1, 4, 5 and 7 September, Ms Watkins made the following comments:

• She said The Rock’s humour was of a "constant exploitative nature invariably directed at women and children."
• She asserted that no disclaimers were ever broadcast on The Rock and urged the Authority to investigate further this "fabricated claim".
• She expressed concern at the number of children who called the station and spoke on air. She gave an example of a young child who waited on the line while the announcer told an adult caller: "The answer isn’t porking some chap’s chick, mate."
• She said she had heard children as young as three having their names read out on The Rock’s "morning birthday calls" segment.
• She urged the Authority not to accept The RadioWorks’ "continual defence" that its target audience had the right to enjoy a radio station which catered to its humour and way of life. Degrading women and exploiting the innocence of children must never be encouraged as a way of life, she said.

As to the broadcaster’s comment that she had been threatening and abusive when referring to The RadioWorks’ staff, Ms Watkins said she found the remark both offensive and untrue. Considering the "appallingly distasteful material" that had been the subject matter of her complaints, she had exercised considerable restraint when dealing with The RadioWorks, and would continue to do so in the future, she said.

In relation to the broadcaster’s failure to uphold her complaints about three of the items broadcast on 14, 15 and 21 September, Ms Watkins made the following additional comments:

• She said she would not accept The RadioWorks’ "insidious response" that humour exploiting the innocence of children was "somehow acceptable when targeted at an 18–39 year old male audience."
• She argued the right of children to be protected from all forms of "inappropriate portrayal" was paramount and should be given priority over the station’s belief that its target audience had the right to enjoy a radio station which catered to its humour and way of life.
• She said it was foolish to suggest that a radio station was able to restrict itself to a particular age group.

With regard to the broadcaster having upheld her complaint about the use of the word "fuck" on 15 September 2000, the complainant said she found it ironic that the same announcer had used the same expression several weeks later.

In relation to the upheld complaints, she said:

There is nothing sincere about The RadioWorks’ response …, nothing that would assure me [the broadcaster] even takes the complaint seriously, and certainly nothing to suggest the language and behaviour of The Rock’s announcers … will ever change.

The complainant accepted that her complaint about the advertisement on 11 October was probably not within the Authority’s jurisdiction.

In relation to the broadcaster having upheld her complaint about the "pick-up line" broadcast on 12 October, the complainant said she was "quite certain" that the matter had not been dealt with adequately by The RadioWorks’ management. She wrote:

If [the announcer] did receive the verbal warning [the broadcaster] claims he did, then why did [the announcer] go on to read a poem (on 19 October at 8.36am), this time about the rape of a prostitute?

I do not believe for one minute that [the announcer] has any idea whatsoever what his responsibilities under the Radio Code of Broadcasting Practice are, or that he really cares.

As to the broadcaster’s request that the Authority impose costs against her, Ms Watkins stated:

If The RadioWorks management were more active in the prevention of such broadcasts, they would not need to spend time on complaints as a result of allowing such distasteful comments, remarks and "jokes" to go to air in the first place.

She asked the Authority to impose "an appropriate penalty." She suggested the announcer broadcast a sincere apology and a statement that "neither he personally, or the station, support[ed] or encourag[ed] sexual violence towards women, which is not only repugnant but also unlawful", and that the announcer recognise that his comments were not humorous but "highly distasteful and offensive".

Ms Watkins contended that the kinds of "jokes" she had complained about were commonplace on The Rock and "merely the tip of the iceberg."

She said she believed broadcasting to an audience of 268,000 people carried with it a "great deal of responsibility and power", and that The RadioWorks had abused its power.

She said the subject matter routinely broadcast on The Rock exploited the innocence of children and degraded women. She wrote:

Condoning this subject matter is one thing, but for The RadioWorks to actually defend it is very concerning.

In determining the complaints, Ms Watkins asked the Authority to take into consideration the time of day the comments and jokes had been broadcast, and their cumulative effect on unsupervised children.

The Authority’s Findings

The Authority considers each of the complaints separately, against the standards nominated by the complainant. On this occasion it has not listened to the items complained about. However, it notes that the broadcaster does not dispute the complainant’s version of the broadcasts.

1 September broadcast

The first of four aspects of The Rock’s 1 September broadcast about which Ms Watkins complained was a "joke" told by a fictitious character who called the radio station at 7.29am. The question: "What’s charred black and smells really bad?" was answered with: "A baby playing with a blowtorch."

The Authority considers this aspect of the complaint under Principle 1 and Principle 7 of the Radio Code of Broadcasting Practice. In doing so, it takes into account that the broadcast occurred at a time when children could reasonably be expected to be in the listening audience.

In the Authority’s view, this "joke" was in sufficiently bad taste as to breach Principle 1. In addition, it considers that by allowing it to go to air at 7.29am, the broadcaster was not sufficiently mindful of its effect on children, so as to also breach Guideline 7b of Principle 7.

The second aspect of the 1 September complaint concerned a comment made by another fictitious caller to the station a few minutes later, at 7.42 am, who referred to a blonde woman as a "stupid bitch" for not knowing that the "Pussy Treats" she had bought at the supermarket were for cats.

In relation to this comment, the Authority observes that one of The Rock’s main platforms for what it describes as "legitimate attempts at humour" appears to be the denigration of women. The Authority cautions the broadcaster about the cumulative effect of such comments. In its view, this comment only narrowly avoids breaching broadcasting standards.

Ms Watkins also complained about a comment made at 8.45am by one of The Rock’s DJs, in a discussion about human cloning, to the effect that if God had not cloned woman from man "we’d all be humping our fists." The Authority considers that this comment is one which does go beyond the bounds of acceptability and, as such, upholds this aspect of the complaint as a breach of Principle 1. However, it does not consider the comment encouraged the denigration of women to the extent envisaged by Principle 7, and therefore it declines to uphold a breach of that principle.

The Authority declines to determine the final aspect of the 1 September complaint. This aspect related to a DJ’s invitation to listeners earlier that morning, at 6.22am, to stay tuned for a "filthy shocker of a joke." Ms Watkins complained that the DJ had then said: "So don’t listen in if you are going to write letters to the BSA." Given that she has previously made a number of complaints to The Rock, the complainant inferred that this comment was directed at her. In the Authority’s view, none of the broadcasting standards are directly applicable to this aspect of the complaint, which it declines to determine.

4 September broadcast

The complainant wrote that on 4 September at 6.20am one of the DJs told a story about a group of high-school students who suspected a female classmate of being male. According to the story, one of the male students, intent on finding out, asked her on a date. The DJ reported that, after driving to a make-out spot, the supposedly female classmate excused herself to urinate. The male, thinking this would be his chance to find out whether she was really female, opened the car door to watch. The DJ then recounted how "he saw a long dark shadow hanging between her legs" but after further inspection discovered she was in fact defecating.

In the Authority’s view, in spite of the early timing of this broadcast, this story was so crude as to be unacceptable. As such, it upholds the complaint as a breach of Principle 1. On this occasion, it does not uphold the complaint as a breach of Principle 7 because it considers the story was told too early in the morning to have had any discernible effect on children.

5 September broadcast

This complaint relates to a "joke" told by a DJ at 6.32am. The question was: "What’s the first thing a woman does when she leaves a Women’s Refuge?" The answer was: "The dishes, if she knows what’s good for her."

This "joke" is of particular concern to the Authority. First, in the Authority’s view the "joke" is in such bad taste as to constitute a breach of Principle 1. In addition, its overtones of denigration of women and contempt for females are such as to be socially irresponsible in contravention of Principle 7. The Authority does not accept The Rock’s defence that this sort of "joke" can be defended on the basis that it is a legitimate attempt at humour. In the Authority’s view, there is nothing humorous about making fun of women who have been subject to domestic violence, and to encourage listeners to do so is socially irresponsible.

7 September broadcast

Ms Watkins complained that at 6.22am on 7 September, in a discussion with a caller about the female pop group Bardot, one of the DJ’s mentioned something about "rooting" an Australian and then said: "just imagine a Penthouse lessie spread with Sophie and Tiffany, not the ginger-haired one though … and cordless mikes!" According to the complaint, another of the DJs responded to this comment by exclaiming: "Oh God, you’ve gone too far now!"

In the Authority’s view, the sexually explicit nature of these comments goes beyond the bounds of good taste. It upholds this complaint as a breach of Principle 1.

14 September broadcast

This complaint concerns a "joke" told by a DJ at 7.40am on 14 September. In the joke, a 4-year-old boy is playing outside on some steps. According to the DJ: "The boy has a bag of M&Ms in one hand and a cat in the other. He puts two M&Ms in his mouth, licks the cat, and then moves down one step. He continues to do this all the way to the bottom of the steps, then goes to the top and starts over. When the boy’s mother asks him what he is doing, the boy replies, "I’m playing truck drivers". His mother asks him, "What do you mean?" He says, "I’m popping pills, licking pussy, and moving on.""

In the Authority’s view, having a 4-year-old child as the subject of a "joke" about drug use and sexual behaviour is unacceptable. Not only does it breach the good taste principle, but the Authority also upholds the complaint as a breach of Guideline 7b of Principle 7. The broadcast occurred at a time when children can reasonably be expected to be in the listening audience and for the Authority this is evidence that the broadcaster was not mindful of its effect on children. In addition, by having a child as its subject the Authority views the "joke" as encouraging children to listen.

15 September broadcast

The first aspect of this complaint relates to a promotional trailer advertising a pub competition where women were invited to come along and "build penises out of play dough." The Authority notes that it has no jurisdiction over advertisements and declines to determine this complaint.

The second aspect of the 15 September complaint relates to the expression "two fucking days" being used in an interview with a New Zealand music group. The broadcaster upheld this aspect of the complaint, advising that "it wouldn’t happen again". The complainant referred the complainant to the Authority on the grounds that the action taken by the broadcaster was insufficient, and that she had heard the same words again on The Rock.

In this instance, the Authority will accept the broadcaster’s assurance that such language will not be repeated. However, it warns the broadcaster that if further similar complaints are upheld, the broadcaster’s assurance to the Authority will be taken into account when considering penalty.

21 September broadcast

In the first of two aspects of the 21 September broadcast complained about, Ms Watkins reported that at 6.33am a DJ had described how a daughter asked her mother: "How did you get the come out of your hair?"

Again, the Authority considers this comment in bad taste and upholds a breach of Principle 1. It declines to uphold this aspect of the complaint as a breach of Principle 7 on the grounds that children were unlikely to have been in the listening audience at that hour of the morning and that, in any event, they may not have understood the comment.

The second aspect of the complaint relates to a DJ’s account, at 6.37am, of a meal out the night before which had apparently been ruined by a table of young children. One of the children was described as a "little bastard" and a "little shit" and the DJ then expressed disgust at an apparent lack of parental discipline. Ms Watkins complained that the DJ said: "If it had been me … Slap! Would have given him a tap over the back of the head … a couple of teeth out … he wouldn’t do it again!"

The Authority believes such explicitness by reference to the physical punishment of children is unacceptable and a breach of broadcasting standards. It upholds this aspect of the complaint as a breach of Principle 1. However, it takes into account that the comments were made in a flippant, off-hand manner, and considers that they were not intended to encourage the law to be broken in the manner envisaged by Principle 2. In the Authority’s view it was too early in the morning for the story to have had much of an impact on children and therefore it declines to uphold this aspect of the complaint as a breach of Principle 7.

11 October broadcast

At 8.21am on 11 October, in an advertisement for a compact disc for The Rock, Ms Watkins complained that the announcer had joked about dropping a rock on a baby. The Rock advised that the advertisement had been withdrawn.

As with the first aspect of the 15 September complaint, the Authority notes that complaints about advertisements are not within its jurisdiction, and it declines to determine this complaint.

12 October broadcast

At 6.28am on 12 October, the announcer recited a number of male "pick-up" lines. The final one was reported as: "He says: "If I saw you naked, I’d die a happy man." She replies: "If I saw you naked I’d die laughing." To which he says: "That’s all right with me, as long as you’re still warm when I stick it up your arse.""

The broadcaster upheld this complaint as a breach of good taste and advised that the announcer had received a "verbal warning" and been reminded of his responsibilities under the Radio Code. According to the complainant, following the warning she had heard "jokes" of a similar nature. She referred the complaint to the Authority on the grounds that the action taken by the broadcaster was insufficient.

The Authority considers this reference to necrophilia a serious breach of good taste. It notes that it is not its role to interfere with The Rock’s management of employee relations. However, in view of the pattern of complaints and the nature of the correspondence before it, the Authority needs to be confident that there is accountability for broadcasting standards. According, it upholds the complaint that the action taken was insufficient.

General

The Authority now addresses the broadcaster’s request that costs be imposed against Ms Watkins for the time taken by The Rock to deal with her numerous complaints.

Under section 16(1) of the Broadcasting Act 1989, the Authority is empowered to order a party to a complaint to pay the reasonable costs of the other party. However, the Authority notes, under section 16(2) its power to order costs against complainants is limited to complaints which in the Authority’s opinion are frivolous, vexatious or ought not to have been made.

The Authority is of the opinion that none of the complaints made by Ms Watkins thus far are frivolous, vexatious or ought not to have been made. It declines to order costs against the complainant and reminds the broadcaster of its duty under the Act to receive and consider formal complaints, including those legitimately pursued by Ms Watkins.

The Authority has received 28 complaints against The Rock in the last four months, more than half of which have been upheld as breaches of broadcasting standards. It wishes to put on record that a continued pattern of upheld complaints will influence the penalties imposed.

For the reasons given, the Authority upholds the complaints that:

• a broadcast on The Rock on 1 September 2000 at 7.29am breached Principle 1 and Principle 7 of the Radio Code of Broadcasting Practice
• a broadcast on The Rock on 1 September 2000 at 8.45am breached Principle 1 of the Radio Code of Broadcasting Practice
• a broadcast on The Rock on 4 September 2000 at 6.20am breached Principle 1 of the Radio Code of Broadcasting Practice
• a broadcast on The Rock on 5 September 2000 at 6.32 am breached Principle 1 and Principle 7 of the Radio Code of Broadcasting Practice
• a broadcast on The Rock on 7 September 2000 at 6.22am breached Principle 1 of the Radio Code of Broadcasting Practice
• a broadcast on The Rock on 14 September 2000 at 7.40am breached Principle 1 and Principle 7 of the Radio Code of Broadcasting Practice
• a broadcast on The Rock on 21 September 2000 at 6.33am breached Principle 1 of the Radio Code of Broadcasting Practice
• a broadcast on The Rock on 21 September 2000 at 6.37am breached Principle 1 of the Radio Code of Broadcasting Practice
• the action taken in relation to a broadcast on The Rock on 12 October 2000 at 6.28am was insufficient

The Authority declines to determine the complaints that aspects of broadcasts on The Rock on 1 and 15 September and 11 October 2000 breached Principle 1 and Principle 7 of the Radio Code of Broadcasting Practice.

The Authority declines to uphold any other aspect of the complaints.

Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. Accordingly, it invited submissions on penalty.

DECISION – PART II

Introduction

When the Authority calls for submissions on penalty, it informs the parties that their submissions should be restricted to issues relevant to the question of penalty. The parties are also advised that the invitation to make submissions on penalty is not to be regarded as an opportunity to re-litigate the decision.

Following the issue of Part I of this Decision, the Authority received an extensive submission from The RadioWorks. The RadioWorks’ submission began by acknowledging the Authority’s direction that the invitation to make submissions on penalty was not to be regarded as an opportunity to re-litigate the complaints. However, the submission raised a number of substantive points.

Section 10 of the Broadcasting Act 1989 states:

10. Consideration and determination of complaints by the Authority –

(1) The Authority may, if it thinks fit, consider and determine any complaint referred to it under section 8 of this Act without a formal hearing, but, in that case, –

1. Shall give the complainant and the broadcaster a reasonable opportunity to make submissions to it in writing in relation to the complaint; and
2. Shall have regard to all relevant submissions made to it in writing in relation to the complaint.

(2) In considering every complaint referred to it under section 8 of this Act, the Authority shall provide for as little formality and technicality as is permitted by –

1. The requirements of this Act; and
2. A proper consideration of the complaint; and
3. The principles of natural justice.

The Authority determined that on this occasion the broadcaster’s submission was a "relevant submission" under section 10(1)(b) of the Act. It has therefore considered de novo the complaints which were upheld against The Rock in Part I of this Decision, taking into account the substantive points raised in the submission, particularly those relating to Bill of Rights considerations and freedom of expression considerations.

The RadioWorks’ Submission

The RadioWorks’ submission covered 23 pages and made 91 separate points. As well as arguing that no penalty should be imposed, The RadioWorks submitted, in summary:

1. The Authority made an error of law in not giving sufficient weight to the right to freedom of expression enshrined in section 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights).
2. In restricting free speech, the Authority failed to satisfy the test set out in section 5 of the Bill of Rights which requires that any restriction to the rights and freedoms contained in the Bill be subject "only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
3. The Authority’s approach to the Bill of Rights was inconsistent with recent court decisions, in particular the Court of Appeal’s decision in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9.
4. In Moonen, the Court interpreted the test in section 5 of the Bill of Rights to mean that the restriction on free speech must be proportionate to the objective sought to be achieved; the restriction must be rationally connected to the objective; and the restriction must impair the right to freedom of expression to the least possible extent. The RadioWorks argued the Authority failed to take Moonen into account.
5. The restrictions imposed by the upheld complaints on the broadcaster’s right to impart information and on the right of The Rock’s audience to receive information were "disproportionate to the chilling effect on freedom of expression" that was created, and did not impair the right to freedom of expression to the least possible extent.
6. The Authority failed to recognise the significance of Ms Watkins being the sole complainant.
7. The Authority failed to give adequate recognition to the contextual factor of The Rock’s target audience of 18–39-year-old males when considering norms of good taste and decency. In doing so, it effectively deprived a "significant segment of the market of a radio station that they want to listen to."
8. Much of the material complained about was "legitimate humour or satire" which was specifically allowed for under Principle 7 of the Radio Code.
9. None of the upheld complaints met the "high threshold that is required in order for speech to be silenced."
10. The Authority failed to take into account that The Rock broadcast regular disclaimers and warnings to the effect that it was a station for adults.

Ms Watkins’ Response to the Broadcaster’s Submission

The Authority invited the complainant to respond to the broadcaster’s submission. Although Ms Watkins did not respond directly to the Authority, in a letter to the broadcaster dated 28 February 2001 Ms Watkins commented on its submission. The complainant quoted from the Authority’s findings in Decision No: 2000-137, where the Authority said:

The Authority records that the Codes of Broadcasting Practice are developed by broadcasters, and subsequently approved by the Authority as provided by section 21 of the Broadcasting Act.

… the Authority must have regard to the right to freedom of expression as provided in the New Zealand Bill of Rights Act 1990. […] It is well established in Bill of Rights jurisprudence that limits placed on the right to receive information must be proportionate to the objective of such limits. If the objective is, for example, to protect children, then a reasonable limit could be to restrict material to adult [listening] times and to give a warning prior to the broadcast.

Ms Watkins wrote:

An avid listener as I have become, I am yet to hear any of the warnings and disclaimers that you say exist on The Rock.

The complainant drew the broadcaster’s attention to section 19 of the Bill of Rights, which provides that everyone has the right to freedom from discrimination.

In her view, the fact that she was the sole complainant was irrelevant to the outcome of the Authority’s decisions. The issue, she stated, was whether or not the Radio Code of Broadcasting Practice had been breached, and not who had referred the complaints.

Correspondence from the Commissioner for Children

Following receipt of a complaint from Ms Watkins, the Commissioner for Children, Hon Roger McClay, wrote to the Authority expressing his Office’s concerns about broadcasting standards at The Rock. The Authority accepted the correspondence from the Commissioner as a relevant submission under section 10(1)(b) of the Act.

The Commissioner wrote:

Several advocates from our office have viewed the material and we are in agreement with Ms Watkins. The timing of these comments and dialogue mean the station cannot predict the age of their audience, particularly where they also run segments targeted at children, such as birthday calls and the like.

In a further letter to the Authority, Mr McClay reminded the Authority of articles 3 and 17 of the United Nations Convention on the Rights of the Child, to which New Zealand is a signatory. The articles state:

Article 3(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 17 State Parties recognise the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, State Parties shall:

(a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29;
…
(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18.

The Authority considered the United Nations Convention on the Rights of the Child was relevant to its consideration de novo of the complaints. Having reached this view, it informed the parties. No response was received from the parties.

The Broadcasting Act 1989, the Legal Framework, and the Radio Code of Broadcasting Practice

"Broadcasting" is defined in section 2 of the Broadcasting Act 1989, as follows:

"Broadcasting" means any transmission of programmes, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus but does not include any such transmission of programmes -

1. Made on the demand of a particular person for reception only by that person; or
2. Made solely for performance or display in a public place.

The Act sets out the Authority’s powers and functions. It also sets out the obligations of broadcasters. They must observe the standards set out in the Act itself, and in the codes of practice developed and approved pursuant to the Act. Broadcasters’ obligations, as set out in section 4(1), include:

4. Responsibility of broadcasters for programme standards – (1) Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with
    –

(a) The observance of good taste and decency; and
            …
(e) Any approved code of practice applying to the programmes.

The obligation to maintain standards consistent with the observance of good taste and decency applies to broadcasters by virtue of section 4(1)(a) and therefore is independent of any code of practice which may exist pursuant to section 21. This standard relates to all broadcasters irrespective of the type of broadcasting.

While a code of practice may serve to give clarity and guidance as to the standards of "good taste and decency," in the end it is section 4(1)(a) itself which must be interpreted and applied whenever it is alleged that a broadcaster has failed to comply with standards of good taste and decency.

Under section 21 of the Act, the Authority is charged with encouraging the development of codes. The Act sets out matters to which the codes may relate, as follows:

21. Functions of the Authority – (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 -

1. The protection of children:
2. The portrayal of violence:
3. Fair and accurate programmes and procedures for correcting factual error and redressing unfairness:
4. Safeguards against the portrayal of persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, race, age, disability, or occupational status or as a consequence of legitimate expression of religious, cultural, or political beliefs:
5. Restrictions on the promotion of liquor:
6. Presentation of appropriate warnings in respect of programmes including programmes that have been classified as suitable only for particular audiences:

A common feature of these provisions is that they are concerned with the avoidance of harm or other adverse consequences of broadcast material. They reflect a legislative judgment that broadcast material may cause harm of the type referred to in each sub-section, and that codes of practice should seek to prevent the occurrence of that harm or to mitigate it.

The Radio Code of Broadcasting Practice, which came into effect on 1 July 1999, was prepared by the Radio Broadcasters Association and Radio New Zealand Ltd on behalf of commercial broadcasters and RNZ, and approved by the Authority under section 21 of the Act. The RadioWorks New Zealand Ltd, owner of The Rock, is a member of the Radio Broadcasters Association.

The Preamble to the Radio Code states that the Code "aims to ensure compliance with the law, prevention of misleading or deceptive practices, and social responsibility." With respect to the complaints against The Rock, as earlier explained the relevant principles are Principles 1 and 7 of the Radio Code of Broadcasting Practice. They are set out on pages 4 and 5 of Part I of this Decision.

The New Zealand Bill of Rights Act 1990, Freedom of Expression, and the Court of Appeal’s Decision in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9

Section 3 of the Bill of Rights states:

3. Application – This Bill of Rights applies only to acts done-

1. By the legislative, executive, or judicial branches of the government of New Zealand; or
2. By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

As the statutory body charged with the public function of encouraging broadcasters to maintain broadcasting standards, the Bill of Rights applies to the Broadcasting Standards Authority and to its function of determining complaints.

The essence of The RadioWorks’ submission was that the Authority failed to have regard to section 5 of the Bill of Rights, which states:

5. Justified limitations – Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In the broadcaster’s view, the upheld complaints represented an unreasonable limit on the right to freedom of expression. That right is enshrined in section 14 of the Bill of Rights, which states:

14. Freedom of expression – Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

The relationship between freedom of expression and the censorship of objectionable publications was the issue confronting the Court of Appeal in the Moonen case. The Court held that the Film and Literature Board of Review had erred in law by not giving proper consideration to the relevant provisions of the Bill of Rights when it determined that a book and various photographs were objectionable in terms of section 3 of the Films, Videos and Publications Classification Act 1993. The Court directed the Board to reconsider the classification of the publications in accordance with the law as expressed in its judgment.

The Authority notes that the Court of Appeal’s decision in the Moonen case was concerned with censorship. It also notes that The RadioWorks’ submission appeared to be in large part based on an assumption that the Authority has censorship powers in the issue before it. In the Authority’s view, there is a considerable difference between a censorship regime and the broadcasting standards regime in terms of the manner in which they impact on freedom of expression. Censorship laws may prevent the publication of material. With one exception, however the Broadcasting Act does not prevent the broadcast of material which may be in breach of broadcasting standards.¹ Instead, the legislation regulates material which has already been broadcast. It acts as a restraint on free expression through its provision to allow the imposition of penalties, subject to a complaint first being lodged with the broadcaster, the broadcaster declining to uphold the complaint, the complainant referring the complaint to the Authority, and the Authority upholding the complaint and deciding a penalty is warranted.

The Court of Appeal in Moonen set out a procedure for bodies concerned with applying the Bill of Rights, when the provisions of their governing Act abrogate or limit the rights and freedoms affirmed by the Bill of Rights. The Authority accepts the need to consider anew the complaints which were upheld against The Rock in Part I of this Decision, in light of the Moonen decision. Accordingly, it intends to proceed with a consideration of the complaints following the five step process suggested by the Court in the Moonen decision.

Moonen – Step One
Does the Broadcasting Act 1989 limit the scope of any rights and freedoms under the New Zealand Bill of Rights Act 1990?

Under section 14 of the Bill of Rights, everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any form. The term freedom of expression in the Bill of Rights is wide enough to cover many things including broadcasts depicting, or language including, sexual material. The right to the freedom applies both to broadcasters and to listeners to receive and impart such information.

The Authority has never considered there to be any question that the provisions of the Broadcasting Act, and the codes of broadcasting practice developed by broadcasters and then approved by the Authority under section 21 of the Act, limit the scope of the right to freedom of expression. In applying the standards they have agreed to, broadcasters make decisions every day that limit the scope of the right to freedom of expression. Principle 1 of the Radio Code of Broadcasting Practice requires broadcasters to maintain standards consistent with the observance of "good taste and decency". Principle 7 requires broadcasters to be "socially responsible". Concepts such as "good taste and decency" and the requirement to be "socially responsible" necessarily limit free expression.

Moonen – Step Two
"Good taste and decency" – "Socially Responsible" – the meaning which constitutes the least possible limitation on The RadioWorks’ right to broadcast information and its listeners’ right to receive information

Under section 5 of the Bill of Rights, limits imposed on freedom of expression by the broadcasting standards regime must constitute only such reasonable limitation on freedom of expression as can be demonstrably justified in a free and democratic society. In accordance with Moonen, the Authority must interpret and apply the Radio Code of Broadcasting Practice (and in this case, Principles 1 and 7) in such a way as to limit the right to freedom of expression to the least possible extent.

Terms such as "good taste and decency" are open to different interpretation and can be interpreted in as many ways as there are views in the community.

The Authority is the statutory body charged with interpreting and applying the Broadcasting Act and the codes of broadcasting practice developed and approved under it. The members of the Authority are appointed pursuant to section 26 of the Broadcasting Act, which states:

26. Membership of Authority –
(1) The Authority shall consist of 4 members, who shall be appointed by the Governor-General on the recommendation of the Minister, and of whom one shall be appointed as Chairperson.

(1a) One of the members appointed under subsection (1) of this section shall be appointed after consultation by the Minister with such representatives of the broadcasting industry as the Minister thinks fit.

(1b) One of the members appointed under subsection (1) of this section shall be appointed after consultation by the Minister with such representatives of public interest groups in relation to broadcasting as the Minister thinks fit.

(2) The person appointed to be Chairperson of the Authority shall be a barrister or solicitor of not less than 7 years’ practice of the High Court, whether or not the person holds or has held judicial office.

By virtue of section 26 of the Act, therefore, membership of the Authority is designed to be representative of the views of community groups and broadcasters, with legal expertise provided in the position of Chair.

The Authority notes that interpreting the Act and the codes of broadcasting practice necessarily involves value judgments, judgments which are made based on the experience and expertise of its members, aided by information provided to the Authority, and by the Authority’s research and other relevant material.

The Authority now turns to consider de novo the complaints which were upheld against The Rock in Part I of this Decision. For ease of reference, the full text of the complaint is set out again.

1 September broadcast

The following "joke" was told by a fictitious character who called the radio station at 7.29am. The question: "What’s charred black and smells really bad?" was answered with: "A baby playing with a blowtorch."

The Authority considers that this "joke" constitutes a breach of Principle 1. In the current climate of awareness of the high levels of child abuse in New Zealand society and the community’s heightened sensitivity to that abuse, it finds a "joke" involving the image of a baby setting itself alight with a blow torch unacceptable. In its view, such a "joke" is contrary to current norms of decency and good taste, in spite of what The RadioWorks might argue about the tastes of its target audience. In considering alleged breaches of good taste and decency, context is relevant but not determinative. While The Rock states that it targets 18-39 year old males as its audience, it cannot exclude other listeners. The Authority must also consider the effect of such a "joke" on The Rock’s target audience.

Similarly, the Authority finds that allowing such a "joke" to go to air at 7.29am, when children are highly likely to be in the listening audience, breached Principle 7. The Authority considers the broadcaster to have abrogated its responsibility to be mindful of the effects of its broadcasts on children. According to figures supplied by The RadioWorks itself, nine per cent of The Rock’s listeners are aged 15 and under. Under an interpretation of good taste and decency which least limits the right to freedom of expression, the Authority find this "joke" a breach of Principle 7. The Authority does not accept the broadcaster’s argument that this "joke" can be defended on the basis that it is legitimate humour or satire. In the Authority’s assessment, humour or satire is not legitimate when it breaches other broadcasting standards such as good taste and decency.

Later on the same day, at 8.45am, one of The Rock’s DJs, in a discussion about human cloning, commented to the effect that if God had not cloned woman from man "we’d all be humping our fists." While the Authority finds the comment in poor taste, it declines to uphold the complaint as a breach of Principle 1. The Authority acknowledges that while some members of the community would find the comment offensive, other interpretations are also possible. Applying a Bill of Rights analysis, the Authority prefers to adopt the interpretation which least restricts freedom of expression. In this instance, the Authority considers that upholding the complaint would impose an unjustifiable limit on the broadcaster’s right to free expression.

4 September broadcast

On 4 September at 6.20am, a DJ told a story about a group of high-school students who suspected a female classmate of being male. One of the male students, intent on finding out, asked her on a date. The DJ reported that, after driving to a make-out spot, the supposedly female classmate excused herself to urinate. The male, thinking this would be his chance to find out whether she was really female, opened the car door to watch. The DJ then recounted how "he saw a long dark shadow hanging between her legs" but after further inspection discovered she was in fact defecating.

In the Authority’s view, the visual image created by the sexualised allusion to defecation is contrary to community norms of decency and good taste. Regardless of its target audience of 18–39 year old males, The Rock cannot exclude other listeners, and the Authority must consider the effect of such a story on both the target audience and other listeners. Under an interpretation of good taste and decency which least limits the right to freedom of expression, the Authority find this story a breach of Principle 1.

5 September broadcast

On 5 September at 6.32am, a DJ posed the following question: "What’s the first thing a woman does when she leaves a Women’s Refuge?" The answer given was: "The dishes, if she knows what’s good for her."

The Authority considers this "joke" breached Principle 1 and Principle 7. In a country where the rates of domestic violence are among the highest in the Western world, to use women who, by implication, have been battered as the object of a "joke" which hints at more violence to come, is unacceptable.

The Authority is particularly concerned about this "joke". Its overtones of denigration and contempt for females cannot be defended as legitimate humour. In the Authority’s view, there is nothing humorous about ridiculing women who have been subject to domestic violence, and to encourage listeners to do so is socially irresponsible. To encourage its target audience of 18-39 year old males to find humour in violence against women is a serious breach of broadcasting standards. Under an interpretation of the principles which least limits the right to freedom of expression, the Authority find this "joke" a breach of the requirement for broadcasters to observe good taste and decency and to be socially responsible.

7 September broadcast

Ms Watkins complained that at 6.22am on 7 September, in a discussion with a caller about the female pop group Bardot, one of the DJ’s mentioned something about "rooting" an Australian and then said: "just imagine a Penthouse lessie spread with Sophie and Tiffany, not the ginger-haired one though … and cordless mikes!" According to the complaint, another of the DJs responded to this comment by exclaiming: "Oh God, you’ve gone too far now!"

The Authority considers this complaint breached Principle 1. It believes the sexually explicit nature of the comments goes beyond the bounds of good taste, in particular because the two women named are identifiable human beings who are being treated as objects for the sexual gratification of listeners.

14 September broadcast

In a "joke" told by a DJ at 7.40am on 14 September, a 4-year-old boy was playing outside on some steps. According to the DJ: "The boy has a bag of M&Ms in one hand and a cat in the other. He puts two M&Ms in his mouth, licks the cat, and then moves down one step. He continues to do this all the way to the bottom of the steps, then goes to the top and starts over. When the boy’s mother asks him what he is doing, the boy replies, "I’m playing truck drivers". His mother asks him, "What do you mean?" He says, "I’m popping pills, licking pussy, and moving on."

The Authority considers this "joke" breached Principle 1 and Principle 7. It considers having a 4-year-old child as the subject of a "joke" about allusions to drug use and sexual behaviour is unacceptable. Had the subject of the "joke" been an adult, the Authority might have taken a different view. Here, the broadcaster has not been mindful of the effects of such a "joke" on children who are likely to be in the listening audience. To link a child with connotations of sex and drugs in such a manner, in a way which actively engages them, breaches good taste and decency and is socially irresponsible.

21 September broadcast

In the first of two aspects of the 21 September broadcast complained about, Ms Watkins reported that at 6.33am a DJ had described how a daughter asked her mother: "How did you get the come out of your hair?"

It is the Authority’s view that this complaint should not be upheld as a breach of Principle 1. While at one level the comment may be considered explicitly sexual, whether it breaches current norms of good taste and decency is debatable. For this reason, under a Bill of Rights analysis, the Authority considers upholding the complaint would impose an unjustifiable limit on the broadcaster’s right to freedom of expression.

The second aspect of the 21 September complaint relates to a DJ’s account, at 6.37am, of a meal out the night before which had apparently been ruined by a table of young children. One of the children was described as a "little bastard" and a "little shit" and the DJ then expressed disgust at an apparent lack of parental discipline. Ms Watkins complained that the DJ said: "If it had been me … Slap! Would have given him a tap over the back of the head … a couple of teeth out … he wouldn’t do it again!"

The Authority considers that such explicitness by reference to the physical punishment of children is unacceptable and a breach of broadcasting standards. It upholds this aspect of the complaint as a breach of Principle 1, which, again, is especially unacceptable given current community awareness of child abuse.

12 October broadcast

The final complaint was a male "pick-up" line recited by the announcer at 6.28am on 12 October. He said: "He says: "If I saw you naked, I’d die a happy man." She replies: "If I saw you naked I’d die laughing." To which he says: "That’s all right with me, as long as you’re still warm when I stick it up your arse.""

The Authority notes that the broadcaster upheld this complaint as a breach of good taste and advised that the announcer had received a "verbal warning" and been reminded of his responsibilities under the Radio Code. It strikes the Authority as rather inconsistent that the broadcaster’s submission now claims that such a joke does not cross the threshold required to be a breach. To claim a joke about necrophilia is not a breach of good taste is not tenable. It is the Authority’s assessment that the action taken by the broadcaster was insufficient.

For the reasons given, of the complaints the Authority has considered de novo in Part II of this Decision, it upholds the complaints that:

• a broadcast on The Rock on 1 September 2000 at 7.29am breached Principle 1 and Principle 7 of the Radio Code of Broadcasting Practice
• a broadcast on The Rock on 4 September 2000 at 6.20am breached Principle 1 of the Radio Code of Broadcasting Practice
• a broadcast on The Rock on 5 September 2000 at 6.32 am breached Principle 1 and Principle 7 of the Radio Code of Broadcasting Practice
• a broadcast on The Rock on 7 September 2000 at 6.22am breached Principle 1 of the Radio Code of Broadcasting Practice
• a broadcast on The Rock on 14 September 2000 at 7.40am breached Principle 1 and Principle 7 of the Radio Code of Broadcasting Practice
• a broadcast on The Rock on 21 September 2000 at 6.37am breached Principle 1 of the Radio Code of Broadcasting Practice
• the action taken in relation to a broadcast on The Rock on 12 October 2000 at 6.28am was insufficient

For the reasons given, of the complaints the Authority has considered de novo in Part II of this Decision, it declines to uphold the complaints that broadcasts on The Rock on 1 September 2000 at 8.45am, and on 21 September 2000 at 6.33am, breached Principle 1 of the Radio Code of Broadcasting Practice.

As the Authority ruled in Part I of this Decision, it declines to determine the complaints that aspects of broadcasts on The Rock on 1 and 15 September and 11 October 2000 breached Principle 1 and Principle 7 of the Radio Code of Broadcasting Practice.

The Authority declines to uphold any other aspect of the complaints.

Moonen – Step Three
How does the Authority’s decision to uphold some of the complaints limit the broadcaster’s right to impart information and the right of listeners to receive information?

In upholding some of the complaints, the Authority acknowledges that it is limiting the right to freedom of expression to the extent that the broadcaster may expect a penalty to be imposed. However, the Authority notes, any future penalties would be imposed only if a member of the public first complained to the broadcaster, and then referred the complaint to the Authority on the basis of dissatisfaction with the broadcaster’s decision. A penalty would then be imposed only if the Authority upheld the complaint and decided a penalty was warranted.

If, following this Decision, the broadcaster chooses to restrict the nature of the material it broadcasts in order to comply with the Broadcasting Act and the Radio Code of Broadcasting Practice, and in order to avoid the possibility of future penalties, the Authority notes that listeners’ freedom to receive information could also be restricted.

Moonen – Step Four
Can the limitations imposed by the upheld complaints be justified in a free and democratic society (Bill of Rights, section 5)?

In the Authority’s view, the limitations imposed by the upheld complaints are justified in a free and democratic society, because of the powers conferred by the Broadcasting Act in relation to programme standards.

Parliament, a democratically elected body, has enacted the Broadcasting Act to provide for the maintenance of programme standards in broadcasting in New Zealand. The Act requires broadcasters to maintain standards consistent with the observance of good taste and decency. The Act provides for the development of codes of broadcasting practice which include the protection of children and safeguards against broadcasters portraying persons in a manner that encourages denigration of, or discrimination against, sections of the community. In addition, the Authority notes that its research indicates that the wider community supports the promotion of these objectives. These objectives are also in harmony with New Zealand’s international obligations, including those arising from the United Nations Convention on the Rights of the Child. Broadcasters generally take their obligations seriously and strive to maintain the principles in the codes of broadcasting practice. Therefore, jokes and comments on public radio which denigrate women, exploit children, employ explicit sexual imagery at a time when children are likely to be listening, and implicitly condone violence to women and children, are contrary to the standards radio broadcasters, including The RadioWorks, agreed to when they developed the Radio Code of Broadcasting Practice.

New Zealand’s broadcasting environment is one of the most deregulated in the world. The codes of broadcasting practice are developed by the broadcasters themselves, and then approved by the Authority. The regime is in large part self-regulating, with broadcasters agreeing to abide by certain codes of practice. The Authority’s jurisdiction is limited. It can only adjudicate on alleged breaches of broadcasting standards if a member of the public has first laid a complaint with the broadcaster and is then dissatisfied with the outcome of the broadcaster’s decision. Broadcasters can themselves uphold complaints that they have breached their own standards. Indeed, The RadioWorks upheld as breaches of good taste and decency three of Ms Watkins’ complaints to which this Decision relates.

The Court of Appeal in Moonen warned against using a "sledgehammer to crack a nut." This means that the manner in which the objective of maintaining broadcasting standards is statutorily achieved must be in reasonable proportion to the importance of the objective. In the Authority’s view, the way in which the objectives of the broadcasting standards regime are statutorily achieved is in no way disproportionate to the importance of the objective. First, a degree of motivation on the part of the community is required even before the Authority’s jurisdiction is engaged. Unlike, for example, the Health and Disability Commissioner, the Authority has no power to act on its own motion. The Broadcasting Act allows the Authority to act only on complaints, and then, except in the case of privacy complaints, the complaint must first have been referred to and considered by the broadcaster. The Authority’s jurisdiction is invoked on the referral of one complaint, regardless of the number of complainants. For that reason, the Authority considers the fact that Ms Watkins is the sole complainant irrelevant to its determination of these complaints.

Moonen – Step 5
Is the broadcasting standards regime inconsistent with the rights and freedoms in the Bill of Rights?

For the reasons already given, in the Authority’s view the broadcasting standards regime is not inconsistent with the Bill of Rights. The limits on freedom of expression prescribed by the Broadcasting Act are reasonable limits which can be demonstrably justified in a free and democratic society.

Submissions on Penalty

Having upheld a number of Ms Watkins’ complaints, the Authority again invited the parties to make submissions on penalty, based on its findings in Part II of the Decision.

Ms Watkins submitted that the penalty imposed should reflect the "high number of breaches" and should act as a deterrent against further breaches. She asked the Authority to take into consideration that The RadioWorks had been fined what she described as the "maximum penalty of $5,000" as recently as December 2000. Ms Watkins submitted that it would be inappropriate for the Authority to impose an order directing The RadioWorks to broadcast an apology or a statement summarising its decision. She suggested as an appropriate penalty either an advertising ban or an order directing the broadcaster to refrain from broadcasting for a specified period.

The RadioWorks asked the Authority to take three "mitigating factors" into consideration. First, it said it had not "acted out of malice," and reiterated that its broadcasts were intended as "legitimate attempts at humour or satire". Its intention had not been to avoid or breach broadcasting standards, the broadcaster said. Second,

The RadioWorks said the fact that it had upheld as breaches of good taste three of Ms Watkins’ complaints, and withdrawn an advertisement she had complained about, was evidence that it "continued to keep an open mind" about possible breaches of the Radio Code. Third, the broadcaster submitted that the impact of any breach on the "victim" of the breach was relevant to the question of penalty. It asked the Authority to take into account that the broadcasts were not targeted at a specific individual or group of individuals. The RadioWorks submitted that the same penalty as that imposed by the Authority in December 2000 (see Decision No: 2000-182/191) would be appropriate, given that the present breaches were, in its view, of a "similar nature and degree".

The Authority has given due consideration to the parties’ submissions. Before making its order for penalty, it makes the following observations.

First, the Authority notes that the $5000 penalty it imposed on The RadioWorks in December 2000 was not the maximum penalty. Under section 16(4) of the Broadcasting Act 1989, the maximum penalty by way of costs payable to the Crown is $5000 for each upheld complaint. The $5000 costs imposed in December 2000 was the total of a number of smaller penalties for each of the seven upheld complaints.

The Authority also notes that the complaints upheld in this Decision relate to broadcasts that occurred prior to the release of the December 2000 Decision. The Authority’s order for costs in this Decision, therefore, is not set by reference to the costs imposed in December 2000. Rather, the level of penalties imposed for the present breaches reflects the Authority’s assessment of the seriousness of those breaches. However, the Authority warns that broadcasters who persist in breaching broadcasting standards might expect progressively heavier penalties.

In relation to the broadcaster’s submission that it had never "acted out of malice", the Authority observes that while intent is irrelevant to the question of breach, it may be relevant to penalty to the extent that a broadcaster who flagrantly flouts broadcasting standards might expect to be more heavily penalised.

The Authority makes the following order.

Order

Pursuant to section 16(4) of the Broadcasting Act 1989 the Authority orders The RadioWorks Ltd to pay, within one month of the date of this Decision, the sum of $8250 in costs to the Crown. That sum comprises an award of costs of:

• $1500 in relation to the broadcast on 1 September at 7.29am
• $750 in relation to the broadcast on 4 September at 6.20am
• $2000 in relation to the broadcast on 5 September at 6.32 am
• $500 in relation to the broadcast on 7 September at 6.22am
• $1500 in relation to the broadcast on 14 September at 7.40am
• $500 in relation to the broadcast on 21 September at 6.37am
• $1500 in relation to the broadcast on 12 October at 6.28am

Signed for and on behalf of the Authority

Peter Cartwright
Chair
19 July 2001

Appendix I – 1, 4, 5 and 7 September Complaints

The following correspondence was received and considered by the Authority when it determined these complaints:

1. R K Watkins’ Complaint to The RadioWorks Ltd – 5 September 2000
2. R K Watkins’ Complaint to The RadioWorks Ltd – 7 September 2000
3. The RadioWorks’ Response to the Formal Complaint – 13 September 2000
4. R K Watkins’ Referral to the Broadcasting Standards Authority – 14 October 2000
5. The RadioWorks’ Response to the Broadcasting Standards Authority
   – 14 November 2000
6. R K Watkins’ Final Comment – 27 November 2000
7. The RadioWorks’ Submission – 12 February 2001
8. R K Watkins’ Submission – 13 February 2001
9. R K Watkins’ Letter to The RadioWorks – 28 February 2001
10. R K Watkins’ Submission on Penalty – 18 June 2001
11. The RadioWorks’ Submission on Penalty – 22 June 2001

Appendix II – 14, 15 and 21 September Complaints

The following correspondence was received and considered by the Authority when it determined these complaints:

1. R K Watkins’ Complaint to The RadioWorks Ltd, via the Broadcasting Standards Authority – 21 September 2000
2. The RadioWorks’ Response to the Broadcasting Standards Authority
   – 31 October 2000
3. R K Watkins’ Final Comment – 27 November 2000
4. The RadioWorks’ Submission – 12 February 2001
5. R K Watkins’ Submission – 13 February 2001
6. R K Watkins’ Letter to The RadioWorks – 28 February 2001
7. R K Watkins’ Submission on Penalty – 18 June 2001
8. The RadioWorks’ Submission on Penalty – 22 June 2001

Appendix III – 11 and 12 October Complaints

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

1. R K Watkins’ Complaint to The RadioWorks Ltd – 13 October 2000
2. The RadioWorks’ Response to the Broadcasting Standards Authority
   – 14 November 2000
3. R K Watkins’ Final Comment – 27 November 2000
4. The RadioWorks’ Submission – 12 February 2001
5. R K Watkins’ Submission – 13 February 2001
6. R K Watkins’ Letter to The RadioWorks – 28 February 2001
7. R K Watkins’ Submission on Penalty – 18 June 2001
8. The RadioWorks’ Submission on Penalty – 22 June 2001

Appendix IV

In its determination of the complaints, the Authority also received and considered letters from the Commissioner for Children dated 23 March 2001 and 2 April 2001.

¹Section 13A of the Act allows the Authority to order a broadcaster to withdraw a programme in a series if that programme describes, depicts or otherwise deals with a number of extreme acts of violence, such as torture and sexual violence, or exploits the nudity of young children, or promotes or encourages criminal acts or acts of terrorism, in a manner the Authority considers is likely to be injurious to the public good.  Section 13A is the only “censorship” provision in the Act, and has never been invoked by the Authority.