BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 1 (good taste and decency), Standard 3 (privacy), Standard 7 (discrimination and denigration), Standard 8 (responsible programming) – recording of broadcast unavailable – majority of the Authority declines to determine under section 11(b) of the Broadcasting Act 1989

This headnote does not form part of the decision.

Broadcast

[1]   Friday 28 May 2010 was “Hug-a-Ginga Day”, run by The Edge radio station and in particular its breakfast programme, The Edge Morning Madhouse. The hosts encouraged the public to “hug” people with red hair.

Complaints

[2]   A Clarke, Shane Dunlop, Graham Johnstone, Andrea Kelly and Stuart Meek made formal complaints to RadioWorks Ltd, the broadcaster, alleging that “Hug-a-Ginga Day” had breached broadcasting standards.

A Clarke’s complaint

[3]   Mr Clarke considered that the promotion was derogatory, “racist, stereotypical, belittling, nasty behaviour” and that “there will be many children that have been terrified... at school. They will have suffered a taunting persecution and will no doubt be scarred from the experience of it”. He considered it was clear that “The Edge radio station are not celebrating the beauty of red-headed people on ‘Hug-a-Ginga’ day. ‘Ginga’ is not a term of endearment; it aligns particularly well with the definition of derogatory.” Mr Clarke noted that “When this day was launched three years ago, it was originally under the banner of ‘Kick a Ginga’. ...This was dumbed down the following year to ‘Hug a Ginga (they’re sad)’”.

[4]   The complainant argued that “there is a line [The Edge has] crossed and it’s the basic concept of prejudice”. He concluded that the promotion was a “campaign of abuse” and that the station was “profiteering from the misery of others”.

Shane Dunlop’s complaint

[5]   Mr Dunlop argued that the broadcast breached standards relating to good taste and decency, privacy and discrimination and denigration. He considered that “Hug-a-Ginga Day” promoted “a racist attitude to people with red hair”. A similar day encouraging people to “hug a black person... would not last five minutes”, he said. Further, children were being bullied as a result of this promotion, which he considered would cause long-term harm. Mr Dunlop argued that it was “clearly discrimination” as red-heads did not want strangers invading their personal space.

Graham Johnstone’s complaint

[6]   Mr Johnstone said that as a result of “Hug-a-Ginga Day” his 11-year-old, red-haired daughter refused to go to school for fear of bullying. He considered that “ginga” was “a derogatory term, for red-haired freckled people, similar in effect to racial derogatory terms such as nigger, paki etc. Ginga is used in the same denigrating way as racial terms.” He argued that it was unacceptable for a radio station to be promoting the use of the word and the prejudice behind it. The alternative word “ranga” was no better, he said.

[7]   Mr Johnstone said he was concerned by “the isolating of people into a group simply based on their pigmentation, a result of their genetic makeup of which they have no choice.” He considered that it was divisive and encouraged bullying in schools. He said, “If the day was intended as a celebration of red-haired people, as the station claims, then why use a derogatory term in promoting it? Using the word ginga makes the whole thing a prejudice and offensive.”

[8]   The complainant concluded by saying that the station had raised its profile at the expense of red-haired children. He considered that “it was socially irresponsible, and straight out wrong, because it is damaging to our children and divisive.”

Andrea Kelly’s complaint

[9]   Ms Kelly argued that calling red-heads “ginga, fanta pants, ranga is insulting” and breached Standard 1 (good taste and decency). She said it was similar to calling someone “nigger”.

[10]   Ms Kelly also considered that the broadcast breached Standard 7 (discrimination and denigration) by “singling out red-haired people to be hugged on a certain day”. She said that fat people or short people would not like to be hugged on a designated day. “People have jumped on complete strangers which is disgusting,” she said. Further, “children have to put up with people abusing them and it’s disguised as fun.” She said it was not fun for red-heads who had to put up with teasing. The Edge was promoting this, she said.

[11]   Finally, Ms Kelly argued that Standard 8 (responsible programming) had been breached because:

People feel victimised when the whole country is allowed to call them names in a derogatory way. Little children don’t have the skills to handle this negative attention. When a radio station is encouraging people to hug people because of their colouring it is racism disguised as fun.

Stuart Meek’s complaint

[12]   Mr Meek argued that the broadcast had breached his privacy and was in poor taste. He considered that it was “discrimination of the worst kind” and was a form of bullying. He said he had a right to go about his business without fear of being mugged or abused. Mr Meek said that singling out one part of the population was a “big joke” to the radio station but to the people affected was a serious breach of human rights. He argued that “it is not right to single out someone based on colour or make some feel inferior to others”.

Standards

[13]   RadioWorks assessed the complaints under Standards 1, 3, 7 and 8 of the Radio Code of Broadcasting Practice. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Standard 8 Responsible Programming

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

Broadcaster's Response to the Complainants

[14]   Looking at good taste and decency, RadioWorks stated that The Edge Morning Madhouse show aimed to bring listeners “the funny stuff every morning”. It said that the hosts were “renowned for their wit and quirky senses of humour, their light-hearted banter and for regularly engineering mischievous but innocuous pranks and jokes”.

[15]   RadioWorks pointed out that the show’s current target audience was adults aged between 18 and 35. It maintained that “while the station’s approach may not always attract universal appeal, those to whom it does appeal are entitled to have their own radio station which reflects their values, language, attitudes and senses of humour.” The broadcaster contended that the promotion “fell squarely into the expectations of The Edge’s regular audience”. It noted that, when the same promotion was conducted two years before, “feedback varied [but] was mostly positive”. RadioWorks said it had consulted the station’s programme director who considered that the promotion did not insult or behave in any way offensively towards ginger-haired people. While at times tongue-in-cheek, it said, “overall the promotion encouraged positive behaviour towards a group of people who already felt they are singled out (as much of the feedback indicated)”.

[16]   The broadcaster maintained that The Edge had made efforts to ensure that callers who were either for or against the promotion were broadcast and given a chance to voice their views on the topic. It considered that this contributed to public debate about some of the issues raised by the complainants. Many callers were able to discuss bullying and how different people have reacted to it, it said, and accordingly it believed that “the promotion had an overall positive effect on the community of ginger-haired people”.

[17]   RadioWorks concluded that, while it was sorry the complainants found the promotion offensive, “applying the objective standard required by the Code” Standard 1 had not been breached.

[18]   With regard to privacy, RadioWorks said that it must first decide whether the person whose privacy had allegedly been interfered with was identifiable in the broadcast. It said that, in this instance, no person was singled out or identified. It therefore declined to uphold Mr Dunlop’s and Mr Meek’s Standard 3 complaints.

[19]   Turning to Standard 7 (discrimination and denigration), RadioWorks said that it understood the complainants’ concern that The Edge was promoting disrespect for people with red hair. However, it was uncertain whether people with red hair could be considered a “section of the community” to which the standard applied. It said that it was “inclined to the view that the standard is not directed at the protection of those people in our community with a particular hair colour”, and it concluded that Standard 7 did not apply in the circumstances.

[20]   In any event, RadioWorks considered that while the promotion did single out red-heads as a group of people, “positive behaviour was encouraged and their reputation was not denigrated”. It said that the effects of being singled out, both positive and negative, were discussed by many listeners and “while this may have involved discussing terms that some would consider derogatory, this was clearly expressed as a matter of individual opinion”. RadioWorks maintained that “in no way did the promotion encourage the use of insulting names or violent behaviour towards them”. It therefore concluded that, even if the standard did apply, no discrimination occurred as a result of the promotion, and it declined to uphold the Standard 7 complaints.

[21]   Looking at the responsible programming standard, the broadcaster disagreed that the promotion encouraged bullying of red-haired people. It reiterated its view that the promotion encouraged open debate about the issues faced by some ginger-haired people, including bullying, and also “highlighted the fact that there were many people who don’t find their hair colour a problem, some even choosing to dye their hair red”. RadioWorks concluded that “while the promotion may have caused unwanted hugs, [it believed] that overall, most people would not find this too intrusive and [they were] likely to consider it a positive experience in general”. It therefore declined to uphold the Standard 8 complaints.

[22]   RadioWorks attached comments from The Edge’s programme director, who said:

Hug-a-Ginga Day has always been held as an opportunity for red-heads to be celebrated with a hug from their friends, families and colleagues. Each year, the overwhelmingly positive feedback... has given us the reason to keep the day in our annual calendar for the third year running.

We are sorry for any distress caused. Hug-a-Ginga Day was never intended to be anything more than a day of celebration and it is unfortunate this year some people have associated [it] with teasing and ridicule.

We have worked hard for the last three years to ensure there is an etiquette associated with the day – ensuring that people ask for a hug. There is even a video on our website to demonstrate this.

As we have done every year, at the end of Hug-a-Ginga Day, we will be reviewing the feedback before we make any decisions whether or not to continue the event.

Referrals to the Authority

[23]   Dissatisfied with the broadcaster’s response, Mr Clarke, Mr Dunlop, Mr Johnstone, Ms Kelly and Mr Meek referred their complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Mr Clarke’s referral

[24]   Mr Clarke said, “‘Hug-a-Ginga’ campaign... to me [is] a very clear and concise case of unacceptable media. If it harms one single person in such an acute manner (which I believe it does) then you must surely question its fitness.”

Mr Dunlop’s referral

[25]   Mr Dunlop said:

...this promotion is designed to ridicule and discriminate [against] people with red hair under the disguise of hugging, which gives the impression that there is something wrong with us, that we need a hug. On that day someone jumped on my back from behind... I had to fall backwards to get him off as he was hurting my back... he had done this because he had heard of ‘Hug-a-Ginga Day’. ...I watched young children being mauled from behind on news footage which is emotionally crushing... clearly the radio station couldn’t care less as they are gaining financially regardless of social outcome, yet they couldn’t get away with ‘hug an albino day’ or ‘crippled person day’ or ‘hug a black-skinned person day’ so clearly this must be stopped...

Mr Johnstone’s referral

[26]   Mr Johnstone considered that RadioWorks had not addressed his complaint, which was that “the station promoted a derogatory and denigrating term of prejudice against people with certain pigmentation (red-haired people)”. He maintained that the broadcast breached Standard 1 because “ginga is an insulting term”, Standard 7 because “ginga is a denigrating term. It is making people with certain characteristics (red hair) into a group, singling them out... and putting them at risk of discrimination,” and Standard 8 because the promotion caused undue distress for some people. Mr Johnstone considered that the promotion should not be run again in future, and especially not under the name “Hug-a-Ginga Day”.

Ms Kelly’s referral

[27]   Ms Kelly maintained that the broadcast had breached Standards 1, 7 and 8. She considered that RadioWorks had focused on red-haired people who enjoyed the day, and said, “What about the people who hate this day and the unwanted attention it causes? People have hugged me without asking. Children don't want to go to school and people don't want to leave the house on this day. It is clearly picking on a group or section of people.” Ms Kelly said, “If ‘Hug-a-Ginga day’ is okay why don’t they have a fat day which is not singling out a race or sex of a person but hugging fat people.” She considered that if the promotion was run again in future it would cause serious problems for some people, and maintained that it amounted to discrimination.

Mr Meek’s referral

[28]   Mr Meek considered that RadioWorks had not taken his complaint seriously and that it was not “good enough to just dismiss it as [the day] has a huge impact on some”. He said that he had had to reschedule appointments and could not go out that day for fear of being mugged.

Authority’s Request for Further Recording

[29]   In the first instance, RadioWorks provided a short compilation of coverage of the promotion which had been played on Friday 28 May. Noting that The Edge Morning Madhouse is broadcast between 6am and 10am, the Authority requested that it be provided with a recording of the whole breakfast programme.

[30]   RadioWorks responded stating that a “conficker virus killed [The Edge’s] airchecker computers” so it did not have any audio recording for that day, apart from a few short clips which The Edge had recorded itself. It provided these short clips to the Authority.

Authority’s Request for Further Information from the Broadcaster

[31]   The Authority asked RadioWorks for a fuller and more technical explanation for why the audio of The Edge Morning Madhouse on 28 May was not able to be recorded, how the audio that had been provided to the Authority was recorded, and whether the preserved audio was edited, and, if so, what happened to the rest of the audio that was recorded.

[32]   RadioWorks provided the following response from its director of technology:

...the Conficker virus was not the direct cause of the problem but rather the indirect cause. Normally, each programme has one Airchecker (Profiler) machine but at the time of “Hug-a-Ginga”, The Edge was running a second machine which was trialling new software. This machine was purely a test one and was not holding recordings for the usual 40 days but deleted material after 20 days in storage.

The Edge’s Airchecker developed a serious hardware fault around 23 [May]. Fixing these units when they fail is normally a top priority. However, at the time, Radio Engineering was dealing with serious Conficker-related issues in another part of the infrastructure. Given that they knew that the show was still being recorded (albeit on a test machine) they elected to prioritise the virus problem. The faulty Airchecker was not reinstated until 1 June. The “Hug-a-Ginga” promotion was on 28 May and the material would have been deleted on 18 June, before the [Authority] had requested the content.

[33]   The Edge’s programme director also responded:

...the audio was never available... we tried both systems on the day as we wanted to get audio off and neither was working.

[34]   With regard to how the audio provided to the Authority had been preserved, RadioWorks stated, “The audio from the day was recorded directly into pro-tools in the producer studio. That is all that we had. There were promos in there as well which of course we pre-recorded and audio from the build-up weeks when the airchecker had been working.”

Authority’s Request for Further Comments from the Complainants

[35]   The Authority advised the complainants that, due to technical difficulties, the broadcaster had been unable to supply a recording of The Edge Morning Madhouse from 28 May 2010, and that as a result the Authority may have to decline to determine the complaints. However, if the complainants and the broadcaster were able to agree upon what was said in the broadcast, the Authority may still be able to determine the complaints. We therefore asked the complainants if they could specify any words, phrases, or exchanges which were part of the 28 May broadcast and which they considered breached the standards nominated in their original complaints.

Mr Clarke’s response

[36]   Mr Clarke emphasised that both children and adults with red hair had been taunted and harassed on “Hug-a-Ginga Day”, and considered that “This is what The Edge [is] promoting. It’s an awful, awful stereotype/prejudice.” He asked that the Authority “appreciate and comprehend the damage that is being caused through inaction and tolerance of what The Edge [is] promoting.”

Mr Dunlop’s response

[37]   Mr Dunlop considered that the broadcaster’s “main offending phrase was ‘Hug-a-Ginga Day’ which they have to agree they said as this was the name of their promotion and repeated on the day of their promotion and some weeks leading up to it”. He maintained that the broadcast had breached Standards 1, 7 and 8.

Mr Johnstone’s response

[38]   Mr Johnstone made no further comments about the content of the broadcast.

Ms Kelly’s response

[39]   Ms Kelly argued that the words “Hug-a-Ginga Day” were offensive and breached broadcasting standards by singling out a minority group, encouraging the invasion of people’s privacy, and disregarding the interests of children who did not want to go to school on 28 May.

Mr Meek’s response

[40]   Mr Meek considered that “it isn’t so much what was said, it was the whole promotion”. He maintained that the singling out of red-heads had breached his privacy and breached broadcasting standards.

Authority's Determination

[41]   The members of the Authority have listened to a recording of excerpts from the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Preliminary Matter

[42]   As explained above, the Authority has been unable to listen to a recording of the entire programme from 28 May. Under the Broadcasting Act 1989, complaints which are referred to the Authority for review must be about a specific broadcast. A determination as to whether broadcasting standards raised in relation to this programme were breached necessarily requires careful consideration not only of the exact words used in the broadcast, but also the overall tone of the programme and any relevant contextual factors. With only a few short clips provided from 28 May, totalling around 20 minutes out of the four-hour broadcast, a majority of the Authority (Tapu Misa, Leigh Pearson and Mary Anne Shanahan) considers that we are left in the highly unsatisfactory position of being unable to make any determination on the standards raised by the complainants.

[43]   The majority therefore finds that in the circumstances it is appropriate to decline to determine the complaints in accordance with section 11(b) of the Broadcasting Act 1989.

[44]   For the record, we the majority feel extremely concerned about the inadequacy of RadioWorks’ processes on this occasion. We note that RadioWorks was sent the first referral on 2 June followed by two more on 9 June. It provided us with the 5-minute compilation recording on 11 June. Having received three referrals, it still did not preserve the complete audio from the 28 May broadcast before it was apparently deleted from the test machine on 18 June. This, in our view, demonstrates a serious failure by the broadcaster with regard to the retention of tapes for the purposes of the formal complaints process, irrespective of the technical difficulties with its usual airchecker system.

[45]   A minority of the Authority (Peter Radich) would proceed to determine the complaint under Standard 8 (responsible programming). His views are expressed below.

General Comments by the Majority

[46]   Notwithstanding the fact that we have not heard the full broadcast, we the majority feel that the submissions from the parties have given us sufficient information to make some general comments about the notion of the “Hug-a-Ginga Day” promotion.

[47]   We note at the outset that the origin of this idea was an episode of South Park which inspired a “Kick-a-Ginga Day” group on the Facebook website,¹ and in our view the current promotion still carries those undertones. It seems clear from the complainants’ submissions that the promotion has resulted in people feeling unfairly singled out, unwanted physical attention, and some distress among red-haired children who fear teasing and bullying.

[48]   We agree with the complainants that the promotion would readily be seen to be irresponsible and socially unacceptable if the singling out of a certain group was based on race or another of the sections of the community envisaged by Standard 7 (discrimination and denigration).

[49]   In our view, Standard 8 (responsible programming) is most relevant to the concerns raised by the complainants. Guideline 8a requires broadcasters to be mindful of the effect any programme content may have on children. It is evident from the complaints that some children were fearful of what could happen to them on 28 May. We are also of the view that the broadcaster did not adequately consider the potential for children to interpret the promotion as encouraging teasing of people with red hair, especially given that numerous nicknames for them were discussed. In addition, we are satisfied having read the complaints that the promotion had the potential to cause unnecessary alarm and distress for some people (guideline 8e).

[50]   Accordingly, we find it appropriate to remind broadcasters of the need to seriously consider the adverse consequences that could arise from promotions of this nature, and to consider the interests of those who are targeted.

Minority view (Peter Radich)

[51]   I now express my separate views in relation to these complaints. The majority has held that because we do not have a recording of the broadcast, we should decline to determine all of the complaints.

[52]   The complaints which are before us are directed at particular broadcasting standards as they must be. Standards 1 (good taste and decency), 3 (privacy), 7 (discrimination and denigration) and 8 (responsible programming) have been referred to by complainants.

[53]   The primary focus of the complaints has been on the concept of a broadcaster promoting a programme of the kind in question. The complainants have not relied so much upon particular words said to have been used in the broadcast but rather have taken the position that the promotion was not one which the broadcaster ought to have undertaken.

[54]   Having regard to what we do know and what has been accepted by the broadcaster I consider that it is possible for us to determine what the broad nature of the programme was. It is stated by the complainants and not disputed by the broadcaster that the broadcast:

• Identified red-haired people as a category.
• Discussed issues involving people with red hair.
• Encouraged interactions by people without red hair with those who have red hair and encouraged people without red hair to physically embrace those people whom they may see with red hair.

For the purpose of addressing the complaints it seems to me that we can fairly conclude that the programme was at least this. There might have been more to it, but that, we do not know.

[55]   The essence of the complaints is that a radio station should not undertake and broadcast a promotion of this kind and encourage people to participate in the promotion. The complainants say that the targets of the promotion did not want it, or at least some of them did not and some of them found it offensive and hurtful.

[56]   The most relevant of the standards against which we are required to consider these complaints is Standard 8. This requires broadcasters to ensure that programme information and content is socially responsible. The basic question is whether it is socially responsible for a broadcaster to encourage the community generally, including children, to interact with a specified class of person, that is red-haired people, in the way that was advocated.

[57]   When considering whether it is socially responsible to encourage this type of community action the following questions may be relevant:

• Were there likely to be adverse consequences for red-haired people.
• Were these recognised or anticipated by the broadcaster and, if not, ought they have been.
• Was the motivation of the broadcaster in the best interests of red-haired people or was this really a promotion for the purpose of generating a type of humour where concern for red-haired people was secondary.

[58]   The adverse consequences could and appear to be varied:

• Feelings on the part of some red-haired people that they are being unfairly singled out for attention when they are wanting to get on with their lives unobtrusively.
• Unwanted physical handling of some red-haired people (a hug without consent express or implied would constitute an assault at law).
• Opportunities for teasing amongst children.

[59]   It is easy to see that a promotion of this kind would be considered irresponsible and socially unacceptable if it were directed at a group on account of race or disability. What I think makes this different is that red-haired people have in some sections of our society been the subject of good humoured attention for a long time so that the targeting of people with red hair is seen in much of our society as being good humoured jesting. My view is that according to current social mores, it was not unacceptable for the broadcaster to undertake this promotion in relation to red-haired people and that we should not intervene. This conclusion is on the basis of an assessment of the concept and without knowledge of the particulars of the broadcast.

[60]   It is now becoming apparent that there may be adverse consequences for some red-haired people, particularly children, arising out of promotions of this kind. Accordingly, there is a need for these to be considered by broadcasters in the future. This campaign has shown that while a person without red hair may see a programme of the kind as harmless ribbing of people with red hair, some of those who do have red hair do not see things in this way. Children who have not developed mature social skills may be encouraged to see a promotion of this kind as an opportunity to tease other children who are different. In the future broadcasters have to think about these issues and have to consider what may be adverse consequences from promotions of this kind. In any future consideration there will have to be a sensible balance and as part of that balance it will need to be recognised that there will always be some rough and tumble in life from which none of us can be fully insulated nor should we be. I would not uphold the complaint in relation to Standard 8. In terms of the concept and in the absence of particulars of the broadcast I do not consider that Standards 1 and 7 were breached. I do not think that Standard 3 is relevant.

For the above reasons a majority of the Authority declines to determine the complaints.

Signed for and on behalf of the Authority

Peter Radich
Chair
26 October 2010

Appendix

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

A Clarke’s complaint

1.           A Clarke’s formal complaint – 31 May 2010

2.          RadioWorks’ response to the complaint – 1 June 2010

3.          Mr Clarke’s referral to the Authority – 19 June 2010

4.          RadioWorks’ responses to the Authority – 28 June, 29 June, and 6 July 2010

5.          RadioWorks’ response to the Authority’s request for further information – 17 August 2010

6.          Mr Clarke’s response to Authority’s request for further comments – 9 September 2010

Shane Dunlop’s complaint

1.           Shane Dunlop’s formal complaint – 25 May 2010

2.          RadioWorks’ response to the complaint – 1 June 2010

3.          Mr Dunlop’s referral to the Authority – 2 June 2010

4.          RadioWorks’ response to the Authority – 11 June 2010

5.          Mr Dunlop’s response to Authority’s request for further comments – 4 September 2010

Graham Johnstone’s complaint

1.           Graham Johnstone’s formal complaint – 12 June 2010

2.          RadioWorks’ response to the complaint – 18 June 2010

3.          Mr Johnstone’s referral to the Authority – 27 June 2010

4.          RadioWorks’ response to the Authority – 2 July 2010

Andrea Kelly’s complaint

1.           Andrea Kelly’s formal complaint – 29 May 2010

2.          RadioWorks’ response to the complaint – 1 June 2010

3.          Ms Kelly’s referral to the Authority – 5 June 2010

4.          RadioWorks’ response to the Authority – 11 June 2010

5.          Ms Kelly’s response to Authority’s request for further comments – 5 September 2010

Stuart Meek’s complaint

1.           Stuart Meek’s formal complaint – 31 May 2010

2.          RadioWorks’ response to the complaint – 1 June 2010

3.          Mr Meek’s referral to the Authority – 1 June 2010

4.          RadioWorks’ response to the Authority – 11 June 2010

5.          Mr Meek’s response to Authority’s request for further comments – 26 August 2010

¹www.facebook.com