BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Standard 1 (good taste and decency) – song lyrics were unacceptable for broadcast at 8.20am – serious breach of good taste and decency – action taken by broadcaster was insufficient – upheld

Orders
Section 16(4) – costs to the Crown $2,000

This headnote does not form part of the decision.

Broadcast

[1]  At 8.20am during The Edge Morning Madhouse, broadcast on The Edge on Monday 8 February 2010, the hosts discussed how a public figure had split up with her husband and was now reportedly in a relationship with a woman. One of the hosts said:

I felt so compelled this morning to write a little jingle about this. I know this is putting my employment in jeopardy. I know I got warning number one on Thursday last week but this has to be done. ...You guys need to do some backing vocals for this. Using the Beyoncé song “Single Ladies”, this is called, “[Name is] Into Ladies”.

[2]   The host then proceeded to sing the jingle he had written:

[Name is] into ladies, [Name is] into ladies, [Name is] into ladies,

[Name is] into ladies, she’s giving guys up

Broke up with [Name], ’cause he’s a guy, decided men weren’t her thing

Didn’t need [Name], or any other fellow, wanted to go rug munching

She’s into chicks, got sick of dicks, wanted to try some new things

Met a nice girl, gave gay a whirl, and now what I really want to know

When they make love do they have to put a strap on it?

Has she ever thought about making a tape of it?

When they make love do they have to put a strap on it?

Complaint

[3]   Jack Robinson made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the song lyrics had breached standards of good taste and decency. He considered that “this kind of behaviour [was] unacceptable for early morning radio that no doubt a lot of children around the country were subjected to without choice.”

Standards

[4]   RadioWorks assessed the complaint under Standard 1 of the Radio Code of Broadcasting Practice, which provides:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Broadcaster's Response to the Complainant

[5]   RadioWorks agreed that the song breached the Radio Code and upheld Mr Robinson’s complaint. It said that the host involved had been severely reprimanded and advised that his comments and the song were inappropriate for broadcast at that time of day and in the context of the programme. The broadcaster maintained that “as the comments and song were just beyond the expectations of the station and were not a serious breach of the above standards, this action is appropriate to ensure that similar situations will not arise again.” RadioWorks apologised for any offence caused to the complainant or his family.

Referral to the Authority

[6]   Dissatisfied with the action taken by the broadcaster, Mr Robinson referred his complaint to the Authority under section 8(1B)(b)(ii) of the Broadcasting Act 1989. He said he disagreed with RadioWorks’ argument that the host had been “severely reprimanded” because he believed that the host had only been suspended for one day, and noted that, following his suspension, the host had “sarcastically stated how bad he felt about what he had done and wore a saint’s outfit”.

Authority's Determination

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

Action Taken: Standard 1 (good taste and decency)

[8]   Our task on this occasion is to determine whether the action taken by RadioWorks, having upheld Mr Robinson’s complaint, was sufficient. We note that the broadcaster upheld the complaint under Standard 1 and that the host involved was reprimanded and advised that his comments, and the song, were inappropriate for broadcast at that time of day and in the context of the programme. RadioWorks also apologised to the complainant for any offence caused.

[9]   First, we disagree with RadioWorks that the broadcast did not amount to a serious breach of broadcasting standards. On the contrary, we consider that the host’s song lyrics were vulgar and phrases such as “rug munching”, “she got sick of dicks” and “when they make love do they have to put a strap on it” would have been considered offensive by the majority of listeners when broadcast at 8.20am when children would have been listening. Broadcasters are required to be mindful of the effect any programme content may have on children during their normally accepted listening times. Further, the host admitted during the broadcast that he had already been warned not to sing the song on air, indicating that he knew the material was unacceptable, and deliberately proceeded without any regard for the consequences.

[10]   For these reasons, we find that the broadcast amounted to a serious breach of the good taste and decency standard. We also consider that, given the nature of the breach, the action taken by the broadcaster in reprimanding the host was insufficient.

[11]   Having reached this conclusion, we must now consider whether to uphold Mr Robinson’s complaint.

[12]   We acknowledge that upholding the action taken complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. We also acknowledge the importance of section 14 and the values underlying the right to freedom of expression. However, “the right of freedom of expression is not an unlimited and unqualified right”.¹ We must ensure that, if we are considering upholding the complaint, the restriction on the broadcaster’s right to freedom of expression would be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[13]   First, we must assess whether, by upholding this complaint, the limit placed on the broadcaster's section 14 right would be “prescribed by law”. Parliament has recognised the importance of reviewing the action taken by broadcasters after upholding complaints in section 8(1B)(b)(ii) of the Broadcasting Act 1989, which states:

A complainant may refer the complaint to the Authority if the complainant –

(b) is dissatisfied with –

(ii) the action taken by the broadcaster.

[14]   For this reason, we consider that upholding an action taken complaint would be prescribed by law. For the same reason, we consider that upholding an action taken complaint would be a justified limitation on the right to freedom of expression.

[15]   Next, we must consider whether it would be a reasonable and proportionate limit on RadioWorks’ freedom of expression to uphold the complaint on this occasion. As discussed above, we consider that the broadcast amounted to a blatant and serious breach of Standard 1 and that the action taken by RadioWorks in reprimanding the host was insufficient due to the seriousness of the breach. Upholding the action taken complaint would signal the importance of broadcasters taking action which is proportionate to the nature of the breach of standards.

[16]   In these circumstances, we find that upholding the complaint places a justified and reasonable limit on RadioWorks’ freedom of expression. We therefore uphold the complaint that the action taken by the broadcaster in relation to Standard 1 was inadequate.

For the above reasons the Authority upholds the complaint that the action taken by RadioWorks Ltd after upholding a breach of Standard 1 with respect to an item broadcast on The Edge Morning Madhouse on 8 February 2010 was insufficient.

[17]   Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders

[18]   Mr Robinson submitted that the broadcaster should be ordered to broadcast an apology to listeners of the programme, although he considered that “the decision should really lie with the Authority”.

[19]   RadioWorks emphasised that the issue for the Authority related solely to whether the action taken by the broadcaster after upholding the complaint was sufficient. It reiterated that the host in question was severely reprimanded by the station’s programme director who had already decided that the material was unsuitable for broadcast. It maintained that disciplinary action had been taken “to underline to the host in question that this sort of deliberate breach is unacceptable”.

[20]   RadioWorks noted that its standards committee had then confirmed, without hesitation, that the material was outside the bounds of what was acceptable, and sent the complainant its decision on the same day as it received the complaint, upholding the complaint and apologising for any offence caused. It therefore considered that the committee had “acted swiftly and decisively and apologised to the complainant”.

[21]   Following upholding the complaint, RadioWorks said, the committee considered what action should be taken to reduce the possibility of a repeat “offence”, and it decided that “the swift disciplinary action taken by the programme director was sufficient to achieve that objective.” It said that it had considered requiring the host to make an on-air apology, but decided that it would “potentially draw more attention to the unacceptable material broadcast and create more offence”. RadioWorks considered that the Authority would appreciate that there was a limited range of options available to it in response to a breach of standards of this nature, and the committee had reached the conclusion that the broadcaster had taken sufficient and appropriate action in response to the complaint and to the breach.

[22]   RadioWorks apologised to the Authority and to the complainant in the event that its statement that “the comments and song were just beyond the expectations of the station and were not a serious breach of the standards” had suggested that the complaint had not been taken seriously. It said that it was assured that the programme director “regarded the matter very seriously indeed”.

[23]   The broadcaster argued that “while vulgar and unkind to the person in question the song and its lyrics were not explicit ([as they required] a certain level of pre-understanding to even make sense) and were not obscene”. It considered that some of the words would not have been offensive for most regular listeners.

[24]   On the matter of orders, RadioWorks submitted that, “Given that the decision will now be published, with the attendant publicity attached to any such uphold, which will inevitably draw the offensive material to the attention of a much wider audience and attract comment, it is appropriate for the station to now apologise on air and we consent to such an order being made.” It submitted that beyond that, no further orders should be made as the station and the committee had “acted responsibly and with care in response to the complaint and the breach of standards.”

Authority’s Decision on Orders

[25]   In our view, a statement summarising this decision would potentially exacerbate the original breach of standards because, in order for such a statement to be understood by the audience, the content which breached standards of good taste and decency would have to be repeated or referred to on air.

[26]   Costs to the Crown are generally imposed where there has been a serious departure from broadcasting standards. We have found above that the broadcast amounted to a serious breach of Standard 1, particularly given that the host had already received a warning against performing the song on air. Having upheld Mr Robinson’s complaint, the broadcaster did not take action which was commensurate with the nature of the breach. Further, it continues to argue that the song lyrics were “not explicit” and “not obscene”, and that most listeners would not have been offended by them.

[27]   Accordingly, we are of the view that a penalty is warranted. We consider that an order requiring RadioWorks to make a payment of $2,000 costs to the Crown is appropriate on this occasion.

Order

Pursuant to section 16(4) of the Act, the Authority orders RadioWorks Ltd to pay to the Crown costs in the amount of $2,000 within one month of the date of this decision.

This order for costs shall be enforceable in the Wellington District Court.

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:

1.          Jack Robinson’s formal complaint – 11 February 2010

2.          RadioWorks’ response to the complaint – 12 February 2010

3.          Mr Robinson’s referral to the Authority – 17 February 2010

4.          RadioWorks’ responses to the Authority – 15 March and 29 March 2010

5.          Mr Robinson’s submissions on orders – 25 August 2010

6.          RadioWorks’ submissions on orders – 20 September 2010

¹P v D and Independent News Auckland Ltd [2000] 2 NZLR 591, at 599, per Nicholson J