BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1C) of the Broadcasting Act 1989
Ski FM – during 16 July broadcast presenter made comment about sucking diarrhoea out of someone’s bottom with a straw – during 18 July broadcast presenter made comment about drinking pig’s urine – allegedly in breach of good taste and decency

Findings
Standard 1 (good taste and decency) – comment about drinking pigs urine puerile, but not so offensive as to breach Standard 1 – comment about sucking diarrhoea out of someone’s bottom with a straw went well beyond what listeners would expect to hear on radio – comment would have offended a significant number of listeners – upheld

Order
Section 16(4) – costs to the Crown $500

This headnote does not form part of the decision. 

Broadcast

[1]   During a segment on Ski FM, broadcast at 7am on Friday 16 July 2010, the host posed the following question to listeners:

Which would be worse, sucking diarrhoea through a straw from someone else’s butt, or sucking diarrhoea through a straw from your own butt?

[2]   During a segment on Ski FM, broadcast on the morning of Sunday 18 July 2010, the host posed the following question to listeners:

What is worse, drinking pig’s urine or your own urine?

Complaint

[3]   Margaret Carr made a formal complaint to Ski FM Network Ltd, the broadcaster, alleging that the host’s comments in both broadcasts breached standards of good taste and decency.

Standards

[4]   Ski FM 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.

Referral to the Authority

[5]   Having received no response from the broadcaster within the statutory timeframe, Ms Carr referred her complaint to the Authority under section 8(1C) of the Broadcasting Act 1989.

Broadcaster’s Response to the Authority

[6]   Ski FM stated that it had a target audience aged 35 years and under and that its content was designed to be edgy and challenging. It noted that programmes broadcast on television such as Fear Factor depicted contestants eating “smoked crocodile faeces and camel testicles just to name a few”.

[7]   The broadcaster stated that, while the host’s comments about diarrhoea and urine “may have been a challenging depiction”, it disagreed with Ms Carr that the comments breached Standard 1. 

Authority's Determination

[8]   The members of the Authority have not listened to recordings of the broadcasts complained about as Ski FM was unable to provide them. However, the broadcaster agreed with the description given by Ms Carr as to their content. We have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Procedural Matter

[9]   The Broadcasting Act 1989 provides that broadcasters must respond to formal complaints within 20 working days by notifying complainants of their decision on the complaint. In this instance, Ski FM failed to respond to the complainant within the required statutory timeframe. We also note that Ski FM was unable to provide us with recordings of the broadcasts subject to complaint.

[10]   We remind Ski FM of its obligations under the Broadcasting Act 1989 and expect that the broadcaster will respond appropriately to all formal complaints in future.

Standard 1 (good taste and decency)

[11]   When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• the programmes were broadcast on Friday and Sunday mornings during children’s normally accepted listening times
• the station’s adult target audience
• the expectations of regular listeners.

[12]   The Authority has stated on a number of occasions (e.g. Martin and TVNZ¹) that Standard 1 is primarily aimed at broadcasts that contain sexual material, nudity, violence or coarse language. However, the Authority has also said that it “will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress”.²

[13]   With respect to the 18 July broadcast, we consider the question posed by the host, “What is worse, drinking pig’s urine or your own urine?” was puerile. However, while the question may have offended some listeners, we consider that the comment was not so offensive as to warrant upholding a breach of Standard 1 on this occasion.   

[14]   Turning to the host’s comments broadcast on 16 July, “Which would be worse, sucking diarrhoea through a straw from someone else’s butt, or sucking diarrhoea through a straw from your own butt?”, we are of the view that the remark was gratuitous, vulgar and designed to be offensive. We consider that it went beyond what listeners would expect to hear on radio, particularly during children’s normally accepted listening times.  

[15]   In these circumstances, we consider that factors such as the programme’s adult target audience were not sufficient to prevent the broadcast threatening standards of good taste and decency.

[16]   Having reached this conclusion, we must now consider whether to uphold this complaint as a breach of Standard 1.

[17]   We acknowledge that upholding the Standard 1 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. In Turner and TVNZ,³the Authority determined that upholding a complaint under Standard 1 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. The Authority has previously stated that the primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it was broadcast.

[18]   With that in mind, we must now consider whether it would be a reasonable and proportionate limit on Ski FM’s freedom of expression to uphold a breach of Standard 1 on this occasion. It is our view that the host’s comment on 16 July went well beyond current norms of good taste and decency. We consider that it was either deliberately offensive, or alternatively a misjudgement of what is acceptable on radio, particularly during children’s normally accepted listening times. In this respect, upholding the complaint would clearly promote the objective of Standard 1 (as outlined in paragraph [17] above). 

[19]   In these circumstances, we find that upholding the complaint places a justified and reasonable limit on Ski FM’s freedom of expression. We therefore uphold the complaint that the 16 July broadcast breached Standard 1.

For the above reasons the Authority upholds the complaint that the broadcast by Ski FM Network Ltd on 16 July 2010 breached Standard 1 of the Radio Code of Broadcasting Practice.

[20]   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.

[21]   The complainant submitted that Ski FM should be ordered to pay a fine. The broadcaster did not make any submissions on orders.

[22]   We have considered whether it would be appropriate to order Ski FM to broadcast a statement summarising this decision. Given that such a statement would not be comprehensible without repeating the detail which led to a breach of standards, we have concluded that such an order should not be made.

[23]   However, we are of the view that an order of costs to the Crown is justified to mark the departure from broadcasting standards. Taking into account the nature of the breach, we consider that $500 is an appropriate amount.

[24]   We note that Ski FM did not respond to the complainant, failed to retain a recording of the programme, and was significantly late in responding to this Authority. We intend to arrange a meeting with the broadcaster to ensure that it is complying with its obligations under the Broadcasting Act 1989.

Order

Pursuant to section 16(4) of the Broadcasting Act 1989, the Authority orders Ski FM to pay to the Crown costs in the amount of $500 within four weeks of the date of this decision.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
22 February 2011

Appendix

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

1                  Margaret Carr’s formal complaint – 18 July 2010

2                 Ms Carr’s referral to the Authority – 24 August 2010

3                 Ski FM’s response to the Authority – 14 October 2010

4                 Ms Carr’s submissions on orders – 2 December 2010

¹Decision No. 2009-060

²Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November, 2006)

³Decision No. 2008-112