BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Some highlights from mid-week programmes were played on 91.9FM Napier on 15 November 1998, a Sunday afternoon. One extract contained the following exchange: "I work for Cunard", to which the reply was "I work fuckin’ ’ard too, but I still can’t afford a car like that!"

Mr Leitch complained to the station that the extract was highly offensive. Not only was the extract broadcast live at some time during the week when there might have been an excuse that it "slipped through", he said, but it was repeated as something the broadcaster was proud of.

The station responded that Mr Leitch’s comments had been duly noted and acted upon. It offered its apologies for any distress the broadcast might have caused him.

Dissatisfied with the decision, Mr Leitch referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaint and ordered the broadcaster to pay $250.00 in costs to the Crown.

Decision

The members of the Authority have read the correspondence which is listed in the Appendix. No tape of the programme was provided. On this occasion, the Authority determines the complaint without a formal hearing.

Mr Leitch complained to the station about a broadcast on 91.9 FM, Napier. He said he was listening to a programme on the station on a Sunday afternoon with his teenage son when the announcer played "a highlight from sometime during the week". It was a "joke", he wrote. The broadcast he heard contained the following extract "I work for Cunard", followed by, "I work fuckin’ ‘ard too, but I still can’t afford a car like that!".

Mr Leitch said he was stunned, and immediately changed the radio to another station. The broadcast was highly offensive, he said. Not only was it apparently broadcast live at some time during the preceding week, he pointed out, when there might have been an excuse that it had slipped through, but it was repeated as something the station was proud of. He sought confirmation from the broadcaster that the staff responsible had been dealt with firmly, and an assurance that something similar would not happen again.

The station responded by writing that Mr Leitch’s comments had been duly noted and acted upon. It apologised for any distress which the broadcast had caused to him.

Mr Leitch referred his complaint to the Authority and repeated that he had found the item broadcast offensive.

In its report to the Authority, The RadioWorks said:

Mr Leitch’s concerns were passed on to the staff concerned. The item itself was a play on words. It depends on how you listen as to whether it’s offensive or not.
…
Humour is subjective.

The broadcaster again apologised to Mr Leitch for any distress which the item had caused him. It concluded by noting that Mr Leitch’s was "the only complaint we received on this matter".

In his final comment to the Authority, Mr Leitch observed:

The offence was indeed "a play on words". Its whole point was to have the words "for Cunard" misinterpreted as "fuckin’ ‘ard". To add plausibility to that interpretation, an accent (Scottish, I think) was introduced. There would be no punch line, as it were, if the character had said he worked "for Brierley Investments". This is perfectly clear to the average cloistered monk, and The RadioWorks’ excuse is disingenuousness.

Referring to The RadioWorks’ claim that his was the only complaint it had received, Mr Leitch wrote:

That mine is claimed to have been the only complaint might reveal more about the listening audience than about the innocence of the "joke". Are broadcasting standards subject merely to the volatility of the level of public complaints, a level so easily manipulated for political or ideological purposes?

Mr Leitch concluded that the item which he and his son heard on a Sunday afternoon, was presented as a highlight from a programme broadcast earlier in the week. "There can be no doubt that its broadcast was deliberate and calculated", he wrote.

The Authority’s Findings

The Authority begins by noting that the broadcast complained about does not fall into a category of programme for which a broadcaster is required to make a tape. Standard R35 of the Radio Code of Broadcasting Practice reads:

R35  For a period of 35 days after broadcast, radio stations shall hold a recording of all talkback and open line programmes and a copy or tape of news and current affairs items.

The Authority accepts that the broadcast complained about on this occasion involves a play on words. It acknowledges that its offensiveness is clearly apparent when the words are seen in written form, and that there could have been some degree of ambiguity when spoken. Although it has been noted that the broadcaster is not required to retain a tape of the broadcast complained about, the Authority observes that it could well be in a broadcaster’s best interests to record material which might cause offence. If the broadcaster is able to supply a tape of the programme should a complaint ensue, the Authority is able to determine for itself the degree of offensiveness in the programme complained about.

Furthermore, the Authority notes that the broadcast on this occasion had been taped at some stage to enable it to be rebroadcast as one of the highlights for the week.

In the circumstances which apply on this occasion, the Authority notes that the joke was created around the word "fuck". It agrees with Mr Leitch that if the joke had been broadcast on one occasion only, it could possibly have been of minimal offence in the context which applied on that occasion. However, its task is to determine the complaint about the joke when it was broadcast on Sunday afternoon as one of the highlights of programming during the previous week.

Neither the complainant nor the broadcaster has nominated a broadcasting standard under which to assess the complaint. Consequently, the Authority has done so and it has determined the complaint under standard R2 of the Radio Code of Broadcasting Practice. It requires broadcasters:

R2  To take into consideration currently accepted norms of decency and good taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.

Taking into account the word on which the joke was built which its research confirms is held to be offensive by most New Zealanders, and giving particular emphasis to the point that this was the second broadcast of the item, the Authority concludes that the broadcast complained about contravened this standard.

The Authority considers that it was gratuitous to broadcast the offensive joke on a second occasion, and that by doing so the broadcaster had exacerbated what otherwise could have been a relatively minor matter.

For the reasons above, the Authority upholds the complaint that the broadcast by The RadioWorks of Auckland on Solid Gold FM on the afternoon 15 November 1998 breached standard R2 of the Radio Code of Broadcasting Practice.

Having upheld a complaint, the Authority may make orders under s.13(1) and s.16 of the broadcasting Act 1989. It invited the parties to make submissions on the question of penalty with respect to the breach of standard R2.

In its consideration of penalty on this complaint, the Authority has considered the submissions received. It concludes that a moderate order of costs to the Crown is appropriate given the offensive nature of the item, and to the fact that it was broadcast as one of the highlights of material broadcast during the preceding week.

Order

Pursuant to s.16(4) of the Broadcasting Act 1989, the Broadcasting Standards Authority orders The RadioWorks to pay, within one month of the date of this decision, the sum of $250.00 by way of costs to the Crown.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
13 May 1999

Appendix

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

1.        Mr Leitch’s Complaint to Solid Gold FM Auckland – 17 November 1998
2.        The RadioWorks Auckland’s Response to the Formal Complaint – undated
3.        Mr Leitch’s Further Letter to The RadioWorks – 23 November 1998
4.        Mr Leitch’s Referral to the Broadcasting Standards Authority – 3 January 1999-03–16
5.        The RadioWorks’ Response to the Authority – 5 March 1999
6.        Mr Leitch’s Final Comment – 10 March 1999
7.        Mr Leitch’s Submission on Penalty – 29 April 1999
8.        The RadioWork’s Submission on Penalty – 30 April 1999