BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Channel Z – "motherfucker" – "fucking cunt" – offensive language

Findings
Principle 1 – breach of current norms of good taste and decency – uphold

Order
Costs of $750 to the Crown

This headnote does not form part of the decision.

Summary

I B Anderson complained to Channel Z, the broadcaster, about the expressions "motherfucker" and "fucking cunt" being broadcast on 30 May 2001 just before 4.30pm.

When the broadcaster did not respond within the statutory 20 working days, Mr Anderson referred the complaint to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.

The broadcaster then responded that Channel Z was a niche radio station with an alternative format, and that its audience had a liberal view of language. The broadcaster agreed that the expressions were offensive and would not usually be broadcast. However, it explained, the expression "fucking cunt" had been used by a rugby player who had been sent from the field, and that the announcer had been quoting the player. The expression "motherfucker" was part of the title of an album banned in the United States, and the announcer had been reporting the title. Channel Z said the announcers had been advised that quoting such language was no longer acceptable practice for Channel Z.

Dissatisfied with the broadcaster’s response, Mr Anderson referred the complaint to the Authority under s.8(1)(a) of the Broadcasting Act.

For the reasons given, the Authority upholds the complaint. The Authority orders the broadcaster to pay $750 by way of costs to the Crown.

Decision

The members of the Authority have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Complaint

I B Anderson complained to Channel Z, the broadcaster, about an aspect of its broadcast on 30 May 2001 just before 4.30pm. He said he heard an exchange along the following lines:

Female voice:   … Motherfucker … did I say something wrong then?
Male voice:       … You mean you said motherfucker … (moments later) did you know
                       that … said he was a fucking cunt?

The complainant said:

Bearing in mind that you broadcast to a predominantly impressionable audience of young people there is no excuse for passing off this depressingly low level of language as acceptable broadcasting.

Mr Anderson requested a tape of the broadcast.

The First Referral to the Authority

When he did not receive a response within the statutory 20 working days, Mr Anderson wrote again to Channel Z requesting it to respond to his complaint. When he still did not receive a response, Mr Anderson referred his complaint to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.

The Broadcaster’s Response to the Complainant

Channel Z subsequently responded to the complainant. Its Programme Director said:

Channel Z is a niche radio station with an alternative format. It does not profess to be a mass appeal radio station. Channel Z appeals to an audience that is slightly alternative, anti-establishment, pro-individual choice, and fairly opinionated. The Channel Z audience are socially and politically aware, and our research shows that this audience has a liberal view of language.

If Channel Z was free of everyday language as perceived and used by the audience, it wouldn’t be meeting the needs and expectations of this audience. This applies not only to the spoken word, but the music Channel Z plays as well. We do realise and appreciate that many people have different views on the use of language. Channel Z, by its very nature, does test those boundaries.

The broadcaster said it was also conscious of its social responsibility. It confirmed that the word "cunt" had been used on the James Coleman Radio Programme, at approximately 4.30pm on 30 May 2001. The broadcaster explained that the announcer had used the word when referring to an incident which had occurred during a Super 12 rugby game, during which a player had used the word. The broadcaster said the announcer had been directly quoting the player, and "at no time did [the announcer] use the language as his own or use it to refer to another person".

Channel Z’s Programme Director said he had discussed the matter at length with the announcer, and they both agreed the word was highly offensive and would not usually be aired. However, the announcer had used the word to quote a rugby player in a highly-publicised incident of interest to Channel Z’s audience, the Programme Director said.

In relation to the aspect of the complaint about the word "motherfucker", Channel Z confirmed the word had been used during a daily segment called "Sticky Beak". The female announcer had used the word when referring to the title of a new album which had been controversially banned in the United States. The broadcaster said:

The album’s title was reported on air, but the word was not used as the announcer’s own or in reference to any other person. Once again I would, in most cases, agree that the use of this word does not have a place on radio or on Channel Z.

Channel Z’s Programme Director said while he agreed with the announcers that Channel Z’s target audience should be "informed and enlightened on these issues", he understood the potential for offence in such language. Accordingly, he had advised the announcers that quoting such language was no longer acceptable practice for Channel Z.

Channel Z said it was unable to supply a tape of the incident because the tape had been mistakenly re-used before the complaint was received.

The Second Referral to the Authority

Dissatisfied with the broadcaster’s response, Mr Anderson referred the complaint to the Authority under s.8(1)(a) of the Broadcasting Act.

The Broadcaster’s Response to the Authority

Channel Z’s response to the Authority included a letter from James Coleman, one of the announcers, which sought to clarify what had been said on air.

The announcer agreed that what the complainant alleged had been broadcast was offensive and unacceptable. However, he said, the complainant’s account was inaccurate, and had emphasised and taken out of context the broadcast’s perceived offensiveness.

The announcer explained that he had been quoting a penalised player, who had been sent from the field for swearing at the referee. When telling the referee about another player’s infringement, the penalised player had said, "Tell the fucking cunt to let go of the ball!" In the announcer’s opinion, the penalised player had not been swearing at the referee and had been sent from the field unfairly. The announcer said:

I felt that in the interests of accuracy and public information, our listeners deserved the right to know the details of this incident, and to this end, I felt the need to quote the penalised player.

At no time did I use the language as my own, or use it to refer to another person.

In relation to the aspect of the complaint about another of the announcers using the word "motherfucker", Mr Coleman explained that the word was part of the title of an album recently released in the United States and controversially banned from sale. He said:

The album’s title was reported and at no time was the alleged offensive word used as the announcer’s own, nor used to describe an individual.

Again, I felt that it was in the interests of accuracy and accountability that our listeners deserved to be provided with this information.

The Complainant’s Final Comment

In his final comment to the Authority, the complainant said Channel Z’s failure to provide a tape of the incident undermined the intent of the Broadcasting Act.

In relation to the aspect of his complaint about the female announcer, the complainant said she had acknowledged she had said something offensive. The complainant said:

The following male voice (James Coleman) repeated the offensive word perhaps to suggest it was OK if they both said it. I then had the distinct impression that he escalated the offensive language to suggest that he could use far more graphically offensive language than his co-presenter could.

Quoting the player, while accurate, was in my opinion offensive on air and James Coleman should also be sent from the field.

The Authority’s Determination

There are two procedural points for the Authority to address before it turns to consider the substance of the complaint.

First, the Authority responds to the complainant’s concern that Channel Z’s failure to provide a tape undermines the intent of the Broadcasting Act. The Authority notes that a tape of the incident would certainly have been useful. It observes, however, that the requirement in Principle 8 of the Radio Code of Broadcasting Practice for broadcasters to be able to provide copies of tapes, applies only to open line and talkback programmes, and to news and current affairs.

Second, the Authority reminds Channel Z of its obligations under the Broadcasting Act to receive and consider formal complaints and to respond to complainants within 20 working days after having received a complaint.

Turning to the substance of the complaint, the Authority notes Channel Z’s acknowledgment that the expressions complained about were offensive and would not normally be broadcast. The main reason advanced by Channel Z for declining to uphold the complaint would appear to be that the announcers had been quoting a rugby player and an album title respectively, and had not been using the language as their own.

In the Authority’s view, the fact that the announcers were not using the language as their own is not a valid reason to decline to uphold a breach of broadcasting standards. Broadcasters are responsible for what goes to air, and the source of the comments is irrelevant.

The Standard

Principle 1 of the Radio Code states:

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).

When it considers complaints alleging a breach of Principle 1, the Authority takes into account the context, including the target audience, in which the allegedly offensive comments occurred. The Authority must also ensure that its decisions do not unjustifiably infringe the broadcaster’s right to freedom of expression in s.14 of the New Zealand Bill of Rights Act 1990.

The Authority notes the broadcaster’s comments about Channel Z’s target audience. The Authority observes, however, that target audience is but one factor to be considered, and that broadcasters cannot use target audience as an excuse for unacceptable language. The Authority’s research shows that the wider community finds the two expressions complained about the most unacceptable in the broadcasting context. The Authority considers the language broadcast was contrary to current norms of decency and good taste, particularly given the time of day of the broadcast, when children could reasonably be expected to be in the listening audience.

In reaching this decision, the Authority records that it has considered whether the broadcaster’s right to freedom of expression is unjustifiably infringed. The Authority is satisfied that its decision to uphold this complaint, and its resultant order, are made under its empowering legislation. The Authority is also satisfied that the exercise of its power on this occasion does not unduly restrict the broadcaster’s right to express itself freely. Indeed, it considers that the upholding of this complaint is reasonable and demonstrably justified owing to the reasons given above, while still giving effect to the intention of the Broadcasting Act.

The Authority also notes that the broadcaster's failure to provide a tape has had an unfortunate downside for the broadcaster. Without the benefit of a tape, any facility the Authority may have had to decline to uphold the complaint by reference to the broadcaster's right to freedom of expression has been been eliminated.

For the reasons given, the Authority upholds the complaint that a broadcast on Channel Z just before 4.30pm on 30 May 2001, breached Principle 1 of the Radio Code of Broadcasting Practice.

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

The Authority received a submission on penalty from the complainant. He asked the Authority to order the broadcaster to broadcast an apology, and to pay $1,000 by way of costs to the Crown. He requested that the Authority warn the broadcaster that further breaches would result in it being prevented from broadcating or collecting advertising revenue for a suitable period.

The Authority makes the following order:

Order

Pursuant to s.16(4) of the Broadcasting Act 1989, the Broadcasting Standards Authority orders Channel Z to pay, within one month of the date of the decision, the sum of $750 by way of costs to the Crown.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
8 November 2001

Appendix

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

1. I B Anderson’s Formal Complaint to Channel Z – 31 May 2001
2. Mr Anderson’s Further Letter to Channel Z – 2 July 2001
3. Mr Anderson’s Referral to the Broadcasting Standards Authority – 10 July 2001
4. Channel Z’s Response to the Formal Complaint – 25 July 2001
5. Mr Anderson’s Referral to the Authority – 6 August 2001
6. Channel Z’s Response to the Authority – 23 August 2001
7. Mr Anderson’s Final Comment – 31 August 2001
8. Mr Anderson’s Submission on Penalty – 18 October 2001