Atkinson and RadioWorks Ltd - 2011-011
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- David Atkinson
ProgrammeFletch and Vaughan Show
Complaint under section 8(1B)(b)(ii) of the Broadcasting Act 1989
Fletch and Vaughan Show – hosts discussed competition – asked winning team what they were going to draw on the faces of the losing team and one of the winners stated “Well on the forehead ‘Vote Team Two’ and on the side of the face a nice little penis just going into the mouth” – broadcaster upheld complaint under good taste and decency – action taken allegedly insufficient
Standard 1 (good taste and decency) – action taken by broadcaster adequate considering the nature of the breach – not upheld
This headnote does not form part of the decision.
 During the Fletch and Vaughan Show, broadcast on The Edge at 3pm on Thursday 9 December 2010, the hosts discussed a competition being run by the radio station. One of the hosts stated:
And it's Fletch and Vaughan out live from “Live in a Mini” here. Just a moment ago we had another “Cash or Consequence” challenge. 200 dollars to our victorious team... and they also get to hold the vivids and draw on the faces of our team with the shortest straws... so thirty seconds, is it really no-holds-barred Vaughan?
 The same host asked the winning team what they were going to draw on the faces of members of the opposing team, and one of the winners responded, “Well on the forehead ‘Vote Team Two’ and on the side of the face a nice little penis just going into the mouth”. The host made the following references to the penis comment:
- “Thirty seconds, is that a good time to craft a good penis?”
- “So [name of contestant] has already done a ‘Vote Two’. Now on to the penis, he’s gone for the circumcised penis. I don’t know if you want that sort of description, I don’t know, I’ve never really done this before.”
- “That’s a weird looking penis.”
- “I just think you’ve got to go on the webcams and have a look for yourself – there’s the penis.”
 At the end of the item, the losing team member stated, “I’m glad, I’m actually for once in my life glad that I’ve got a small penis.”
 David Atkinson made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the programme breached standards relating to good taste and decency. The complainant said that he had been listening to the Fletch and Vaughan Show with his young daughter when, without warning, there was “suddenly a description of a penis in a mouth”.
 Mr Atkinson nominated Standard 1 of the Radio Code of Broadcasting Practice in his complaint, which provides:
Standard 1 Good Taste and Decency
Broadcasters should observe standards of good taste and decency.
Broadcaster’s Response to the Complainant
 RadioWorks contended that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was aired, including the time of broadcast and the target audience. It said that, on this occasion, relevant contextual factors included the graphic nature of the comment “penis into the mouth”, and that it was broadcast in the afternoon during children’s normally accepted listening times. However, it said that this had to be weighed against the fact that it was a contestant and not the announcer who made the statement, it was a live interview, the comment was intended to be humorous rather than offensive, and the programme was targeted at listeners aged between 15 and 34 years.
 On balance, the broadcaster agreed that the comment fell outside audience expectations for a broadcast at that time of day because it was “sexually explicit” and would have surprised regular listeners. It therefore upheld the complaint that the broadcast breached Standard 1 (good taste and decency).
 RadioWorks apologised to the complainant for any offence caused, and said that the programme director had counselled the hosts to enable them to better prepare contestants as to what content was acceptable before the programme aired. It said that, as transgressions by interview subjects rarely occurred, it was confident that these measures would be effective in reducing the likelihood of a similar breach in the future. The broadcaster concluded that it was satisfied that the “unintentional” nature of the broadcast and other contextual factors mitigated the need to take further action.
Referral to the Authority
 Dissatisfied with the action taken by RadioWorks, Mr Atkinson referred his complaint to the Authority under section 8(1B)(b)(ii) of the Broadcasting Act 1989.
 The complainant said that his original complaint was intended to cover the entire broadcast, and not just the contestant’s comment. He argued that RadioWorks’ decision attempted to “exonerate the broadcaster and to put blame on an interviewee”, despite the broadcaster’s subsequent references to the initial statement, which he argued, reinforced its “exceedingly bad taste”. The broadcaster was not an “innocent party”, he argued.
 With regard to the broadcaster’s contention that the programme had an adult target audience aged 15-34 years, the complainant said that listeners ranged from a much younger age, and that in any event, RadioWorks did not broadcast regular warnings that the programme was unsuitable for children.
 Mr Atkinson argued that the action taken by the broadcaster, in counselling staff to prevent similar breaches in the future, “did not mitigate culpability on the part of the programme director, whose inaction has contributed to the situation in the first place”. The complainant said that he expected a “stronger and unreserved” apology for the breach, as well as a public apology to be broadcast at the same time and day and for the same duration as the original segment.
 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)
 Our task on this occasion is to determine whether the action taken by RadioWorks, having upheld Mr Atkinson’s complaint, apologised to him for any offence caused, and counselled the hosts to reduce the likelihood of a future breach of broadcasting standards, was sufficient.
 In our view, the broadcaster was correct in upholding Mr Atkinson’s complaint that the item breached Standard 1. We consider that the contestant’s comment “... a nice little penis just going into the mouth”, and the subsequent references to the comment, were sexually suggestive and crude, particularly given that they were broadcast in the afternoon during children’s normally accepted listening times.
 However, given the nature of the breach, and the relevant contextual factors listed by the broadcaster such as the target audience and listeners’ expectations, we consider that the action taken by RadioWorks, in apologising to the complainant and giving guidance to the hosts to enable them to better prepare contestants as to what content is acceptable for broadcast, was sufficient in all the circumstances.
 Accordingly, we decline to uphold the action taken complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
3 May 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 David Atkinson’s formal complaint – 9 December 2010
2 RadioWorks’ response to the complaint – 1 February 2011
3 Mr Atkinson’s referral to the Authority – 1 February 2011
4 RadioWorks’ response to the Authority – 21 March 2011