BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Authority upheld a complaint that the use of the word ‘fuck’ in an episode of the programme Eating Fried Chicken in the Shower breached the good taste and decency and children’s interests standards. While the Authority recognised the value and nature of the programme, it was not preceded by any offensive language warning which the Authority considered necessary as the language used was outside audience expectations for the programme, and the programme was aired at 7:30pm, at a time when children may be listening.

Upheld: Good Taste and Decency, Children’s Interests

No Order

The broadcast

[1]  Eating Fried Chicken in the Shower is a radio interview show hosted by James Nokise, where Mr Nokise invites personalities for a chat about happiness. The episode that is the subject of this complaint features Mr Nokise’s conversation with John Campbell. The introduction to the episode is as follows:

Depressed alcoholic comedian James Nokise invites famous people into his mental health safe space for a finger-licking chat about headspace and happiness. This week TVNZ breakfast host John Campbell [joins] James to talk about the energy of anger, why working hard is the best therapy and how he protects his safe place.

[2]  The complaint was about the use of the word ‘fuck’ in the broadcast. The word was said occasionally throughout the broadcast. However, the complaint concerned a particular instance where the word was used by Mr Campbell in the context of a light-hearted discussion about the choice of clothes to wear in public (given likely public reactions) as follows:

And this is an absolute, fascinating discussion isn’t it so do you think I am going to make my life easier for myself because, uh, I don’t want to be harangued, or are you going to think actually, fuck you, you know, how dare you.

[3]  The episode was broadcast on RNZ National on 19 July 2019 at 7:30pm. We have listened to the broadcast and have read all documents referred to in the Appendix.

The complaint

[4]  Don Campbell complained that the usage of the phrase ‘fuck you’ by Mr Campbell breached the good taste and decency and children’s interests standards of the Radio Code of Broadcasting Practice.

The broadcaster’s response

[5]  RNZ responded:

Good Taste and Decency

• RNZ is required to take into account ‘current norms’ of good taste and decency and there is ‘now a more liberal attitude to such issues.’
• ‘[W]hile parts of the programme may have been offensive to some listeners, that does not mean to say that the item should not have been broadcast’ as this might impose inappropriate limitations on the fundamental right to freedom of expression.
• Use of the word was not inappropriate in the context of the particular discussion.
• The word was used ‘by way of a light exclamation’. It was ‘not given any particular weight and there was no invective behind the use of the word.’
• The word ‘fuck’ ranked 13th in the list of unacceptable words in research published by the BSA, with only 39% of people finding it unacceptable, down from 43% in 2013.¹
• More offensive language in the broadcast was bleeped and not broadcast to on-air listeners.

Children’s Interests

• The programme was broadcast at 7:30pm following other adult-oriented programming which was unlikely to attract young listeners.
• There were two warnings given prior to the relevant content giving listeners time to turn off the radio.²

[6]  RNZ’s response also addressed the programme information standard (having apparently considered that the complaint ‘suggested’ that standard to have been raised). However, pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider the standards raised in the original complaint to the broadcaster and we disagree that the programme information standard was raised (impliedly or otherwise).  Accordingly we do not address the programme information standard in this decision.

The standards

[7]  The good taste and decency standard (Standard 1) requires broadcasters to maintain current norms of good taste and decency consistent with the context of the programme, and the wider context of the broadcast. The standard is intended to protect audiences from listening to broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards.³

[8]  The children’s interests standard (Standard 3) is designed to protect children from material that unduly disturbs them, is harmful, or is likely to impair their physical, mental or social development.⁴

Our analysis

[9]  The starting point in our consideration of complaints is the right to freedom of expression. The right to share and to receive information and ideas is an important right in a democracy, but we recognise that this is not an absolute right. The exercise of the right to freedom of expression can sometimes cause harm. When we consider complaints, we weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast to ensure that any limitation on freedom of expression is reasonable and justified.

Good taste and decency

[10]  At the outset, we note that the word in question ranked 13th out of 31 words tested for unacceptability across all broadcasting scenarios in our Language That May Offend in Broadcasting research.⁵ The word however ranked 9th for unacceptability in a radio interview scenario which is being considered in this case.⁶ There has been a slight increase in tolerance for the use of the word since 2013 when the general unacceptability of the word was ranked 8th out of 31 words.⁷ However, the unacceptability rating of the word remains high. As noted in the research report, the level of acceptability is dependent upon the context of the word.

[11]  The context in which content occurs and the wider context of the broadcast are relevant to assessing whether the good taste and decency standard has been breached.⁸

[12]  Relevant contextual factors in this case include:

• The host, James Nokise is a well-known comedian and commentator who is known to have struggled with depression. The programme features informal, honest and intimate conversations that explore aspects of mental wellbeing.
• Although the broadcast was targeted at adults and followed other adult-oriented programming, it was aired at 7:30pm (within children’s normally accepted listening times).⁹
• John Campbell is a well-known presenter with wide appeal to adults and young people. 
• While RNZ submitted that the broadcast was preceded by two warnings, RNZ subsequently found that they had confused this broadcast with a later broadcast of the same programme and the programme in question had no audience advisory with regard to the use of offensive language.
• The programme was pre-recorded (and other offensive language had been ‘bleeped’).
• The programme, dealing with the important and sensitive topic of mental health in a light-hearted and accessible manner, would be of high value.   
• The word was used occasionally throughout the conversation as an expression or exclamation.

[13]  We observe that the programme is built upon the premise of the ‘safe-space’ which enables the host and interviewees to tackle the subject matter (mental-wellbeing) honestly. The authenticity and honesty of the host and the interviewees is important, as it gives the programme its value. Given the intimate and casual setting of the programme, listeners may expect the language to be casual and informal. However, we do not consider audience expectations would extend to such offensive language.

[14]  When considering complaints under this standard, we consider whether broadcasters have taken effective steps to inform the audience of the nature of the programme.¹⁰ The Authority is less likely to find a breach when broadcasters have taken steps to adequately advise their audience of programme content, particularly where the content may be distressing or offensive to some viewers. This will be particularly so with high value broadcasts such as this one. However, this programme included no warning for offensive language.

[15]  As we have previously observed, it is important that sufficient care be taken so that challenging material is played only in the appropriate context allowing listeners (of all ages) to make informed choices about the kind of broadcast material they consume.¹¹ In previous circumstances where complaints concerning this word have not been upheld, the item was generally preceded by an adequate warning.¹²

[16]  RNZ have argued that there is now a more liberal attitude to such language. However, the ‘unacceptability’ rating of this word in our research suggests that a significant section of the audience are likely to be offended and would expect to be warned about its use (particularly at 7:30pm).  We are also conscious that children may have been listening at that time (even if the programme was not targeted at them) and that, given John Campbell’s profile, the programme may have attracted a younger audience.

[17]  Finally, we note that RNZ included offensive language warnings when the programme was subsequently broadcast, suggesting it recognised that this language exceeded the expectations of RNZ National audiences and that a warning was appropriate. 

[18]  We therefore uphold the complaint under this standard.

Children’s interests

[19]  Context is also an important consideration when assessing complaints under the children’s interests standard, including the public interest in the broadcast, the target and likely audience, audience expectations and any factors that mitigate the likely harm to children.¹³

[20]  The contextual factors and analysis discussed under the good taste and decency standard above are accordingly also relevant to this standard and, for similar reasons, despite the high value of this broadcast, we find that the broadcast breached the children’s interests standard. In particular, given the lack of any offensive language warning, audiences were not given sufficient opportunity to protect children in their care from hearing inappropriate content.

[21]  Accordingly we uphold the complaint under the children’s interests standard.

For the above reasons the Authority upholds the complaint that the broadcast by Radio New Zealand Ltd of Eating Fried Chicken in the Shower on 19 July 2019 breached Standard 1 and Standard 3 of the Radio Code of Broadcasting Practice.

[22]  We have considered whether we should make orders in this case. We do not intend to do so on this occasion. We note that the episode was broadcast again on 22 July 2019. In the 22 July broadcast, two warnings were played. The first warning was played on the lead up to the programme and it was as follows:

Just a warning about tonight’s programme, uh, there is some quite colourful language so listener discretion is advised.

[23]  The second warning, played at the start of the programme was as follows:

Some of this will get a bit real, the language, the subjects, so make sure you’re in a safe-space with your comfort food and join us eating fried chicken in the shower.

[24]  In view of this, we consider that the broadcaster has taken steps since the broadcast on 19 July 2019 to ensure the programme is adequately signposted in accordance with the standards.

[25]  In these circumstances we do not consider any order against the broadcaster is necessary to respond to the breach.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

18 February 2020

Appendix

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

1.  Don Campbell’s complaint to RNZ – 19 July 2019

2.  RNZ’s decision – 20 August 2019

3.  Mr Campbell’s referral to the Authority – received 19 September 2019

4.  RNZ’s confirmation of no further comment – 10 October 2019

5.  Email to RNZ asking for recording of warnings – 16 January 2020

6.  Email from RNZ attaching recording of warning – 16 January 2020

7.  Email to RNZ seeking clarification of date on recording – 16 January 2020

8.  Email from RNZ with correct recording – 16 January 2020

¹ See Language That May Offend in Broadcasting (Broadcasting Standards Authority, June 2018), page 6 and What Not to Swear: The Acceptability of Words in Broadcasting (Broadcasting Standards Authority, September 2013), page 9
² As outlined in the decision, this submission was incorrect.
³ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁴ Commentary: Children’s Interests, Broadcasting Standards in New Zealand Codebook, page 13
⁵ See Language That May Offend in Broadcasting (Broadcasting Standards Authority, June 2018), page 6
⁶ As above, page 21
⁷ See What Not to Swear: The Acceptability of Words in Broadcasting (Broadcasting Standards Authority, September 2013), page 9
⁸ Guideline 1a
⁹ Children’s normally accepted listening times are usually up until 8:30pm and especially before school and after school, Definitions: Broadcasting Standards in New Zealand Codebook, page 9
¹⁰ Guideline 1b
¹¹ See Campbell and The Radio Network Ltd, Decision No. 2011-035 at [11]
¹² See Stewart and Television New Zealand Ltd, Decision No. 2017-093 at [11] to [14] and also see the High Court decision of Television New Zealand Ltd and Freeman, CIV 2011-485-840 at [42]
¹³ Guideline 3c