BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Listeners’ Choice Countdown – song titled “Killing in the Name” by Rage Against the Machine – broadcast at 9.30am – contained the lyrics “Fuck you, I won’t do what you tell me” repeated 16 times, followed by the word “motherfucker” – allegedly in breach of standards relating to good taste and decency and responsible programming

Findings
Standard 1 (good taste and decency) – song inadequately censored – excessive use of expletives would have significantly departed from audience expectations – upheld

Standard 8 (responsible programming) – subsumed into consideration of Standard 1

No Order

This headnote does not form part of the decision.

Broadcast

[1]   A song titled “Killing in the Name” by rock band Rage Against the Machine was broadcast during the Listeners’ Choice Countdown on Radio Hauraki at approximately 9.30am on Thursday 17 February 2011. The song contained the lyrics “Fuck you, I won’t do what you tell me” broadcast 16 times towards the end of the song, followed by the word “motherfucker”.

Complaint

[2]   Andrew Campbell made a formal complaint to The Radio Network Ltd (TRN), the broadcaster, alleging that the song breached standards relating to good taste and decency, and responsible programming. In particular, he referred to the lyrics “Fuck you, I won’t do what you tell me”, which he argued undermined a “healthy respect” for law, order and authority.

Standards

[3]   TRN assessed the complaint under Standards 1 and 8 and guidelines 1a and 8a of the Radio Code of Broadcasting Practice. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guideline 1a

Broadcasters will take into account current norms of good taste and decency, bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast e.g. time of day, target audience.

Standard 8 Responsible Programming

Broadcasters should ensure that programme information and content is socially responsible.

Guideline 8a   

Broadcasters should be mindful of the effect any programme content may have on children during their normally accepted listening times.

Broadcaster’s Response to the Complainant

[4]   TRN noted that Radio Hauraki was a rock station targeted at adult males, and that “Killing in the Name” was a “hard pumping rock song with the offending word appearing repeatedly towards its conclusion”. It noted that the song was regularly played on the station and considered this to be indicative of its “acceptability in this environment”, which it said was confirmed by it being one of the station’s “highest testing songs (meaning its acceptability)”.

[5]   The broadcaster contended that, in most circumstances, the word “fuck” was unacceptable for radio broadcast. However, it argued that in the Radio Hauraki “rock context and environment”, the song was “passable”. TRN noted the Authority’s research on the acceptability of words in broadcasting, which it said indicated that in recent years the word “fuck” had become “significantly less unacceptable”.

[6]   For these reasons, TRN declined to uphold the Standard 1 complaint.

[7]   Turning to the responsible programming standard, the broadcaster noted the complainant’s argument that the song undermined a healthy respect for law, order and authority. It said that, while a high proportion of rock songs railed against convention, which had been the case with “rock and roll” for the past 50 years, this did not necessarily result in listeners breaking the law.

[8]   Accordingly, TRN declined to uphold the complaint that the broadcast breached Standard 8.

Referral to the Authority

[9]   Dissatisfied with the broadcaster’s response, Mr Campbell referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. With regard to Standard 1, the complainant argued that TRN “should be aware that people outside [the station’s adult male target audience] will be invariably exposed to Radio Hauraki”. Mr Campbell said that while he recognised that “disrespect for authority” was a common theme of rock and roll, the song contained “aggressive and antisocial” lyrics, which he maintained was socially irresponsible.

Broadcaster’s Response to the Authority

[10]   TRN said that, having reviewed its decision, it had discovered that two different versions of “Killing in the Name” were played on air. It noted that the “offending version” was played only two or three times, and that an edited version which did not contain the language subject to complaint was usually broadcast. In light of this, the broadcaster considered that its initial decision under Standard 1 was incorrect, and it therefore upheld the good taste and decency complaint. TRN said that the unedited version had since been removed from its playlist.

[11]   The broadcaster maintained that Standard 8 had not been breached.

Complainant’s Final Comment

[12]   Mr Campbell maintained that Standards 1 and 8 had been breached. He considered that Radio Hauraki showed a lack of care with regard to broadcasting standards.

Authority’s Determination

[13]   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.

Preliminary Matter

[14]   We note that in its response to the Authority, TRN informed us that having reviewed its decision it had discovered that it had unintentionally broadcast an unedited version of “Killing in the Name”. It said that the censored version, which was usually played on Radio Hauraki, did not contain any profanity. On this basis, it acknowledged that the broadcast breached Standard 1 and removed the unedited version from its playlist.

[15]   Although TRN revised its opinion with regard to Standard 1, it did not uphold the complaint in the first instance and we must therefore proceed to consider whether the good taste and decency standard was breached.

Standard 1 (good taste and decency)

[16]   At the outset, we acknowledge that the broadcaster has the right to freedom of expression under section 14 of the Bill of Rights Act 1990, and the importance of  the values underlying that right. Any restriction on the broadcaster’s right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[17]   Looking at Standard 1 (good taste and decency), we must take into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• “Killing in the Name” was broadcast on a Thursday at 9.30am
• Radio Hauraki is targeted at adult males
• the version of the song usually broadcast was edited so that it did not contain any profanity
• in this instance the song contained the word “fuck” 16 times and the word “motherfucker” once
• expectations of regular listeners with regard to the use of expletives.

[18]   In considering whether it would be a reasonable and proportionate limit on TRN’s freedom of expression to uphold a breach of Standard 1 on this occasion, we acknowledge that a number of contextual factors favour the broadcaster’s position. We note that “Killing in the Name” is a protest song about revolution against racism in security agencies and that it contains a powerful message for some audiences. We also acknowledge that Radio Hauraki has a target audience of adult males and that the song was broadcast at 9.30am which is not considered to be within children’s normally accepted listening times.

[19]   Against these factors we must weigh the objective and significance of the broadcasting standard concerned, and the extent to which upholding the complaint would limit the broadcaster’s right to freedom of expression.

[20]   In Turner and TVNZ,¹ the Authority described the primary objective of Standard 1 as follows:

... 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 shown.

[21]   We consider that the objective outlined above is an important one. Sufficient care must be taken so that challenging material is played only in the appropriate context so that viewers or listeners are able to make informed choices about the kind of broadcast material they consume.

[22]   The Authority’s research, published in 2010, showed that 69 percent of people surveyed considered “fuck” fairly or totally unacceptable in the context of a song played on the radio, while 80 percent considered the word “motherfucker” fairly or totally unacceptable in that context.²

[23]   Against that background, it is our view that broadcasting the word “fuck” 16 times, followed by the word “motherfucker” on the radio at 9.30am would be considered unacceptable, even by regular listeners. Considering that the song was usually edited so that it did not contain any profanity, it is our opinion that broadcasting the uncensored version would have significantly departed from the established expectations of Radio Hauraki’s target audience. Listeners were denied the right to make informed choices about the kind of broadcast material they consumed.

[24]   In these circumstances, we consider that upholding the complaint would not place a significant limit on TRN’s right to freedom of expression. The broadcaster is free to continue broadcasting the edited version of the song in accordance with its usual practice.

[25]   Having carefully considered all of the contextual factors outlined above, we have reached the conclusion that broadcasting the uncensored version of “Killing in the Name”, which contained the lyric “fuck” 16 times followed by the word “motherfucker”, at 9.30am, exceeded current norms of good taste and decency in the context in which it was broadcast. Accordingly, we uphold the complaint that TRN breached Standard 1.

Standard 8 (responsible programming)

[26]   In our view, the complainant’s concerns have been adequately dealt with under Standard 1. We therefore subsume our consideration of responsible programming into our consideration of the good taste and decency standard.

For the above reasons the Authority upholds the complaint that the broadcast by The Radio Network Ltd of Rage Against the Machine’s song “Killing in the Name” on 17 February 2011 breached Standard 1 of the Radio Code of Broadcasting Practice.

[27]   Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion.

[28]   We have made it clear that the broadcast of the uncensored version of the song was unacceptable. This has now been properly accepted by the broadcaster to be the case. The broadcast of the uncensored version of the song may have been in error; certainly it was an error of judgement. The broadcaster has removed the unedited version of the song from its playlist to ensure that the error is not repeated. In all of the circumstances, including because the broadcaster has accepted that the broadcast ought not to have occurred, we consider the publication of this decision is sufficient.

Signed for and on behalf of the Authority

Peter Radich
Chair
7 June 2011

Appendix

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

1    Andrew Campbell’s formal complaint – 25 February 2011

2   TRN’s response to the complaint – 8 March 2011

3   Mr Campbell’s referral to the Authority – 27 March 2011

4   TRN’s response to the Authority – 5 April 2011

5   Mr Campbell’s final comment – 28 April 2011

¹Decision No. 2008-112

²What Not to Swear: The Acceptability of Words in Broadcasting (Broadcasting Standards Authority,
  2010) at page 23