Clarke and Radio New Zealand Ltd - 2003-043
- J H McGregor
- Tapu Misa
- R Bryant
- Paul Clarke
BroadcasterRadio New Zealand Ltd
Bea Arthur on Broadway – Concert FM – joke about a taxi driver and his fantasy about oral sex with a nun – offensive
Principle 1 Guideline 1a – context – no uphold
his headnote does not form part of the decision.
 Bea Arthur on Broadway: Just Between Friends featured in the Music Alive programme broadcast on Concert FM between 8.00–9.10pm on Friday 24 January 2003. During the programme, actress Bea Arthur told a joke about a nun who hired a taxi, and the taxi driver who told her that he had a fantasy about having oral sex with a nun.
 Paul Clarke complained to Radio New Zealand Ltd, the broadcaster, that the story was offensive and not the sort of material expected on Concert FM.
 In response, RNZ apologised to Mr Clarke. It advised that the programme was purchased from a reputable production house and that the content had only been spot checked before broadcast. Nevertheless, in view of the time of broadcast, RNZ declined to uphold the complaint.
 Dissatisfied with RNZ’s decision, Paul Clarke referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have listened to a tape of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The Music Alive programme broadcast on Concert FM between 8.00–9.10pm on 24 January 2003 featured Bea Arthur on Broadway: Just Between Friends. During the programme, actress Bea Arthur told a joke about a nun who hired a taxi, and the taxi driver who told her that he had a fantasy about having oral sex with a nun.
 Describing the material as "gutter talk", Paul Clarke said it was unsuitable for Concert FM. He sought an apology from RNZ and dismissal of the staff member responsible for allowing the material to be broadcast.
 In view of the matters raised, RNZ assessed the complaint under Principle 1 of the Radio Code of Broadcasting Practice. The Standard, and relevant Guideline, provides:
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.
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.
The Broadcaster’s Response to the Complainant
 RNZ advised Mr Clarke that the reaction of Concert FM staff was similar to his. While the programme had been spot checked for technical errors and content, the particular sequence complained about had not been discovered prior to broadcast. The programme had been purchased, RNZ added, from a reputable production house.
 RNZ apologised to Mr Clarke on behalf of both the company and the staff members concerned. It said that other programmes in Concert FM’s Summer Season had run smoothly and expressed regret about the particular programme, and again apologised.
 Turning to the question of broadcasting standards, RNZ noted that the joke had been broadcast at 9.00pm which was not a recognised time for children to listen to Concert FM. Pointing out that the broadcast was in breach of its "own high internal standards", RNZ maintained nevertheless that it was not in breach of Principle 1 in view of the contextual matters noted.
The Referral to the Broadcasting Standards Authority
 When he referred the complaint to the Authority, Mr Clarke enclosed some further correspondence he had exchanged with RNZ after it declined to uphold his complaint.
 On receipt of RNZ’s decision on his complaint, Mr Clarke wrote to the broadcaster and expressed his pleasure at the apology. However, he said, he was unable to understand why RNZ, while agreeing that the complaint was justified, declined to uphold it. He contended that a public apology was appropriate.
 In its reply, RNZ argued that a broadcast apology without a context could lead to speculation and confusion. It considered that the apology to Mr Clarke was sufficient.
 Mr Clarke, in his response to RNZ, maintained that a softly worded but sincere apology was appropriate. If that led to questions from listeners, he stated, RNZ could supply the listener with a copy of the correspondence between RNZ and himself. He wrote:
Would you let me know in advance when such apology is to be broadcast so that I can tune in and admire the way in which you publicly show respect for nuns.
 In his referral to the Authority, Mr Clarke emphasised his belief that a public apology was Concert FM’s appropriate response. He did not accept that the comment was "fleeting", recalling that the speaker had spent some time telling the story in the lead up to the remark he had found offensive.
The Complainant’s Final Comment
 Mr Clarke referred to the tremendous good works done by nuns, but contended that they had been humiliated by the material which was broadcast. RNZ’s lack of a public apology, he wrote, put into question the value of its private apology to him.
The Authority’s Determination
 When it determines a complaint about whether a broadcast contravenes Principle 1 of the Radio Code, the Authority is required to determine whether the material complained about breached currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but not determinative of whether the programme breached the principle. Accordingly, the Authority has considered the context in which the programme complained about was broadcast.
 The first contextual matter the Authority considers relevant is the full story from which the comment complained about was taken. As Mr Clarke pointed out, the material began with a comment from a taxi driver, to a nun in his taxi, in which he told her about his fantasy of having oral sex with a nun. However, the joke eventually concludes with the revelation that the "nun" is a man dressed up for a Halloween Party. In view of the punch-line, the potential offensiveness of the story is substantially reduced.
 While the Authority accepts that such stories might not be regular fare on Concert FM, it also notes that the story was broadcast at about 9.00pm, and that Concert FM is not aimed at a youthful audience.
 In view of these contextual matters, the Authority concludes that the broadcast did not breach the standard relating to the requirement for good taste and decency, even though the broadcaster had indicated that it had fallen short of its own internal standards.
 The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
Dr Judy McGregor
22 May 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- Paul Clarke’s Formal Complaint to Radio New Zealand Ltd – 25 January 2003
- RNZ’s Response to Mr Clarke – 10 February 2003
- Mr Clarke’s Response to RNZ – 17 February 2003
- RNZ’s Further Response to Mr Clarke – 21 February 2003
- Mr Clarke’s Reply to RNZ – 24 February 2003
- Mr Clarke’s Referral to the Broadcasting Standards Authority – 7 March 2003
- RNZ’s Response to the Authority – 13 March 2003
- Mr Clarke’s Final Comment – 19 March 2003