Guard and Radio New Zealand Ltd - 2007-100
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Gilbert Guard
ProgrammeNine to Noon
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand National
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Nine to Noon – item was part five of a 15-part reading of the novel “The Captive Wife” – the reading contained language of a sexual nature – allegedly in breach of good taste and decency
Standard 1 (good taste and decency) – contextual factors – not upheld
This headnote does not form part of the decision.
 On Friday 10 August 2007 at 10.45am, Nine to Noon, broadcast on Radio New Zealand National, featured a reading from the novel “The Captive Wife” by Fiona Kidman. The novel was based on the lives of Jacky and Betty Guard, and events which took place in 19th century New Zealand. The reading was approximately 13 minutes long and was part five of a 15-part series.
 During the reading, the narrator read out a passage in which Jacky Guard was talking to his soon-to-be wife Betty about the duties she would have to perform as his wife. It included the following dialogue:
... “put your hand here Betsy, that is my red hot poker that I keep for you. I see that you know what I’m about”. I pull her closer so that she’s sitting right on the mountain I’m making beneath her. “I would sure like to put this poker where it belongs, but we’ll have to wait”...
 Prior to the item being broadcast, the host stated “And just a warning, because of the language used, listener discretion is advised”.
 Gilbert Guard, a direct descendant of Jacky and Betty Guard, made a formal complaint to Radio New Zealand, the broadcaster, alleging that the five readings broadcast breached standards of good taste and decency, particularly the episode broadcast on 10 August 2007. He believed the readings contained “extremely profane language and indecent sexual references and innuendo attributed to characters purported to be real”.
 The complainant stated that “the fictitious dialogue crudely intended to portray the lives of my great great grandparents is explicitly pornographic and highly offensive... to me and other direct descendants”. He insisted that the readings be discontinued on the grounds that they were not suitable for broadcasting on radio, and were distressing to the descendants of the named characters being portrayed.
 Mr Guard maintained that other listeners would have been offended by the item’s content and that it was inappropriate for a daytime broadcast.
 RNZ assessed the complaint under Principle 1 of the Radio Code of Broadcasting Practice. It provides:
Principle 1 Good Taste and Decency
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.
Broadcaster's Response to the Complainant
 RNZ noted that the language used in the radio adaptation was taken directly from the book and argued that it was not used in a sensational or gratuitous manner.
 The broadcaster maintained that the phrases were “read in a normal tone of voice given the context of the piece, were done so in passing, and not dwelt upon”. It also argued that the programme was not targeted at children or broadcast during children’s normally accepted listening times.
 RNZ considered that the language was not used in an offensive or confrontational way and that the threshold for good taste and decency had not been breached by the broadcast. It declined to uphold the complaint that the item breached Principle 1.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Guard referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989.
 The complainant argued that it was irrelevant that the language used in the radio adaptation was taken directly from the book. He said it was not acceptable to publish crude or demeaning material just because it had been published in a best-selling adult novel.
 Mr Guard maintained that the words that purported to be the words of his “forebears” were used in a sensational and gratuitous manner, and argued that the language, tone and inferences of the fictional dialogue unfairly implied an unsavoury and misleading characterisation of his ancestors.
Broadcaster’s Response to the Authority
 RNZ pointed out that the complainant had only raised issues relating to a breach of good taste and decency in his original complaint and argued that any issues relating to the fairness standard could not be raised retrospectively.
 The broadcaster stated that the item was a “radio drama in the nature of a book reading” and that it did not purport to be an absolutely accurate historical record of conversations that took place a long time ago.
 RNZ maintained that while Mr Guard took offence at the language used, the broadcast of the book reading was within the bounds of free speech and had not breached broadcasting standards.
Complainant’s Final Comment
 In response to RNZ’s statement that the item was a radio drama, Mr Guard argued that this should not provide a defence to “gratuitously implanting a derogatory impression of the named characters in the minds of the listening public”.
 The complainant maintained that RNZ was “clearly pushing the envelope of acceptable dialogue by adding the discretionary caution” and that it knew the continuing broadcasts were offensive to him.
 Mr Guard pointed out that his complaint was not about children hearing the adaptation, but the offence it had caused to mature adults who were descended from the family.
 The members of the Authority have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The broadcaster supplied the Authority with recordings of episodes one to five in the book reading series. Although episode five was the item specifically complained about by Mr Guard, members of the Authority have listened to all five episodes for context.
 The Authority notes that Mr Guard raised Principle 5 (fairness) in his referral to the Authority. Because the Authority’s task is to review the broadcaster’s decision, it is only able to consider the fairness standard if it was implicitly or explicitly raised in Mr Guard’s initial complaint to the broadcaster.
 To the extent that Mr Guard’s formal complaint can be read as raising an issue of fairness, the Authority notes that the fairness standard only applies to persons “taking part or referred to” in a programme. Because the item did not refer to any living members of the Guard family, and they did not take part in the broadcast, the Authority finds that Principle 5 does not apply in these circumstances.
Standard 1 (good taste and decency)
 When the Authority considers a complaint that alleges a breach of good taste and decency, it is required to take into consideration the context of the item. On this occasion, the relevant contextual factors include:
- Nine to Noon has an adult target audience
- the item was broadcast at 10.45am on a Friday morning
- the item was a book reading from a work of fiction
- the item was preceded by a warning.
 The complainant has alleged that the item contained “indecent sexual references” and that the dialogue was “explicitly pornographic”. The Authority disagrees. It considers that the language contained in the item was metaphorical and was not gratuitous or explicit.
 The Authority is of the view that the language used would have been unlikely to offend most listeners. Taking the above contextual factors into account, the Authority declines to uphold the complaint that the item breached Principle 1 (good taste and decency).
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
19 February 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Gilbert Guard’s formal complaint – 13 August 2007
2. RNZ’s response to the formal complaint – 13 September 2007
3. Mr Guard’s referral to the Authority – 1 October 2007
4. RNZ’s response to the Authority – 26 November 2007
5. Complainant’s final comment – 17 December 2007
6. RNZ’s final response – 26 December 2007