BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Student radio 95bFM – song "XXX" by rap band Atom – failure of station to respond within 20 working days to complaint – language in song breach of good taste and decency – "fuck and shit and suck my motherfucking dick"

Findings
Principle 1 – broadcaster upheld complaint – action taken sufficient – also appropriate now to apologise to complainant – no uphold

This headnote does not form part of the decision.

Summary

The song XXX by Atom was broadcast on 95bFM at about 1.00am on 22 September 2000. The song began with a string of expletives, including the words "fuck" and "shit" and the expression "suck my motherfucking dick". These expletives were repeated at various times during the song.

Judy Mills complained to the broadcaster, 95bFM, that the use of the expletives breached standards of good taste and decency.

As Ms Mills did not receive a substantive response from the broadcaster, she referred the complaint to the Broadcasting Standards Authority under section 8(1)(b) of the Broadcasting Act 1989.

The broadcaster advised the Authority that it had upheld Ms Mills’ complaint that the song was offensive. It stated that the relevant announcer had been suspended pending the Authority’s ruling and that the show "Parallel Universe" was under review.

For the reasons given below, the Authority concludes that the broadcaster upheld the complaint and declines to uphold the complaint that the action taken was insufficient.

Decision

The members of the Authority have listened to a tape of the item complained about and have read the correspondence listed in the Appendix. The Authority determines this complaint without a formal hearing.

A rap song entitled XXX, broadcast on 95bFM at 1.00am on 22 September 2000, began with the following:

Hooker, slut, tramp, dirty low slut, tramp, bitch, ho, fuck, shit, whatever, suck my motherfucking dick.

In September 2000 Judy Mills complained to the broadcaster, 95bFM, that the expletives contained in the song breached standards consistent with the observance of good taste and decency.

As Ms Mills did not receive a substantive response from the broadcaster, she referred the complaint to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.

In response to Ms Mills’ complaint, the broadcaster advised the Authority that it had considered the complaint under Principle 1 and guideline 1a of the Radio Code of Broadcasting Practice. They read:

Principle 1

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.

Guideline

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 e.g. time of day, target audience.

95bFM stated that it considered the song to be offensive, even at the late hour when it was broadcast. It said:

The artist, Atom, is a German avant-garde/modern classical composer who utilises many contemporary styles in his work. The track in question is based around a sample from a spoken word introduction to the 1992 album "home invasion" from Los Angeles gangster rap pioneer Ice T. It was a wilfully offensive rant, inspired by Ice T’s involvement in a "freedom of speech" – type court case over his track "Cop Killer", a song written for his hardcore side project Body Count and subsequently banned in the USA. By beginning his next album with a string of expletives, it was a reiteration of his constitutional right to free speech.

The broadcaster continued:

The DJ believed that the audience for this specialist avant garde show would be both aware of Atom’s history and modus operandi for creating music; and felt that it would not be something which would cause any undue offence to them.

95bFM reported it did not agree with the DJ because it saw scope for misinterpretation, especially when the song was removed from its original context as part of a broader work. While it did not find the work offensive in a wider context, 95bFM accepted that the broadcast of the song on its own was inappropriate. The announcer, it stated, had been suspended until the Authority had ruled on the complaint, and the show "Parallel Universe", of which the song was a part, had been put under review.

As the complainant had not referred the substance of the complaint to the Authority, the Authority directed the broadcaster to reply directly to the complainant.

In its letter to Ms Mills received by her on 11 June 2001, the broadcaster repeated most of the information in its earlier letter to the Authority. However, it now said the broadcast "may have been inappropriate", rather than "was inappropriate", and it did not refer to the announcer's suspension or a review of the show.

Ms Mills referred the letter to the Authority under s.8(1)(a) of the Broadcasting Act 1989. By telephone, the broadcaster advised the Authority that the announcer remained suspended awaiting the Authority’s ruling.

The Authority’s Findings

This complaint raises two procedural issues for the Authority. First, the broadcaster did not respond to Ms Mills’ initial complaint. When the complaint was referred to the Authority because there had been no response, the broadcaster replied to the Authority, rather than to Ms Mills. This is not the statutory procedure and, at the Authority’s request, the broadcaster later responded direct to Ms Mills.

Second, it is ambiguous from the broadcaster’s responses to both Ms Mills and the Authority whether it had upheld the complaint. 95bFM acknowledged that the broadcast of the song on its own was inappropriate, but argued that it was not offensive in its wider context. It also said that the song was broadcast at a later hour during a specialist avant garde programme.

Notwithstanding the time and type of show, which could be seen as aspects of "wider context", 95bFM reported that the announcer has been suspended and the show was under review. Furthermore, it wrote:

We are not a station that plays contentious material for its perceived ‘shock value’.

In its first letter to the Authority, 95bFM apologised to Ms Mills. However, that apology was omitted from its later letter sent directly to Ms Mills.

The action taken by 95bFM in response to the complaint leads the Authority to conclude that the broadcaster has upheld the complaint. It now considers whether the action taken was appropriate. Taking into account the circumstances of the broadcast, including the time (1.00am), the Authority is of the view that the internal action taken by 95bFM was appropriate and sufficient. It notes the apology to Ms Mills in the letter to the Authority, but recommends that the most appropriate way to conclude the complaint now is for 95bFM to write direct to Ms Mills repeating that apology.

For the reasons above, the Authority concludes that the broadcaster upheld the complaint as a breach of Principle 1 of the Radio Codes of Broadcasting Practice, and that the action taken was sufficient.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
16 August 2001

Appendix

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

1. Judy Mills’s Formal Complaint to 95bFM – 25 September 2000
2. Ms Mills’s Further Letter to 95bFM – 23 October 2000
3. Ms Mills’s Referral to the Broadcasting Standards Authority – 22 November 2000
4. 95bFM’s Response to the Authority – 2 March 2001
5.  Ms Mills’s Final Comment – 12 March 2001
6. 95bFM’s Response to Ms Mills – received 11 June 2001
7. Ms Mills’s Referral to the Authority – 19 June 2001