BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld a complaint that comments made by the hosts of The Big Show about touching their testicles when they were nervous and a school speech titled ‘The Dilworth Way’ breached the good taste and decency and children’s interests standards. The Authority found the comments were within audience expectations for the programme and the radio station, Radio Hauraki. In the context the hosts’ conversation was unlikely to cause widespread offence or adversely affect any children who happened to be listening (although they were not the target audience).

Not Upheld: Good Taste and Decency, Children’s Interests

The broadcast

[1]  A clip aired during The Big Show, broadcast on 14 January 2022 at 6.25pm on Radio Hauraki, was introduced by host Chris Key with the following statement:

One final ‘Best of The Big Show’ clip for you and that is all you're getting until this coming Monday when The Big Show returns in full force…. Right now, it is time for a best-of clip. Somehow, this is considered ‘best of’ even though it’s Jase just talking once again about how sore his downstairs has been lately.

[2]  The clip included the following comments from hosts Chris Key, Mike Minogue and Jason Hoyte:

Jason:         Hey, Mike. Just very quickly, when you got your COVID shot, your vaccination, did your testicles hurt afterwards?

Mike:            I mean, I was squeezing them at the time.

Jason:         Oh, okay. Just out of anxiety?

Mike:            Yeah, they’re like my little comfy blanket.

Jason:         Yeah, same, same.

Mike:            I often might find myself like yanking at myself down there. Not in a sexual manner.

Jason:         Yeah, I know exactly what you mean. I once. True story, this. True story. I was doing the school senior speech competition.

Mike:            Oh yeah.

Jason:         And I did a magnificent speech. It blew everyone away.

Chris:          What was it on?

Jason:         I think it was called ‘The Dilworth Way’, which was quite controversial at the time – even more so now. And then I was doing the speech and completely unconsciously – I wasn’t aware of it, it must’ve been the anxiety – I had my hand down my pants the whole time, just squeezing away. And I think it was purely just nerves making me grab my testicles as a sort of comforting thing.

Mike:            Like stress balls.

Jason:         Yeah, like stress balls. And my speech was brilliant. But the guy that sort of marked speeches, he said, you know, ‘but you need to get your hand out of your pants because it's very distracting. It distracted from a very fine speech, Jason.’

Mike:            It’s a habit that you can pick up quite early in your life… Chris, do you do it?

Chris:          Yeah, I do it. I do the same thing as those massage balls where you just sort of swap them around in your hand. I do that.

The complaint

[3]  The complainant alleged the segment breached the good taste and decency and children’s interests standards:

• ‘Mike and Jason were discussing how they like to fondle their own testicles when feeling nervous. I am unsure if this was meant to be a joke (did not sound like it) but it was completely in bad taste and inappropriate for the time of day (before the watershed)’.
• ‘To make matters worse one of them told a story about giving a great speech at school then being told he’d had his hand down his pants the whole time. This was bad enough but he referred to the title of his speech as “the Dilworth way”. Given the current situation with Dilworth school and the horrific historical child sex abuse that has come to light in recent times this reference is in disturbingly poor taste and would serve to retraumatise/trigger anyone who is a survivor of the abuse. The whole segment left me feeling sick’.
• ‘I acknowledge that Jason did attend Dilworth School and so may have been recalling a true memory, however I would have expected an ex-pupil of the school to be more aware of recent events, the trauma suffered by his school mates and [to be] more circumspect in his content.’

The broadcaster’s response

[4]  NZME Radio Ltd did not find any breach of standards. In summary, it submitted:

• Hauraki’s target audience is males aged 30 to 59 years old.
• Hauraki is well known for its edgy and adult content, and its nature of programming is clearly not intended for children.
• This content was within audience expectations of the station, and the tone and context of The Big Show.
• ‘The hosts were discussing, frankly, holding themselves as a comfort, and very clearly non-sexually…’
• There was no conflation between the hosts’ discussion about holding themselves and recent coverage of Dilworth School.
• The segment aired at 6.25pm, ‘outside of drive times when children are likely to be in the car’. NZME therefore did not expect children to be listening, or considered they would only be doing so with parental consent and guidance.
• ‘In any event, much of this segment would not, in our view, be readily understood by children.’
• ‘…while no doubt challenging and likely unacceptable for audiences of other radio stations’, overall it did not consider the segment breached standards.

[5]  In response to the complaint referral, NZME added:

• Previous Authority decisions recognise Radio Hauraki is ‘well-known for its more challenging content and style of humour’.¹
• The segment was clearly an attempt at humour by the hosts. Audiences are accustomed to the ‘dry style of humour’ of Jason Hoyte and Mike Minogue, who have both been hosts on Hauraki for some time.
• ‘The reference to “[the] Dilworth Way” [was] made to contextualise a story about giving a speech, during which the host recounted he did not realise he was holding himself due to nerves. We do not think the statement undermined the seriousness of the abuses that occurred historically at Dilworth; it was a one-off reference, without direct conflation between the story being told and sexual abuse.’
• ‘Despite our findings that there was not a breach of the standards, we did share the response with the Content Director for Hauraki, and subsequently asked him to remind the hosts to use caution when referring to matters which could be viewed by audience members as making light of serious matters.’

The standards

[6]  The good taste and decency standard² states current norms of good taste and decency should be maintained, consistent with the context of the programme and the wider context of the broadcast. The standard is intended to protect audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards.³

[7]  The children’s interests standard⁴ requires broadcasters to ensure children can be protected from broadcasts which might adversely affect them. In a radio context, the standard will only apply during times when children are likely to be listening (usually up until 8.30pm and especially before school and after school). Material likely to be considered under this standard includes sexual or violent content or themes, offensive language, social or domestic friction and dangerous, antisocial or illegal behaviour – where such material is outside audience expectations of the station or programme.⁵

Our analysis

[8]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[9]  As a starting point, we considered the right to freedom of expression. Our task is to weigh this right – which includes broadcasters’ right to offer a range of content and programming, as well as the audience’s right to receive that content – against any harm potentially caused by the broadcast.⁶ We may only intervene and uphold a complaint where limiting the right to freedom of expression is reasonable and justified in light of the potential harm.

Good taste and decency

[10]  The context in which the content occurred and the wider context of the broadcast are relevant to assessing whether a programme has breached the good taste and decency standard.⁷ In this case we considered the following contextual factors as relevant to our decision:

The nature of the station and the programme

• Radio Hauraki is well-known for its more challenging content and style of humour.⁸
• Jason Hoyte and Mike Minogue are comedic hosts known for ‘providing headshaking laughs, questionable banter and an escape from reality’ on The Big Show.⁹
• The clip was pre-recorded and selected as a ‘best-bit’ of The Big Show.
• The jokes in this segment concerned non-sexual activity by the hosts with their own genitalia (when they are nervous or anxious).
• A single reference was made to Dilworth School in Auckland, the subject of recent coverage concerning historic sexual abuse of children by staff.
• The comments were delivered in a light-hearted tone and were clearly intended to be humorous rather than offensive.¹⁰

The target and likely audience

• Radio Hauraki and The Big Show are targeted at an adult, male audience aged 30-49.¹¹
• This clip of The Big Show aired at 6.25pm, when children could be listening – although the Radio Code recognises they are more likely to be listening to the radio before school and after school.¹² Children were unlikely to be listening alone, if they did happen to be listening.¹³

Audience expectations

• Audience expectations would have been for a comedic radio show which includes off-the-cuff remarks and cheeky humour aimed at an adult audience. Challenging, controversial adult humour is not unusual for this programme.
• Host Chris Key’s introduction to the clip gave some indication of the subject matter (‘…it’s Jase just talking once again about how sore his downstairs has been lately’), which gave listeners an opportunity to moderate the content or exercise discretion.

Other factors

• Jason Hoyte, who made the reference to ‘the Dilworth way’, attended Dilworth School.¹⁴

[11]  While the subject matter may not be to the taste of all listeners, we consider the hosts’ comments in this segment were an attempt at humour and consistent with audience expectations. Audiences of Radio Hauraki generally and The Big Show specifically expect edgy, adult humour and ‘questionable banter’, and would not be surprised that jokes and commentary concerning male genitalia were included in the broadcast – especially given the introduction to the clip signalled this.

[12]  We acknowledge the complainant’s concerns that the reference to Dilworth School may be considered offensive during a discussion about the hosts touching their genitalia. However the segment did not specifically mention, nor do we think it trivialised, the experiences of victims at Dilworth School.¹⁵ The reference was made in the context of an anecdote by host Jason Hoyte – who attended Dilworth School – regarding the title of a school speech he gave (‘I think it was called “The Dilworth Way”, which was quite controversial at the time – even more so now’). The reference was not repeated, the actions described by the hosts were stated to be ‘non-sexual’ and the discussion before and after had no relevance to historic sex crimes.

[13]  Overall we find no breach of the good taste and decency standard, as the segment was unlikely to cause widespread offence or undermine community standards in the context. It did not meet the threshold requiring regulatory intervention or restricting the right to freedom of expression.

Children’s interests

[14]  The focus of this standard is on ensuring the audience has sufficient information or opportunity to exercise discretion and protect children from unsuitable content.

[15]  While children’s normally accepted listening times are usually up until 8.30pm,¹⁶ radio is not subject to a timeband system in the same way as free-to-air television.¹⁷ As noted earlier, the Radio Code recognises children are most likely to be listening to the radio during school drop-off and pick-up times. The comments in this instance were broadcast after 6pm. We agree with the broadcaster that children were unlikely to be listening or to be doing so alone – particularly since they were not the target or intended audience.

[16]  In any event we consider the subject matter of the clip, as well as the reference to Dilworth School, would likely have gone over the heads of children who happened to be listening. Although some children may have understood or been curious about the comment, audience expectations of Radio Hauraki and The Big Show anticipate parental guidance, mitigating any potential harm.

[17]  The contextual factors outlined above at [10] are also relevant to assessing whether a broadcast has breached the children’s interests standard.¹⁸ Adult themes during the broadcast and references to genitalia were not outside of audience expectations for the programme,¹⁹ and the introduction signalled genitals were going to be discussed during the clip. On this basis we consider the listening audience had sufficient opportunity to exercise choice and discretion as to whether to allow children to listen to the broadcast.

[18]  For these reasons, we do not consider overall the clip would have adversely affected child listeners. We have not found any potential harm that justifies limiting the right to freedom of expression in relation the children’s interests standard and therefore do not uphold the complaint.
 

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Susie Staley
Chair
21 June 2022

Appendix

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

1  Annabelle Mitchell’s complaint to NZME – 15 January 2022

2  NZME’s response to the complaint – 17 February 2022

3  Mitchell’s referral to the Authority – 17 March 2022

4  NZME’s further comments responding to the referral – 6 April 2022

5  Mitchell’s final comments – 20 April 2022

6  NZME’s confirmation of no further comments – 17 May 2022

¹ Eg, Neal and The Radio Network Ltd, Decision 2014-041; Grimshaw and New Zealand Media And Entertainment, Decision No. 2014-136
² Standard 1 of the Radio Code of Broadcasting Practice
³ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁴ Standard 3 of the Radio Code of Broadcasting Practice
⁵ Guideline 3a
⁶ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁷ Guideline 1a to Standard 1, Radio Code of Broadcasting Practice
⁸ See Neal and the Radio Network Ltd, Decision No. 2014-041 at [12]
⁹ “The Big Show with Jason Hoyte & Mike Minogue” Radio Hauraki <www.hauraki.co.nz>
¹⁰ See for example Neal and the Radio Network Ltd, Decision No. 2014-041 at [10]
¹¹ “NZME Audio” NZME <NZME.co.nz>: “Rebellious, irreverent, music that rocks, targeting males 30-49 years old.”
¹² Definitions: Broadcasting Standards in New Zealand Codebook, page 9; Guideline 3a
¹³ See for example Lethborg and MediaWorks TV Ltd, Decision No. 2019-053
¹⁴ “New Zealand Actor: Jason Hoyte” People Pill <peoplepill.com>
¹⁵ See for example Yukich and Mediaworks TV Ltd, Decision No. 2019-080 at [8], where the Authority did not uphold a complaint about a joke involving a murder case.
¹⁶ Definitions: Broadcasting Standards in New Zealand Codebook, page 9; Guideline 3a
¹⁷ Classifications and Timebands, Broadcasting Standards Authority
¹⁸ Guideline 3c
¹⁹ Guideline 3b