O'Callaghan and Radio Active Ltd - 2004-063
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Michael O'Callaghan
ProgrammeRadio Active 89FM: song "Threat"
BroadcasterRadio Active Limited
Channel/StationRadio Active 89FM
Complaint under s.8(1)(b) of the Broadcasting Act 1989
"Threat" by hip hop artist Jay-Z – lyrics include references to “niggers”, “shit” and “fuck” – alleged breach of good taste and decency
Principle 1 (good taste and decency) and Guideline 1a – broadcaster removed song from play list – tantamount to acknowledgement that song breached standards – action taken sufficient – decline to determine standards complaint
This headnote does not form part of the decision.
 The song Threat by hip hop artist Jay-Z was broadcast on Radio Active 89FM at around 9.10am on Tuesday 17 February 2004.
 Michael O’Callaghan complained to Radio Active Ltd, the broadcaster, that he had heard a song broadcast at around 9.10am which contained “the most explicit, disgusting and inappropriate obscene lyrics I have ever heard on public radio”. He quoted phrases he had heard, and said the word “fuck” was used repeatedly throughout the song.
 Mr O’Callaghan said he could not identify the title, singer or band. However, because of the rap style of the song, the lyrics were “not discreet or disguised by the music but in clear accentuated American speak”.
 Mr O’Callaghan wrote that if people used such language on the street it would be a criminal offence for which they could be arrested.
Referral to the Authority
 When he did not receive a response from the broadcaster within 20 working days, Mr O’Callaghan referred his complaint to the Authority under s.8(1)(b) of the Act.
Broadcaster’s Response to the Authority
 Radio Active’s station manager responded directly to the Authority. He began by apologising for any offence caused by the item.
 The station manager wrote that Radio Active strove to be a relevant part of the Wellington cultural community, hoping to entertain as well as provide challenging music which pushed cultural boundaries. He said he took Mr O’Callaghan’s concerns seriously and had spoken to the principal DJ about the matters raised in the complaint. He continued:
However, we feel we must try and convey to you some of the reasoning behind playing what can be perceived as offensive material.
The music in question is from the “Hip Hop” canon. This music has grown out of African American street culture and extreme poverty in modern western society. The language of this music is indicative of its background. Words such as ‘nigger’ have been re-appropriated by black culture as [a way of] affirming a sense of pride and place. The violence of the dialogue must [be] interpreted as narrative. These raps are stories of a street culture that is very real if very removed from life in New Zealand.
 The station manager advised the Authority that hip hop music was becoming “more and more popular” with listeners. He wrote that Radio Active played it because it “[found] it artistically and culturally interesting”. He continued:
Much in the way that many films and visual arts create controversy this music encourages debate.
 The station manager advised that in future Radio Active would be “cautious with [its] selections”. He advised that the track complained about had only been played once, and had been removed from the play list. Radio Active advised, however, that it would not compromise on playing music which it considered was of artistic merit.
Complainant’s Final Comment
 Mr O’Callaghan stated that he was concerned about Radio Active’s “unnecessary justification in terms of their programme selection.” He wrote that he expected broadcasters to comply at all times with broadcasting standards.
 Mr O’Callaghan wrote:
- Radio Active’s suggestion about the word “nigger” being re-appropriated back into black culture was “at best” debateable.
- The connotations of the word “nigger” in New Zealand were “clearly racist and totally unacceptable”.
- He did not agree with the suggestion that violence and obscene language could be broadcast because of “street culture considerations”. He wrote: “What next … Urinating and defecating in front of an audience (inhibitions aside).”
- The suggestion that many films and visual arts pushed boundaries was not relevant in this context as “rude and violent content (like my original complaint) is not aired to all [and] sundry but is covered by censorship laws for suitable selected audiences”.
 Mr O’Callaghan said that further breaches on the subjective basis of artistic merit seemed likely. Therefore, he requested a commitment from Radio Active that all content would be vetted for compliance with broadcasting standards before being aired.
 The members of the Authority have listened to a tape of the song complained about and read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Broadcaster’s complaints procedure
 The Authority deals first with the procedural matters raised by this complaint.
 Under the Broadcasting Act 1989, broadcasters are responsible for dealing with complaints relating to broadcasts, and for establishing proper procedures for investigating complaints. The Act requires broadcasters to respond to complaints within 20 working days after receiving the complaint.
 Radio Active has not complied with its responsibilities under the Act. Mr O’Callaghan wrote to Radio Active on 20 February 2004. On 23 March 2004, he referred his complaint to the Authority under s.8(1)(b) of the Act as he had not receive a response from Radio Active within 20 working days.
 Radio Active dealt with the complaint by responding directly to the Authority. While Radio Active advised the Authority that the song had been removed from its play list, the Authority also notes that it did not respond to the complaint with specific reference to either:
- the requirement in s.4(1) of the Act that it maintain standards consistent with “the observance of good taste and decency”; or
- the requirement in Principle 1 of the Radio Code of Broadcasting Practice that it maintain standards consistent with “the observance of good taste and decency” (Principle 1 being a restatement of the statutory requirement in s.4(1) of the Act).
 The Authority therefore reminds Radio Active of its statutory obligation:
- to receive and consider formal complaints;
- to have in place a proper procedure for doing so; and
- to comply with the Radio Code of Broadcasting Practice.
 The Authority now deals with the complaint that the song Threat breached broadcasting standards.
 Principle 1 of the Radio Code reads:
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.
 In its response to the Authority, Radio Active:
- apologised for any offence caused by the song;
- acknowledged that it could be “perceived as offensive”; and
- advised that Threat had been removed from the play list.
 In the Authority’s view, Radio Active’s response to the complaint is tantamount to an acknowledgement that the song Threat breached Principle 1 of the Radio Code. The Authority commends the broadcaster for its proactive response in having removed the song from the play list.
 In his final comment, Mr O’Callaghan sought an assurance from Radio Active that content would be vetted for compliance with broadcasting standards before being aired. The Authority notes that it has no jurisdiction over material prior to broadcast, and that it cannot make such an order.
 In the circumstances of this complaint, it is unnecessary for the Authority to determine whether the song did in fact breach “good taste and decency”. The Authority notes, however, that when it considers complaints alleging a breach of good taste and decency, it is required to take into account the context in which the broadcast occurred. Relevant contextual factors include the time of the broadcast, the target audience, and whether children would be likely to be in the listening audience. On this occasion, the song complained about was played at around 9.10am on a school day when children would be unlikely to be listening. The Authority notes that Jay-Z is a black rap artist and that the song, when listened to in its entirety and in the context of its genre, is – as Radio Active pointed out – a narrative of events in African American street culture. The Authority considers that Radio Active’s target audience is likely to understand the artistic and cultural context of hip hop music.
 Had the Authority been required to determine the standards complaint, it notes that it would have taken these contextual factors into account.
For the above reasons the Authority declines to determine the complaint.
Signed for and on behalf of the Authority
27 May 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
- Michael O’Callaghan’s Formal Complaint to Radio Active – 20 February 2004
- Mr O’Callaghan’s Referral to the Authority – 23 March 2004
- Radio Active’s Response to the Authority – 7 April 2004
- Mr O’Callaghan’s Final Comment – 16 April 2004