O'Malley and RadioWorks Ltd - 2008-107
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Glenn O'Malley
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
More FM – item discussed whether men should wear pink clothing – host said “Red, and saying that pink is a form of red is the same as saying male, and then a homosexual is a form of a male” – allegedly discriminatory
Standard 7 (discrimination and denigration) – remarks were intended to be humorous – tone not abusive – did not encourage discrimination on the basis of sexual orientation – not upheld
This headnote does not form part of the decision.
 During an item broadcast on More FM at 8am on Tuesday 5 August 2008, the hosts responded to a caller who rang up to discuss whether it was appropriate for men to wear pink shirts. Bryan McFadden, an Irish singer, appeared on the show as a guest host. Part of the exchange that took place between the hosts and the caller included the following:
Caller: ... I was just explaining that traditionally boys used to be dressed in pink.
Host: Did they?
Bryan: Yes, in San Francisco and Sydney.
Caller: Because red was considered the masculine colour and pink was a derivative of
red and little girls were actually dressed in blue.
Bryan: No, no, no, no, no. Hang on a second. Red, and saying that pink is a form of red
is the same as saying male, and then a homosexual is a form of a male. Don’t
be going all technical on me saying that in the old days – we’re not talking about
the old days because in the old days there was no such thing as gay. It was
frowned upon and the church would burn you at the stake blah-blah-blah.
Modern day, if you’re not gay a man should not be wearing pink. Unless of
course you’re in the America’s Cup and you’re one of these ponses who walk
around with Gant t-shirts with your collars up and you wear pink and you wear
white trousers with those dirty brown slip-on shoes. Fine then you’re just an idiot,
but no normal bloke should wear a pink t-shirt, I’m sorry.
Host: Do you think it’s okay for a guy to wear pink, [caller]?
Caller: Ah, depends.
Bryan: Depends on what? If he’s gay...[laughs]
 Glenn O’Malley made a formal complaint to RadioWorks Ltd, the broadcaster, alleging the item breached standards relating to discrimination.
 The complainant argued that Bryan McFadden “added a clearly homophobic tone to a discussion about whether men should wear pink”. He noted Mr McFadden’s remark “saying pink is a form of red is the same as saying homosexual is a form of male”. Mr O’Malley contended that the comments discriminated against a section of the community based on sexual orientation in breach of Standard 7.
 RadioWorks assessed the complaint under Standard 7 and guideline 7a of the Radio Code of Broadcasting Practice. They provide:
Standard 7 Discrimination and Denigration
Broadcasters should not encourage the discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.
Guideline 7aThis Standard is not intended to prevent the broadcast of material that is:
(ii) a genuine expression of serious comment, analysis or opinion; or
(iii) legitimate humour, drama or satire.
Broadcaster's Response to the Complainant
 RadioWorks noted that the Authority’s threshold for comments to constitute discrimination or denigration had been set “very high”. It pointed out that guideline 7a stated that Standard 7 did not apply to material that was “legitimate humour or satire”.
 The broadcaster stated that “the usual More FM breakfast show is based around light-hearted humour, particularly from [a comedian] who often comes up with pretty provocative statements, and this is what the audience has come to expect when listening”. In this instance, it said that Mr McFadden and the other host were standing in for the usual hosts, and were carrying out the expectation of a humorous and edgy show.
 RadioWorks contended that Mr McFadden’s comments did not cross the threshold to encourage discrimination or denigration against homosexuals. It stated that “whilst the Committee is sorry [the complainant] was upset by the comment, it could not be characterised as hate speech or vitriol to the extent required” to breach the standard. The broadcaster considered “it was simply a throw-away comment which was certainly not meant to be derogatory”. The broadcaster declined to uphold the complaint.
Referral to the Authority
 Dissatisfied with RadioWorks’ response, Mr O’Malley referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. The complainant maintained that the comments broadcast were discriminatory and that he “had never heard comments like these which literally dehumanise gay men”.
Broadcaster’s Response to the Authority
 RadioWorks disagreed with the complainant and said Mr O’Malley’s belief that the remarks “dehumanise gay men” overstated the nature of the host’s comment.
 The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Standard 7 of the Radio Code states that broadcasters should not encourage discrimination against sections of the community as a consequence of, among other things, their sexual orientation. In Decision No. 2008-050, the Authority found that encouraging discrimination means to encourage the different treatment of the members of a particular group, to their detriment. It considers that, in light of the right to free expression contained in s14 of the New Zealand Bill of Rights Act, a high threshold must be crossed before a broadcast will be found to have encouraged discrimination in breach of Standard 7.
 The Authority acknowledges that reading Mr McFadden’s remarks on paper, such as “Red, and saying that pink is a form of red is the same as saying male, and then a homosexual is a form of a male”, could give the impression that he was suggesting that homosexual males are somehow inferior to heterosexual males. However, having listened to the broadcast, the Authority is of the view that Mr McFadden’s tone was ironic rather than abusive, and that he did not intend his comments to be taken seriously.
 While Mr McFadden’s attempt at humour would not have appealed to all listeners, this is not a reason for the Authority to uphold Mr O’Malley’s complaint. Taking into account the tone of the broadcast and its humorous intent, the Authority finds that Mr McFadden did not encourage listeners to treat people differently, to their detriment, on the basis of their sexual orientation.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
19 December 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Glenn O’Malley’s formal complaint – 15 August 2008
2. RadioWorks’ response to the formal complaint – 16 September 2008
3. Mr O’Malley’s referral to the Authority – 20 September 2008
4. RadioWorks’ response to the Authority – 16 October 2008