BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
LMFAO Video Hits – LMFAO song “Shots” broadcast at 7.15pm allegedly contained coarse and sexually explicit language and liquor promotion – allegedly in breach of good taste and decency, discrimination and denigration, responsible programming, children’s interests and liquor standards

Findings
Standard 11 (liquor) – music video contained liquor promotion that was not socially responsible – upheld

Standard 9 (children’s interests) – given the dominance of liquor promotion in the video and the messages conveyed, broadcaster did not adequately consider the interests of child viewers in screening the video during children’s viewing times – upheld

Standard 7 (discrimination and denigration) – while song did refer to women it did not carry the invective necessary to encourage denigration of women as a section of the community – not upheld

Standard 1 (good taste and decency) and Standard 8 (responsible programming) – subsumed into consideration of liquor and children’s interests

No Order

This headnote does not form part of the decision. 

Introduction

[1]  At 7pm on 22 September 2011, a programme called LMFAO Video Hits was broadcast on C4. Part of this broadcast was the music video for LMFAO’s song “Shots”. LMFAO is understood to mean “Laughing My Fucking Arse Off”.

[2]  The video in its original form portrayed the musical band at a party where a large number of people were present and drinking alcohol. The essential messages conveyed were that parties of this kind and drinking large quantities of alcohol are very enjoyable, and that when women drink alcohol in these circumstances they become sexually promiscuous and available for sex. In the version of the video broadcast, the broadcaster made some effort to mute and disguise some of the more obviously offensive language.

[3]  Sue O’Neill made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the broadcast of the song at 7.15pm, including “a very thinly disguised ‘sucking cocks’ and the repeated ‘panties coming down’ and ‘serving shots’, with visuals equally as offensive”, breached standards relating to good taste and decency, discrimination and denigration, responsible programming, children’s interests, and liquor promotion. She considered that the person responsible for allowing the clip to go to air should resign.

[4]  The issue is whether the broadcast of the music video in this timeslot breached Standards 1 (good taste and decency), 7 (discrimination and denigration), 8 (responsible programming), 9 (children’s interests) and 11 (liquor) of the Free-to-Air Television Code of Broadcasting Practice.

Overview

[5]  We are familiar with the music video genre. We well understand that across the internet and through conventional broadcasting channels these are aimed at young viewers. We recognise that for many young people, music videos are a staple in their entertainment diet. Themes which encourage and glamorise sex and sensual behaviour are common and so are themes which encourage partying and alcohol consumption. The content of internet music videos is unregulated in New Zealand but the content of music videos which come through mainstream broadcasting is subject to the Broadcasting Act 1989 as are all other such broadcasts.

[6]  To young viewers, the distinction between what is seen on the internet and what is available on television broadcasting channels is probably not significant. Many viewers may think that something that is freely available on the internet and is commonly seen on the internet should be equally as available through the different medium of television broadcast. Moreover, the standards of the internet may be seen to become the standards of mainstream broadcasting and the influence of the internet may be seen to erode away the standards which the Broadcasting Act 1989 has required to be put in place.

[7]  We acknowledge that the presence of what is available on the internet will inevitably have some impact on what happens in the area of traditional broadcasting. We do not however accept that the absence of standards and controls in the internet sector means that there should be an abandonment of decent standards in the area of broadcasting in which this Authority works.

[8]  Put very broadly, and for reasons which we will express in more detail later, this broadcast went too far and became unacceptable. It is not acceptable at 7pm on a Thursday night for a broadcaster to be putting out the sorts of messages that this broadcast contained. Nor was it acceptable for thinly veiled and nevertheless discernible references to be made to “sucking cocks” and “panties coming down”. This broadcast was a glamorisation of drinking and partying and of alcohol-fuelled sexual behaviour. This broadcast sits very uncomfortably with society’s concerns that young people should not be encouraged to drink excessive amounts of alcohol, particularly spirits, and that young women should not be put in positions where their behaviour choices are modified by alcohol intoxication.

Bill of Rights

[9]  We acknowledge that the broadcaster has the right to freedom of expression under section 14 of the Bill of Rights Act 1990. We acknowledge the importance of section 14 and the values underlying the right to freedom of expression. Any restriction on the broadcaster’s right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990). Where the speech is particularly valuable, a correspondingly high level of protection will be afforded to those forms of expression.

[10]  On this occasion, as described in paragraph [2], the expression took the form of a music video for a song titled “Shots”, in which the group LMFAO called on “alcoholics” to come and party and get drunk. Excessive consumption of alcohol was promoted, and the song lyrics suggested that women would be more likely to engage in sexual activity when intoxicated. The broadcaster argued that this was obviously intended as an over-the-top parody which carried “sophisticated connotations” that only adults would understand. In our view, while the drinking theme may have been deliberately exaggerated, it was not necessarily an unrealistic depiction of drinking and partying, so the alleged “parody” would have been lost on many viewers, and particularly younger viewers who were more likely to take the video at face value.

[11]  In these circumstances, we consider that the music video – which was primarily for the purposes of entertainment and did not promote what would be considered to be positive values, or offer legitimate commentary – did not amount to high value speech deserving of a correspondingly high level of protection. We therefore consider that the threshold required to uphold the complaint, thereby restricting the broadcaster’s freedom of expression, is lower than the threshold necessary for restricting other more important forms of speech.

[12]  With this in mind, we now turn to consider the standards raised by the complainant.

[13]  Following from the views outlined in paragraphs [8] and [10], we believe that the standards relating to liquor promotion and children’s interests are the key standards in this case, with programme classification, good taste and decency, and discrimination and denigration being secondary. We have therefore focused our determination on Standards 11 and 9, and addressed the other standards peripherally.

[14]  We have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the song contain liquor promotion that was socially irresponsible?

[15]  There is a two-stage test involved in determining whether there has been a breach of Standard 11 (liquor). We must first decide whether the broadcast constituted “liquor promotion” and, if it did, we must then consider whether the liquor promotion was socially responsible. Looking at the first limb of the test, we note that Standard 11 defines “liquor promotion” as:

• promotion of a liquor product, brand or outlet (‘promotion’)
• liquor sponsorship of a programme (‘sponsorship’)
• advocacy of liquor consumption (‘advocacy’).

[16]  In our view, the song clearly advocated liquor consumption. The entire premise of the song was encouraging people to get drunk and drink excessive amounts of alcohol. While the broadcaster considered that this premise would not have been taken seriously or interpreted as a realistic depiction or encouragement to drink, we reiterate our view that C4’s younger viewers were likely to overlook this and interpret it literally. Accordingly, we are satisfied that the song amounted to liquor promotion in the form of “advocacy”.

[17]  In addition, part-way through the song, banners were displayed on-screen which contained liquor logos, and the artists referred to specific drinks and types of alcohol. The lyrics were as follows:

What you drinking on?

Jaeger bombs, lemon drops

Buttery nipples, Jello shots

Kamikaze, Three Wise Men

...Get me some gin.

[18]  In this respect, the song also amounted to liquor promotion in the form of the “promotion” of liquor products and brands. We note that a broadcast does not have to promote one liquor brand exclusively in order to fall within this definition.

[19]  Having found that the programme contained liquor promotion, we must now consider whether that promotion was socially responsible. Past decisions suggest that liquor promotion will be considered by the Authority to be socially irresponsible if:

• the broadcast portrays excessive liquor consumption as positive and desirable, and fails to acknowledge the negative effects of liquor consumption
• the broadcast involves excessive liquor consumption by young people.

[20]  In our view, the song clearly portrayed excessive alcohol consumption as positive and desirable. From the beginning to the end of the song, everyone in the video was drinking excessively, including copious numbers of shots, and having liquor poured straight down their throats, accompanied by lyrics such as “bottles up”, “cups in the air” and “let’s take shots”, all the while appearing to be having an extremely enjoyable time. While no one appeared to be very intoxicated, the video did not contain any acknowledgement of the negative effects of drinking the significant quantities of alcohol being encouraged. The song also suggested that drinking was mandatory, for example saying:

If you ain’t getting drunk get the [fuck] out the club

If you ain’t taking shots get the [fuck] out the club

If you ain’t come to party get the [fuck] out the club

Now where my alcoholics let me see your hands up

[21]  In addition, we agree with the complainant that the song suggested that it was beneficial to serve women shots so that they would get drunk and be more willing to engage in sexual activity. In particular, it contained the following lyrics:

The women come around every time I’m pouring shots

Their panties hit the ground every time I give them shots

[22]  The song also contained a lyric, “The ladies love us when we pour shots, they need an excuse to suck our cocks.” While “suck our cocks” was sufficiently muted, we note that this lyric was accompanied by footage of women standing in front of two of the male artists and descending from view in front of them.

[23]  Furthermore, in terms of the context in which the song was broadcast, we note that C4, which is predominantly a music channel, appeals to a younger audience including teenagers under the legal age for drinking, and that this video was broadcast at approximately 7.15pm, during children’s viewing times. As mentioned above, if any sophisticated “over-the-top” parody was intended by the artists, we consider that this would not have been grasped by viewers, and particularly younger viewers who were likely to be left only with the impression that drinking excessively was extremely desirable and pleasurable, compounded by the fact that LMFAO are likely to be popular with this age group. We are also acutely aware that binge drinking and New Zealand’s drinking culture are the cause of significant concern.

[24]  Taking all of these factors together – the advocacy of excessive liquor consumption, combined with the message that if you get women drunk they will be more willing to have sex, the time of broadcast, C4’s target audience, and the significant concern about young people’s drinking culture – we are satisfied that the liquor promotion dominating the music video was not socially responsible. The Authority has previously described the objective of Standard 11 as follows:

Standard 11 exists to ensure that when a broadcast contains liquor promotion, the promotion is socially responsible. Liquor promotion in a broadcast must not, among other things, appear in programmes specifically directed at children, advocate excessive liquor consumption or dominate a programme.

[25]  Given that the song, in our view, contained all of these elements, we have formed a clear view that on this occasion the broadcaster’s right to freedom of expression did not outweigh the potential harm caused by a broadcast of this nature during children’s viewing times.

Did the broadcaster adequately consider children’s interests?

[26]  Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm.

[27]  TVWorks argued that the song “did not play during children’s programming”. Given that the song was broadcast at 7.15pm, it clearly played during children’s viewing times before the Adults Only watershed at 8.30pm, and, as noted above, we consider that music videos do appeal to a younger audience, especially when they are songs by popular groups.

[28]  In our view, the objective of Standard 9 is to protect children from content which is unsuitable for them, or which might adversely affect them. In the Authority’s 2006 publication Freedoms and Fetters, it was observed that:

...children are worthy of special protection. Whether about radio or television, the BSA’s decisions emphasise its strong expectation that material likely to be heard or seen by children should recognise their innocence and vulnerability. The television classification and watershed systems underpin this special protection.

[29]  We agree with the sentiment expressed above, and are of the view that the objective which underpins the children’s interests standard is of high importance.

[30]  On this occasion, while the programme was rated PGR, we note that TVWorks has confirmed that no warning was broadcast at the beginning of LMFAO Video Hits. It also accepted that the content of the music video subject to complaint was “toward the limit of what is acceptable for a PGR programme”. In our view, the themes depicted in the song were clearly adult themes suited to a mature audience, and were not suitable for child viewers. The absence of a warning gave no opportunity to parents to exercise discretion with regard to their children’s viewing.

[31]  For these reasons, and given our findings under Standard 11, we are satisfied that the broadcaster did not adequately consider children’s interests, and that its right to freedom of expression did not outweigh the importance of protecting child viewers from this type of content.

Did the broadcast encourage the denigration of, or discrimination against, women as a section of the community?

[32]  Standard 7 protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community. Ms O’Neill argued that the inference in the song that you could “get [a woman] drunk and she will do anything” denigrated women.

[33]  The Authority has consistently defined “denigration” as blackening the reputation of a class of people (for example, Mental Health Commission and CanWest RadioWorks¹). It is also well-established that in light of the requirements of the Bill of Rights Act, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration in contravention of the standard (for example, McCartain and Angus and The Radio Network²).

[34]  While we agree that perhaps two lyrics in the song (one of which was censored) did infer that getting a woman drunk would make her more willing to engage in sexual activity, we consider that, in the context of a song which was predominantly about excessive alcohol consumption, these lyrics in themselves did not carry the level of invective necessary to blacken the reputation of women or encourage the denigration of women as a section of the community. While we have found that the broadcast of the song, including the references to women, was socially irresponsible and contrary to the objectives of the other standards, we find that the lyrics did not stray into the realm of hate speech or vitriol, or reach the high threshold necessary to uphold the complaint under Standard 7.

Did the song breach standards relating to good taste and decency and responsible programming?

[35]  In paragraph [13] above we expressed the view that standards relating to liquor and children’s interests were the most relevant in this instance. We consider that the complainant’s concerns under Standards 1 and 8 have been adequately and appropriately addressed under Standards 11 and 9. We therefore subsume our consideration of good taste and decency and responsible programming into our consideration of those standards.

Conclusion

[36]  As outlined in paragraphs [10] to [11] above, we do not consider that a music video advocating excessive drinking and partying could be categorised as high value speech which should be protected strenuously under section 14 of the Bill of Rights Act. We have found that the themes portrayed in the song had the potential to cause considerable harm, particularly, in our view, in relation to liquor promotion and children’s interests. We are satisfied that the importance of the objectives under Standards 11 and 9 outweighed the broadcaster’s right to freedom of expression on this occasion. We therefore find that upholding the complaint would promote the objectives of those standards, and would place a justifiable and proportionate limit on TVWorks’ right to freedom of expression.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of LMFAO’s song “Shots” during LMFAO Video Hits on C4 on 22 September 2011 breached Standards 11 and 9 of the Free-to-Air Television Code of Broadcasting Practice.

[37]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

[38]  Ms O’Neill submitted that a statement summarising the upheld aspects of the decision and containing a direction to the full decision on the Authority’s website should be broadcast on C4 and published in “all major daily newspapers”. She said she would defer to the expertise of the Authority regarding an award of costs to the Crown.

[39]  TVWorks said that the decision had drawn “a clear line in the sand” in relation to music videos with a drinking theme, and staff had been counselled to exercise greater caution in appraising them in future. The video had been reclassified Adults Only and therefore would not be screened in a PGR timeslot in future, it said. TVWorks considered that this action was sufficient and that therefore a broadcast statement was not warranted.

Authority’s Decision on Orders

[40]  The Authority’s decisions are, in general, designed to give clear guidance to broadcasters about how best to adhere to the principles outlined in the broadcasting standards. Here, TVWorks has taken our decision on board and acknowledged its mistake, and given us assurance that steps have been taken to ensure that the mistake will not be repeated (namely, reclassifying the music video which would restrict it to a later time of broadcast). Our decision will also clarify for other broadcasters our expectations in relation to music videos containing liquor, such as the one subject to complaint.

[41]  In these circumstances, we do not consider that any order or penalty is warranted on this occasion.

Signed for and on behalf of the Authority

Peter Radich
Chair
1 May 2012

Appendix

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

1                  Sue O’Neill’s formal complaint – 22 September 2011

2                 TVWorks’ response to the complaint – 26 September 2011

3                 Ms O’Neill’s referral to the Authority – 3 October 2011

4                 TVWorks’ response to the Authority – 4 November 2011

5                 Ms O’Neill’s final comment – 14 November 2011

6                 TVWorks’ response to Authority’s request for further information – 2 December 2011

7                 Ms O’Neill’s submissions on orders – 11 March 2012

8                 TVWorks’ submissions on orders – 23 March 2012

¹Decision No. 2006-030

²Decision No. 2002-152