Robb and The Radio Network Ltd - 2002-184
- P Cartwright (Chair)
- J H McGregor
- R Bryant
- David Robb
BroadcasterThe Radio Network Ltd # 2
Newstalk ZB – discussion regarding "National Penis Day" – included reference to penis on Michaelangelo’s David – breach of good taste and decency
Principle 1 – contextual matters – no uphold
This headnote does not form part of the decision.
 On Newstalk ZB an interview with the Executive Director of the New Zealand AIDS Foundation regarding "National Penis Day" was broadcast on 2 September 2002 at 5.34pm. The discussion concerned the Foundation not being able to publicise the day by putting up billboards featuring penises.
 David Robb complained to The Radio Network Ltd (TRN), the broadcaster, that the item was offensive and the material inappropriate, particularly for child listeners.
 In response, TRN maintained that the comments in context did not breach current norms of good taste and decency. It declined to uphold the complaint.
 Dissatisfied with TRN’s decision, Mr Robb referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons given below, the Authority declines to uphold the complaint.
 The members of the Authority have listened to a tape of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 On Newstalk ZB an interview regarding "National Penis Day" was broadcast on 2 September 2002 at 5.34pm. The host, Larry Williams, interviewed the Executive Director of the New Zealand AIDS Foundation, Kevin Hague, about the Foundation not being able to put up billboards featuring penises in order to publicise the day.
 David Robb complained to TRN that the item was offensive and inappropriate, he wrote:
Larry Williams’ "what a whopper that was" comment about the statue of King David’s penis in Florence was uncalled for, and in bad taste (as was the entire segment). This kind of material does not comply with good taste and decency – at any time of day (and certainly not at a time when children may be listening). Talking about "wind-up" toy penises is not acceptable.
 TRN assessed the complaint under Principle 1 of the Radio Code of Broadcasting Practice. It 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.
The Broadcaster’s Response to the Complainant
 TRN declined to uphold the complaint. It stated that the item was targeted to an adult audience, and in context did not breach current norms of good taste and decency. It wrote:
This was a legitimate topic for discussion and featured widely in all media. The interview proceeded in good taste and was followed by a throwaway comment by Larry Williams referring back to David’s penis in Florence – "what a whopper that was". This, legitimately tied back to the discussion drawing a conclusion that if art of that nature can be seen by millions why not a billboard with the "real thing".
The Referral to the Broadcasting Standards Authority
 Dissatisfied with the broadcaster’s response, Mr Robb described the item as "distasteful and offensive". He expressed his concern for other listeners, particularly children who may have heard the item, given the time of broadcast.
The Authority’s Determination
 When it determines a complaint that a broadcast contravenes Principle 1 of the Radio Code, the Authority is required to determine whether the material complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the principle. Accordingly, the Authority has considered the context in which the material complained about was broadcast.
 The Authority considers that the relevant contextual matters on this occasion include the nature of the item, the time of broadcast (at 5.34pm), the target adult audience, and the station on which it was broadcast (Newstalk ZB). The Authority notes that while it is conceivable that children would be listening, it considers it is unlikely that 5.34pm on Newstalk ZB is a prime listening station for young people.
 On the basis that the item was predominantly a serious discussion which referred to penises in the context of the difficulties about publicising a men’s health awareness campaign, the Authority considers that the host’s comment: "what a whopper that was", was a throwaway line which did not breach current norms of good taste and decency. Having considered the contextual matters referred to above, the Authority concludes that the item did not contravene Principle 1.
 The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the reasons given above, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
21 November 2002
The following correspondence was received and considered by the Authority when it determined this complaint:
- David Robb’s Complaint to The Radio Network Ltd – 5 September 2002
- TRN’s Response to the Formal Complaint – 10 September 2002
- Mr Robb’s Referral to the Broadcasting Standards Authority – 12 September 2002
- TRN’s Response to the Authority – 19 September 2002
- Mr Robb’s Final Comment – 26 September 2002