Schwabe and Radio New Zealand Ltd - 2002-091
- P Cartwright (Chair)
- J H McGregor
- R Bryant
- Paul Schwabe
BroadcasterRadio New Zealand Ltd
Country Life – National Radio – bugger – offensive language
s.4(1)(a) – decline to determine – complaint vexatious
s.16(2)(a) – costs to broadcaster of $150
This headnote does not form part of the decision.
 Country Life is a programme dealing with rural issues broadcast on National Radio. It is broadcast between 7.00–8.00pm on Friday evening and repeated at 7.00am on Saturday morning. The programme broadcast on Saturday morning 13 April 2002 included a segment about a group of 20 mentally-impaired people in a Trust who were working on a farm. One of the men when interviewed used the phrase “bugger-all”, and the interviewer repeated the term in his next question.
 Paul Schwabe complained to Radio New Zealand Ltd, the broadcaster, that the use of this word on National Radio was offensive.
 In response, RNZ said that the use of the word spontaneously by a man of some disability did not breach the standards.
 Dissatisfied with RNZ’s response, Mr Schwabe referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to determine the complaint on the basis that it is trivial and vexatious. It orders the complainant to pay costs to the broadcaster in the sum of $150.00
 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.
 Country Life is a programme dealing with rural issues broadcast on National Radio. It is broadcast between 7.00–8.00pm on Friday evenings and repeated at 7.00am on Saturday mornings. The programme broadcast on Saturday morning 13 April 2002 included a segment about a group of 20 mentally-impaired people in a Trust who were working on a farm. One of the men when interviewed used the phrase “bugger-all” and the interviewer repeated the term in his next question.
 Paul Schwabe complained to Radio New Zealand Ltd, the broadcaster, that the use of this word on National Radio was offensive. Mr Schwabe considered that the “early morning programmes” on National Radio should be “absolutely ideal entertainment” for children.
 RNZ assessed the complaint under the standard nominated by Mr Schwabe. Section 4(1)(a) of the Broadcasting Act 1989 requires broadcasters to maintain standards consistent with:
a) The observance of good taste and decency.
The Broadcaster’s Response to the Complainant
 RNZ explained that the word was used by a person when describing his activity as a member of a Trust of 20 mentally-impaired men working on farms. It wrote:
The words broadcast were clearly those of a man of some disability and recorded his genuine and spontaneous expression. In these circumstances there was no breach of the broadcasting standards and your complaint was not upheld.
The Referral to the Broadcasting Standards Authority
 When he referred the complaint to the Authority, Mr Schwabe rejected RNZ’s explanation that indecent language was acceptable if it was used by a person with a disability. The interviewer, he pointed out, had also used the term.
 Mr Schwabe noted that he was not complaining about recording the use of the word, but its broadcast.
The Broadcaster’s Response to the Authority
 RNZ had nothing to add to the complaint, explaining that it considered that Mr Schwabe’s persistence was “trivial and vexatious”.
The Complainant’s Final Comment
 In his final comment, Mr Schwabe contended that the “inclusion of indecent language” in early morning broadcasts “should never be considered trivial”.
The Authority’s Determination
 In the past two years, Paul Schwabe has made nine complaints to the Authority in which he has expressed his concern about the broadcast of the word “bugger” and its associated phrases. He has complained about its use on TVNZ, on One News and Holmes, and in documentaries and during items broadcast on National Radio.
 Mr Schwabe considers the word highly offensive given that “anal intercourse” is one of the dictionary definitions of “buggery”. He considers the use of “bugger” to be nearly of equivalent offensiveness as the use of the word “fuck”.
 In its several decisions, the Authority has reiterated to Mr Schwabe that the broadcast of the word “bugger” and associated phrases in the items complained about has been as a relatively mild exclamation of annoyance. The Authority has also referred to its research on community attitudes to language in the broadcasting context (Monitoring Community Attitudes in Changing Mediascapes, 2000). That research records the results of a national survey which showed that almost three quarters of those interviewed considered the word “bugger” during a broadcast as acceptable. On the basis that the clear majority of the community is not offended by the use of the word “bugger” when its use in the broadcasts complained about has been neither gratuitous nor designed to offend, the Authority has not upheld Mr Schwabe’s complaints.
 In a recent decision dealing with a complaint from Mr Schwabe about the use of the word “bugger”, the Authority wrote (Decision No: 2002-013, dated 21 February 2002)
There are two aspects to Mr Schwabe’s complaint that the closing segment of Assignment broadcast on TV One on 18 October 2001 breached the requirement that broadcasters maintain standards consistent with good taste and decency.
The first aspect of the complaint concerns a railway supporter’s use of the word “bugger”. In Decision No: 2001-219, in relation to another complaint from Mr Schwabe about the use of the word “bugger”, the Authority made the following observation:
The Authority notes that since January 2000 it has received seven complaints about the use of the word “bugger” in various television and radio broadcasts. All but one of these complaints have been referred by Mr Schwabe. None of the complaints have been upheld as breaches of broadcasting standards. In Decision No: 2000-166 the Authority reminded Mr Schwabe of its power under s.16 of the Broadcasting Act 1989 to impose costs on him if it considered a complaint to be frivolous, vexatious or one which ought not to have been made. The warning was made in light of the Authority's research findings and its precedent decisions on the use of the word “bugger”. The Authority will use this power should Mr Schwabe continue to complain about the word being used in similar circumstances.
The Authority considers the broadcast of the word “bugger” which is the subject of the present complaint occurred in similar circumstances to Mr Schwabe’s previous complaints which have not been upheld. It considers the railway supporter used the word in its colloquial sense, and he was not referring to anal intercourse or bestiality. In context, the Authority does not find the “bugger” aspect of the broadcast to breach good taste and decency.
The Authority notes, however, that Decision No: 2001-219 was released to the parties on 17 December 2001. Mr Schwabe’s referred his present complaint to the Authority on 1 December 2001. Therefore, as Mr Schwabe had not then been notified of the Authority’s intention to impose costs against him if he complained about the word “bugger” being used in similar circumstances, on this occasion it will not use its power to impose costs.”
 Mr Schwabe was sent Decision No: 2002-013 on 21 February this year. On 4 May, he lodged the present complaint. There is nothing in the use of the phrase “bugger-all” on Country Life which can be regarded as referring to anal intercourse or bestiality. It was used colloquially as a relatively mild expression of emphasis. This complaint, in the Authority’s opinion, should never have been made.
 Section 11(a) of the Broadcasting Act 1989 allows the Authority to decline to determine a complaint which it considers frivolous, vexatious, or trivial. In view of the Authority’s past approach to the complaints from Mr Schwabe about the use of the word “bugger”, and its clear indication of its likely action should it consider a further complaint again not to raise a substantial issue of broadcasting standards, the Authority does not hesitate in concluding that this complaint is vexatious and falls within the confines of s.11(a).
For the above reasons, the Authority declines to determine the complaint under s.11(a) of the Broadcasting Act 1989 on the basis that it is vexatious and trivial.
 Under s.16(2) of the Broadcasting Act 1989, an order of costs against a complainant may be made when a complaint is found to be frivolous or vexatious or is one that should not have been made.
 The current complaint complies with that finding and, in view of its earlier warnings, the Authority makes the following order:
Pursuant to s.16(2)(a) of the Broadcasting Act 1989, the Authority orders Mr Paul Schwabe of Auckland pay costs to Radio New Zealand Ltd in the sum of $150.00.
The order shall be enforceable in the Waitakere District Court.
Signed for and on behalf of the Authority
25 July 2002
The following correspondence was received and considered by the Authority when it determined this complaint:
- Paul Schwabe’s Formal Complaint to Radio New Zealand Ltd – 4 May 2002
- RNZ’s Response to the Final Complaint – 8 May 2002
- Mr Schwabe’s Referral to the Broadcasting Standards Authority – 12 May 2002
- RNZ’s Response to the Authority – 17 May 2002
- Mr Schwabe’s Final Comment – 29 May 2002