BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Radio Tairua – prelude to a song by rap artist DMX titled Gotta Go (Skit ) broadcast at 3.45pm – appeared to involve a domestic dispute and contained extensive coarse language including the words “fuck” and “fucking” 13 times – allegedly in breach of good taste and decency standard

Findings
Standard 1 (good taste and decency) – excessive use of expletives at 3.45pm when children could be listening would have significantly departed from audience expectations – upheld

No Order

This headnote does not form part of the decision. 

Broadcast

[1]  A prelude to a song by rap artist DMX called Gotta Go (Skit) was broadcast on Radio Tairua 88.3FM at 3.45pm on Tuesday 5 July 2011. The skit was approximately 1 minute in length and appeared to involve a domestic dispute between a man and a woman. It contained extensive coarse language including the words “fuck” and “fucking” 13 times, “bitch”, “shit” and “ass”.

Complaint

[2]  Peter Stevenson made a formal complaint to Radio Tairua Ltd, the broadcaster, alleging that the skit breached Standard 1 (good taste and decency). He considered that the subject matter of the skit and the language used were unacceptable.

Standards

[3]  Mr Stevenson nominated Standard 1 of the Radio Code of Broadcasting Practice in his complaint, which provides:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Broadcaster’s Response to the Complainant

[4]  Radio Tairua apologised to the complainant for the fact that he found the skit offensive. It said that it was a prelude to a song by DMX and that it was not produced or recorded by the radio station. The volume of music in the station catalogue and the fact that the station was predominately “unmanned” meant that on occasion tracks aired which could be deemed to contain offensive material, it said. It noted that its playlist rotation rules meant that the skit was unlikely to play again automatically for “a period of up to 26 weeks or more”.

[5]  The broadcaster said that Radio Tairua was an alternative music station, and it did not consider that its target audience would have found the subject matter of the skit, or the language it contained, offensive. Accordingly, it declined to uphold the Standard 1 complaint.

Referral to the Authority

[6]  Dissatisfied with Radio Tairua’s response, Mr Stevenson referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[7]  The complainant maintained that the skit was offensive, not only to him but also to other listeners. With regard to the contention that the station was “unmanned”, he argued that this did not excuse the broadcaster from its responsibility for the quality of its programming. He considered that Radio Tairua was a “community” station, and argued that it was unacceptable for the skit to be broadcast again in the future.

[8]  Mr Stevenson maintained that the skit breached Standard 1.

Broadcaster’s Response to the Authority

[9]  Radio Tairua said that it was a community station which consisted of a dedicated team of volunteers. It provided the Authority with information to assist its understanding of the radio station and its programming format, including information from its website and its playlists for 19 and 21 July 2011.

[10]  The broadcaster said that it was “acutely aware” of the need to strike a balance between broadcasting material that appealed to its audience while ensuring that it complied with broadcasting standards. It contended that Radio Tairua was mindful of children and endeavoured to ensure that music played during their normally accepted listening times was appropriate. It stated, “Wherever necessary and whenever possible we provide warnings and/or apologies for content which may contain offensive material or which may not be suitable for children.”

[11]  Radio Tairua noted that rap was a “popular” genre with its listeners and that DMX was a “preferred artist”. It said that satire, comedy and skits from all genres were included in the station’s catalogue. The broadcaster noted that, in this instance, the track was selected and played as part of the “Auto DJ (autoplay)” function.

[12]  The broadcaster said that as a result of receiving its first complaint and working through the formal complaints process, it would take the opportunity to speak with its team of volunteer DJs to discuss the complaint, the process and the outcome.

[13]  Radio Tairua again apologised to the complainant that the content of the skit offended him. However, it maintained that Standard 1 had not been breached.

Authority’s Determination

[14]  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.

[15]  When we consider an alleged breach of Standard 1, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• the skit was broadcast at 3.45pm on a Tuesday during children’s normally accepted listening times
• the skit was not preceded by a warning
• it was broadcast as part of the radio station’s “autoplay” function
• the radio station’s target audience
• expectations of regular listeners.

[16]  We note that the audio subject to complaint contained excessive use of expletives, including derivatives of the word “fuck” 13 times, repetition of the word “bitch”, and the words “shit” and “ass”. The skit was broadcast at 3.45pm on a weekday, at a time when children were likely to be listening, for example, on their way home from school on the car radio. Broadcasters are required to be mindful of the effect any programme content may have on children during their normally accepted listening times.¹ While we acknowledge that the Radio Code does not divide the day into classified time-bands as occurs in the Free-to-Air Television Code, radio stations cannot exclude non-targeted listeners, especially at times when they can reasonably be expected to be listening.

[17]  Further, research conducted by the Authority indicates that 69 percent of people surveyed considered “fuck” fairly or totally unacceptable in the context of a song played on the radio, while the corresponding figure for the word “bitch” was 39 percent, and for the word “shit” 33 percent.²

[18]  In these circumstances we consider that the excessive use of coarse language in the skit would have been considered offensive by the majority of listeners when broadcast at 3.45pm when children would have been listening, and in this respect would have significantly departed from the established expectations of Radio Tairua’s target audience. Accordingly, in our view, the content was inconsistent with current norms of good taste and decency.

[19]  Having reached this conclusion, we must consider whether to uphold the complaints as a breach of Standard 1.

[20]  We acknowledge that upholding the Standard 1 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Turner and TVNZ,³ the Authority determined that upholding a complaint under Standard 1 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[21]  In our view, the primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it was broadcast. We consider that this objective is an important one. Sufficient care must be taken so that challenging material is played only in the appropriate context so that viewers or listeners are able to make informed choices about the kind of broadcast material they consume.

[22]  We have found above that broadcasting derivatives of the word “fuck” 13 times, as well as the words “bitch”, “shit” and “ass”, without any warning, on the radio at 3.45pm would be considered offensive, even by regular listeners. We consider that in this respect, listeners were denied the right to make informed choices about the kind of broadcast material they consumed. We therefore consider that upholding the complaint clearly promotes the objective of Standard 1 outlined above.

[23]  Further, while we accept that the skit was broadcast unintentionally as part of the radio station’s “autoplay” function, this does not make it any less offensive or unacceptable. It is the broadcaster’s responsibility, irrespective of the content’s source, to ensure that broadcast material complies with the Code. In this respect, we consider that upholding this complaint would not place a significant limit on Radio Tairua’s right to freedom of expression. We are not suggesting that the song should not have been broadcast; it would simply need to be broadcast with the expletives muted out, or at a later time when children were less likely to be listening.

[24]  Accordingly, we find that upholding the complaint places a justified and reasonable limit on Radio Tairua’s freedom of expression, and we therefore uphold the complaint that the broadcast breached Standard 1.

For the above reasons the Authority upholds the complaint that the broadcast by Radio Tairua Ltd of the prelude to a DMX song titled Gotta Go (Skit) on 5 July 2011 breached Standard 1 of the Radio Code of Broadcasting Practice.

[25]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. We have made it clear that the broadcast of the skit which contained extensive use of expletives was unacceptable. As the broadcast of the skit was unintentional and this was the first complaint to Radio Tairua, we consider that the publication of this decision is sufficient in all the circumstances.

[26]  We note that, in its decision, the broadcaster stated that, due to the radio station’s playlist rotation rules, the skit was unlikely to play again automatically for a period of “up to 26 weeks or more”.  We trust that the broadcaster will take steps to ensure that the skit is not re-broadcast unless it is edited appropriately.

Signed for and on behalf of the Authority

Peter Radich
Chair
13 September 2011

Appendix

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

1                  Peter Stevenson’s formal complaint – 7 July 2011

2                 Radio Tairua’s response to the complaint – 13 July 2011

3                 Mr Stevenson’s referral to the Authority – 21 July 2011

4                 Radio Tairua’s response to the Authority – 26 July 2011

¹See guideline 8a to Standard 8 (responsible programming) in the Radio Code

²What Not to Swear: The Acceptability of Words in Broadcasting (Broadcasting Standards Authority, 2010) at page 23

³Decision No. 2008-112