BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Solid Gold FM – comment by radio announcer that Ellen DeGeneres had been chosen as new American Idol judge making her “the second most powerful lesbian on the planet – the first of course being Chris Carter” – allegedly in breach of good taste and decency, accuracy, fairness and discrimination and denigration

Findings
Standard 7 (discrimination and denigration) – comment was clearly intended to be a joke – did not encourage discrimination against or denigration of a section of the community – not upheld

Standard 1 (good taste and decency) – broadcast did not contain any material or language that strayed beyond the bounds of good taste and decency – not upheld

Standard 5 (accuracy) – comment was a joke and would not have been interpreted as a statement of fact – standard not applicable – not upheld

Standard 6 (fairness) – comment was a joke – not unfair to Chris Carter – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  At approximately 8.55am on Saturday 12 September 2009, a radio announcer on Solid Gold FM commented:

I mentioned before Ellen DeGeneres replacing Paula Abdul as the new judge on American Idol, and as I said before that now makes her the second most powerful lesbian on the planet – the first of course being Chris Carter.

Complaint

[2]   Patty Towl made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the announcer’s comment breached standards relating to good taste and decency, accuracy, fairness and discrimination and denigration.

[3]   The complainant interpreted the comment as relating to the Hon Chris Carter MP, and argued that the reference ridiculed Mr Carter’s sexual orientation. She said the joke was discriminatory and in bad taste, and had not added to the context or purpose of the programme. Further, the complainant considered that the comment was inaccurate because “Chris Carter cannot be lesbian by definition”, and that it was “not a fair or balanced reference to him as a person” in breach of Standard 6.

Standards

[4]   The complainant nominated Standards 1, 5, 6 and 7 of the Radio Code of Broadcasting Practice. They provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage 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.

Broadcaster's Response to the Complainant

[5]   RadioWorks considered that the comment was clearly intended as a joke, and therefore the accuracy standard did not apply. It maintained that to breach Standard 7, the comment would have to be “strong speech encouraging hatred or vilifying homosexuals”.

[6]   RadioWorks declined to uphold the complaint.

Referral to the Authority

[7]   Dissatisfied with RadioWorks’ response, Ms Towl referred the complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She considered that RadioWorks’ argument implied that any derogatory comment could be made about homosexuals provided it was intended as a joke, and therefore also about any other section of the community. She noted that she and many others did not find the comment funny.

[8]   Further, Ms Towl considered that comments like that made on air “legitimise the insidious exclusion of certain groups of people”. She maintained the comment “put down” a section of the community. She said, “I feel gays and lesbians find it hard enough to be defined in positive terms without off-hand put-downs on radio,” and considered that Chris Carter would not have put himself forward to have “jokes” made about his sexual orientation.

Authority's Determination

[9]   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 (discrimination and denigration)

[10]   Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community. The term "denigration" has consistently been defined by the Authority as blackening the reputation of a class of people (see 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 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration in contravention of the standard (see for example McCartain and Angus and The Radio Network²).

[11]   On this occasion, the Authority considers that the comment complained about was clearly intended as a joke about one individual. While it may not have appealed to all listeners, it did not contain the level of invective necessary to cross the threshold for encouraging denigration of homosexuals as a section of the community. The Authority therefore declines to uphold the Standard 7 complaint.

Standard 6 (fairness)

[12]   Standard 6 requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme. The complainant argued that the comment by the radio announcer was unfair to Chris Carter.

[13]   One of the purposes of the fairness standard is to protect individuals from broadcasts which provide an unfairly negative representation of their character or conduct. In the Authority’s view, although clearly intended to mock Mr Carter, the comment complained about was a reference to a public figure and was clearly intended to be a joke. It considers that the comment could not reasonably be interpreted as harming Mr Carter’s reputation or dignity. Accordingly, the Authority concludes that Mr Carter was not treated unfairly by the broadcaster and it declines to uphold the Standard 6 complaint.

Standard 1 (good taste and decency)

[14]   The Authority has previously stated that Standard 1 is intended primarily to address sexual material, nudity, bad language and violence in broadcasts (see Lewes and TVNZ³). As the broadcast complained about did not contain any such content – or any other content which could be said to threaten standards of good taste and decency – the Authority finds that Standard 1 has no application. It declines to uphold the good taste and decency complaint.

Standard 5 (accuracy)

[15]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead.

[16]   The Authority considers that listeners would not have interpreted the comment as a statement of fact, but as an attempt at humour. In these circumstances, the accuracy standard does not apply and the Authority declines to uphold the Standard 5 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 December 2009

Appendix

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

1.          Patty Towl’s formal complaint – 19 October 2009
2.         RadioWorks’ response to the complaint – 21 October 2009
3.         Ms Towl’s referral to the Authority – 23 October 2009
4.         RadioWorks’ response to the Authority – 10 November 2009

¹Decision No. 2006-030

²Decision No. 2002-152

³Decision No. 2008-085