BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Rock Morning Rumble included a stunt featuring the Prime Minister, in which he was invited to enter a cage installed in the studio and ‘pick up the soap’. Upon the Prime Minister doing so, the host quoted a recognised rape scene from the film Deliverance, saying, ‘You’ve got a pretty little mouth Prime Minister’. The Authority upheld a complaint that the stunt amounted to a deliberate reference to prison rape that had the effect of trivialising sexual violence and specifically prison rape. While the segment was allegedly intended to be humorous, which is an important aspect of the exercise of free speech, the stunt overstepped the boundaries of legitimate humour and was offensive. The Authority found that listeners and members of the public would likely have found the segment offensive and unacceptable, and that involving the Prime Minister had the potential to attract a wider audience. For the same reasons the Authority found the segment was not socially responsible. The Authority did not, however, uphold the complaint under the law and order standard.

Upheld: Good Taste and Decency, Responsible Programming

Not Upheld: Law and Order

Orders: Section 13(1)(a) broadcast statement; section 16(4) costs to the Crown $1,000

Introduction

[1] The Rock Morning Rumble featured a stunt involving the Prime Minister, who was a studio guest. The Prime Minister was invited to enter a cage installed in the studio and upon doing so, the host asked him to ‘please pick up the soap’. The Prime Minister did so andthe host then twice quoted a line from a recognised rape scene in the film Deliverance, saying, ‘You’ve got a pretty little mouth, Prime Minister’.

[2] Caitlin Weich complained that the request to ‘pick up the soap’ was a ‘planned and deliberate’ reference to prison rape which normalised sexual violence, silenced survivors and trivialised the effects of sexual violence.

[3] The issue is whether the broadcast breached the good taste and decency, responsible programming and law and order standards as set out in the Radio Code of Broadcasting Practice.¹ In her original complaint Ms Weich also nominated the children’s interests standard, which does not form part of the Radio Code, but is nevertheless covered by the responsible programming standard.

[4] The item was broadcast on The Rock FM at 7.30am on 16 December 2015. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast threaten current norms of good taste and decency?

[5] The good taste and decency standard (Standard 1) is usually concerned with broadcasts containing sexual material, nudity, coarse language or violence.² The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.³

[6] In the broadcast, the Prime Minister was invited to enter a cage which had been installed in the studio and contained one of the hosts. The Prime Minister initially appeared reluctant to enter the cage, responding, ‘Not a chance’ and ‘Do I have to?’ He eventually agreed to ‘jump in the cage... real quick’, at which point the following exchange took place:

Host 1: [inside cage] Alright John, while you’re here, I have one thing to ask of you. Whilst you’re here, show us a bit of support for the low, impoverished people of this fine country, and please pick up this soap.

Host 2: [laughter] He’s picked it up!

Host 1: You’ve got a pretty little mouth...

Mr Key: [referring to the soap] What’s awful about this is a) it smells real bad and b) it’s wet and greasy and I don’t know where it’s been. By the look of it, it could’ve been anywhere.

[7] The host again commented, ‘You’ve got a pretty little mouth Prime Minister’.

[8] The segment concluded with the other hosts saying, ‘This is so bizarre, John Key is in the cage with [host]’ and ‘security are looking at us very aggressively...’ The hosts then said goodbye to the Prime Minister and he left the studio.

[9] Ms Weich considered the ‘pick up the soap’ comment, followed by a quote from a recognised rape scene in the film Deliverance, was a planned and deliberate reference to prison rape which she found ‘degrading and disgusting’. She argued the reference normalised sexual violence, silenced survivors, trivialised the effects of sexual violence and perpetuated the idea that rape is normal. She also argued the broadcast implied that people who are incarcerated are no longer deserving of basic human rights, which was not in good taste.

[10] MediaWorks said that it regretted Ms Weich found the material offensive and understood her concerns as they related to rape and sexual violence. However, it argued that the segment was intended to be humorous and it did not trivialise or normalise sexual violence. MediaWorks noted that comic material will often refer to challenging or unpleasant concepts, but considered that ‘drawing humour from unsavoury ideas is not the same as trivialising or condoning them’. It said that there were no direct or explicit references to sexual violence but rather ‘euphemisms reliant on well-worn clichés that required a certain level of maturity among listeners to be understood’. MediaWorks considered the true comedy of the piece came from the bizarre nature of the cage scenario and the Prime Minister’s participation in the announcer’s stunt. It concluded that the material in question did not fall outside what regular listeners of both the station and the programme would expect, and that sufficient care was taken to ensure the content was acceptable in context.

[11] We have carefully considered the content of the segment having regard to its context, and on balance, we have reached the view that it strayed beyond currently accepted norms of good taste and decency into something that was inappropriate and in poor taste, and would have offended many people.

[12] This was not an off-the-cuff or fleeting joke made on the spur of the moment. Rather, the gathering and use of props such as soap, as well as quoting from the film Deliverance, in our view clearly required some forethought. While not all listeners may have interpreted the segment in the same way, we think the combination of the cage set-up, the male-to-male interaction inside the cage, the soap reference and the quote from a known rape scene in the film Deliverance did amount to a reference to prison rape.

[13] We also agree with the complainant that the overall tenor of the piece, including the surrounding laughter and commentary, made light of the issue. We note that White Ribbon New Zealand issued a statement following the broadcast saying that ‘It was an awful exercise in bad taste and helped to perpetuate violence by normalising and trivialising it.’⁴

[14] We recognise that audience expectations and a station’s target audience are relevant factors in determining whether standards of good taste and decency have been breached. The Rock is known for its often controversial or challenging content. Nevertheless, we think that even some regular listeners of The Rock would have felt the notion of trivialising sexual violence went a step too far, notwithstanding that it is a radio station known for pushing the boundaries.

[15] The involvement of the Prime Minister is not the determinative factor in our findings. We would have found the item equally offensive had the stunt involved another individual. Having said that, we consider that involving the Prime Minister in such a stunt was an aggravating factor, in the sense that it had the potential effect of attracting a wider audience than the programme’s usual target audience. People switching from station to station at 7.30am may have been encouraged to stay tuned by the unusual scenario that was playing out. The wide internet coverage that followed also illustrates this.⁵

[16] Having found that the segment was offensive, we have considered whether it would be reasonable and justified to limit the right to freedom of expression – both of the broadcaster to air the segment, and of the audience to receive it – by upholding this part of the complaint.

[17] Humour is a legitimate and valued aspect of the exercise of freedom of expression, and can be used to address challenging subject matter in powerful and useful ways. We recognise that The Rock and The Rock Morning Rumble are known for their particularly irreverent and ‘politically incorrect’ brand of humour, and that the segment in question was apparently intended to be humorous.

[18] However, this broadcast crossed the line from legitimate humour into a radio stunt which trivialised the issue of sexual violence by depicting a prison rape scene, for the purposes of entertainment. Sexual violence is a serious issue which affects some of the most vulnerable people in society, including those who are incarcerated. The host’s reference to the ‘low, impoverished people of this fine country’ further contributed to the derogatory and dismissive tone of the broadcast. The effect of the stunt, especially given the studio laughter that followed, was to make light of the prison context and prison rape in a way that minimised and belittled this issue. The stunt could not reasonably be said to have drawn attention to prison rape in a way that was valuable or appropriate, or in the public interest.

[19] Accordingly, we find that upholding this part of the complaint would be a justified and reasonable limit on the right to freedom of expression, and we uphold the complaint under Standard 1.

Did the broadcast breach the responsible programming standard?

[20] The responsible programming standard (Standard 8) requires broadcasters to ensure that programme content is socially responsible.

[21] Ms Weich said that the segment contained no warning of its explicit content, and noted the topic of rape can be deeply disturbing to some listeners (especially those who are victims of sexual abuse). She considered that it was irresponsible to allow the topic of rape to be joked about. Ms Weich further argued that the programme was broadcast at a time in the morning during school holidays when it could reasonably be expected that young people were listening to the radio.

[22] MediaWorks argued that The Rock targets adult listeners and as such, the broadcast was unlikely to have had a significant child audience. It noted that while some children may have already finished school for the year, the broadcast did not actually occur during the school holidays proper. MediaWorks considered the material in question was unlikely to be understood by children and therefore would not have disturbed or alarmed any child listeners.

[23] Although the broadcast occurred at 7.30am during children’s normally accepted listening times, children are not the target audience of The Rock Morning Rumble or The Rock FM, and notwithstanding our findings under Standard 1 (see [14] above), we do not consider that this segment would have especially attracted child listeners. For any children who did happen to be listening to the broadcast, we think it unlikely they would have understood the reference to prison rape, which required a certain level of maturity and life experience.

[24] However, leaving aside the issue of child listeners, for the reasons outlined in relation to good taste and decency, we have reached the view that overall the content of this broadcast was not socially responsible. We agree with the complainant that making light of sexual violence was inconsistent with the objectives of this standard. The content of the broadcast in this respect was likely to cause distress to some people. The absence of a warning was not determinative in our view, as we think the essence of the broadcast would have remained offensive, particularly given, as we have said, this stunt was likely to generate much broader reception than just those people who were listening at the time of the broadcast.

[25] For these reasons we also uphold the complaint under Standard 8.

Did the broadcast encourage viewers to break the law, or otherwise promote, condone or glamorise criminal activity?

[26] The intent behind the law and order standard (Standard 2) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.⁷

[27] Ms Weich argued that ‘rape is illegal and telling John Key to pick up the soap is referring to an action which in the context of the quote resulted in rape’.

[28] MediaWorks considered the broadcast did not contain any material which encouraged listeners to break the law or glamorised crime, therefore this standard was not breached.

[29] We do not consider the stunt amounted to active promotion of rape. The comments were made in the context of a radio stunt, and although we have found this to be in poor taste and not socially responsible, listeners would not have interpreted the hosts as encouraging rape.

[30] Accordingly we do not find a breach of the law and order standard.

Conclusion

[31] We are conscious of the need for this Authority to reflect properly held community values and to allow broadcasters to accommodate a range of acceptable community values. We must not be too quick to interfere with the right to freedom of expression. We acknowledge that, in certain circumstances, ‘blokey’ humour is an accepted part of New Zealand culture, and those who enjoy such humour are entitled to be provided with it. However, taking all of the relevant factors into account it is our firm view that this broadcast went too far. It was staged, it was deliberate and the substance behind the banter was seriously offensive in our view. It showed poor judgement in many respects.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks Radio Ltd of The Rock Morning Rumble on 16 December 2015 breached Standard 1 and Standard 8 of the Radio Code of Broadcasting Practice.

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

Submissions on the provisional decision and orders

[33] MediaWorks submitted that previous BSA decisions had held that a breach of the good taste and decency standard ‘requires widespread undue offence or distress among the regular audience’ of a broadcast. It did not feel that widespread offence had been demonstrated in this case.

[34] In terms of orders, MediaWorks submitted that in light of its in-depth consideration of the decision, as well as the considerable media coverage the broadcast received and the public interest in the issues raised, publication of the decision was sufficient to remedy the breach and orders were not warranted.

[35] We did not receive any submissions from the complainant.

Authority’s response to submissions and decision on orders

[36] We first respond to the broadcaster’s assertion that widespread offence is required to breach Standard 1. This is not correct. The wording of Standard 1 states simply that broadcasters should observe standards of good taste and decency; widespread offence is not required in order to find a breach of the standard.

[37] We have had regard to the broadcaster’s submissions on orders. For the reasons outlined in our decision, we consider the broadcast fell below the standards required of a broadcaster. Accordingly, we think it is appropriate that the broadcaster publicly acknowledges the breach to its audience by way of a broadcast statement. The statement should reflect that The Rock Morning Rumble segment was found by this Authority to have breached the good taste and decency and responsible programming standards, and include a comprehensive summary of the upheld aspects of the decision. Our standard practice is for the wording of the statement to be drafted by the broadcaster and approved by the Authority.

[38] We also consider this case warrants an order of costs to the Crown. Taking into account the finding that the broadcast breached two standards, the nature of the breach, and the Authority’s previous awards, we think an order of costs to the Crown in the amount of $1,000 is appropriate.

Orders

1. Pursuant to section 13(1)(a) of the Act, the Authority orders MediaWorks Radio Ltd to broadcast a statement. The statement shall:

•  be broadcast within one month of the date of this decision
•  be broadcast during The Rock Morning Rumble
•  be broadcast at a time and date to be approved by the Authority
•  contain a comprehensive summary of the upheld aspects of the Authority’s decision.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to section 16(4) of the Act, the Authority orders MediaWorks Radio Ltd to pay to the Crown costs in the amount of $1,000 within one month of the date of the decision.

The order for costs will be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich

Chair

22 August 2016

Appendix

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

1      Caitlin Weich’s formal complaint – 16 December 2016

2      MediaWorks’ response to the complaint – 2 March 2016

3      Ms Weich’s referral to the Authority – 31 March 2016

4      MediaWorks’ response to the Authority – 28 April 2016

5      MediaWorks’ submissions on provisional decision and orders – 22 July 2016

¹ This complaint was determined under the previous Radio Code, which applied up until 31 March 2016. The new Broadcasting Standards in New Zealand Codebook took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/overview

² Turner and Television New Zealand Ltd, Decision No. 2008-112

³ Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006)

⁴ ‘Prime Minister John Key to keep White Ribbon after rape joke’, stuff.co.nz: http://www.stuff.co.nz/national/politics/75247759/prime-minister-john-key-to-keep-white-ribbon-after-rape-joke

⁵ For example: ‘John Key’s “Prison rape” stunt goes international’, Radio New Zealand: http://www.radionz.co.nz/news/political/292496/'prison-rape'-stunt-goes-international; ‘New Zealand Prime Minister John Key criticised for ‘rape joke’ stunt’, The Guardian: https://www.theguardian.com/world/2015/dec/17/new-zealand-prime-minister-john-key-criticised-for-joke; ‘New Zealand Prime Minister John Key slammed after taking part in 'prison rape joke' stunt on live radio using a bar of soap’, The Daily Mail: http://www.dailymail.co.uk/news/article-3364952/You-sure-got-pretty-little-mouth-New-Zealand-prime-minister-John-Key-slammed-taking-prison-rape-joke-stunt.html

⁶ See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082

⁷ Hunt and Māori Television, Decision No. 2009-010