BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Channel Z – competition about method of waking up another person – broadcast of male competitor who apparently woke female flatmate with her vibrator – serious criminal offence – offensive behaviour

Findings
Principle 1 – offensive behaviour described – telephone call recorded – tape reviewed and approved for broadcast – serious error of judgment – uphold

Order
Broadcast of approved statement
Costs of $2,000 to Crown

This headnote does not form part of the decision.

Summary

[1] Novel ways of waking a person up were the subject of a competition run on Channel Z. At about 7.30am on 14 December 2001, Channel Z broadcast a tape of a male competitor waking up a female flatmate in her bedroom by using her vibrator. The broadcast included her invective directed at the competitor when she awoke. The announcers advised that the woman, after the event, had given her approval for the broadcast of the tape of the recording of the episode.

[2] Chris Williams complained to Channel Z, a division of CanWest Radio NZ Ltd, the broadcaster, that the item should not have been played. The complainant said that the tape depicted a serious criminal offence which was trivialised by treating it as a joke.

[3] In response, Channel Z said it was a niche radio station but acknowledged that the broadcast of the item was questionable. However, it added, the broadcast was not meant to trivialise a serious offence, and the announcers were strongly opposed to violence of any sort. It apologised to the complainant but declined to uphold the complaint.

[4] Dissatisfied with Channel Z’s decision, Chris Williams referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint, and orders the broadcast of an approved statement and the payment of costs to the Crown of $2,000.

Decision

[5] The members of the Authority have listened to a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Complaint

[6] A competition run by Channel Z involved the broadcast of unusual ways of waking people up. The broadcast at about 7.30am on 14 December 2001 involved a male competitor going into the room of a female flatmate, taking her vibrator and apparently inserting it into her.

[7] The broadcast included the flatmate’s invective and abuse at the competitor as she awoke.

[8] Before the broadcast, the announcers warned listeners of the sexual references in the item, explained that the item had been taped earlier in the morning, and that the female flatmate had subsequently given her approval to its broadcast.

The Complaint

[9] Chris Williams complained to Channel Z that, despite the flatmate’s post-event approval, the item should not have been played. The action, the complainant wrote, involved serious criminal behaviour which was trivialised by treating it as a joke.

The Standard

[10] Neither the complainant nor the broadcaster specified a standard against which the complaint had been assessed. On this occasion, the Authority considers Principle 1 and guideline 1a, and Principle 7 and guideline 7b are apposite. They read:

Principle 1

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.

Guideline

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.

Principle 7

In programmes and their presentation, broadcasters are required to be socially responsible.

Guideline

7b  Broadcasters shall be mindful of the effect any programme may have on children during their normally accepted listening times.

The Broadcaster’s Response to the Complainant

[11] Channel Z described itself as "a niche radio station" and the listeners were "used to extremes within their entertainment options".

[12] Nevertheless, Channel Z added, the item complained about was "admittedly testing boundaries of extreme entertainment", and had only been broadcast after the female flatmate had given her consent to the broadcast of the tape.

[13] Channel Z advised that the announcers and its programme director had discussed the broadcast before the receipt of the complaint and concluded that, with hindsight, the broadcast was questionable.

[14] Apologising to the complainant, Channel Z recorded that both announcers were opposed to violence, especially sexual violence against women, and regretted that the item could be seen as trivialising a criminal act. The broadcaster advised that it was most unlikely a similar item would again be broadcast.

[15] The letter from the broadcaster was accompanied by a letter to the complainant signed by each of the announcers who apologised and said that their intention was only to entertain, not to treat a sexual assault as a joke. They also stated that they believed the call was a "set up", and they were in no doubt that no sexual assault had in fact taken place.

The Complainant’s Referral to the Authority

[16] The complainant focused on the announcers’ reference to the questionable authenticity of the action when the complaint was referred to the Authority.

[17] It was irrelevant, the complainant wrote, whether the act actually occurred as the concept of the action in itself demonstrated "contempt towards women in general". The complainant considered that an on air acknowledgment was appropriate.

The Broadcaster’s Response to the Authority

[18] In its response, Channel Z reiterated the points made in its letter to the complainant. It noted that had listeners found the item offensive, there would have been a number of calls. However, that had not occurred.

[19] By way of summary, it concluded:

Channel Z occasionally broadcasts items that are of a controversial nature, and this occurs almost by definition of the Channel Z format, where listeners expect to be challenged, made to think and made to react. Channel Z is an ‘in your face’ format. I think the Aiwa item that Mr Williams refers to was certainly controversial and challenging, but the consent from the female involved in the piece gave the announcers the justification they felt they needed to have it played. In hindsight, they agree that the item was fairly risqué, and in future if the opportunity to play such an item arose again, both announcers would hesitate in repeating the item.

The Authority’s Determination

[20] When it determines a complaint about whether a broadcast contravenes Principle 1, the Authority is required to determine whether the material complained about breached currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but not decisive, to the Authority’s determination of whether the programme breached the Principle. Accordingly, the Authority has considered the context of the broadcast. Moreover, as an introductory point, the Authority reminds broadcasters that it is their responsibility to nominate a standard when one is not nominated by the complainant.

[21] The broadcast began by explaining that the item was an entry into a competition about novel ways of waking up a person. It was stated that the item was recorded at about 6.00am that morning and contained sexual references. The announcers also said that the flatmate who had been woken up had subsequently agreed that the tape could be broadcast.

[22] The entry to the competition began with two announcers, Jon Bridges and Nathan Rarere, introducing Neil, the competitor. The broadcast continued:

Jon/Nathan:
Now why don’t you describe to us what you’re going to do.

Neil:
I’m going to go into my flatmate’s room and wake her up with her vibrator. It’s huge mate. This thing’s the size of my freaking arm.

(Laughter)

Jon/Nathan:
Okay. And exactly what… Is it making a loud noise or are you going to what?

Neil:
It’s just your standard vibrator noise I presume.

Jon/Nathan:
Are you going to put it right by her ear are you?

Neil:
No mate. It’s going in.

Jon/Nathan:
Oh, no, no, no, Neil.

Neil:
You’ve got to do these things properly mate.

(Laughter)

Jon/Nathan:
Ohhh, Neil. This isn’t going to get us in trouble or anything is it?

Neil:
Well I don’t know.

[23] A little later, the broadcast reported:

Neil:
Okay. I’m just going into the room now, okay. Wait. Okay. She’s usually got it underneath her bed.

Jon/Nathan:
Oh you’re going to get it out from under her bed?

(Laughter)

Oh you’ve got to find it first?

Neil:
I’m ready for action. Okay. Hang on. I’m just going underneath the bed.

(Laughter)

Jon/Nathan:
…This is a dangerous operation.

(Laughter)

I thought he already had it.

Neil:
I’ve got it. Better make sure it’s got batteries. Hang on.

Jon/Nathan:
Have a listen.

Neil:
Yeah it’s working. Okay man we’re going in.

(Laughter)

[24] The broadcast then reported:

Neil:

Its…it’s…She’s stirring. She’s stirring.
(Flatmate moaning)
I think she’s liking it.

Flatmate:
(Shouting) What the hell do you think you’re fucking doing you bastard. Give me that fucking thing.

(Flatmate laughing)

Neil:
Come on baby whose your……whose your daddy, whose your daddy? You know you want it. Oh, fuck, oh shit.

Flatmate:
(Shouting) You arsehole…You fucking prick. How did you fucking know it was there?

[25] A little later:

Neil:
Guys, I’m out of here. Yeah man.

Jon/Nathan:
I wouldn’t be surprised, if yeah. Are you wearing that thing now?

Neil:
Not yet mate. I’m gone man. Ooh there’s a bit of banging going on round there. D’oh Woo hoo

(Laughter)

Jon/Nathan:
Well please excuse the language.

Yes. Please do (Laughter). That was this morning’s Aiwa Opener. Neil who, yes, it was checked with flatmate. Flatmate said it was okay to play. We are going to decide in the next ten minutes who did the most gnarly wake up of this week and they’ll win the Aiwa…..

[26] The Authority considers that the broadcast breached Principle 1. In reaching this decision, the Authority has taken into account the contextual matters, raised by the broadcaster, that Channel Z is a niche radio station and that its listeners are used to extreme entertainment options. It has also noted the cautionary note in the introduction to the item, and that the female flatmate had apparently later consented to the broadcast.

[27] While the matters referred to in paragraph [26] are directed at suggesting that the broadcast did not breach Principle 1, there are other matters the Authority has taken into account in deciding that the broadcast did in fact breach the Principle. These include the lapse in editorial judgment in choosing to broadcast the item after reviewing the recording, the apparent violation of the woman involved (regardless of whether it in fact occurred or was a "set up"), the length of the item, the laughter of the hosts, and the language used. The Authority also notes that while Channel Z expressed concern to the complainant, it did not uphold the complaint.

[28] The Authority also considers that the broadcast breached guideline 7b of Principle 7. The item was broadcast at about 7.30am, and this is a time when children may well be listening before leaving for school. The Authority does not consider that the broadcast was suitable for children.

[29] Whether or not the action described actually took place is irrelevant. The broadcast was presented to listeners as if it was taking place, and there were no comments from the announcers which questioned the veracity of the item. In summary, the Authority is of the opinion that this broadcast of the pre-recorded tape involved a serious error of judgment. The event involved the apparent taking of a liberty with a sleeping person for the purpose of entertainment. Then, the broadcaster had the opportunity to assess the contents of the tape, including the socially irresponsible action and language, but decided nevertheless that broadcast was appropriate.

[30] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". The Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. In addition, for the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In coming to this conclusion, the Authority has taken into account all the circumstances of these complaints, including the apparent violation of the woman involved, the language used, the fact that children may well have been listening before school, and the potential impact of an order.

[31] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion.

For the reasons above, the Authority upholds the complaint that the broadcast of the Aiwa opener on 14 December 2001 by Channel Z, a station owned by CanWest Radio NZ Ltd, breached Principle 1 of the Radio Code of Broadcasting Practice.

[29] Having upheld a complaint, the Authority may impose orders under ss. 13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[30] Chris Williams considered that an on air statement was necessary to explain that what had happened was unacceptable. The development of a working relationship between the broadcaster and an organisation such as Women’s Refuge was also suggested, and specific concern was expressed about "Neil’s" attitude. Channel Z argued that an order was not necessary as the flatmate had approved the broadcast, and it had dealt promptly with the complaint. However, it was prepared to broadcast an apology if required. It maintained that the broadcast was a "set up".

[31] The Authority reiterates that it is irrelevant whether the incident actually took place. It states again that it considers the broadcast was a serious error of judgment, which was exacerbated by the fact that the broadcaster had the opportunity after recording the incident, to review the tape. Nevertheless, the broadcaster proceeded to broadcast the tape. It considers that any order imposed should reflect the serious nature of the breach.

[31] The Authority concludes that the broadcast of a statement which summarises the findings is appropriate, as is the payment of costs to the Crown. In imposing the following Orders, the Authority has considered the provisions of the New Zealand Bill of Rights Act 1990, and is firmly of the opinion that the Orders are reasonable and demonstrably justified in a free and democratic society.

Orders

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders CanWest Radio NZ Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement shall be broadcast at a time and date to be approved by the Authority.

Pursuant to section 16(4) of the Act, the Authority orders CanWest Radio NZ Ltd to pay, within one month of the date of this decision, the sum of $2,000 by way of costs to the Crown.

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 and the complainant of the manner in which the order has been complied with.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
9 May 2002

Appendix

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

1. Chris Williams’ Complaint to Channel Z – 14 December 2001
2. Channel Z’s Response to the Complainant – 21 December 2001 (Channel Z records that
   it is a division of CanWest Radio NZ Ltd)
3. Channel Z’s Announcers’ Response to the complainant – 21 December 2001
4. Chris Williams’ Referral to the Authority – 11 January 2002
5. Channel Z’s Response to the Authority – 8 February 2002
6. Chris Williams’ Submission on an Order – 23 April 2002
7. Channel Z’s Submission on an Order – 30 April 2002