Investigation Report No. 2491
File No. / ACMA2010/1826Licensee / Today FM Sydney Pty Ltd
Station / 2Day
Type of Service / Commercial radio broadcasting service
Name of Program / Hour of Power
Dates of Broadcast / 2 August 2010
Relevant Code / Clause 1.3(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2010
Date Finalised / 8 February 2011
Decision / No breach of clause 1.3(a) (hatred, contempt or ridicule)
The complaint
On 3 September 2010, the Australian Communications and Media Authority (ACMA) received a complaint concerningthe Hour of Power broadcast on 2 August2010by Today FM Sydney Pty Ltd, the licensee of 2Day (the licensee).
The complainant alleged that the licensee broadcast inappropriate content ‘in a 6:30pm timeslot’.
The complainant was not satisfied with the response of the licensee and referred the matter to the ACMA for consideration.[1]
The complaint has been investigated in accordance withclause1.3(a) [generally accepted standards of decency]of the Commercial RadioAustralia Codes of Practiceand Guidelines 2010 (the Codes).
The program
The Hour of Power is a one-hour program broadcast from 6:00pm to 7:00pm across all Austereo network stations. The program replays highlights from the Kyle & Jackie O Show (the Breakfast Show), whichis a breakfast radio show hosted by Kyle Sandilands and Jackie O. The Breakfast Show is a hybrid format and iscomprisedof music, prize giveaways and interviews with celebrities. It is described on the licensee’s website as, ‘It's Breakfast with the Stars every weekday morning. Kyle and Jackie O serve up the biggest celebrities on the planet, cover the big issues and the, er, not-so-big’.[2]
On 2 August 2010, Kyle Sandilands and Jackie O debated who would makethe better Prime Minister of the two of them. The debate was held in the broader context of the then upcoming federal election. The material complained of relevantly included:
Kyle Sandilands:I will get the sympathy vote, people will go, ‘ohh, that’s too hard’.
Jackie O:No you won’t. No you won’t. You did 100 in a 60 zone. You can’t be trusted for a start. You lie.
Kyle Sandilands: And I’ve voiced my own ad, ready?
Jackie O:Budget.
Kyle Sandilands:Roll it.
[Pre-recorded mock-campaignadvertisement]
Kyle Sandilands:Jackie O is not what she seems. Over the years she’s sold herself up for us to think that butter wouldn’t melt in her mouth. But I can tell you first hand, way more than butter has melted in that potty-mouth.
Jackie O:[Beep]. Why is it always me? Why can’t you [beep] touch on it if you’re saying I’m gutless?
Kyle Sandilands:Jackie O lost her virginity in the back of a panel-van on the Gold Coast. How classy? Jackie O dated a drug dealing boyfriend. Jackie O shop lifted bikinis from a Gold Coast department store back in her younger years.
Jackie O:I’ve done it a couple of times.
Kyle Sandilands:And what about this admission of her lesbianism.
Jackie O:I had a girlfriend when I was eight. We used to pash.
Kyle Sandilands:And then there’s this. Pash her cousin? What are you talking about, you hillbilly? Only hillbillies do that.
Jackie O:Really?
Kyle Sandilands:Since then she’s had multiple marriages and many sexual partners. So, if you’re looking for a thieving, druggo, slut to run the country, then vote one tacky-Jackie O. But, if you’re looking for an honest man, a man that has lived many lives and walked in many of your footsteps a true Aussie battler then vote one for me, Kyle Sandilands.
[End of pre-recorded mock-campaign advertisement]
Jackie O:What a load of crap that was.
Kyle Sandilands:That was true. Everything was true.
Jackie O:It was not true. What did you say about multiple sexual partners?
Kyle Sandilands:You’ve had multiple marriages, which is true.
Jackie O:No, and you said many sexual partners, that’s not true.
Kyle Sandilands:You’ve had more than seven
Jackie O:I’ve had seven, in total.
Kyle Sandilands:I left out the part where you put the peanut in your vagina and fed it to your friend.
Jackie O:You’re not explaining the situation.
Kyle Sandilands:There’s no time to explain the situation. How can you explain your way out of that situation?
Jackie O:I was five when I did it, for a start. I wasn’t an adult.
Kyle Sandilands:So the evil twisted mind was there from the beginning.
Jackie O:Anyway, there you go. It’s up to the people who they want running.
Kyle Sandilands:You want the peanut girl? Or, you want me.
The exchange lasted approximately 2.30 minutes. It was broadcast in the Breakfast Show and repeated in the Hour of Power program. The complaint was about the Hour of Power broadcast.
Assessment
The delegate has assessed the program against the relevant provisions of the Codes drawing on a:
submission from the complainant;
submission from the licensee;and
copy of the broadcast provided to the ACMA by the licensee.
Other sources consulted are identified where relevant.
‘Ordinary, reasonable’listener test
In assessing content against the Codes, the delegate considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’listener.
Australian Courts have considered an ‘ordinary, reasonable’listener to be:
A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs[3].
The delegate asks, what would the ‘ordinary, reasonable’listenerhave understood this program to have conveyed? It considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any).
Once this test has been applied to ascertain the meaning of the broadcast material, it is for the delegate to determine whether the material has breached the Codes.
In this case, the delegate is satisfied the ‘ordinary reasonable’ listener would have understood the segment to be a mock election debate prompted by the then up-coming Federal election. It featured a farcical debate between the program hosts as election candidateswhich exposed details of the female host’s past sexual activities and included explicit sexual references.
Issue 1: Whether the program met generally accepted standards of decency, having regard to the likely demographic characteristics of the audience of the relevant program
Relevant Codesprovisions
Purpose
The purpose of this Code is to prevent the broadcast of programs which are unsuitable, having regard to prevailing community standards and attitudes.
Program Content and Language, including Sex and Sexual Behaviour
1.3 (a)All program content must not offend generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of the relevant program.
(b)For the purpose of determining:
(i) the audience of the relevant program; and
(ii) the demographic characteristics of the audience,
regard must be had, in particular, to the results of any official ratings or surveys of the licensee’s service in the prior 12 months [...].
Complainant’s submission
The complainant submitted:
I was driving with my 10 year old daughter in the car at 6:30pm last night listening to 2Day FM, the Kyle Jackie OShow. They were presenting their spiel to be the next PM, while dishing the dirt on the other. Kyle, said that “Jackie had put a peanut in her vagina and fed it to her friend” [complainant’s emphasis]. Embarrassed, I quickly changed the station. [That’s] not what I expected to hear in a 6:30pm timeslot with my daughter in the car. [The licensee] has a delay switch, please use it for this timeslot.
Licensee’s submission
The licensee submitted to the complainant:
I would like to offer you my sincere apologies if you found the broadcast offensive. I do appreciate that with such a large audience, it is difficult to achieve consensus and what may appeal to one listener may offend another.
2Day FM constantly strives to meet contemporary standards of decency, giving due consideration to the likely characteristics of the audience and to the language used in the various broadcasts.
Your comments raised in your complaint have been treated seriously, and again I thank you in bringing this matter to my attention.
Finding
The program content did not offend generally accepted standards of decency, having regard to the demographic characteristics of the audience of the relevant program.
Accordingly, the licensee did not breach clause 1.3(a) of the Codes for the broadcast of theHour of Power on 2 August 2010.
Reasons
Clause 1.3(a) requires the delegate to consider the meaning of the phrase ‘generally accepted standards of decency, having regard to the likely audience demographic characteristics of the relevant program’.
Community standards and generally accepted standards of decency
The ‘purpose’ of the Codes is ‘to prevent the broadcast of programs which are unsuitable, having regard to prevailing community standards and attitudes’. Given this context, clause 1.3(a) of the Codes requires the delegate to consider the meaning of the phrase ‘generally accepted standards of decency’ in light of prevailing broad community standards.
In considering community standards, the delegate notes the objects of the Broadcasting Services Act 1992 (the Act) include the promotion of the availability of a diverse range of radio servicesto audiences throughout Australia.[4] Another object is to encourage providers of broadcasting services to respect community standards in the provision of program material.[5] The delegate appreciates that diverse audiences in Australia will not always have everyday tastes and standards in common and further, that material that may be regarded as indecent in one context may be acceptable in another. These issues are addressed in the Codes.
Clause 1.3(a) of the Codes further requires the delegate to have regard to the likely demographic characteristics of a subset of the broad community, being the audience of the relevant program.
The delegate applies the ordinary, English meaning to the term ‘generally accepted standards of decency’.
The Macquarie English Dictionary (5th Edition) states:
Generally adverb:1.with respect to the larger part, or for the most part.
2. usually; commonly; ordinarily.
Accepted adjective:customary; established; approved.
Standards noun1. anything taken by general consent as a basis of comparison; an approved model.
Decencynoun 1. the state or quality of being decent.
2. conformity to the recognised standards of propriety, good taste, modesty, etc.
3. something decent or proper.
Decentadjective1. Fitting; appropriate.
2. conforming to recognised standards of propriety, good taste, modesty, etc., as in behaviour or speech.
The delegate considers that the term ‘generally accepted standards of decency’ refers to the current consensus of recognised present day standards of propriety as opposed, for example, to content that is generally considered indecent or coarse.
As noted by the courts, the question of whether material is indecent, ‘given the court must have regard tocontemporary standards in a multicultural, partly secular and largely tolerant, if not permissive society, is not easy’.[6] The courts have said that community standards will be those of the average person who can be summed up as moderate ‘not given to thoughtless emotional reaction’ nor ‘given to pedantic analysis’.[7]
The ACMA considers that it follows from this analysis that the average listener recognises that standards of decency are not hard and fast, either over time or across all sections of the community. In particular, he or she may accept that some material he or she considers indecent would not be so judged by other sections of the community; and that, up to a point, those other groups have a right to have such material broadcast in programs to which they listen.
Likely demographic characteristics of the audience of the relevant program
In considering whether the broadcast meets generally accepted standards of decency, the Codes require the delegate to have regard to the likely demographic characteristics of the audience of the relevant program, in this case the Hour of Power.
The word ‘likely’ is taken to mean something that is real and not a remote possibility; or, something that is probable.[8]
The licensee provided the following cumulative audience figures, broken down by age and gender for the Hour of Powerand the BreakfastShow:[9]
Table 1: Hour of Power, 6:00pm – 7:00pm
Table 2: Breakfast Show, 6:00am – 9:00am
From this data the delegate hasdeduced that at the date of the relevant broadcast:
the total audience for the Hour of Powerwasless than half the size of that for the Breakfast Show;
the largest group of listeners for the Hour of Power program (male and female) was the 30-34 age group and the 2nd largest was the 20-24 age group;
the largest group of listeners for theBreakfast Show(male and female)was the 10-14 age group and the 2nd largest were the 15-19 and 30-34 age groups;
the majority of listeners for both programs were under 30 years of age;
there was a shift in the largest group of listeners to an older age group for the Hour of Power.
The complaint is that the material was inappropriate and unexpected for the 6.30pm time slot.
The delegate notes that although the broadcast was light hearted and farcical, it included the following explicit references to sexual behaviour and female genitalia, by Mr Sandilands:
‘Jackie O lost her virginity in the back of a panel-van on the Gold Coast’;
‘and what about this admission of her lesbianism’;
‘pash her cousin’;
‘she’s had multiple marriages and many sexual partners’; and
‘I left out the part where you put the peanut in your vagina and fed it to your friend’.
It is noted that Jackie O attempted to defend herself and clarified that she was a child of five years oldwhen she ‘put the peanut in [her] vagina’. However, in light of the preceding discussion,her clarification had the result of sexualisinga matter involving a child.
The Hour of Power was broadcast between 6:00pm – 7:00pm which is ordinarily a news hour and the content was presented as a mock election debatewithin the context of the then up-coming Federal election. The delegate considers that some listeners would not have expected to hear explicit references to sexual behaviour and genitalia at this time and in this context.The delegate accepts that these references could have offended some listeners, particularly if they were unfamiliar with the Breakfast Show or Hour of Power format.
However, in assessing the broadcast, the delegate must have regard to the demographic characteristics of the audience of the program. In this regard, the delegate notes that the majority of theHour of Power’slistenersfor the relevant period wereyoung adults. The delegate considers these listeners would have likely been familiar with both the Breakfast Show and Hour of Power’swell-known controversial presentation style and subjects of discussion and would not have been offended by the material.
The delegate notes that the ACMA has received only one complaint in this matter. As noted above, the ACMA considers that the average listener in the community would accept that standards of decency are not hard and fast. The delegate considers that such a listener, even if he or she found the program distasteful, would understand that it would not be offensive to a more tolerant audience such as the young adult listeners of the Hour of Power. In this case, the delegate is satisfied that the broadcast did not go beyond generally accepted standards of decency.
The delegate finds that the content was not indecent or coarse, in the sense contemplated by the Codes.
1
ACMA Investigation Report – Hour of Power broadcast by 2Day on 2 August 2010
[1] Sections 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s jurisdiction in relation to complaints made under codes of practice.
[2] accessed on 4 February 2011.
[3]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.
[4] See section 3(1)(a) of the Act.
[5] See section 3(1)(h) of the Act.
[6]Pell v Council of Trustees of the National Gallery of Victoria [1997] VSC 52.
[7]Mackinlay v Wiley [1971] WAR 3 at 25.
[8] See the discussion in Re Vulcan Australia Pty Ltd and Controller-General of Customs (1994) 30 ALD 773 at 778.
[9] Nielsen Company Radio Ratings Survey #6, 2010 provided by the licensee to the ACMA on 18 January 2011.