Investigation Report No. 2751

File No. / ACMA2012/102
Licensee / Today FM Sydney Pty Ltd
Station / 2DAY
Type of Service / Commercial Television
Name of Program / Kyle & Jackie O Breakfast Show
Date of Broadcast / 22 November 2011
Relevant Code / Clauses 1.1(a), 1.1(e) and 1.3(a) of the Commercial Radio Australia Codes of Practice 2011

Investigation conclusion

In relation to the broadcast of the Kyle & Jackie O Breakfast Show on 22 November 2011, the licensee of 2DAY, Today FM Sydney Pty Ltd:

  • did not breach clause 1.1(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2011 (the Codes);
  • did notbreach clause 1.1(e) of the Commercial Radio Australia Codes of Practice and Guidelines 2011(the Codes);
  • breachedclause 1.3(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2011 (the Codes).

The complaint

On 11 January 2012, the Australian Communications and Media Authority (the ACMA) received an unresolved complaint regarding comments made by Kyle Sandilands (KS) during theKyle & JackieO Breakfast Show broadcast on 22 November2011 by the licensee of 2Day FM, Today FM Sydney Pty Ltd.[1]

The comments were directed towards a female journalist following an unfavourable review ofKS’s debut TV Show A Night with the Stars. The complainant alleged that the comments were ‘foul, sexist and threatening’.

The complainant referred the matter to the ACMA for investigation.[2]

The program

The Kyle Jackie O Breakfast Show is a breakfast radio program broadcast on weekdays from 6.00 am to 9.00 am on 2Day FM, and during the ‘Hour of Power’ on other Austereo network stations. The show airs a mix of celebrity interviews, Hollywood gossip, music, giveaways, phone topics and stunts, and is hosted by radio presenters KS and JO.

A full transcript of the segment complained of is set out at Attachment A.

Assessment

The assessment is based on a copy of the broadcast which was provided to the ACMA by the licensee, together with submissions from the complainant and the licensee.

The ACMA investigated the complaint in accordance with clauses 1.1(a) and (e) [proscribed matter], and 1.3(a) [generally accepted standards of decency] of theCodes.[3] These provisions are fully extracted in the body of the report.

Other sources consulted are identified where relevant.

‘Ordinary, reasonable’ listener test

In assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material broadcast. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener or viewer. That is, what message the ordinary, reasonable listener would have understood was being conveyed by the material that was broadcast.

Australian Courts have considered an ‘ordinary, reasonable’ reader (or listener or viewer) 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[4].

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone and any inferences that may be drawn.

Once this test has been applied to ascertain the meaning of the materialthat was broadcast, it is for the ACMA to determine whether thatmaterial has breached the Codes.

Issue 1: Incite hatred, serious contempt or severe ridicule because of gender

Relevant provisions

Proscribed matter

1.1A licensee must not broadcast a program which, in all of the circumstances:

[...]

(e) is likely to incite hatred against, or serious contempt for, or severe ridicule of, any person or group of persons because of age, ethnicity, nationality, race, gender, sexual preferences, religion, transgender status or disability.

Interpretation of clause 1.1(e) of the Codes

The ACMA adopts the general approach set out below, when assessing whether a broadcast breaches clause 1.1 (e) of the Codes.

‘Likely, in all of the circumstances’

Use of the words, ‘likely in all of the circumstances’ imposes an objective test[5] and implies a real and not remote possibility; something which is probable.[6]

‘Incite’

When a statute or code uses words which it does not define, it is usually appropriate to apply whichever of the ordinary English language meanings are most appropriate to the context in which the words are used in the statute or code.

The Macquarie Dictionary (5th Edition) defines ‘incite’ as follows:

inciteverbto urge on; stimulate or prompt to action.

Incitement can be achieved through comments made about a person or group; there is no requirement that those comments include a specific call to action against that person or group or to establish that there was a specific intention to incite hatred, serious contempt, severe ridicule, or to prove that anyone was actually incited.[7] However, the material must include something more than the use of words that merely convey hatred, serious contempt or severe ridiculetowards a person.‘There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others’.[8]

Hatred, serious contempt, severe ridicule

Clause 1.1(e) of the Codes contemplates a very strong reaction and sets a high test for the prohibited behaviour. It is not sufficient that the behaviour induces a moderately negative response or reaction.[9]

‘Because of’

The incitement to hatred, serious contempt or severe ridicule, must occur on a basis specified in clause 1.1(e), including the gender of the person or group of persons.

The phrase ‘because of’ requires that there be an identifiable causal link between the prohibited ground (here gender) and the action complained of (here hatred, serious contempt and severe ridicule).

Licensee’s submission

The licensee’s response to the ACMA in relation to clause 1.1(e) of the Codes was as follows:

[...]

The incitement of hatred against, serious contempt for or severe ridicule of, a person or group, must occur on a basis specified in clause 1.1(e), including the gender of a person. This means that there must be a causal connection between the gender of the person and the feelingsof hatred, serious contempt or severe ridicule which are likely to be incited by the public act, being here, the Broadcast.

Further, and as the ACMA has determined, clause 1.1(e) sets a high threshold for the likely effect of the prohibited behaviour. The dictionary definitions of ‘hatred’, ‘serious contempt’ or ‘severe ridicule’ emphasise that it is not sufficient that the content was likely to have evoked a mild or moderate reaction. It must be established that there is a real possibility that the Broadcast stimulated passionate dislike, scorn or derision towards [the journalist] on the grounds of her being a female, in the estimation of an ordinary, reasonable listener.

Although we do not in any way condone Mr Sandilands’ comments about [the journalist] in the Broadcast, we are of the view that the ordinary, reasonable listener of the Broadcast would, based on the context, tenor and tone of the Broadcast, be likely to dismiss the comments as a hot-headed rant, as well as typical Sandilands banter.

We submit that the ACMA should consider the following factors when considering whether the Broadcast breached the Codes:

  • There was no direct hatred stimulated or urged by Mr Sandilands, and the comments made by Mr Sandilands did not encourage listeners to take action demonstrating negative attitudes towards women;
  • The tone of the Broadcast was humorous and for the primary purpose of amusement;
  • The ordinary reasonable listener would have understood the Broadcast to have conveyed Mr Sandilands’ frustration with the review and is similar to his previous reactions to other criticisms directed towards him.

We submit that it is unlikely [emphasis added by the licensee] that the ordinary, reasonable listener would have understood the comments made by Mr Sandilands during the Broadcast as likely to prompt hatred, serious contempt or severe ridicule of [the journalist] because of her gender. While it would be clear to an ordinary listener that Mr Sandilands was expressing his frustration with the journalist, in response to the journalist’s negative review ... it would also be clear that his response was not because of her gender but as a direct result of [the journalist’s] negative review and is synonymous with Mr Sandilands’ on-air style. We submit that it would have been clear to an ordinary, reasonable listener, that within the context of Mr Sandilands’ comments the segment was intended to refute the review of A Night with the Stars, and not to incite hatred, serious contempt or severe ridicule against her because of her gender.

Further, Mr Sandilands did not urge hatred, serious contempt or severe ridicule of women in the Broadcast, and the comments he made did not encourage listenersto take action demonstrating negative attitudes towards women. We do not believe that the ordinary reasonable listener would have been provoked into seriously hating or severely ridiculing [the journalist] or any other woman because of her gender.

We also draw to the ACMA’s attention the recent revision of clause 1.1(e) of the Codes (issued by the ACMA on 19 February 2010), which established the high threshold standards of ‘...serious contempt for, or severe ridicule of...’ for the likely effect of any proscribed broadcast material. We submit that the standard, which is arguably higher than that which would be required to prevail in a civil claim of defamation, ought to be reserved for only the most egregious comments and extreme circumstances.

We submit that the comments of the Segment were not sustained, prolonged or intense enough to be likely, in all of the circumstances, to incite serious contempt or severe ridicule because of gender. Mr Sandilands’s comments made in passing do not, in our view, satisfy the high threshold that clause 1.1(e) of the Codes was intended to proscribe.

Finding

The segment was not likely, in all of the circumstances, to incite hatred against, or serious contempt for, or severe ridicule of, any person or group of persons because of gender.

Accordingly, the licensee did not breach clause 1.1(e) of the Codes for the broadcast of the Kyle & Jackie O Breakfast Show on 22 November 2011.

Reasons

Identification of relevant person or group of persons

The ACMA is satisfied that the subject of the commentary was an individual rather than a group, the female journalist being the relevant individual.

Because of gender

Having regard to the terminology expressed in the segment including reference to the woman’s physical characteristics and the complainant’s concern that the material was ‘sexist’, the relevant basisconsidered by the ACMA is gender.

The licensee submitted that:

While it would be clear to an ordinary listener that Mr Sandilands was expressing his frustration with the journalist, in response to the journalist’s negative review ... it would also be clear that his response was not because of her gender but as a direct result of [the journalist’s] negative review and is synonymous with Mr Sandilands’ on-air style.

It is acknowledged that the catalyst for the comments was areviewof the debut TV show of KS and JO by the individual concerned. This,however, is not determinative of whether there was the required link between the prohibited behaviours and the gender of the individual.

The following components of the comments were linked to gender:

  • A reference was made to the journalist’s breasts (‘titty’), connoting the female gender;
  • References were made to the journalist’s image, including hair style and clothing style;
  • The journalist was referred to as a ‘fat slag’ , the term is ‘slag’ colloquial for ‘a woman who is unattractive, dirty, or promiscuous’;[10]
  • The journalist was referred to as ‘fat’ more than once. Weight is predominantly(though not exclusively) a female image-related concern;

In the ACMA’s view the required link between gender and the feelings of hatred, contempt and ridicule was established. Even if the comments made were a reaction to the review given by the journalist,the comments substantially fastened on the journalist’s gender.

Likely to incite hatred, serious contempt and severe ridicule

The Codes contemplate a strong reaction and set a high test for the prohibited behaviours. In each case, a judgment must be made as to whether the material reaches the required level of intensity.[11]The licensee submitted:

The comments of the Segment were not sustained, prolonged or intense enough to be likely, in all of the circumstances, to incite serious contempt or severe ridicule because of gender. M Sandilands’ comments made in passing do not, in our view, satisfy the high threshold that clause 1.1(e) of the Codes was intended to proscribe.

As noted above, when determining the meaning of the specific content that was broadcast, the ACMA must consider what an ordinary reasonable listener would have understood was conveyed by that content.

The ACMA has reviewed the entire broadcastand notes the following statements in the segment complained of:

  • Some fat slag ...
  • What a fat bitter thing you are, you deputy editor of an online thing. You’ve got a nothing job anyway. You’re a piece of shit.
  • ...But this low thing ...I can tell you, you are supposed to be impartial, you little troll.
  • You’re a bullshit artist, girl. That’s what you are. You should be fired from your job. And your hair. Your hair is very 90s.
  • Yeah, and your blouse. You haven’t got that much titty to be wearing that low cut a blouse. Change your image girl. And watch your mouth, or I will hunt you down.

In the balance of the broadcast, the following relatedremarkswere made by KS:

  • Oh, what an insult. You should go and work for news.com.au;
  • .. angry little trolls. Princess Fiona there, online;
  • [S]ome inaccurate report again about our show...The jealous little things;
  • I don’t know who are these lying little journalists;
  • A few newspaper journalists were jealous. But hey if I had fat little arms like them I’d be jealous too. I’d be jealous of everyone.

The ACMA is of the view that the choice of words in the segment complained of, combined with the vitriolic and menacing tone in which they were uttered, would have been understood by an ordinary reasonable listener as conveying hatred, serious contempt and severe ridicule. However, conveying these things does not, of itself, amount to an ‘incitement’ of them in others. Moreover, the Codes provision additionally requires that the incitementis ‘likely’ (that is, probable in all the circumstances).

While the relevant comments conveyed an intensity of feeling and vitriol on the part of KS, the ACMA is not satisfied that the broadcast was likely to have incited any of the very strong responses contemplated by the Codes provision - namely hatred against, or serious contempt for, or severe ridicule of,either the journalist the subject of KS’s criticismor of women in general.

Accordingly, having considered all of the circumstances, the ACMA is of the view that the impugned material was not likely to incite hatred against, or serious contempt for, or severe ridicule of, any person or group of persons because of gender.

The Guidelines

While the ACMA has not found a breach of clause 1.1(e) of the Codes on the basis articulated, it notes that this broadcast involveda flagrant disregard of the Guidelines relating to the Portrayal of Women on Commercial Radio. These Guidelines state, amongst other things, that ‘broadcasters should avoid promoting or endorsing ... demeaning... descriptions of women’, and should ensure that ‘reporting and on-air discussions respect the dignity of women’ and ‘avoid the use of overt sexual references in relation to a woman’s physical characteristics which have no relevance to the issue under discussion’.

The Guidelines are not, of themselves, enforceable. The Guidelines are said ‘not [to] form part of the Codes’. Their stated purpose is ‘to assist [licensees] in understanding and meeting the objects of Code 1.1(e)’ and to ‘assist in defining acceptable practice in the portrayal of women on commercial radio’.

Accordingly, while not enforceable, the Guidelines can usefully inform the ACMA’s consideration of generally accepted standards – which is relevant to Issue 3 discussed below.

It suffices to observe that such a marked departure from the Guidelines as occurred in this instance is regrettable. While not a breach of clause 1.1(e) of the Codes, KS’s off-hand, gender-focussed vitriol contributesto normalising the denigration of women.

Issue 2: Incite violence or brutality

Relevant provisions

Proscribed matter

1.1A licensee must not broadcast a program which, in all of the circumstances:

(a)is likely to incite, encourage or present for its own sake violence or brutality;

Licensee’s submission

The licensee’s response to the ACMA in relation to clause 1.1(a) of the Codes was as follows:

...

[The licensee] accepts that the comments made by Mr Sandilands were inappropriate. However, we do not think that the ordinary, reasonable listener would take Mr Sandilands comments to be serious statements of intent. It would be clear to the ordinary, reasonable listener that Mr Sandilands was upset about the journalist’s negative review of his television program, A Night with the Stars, and that, within this context, his comments were merely empty expressions of his frustration with the review. The Program is well known for its controversial content and Mr Sandilands is well known for his rude, controversial personality and for polarising opinions.

At no point did Mr Sandilands incite or encourage anyone to act violently against the journalist or do anything at any point in the Broadcast that was violent or brutal. It would be clear to the ordinary listener from the tenor and tone of the Segment that the comments made about [the journalist] were not genuine threats against her but merely an expression of Mr Sandilands’s frustration on receiving a poor review.

Accordingly, considering the Segment in the context of the Broadcast, we submit that the ordinary reasonable listener would not be likely to be affected by the Broadcast. [The licensee] does not consider that an ordinary, reasonable listener would regard the Broadcast as likely to:

  • Urge on violence, stimulate violence, prompt a person to take violent action; or
  • Inspire a person inclined to violence with courage, spirit or confidence; or
  • Stimulate violence by assistance or approval.

[...]

Finding

The program was not likely, in all of the circumstances, to incite, encourage or present for its own sake violence or brutality.