3FOC - ACMA Investigation Report 2430

Investigation Report No. 2430

The complaint

On 3 June 2010, the Australian Communications and Media Authority (the ACMA) received an unresolved complaint regarding content broadcast during the program Hot 30 Countdown on 28 April 2010 by the licensee of 3FOX, Austereo Pty Ltd.

The complainant alleged that discussion between the hosts and a guest surrounding an adult entertainment magazine was offensive and exploitative of a female host. The complainant also alleged that the content was inappropriate for broadcast before 9:30 pm.

The complainant referred the matter to the ACMA for investigation.[1]

The complaint has been assessed in accordance with clauses 1.1(e) [proscribed matter] and 1.3(a) [generally accepted standards of decency] of the Commercial Radio Australia Codes of Practice 2010 (the Codes).

Matters not pursued

Explicit sexual theme

The complainant has referred specifically to clause 1.5 of the Codes as being relevant.

Clause 1.5 of the Codes deals with the broadcast of a ‘feature program’ which has ‘an explicit sexual theme’ as its core component. Clause 1.5 does not apply to individual elements within a program.

The delegate understands that the material concerned formed part of Hot 30 Countdown which was broadcast between 7:00 pm and 10:00 pm. While the program included discussion of a photograph shoot for an adult entertainment magazine (the magazine), there is no evidence to suggest that the program, as a whole, included an explicit sexual theme as its core component. Accordingly, clause 1.5 of the Codes does not apply and the licensee’s compliance with it has not been pursued in the context of this investigation.

Promotion of magazine

The complainant has also alleged that the program ‘hyped up’ and ‘endorsed over and over’ the adult entertainment magazine in the lead up to, and during, the broadcast of the content complained about.

The delegate has identified clause 3.1(a) of the Codes as being potentially relevant to this aspect of the complaint. Clause 3.1(a) provides that ‘advertisements broadcast by a licensee must not be presented as ... other programs’.

The Codes define an ‘advertisement’ as:

material broadcast a substantial purpose of which is to draw public attention to, or to promote, directly or indirectly, an organisation, product or service, belief or course of action ; and

consideration has been provided by or on behalf of an organization or a supplier of the product or service to a licensee, or to a presenter, or an associate of a presenter for the broadcast of that material by the licensee.

The licensee has confirmed that there was no payment or other consideration received by the adult entertainment magazine in relation to the broadcast of the program on 28 April 2010, and that it was not ‘a vehicle to promote’ the magazine.[2]

The delegate has not been provided with any information to suggest that the program was an advertisement of the magazine and accordingly clause 3.1(a) of the Codes has not been further pursued.

The program

Hot 30 Countdown is broadcast on weekdays between 7.00 pm and 10:00 pm on FOX FM in Melbourne, and is presented by female host (A) and male host (B) and. The program format includes a music countdown where listeners vote to determine the evening’s play list, prize giveaways and interviews with musicians and other celebrities.[3]

On 28 April 2010, the program interviewed a guest, (C) introduced as the editor of the magazine.

At about 1 hour and 19 minutes into the program, the host Bhad an on-air discussion with another crew member (D) while A was absent from the studio room. B announced that the editor of the magazine was attending the studio for the purpose of inviting and persuading A to pose for the magazine.

The lead up discussion to A’s return to the studio ran for approximately 2 ½ minutes and was as follows:

B: A is not in the studio right now. [D] has distracted her.

D: Yes we have.

B: She’s in with our audio producer and she thinks she’s recording something very urgent. She can’t hear us at the moment but because we have a special guest I don’t want her to know about it in advance.

D: Yes, what is this?

B: This is the editor of [the magazine]...

D: Oooo

B: ...who’s coming in, his name is [C]. He’s a good man. He’s coming in because I’ve given [A]...well, not a hard time, I’ve just bugged her for a while. I want her to be in [the magazine]. She’s a beautiful woman.

D: Do you reckon she’ll want to be in [the magazine]?

B : No I don’t. But...

D:She’s going to kill you.

B: ... No but we’ve got the editor of [the magazine] here in the studio he’s coming in right now we’re going to go... play some ads here; we’re going to play like one song; then we’re going to come back and [A’s] back with the editor of [the magazine]; she’s not even going to know who he is.

A subsequently returned to the studio where C was present. C proceeded to put the proposition to A in response to which A audibly gasped and expressed surprise.

The segment concluded with the following exchange:

A: He always introduces me as ‘this is [A] the one who wasn’t in [the magazine]’.

B: Yeah but, it’s because I wanna see it! you know!

A: [Sighs] Ohhh!

B: Come on!!

A: I’m speechless.

B: It can’t hurt to have a chat.

A: Absolutely speechless.

B: Great publicity – you can wear a Hot 30 Countdown T-Shirt.

A: Oh right.

B: And, no panties. You can see the bottom.

A: Torn in the right places!

B: Exactly!

A: [Laughs]

B: Just covering the nipple! [Introduces next song] Number 12. The Hot 30 around Australia.

C: Laughs.

[...]

The entire segment (including the lead up discussion, advertisements and songs) ran for 22 minutes and 57 seconds.

Assessment

The assessment is based on the CD recording of the broadcast provided to the ACMA by the licensee, as well as on submissions provided by the complainant and licensee.

Other sources are identified where relevant.

‘Ordinary, reasonable listener’ test

In assessing content against the Codes, the ACMA 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.[4]

The question for the ACMA to consider is what the ordinary reasonable listener would have understood this program to have conveyed. This requires consideration of the natural, ordinary meaning of the language used. The ACMA also considers the broadcast’s context, tenor, tone, inferences that may be drawn, and in the case of the presentation of factual material, any relevant omissions.

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

The delegate considers that the ordinary reasonable listener would have understood the focus of the entire segment to be on persuading the female host, A, to pose for an adult entertainment magazine directed to men.

The delegate has had regard to the context of the references made to A while she was not present in the room, together with the invitation made to her to pose for an adult entertainment magazine, wearing a T-shirt, ‘torn in the right places’ with ‘no panties, you can see the bottom’, and ‘just covering the nipples’. The delegate is satisfied that the ordinary reasonable listener would have understood the content of the segment to be sexualised, and also to infer adult themes.

Complainant’s submissions

The complainant submitted in its letter dated 29 April 2010 to the licensee:

... I wish to place a complaint regarding the disgusting and offensive segment that was played during ‘The Hot 30 Countdown’ with [A] and [B] on Wednesday April 28th.

[...]

The intention of this ‘setup meeting’ was to convince this Australian celebrity to pose in an adult entertainment magazine.

This segment was already tasteless...

The notion of ‘entrapment’ (in that it was stated that [A] had no idea what she was in for) and ‘emotional bribery’ (putting someone in ‘the hot seat’ on national and internet broadcast radio) had my attention and I stayed tuned in through ten minutes of ads just to hear if [A] would give her male host a good slap (verbal or physical) for being so sleazy.

[...]

During this segment:

- ...host [B] and [C] used schoolyard level peer-pressure, in referring to her ... colleague ... who posed for [the magazine], reminding [A] ... that ‘someone else had done it, so you should do it too’.

- ...male host mentioned ‘nipples’ two or three times followed by ‘I want to see it’.

- the words ‘glamorous’, ‘classy’ and ‘fine’ got thrown around a fair bit in relation to that kind of magazine and what kind of images that particular magazine creates

[...]

- there was no second host to provide the voice for the ‘opposite side of the argument’, leaving your ‘seemingly surprised [A]’ to be ‘double teamed’ by your sleazy male host and the editor of arguably Australia’s sleaziest magazine.

[...]

The complainant cited clause 1.3 of the Codes as being relevant, and the following excerpt of the Guidelines and Explanatory Notes on the Portrayal of Women on Commercial Radio (the Guidelines):

2. Ensure that reporting and ‘on-air’ discussions respect the dignity of women and are non-exploitative.

‘...Avoid the use of overt sexual references in relation to as woman’s physical characteristics which have no relevance to the issue under discussion...’.

The complainant also submitted:

[M]y deep offence and sincere disgust with this particular segment relates to many aspects of the way this has been set up, executed and broadcast online and on national radio.

[...]

You have gone out of your way to embarrass and harass a female television personality (made famous for her performing for children and family audiences all around the country).

You have used unjustifiable language (particularly in reference to ‘nipples’).

You have shown... the way in which women all over the world are ‘pressured’ into getting involved in the adult entertainment industry, that is, little by little, ‘or’ as C put it during the segment ‘it’s the first step in a 12 step program’.

[...]

You have shown the predatory behaviour that is becoming tragically an inherent of the male identity in Australia...

[...]

The complainant was not satisfied with the licensee’s response dated 27 May 2010, and submitted to the ACMA:

[...]

The subtle phrasing like ‘It’s the first step in a twelve step program’, and the more obvious reference to the host [B] wanting to see [A] ‘wearing a ripped t-shirt with her hands covering her nipples’ was immensely offensive ... in any other circumstance, to propose that to a work colleague would be grounds for sexual harassment.

[...]

[The licensee] has justified this segment as being 5 minutes long and just some ‘cheeky fun’. When in reality, they talked up this part of the program for 45 minutes in between each song segment, and then followed it up after the next song bracket and their guest had left.

...[T]his segment is so typically pressuring, sexually connotative, and demeaning in that the host [B] has been allowed to ‘not take no for an answer’.

[...]

The excuse of ‘it’s just cheeky fun’ I find offensive and dismissive, because it wasn’t being broadcast as a joke.

[...]

Licensee’s submissions

The licensee submitted to the complainant:

[...]

[Clause 1.3(a)] is at all times qualified having regard to the demographic characteristics of the audience of the relevant program. Listeners of the Hot 30 Countdown are used to hearing discussions regarding this type of cheeky subject matter and therefore we do not believe it would offend their accepted standards of decency. With regard to the use of unjustified language: the word ‘nipples’ is a correct anatomical term and is not in and of itself offensive. It was also only used once in the Segment which, given the subject matter that was being discussed, is not unjustified.

[...]

Whilst I understand you have many concerns over the content of the Segment please know that the Segment was pre-recorded and discussed amongst the Hot 30 team prior to it being aired, these discussions included both the presenters, and all parties involved were willing participants to the Segment. Please be assured that [A] in no way felt pressured to take part in a photo shoot for [the magazine] and she understood that the Segment was simply slightly puerile comedy.

[...]

Issue 1: Proscribed matter

Relevant Code

1.1 A 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 ... gender.

Interpretation

Codes 1.1(e) and 1.2 shall be interpreted according to the principles in case law that apply to the interpretation of corresponding legislation.

Having established what the ordinary reasonable listener would have understood the content to have conveyed, the ACMA adopts the general approach set out below, when assessing whether a broadcast breaches clause 1.1(e) of the Codes.

‘Likely ’

The word ‘likely’ has been interpreted to mean something that is a real and not a remote possibility or something which is probable[.][5] There need only be a real possibility of a program inciting hatred against or serious contempt for or severe ridicule of a person or group of persons for a breach of clause 1.1(e) to be found.

‘Incite’

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

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

incite verb to 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[. There is no need to establish that there wa]s a specific intention to incite the reactions or to prove that anyone was actually incited. However, the use of words that merely convey hatred, serious contempt or severe ridicule towards a person, is not incitement. There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.

‘Hatred’ , ‘serious contempt’, ‘severe ridicule’

The Macquarie Dictionary (5th Edition) includes the following definitions:

hate

verb, hated, hating.

verb (t)

1.to regard with a strong or passionate dislike; detest.

2.to dislike; be unwilling: I hate to do it.

3.to feel hatred.

[…]

serious adjective 5. weighty or important; 6. giving cause for apprehension; critical

contempt noun1. the act of scorning or despising; 2. the feeling with which one regards anything considered mean, vile or worthless

severe adjective1. harsh, harshly extreme

ridicule noun1. words or actions intended to excite contemptuous laughter at a person or thing, derision

‘Because of’

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

This means there must be a causal connection between the gender of the person or group and the feelings of hatred, serious contempt or severe ridicule which are likely to be incited by the public act, that is, the broadcast[.]

The Guidelines

In order to ‘assist in understanding and meeting the objects of Code 1.1(e)’, specifically where allegations relate to the portrayal of women, broadcasters are encouraged to consult the Guidelines. Relevantly, the Guidelines state:

In the portrayal of women on commercial radio, broadcasters should avoid promoting or endorsing inaccurate, demeaning or discriminatory descriptions of women.

1. Do not place undue emphasis on gender and resisting stereotyping.

• Sexist language is language that unnecessarily excludes one sex or gives unequal treatment to women and men.
• Negative or inequitable sex-role portrayal refers to language, attitudes or representations which tend to associate particular roles, modes of behaviour, characteristics, attributes or products to people on the basis of gender, without taking them into consideration as individuals.
• Examples of non-sexist language are:

 Leader, chair not chairman

 Police officer not policeman

 Fire fighter instead of fireman

 Sales representative not salesman

 Business executive not businessman

1. Ensure that reporting and ‘on-air’ discussions respect the dignity of women and are non-exploitative.

• Avoid expressions that infer that a person is inferior because she is a woman, or that men have exclusivity, i.e. ‘that’s a man’s job’ or ‘a woman wouldn’t understand that’, ‘it’s a man’s world’ (the tone of voice can cause more offence than the actual remark).
• Avoid the use of overt sexual references in relation to a woman’s physical characteristics which have no relevance to the issue under discussion.

[...]

Finding

The program 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 Hot 30 Countdown on 28 April 2010.

Reasons

Identification of relevant person or group and relevant basis

The delegate is satisfied that, as the focus of the segment was on getting the female host to pose in a sexualized manner in a magazine aimed at men, the relevant target was an individual, and the relevant basis was gender.

Was the broadcast likely, in all of the circumstances, to incite hatred, serious contempt or severe ridicule?

Clause 1.1(e) of the Codes prohibits a licensee from broadcasting programs which, ‘in all of the circumstances, is likely to incite hatred against, serious contempt for, or severe ridicule of, a person or group of persons because of ... gender’.