Investigation Report No. BI-259

Investigation report no. BI-259

Summary /
Licensee / Cairns Broadcasters Pty Ltd /
Station / 4CA /
Type of service / Commercial broadcasting—radio /
Name of program / Mornings with John MacKenzie /
Date of broadcast / 17 June 2016 /
Relevant code / Commercial Radio Australia Codes of Practice & Guidelines September 2013 /
Date finalised / 28 October 2016 /
Decision / No breach of Code 1.1(e) [provoke severe ridicule on basis of race]
No breach of Code 1.3(a) [offend generally accepted standards of decency] /

Background

In September 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 170 of the Broadcasting Services Act 1992 (the BSA) into Mornings with John MacKenzie, broadcast on 4CA by Cairns Broadcasters Pty Ltd (the licensee) on 17 June 2016.

The ACMA received a complaint alleging that a guest on the program made a ‘racist and bigoted attack’ on the President of the United States, Barack Obama (President Obama).

The ACMA has investigated the licensee’s compliance with Codes 1.1(e) and 1.3(a) of the Commercial Radio Australia Codes of Practice & Guidelines September 2013 (the Codes).

The program

Mornings with John MacKenzie is a talkback radio program, described as:

John MacKenzie - 'The Voice of the North' known to most of his talkback callers as 'Macca'.

Cairns locals have relied heavily on John MacKenzie to have their issues heard. Without Macca, they would have no-one to listen to them and put it out there for them.

John's passion for Cairns and Far North Queensland is well-recognised by the community. His dedication to get things done, and make politicians accountable is an everyday challenge. There is always such great satisfaction when most of these issues are accomplished.[1]

The relevant material concerned a segment of the program in which Mr MacKenzie discussed various issue with Mr John-Michael Howson, a regular guest of the program.

A transcript of the segment is at Attachment A.

Assessment and submissions

When assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone and any inferences that may be drawn. 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.[2]

Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Codes.

This investigation has taken into account the complaint (at Attachment B). The licensee did not provide submissions to the investigation. Other sources are identified as relevant.

Issue 1: Proscribed matter

Relevant Code provision

Code of practice 1: Programs unsuitable for broadcast

Purpose

The purpose of this Code is to prevent the broadcast of programs which are unsuitable having regard to prevailing community standards and attitudes.

Proscribed Matter

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 age, ethnicity, nationality, race, gender, sexual preferences, religion, transgender status or disability.

[…]

1.2 Nothing in sub-clause 1.1 prevents a licensee from broadcasting a program of the kind or kinds referred to in those sub-clauses if the program:

(a)  is presented reasonably and in good faith for academic, artistic (including comedy or satire), religious instruction, scientific or research purposes or for any other purposes in the public interest, including discussion or debate about any act or matter.

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.

Finding

The licensee did not breach Code 1.1(e) of the Codes.

Reasons

To assess compliance in this case, the following questions are addressed:

  Did the program identify a person or group of persons on a relevant basis?

  Was the program likely to incite hatred against, serious contempt for, or severe ridicule of that person or group of persons on that basis?

The complainant submitted:

Mr. Howson on this occasion has stepped well over the line by referring to the US President Barack Obama as “that piece of chocolate that’s the President”, and then launched into an attack on President Obama’s character.

Did the program identify a person or group of persons on a relevant basis?

The ordinary reasonable listener would have understood that the reference to President Obama as ‘that piece of chocolate’ was a reference to his skin colour. The ACMA is satisfied that the person identified for the purposes of Code 1.1(e) is President Obama and the relevant basis is race.

Was the segment likely to provoke or perpetuate in a reasonable person intense dislike, serious contempt or severe ridicule against the relevant person or group on that basis?

Incitement

For a breach finding, the material broadcast must be capable of urging, stimulating, or encouraging listeners to share feelings of hatred, contempt or ridicule. Material that merely conveys a person’s own negative feelings towards a person or their actions will not necessarily be a breach of the Codes.

The relevant material is a brief comment referring to President Obama as ‘that piece of chocolate’. This comment by Mr Howson was made in the context of providing Mr Howson’s assessment of President Obama’s response to violent acts by “Islamic terrorists”.

There were no further comments from Mr Howson concerning President Obama in the segment. The host Mr MacKenzie did not acknowledge Mr Howson’s reference to President Obama.

It is clear that Mr Howson used the word ‘chocolate’ in a racially derogatory manner in order to express his disapproval of what he considered to be President Obama’s unwillingness to attribute violent acts to Islamists. The word ‘chocolate’ in this context portrayed the speaker’s highly regrettable attitude and choice of words and expressed a level of contempt for President Obama based on the colour of his skin. However, the comment did not urge, stimulate or encourage listeners to share feelings of hatred, contempt or ridicule towards President Obama based on his skin colour. The ACMA considers that the requisite degree of incitement was absent from the comments.

Hatred, serious contempt or severe ridicule

Code 1.1(e) contemplates a very strong reaction to the broadcast and sets a high test for the proscribed matter. The use of the adjectives ‘serious’ and ‘severe’ in Code 1.1(e) contemplates that it is not sufficient that the broadcast induces a mild or even strong response.

In this case, the content contained a level of criticism and disparagement of President Obama that was likely to be offensive to many in the community, including the complainant.

However, within the segment there was no explicit discussion or criticism of people based on their race. Any incidental provocation to share negative feelings toward President Obama on the basis of race was not strong enough to provoke the audience response required for there to be a breach of Code 1.1(e).

Accordingly, the licensee did not breach Code 1.1(e) of the Codes.

Issue 2: Generally accepted standards of decency

Relevant code provision

Code of practice 1: Programs unsuitable for broadcast

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) Program content must not offend against 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 purposes of determining:

(i) the audience of the relevant program; and

(ii) the demographic characteristics of that audience,

regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the prior 12 months, (or, in the case of any licensee service operating in regional areas, the most recent official ratings surveys for the licensee’s service).

Finding

The licensee did not breach Code 1.3(a) of the Codes.

Reasons

Consideration of prevailing community standards and generally accepted standards of decency.

In previous investigations of compliance with the decency provision of the Codes, the ACMA has considered:

  the subject matter or themes dealt with: for example, care needs to be taken with material that is sexually explicit or extremely sensitive[3]

  the tenor or tone of the broadcast: for example, was it light-hearted or threatening, matter-of-fact or salacious[4]

  the language used in the broadcast: for example, was it abusive, vulgar or lewd[5]

  the attitudes conveyed: for example, did they display a contemptuous disregard for human life or suffering.[6]

The ACMA has indicated that material will not offend against generally accepted standards of decency simply because it has ‘shock value’, is distasteful or has the effect of making a person feel uncomfortable.[7] In deciding whether a breach has occurred, the ACMA will reflect on whether material offends against generally accepted standards to the extent that it is unsuitable for broadcast.

To assess compliance in this case, the following questions are addressed:

  What would the ordinary reasonable listener have understood the material to convey?

  What are the demographic characteristics of the audience?

  In light of the above, did the material offend against any generally accepted standards of decency?

The complainant submitted the following complaint to the licensee:

Mr. Howson on this occasion has stepped well over the line by referring to the US President Barack Obama as “that piece of chocolate that’s the President”, and then launched into an attack on President Obama’s character.

What would the ordinary reasonable listener have understood the material to convey?

Context, subject matter and what it conveyed

The whole segment was approximately 18 minutes in duration and consisted of host Mr MacKenzie and guest Mr Howson discussing a range of topics, including a mass shooting at a nightclub in Orlando, Florida, political correctness, upcoming movie and theatre releases, the Tony Awards and Prime Minister Malcolm Turnbull. At one point Mr Howson expressed his frustration with political correctness which he considered had prevented people from speaking freely about violent acts by “Islamic terrorists”. In doing so, Mr Howson referred to President Obama as ‘that piece of chocolate’.

A listener would have understood that the material was a personal comment about President Obama in a segment where Mr Howson provides his personal opinions as well as news and information.

Language and tone

The ACMA considers that while the comment was extremely regrettable, crudely expressed and insensitive, it was made within the context of Mr Howson providing his personal opinion regarding what he considered to be President Obama’s excessive sensitivity in response to violent acts by Muslims.

In this context, the brief comment was not threatening, abusive, vulgar or contemptuous to the extent that it was unsuitable for broadcast.

What are the demographic characteristics of the audience?

The decency provision of the Codes requires that regard is had to the demographic characteristics of the audience of the relevant program. For the purposes of determining the demographic characteristics of the audience, regard must be had to the results of any official ratings surveys of the licensee’s service in the past 12 months.

The ACMA examined audience research survey results provided by Commercial Radio Australia relating to the Cairns regional radio market. [8]

The most recent survey covered the period from 6 May 2016 to 4 June 2016. The survey indicates that 4CA has strong appeal to adults over 55 years of age, with the second highest Cume (55-64 and 65+)[9] audience in Cairns across that age range.

In considering compliance with Code 1.3(a) of the Codes, one of the relevant characteristics of the audience of the program involves the likely expectations of that audience.

The ACMA accepts that the audience of Mornings with John MacKenzie would have been familiar with the, at times, confrontational and irreverent style of the host and his guests, as well as the nature of the language frequently used on the program. However, it notes that information about the audience’s age, gender and familiarity with a regular segment does not necessarily indicate the attitudes of that group to the content that ultimately went to air. Audience familiarity also does not necessarily mean that content does not offend against generally accepted standards to the degree that it is unsuitable for broadcast.

In light of the above, did the material offend against any generally accepted standards of decency?

The ACMA notes that the comment was not threatening or abusive; it did not contain, for example, material that was sexually explicit or otherwise extremely sensitive; it was not overly vulgar in its use of language and it did not convey contemptuous disregard for human life or suffering. In short, it was not of such a character that it was entirely unsuitable for broadcast. For that reason, while representing a highly regrettable attitude and choice of words, the ACMA finds that the licensee did not breach Code 1.3(a) of the Codes.

Having said that, the ACMA notes the community standards safeguarded by Code 1.3(a) have and will continue to vary over time and in alternative circumstances, comments that are ill-conceived and in poor taste may be so offensive that they are unsuitable for broadcast[10].

Attachment A

Transcript of Mornings with John MacKenzie, broadcast on 4CA on 17 June 2016

The relevant part of the segment is as follows:

Mr MacKenzie: It’s interesting that political correctness has come to this. Fundamentally it’s become a gag on freedom of speech.

Mr Howson: Of course it has. It makes people frightened to talk out because they’re going to be called a racist or they’re going to be called something, I don’t know. You know, you can see what – the stuff that’s been heaped on Donald Trump, who is the only politician, like him or loathe him who is actually telling the truth in the United States.