1
Investigation Report 2502
File No. / ACMA2010/2097Licensee / Austereo Group Ltd
Station / 3FOX (Melbourne)
Type of Service / Commercial Radio
Name of Program / Matt & Jo Breakfast Show
Date of Broadcast / 1 October 2010
Relevant Legislation/Code / Clause 1.1(e) of the Commercial Radio Australia Codes of Practice 2010
Date Finalised / 22 March 2011
Decision / No breach of clause 1.1(e) (hatred, contempt or ridicule)
The complaint
On 15 October 2010, the Australian Communications and Media Authority (‘the ACMA’) received a complaint regarding a breakfast show segment broadcast on 1 October 2010 by Austereo Pty Ltd, the licensee of 3FOX. The complaint to the ACMA included the licensee’s response to the complainant’s allegations.
The segment featured two apparently heterosexual males who kissed as part of a competition, in order to win tickets to the AFL Grand Final. The announcers then discussed the experience with the contestants.
The complainant alleges that the segment ridiculed same ‘same sex attraction and the intimacies between same sex couples’, presenting material that was likely to incite severe ridicule of persons because of their sexual preferences. The complainant referred the matter to the ACMA for investigation.[1]
The complaint has been investigated in accordance with clause 1.1(e) [proscribed matter] of the Commercial Radio Australia Codes of Practice 2010 (the Codes).
Matters not pursued
The complainant also wrote:
‘Video footage was posted on the Fox FM website with accompanying posts on their facebook page ... Fox FM’s facebook page highlights how they chose to promote the idea of two men kissing as something disgusting and unsettling with posts of; “Unless you’ve got a really weak stomach check out the video here ...’ and ‘now sit back and enjoy the awkwardness as (the contestants)... pash’.
While some information in relation to the broadcast was presented on the licensee’s facebook page, online content is not subject to the operation of the Codes. Similarly, on-line video content appearing on the licensee’s website, being video footage of the broadcast is not subject to the operation of the Codes.
The program
The Matt & Jo Breakfast Show is a music-based radio program with talk and comedic elements hosted by Matt Tilley, Jo Stanley and Troy Ellis, broadcast on the licensee weekdays from 6:00 am – 9:00 am. [2]
In the segment of 1 October 2010, the contestants are introduced and Matt says, ‘well let’s get to it and find out, we have the girlfriends here as well ... lads we have two grand final tickets, they’re yours for the taking if you fulfil this little challenge we have for you’. Jo says ‘it’s very simple’. The girlfriends would also receive a prize, being a shopping spree to be used while the contestants are at the AFL grand final. Matt says, ‘all you need to do boys is pash for ten seconds’.
According to the Macquarie Dictionary, pash means ‘a session of passionate kissing, especially French kissing’ or ‘a long passionate kiss’. [3] This exchange follows:
Male 1:I’ll do it.
Girls:You can do it ... come on you can do it ... come on come on
Matt:OK, so [Male 1]’s in, [Male 2]’s freaking out.
Jo:[Male 2]’s not sure.
Male 2:With tongue?
Matt:Yes, open mouth, not just on the lips.
Jo:Yeah ... open mouth ... full pash.
Matt:[Male 2] we need to hear from you.
Male 2:Yeah ... I’m in. [cheering]
Girl 1:He’s doing it.
Jo:Yes, he’s in.
Girl 2:You can do it ... you can do it
Male 2:Listen ... can I pass this one onto the girls ... to do?
Jo:Well ... are the girls in? Are you OK with this?
Girl 1:Well yeah ... [inaudible]
Matt:You don’t have to do it.
Jo:No, you aren’t pashing, come on.
Matt:No, you’re not pashing, but neither one is saying hang on that’s not right, he’s with me (with an upward vocal inflection).
[...]
Matt:Are you girls excited by this?
Girl 2:We want these tickets and the shopping spree!
Male 1:Course.
Matt:Well ... [Male 2] and [Male 1], mates since year eight. They’ve been through alot together but they will never forget the day they tongue pashed for ten seconds. And look at it, [Male 1]’s panicking, he wants out.
Jo:He’s bright red in the face.
Girl:Just give it a go.
Matt:We’ve got some other mikes being held so people can hear the sloppy sounds of mate love.
Jo: I imagine this will be the longest ten seconds in your life.
Matt:Bromance. [4]
Jo:Now [Male 2], you’ve got a piercing too have you not so just watch out for that there [Male 1].
Matt:Yeah through his lip.
Male 2:I do.
Jo:Don’t wanna get caught on his lip.
Girl 2:Just think of the tickets.
Matt:Boys as soon as you start, we’ll start the clock. If you pull out before the ten seconds, the tickets do not come your way [inaudible]
Male 2:Do you want to put the tongue in?
Male 1:Do you want to do it?
Male 2:I wanna go to the grand final.
Male 1:Yeah ... I know ... I wanna go too.
Matt:Well that’s [Male 1] the Saints fan saying he really wants to do it [laughter]
Jo:[Male 2]’s really not so sure.
Male 2:If it was a Carlton game I would um ... like ... for sure ... [inaudible]
Male 2:... this one’s awe ... awe man [laughter]
Matt:And now you’re screwing up your face [Male 1], you’re looking away ...
Male 2:Can we do it with our girlfriends?
Jo:Naw.
Matt:No. Alright boys, the moment has come, we need a decision.
Jo:You gotta go for it.
Girl 1:Come on.
Matt:Soon as you start we’ll start the clock, and after ten seconds we’ll say stop. I’m not going to let this go on into crazy love [laughter]
Male 2:I don’t know I don’t know.
Girl 1:Come on come on.
Male 1:Do you want to do it?
Girl 1:Just think of me.
Girl 2:Yes just think of us, please.
Male 2:Oh man.
Male 1:If they can do it on American Pie, then why not, huh? [5]
Girl 2:Actors do it all the (beep) time.
Male 2:Alright I’m ready to start.
Jo:You’re ready?
Girl 1:Close your eyes close your eyes.
Matt:Tongue must be firmly between the teeth to win the tickets [sound of clock ticking]
Girl 1:Go go go [laughter]
Matt:Open mouth boys [laughter]
Matt:Five seconds to go ... four ... tongue ... three ... done[sound of a buzzer] [screams]
Matt:Now [Male 1]’s gone bright red. [Male 2]’s spitting on the floor.
Male 1:Uh ... uh
Male 2:They better be good seats.
Matt:[Male 2] you’re wiping your mouth with your wind cheater. You’ve really (sic) quite revolted by that. What did it taste like? Had he brushed his teeth?
Male 2:Yeah he had, oh he had, oh man, I hope my dad doesn’t hear this [laughter]
Matt:So it was like a minty fresh kiss? [laughter]
Jo:Isn’t that lovely.
Matt:... your girlfriend.
Jo:... who needed a shave ... um ... but that’s OK [laughter]
Matt:[Male 1] when you tell your mates, your fellow Saints fans ‘oh I’m going to the big one’ and they ask how’d you get tickets, you’re gonna say ...
Male 1:I just won them [laughter]
Male 2:We’ll leave the small details out.
Matt:Well you’re going boys!
Male voices:Yes! [laughter]
Matt:And it’s over now. It’s over ... it’s going to be on the internet but it’s over.
Male 2:Oh man.
Jo:(in a shrill high pitched voice) you nearly spewed.
Male 2:It takes alot to make me vomit but that’s pretty close.[laughter]
Matt:Oh everyone’s focusing on [Male 2]’s pain. [Male 1] did this for the Saints and he’s starting to get little ... salt ... you know ticks in his face and stuff.
Male 2:And when my girlfriend complains about me having a beard ...
[...]
Matt:Big day guys.
Male voices:Thank you ... thank you very much.
[end]
Assessment
The assessment is based on an audio file copy of the material broadcast provided by the licensee, and submissions from the complainant and the licensee. Other sources are identified where relevant.
Ordinary reasonable viewer
In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable viewer’.
Australian courts have considered an ‘ordinary, reasonable 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.[6]
The ACMA asks, what would the ‘ordinary reasonable viewer’ have 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 ACMA to determine whether the material has breached the Code.
In this case, the ACMA is satisfied the ‘ordinary, reasonable viewer’ would have understood the broadcast segment to present a humorous competition in which apparently heterosexual males were required to kiss in a passionate, sexualised manner.
Issue: Proscribed matter
Relevant Codes
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
Code 1.1(e) shall be interpreted according to the principles in case law that apply to the interpretation of corresponding legislation.
Complainant’s submissions
The complainant submitted the following to the ACMA:
Fox FM chose to hold a competition for grand final tickets which involved two obviously heterosexual male friends that had to kiss for a given time in order to win. The Matt & Jo show aired it on their breakfast show in a specific segment called ‘the segment’.
[...]
The use of same sex kissing as something to be ridiculed or disgusted by is an unacceptable way to promote or conduct a competition.
[...]
Claiming that this is simply a ‘fish out of water” concept doesn’t stand up as they could have had the boys kiss an inanimate object that made them feel uncomfortable, instead they chose to play on the heteronormative concept that same sex kissing is seen as something out of the ordinary. They made a specific choice which sought to highlight the notion that two men kissing is not normal, and stomach turning. This is an offensive way to portray same sex intimacies.
[...]
This is not simply about a matter of taste, it is a matter of using long standing hierarchies to inadvertently poke fun at those who don’t enjoy the freedom of being able to fully and publicly express their sexuality.
This is not socially responsible content, it ridicules same sex intimacies and therefore lifestyles. I do not accept the station’s standpoint that this doesn’t contribute to the marginalising of same sex attracted lifestyles.
... homophobia doesn’t happen to corporations, it happens to people and it is reinforced by senseless acts such as these that normalise the idea that anything other than heterosexual is odd, laughable and disgusting.
The complainant had earlier submitted the following to the licensee:
A competition “mates pash for grand final tickets” which involved two men kissing on air (is a) ... stunt (that) clearly ridiculed the idea of same sex attraction and the intimacies between same sex couples. In outlining the apparent horror of a same sex kiss, this promotion and the presenters of the program (Matt & Jo) acknowledged to the wider community that it is ok to deride same sex intimacies. Matt stated to one of the young me, “You were really quite revolted by that’ with Jo then adding “You nearly spewed’, all then laughing.
[...]
This promotion has contributed to the already mounting heteronormative assault via mainstream media that assures same sex attracted people are marginalised, ridiculed, and seen as other than normal. It is not ok to use a same sex attracted kiss as some kind of ridiculous and revolting dare to win tickets, this simply highlights to non-same sex attracted people that ridiculing same sex attracted is ok...
Licensee’s submissions
The licensee submitted to the complainant:
Thank you for your correspondence dated 4 October 2010 providing feedback in relation to Fox FM’s Matt & Jo Show’s opportunity to win grand final tickets broadcast on October 1, 2010 (“the Segment”).
I am sincerely sorry if the Segment has caused you any offence as this was not the intention. The Segment was based on the simple concept of “fish out of water”, where people are placed in situations they are unaccustomed to. It was not intended to be a judgment on lifestyle, nor a Segment that sought to ridicule gay or straight people in any way. The Segment was intended to see how far a person would go for tickets to the AFL grand final, by placing them in an unfamiliar situation and seeing how they would react.
[...]
Rather than ridiculing the participants, Matt and Jo actually pointed out that it’s just a kiss – and their remarks that one contestant seemed “revolted” and “nearly spewed” were just a reflection of that contestant – not the wider community. Nor was it (a reflection of) their own feeling(s) to such intimacy or lifestyles.
I do acknowledge that in the pursuit of creativity or comedy, what appeals to some people may inadvertently offend others and I truly regret that you feel the Segment contributed to the marginalising of same sex attracted people in our society. Please be assured that was not the intent of the Segment and your comments have been taken seriously and passed to the Content Director of FOX FM to consider when planning any future programming.
[...]
Thank you for taking the time to write to me. Once again I sincerely apologise for any concern caused...
Finding
The licensee did not breach clause 1.1(e) of the Codes for the broadcast of the Matt & Jo Breakfast Show on 1 October 2010.
Reasons
Identification of the relevant group and ground
The humour of the segment is derived from the same sex kiss, the awkward interactions between the males following the kiss, and the announcers’ comments regarding the kiss, which took place despite the apparent heterosexuality of the males. Accordingly, the delegate is satisfied that the homosexual community is the relevant group for the purposes of clause 1.1(e) of the Codes and the relevant ground is sexual preferences.
Did the program in all the circumstances incite hatred against, or serious contempt for, or severe ridicule because of sexual preference?
Is likely to incite
Incitement can be achieved though 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 was a specific intention to vilify or to prove that anyone was actually incited[7]. However, the use of words that merely convey hatred 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[8].
In this case, the premise of the segment was to encourage two individuals to undertake an activity which caused them great personal discomfort in order to win a reward - a ten second kiss of a sexual or passionate nature, being with ‘open mouth ... (a) full pash’. This kiss was portrayed as a source of discomfort as it was to take place between heterosexual male friends, and would represent a symbol of homosexual attraction, or romantic attachment between these males. One contestant was also concerned about his father’s reaction to the kiss and said on air ‘oh man, I hope my dad doesn’t hear this’.
The delegate considers that thebroadcast relies on a number of underlying assumptions in order to create its ‘fish out of water’ concept, which according to the licensee is the basis of the broadcast. Same-sex attraction and relationships are presented as abnormal or out of the ordinary. The ‘pash’ between two males is presented as distasteful and undesirable. The contestants’ awkward and uncomfortable reaction in advance of and following their kiss, including their apparent disgust, is presented as humorous and it prompts laughter throughout the program.Their reaction also includes elements of revulsion (‘[male 1]’s gone bright red, [male 2]’s spitting on the floor’, ‘quite revolted by that’, ‘you nearly spewed’ ‘it takes a lot to make me vomit’ ‘[male 2]’s pain...ticks in his face and stuff’).
The complainant describes this as being linked to ‘heteronormative’ concepts.
Heteronormative culture has been described as privileging heterosexuality ‘as normal and natural’ and fostering ‘a climate where lesbian, gay, bisexual, asexual, transgender and other individuals are ‘discriminated against in marriage, tax codes, and employment’. [9] Under a heteronormative culture heterosexuality is the normal sexual orientation, and sexual and marital relations are most (or only) fitting between a man and a woman. According to the complainant, this heteronormative culture is also reinforced by the media in material such as the broadcast segment.