Investigation Report No. 3130
File no. / ACMA2013/1541Licensee / Radio East Gippsland Incorporated
Station / REGFM (East Gippsland RA1)
Type of service / Community radio broadcasting service
Issues /
- causealarm, shock or distress
- consider prevailing community standards
- demeaning persons or groups on the basis of gender
- conscientiousconsideration of complaints
- responding to complaints
Relevant codes / Community Radio Broadcasting Codes of Practice 2008
- Code 3.2 (cause alarm, shock or distress; consider prevailing community standards)
- Code 3.3 (broadcast material that demeans on the basis of gender)
- Code 7.3(b) (conscientiously consider complaints)
- Code 7.3(c) (respond to complaints within 60 days)
Date finalised / 23 January 2014
Decision / No breach of Code 3.2 of the Community Radio Broadcasting Codes of Practice 2008[consider prevailing community standards]
No breach of Code 3.3 of the Community Radio Broadcasting Codes of Practice 2008[demean on the basis of gender]
Breach of Code 7.3(b) of the Community Radio Broadcasting Codes of Practice 2008 [conscientiously consider complaints]
Breach of Code 7.3(c)of the Community Radio Broadcasting Codes of Practice 2008[respond to complaints within 60 days]
The complaint
The Australian Communications and Media Authority (ACMA) received a complaint on 28 October 2013 alleging that on 26 July 2013 Radio East Gippsland Incorporated, the licensee of community broadcasting service 3REG, demonstrated a total disregard for the issue of domestic violence by broadcasting material that either trivialised or condoned such violence.
The complainant also alleged that 3REG had failed to take any action in response to a complaint made to 3REG on 26 July 2013 that concerned the same broadcast.
The service
3REG is a community broadcasting service serving the General community interest in the East Gippsland RA1 licence area. East Gippsland RA1 is located in eastern Victoria and is centredon the townships of Bairnsdale and Lakes Entrance. There was a population of 33,000 in the licence area in 2006.
The 3REG service has been provided since October 1992.
Assessment
The ACMA’s assessment is based on submissions from the complainant(dated 28 October 2013) and the licensee (dated 6 November 2013).
Complainant’s submissions
The complainant stated that:
Please find following my complaint Email to REG FM and their response.
There has been no action or follow up from the station.
In making the complaint to 3REG, the complainant made the following statements:
I wish to register my shock and distress and make a complaint in relation to the comment just made by your on air announcer [xxx].
At 4:11pm on Friday July 26 2013, on air announcer, [xxx] made reference to the 4pm news. He said: "did you hear the 4 o'clock news? You can't smack your children now. I guess I'll have to revert to smacking my wife"
This statement shows a total lack of respect for women and a total disregard to the sensitive issue of domestic violence.
This statement reinforces the attitude that domestic violence is at best something to be trivialised or at worst something to be condoned.
I would appreciate your investigation and action.
Licensee’s submissions
The licensee provided the following statement to the ACMA:
There was an internal misunderstanding as to who would action this matter. As [xxx], I understood I was to deal with the presenter concerned, and [xxx] would communicate with the complainant. [xxx], who left for overseas shortly after the meeting was under the impression I would deal with both. I also concede some ambiguity in the recording of the matter in the minutes for that meeting (attached).
I have had a conversation with presenter involved, who understands the comments were inappropriate and now has an understanding of what is, and is not acceptable.
The licensee provided an audio recording of the two relevant components of its 26 July 2013 broadcast.
(1) Transcript of item broadcast as part of the 4.00pm news bulletin:
New South Wales Premier Barry O’Farrell has dismissed calls to make the smacking of children illegal, saying it would be impossible to police. The Royal Australian College of Physicians has today called for laws to be introduced that protect children from any form of physical punishment but Mr O’Farrell says it would be too hard to enforce. Associate Professor at the College, Susan Maloney, has told the ABC smacking does not work as a form of discipline.
“It might stop something happening in the very short term but it doesn’t teach children why they’ve done the wrong thing and we know children who are smacked as children have increased mental health and general health problems as adults. So for our kids and our community we need to make them as safe, secure and as good as possible for our community and so that’s why we’re calling for parents to use alternative forms of discipline.”
(2) Transcript of broadcast of comments made by the 3REG presenter:
Well did you hear the four o’clock news? You’re not allowed to smack your children anymore. I might have to revert to smacking my wife instead. What has the world come to? And .... (laughing) .... coming up, ......
The licensee also provided minutes of a meeting of the 3REG Board held on 13 August 2013 that indicated that the complaint had been considered and actioned.
Issue 1: In avoiding censorship did the licensee fail to consider community standards or the possibility of alarming, shocking or causing distress to the listener?
Relevant provisions of Community Radio Broadcasting Codes of Practice 2008
Code 3: General Programming
3.2
We will attempt to avoid censorship where possible. However, in our programming decisions we will consider our community interest, context, degree of explicitness, the possibility of alarming the listener, the potential for distress or shock, prevailing Indigenous laws or community standards and the social importance of the broadcast.
Finding
The licensee did not breach Code 3.2 of the Community Radio Broadcasting Codes of Practice 2008.
Reasons
When commenting on the news story involving the proposed criminalisation of smacking children,the remarks made by the 3REG presenterwere critical of the proposal and made light of what would be hisalternativeunder such a scenario, that of reverting to smacking his wife. The remarks were ironic in tone and were framed as a form of sarcastic lament from a (seemingly habitual) smacker over the restrictions that would be placed on his personal domestic freedoms by over-protective and intrusive state legal institutions.It is unlikely that the presenter’s comments were intended to be taken literally (i.e. that he would actually start smacking his wife) by the listener or even as an actual endorsement of spousal physical assault. It appears that the presenter’s use of irony was intended to highlight his opinion that thesocial debate about the propriety of smacking childrenwas without merit and that such behaviour shouldn’t be the target of state legal sanctions. This interpretation of the presenter’s comments is reinforced by hisconcluding lament “Whathas the world come to?”
The smacking of children is a contested social issue that periodically has become the subject of debate in the media. The contested nature of the issue is illustrated by the opposing viewpoints encapsulated within the news story itself. The presenter’s comments further underscored the contested nature of the issue, albeit from one particular (i.e. his) viewpoint.
The prevailing community standard is that spousal domestic violence is a serious social issue. The rhetorical device used by the presenter to make his point concerning the smacking of children is likely to have been viewed as being in bad taste by some or possibly many listeners. Making light of the issue of spousal domestic violence is likely to be offensive to some or even many listeners and may well also be contrary to the prevailing community standard in that regard. However, although not humorous to those who find the comments offensive, it does not necessarily follow that those same listeners would experience alarm, shock or distress, although this may be so for some (including the complainant).
Code 3.2 is concerned with a general principle of the avoidance of censorship, a principle that is qualified by considerations of “community interest, context, degree of explicitness, the possibility of alarming the listener, the potential for distress of shock, prevailing Indigenous laws or community standards and the social importance of the broadcast.” These considerations act to limit the permissiveness of the general principle. So the question in this instance is whether or not they should havebeen applied to prevent the comments from being broadcast.
The possibility that the broadcast would alarm, distress or shock is probably low. Although contrary to community standards concerning spousal violence the broadcast was a short, live-to-air, satirical comment on a news item heard shortly beforehand. Within such as a context,although in poor taste and offensive to some listeners, the broadcasting of the comments is not contrary to Code 3.2.
Issue 2: Did the licensee broadcast material that demeaned on the basis of gender?
Relevant provisions of Community Radio Broadcasting Codes of Practice 2008
Code 3: General Programming
3.3
We will not broadcast material that is likely to stereotype, incite, vilify, or perpetuate hatred against, or attempt to demean any person or group, on the basis of ethnicity, nationality, race, language, gender, sexuality, religion, age, physical or mental ability, occupation, cultural belief or political affiliation. The requirement is not intended to prevent the broadcast of material which is factual, or the expression of genuinely held opinion in a news or current affairs program or in the legitimate context of a humorous, satirical or dramatic work.
Finding
The licensee did not breach Code 3.3 of the Community Radio Broadcasting Codes of Practice 2008.
Reasons
As discussed under Issue 1 above, the presenter made light of spousal domestic violence for rhetorical purposes. In seeking to provide commentary about one matter (smacking children) the presenter trivialised and devalued the seriousness of another matter (spousal violence) by making it the subject of humour. By doing so, the presenter could also be seen to have devalued married women who are the targets of such violence.It is therefore arguable that married women generally were demeaned by the presenter’s attempt at humour.
However, although it is arguable that the broadcast demeaned married women or women who are the target of spousal violence, the broadcast occurred within the context of commentary that attempted to use humour(as argued above) as rhetorical device – even though some or many listeners may not have found it funny. That the (attempted) humour was a device intended to facilitate comment on a contemporary and contested social issue might also serveto increase its permissibility under theexemption clause expressed at the end of this code:
The requirement is not intended to prevent the broadcast of material which is factual, or the expression of genuinely held opinion in a news or current affairs program or in the legitimate context of a humorous, satirical or dramatic work
Issue 3: Did the licensee conscientiously consider the complaint?
Relevant provisions of Community Radio Broadcasting Codes of Practice 2008
Code 7: Complaints
7.3 We will ensure that:
(b) complaints will be conscientiously considered, investigated if necessary, and responded to substantively as soon as possible,
Finding
The licenseebreachedCode 7.3(b) of the Community Radio Broadcasting Codes of Practice 2008.
Reasons
It appears that the licensee did consider the substance of the complaint as it had advised the complainant it would when it first acknowledged receipt of the complaint on 26 July 2013. This consideration occurred during a meeting on 13 August 2013 and resulted in the presenter being advised of the inappropriateness of his comments. It appears that the complaint was conscientiously considered by the licensee.
However, because of a failure of internal organisation, the complaint was never responded to substantively.
Issue 4: Did the licensee respond to the complaint within 60 days of receipt?
Relevant provisions of Community Radio Broadcasting Codes of Practice 2008
Code 7: Complaints
7.3 We will ensure that:
(c) complaints will be responded to in writing within 60 days of receipt, as required by the Act, and the response will include a copy of the Codes
Finding
The licensee breachedCode 7.3(c) of the Community Radio Broadcasting Codes of Practice 2008.
Reasons
A complaint has not been responded to until the complainant has been advised of the outcome of the licensee’s consideration of the complaint. The 60 day timeframe is not a timeframe in which simple written acknowledgement of receipt of the complaint sufficient. Mismanagement of the complaint within the licensee’s organisation led to the failure to provide a full response to the complainant with 60 days.
ACMA Investigation Report – REG FM – Compliance with Codes of Practice1