Investigation Report No. 3242
File No. / ACMA2014/642Licensee / Gold Coast FM Pty Ltd
Station / 4GLD
Type of Service / Commercial Radio
Name of Program / Jason and Nelly
Date of Broadcast / 24 April 2014
Relevant Code / Clause 1.1(e) of the Commercial Radio Australia Codes of Practice
Date Finalised / 10 October 2014
Decision / No breach of clause 1.1(e) [incitement of hatred, serious contempt or severe ridicule because of ethnicity, nationality or race]
Background
· In July 2014, the Australian Communications and Media Authority (the ACMA) commenced an investigation into a segment of a breakfast program hosted by Jason and Nelly. The segment was broadcast on 24 April 2014 by Gold Coast FM Pty Ltd, the licensee of 4GLD to fill in for the Richard, Bridge & Spida program regularly broadcast between 5.00am to 9.00am on Mondays to Fridays.
· In the segment the presenters discussed ‘colourful characters’ from the Gold Coast. Two Gold Coast characters were briefly described before the female presenter referred to a third, saying ‘There’s also another bloke, I think he’s a bloke, dressed as like a lady.’
· The male presenter queried whether the person was a man or a woman and the following exchange occurred:
NELLY: ‘No, no he’s a guy, he walks around in Cavill Mall and I’m amazed that being a local you haven’t seen him… her… um’.
JASON: ‘It’.
· The segment ran for approximately two and a half minutes. A transcript is at Attachment A.
· In his initial complaint to the licensee the complainant questioned the point of the discussion, and stated that he considered it offensive to have used the term ‘it’. He also asked whether it was station policy to attack ‘those who have a mental disorder.’
· The complainant submitted to the ACMA that the segment was ‘offensive to transgender and transsexual people, and that the station had not considered this person’s mental condition, and that the broadcast was not of public interest’.
· The complainant’s submissions are at Attachment B, and the licensee’s responses are at Attachment C.
Assessment
· In assessing content for compliance with the Code, the ACMA considers the meaning conveyed by the relevant material that was broadcast. 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.[1]
· In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone and inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).
· Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then assesses compliance with the Codes.
Issue: Proscribed matter
Finding
The licensee did not breach clause 1.1(e) of the Codes.
Reasons
· Clauses 1.1(e) and 1.2(a) of the Commercial Radio Australia Codes of Practice 2013 (the Code) provides:
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.
Relevant person and the relevant attribute
· The ACMA is satisfied that the relevant person or group of persons identified for the purposes of clause 1.1(e) is people who identify as transgender.
Incitement
· The ACMA must consider whether the ordinary reasonable viewer would have understood that they were being urged, stimulated or encouraged by the content to share or maintain feelings of hatred, contempt or ridicule against people of transgender status.
· Conduct that merely conveys a person’s own feelings of hatred, contempt or ridicule will not be enough to incite or provoke those same feelings in the audience.
There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.[2]
Hatred, serious contempt or severe ridicule
· The clause establishes a high threshold test. The words ‘intense’, ‘serious’ and ‘severe’ contemplate a very strong reaction to the broadcast material. A breach is not found if the broadcast material induces a mild or even strong response or reaction.
Discussion
· In this case, the segment was presented in a light-hearted and humorous manner with the context being a discussion of colourful characters in the Gold Coast area for humorous purposes. The presenters also briefly discussed and described other Gold Coast ‘characters’ during the segment, including a person with Albert Einstein-like hair who was always ‘cracking jokes’ and a man known as the ‘sun-tan man’.
· The ACMA accepts that the discussion of the transgender person and use of the term ‘it’ contained elements of ridicule towards that person. However, the segment contained no language that expressed either hatred or contempt towards the transgender person or people of transgender status.
· Neither of the presenters expressed an invitation to listeners to join them in hating, holding in contempt or ridiculing the person referred to in the segment nor transgender people generally. There were also no explicit terms of condemnation or engagement with the audience appealing to it to respond to transgender people with ridicule on the basis of their transgender status, appearance or identification.
· The ACMA does not consider that the reference to a man wearing women’s clothes was strong enough to express hatred, serious contempt or severe ridicule towards transgender people. The ridicule conveyed was not sufficient to reach the high threshold contemplated by the Codes.
· In addition to the absence of incitement of hatred, serious contempt or severe ridicule, the context served to reduce the severity of any offensive impact. The female presenter acknowledged the inappropriateness of the initial use of the expression ‘it’ by immediately saying ‘No don’t’. The male presenter acknowledged the request and apologised.
· The ACMA acknowledges that the complainant was offended by the broadcast but, for the above reasons, does not consider that segment breached clause 1.1(e) of the Codes.
· The ACMA notes the complainant’s view that the segment attacked those with a mental disorder. However, the ACMA does not have any material before it to suggest that identifying as transgender is a mental disorder. Further, there were no references in the segment linking transgender status with mental illness or ridiculing any person on the ground of mental illness or disability.
· While the complainant considered the subject matter was not in the public interest, as the ACMA finds no breach of clause 1.1(e), it is not necessary to consider whether the segment was justified in the public interest pursuant to clause 1.2(a) of the Codes.
Attachment A
Transcript of the segment
Jason and Nelly – 24 April 2014
Female Host: But ah this morning on my way to work, around about 4:30, I have a Caltex service station that I drop into.
Male Host: Is that the one on Frank Street & Labrador?
NELLY: Yes. Yes. And the guy who works there, at night, has been there every single time I’ve been there. And this has been over the last, oh, I reckon ten years.
JASON: Really?
NELLY: His name is Tom. He’s got… just think of Albert Einstein.
JASON: Right yes.
NELLY: Yeah. He looks like that.
JASON: White wiry hair.
NELLY: Yeah. Yeah. And he is just a character. Every time I’ve gone in there he is cracking jokes.
JASON: Yeah good.
NELLY: Half the time no one, no one gives him any response. But he just talks nonstop to everybody.
JASON: Know how that feels. Yep.
NELLY: But he is a character and it made me think about the Gold Coast and how many characters we have here. As I mentioned Al the suntan man.
JASON: Yes.
NELLY: He was a huge character, used to give suntans on the Surfers paradise beach.
JASON: Yep.
NELLY: There’s also another bloke, I think he’s a bloke, dressed as like a lady. If you’re listening at the moment and you know a bit more detail about him.
JASON: This could be awkward if its, if this person’s not a bloke and just an ugly woman.
NELLY: No, no he’s a guy, he walks around in Cavill Mall and I’m amazed that being a local you haven’t seen him… her… um
JASON: It.
NELLY: No don’t.
JASON: Oh sorry.
NELLY: A pink bikini.
JASON: What?
NELLY: And tutu. Yeah, has a little handbag.
JASON: I’ve never seen that.
NELLY: And is just… it’s something you expect to see when you go into Cavill.
JASON: You sure?
NELLY: Yes! Call - call me and back me up please if you’ve seen this… bloke.
JASON: I’ve never seen this person, let’s call it person at this stage if it is a female alright? Because you’re going to be in a world of pain. Please let it be a female! Please, baby Jesus.
NELLY: But I think he just dresses up with, you know. It’s just a bit - it’s not offensive, it’s actually quite - you know, when you see him you think “here he comes - old mate in the pink bikini”.
JASON: Here comes he or she. 13 27 10. Who is this character who walks around in Cavill Mall. Is it Cavill?
NELLY: Cavill, yeah. Right in the middle of the mall. And other Gold Coast characters.
JASON: It’s not one of the strippers who’s out-spent their stay at one of the nightclubs in Surfers?
NELLY: No it’s not. No.
JASON: Alright, just wanted to double check ‘cause I’ve seen some bad ones. Not me! Sorry, friends have seen some bad ones. 13 27 10. Who are these characters of the Gold Coast? We want to hear from you this morning.
NELLY: Their story.
JASON: At Gold FM.
Attachment B
Complainant’s submissions
The complainant submitted the following to the licensee on 24 April 2014 and 1 May 2014:
I wish this email was about congratulating you about how much I enjoy listening to the station, which I have in the past, but unfortunately it is not.
I was listening to the station this morning when a comment made by the announcer was very upsetting. To make this even more upsetting is when I just rang to speak to someone about it the operator that answer [sic] the phone and explained to me that I needed to send this email was rude and offensive towards me, to finish a call with the comment "have a nice life" can only raise questions about the culture that is at this station.
My complaint is about a comment made on air when the two announcer [sic] were talking about a man who wonders [sic] around Surfers Paradise and Broadbeach areas and what he is wearing, in the conversation it is mentioned that he is known to wear a bikini. I question why this is a point of discussion to be broadcast, and believe it is extremely offensive for the male announcer to make reference to him as "it". The female announcer has a different opinion based on what she said.
Can you tell me is it the station policy to attack those who have a mental disorder, or those who are transgender or transsexual.
The complainant subsequently submitted the following to the licensee on 12 May 2014:
Thank you for your response to my email dated 24th April 2014, I do wish to make a formal complaint about the comments broadcast on the station.
I understand that the station does take a stand against any form of bullying or discrimination or to be insensitive towards the transgender or transsexual community, but I feel that the station has failed in this instance.
You have stated that the audio has been reviewed and that the announcer did not made a reference to a local as "it" and used the references of "male or female".
I ask that the audio be reviewed again as my recollection of the broadcast is different. My memory is as follows:
Female announcer - raises the conversation about the local person in question.
Male announcer - makes reference to the person as "it".
Female announcer - stops male announcer and says "don't go there" and guides conversation to a positive nature.
Callers do make positive comments about the person.
Two points I would like to raise, firstly obviously the discrimination against the transgender and transsexual community by the male announcer and the broadcast of such comments made.
Secondly if it was about local and unusual characters, then should we be making fun of our local disadvantaged community, I ask you to consider if you are aware that this person may have a mental disorder, and the harm or embarrassment that may have/could have been caused, or what his past troubles have been to bring him to this point in his life.