Investigation Report No. 3243

File No. / ACMA2014/641
Broadcaster / Triple M Sydney Pty Ltd
Station / 2MMM
Type of Service / Commercial Radio
Name of Program / The One %ers with Matt Tilley & Joe Hildebrand
Date of Broadcast / 18 June 2014
Relevant Code / Clause 1.1(e)of the Commercial Radio Australia Codes of Practice 2013
Date finalised / 16 September 2014
Decision / No breach of clause 1.1(e) [incitement of hatred, serious contempt or severe ridicule because of ethnicity, nationality or race]

Background

  • InJuly 2014, the Australian Communications and Media Authority (the ACMA) commenced an investigation intoasegment ofthe programThe One %ers with Matt Tilley & Joe Hildebrand broadcast on 18 June 2014by Triple M Sydney Pty Ltd, the licensee of2MMM (the licensee).
  • The One %ers with Matt Tilley & Joe Hildebrand is a light entertainment drive program broadcast on weekdays between 4:00pm and 6:00pm, with a mixture of music, comedy and talkback.
  • During the 2014 FIFA World Cup tournament held between 12 June and 13 July 2014, the program included coverage (mostly satirical and light-hearted) ofhighlights and matches.
  • In a segment on 18 June 2014,after discussingthe movement of ‘Doug the Slug’, a slug placed on a board used to predict the winning or losing teams, and the upcoming match between Australia and the Netherlands, the presenters commented onthe performance of Colombia during the tournament. They mentioned the country’s ‘ragged history’ before referring to René Higuita, a former Colombian goalkeeper famous for performing ‘scorpion kick’ saves, stating: ‘Chimpanzees could do that. I’m gonna do a donkey kick!’
  • Later, one of thepresenters said: ‘It seems to me that if you mention Colombia, the next thing that people generally mention is cocaine’ and then invited any Colombians to phone in.
  • Two listenersphoned in identifying themselves as Colombian and refuted the stereotype put forward by the presenters.
  • The segment ran for approximately 13 minutes. A transcript is at Attachment A.
  • The complainant submitted that the segment was ‘incredibly discriminatory towards Colombia and Colombian people, insinuating that the civil war in Colombia is a laughing matter and that Colombian people are comparable to “chimpanzees”’.The complainant also said that it was‘very inappropriate to suggest that all Colombians use drugs or to suggest that backpackers go to Colombia to use drugs as a major attraction’.
  • The complainant’s submissions are at Attachment B, and the licensee’s response is at Attachment C.

Assessment

  • In assessing content for compliance withthe 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’ listenerto 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, toneand 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

1.1A 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.

1.2Nothing 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 group of persons and the relevant attribute

  • TheACMA is satisfied that the relevant group of persons for the purposes of clause 1.1(e) is people of Colombian nationality.

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 Colombian nationality.
  • Conduct that merely conveys a person’s hatred, intense dislike, serious contempt or severe ridicule will not be enough to necessarily 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 for the proscribed material. The words ‘intense’, ‘serious’ and ‘severe’ contemplate avery strong reaction to the broadcastmaterial. A breach is not found if the broadcast material induces a mild or even strong response or reaction.
  • In relation to the presenter’s comment regarding chimpanzees, the ACMAaccepts that the comments did not compare people of Colombian nationality with chimpanzees. It considers that these comments would have been understood by the ordinary, reasonable listener as praising the goalie, Mr Higuita’s athleticism and ability to execute saves from a handstand position. This was reinforced by the closing comments by one presenter on the subject: ‘Brilliant, brilliant’.
  • In respect of the remarks concerning cocaine production and drug-related violence in Colombia, the ACMA notes the licensee’s submission that the presentersexplored the stereotype that Colombia is synonymous with cocaine production and use.
  • The stereotype is based on Colombia’s high level of cocaine production,[3]and its history of conflict and violence involving drug cartels.[4]
  • Although the stereotype is based on factual elements, the ACMAis satisfiedthat the segmentmildlyridiculed the Colombian people, and that by inviting Colombian callers to comment on whether they had used cocaine, to some extent it encouraged the audience to share these feelings of ridicule.
  • Each caller ‘de-bunked the myth’, the first advising that he had not used cocaine in Colombia and that ‘a lot of people forget all the great things we have in Colombia’ and the second explaining that farmers grow cocaine in order to export it and to support their families, but that use of the drug in Colombia is frowned upon.
  • The segment did not explicitly refer to the drug wars although they were alluded to (‘I wonder if that is true, or whether if offends the Colombian people who go ‘You know what? We’re a bit more than that! We have gangs and we kill people to, you know!’).
  • The ACMA considers that the purpose was comedic rather than a serious exploration of a stereotype. The segment intermittently returned to other topics, including the movement of ‘Doug the Slug’, and the match between Australia and the Netherlands. This further added to the sense of light-heartedness and playfulness.
  • As noted above, clause 1.1(e) of the Code, sets a high threshold test for the likely effect of the proscribed material.
  • Although it generally mocked people from Colombia, the segment waslight-hearted and comical in nature and the comments lacked the necessary strength to be likely to incite feelings of severe ridicule towards Colombian people. There was no inflammatory language,explicit terms of condemnationnor build-up of terms having the cumulative effect of incitement of hatred, contempt or ridicule.
  • In this case, the ACMA considers that, while the presenters explored a stereotype with the listeners, and were at times disrespectful of the Colombian people, any ridicule that was encouraged was not sufficient to reach the high threshold that is contemplated by the Codes.
  • The licensee has therefore not breached clause 1.1(e) of the Codes, and it is not necessary to consider the exemption set out at clause 1.2(a) of the Codes.

Attachment A

Transcript of the segment

Matt Tilley: Matt Tilley and Joe Hildebrand for Australian Sports Nutrition. The reason we’re so euphoric, the reason we’re banging on about this so much is because every single time we lay it on the line it could be the last time.

Joe Hildebrand: Yes, that’s right.

Matt Tilley: We’re talking about this fellow of course─

[Audio – Les Murray’s voice]: Hi, this is Les Murray on the streets of Rio and everyone is talking about─

[Audio – Commentator]: And he’s got it this time! Yes!

[Audio – Les Murray’s voice]: Doug the slug.

[Audio – Commentator]: What a beauty!

Matt Tilley: Yes, he is a beauty. And how this gastropod has survived in our steamy hot office on housewife’s lettuce alone, the old iceberg─

Joe Hildebrand: It is, it is a miracle. I mean, the thing is you can’t─ losers don’t live. Right, it’s a dog eat dog world, its kill or be killed, and Doug the slug has come out of the blocks and twice picked the loser of Australia, and, well─

Matt Tilley: Any games!

Joe Hildebrand: Not just Australia. It’s Australia and, ah─

Matt Tilley: Puerto Rico and Germany

Joe Hildebrand: Puerto Rico and─

Matt Tilley: Portugal, not Puerto Rico

Joe Hildebrand: Portugal and Germany, picked the wrong one, and Australia─

Matt Tilley: He’s a curse, that’s what he is!

Joe Hildebrand: Exactly, and now we’ve realised that Doug is in fact just quite a negative character. He’s a glass half empty kind of slug.

Matt Tilley: Well─

Joe Hildebrand: And he’s been deliberately going after the loser, so─

Matt Tilley: Well he’s kind of been saying: ‘You know I am a slug? That is a negative thing. You guys kind of missed the point.’ Let’s lay him down, Joe. It’s the fast track towards─ Well, I guess─

Joe Hildebrand: So he has to pick the loser now, right?

Matt Tilley: ─infamy. Yeah, yeah, yeah. So we’ve got the─

Joe Hildebrand: Oh, look at him.

Matt Tilley: ─two pieces of lettuce.

Joe Hildebrand: Gee whiz, he’s just been─

Matt Tilley: It’s like he’s getting stronger.

Joe Hildebrand: He’s there. He’s in the, he’s in the blocks.

Matt Tilley: We have a cup, ah, and it is a cup of lettuce isn’t it? One leaf, like if you have the old San Choi Bao? It’s sort of, it’s sort of two cups of lettuce, one with the Aussie flag…

Joe Hildebrand: Same to you, mate.

Matt Tilley: ─one with the Dutch flag, of course.

Joe Hildebrand: Yes!

Matt Tilley: And, ah, the unique thing about the Aussie flag, and the Dutch flags – both of those flags do not carry the team colours.

Joe Hildebrand: No, that’s right.

Matt Tilley: Because Australia of course is yellow and green but there’s none of that on the flag, and the Dutch of course is red, white─

Joe Hildebrand: Orange.

Matt Tilley: ─and blue, and they’re orange. It’s very unusual.

Joe Hildebrand: What sort of stupid country─

Matt Tilley: As Doug goes into a ball! What’s this? He’s having some kind of panic attack!

Joe Hildebrand: He’s just─ is he playing dead? Is this a ruse?

Matt Tilley: Oh, no!

Joe Hildebrand: He’s just curled up, and─

Matt Tilley: Well look, let’s, ah─

Joe Hildebrand: This can’t be good. Should we send in a medic?

Matt Tilley: Just poke him with the knife, Joe. I can’t reach.

Joe Hildebrand: Where’s that bloke from England with the broken leg?

Matt Tilley: Here he goes, he’s stretching out again

Joe Hildebrand: Okay.

Matt Tilley: That’s alright.

Joe Hildebrand: Yeah, he’s going for it.

Matt Tilley: He just─ he went a bit, um, flaccid there. I think that’s the correct word to describe a─

Joe Hildebrand: I think, I think─

Matt Tilley: ─a slug in that state.

Joe Hildebrand: I think he was just faking, he was just faking. It was a dummy pass.

Matt Tilley: Let’s move on, as he slowly stretches out and makes his way towards the end of the track that is this beautiful white platter from Minimax. Ah─ we do want to talk World Cup, because there’s been some games, not the least of which has seen Colombia─

Joe Hildebrand: Oh, oh man, yeah─

Matt Tilley: ─enter the fray. And I think what we’ve gotta remember is─

Joe Hildebrand: Wonderful country.

Matt Tilley: ─they have a sort of ragged history. Like, remember the guy who kicked an own goal for Colombia, he was killed.

Joe Hildebrand: Ah yeah, that’s right, exactly, didn’t─

Matt Tilley: And then they had René Higuita the goalkeeper, who famously could do a handstand and flip his legs up and save it that way! Going: ‘Hands? Too easy!’

Joe Hildebrand: Who needs those?

Matt Tilley: ‘Chimpanzees could do that. I’m gonna do a donkey kick!’ Whip-boom – And he would run out over the halfway line during the match! Let’s just play 11 forward!

Joe Hildebrand: Brilliant, brilliant.

Matt Tilley: Forget 4-4-3─

Joe Hildebrand: Who needs a goalie anyway?

Matt Tilley: ─or 4-4-1 or 4-4-2 or whatever adds up to 11, let’s just have ten at the front!

Joe Hildebrand: Exactly, just run up to the other team’s goal and just throw it in!

Matt Tilley: Yes. Ah, if you are─

Joe Hildebrand: Like basketball!

Matt Tilley: ─if you are Colombian you could really help us out right now. [Phone number] if you are Colombian. You don’t have to have grown up there, but your parents probably would help. You need to have been back to the mother country, I think.

Joe Hildebrand: Yeah.

Matt Tilley: Colombians! Colombians only! This is your moment to shine! [Phone number], please ring and help us out with something.

[One Percenters I.D and Song]

Matt Tilley: It’sThe One %erswith Matt Tilley and Joe Hildebrand and for Australian Sports Nutrition’s national clearance sale. It’s on this Saturday, it’s not that far away, and yet there is so much water to come under the bridge, Joe. Imagine tonight─

Joe Hildebrand: So much sport!

Matt Tilley: Australia against the Netherlands at 2 o’clock in the morning, lots of people talking going all the way through.

Joe Hildebrand: That’s right. By the time that sports hour comes along, the entire sporting landscape of the world, not just Australia, but the world could have been changed! Not least, of course, by the World Cup.

Matt Tilley: That’s right. One of the big issues confronting a lot of people is how they’re going to stay awake, and do other countries have an advantage when it comes to… Oh, Doug has made a late break – sorry to interrupt the show – Doug has made a late break toward the Socceroos─

Joe Hildebrand: Oh, he’s breaking for the Socceroos.

Matt Tilley: Toward the Socceroos again.

Joe Hildebrand: That means they’re gonna lose though!

Matt Tilley: I know, turn back!

Joe Hildebrand: The Dutch, Doug! Dutchy Doug the Slug.

Matt Tilley: Anyway, if you’re listening now wondering: ‘How am I gonna play? I might watch Origin, then I might grab two hours, nah I’m gonna have a few beers, I’ll just keep going through.’ I know some blokes going for a ride between the end of Origin and the start of the Socceroos to stay awake.

Joe Hildebrand: What, to just, driving along down the motorway sticking their head out the window, just to [slap, slap].

Matt Tilley: No, no, not a ride on a motorbike, on pushbikes. Some, like, invigorating exercise! Just for something to do, they go:‘we’ll have the roads to ourselves!’

Joe Hildebrand: Really, that’s strange, yeah.

Matt Tilley: I’m just saying, mate, Aussies─ they adapt in different ways, they improvise, they overcome─ interestingly enough, err, there was a headline that caught my eye to-die, in terms, err, to-die─

Joe Hildebrand: To-die!

Matt Tilley: Went all Julia Gillard on you there!

Joe Hildebrand: Fresh from the─ fresh from the set of Kath and Kim!

Matt Tilley: Um, Doug’s headed to the Netherlands. Don’t do it.

Joe Hildebrand: Yeah that’s what we want. We want him to pick them, and them to lose.

Matt Tilley: The Colombian team has been described as Colombia’s ‘Coffee growers have found an invigorating mix without their hero!’ They were missing one of their better players. And I─ But─ but I─

Joe Hildebrand: Well─

Matt Tilley: Hang on─

Joe Hildebrand: Yeah.

Matt Tilley: Is Colombia really famous for its coffee? Coffee comes from Brazil, it comes from Indonesia, it comes from Colombia, but I think we associate something else with Colombia don’t we?

Joe Hildebrand: Are you suggesting that─

Matt Tilley: [Sniff, sniff, sniff].