Investigation Report No. BI-191

Investigation report no. BI-191

Opening

In April 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 151 of the Broadcasting Services Act 1992 (the BSA) into a complaint about the Veronica & Lewis drive program, broadcast on Triple j by the Australian Broadcasting Corporation (the ABC) on 17 February 2016.

The complainant alleged that the broadcast contained material that was likely to cause offence.

The ACMA has exercised its discretion to investigate the ABC’s compliance against standard 7 [harm and offence] of the ABC Code of Practice 2011 (revised in 2014) (the ABC Code).

The program

Veronica & Lewis is a drive time program containing a mix of music as well as general entertainment and information segments. It is broadcast weekdays from 3 pm until 5.30 pm.

The material complained about is a broadcast of the song Come Home (Cardinal Pell) written and performed by Tim Minchin. The song was stated to have been released on the day of the broadcast and was bookended by remarks from the program’s two presenters.

A transcript of the material 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, images and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any). This is assessed according to the understanding of an ‘ordinary reasonable’ listener or viewer.

Australian courts have considered an ‘ordinary reasonable’ listener or 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.[1]

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

The investigation takes into account relevant submissions from the complainant (Attachment B) and the broadcaster (Attachment C). Other sources are identified as relevant.

Relevant ABC Code provision

The relevant standard in the ABC Code is:

7.1 Content that is likely to cause harm or offence must be justified by the editorial context.

Standard 7.1 of the ABC Code must be interpreted and applied in accordance with the principles underlying it.

The harm and offence principles relevantly state that the ABC broadcasts comprehensive content that aims to inform and educate diverse audiences. This can result in challenging content which may offend some of the audience, some of the time. However, the principles acknowledge that the ABC, as a public broadcaster, should never gratuitously harm or offend. Any content that is likely to harm or offend must have a clear editorial purpose.

The principles also state that:

[T]he community recognises that what is and is not acceptable in ABC content largely depends upon the particular context, including the nature of the content, its target audience, and any signposting that equips audiences to make informed choices about what they see, hear or read. Applying the harm and offence standard, therefore, requires careful judgement. What may be inappropriate and unacceptable in one context may be appropriate and acceptable in another. Coarse language, disturbing images or unconventional situations may form a legitimate part of reportage, debate, documentaries or a humorous, satirical, dramatic or other artistic work.

Finding

The ABC did not breach standard 7.1 of the ABC Code.

Reasons

The complainant submitted to the ABC that:

My understanding is that it is the ABC's responsibility, according to the ABC Code of Practice 2014, to ensure that there is a clear editorial purpose to the broadcast of content that may be likely to harm or offend. Furthermore the ABC acknowledges itself that a public broadcaster should never gratuitously harm or offend. I question Triple J's judgement in broadcasting the abovementioned segment, and query as to where a clear editorial purpose exists.

There is no question as to whether this content would be likely to cause offence.

I took particular offence to the following sections of the song lyrics:

- "dude, I think you are scum"

- "you should come home you pompous buffoon"

- referring to Cardinal Pell as "a god damn coward".

The ABC responded to the complainant:

Audience and Consumer Affairs note that the presenters provided detailed context prior to playing the song: as ABC Radio have explained above, the presenters told listeners that Cardinal Pell had been asked to give evidence to the Royal Commission, but "he's been given medical advice that he's too sick to fly ..", so he would be appearing by video link from Rome. This was reiterated after the song was played.

The song by Tim Minchin was controversial and newsworthy; this is demonstrated by the fact that it received significant coverage across Australian media. As a high profile and well known Australian musician, the triple j audience would be familiar with Tim Minchin.

To the extent that the song was likely to offend the target audience of triple j, which is 18-24 year olds, the segment was justified by the editorial context.

The complainant then submitted to the ACMA that the terms used were ‘derogatory’ and ‘offensive’ in any context, that the controversial and newsworthy nature of the song was irrelevant justification for its broadcast, and that the target audience is also an irrelevant consideration in relation to the likelihood of offence.

The ACMA has assessed the ABC’s compliance with standard 7.1 by asking the following questions:

1. Does the material have the intrinsic capacity to be likely to cause harm or offence?

If it has no capacity to be likely to cause harm or offend, then the matter ends there. But if the answer to question 1 is 'yes', then the following further questions arise:

2. What factors are there moderating any harm or offence?

3. What is the editorial context?

4. Does the editorial context justify the likely harm or offence?

These considerations are set out below.

1. Does the material have the intrinsic capacity to be likely to cause harm or offence?

The complainant has submitted that the song caused offence, stating particular offence was taken from the following lyrics:

  ‘dude, I think you are scum’

  ‘you should come home you pompous buffoon’

  ‘god damn coward’.

The material was directed at a named individual in the terms noted by the complainant, and, on this basis, has an intrinsic capacity to be likely to cause offence.

2. What factors are there moderating any harm or offence?

The interpretation provision of the ABC Code requires the ACMA to have due regard to the nature of the content under consideration. In this case, the lyrics are critical of Cardinal George Pell’s decision, upon medical advice, not to attend in person, hearings of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission).

The material is contextualised in the introduction by the presenters, who indicate:

  Tim Minchin is politically minded and attacks ‘big issues’ (in this case ‘the biggest in the last little while’)

  the issue here concerns the sexual abuse of children by ‘the church’ and the Royal Commission

  Cardinal Pell had been given medical advice ‘that he was too sick to fly’ to attend the Royal Commission in person

  there was a level of public criticism directed at Cardinal Pell that he ‘should face the victims’

  Tim Minchin had written the song asking Cardinal Pell to ‘come home’, with proceeds funding flights to Rome for victims of child sexual abuse should Cardinal Pell give evidence via video link

  both Tim Minchin’s song and Cardinal Pell’s decision were the subject of wide discussion in the community and news coverage at the time of the broadcast.

Immediately after the broadcast of the song, the presenters again discussed some of the contextual aspects above and noted that the song was released ‘today’.

This contextualising detail serves to moderate against the likelihood and impact of offence. It provided a clear indication that the subject matter was controversial, explicitly stated that Cardinal Pell had been given medical advice not to fly, and that the views expressed within the song were those of Tim Minchin.

Additionally, while the terms used in the lyrics may have an intrinsic capacity to be likely to cause offence, the phrases themselves are relatively low in impact, e.g. ‘scum’, ‘pompous buffoon’ and ‘god damn coward’.

3. What is the editorial context?

In assessing the editorial context for the use of the material, the ACMA has considered: the nature of the program, the target audience, any signposting and the editorial purpose. These factors are set out below:

The nature of the program

The Veronica & Lewis drive program mainly consists of music, with interspersed general entertainment segments and discussion of topical events relevant to the target audience. As per the provisions in ABC Code, the nature of the program encompasses content that may, at times, take risks and be challenging in its presentation.

The song was satirical in nature and, as noted in the introductory remarks by the presenters, concerned a matter of some contention in the community and widespread reportage in the media at the time of broadcast. The Royal Commission continues to be of considerable interest in the community and media.

The target audience

The ABC has submitted that the program is targeted at an adult audience of 18-24 year olds. The ACMA accepts that the audience of the program is likely to be mature. Such an audience would be likely to expect topical and newsworthy subjects to be discussed, and would also be likely to be aware of the style of musical satire written and performed by Tim Minchin.

The target audience would also be likely to understand that the issue that was the subject of the song was contentious and that there would be different views held in the community on the matter, about which, given the context of the broadcast, listeners could draw their own conclusions.

Signposting

The preceding contextualising remarks served to signpost the content as a criticism by Tim Minchin of Cardinal Pell’s decision. The introductory comments were, in themselves, neutral in content, tone and presentation.

Editorial purpose

The ABC has submitted to the complainant that the song was a ‘topic of conversation and interest to Triple j’s audience, noting that it had received ‘significant coverage across Australian media’.

The ACMA accepts that the song was not used to gratuitously harm or offend. Rather, it was played as a topical satirical song in response to matters of widespread controversy within the community at the time of the broadcast. As such, there was a clear editorial purpose for the broadcast.

4. Does the editorial context justify the level of likely harm or offence?

In considering whether the material is justified by its editorial context within the meaning of the ABC Code, the ACMA is required to have regard to the general framing, and latitude, of the specific provisions in respect of any offensive material.

Under the ABC Code, coarse language, disturbing images and unconventional situations may form a legitimate part of […] satire. The interpretation section of the ABC Code also emphasises the importance of freedom of expression:

The Standards are to be applied in ways that maintain independence and integrity, preserve trust and do not unduly constrain journalistic enquiry or artistic expression.

The material was broadcast within a context that was clearly articulated before and after the song as a response to matters of current community debate that were receiving widespread media coverage. It was specifically noted that Cardinal Pell had medical reasons for not giving evidence to the Royal Commission in person.

Further, it was stated that Tim Minchin addresses such issues in song, and that the song in question was released on the day of broadcast. The program was targeted at a mature audience and was clearly signposted as containing criticism of Cardinal Pell’s decision.

The ACMA has noted in a number of previous investigations that there is a culture of robust public debate and expression in Australia, including that directed from or at participants in such discourse.[2]

The ACMA has also previously noted that political satire is a provocative genre with a long history of presenting social taboos in exaggerated form, often as a central conceit, to make political points.[3] Under the terms of the ABC Code, the ABC has significant latitude to broadcast challenging material of this nature.

In this case, the content was discourteous and was undoubtedly offensive to some in the community, including the complainant. However, the offence levels were moderated due to contextualising factors and the material was justified by the editorial context for the reasons noted above.