Investigation report no. BI-195
Summary /Licensee / Double T Radio Pty Ltd /
Station / KIIS 101.1 /
Type of service / Commercial radio /
Name of program / The Thinkergirls /
Date of broadcast / 12 May 2016 /
Relevant code / Commercial Radio Australia Codes of Practice & Guidelines September 2013 /
Date finalised / 4 August 2016 /
Decision / No breach of Code 1.3(a) [generally accepted standards of decency]
No breach of Code 1.5 [feature program which has an explicit sexual theme] /
Background
In May 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 170 of the Broadcasting Services Act 1992 (the BSA) into The Thinkergirls broadcast on KIIS 101.1 by Double T Radio Pty Ltd on 12 May 2016 at approximately 7.40 pm.
The ACMA received a complaint alleging that a conversation about sexual aids was inappropriate for broadcast at that time.
The ACMA has investigated the licensee’s compliance against codes 1.3(a) and 1.5 of the Commercial Radio Australia Code of Practice & Guidelines September 2013 (the Codes).
The program
The Thinkergirls is a radio program broadcast from 7.00 pm to 9.00 pm weekdays, hosted by Ms Stacey June and Ms Kristie Mercer. It is described as:
The Thinkergirls are a girl duo made up of gal pals Stacey June and Kristie Mercer talking all the thoughts you're thinking but not saying. Why don't boys want to wear condoms? Is Instagram depressing you? To travel or buy a house? Friendship breakups and how do I STILL have acne as an adult?[1]
The material that is the subject of the complaint was broadcast during a segment of The Thinkergirls titled ‘Sex school’ and consisted of a discussion between the hosts and Dr Nikki Goldstein about sexual aids.
A transcript of the segment 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 and any inferences that may be drawn. 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.[2]
Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Codes.
The investigation takes into account the complaints (at Attachment B) and submissions from the broadcaster (at Attachment C). Other sources are identified below.
Issue 1: Generally accepted standards of decency
Relevant code provision
Code of practice 1: Programs unsuitable for broadcast
Purpose
The purpose of this Code is to prevent the broadcast of programs which are unsuitable having regard to prevailing community standards and attitudes.
[…]
Program Content and Language, including Sex and Sexual Behaviour
1.3 (a) Program content must not offend against generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of the relevant program.
(b) for the purposes of determining:
(i) the audience of the relevant program; and
(ii) the demographic characteristics of that audience,
regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the prior 12 months, (or, in the case of any licensee service operating in regional areas, the most recent official ratings surveys for the licensee’s service).
Finding
The licensee did not breach code 1.3(a) of the Codes.
Reasons
Consideration of prevailing community standards and generally accepted standards of decency.
In previous investigations against the decency provision of the Codes, the ACMA has considered:
the subject matter or themes dealt with: for example, care needs to be taken with material that is sexually explicit or extremely sensitive[3]
the tenor or tone of the broadcast: for example, was it light-hearted or threatening, matter-of-fact or salacious[4]
the language used in the broadcast: for example, was it abusive, vulgar or lewd[5]
the attitudes conveyed: for example, did they display a contemptuous disregard for human life or suffering.[6]
The ACMA has indicated that material will not offend against generally accepted standards of decency simply because it has ‘shock value’, is distasteful or has the effect of making a person feel uncomfortable.[7] In deciding whether a breach has occurred, the ACMA will reflect on whether material offends against generally accepted standards to the extent that it is inappropriate for broadcast.
To assess compliance in this case, the following questions are addressed:
What would the ordinary reasonable listener have understood the material to convey?
What are the demographic characteristics of the audience?
In light of the above, did the material offend against any generally accepted standards of decency?
What would the ordinary reasonable listener have understood the material to convey?
Context, subject matter and what it conveyed
The complainant submitted the following complaint to the licensee:
Talking in finite detail about dildos and vibrators and how to insert them at 7:42pm!!
The licensee has submitted:
Dr Goldstein holds a Bachelor’s Degree in Psychology, a Postgraduate Diploma in Counselling and a Doctorate of Human Sexuality from San Francisco’s esteemed Institute for Advanced Study of Human Sexuality; and is a highly credible authority on the topics of love, sex, dating, romance and relationships. […]
[…] The Thinkergirls are themselves learning and being educated by Dr Goldstein. This makes for compelling and authentic content. Notwithstanding the context of the Thinkergirls show, the ‘Sex School’ segment is not smutty or tacky, it is designed to educate and inform whilst still having some fun. Coupled with the warning and clear labelling of the Segment, we feel strongly that the Segment does not offend generally accepted standards of decency having regard to the Thinkergirls’ audience.
[…] It is obvious the Thinkergirls are surprised and, at times, uncomfortable with some of the products they are presented with during the Segment. Dr Goldstein calmly and professionally explains each product, its correct use and answers the Thinkergirls’ questions.
The segment was approximately five minutes in duration and focused on Dr Nikki Goldstein, a human sexuality expert and educator, describing and explaining sex aid devices and products to the presenters. Dr Goldstein was introduced at the start of the segment as follows:
As a sexologist you’ve kinda got tips and tricks, relationships, sex positions, all kinds of things. But this week you’ve brought show and tell.
Dr Goldstein commenced her presentation by stating:
First of all, the reason I did this is because I think a lot of people are very fearful of this stuff. Let’s actually break it down and explain it.
Dr Goldstein then apparently showed the presenters a number of sex aids, describing them and explaining their use. The presenters discussed the devices, asked questions and described their previous personal experiences.
A listener would have understood that the segment presented information about sex aid devices to the audience.
Language and tone
The licensee submitted:
Obviously the Segment is broadcast on radio, therefore listeners cannot see the relevant products. Dr Goldstein and the Thinkergirls describe the products (sometimes with surprise by the Thinkergirls who are, in some instances, encountering them for the first time) and ask questions about how they are used. The Segment certainly has the KIIS tone of irreverence and cheekiness, but it is not smutty, the questions are factual in nature and the intention of the Segment is to educate in a fun and non-threatening environment.
There is no gratuitous explicit language used in the Segment. Words like ‘vibrator’ and ‘penis’ are used sparingly and only to accurately describe products and/or anatomy.
The licensee described the ‘Sex school’ segment as a regular segment on The Thinkergirls, generally broadcast on a Thursday night. Prior to the commencement of the 12 May 2016 segment, the following warning was broadcast:
Announcement: Warning, explicit content.
Immediately following the warning, a presenter introduced Dr Goldstein, who explained the subject and purpose of the segment to the hosts and listeners. The segment included specific references to a range of mechanical sex aids, information on how they are used and references to the stimulation of sexual organs.
The ACMA accepts that at times, these descriptions were detailed. However, the material was presented in the context of a sex education segment informing the audience about the devices discussed. In this regard, the material was directly related to, and relevant to, the topic of discussion.
No coarse language was used by any of the participants in the segment. It was presented in a light-hearted but informative manner, with the presenters providing information and their responses in an open and honest way. There appeared to be no intention to unnecessarily shock. While the language used in the segment was explicit, it was not threatening, abusive, vulgar, lewd or contemptuous. In this context it was not inherently unsuitable for broadcast.
What are the demographic characteristics of the audience?
The decency provision of the Codes requires that regard be had to the demographic characteristics of the audience of the relevant program. Further, for the purposes of determining the demographic characteristics of the audience, regard must be had to the results of any official ratings surveys of the licensee’s service in the past 12 months.
The licensee submitted:
… The Thinkergirls’ target and predominant audience is adults aged 18-40. The show appeals to both men and women, but is particularly focused on female listeners. The show has the third highest Cume (10+) in the Melbourne market between 7.00 – 9.00 pm according to the most recent survey results (3/2016), with its highest number of listeners between the ages of 25 - 39.
The licensee provided survey results to the ACMA to support the claim that The Thinkergirls program has strong appeal to adults in the 18-40 age range. The ACMA notes that KIIS FM has the third highest Cume (10+)[8] audience in Melbourne and that overall, the program is likely to have broad popularity with adults in this age group.
In considering compliance with code 1.3(a) of the Code, one of the relevant characteristics of the audience of the program involves the likely expectations of that audience.
The licensee submitted:
[…] KIIS FM’s audience is used to (and, in fact, expects) a bold, irreverent tone to its broadcasts. It is this tone which makes the content accessible and relatable to The Thinkergirls’ audience.
The licensee also submitted that it received no other complaint about the ‘Sex school’ segment.
The ACMA accepts that the audience of The Thinkergirls would have been familiar with the themes and content often dealt with in the ‘Sex school’ segment. However, it notes that information about the audience’s age, gender and familiarity with a regular segment does not necessarily indicate the attitudes of that group to the content that ultimately went to air.
In light of the above, did the material offend against any generally accepted standards of decency?
The ACMA acknowledges that the segment of ‘Sex school’ broadcast on 12 May 2016, contained material that, due to its sexual nature, may have been offensive to some people in the community. The language was, at times, detailed in describing the use of sexual aids.
However, the following observations inform the ACMA’s view that the material did not breach the provision:
although the subject matter of the segment was sexually explicit, it was educative, targeted at an adult audience and it was preceded by a warning to listeners that explicit content would be broadcast
the tenor or tone of the segment was light-hearted and informative and sexual references were not used gratuitously
although the language of the segment included anatomical references, it contained no coarse language and it was not abusive, vulgar or lewd
the segment did not contain material that demeaned or exploited a person or group and it did not display a contemptuous disregard for human life or suffering.
Accordingly, the licensee did not breach code 1.3(a) of the Codes.
Issue 2: Feature program which has an explicit sexual theme
Relevant Code provision
Code of practice 1: Programs unsuitable for broadcast
Purpose
The purpose of this Code is to prevent the broadcast of programs which are unsuitable having regard to prevailing community standards and attitudes.
Program Content and Language, including Sex and Sexual Behaviour
1.5 Licensees must not broadcast a feature program which has an explicit sexual theme as its core component unless it is broadcast between 9.30 pm and 5.00 am and an appropriate warning is made prior to commencement of the program and at hourly intervals during broadcast of the program.
1.6 Nothing in clause 1.5 prevents a licensee from broadcasting a program at any time, of the kind referred to in that clause, if the program is in the public interest, including discussion or debate about current events.
Finding
The licensee did not breach code 1.5 of the Codes.
Reasons
Clause 1.5 prohibits licensees from broadcasting a ‘feature program which has an explicit sexual theme as its core component’ unless it is broadcast within certain timeframes and includes appropriate warnings.
The Thinkergirls program was broadcast on Thursday 12 May 2016, between 7.00 pm and 9.00 pm. The ‘Sex school’ segment that is the subject of the complaint was broadcast at 7.40 pm and was approximately five minutes in duration.
The licensee submitted:
You will see that the ‘Sex School’ is the only part of the program focusing on content of a sexual nature. Other topics discussed during the program include the election with a political commentator, the Logies, social media and a talk topic about inappropriate work uniforms. These themes are broad and varied – whilst we acknowledge that ‘Sex School’ does, by its nature, discuss sexual themes, this is not the core component of the program. Even within the ‘Sex School’ segment, topics covered are often not explicit at all, such as discussions around sleeping arrangements, sexual health or hygiene.