4JJJ - ACMA Investigation Report 2700

Investigation Report No. 2700

File No. ACMA2011/1742

Broadcaster ABC Radio

Station 4JJJ

Type of Service National Broadcaster

Name of Program Lunch

Date of Broadcast 11 April 2011

Relevant Code Clauses 7.1 and 7.2 of the ABC Code of Practice 2011

Date finalised 20 December 2011

Decision No breach of clauses 7.1 and 7.2 of the ABC Code of Practice 2011

ACMA Investigation Report – Lunch broadcast by 4JJJ on 11 April 2011. Error: Reference source not found

The complaint On 13 October 2011, the Australian Communications and Media Authority (ACMA) received a complaint regarding material broadcast during the program Lunch on ABC radio station 4JJJ on 11 April 2011. The complainant was concerned that the lyrics of a song played during the program were offensive and inappropriate. The complainant was not satisfied with the response of the ABC and referred the matter to the ACMA for investigation.1 The complaint has been investigated in accordance with clause 7.1 and 7.2 [harm and offence] of the ABC Code of Practice 2011 (the Code).

The program Lunch is broadcast from 12:00pm to 3:00pm on weekdays and ‘plays new music and Triple J classics’.2 The program is targeted to the Triple J's demographic of 18-24 year olds.3

On 11 April 2011, the program broadcast the song ‘Hell of a Life’ by hip hop artist, Kanye West. The song was introduced with a Triple J language warning. The language warning and lyrics of ‘Hell of a Life’ are at Attachment A.

Assessment The assessment is based on:  a recording of the song, provided by the broadcaster;  the complainant’s submission;  the broadcaster’s submission; and  publicly available information, the source of which is identified where relevant.

Ordinary, reasonable viewer In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable viewer’. Australian courts have considered an ‘ordinary, reasonable 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.4

The ACMA asks what the ordinary, reasonable viewer would have understood the broadcast to have conveyed. In doing so, the ACMA considers the natural, ordinary meaning of the

1 Section 151 of the Broadcasting Services Act 1992 sets out the ACMA’s role in investigating complaints about ABC’s compliance with the ABC Code of Practice. 2 www.abc.net.au/triplej/lunch/ accessed by the ACMA on 25 November 2010. 3 ABC’s response to the complainant dated 5 May 2011. 4 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167

2 language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any). Once this test has been applied to ascertain the meaning of the broadcast material, the ACMA will determine whether the material has breached the Code.

Issue 1: whether the licensee broadcast material which was likely to cause offence Relevant Code Provisions

7. Harm and offence

Principles

The ABC broadcasts comprehensive and innovative content that aims to inform, entertain and educate diverse audiences. Innovation involves a willingness to take risks, invent and experiment with new ideas. This can result in challenging content which may offend some of the audience some of the time. But it also contributes to diversity of content in the media and fulfilling the ABC’s function to encourage and promote musical, dramatic and performing arts. The ABC acknowledges that a public broadcaster should never gratuitously [...] offend and accordingly any content which is likely to [...] offend must have a clear editorial purpose.

The ABC potentially reaches the whole community, so it must take into account community standards. The ABC must also be able to provide content for specific target audiences whose standards may differ from generally held community attitudes. Applying that [...] offence standard requires careful judgement. Context is an important consideration. What may be inappropriate and unacceptable in one context may be appropriate and acceptable in another. Coarse language [...] may form a legitimate part of [...] artistic work. Consideration of the nature of the target audience for particular content is part of assessing [...] offence in context, as is any signposting that equips audiences to make informed choices about what they see, hear or read.

Standards

7.1. Content that is likely to cause [...] offence must be justified by the editorial content.

7.2 Where content is likely to cause [...] offence, having regard to the context, make reasonable efforts to provide information about the nature of the content through the use of [...] warnings or advice.

Complainant’s submission: The complainant submitted to the ACMA on 13 October 2011:

Highly offensive lyrics about gang sex, rape and sodomy. A warning was given but the inflexion in the ‘warning’ was that it was a legal requirement and that they did not really consider it offensive. The lyrics were referred to as ‘naughty’.

ACMA Investigation Report – Lunch broadcast by 4JJJ on 11 April 2011. 3 Error: Reference source not found

The track was aired within 15 minutes of a news story of a pack-rape of a 19 year old woman in NSW.

Broadcaster’s submission: The ABC’s Audience and Consumer Affairs responded to the complainant:

It most unfortunate that a connection has been made between a news story about the gang rape of a 22 year old in Wagga Wagga and a song played 20 minutes after that.

The rape described in the news story was truly abhorrent, and Triple J would never seek to make light of such an incident. There was no connection intended or implied with the song and triple j certainly does not condone rape.

The song is in keeping with the theme of Kanye’s album My Beautiful Dark Twisted Fantasy where he lays bare his ego and his life. Its themes include decadence, grandiosity, escapism, sex, wealth, romance, self-aggrandizement and self doubt. Hip Hop is a genre that uses extreme language, concepts and personal commentary not as a means of offending but rather as a means of reflecting the culture and environment from which the artist comes. The song is considered to have both artistic merit and relevance to Triple J's target demographic of 18-24 year olds.

We appreciate that many people would not approve of anal sex or gang bangs but there is no inference of rape or sexual violence in Kanye's lyrics. In the language hip hop, a gang bang is not gang rape and anal sex is not violent. In one sense the message of the song is comparatively positive – that he is saying that he is forsaking drugs for sex/love and religion.

A language warning was given before the song was played. The presenter’s use of the word “naughty” was used to describe the coarse language and did not refer to the actions described in the song.

Accordingly, while noting your concerns, Audience and Consumer Affairs are satisfied the broadcast was in keeping with the ABC’s editorial standards. Nonetheless, please be assured that your comments have been noted and conveyed to both ABC Radio management and the producers of the program.

[...].

Finding The ABC did not breach clauses 7.1 and 7.2 of the ABC Code of Practice 2011.

Reasons Clauses 7.1 and 7.2 of the Code must be interpreted and applied in accordance with the overarching Principles of clause 7.5 The Principles of clause 7 explain that the ABC’s function is to entertain diverse audiences and, among other things, encourage and promote innovative music content. This is in line with the objects of the Broadcasting Services Act 1992 (the Act)

5 IV. Principles and Standards, ABC Code of Practice 2011.

4 to promote the availability of a diverse range of radio services to audiences throughout Australia6.

The Principles of clause 7 recognise that innovative content may offend some audience members and that the ABC should not broadcast content that is likely to offend without a clear editorial purpose. When assessing if content is likely to cause offence it is important to consider the context in which that content is broadcast. Content broadcast in one context may be appropriate while the same content broadcast in a different context may be inappropriate. In this regard, it is important to consider the target audience for the particular content and whether the audience was provided with any signposting to equip them to make an informed choice about what they were to hear. The complainant’s concern is that the song broadcast, ‘Hell of a Life’, was ‘highly offensive’ and played in close proximity to a news story about a rape. ‘Hell of a life’ is from Kanye West’s album My Beautiful Dark Twisted Fantasy. The album was well received in Australia and:  debuted at number six on the Australian Recording Industry Association (ARIA) Top 50 Albums chart;7

 was certified platinum by ARIA;8  was featured on Triple J’s Hottest 100 Volume 18 annual CD;9 and  listed at number 11 on Triple J’s listener’s Top 10 Albums of 2010.10

Give the popularity of My Beautiful Dark Twisted Fantasy with Australian listening audiences and in particular Triple J’s listening audience, the ACMA considers that it is likely that Triple J listeners would have been familiar with the Kanye West’s lyrical style, which often contains coarse language as a legitimate part of Kanye West’s musical work. The ACMA does not consider that the broadcast of ‘Hell of a Life’ would have fallen outside the expectations of the Triple J listening audience or be offensive to Triple J’s target audience of 18 to 24 year olds. The ACMA acknowledges the complainant’s concern that the song was played in proximity to a news story concerning a rape. Triple J news is delineated from other program content through the use of a chime and a separate news reader. Given that the song was broadcast 20 minutes after the news story and clearly outside the allocated news slot, the ACMA does not consider that listeners would have associated the song with the news story. Even if an ordinary, reasonable listener considered that the song was likely to cause offence, the ABC provided information about the nature of the content through the use of a language

6 See section 3(1)(a) of the Act. 7 ARIA Top 50 Albums Chart – 28/11/2010, Australian Recording Industry Association, http://www.webcitation.org/5uZy41ke2, cached ARIA website from 28 November 2010, accessed on 30 November 2011. 8 www.aria.com.au/pages/httpwww.aria.com.aupageshttpwww.aria.com.aupageshttpwww.aria.com.aualbum accreds2011.htm, accessed on 30 November 2011. 9 http://shop.abc.net.au/products/triple-j-hottest-100-vol-18, accessed on 30 November 2011. 10 www.abc.net.au/triplej/kingsmill/albumpolls/accessed on 30 November 2011.

ACMA Investigation Report – Lunch broadcast by 4JJJ on 11 April 2011. 5 Error: Reference source not found warning broadcast immediately before the song. This language warning enabled audience members to make an informed choice about whether they would listen to the song knowing it contained coarse language. There is no evidence to suggest that the tone of the warning indicated that the presenter was insincere or did not consider that the content could have been offensive. The ACMA finds that the ABC did not breach clauses 7.1 and 7.2 of the ABC Code of Practice 2011.

6 Attachment A Triple J language warning

Watch out! This next song has some naughty words. I’ll do that again. Look out! Naughty words coming at ya!

Kanye West, ‘Hell of a Life’ lyrics

I think I just fell in love with a porn star Turn the camera on, she a born star Turn the corners in a foreign car Call the coroners do the CPR She gave that old nigga a ulcer Her bitter sweet taste made his gold teeth fake, uh Make her knees shake, make a priest faint, uh Make a nun cum, make her cremate, uh Move downtown, cop a sweet space, uh Livin' life like we won the sweepstakes, what! We headin' to hell for heaven's sake, Huh! Well I'mma levitate, make the devil wait, Yeah!

Have you lost your mind? Tell me when you think we crossed the line No more drugs for me, pussy and religion is all I need Grab my hand and baby we'll live a hell of a life

Never in your wildest dreams, never in your wildest dreams In your wildest You could hear the loudest screams, comin' from inside the screen You a wild bitch Tell me what I gotta do to be that guy Said her price go down, she ever fuck a black guy Or do anal, or do a gangbang It's kinda crazy that's all considered the same thing Well I guess alotta niggas do gang bang And if we run trains, we all in the same gang Runaway slaves all on a chain gang Bang bang bang bang bang

One day I'm gon' marry a porn star We'll have a big ass crib and a long yard

ACMA Investigation Report – Lunch broadcast by 4JJJ on 11 April 2011. 7 Error: Reference source not found

We'll have a mansion and some fly maids Nothin' to hide, we both screwed the bride's maid She wanna role play, 'til I roll over I'mma need a whole day, at least rolled doja What party is we goin' to on Oscar day 'Specially if she can't get that dress from Oscar de La Renta, they wouldn't rent her they couldn't take the shame Snatched the dress off her back and told her, "Get away." How could you say they live they life wrong? When you never fuck with the lights on

One day I'm gon' marry a porn star We'll have a big ass crib and a long yard We'll have a mansion and some fly maids Nothin' to hide, we both screwed the bride's maid She wanna role play, 'til I roll over I'mma need a whole day, at least rolled doja What party is we goin' to on Oscar day 'Specially if she can't get that dress from Oscar de La Renta, they wouldn't rent her they couldn't take the shame Snatched the dress off her back and told her, "Get away." How could you say they live they life wrong? When you never fuck with the lights on

I think I fell in love with a porn star And got married in a bathroom Honeymoon on the dance floor And got divorced by the end of the night That's one hell of a life