3MEL - ACMA Investigation Report 2761

Investigation Report No. 2761

File no. ACMA2012/192

Licensee Nova 100 Pty Ltd

Station 3MEL Melbourne

Type of service Commercial radio

Name of Broadcast Hughesy & Kate

Date of broadcast 29 November 2011

Relevant Code Clause 1.1(c)(i) of the Commercial Radio Australia Codes of Practice 2011

Date finalised 11 April 2012

Decision No breach of clause 1.1(c)(i) (misuse of alcoholic liquor)

ACMA Investigation Report 2761—Hughesy & Kate—3MEL—29 November 2011 Background  The Australian Communication and Media Authority (ACMA) received a complaint regarding the broadcast of the song Hangover performed by Taio Cruz (the song) during the breakfast program on 3MEL Nova 100 on 29 November 2011.  The complainant was not satisfied with the response provided by the broadcaster and referred the complaint to the ACMA.  The complainant questioned the suitability of broadcasting a song that, in his opinion, presented the misuse of alcohol as desirable. The complainant was also concerned that the song could be harmful for young people who are influenced by the type of music played on the FM station. Specifically: “... I believe [the song] contravenes the code of practice by promotion alcohol misuse”. Continuing, “The tone of the song could barely be described as negative, or the artist’s attitude one of regret. A celebration would be a closer description... I feel influential FM music stations such as Nova should be doing more to solve the problems rather than play songs that encourage alcohol mis-use.”  The assessment is based on a recording of the song supplied to the ACMA by Nova 100, submissions from the complainant and broadcaster, and correspondence between the broadcaster and the complainant. Other sources have been identified where relevant.

Issue: Did the broadcast of the song, Hangover, on 29 November 2011, present as desirable the misuse of alcoholic liquor?

Relevant code provision The ACMA considered the licensee’s compliance against clause 1.1 (c)(i) of the Commercial Radio Australia Codes of Practice and Guidelines 2011 (the Codes): 1.1 A licensee must not broadcast a program which in all of the circumstances: (c) present[s] as desirable: (i) the misuse of alcoholic liquor;

Finding 3MEL did not breach clause 1.1(c)(i) of the Codes for the broadcast on the song Hangover on 29 November 2011. Assessment  In assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ordinary reasonable listener.

ACMA Investigation Report 2761—Hughesy & Kate—3MEL—29 November 2011 2 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 assessing clause 1.1(c)(i) of the Codes the ACMA considers the words desirable and misuse with reference to the Macquarie Dictionary (5th edition) definition:

Desirable: worthy to be desired; pleasing, excellent, or fine.

Desire: to wish or long for; crave; want.

Misuse: wrong or improper use; misapplication  The ACMA considers that this clause seeks to prohibit a clear encouragement to misuse alcohol, where ‘misuse’ of alcohol in the context of this investigation is the excessive consumption of alcohol.  The audio broadcast provided to the ACMA contained slightly altered lyrics to the lyrics contained in the complaint. The ACMA sought and received confirmation from the broadcaster that the audio provided to the ACMA was not altered in any way to the material broadcast on 29 November 2011. The ACMA believes the lyrics provided by the complainant are likely to be from an alternate version of the song and not one which is broadcast by Nova 100.  The broadcaster’s submission to the ACMA raised questions of the suitability of a song constituting a program for the purpose of the Codes, however the ACMA notes that a program is defined by the Codes as meaning “all matter broadcast...”, and the ACMA’s view is that a song can constitute part of a program broadcast. Reason  The ACMA considers the song is sung in the first person and describes the singer’s own personal experiences with the consumption of alcohol. At no point during the song does the singer suggest excessive consumption of alcohol would be a desirable or recommended course of action, and nor does the singer directly seek to encourage others to replicate his actions. The lyrics also include reference to the negative effects of alcohol, ‘I’ve got a hangover’ (a transcript of the lyrics are at Attachment A).  Notwithstanding this, the ACMA acknowledges that throughout the song, and specifically in the hook, the lyrics make reference to the singer’s consumption of alcohol to the point of sickness. For example, the repetition of the lines, “...I can drink until I throw up...I’m going to get trashed tonight, night... I’ve got an empty cup, pour me some more.”  The ACMA notes the tune and musical rhythm of the song is fast and upbeat which reduces the impact and brashness of the lyrics to the ordinary reasonable listener. The upbeat tone of the song may be considered ‘catchy’, however this does not necessarily mean the lyrics contained within it portray something as ‘desirable’.

1 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167

ACMA Investigation Report 2761—Hughesy & Kate—3MEL—29 November 2011 3  Furthermore the example provided above also points to negative aspects of drinking to excess, which detracts from any possible ‘desirability’ gained from other lyrics. As the broadcaster submitted,

“We believe that, when heard in context, the song discusses both positive and negative aspects involving alcohol. It certainly does not glamorise the concept of a ‘hangover’ or encourage/ask others to misuse alcohol.”

The ACMA agrees that, having regard to the context of the lyrics and tone of the song, the ordinary reasonable listener would not consider the song portrays the misuse of alcohol as desirable.  The ACMA further notes the complainant’s concerns that FM stations, such as Nova 100, have the potential to influence listeners. In this regard the broadcaster submitted, “It is also relevant to note that the song is a light-hearted pop song with catchy lyrics. It is not intended to be interpreted literally, as fact, or as a serious piece of commentary on an issue.” The ACMA considers the ordinary reasonable listener, with his or her general experience and knowledge of worldly affairs, would have some understanding that, generally, lyrics to popular songs are part of an entertainment and / or an artistic form, and may not be intended literally.  On balance and considering the song in its entirety the ACMA considers the broadcast did not explicitly encourage the excessive consumption of alcohol, nor make a clear or direct reference to the misuse of alcohol in a desirable manner.  Accordingly the ACMA finds the song broadcast by 3MEL has not breached clause 1.1(c)(i) of the Codes.

ACMA Investigation Report 2761—Hughesy & Kate—3MEL—29 November 2011 4 Attachment A

Lyrics – Hangover by Taio Cruz I wanna keep it going, keep keep it going, come on! I got a hangover, wo-oh! I've been drinking too much for sure I got a hangover, wo-oh! I got a hangover, wo-oh! I've been drinking too much for sure I got an empty cup I got a hangover, wo-oh! Pour me some more I got an empty cup Pour me some more So I can go until I blow up, eh So I can go until I blow up, eh And I can drink until I throw up, eh And I can drink until I throw up, eh And I don't ever ever want to grow up, eh And I don't ever ever want to grow up, eh I wanna keep it going, keep keep it going, I wanna keep it going, keep keep it going, going, going, going.... come on!

I got a little bit trashed last night, night I got a little bit wasted, yeah yeah I got a little bit mashed last night, night I got a little --- faced it, yeah yeah

Oh oh oh oh oh, I'm on the roof, If you don't know Well now you know

I got a hangover, wo-oh! I've been drinking too much for sure I got a hangover, wo-oh! I got an empty cup Pour me some more

So I can go until I blow up, eh And I can drink until I throw up, eh And I don't ever ever want to grow up, eh I wanna keep it going, keep keep it going, come on!

I’m going to get trashed tonight, night I’m going to get a bit tipsy, yeah yeah I’m going to rock the last dance tonight, night, Ok tell me who’s with me? Yeah yeah

Well, I’m going, If you don’t know, Well now you know...

I got a hangover, wo-oh! I've been drinking too much for sure I got a hangover, wo-oh! I got an empty cup Pour me some more

So I can go until I blow up, eh And I can drink until I throw up, eh And I don't ever ever want to grow up, eh

ACMA Investigation Report 2761—Hughesy & Kate—3MEL—29 November 2011