CASE NUMBER: 30/2009 DATE OF HEARING: 9 OCTOBER 2009 5FM APPELLANT vs C GUELPA RESPONDENT APPEAL TRIBUNAL: PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) PROF HENNING VILJOEN MS ZALI MBOMBO MR BRIAN MAKEKETA For the Respondent: The Respondent attended the hearing in person. For the Appellant: Mr Fakir Hassen: Manager – Broadcast Compliance, SABC, accompanied SABC, accompanied by Ms Veronica Barnard: Compliance Officer; Mr Vukile Zondi, Programme Manager, 5FM Appeal against BCCSA Adjudication – adjudicator finding that broadcaster went too far with this song and thus contravened the Code – broadcaster ordered to broadcast song after the watershed - at issue is the protection of children – Tribunal taking the nature of the radio station into consideration – in terms hereof the target audience is trendy, open minded, opinionated young adults in the 20-30 year old age – children under the age of 16 are not included – Tribunal finding that, although sexual innuendos abound in the song complained of, there is nothing so explicit that would constitute offence to the target audience – appeal accordingly succeeds - 5FM vs C Guelpa, Case No: 30/2009 (BCTSA). __________________________________________________________________________ 1 SUMMARY This is an appeal against a BCCSA Adjudication. The adjudicator found that the suggestive sexual language might lead listeners to indulge in similar behaviour and that the broadcaster went too far with this song and thus contravened the Code. The adjudicator ordered the broadcaster to broadcast the song after the watershed. At issue here is the protection of children against harmful material. The Tribunal took the nature of the radio station into consideration. In terms hereof the target audience is trendy, open minded, opinionated young adults in the 20-30 year old age range. It is explicitly stated in the profile of the station that children under the age of 16 are not included in their target audience. The Tribunal found that, although sexual innuendos abound in the song complained of, there is nothing so explicit that would constitute offence to the target audience. Children under 16 years are not targeted and should not be taken into consideration in determining whether there was a contravention of the Code. The appeal accordingly succeeds and the complaint is not upheld. ___________________________________________________________________________ JUDGMENT HP VILJOEN [1] This is an appeal against a decision by an adjudicator of the BCCSA and was reported as C Guelpa vs 5FM, Adjudication No: 58/A/2009. The adjudicator upheld the complaint and ordered that the song complained of should only be broadcast after the watershed. Part of the reasoning by the adjudicator reads: If young teenagers are constantly exposed to songs like the one in question, it is highly possible that they may encode in memory the behaviour that is described (such as the use of suggestive sexual language and promiscuity) and that they may indulge in similar behaviour (like having sex as a birthday present) when the opportunity presents itself. The broadcaster appealed against this adjudication. [2] The complaint that was upheld by the adjudicator included the following: “I was listening to 5 FM on this day (08/09/2009) at 14h27 when they played a song on radio called Birthday sex. I find it really inappropriate from a decent point of view that they should promote sexual behavior on a radio station. Their are lots of children and decent people out their that listens to radio and if 5 FM think it is morally correct to allow this kind of music on the air, I think their actions should be addressed. Would you please contact or deal with this?” 2 The complainant also attached a transcription of the lyrics of the song, which reads as follows: Yeah, yeah, yeah {Verse 1} It's your birthday so I know you want to riiide out, Even if we only go to myyy house Sip mo- weezy as we sit upon myyy couch Feels good, but I know you want to cryyy out You say you want passion I think you found it Get ready for action Don't be astounded We switchin' positions You feel surrounded Tell me where you want your gift, girl {Chorus} Girl you know I-I-I Girl you know I-I-I I've been feenin' Wake up in the late night...dreamin' about your lovin' Girl you know I-I-I Girl you know I-I-I Don't need candles or cake just need your body to make good Birthday sex Birthday sex It's the best day of the year, girl Birthday sex Birthday sex It feels like, feels like... lemme hit that...g-spot g-spot {Verse 2} See you sexy and them jeans got me on 10 1-2-3, think I got you pinned Don't tap out...fight until the end Ring that bell; we gon start over again We grindin' wit passion, cuz it's yo birthday Been at it for hours...I know you thirsty You kiss me so sweetly...taste just like Hershey's Just tell me how you want yo gift, girl {Chorus} {Verse 3} 3 First I'm gonna take a dive into the water deep until I know I pleased that body (body ah oop) Or girl without a broom I might just sweep you off your feet And make you wanna tell somebody (body, how I do) somebody body how i do Or maybe we can float on top my water bed you close your eyes as i impry between your legs We work our way from kitchen stoves, and tables Girl you know I'm more than able to please, yeah Say you wanted flowers on the bed (on the bed) But you got me and now it's on again {Chours) (it's the best day of the year, girl) (lemme know what it feels like, feels like, when I hit that G-spot, G-spot) [3] The SABC responded to this complaint as follows: “We would like to start by quoting 5FM’s music policy; “5FM is a Contemporary Hit Radio station that presents music, news, information, sport and entertainment suited to a youth and young adult audience in the metropolitan areas of South Africa. With music as the core of its on-air output, this is typically mainstream pop, popular rock, modern rock, popular dance, and mainstream R&B and rap genres. Music styles reflect international popular culture trends, and include a strong component of South African artists of international standard”. 5FM is music radio station targeting young trendy adults, keeping in mind that teens and older adults also listen to the station. 5FM’s playlists are made up of the world’s top 40 airplay chart placings and approximately 25% of local music promoting South African talent. The song Birthday Sex debuted on the Billboard Hot R&B/Hip-Hop Songs at number 93 on the week of March 21, 2009. In May 2009, the song topped the Billboard Mainstream R&B/Hip-Hop chart after ascending from number five to one, the greatest rise for a new artist since Tweet's "Oops (Oh My)" in 2002. http://en.wikipedia.org/wiki/Birthday_Sex - cite_note-12#cite_note-12On the issue date May 14, 2009, Birthday Sex became the first song in several years outside of the top 10 of the Billboard Hot 100 to simultaneously have the greatest airplay gain and digital download gain. This is the reasoning for the selection of Birthday Sex to be playlisted on 5FM. The song’s performance on international charts and airplay on radio stations worldwide is what informed 5FM’s decision to playlist the song not an urge to “promote sexual behavior on a radio station” that the complainant seems to think is the reasoning. As far as the lyrics of the song are concerned they are far from explicit, in fact they require mature insight for the full extent of the lyrics to be understood, and even then what is being described is not an indecent act that has no place on radio, at least not 5FM. The BCCSA has adjudicated over cases such as N. Smythe vs 94.7 Highveld Stereo (Case no: 2002/38) where a complaint was lodged about a joke “about anal sex, oral sex, sadomachism, beastiality and golden showers” and it was held that “the 4 joke was not that explicit and required mature insight before the full extent of the material presented would be understood”. I feel that in a free speaking and freely expressive society with a diverse media landscape, this type of complaint if upheld would unduly limit fundamental rights, of expression and of speech, contained in the Constitution of South Africa. As much as 5FM apologises for offending the complainant, this song will not be taken off the 5FM playlist unless the BCCSA orders us to do so limiting our fundamental rights, of expression and freedom of speech.” [4] The Appellant submitted the following additional comments: “We have noted and respect the adjudication by the BCCSA in this matter, but would like to make some comment on the ruling which suggests that the SABC is in contravention of clause 27 of the BCCSA Code. 5FM is a national contemporary hit radio station with an audience of 1.4 million and growing, 20-30 year old cosmopolitan South Africans. The target market for 5FM is trendy, open minded, opinionated young adults. 5FM is not a children’s radio station and does not target the audience under the age of 16. Although there is no specified ‘watershed’ period for radio, the SABC respects and takes cautionary measures to ensure that clauses 18, 26 and 27 of the BCCSA Code are taken into account when children may be listening to the radio.