1998-002

BEFORE THE BROADCASTING STANDARDS AUTHORITY

Decision No: 1998-002

Dated the 29th day of January 1998

IN THE MATTER of the Broadcasting Act 1989

AND

IN THE MATTER of a complaint by

WING-YAU YEE

of Auckland

Broadcaster

RADIO i98FM LIMITED

S Maling Chairperson

L Loates

R McLeod

DECISION

Summary

During the breakfast programme on Radio i98FM on 22 September 1997, the hosts

conducted a competition to unravel the meaning of spoken Chinese phrases.

Mr Wing-Yau Yee telephoned the station to complain about what he regarded as

racially offensive jokes. In a letter following he wrote that he objected to the use of

the racially stereotyped Chinese accent which formed the basis of the competition. In

his view, he wrote, the dialogue implied that Chinese speakers were incapable of

speaking English.

The Operations Manager for Radio i98FM personally apologised to Mr Yee and

subsequently wrote to him, again apologising for any offence caused and advising that

the breakfast show hosts appreciated that what they did was wrong.

Dissatisfied that the complaint was not upheld in full, and with the action taken on

the aspect upheld, Mr Yee referred the complaint to the Broadcasting Standards

Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have read the correspondence (summarised in the

appendix). No tape of the exchange was available. On this occasion, the Authority

determines the complaint without a formal hearing.

Listeners to Radio i98FM's breakfast show on 22 September 1997 were invited to

participate in a competition to decipher a parody of a Chinese speaker's version of

English phrases.

Mr Wing-Yau Yee complained to the station, first by telephone, and then in writing,

that the broadcast was racially offensive. After his telephoned complaint, he received

a letter which acknowledged that the programme was not in good taste, an apology

from the station, and an assurance that the hosts meant no harm when parodying the

Chinese accent and that such material would not be broadcast again. The station

considered no public apology was necessary, since Mr Yee was the only complainant.

In a letter to the station, Mr Yee complained that the station's action was insufficient

because it did not reflect the gravity of the breach of broadcasting standards, nor did it

rectify the damage caused to the Chinese community. He considered that by

parodying the Chinese accent, the broadcaster had derided Chinese people and

encouraged anti-Asian sentiment. In his view, an on-air apology was the appropriate

remedy.

The station's response was to repeat that it considered sufficient action had been

taken and that it considered the matter as closed.

When Mr Yee referred the complaint to the Authority, he repeated his request for an

apology and expressed concern that the station's manager regarded the matter as

closed. He also complained that the broadcaster did not advise him, in writing, of his

right to refer the complaint to the Authority should he be dissatisfied with the

outcome.

After the complaint was referred to the Authority, a response was sought from The

Radio Network. It advised first that there was no tape of the programme. Secondly,

it reiterated that an apology had been offered to Mr Yee, and that its position was that

if Mr Yee was personally offended, then a personal apology was the appropriate

remedy. With respect to Mr Yee's claim that he was not advised that he could refer

the matter to the Broadcasting Standards Authority, The Network responded that Mr

Yee was advised of this option when the station manager spoke to him on a second

occasion.

In a more detailed letter to the Authority, Mr Yee took issue with aspects of the

station's response. First, regarding the lack of a tape of the programme, he reported

that at the time he lodged his complaint by telephone (on the day of the broadcast), it

was intimated that there was a tape, since the station manager stated that all radio

broadcasts were routinely taped. In fact the Authority is satisfied that there was no

tape, since this was not a programme which is subject to the requirement under

standard R35 that a tape be retained. That standard reads:

R35 For a period of 35 days after broadcast, radio stations shall hold a

recording of all talkback and open line programmes and a copy or tape of news

and current affairs items.

Mr Yee expressed concern that the lack of a tape would hinder the Authority's

investigation of the complaint and that no documentation or transcript had been

provided to the Authority.

Mr Yee complained that the broadcast breached standards R2 and R14 of the Radio

Code of Broadcasting Practice. Those standards require broadcasters:

R2 To take into consideration currently accepted norms of decency and

good taste in language and behaviour, bearing in mind the context in

which any language or behaviour occurs.

R14 To avoid portraying people in a manner that encourages denigration of

or discrimination against any section of the community on account of

gender, race, age, disability, occupational status, sexual orientation or as

the consequence of legitimate expression of religious, cultural or

political beliefs. This requirement is not intended to prevent the

broadcast of material which is

i) factual, or

ii) the expression of serious opinion, or

iii) in the legitimate use of humour or satire.

Mr Yee also noted that the Authority had the powers of a Commission of Inquiry

under s.12 of the Broadcasting Act 1989, and requested that it require The Radio

Network to produce papers, documents and other records related to the production of

the programme.

Secondly, Mr Yee reiterated that in his view, the broadcast denigrated the Chinese

community because it ridiculed their ability to pronounce English words. He argued

that not only did the broadcast denigrate Chinese people, but it also conveyed the

notion that it was permissible to do so. He repeated that he was not advised of his

right to complain to the Authority.

In its response The Radio Network first dealt with the matter of there being no tapes

or records of the competition. The Network noted that since i98FM was a music and

entertainment station, there were no tapes available of the programme. Describing the

broadcast on 22 September as an entertainment piece in which a variety of accents

were "sent up", including American, Irish, Australian and Asian, The Network noted

that the station manager had apologised and expressed his concern about the

broadcast. To Mr Yee's contention that he was not advised of his right to refer the

matter to the Broadcasting Standards Authority, The Network reported that the

station manager had assured it that he had told him by telephone of his right to do so.

It advised that it considered the whole broadcast as "all very harmless", and that a

personal apology to Mr Yee was the appropriate remedy. In later correspondence

The Network argued that Mr Yee was incorrect to assume that the station had

acknowledged that it breached standard R2 of the Radio Code of Broadcasting

Practice. It argued that the standard did not apply in this case.

At the outset the Authority states that its ability to determine this complaint has been

hampered by The Radio Network's inability to provide either a tape or a written

record of the breakfast show exchange. It acknowledges that it has the power, under

s.12 of the Broadcasting Act 1989 to request the production of documents. However,

it is of the view that there is no evidence to suggest that such documents exist, and in

fact, the only evidence is to the contrary. It therefore declines to make any order in

this respect.

Turning to the initial correspondence between the parties, the Authority notes that

the station manager, in writing, acknowledged that the jokes were neither funny nor in

good taste, and advised that the presenters had been reprimanded. That tends to

support Mr Yee's submission that the station upheld the complaint that standard R2

was breached. His referral to the Authority therefore, was on the basis that he was

dissatisfied with the broadcaster's action first, in not upholding the standard R14

aspect of the complaint, and secondly in not broadcasting an apology. It therefore

deals with these two aspects, notwithstanding The Radio Network's later assertion

that Mr Yee was incorrect to assume that the station had accepted that standard R2

had been breached.

Mr Yee's complaint was that standard R14 was breached because the broadcast

denigrated people of Chinese descent by mocking their pronunciation of English. The

Authority is not persuaded that the necessary elements of denigration or

discrimination were present in this case. In particular, it is not persuaded that a

parody on the Chinese accent can necessarily be said to deride Chinese people or

encourage anti-Asian sentiment. It notes that the Chinese community is but one of

many sections of contemporary New Zealand society which may be singled out for

attention in this way from time to time. Standard R14 expressly provides that the

requirement is not intended to prevent the broadcast of material which is in the

legitimate use of humour or satire. The Authority accepts that the element of humour

might well have been questionable. That said, it is not prepared to impute a sinister

motive to the broadcast, especially given that it is unable to listen to a recording of it

and ascertain its tone. It therefore declines to uphold the standard R14 complaint.

The Authority next turns to Mr Yee's complaint that the action taken by the

broadcaster, having upheld the complaint that standard R2 was breached, was

insufficient. It notes that in addition to acknowledging the breach, the station manager

advised that he had reprimanded the hosts, and had also given Mr Yee a personal

apology and an assurance that such an incident would not happen again. The

Authority considers that in the circumstances the broadcaster's action was

appropriate, and declines to uphold the complaint that the action taken was

insufficient.

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Sam Maling

Chairperson

29 January 1998

Appendix

Mr Wing-Yau Yee's Complaint to The Radio Network - 24 September 1997

Following a telephone call on 22 September in which he complained about racially

offensive jokes broadcast during a competition on Radio i98FM's breakfast show, Mr

Yee of Auckland complained to the station in writing. He noted that he had received a

written response to his telephone call, in which the station manager apologised and

explained that no offence was meant. The station manager had assured Mr Yee that he

had pointed out to the show's hosts that that type of joking was neither funny nor

not in good taste, that he had reprimanded them and been assured it would not happen

again. With respect to Mr Yee's request for an on-air apology, the station manager

responded that in light of listener response to the programme and the fact that this

was the only complaint, he did not consider such an apology was necessary.

Mr Yee referred to the telephone discussion he had with the broadcaster on the day of

the broadcast and the broadcaster's subsequent letter of apology dated 22 September.

He stated that he considered the action taken by the broadcaster in response to his

complaint were insufficient.

Mr Yee contended that the personal apology did not reflect the gravity of Radio

i98FM's breach of the standards nor did it rectify any of the damage done to the

station's relationships with other racial communities. He explained that Radio i98FM

had broadcast, on more than one occasion, racially offensive jokes and that over a

period of time listeners were "taught" to speak Chinese by the announcers who then

distorted various English phrases into a mock stereotyped "Chinese language" which

was totally incomprehensible. This parody of the Chinese accent had formed the

basis of a competition and listeners were invited to unravel and interpret the meaning

of these so-called Chinese phrases.

In answer to Radio i98FM's statement that he was the only person who had

complained, Mr Yee suggested that this was probably a statistical reflection of the

composition of the listening audience. He believed that a majority of Chinese people

would have found the humour deeply offensive.

Mr Yee requested that the radio station re-evaluate its decision not to broadcast an on-

air apology to the Chinese community and explain why the "jokes" were considered

to be in poor taste and why they could create racial disharmony. The apology, he

considered, should be broadcast in the same timeslot and repeated for the same

number of times the competition was promoted. He further suggested that the

broadcaster write to the so-called "winners" of the competition with the same

explanation and request they return the prizes to the sponsors.

Mr Yee concluded by pointing out that the public had no knowledge that the breakfast

show had have been reprimanded for making the racist jokes. He commented:

Without an on-air apology, you might as well have "slapped their wrist with a

piece of cornflake!"

The Radio Network's Response to the Formal Complaint- 29 September 1997

The Operations Manager for Radio i98FM responded to Mr Yee advising him that

while he appreciated Mr Yee's concerns, he believed that sufficient action had been

taken by the radio station when it reprimanded the announcers and personally

apologised to Mr Yee. He advised that as far as he was concerned, the matter was

closed.

Mr Yee's Referral to the Broadcasting Standards Authority - 13 October 1997

Dissatisfied with the action taken, Mr Yee referred his complaint to the Authority.

Mr Yee considered that by broadcasting racist jokes on a breakfast show competition,

Radio i98FM had breached standards R2 and R14 of the Radio Code of Broadcasting

Practice. He was dissatisfied with the personal apology offered by the broadcaster

and believed that an apology to an individual did not absolve the broadcaster from the

responsibility of redressing the damage it had done to inter-racial relationships.

Mr Yee considered the station should apologise to the Chinese community. He also

expressed concern that the Radio Operations Manager had said in his letter of 28

September that he regarded the matter as closed. Mr Yee also noted that he had not

been advised that his complaint could be referred to the Authority on the grounds that

he was dissatisfied with the action taken.

Finally, Mr Yee commented that he had gained the impression that the Radio

Network, the parent organisation for Radio i98FM, did not have a formal procedure

for evaluating complaints. He wondered whether the five other major radio stations

which comprised the Radio Network in Auckland would process complaints in the

same arbitrary fashion as Radio i98FM.

The Radio Network's Response to the Broadcasting Standards Authority - 20

October 1997

The Radio Network, through its counsel Mr Brent Impey, responded to the

Authority on behalf of Radio i98FM. It reported that the matter had been discussed

with the Operations Manager of Radio i98FM, and advised that as the broadcaster

was an entertainment and music station, there were no tapes available of the

programme complained about.

The Network explained that in the Operations Manager's opinion a personal apology

was an appropriate remedy for Mr Yee's personal concerns and that the Network did

not believe that the broadcast was "racist" or that any further action by the

broadcaster was warranted.

With regard to Mr Yee's contention that the broadcaster had not advised him that he

could refer his complaint to the Authority, the Network contended that Mr Yee had

been advised during the course of a second telephone conversation with the

Operations Manager that the matter could be referred to the Authority, but accepted

that this advice was not included in Radio i98FM's written response to him.

The Network concluded:

Taking a broader view, from what I have been told of the broadcast as outlined in

this letter, it was all very harmless. There was no intention to denigrate, nor any

slur on any particular race. It was merely a "takeoff" of accents in a humorous

way. In support of this, the two hosts of i98FM do not indulge in racist

comments or issues of controversy; their total aim is to be entertaining without

reverting to serious subjects.

Mr Wing-Yau Yee's Final Comment to the Authority - 5 November 1997

In his final comment, Mr Yee referred first to the absence of a tape of the programme.

It was his understanding, he said, that The Radio Network's radio broadcasts were

routinely taped. He expressed concern that the absence of a tape recording would

hinder the Authority's investigation of the complaint. He also noted that no

transcript or documentation relating to the programme had been provided to the

Authority by the Radio Network. Mr Yee wrote:

I understand that the Authority has the powers of a Commission of Inquiry

under section 12 of the Broadcasting Act 1989 (as stated in Comalco New

Zealand Ltd v Broadcasting Standards Authority 14/12/95 CA 18/95: CA

159/95). Therefore, I request the Authority to require Radio Network/Radio

i98FM to produce papers, documents or other records related to the production

of the breakfast show complained of and the technological back up procedures

Radio Network has set up for its radio stations.

Secondly, Mr Yee repeated that the broadcast denigrated the Chinese community. He

rejected the Radio Network's suggestion that other accents were "sent up" in that

same broadcast, and that it was an Asian accent, rather than a Chinese accent which

was being made fun of.

Mr Yee objected to the Network's suggestion that the show's hosts had "parodied an

Asian accent and translated the phrases into 'kiwi speak'". He wrote:

It is not the everyday practice of ordinary New Zealanders to speak English

with this fake accent. Radio i98FM's breakfast show hosts deliberately used

this so called accent to produce what they thought was a humorous piece.

�

Radio i98FM's breakfast show hosts must have known that these sort of put

downs (not "send ups" as Mr Impey wishes to put it) denigrated Chinese

people's ability to pronounce English words and the sound of the Chinese

language.

Mr Yee noted that when he complained by telephone to the station, he was told that

the "jokes" about the Chinese accent were the first in a series of "jokes" about other

accents. He noted that he listened to the station the next day and discovered that the

competition was not about accents at all. It was about the meaning of various

Australian slang expressions and there was no attempt to mimic the accent. He did

not hear any "jokes" the following day. Mr Yee said that he therefore concluded that

the station had abandoned the "series".

Mr Yee then referred to the conversation he had with the station manager about his

complaint. He stated that there had been only one conversation, and that the station

manager had not, as the Radio Network suggested, referred him to the Broadcasting

Standards Authority. Mr Yee said he was prepared to swear an affidavit to that

effect.

Mr Yee disagreed with the Radio Network's assertion that "it was all very harmless�

and was merely a take-off of accents in a humorous way". He added:

The fake accent, with its implicit suggestion that Chinese cannot pronounce

English words properly and the sound of Chinese was gobbledegook, is and

has been part of the "Asian golliwog" image (i.e. the wily old gentleman

(w.o.g.) with slanted eyes, glasses, buck tooth and pigtails) that Westerners

have perpetuated for years.

Finally, he wrote, unlike other accents when mimicked, the fake Chinese accent carried

with it connotations that Chinese were inferior to Anglo-Saxons and other Europeans.

He considered the fact that the hosts' aim was to be inane was irrelevant since some of

their inane comments could still be racist.

Further Correspondence

In a letter dated 18 November 1997, The Radio Network responded to Mr Yee. First,

it confirmed that there was no tape of the broadcast. It reminded the Authority that

there was no requirement for a tape of the programme to be made since it was an

"entertainment" programme. Further, there was no transcript available. The Network

noted that there appeared to be some confusion regarding the conversation the station

manager had with Mr Yee about whether there was a tape. The station manager had

observed toMr Yee that personalities sometimes recorded broadcasts for use in

promotions to be played during the day. The Network also clarified another point,

which was that there was no tape monitoring system in place at the station.

To Mr Yee's request that the Authority use its powers as a Commission of Inquiry,

The Network responded that should the Authority wish to seek further documents or

ask further questions, then it would accommodate those requests.

Regarding the substance of the complaint, The Network considered the relevant

standard was R14, relating to discrimination. It wrote:

The objective of the programme was to be humorous. i98FM is an easy

listening radio station whose format is aimed at an audience aged 30-49.

Outside of news bulletins, its talk content is entertainment based. The

breakfast programme contains competitions, humour and community

information. It is the antithesis of news and current affairs radio.

There was never any intention on this programme to be racist. The

broadcaster understands that Mr Yee has complained to the Race Relations

Office which has advised the broadcaster that as there was no intention or

hostility, they would not be taking the matter any further.

The Network then responded to other matters raised by Mr Yee. It advised that Mr

Yee was correct in stating that "other accents were not sent up in the same broadcast".

It was the day after that the hosts parodied an Australian accent, and the Irish had

been targeted the day before.

Regarding the information given about the complaints process, The Network repeated

that when Mr Yee telephoned his complaint, he was told that there would be no on-air

apology. When Mr Yee advised that he would take his complaint to the Race

Relations Office, he was told by the station manager of the right to complain under the

Broadcasting Act.

The Network also accepted that Mr Yee was correct when he stated that there was

only one conversation between him and the station manager. The second conversation

referred to a voice mail message left by the station manager on Mr Yee's telephone.

The Network maintained that no breach had occurred.

Mr Yee's Response - 26 November 1997

Mr Yee maintained that he was not confused about what he was told by the station

manager about the recording of broadcasts. He reiterated that he was told that it was

routine practice for The Radio Network stations to record all broadcasts.

Mr Yee expressed surprise that The Network maintained there was no document in

existence which was relevant to the complaint. He considered that it was apparent

that a script was being used. Further, he claimed that there must have been documents

generated when the "competition" was being planned by the station. He said that he

was unconvinced that none existed and that the whole programme was spontaneously

ad libbed by the breakfast show host.

Mr Yee asked The Network to provide a list of the fake Chinese phrases and their

interpretation to the Authority.

Next, he referred to his original letter of complaint, in which he complained that

standards R2 and R14 had been breached. He noted that The Network had not

responded to the R2 aspect of the complaint, even though the station manager had

admitted the jokes were not in good taste. He asked if he could therefore assume that

the station did not dispute that the broadcast was not in good taste.

Responding to other points made, Mr Yee suggested that the correspondence seemed

to imply that only serious programmes could be racist. He disagreed with that

assumption.

Mr Yee confirmed that he had referred the complaint to the Race Relations Office. He

expressed surprise that it had made a decision so soon and noted that he had not been

informed of any decision. However, he argued, even if the Race Relations Office had

made a decision, it would have no bearing on the Authority's decision. He noted that

the Race Relations Office operated under different legislation than the Authority.

Mr Yee repeated that he was never advised by the station manager of his right to

complain.

The Network's Response - 1 December 1997

The Network advised that there were no documents.

Referring to Mr Yee's assumption that the station had acknowledged a breach of the

good taste standard, The Network advised that was not the case. It maintained that

since standard R2 related to norms of decency and taste in language and behaviour, and

that this complaint related to denigration, rather than to the actual words used.

However, if it were wrong on this, its position was that the language and behaviour

was not in breach of standard R2. It contended that it was still acceptable for jokes

and humour to be applied so long as there is no denigration or discrimination against

any section of the community. In declining to uphold the complaint, The Network

maintained that the context was also relevant and that the programme was a breakfast

show which aimed to be humorous.

With reference to the matter being before the Race Relations Office, The Network

reported that it had been advised that the complaint had not been upheld.

Finally it responded to Mr Yee's contention that the station did not advise him of his

right to refer the matter to the Authority. It repeated that the station manager made

that clear to Mr Yee.

Mr Yee's Response - 1 December 1997

Mr Yee enclosed a copy of a letter he had received from the Race Relations Office,

dated 28 November, in which it advised that no decision had been made as to whether

the content of the programme was in breach of the Human Rights Act. It advised that

a decision would be made by 3 December.

Mr Yee noted that this advise was contrary to the assertion made in The Network's

letter of 18 November.

Finally, Mr Yee repeated that the decision of the Race Relations Office should have

no bearing on the Authority's decision on whether the station breached broadcasting

standards.

Further Correspondence

Having been sent a copy of The Network's letter of 1 December, Mr Yee provided

further comment.

First he reiterated that he was unconvinced that no documents existed which related to

the complaint. He suggested that besides the script and the documents planning the

broadcast, the station would have records of who the so called winners of the

competition were and a record of its actions since receiving Mr Yee's complaint. He

wrote:

Only a na�ve person would believe that a radio station can operate and plan its

daily broadcasts without any documentation. Mr Impey [on behalf of The

Network] has not also given a satisfactory explanation of why there are no

documents.

With respect to The Network's contention that standard R2 did not apply, Mr Yee

responded that the standard should be interpreted in the way an ordinary person

would read it. It did not necessarily mean that swear words or improper language

must be used, he argued, and furthermore, standards R2 and R14 were not mutually

exclusive. He gave the following as examples of when the standard might be breached:

sexist language, homophobic comments and racist jokes.

He repeated that the outcome of his complaint to the Race Relations Office was

irrelevant to the Authority's consideration of the complaint. He advised that he had

not yet heard from the Office regarding his complaint.

Mr Yee maintained that the station manager had incorrectly recollected that he had

advised him of his right to go to the Broadcasting Standards Authority. In fact, he

advised, he only found out about that option after telephoning the Authority himself,

after which he was sent a copy of the Codes of Practice and the complaints

information pamphlet.

In another letter, dated 9 December, Mr Yee advised that he remained unconvinced

that no documents relating to the broadcast existed. He suggested that besides the

script and the documents planning the broadcast, the station would have a record of

who won the competition and a record of the actions it had taken since receiving his

complaint. He pointed out that in a civil proceeding these documents would be

relevant and discoverable. To The Network's contention that standard R2 had not

been upheld, and furthermore that it did not apply to the broadcast, Mr Yee

responded that he did not believe standards R2 and R14 were mutually exclusive, as

The Network had contended.

Mr Yee repeated that he was not advised by the station manager of his right to refer to

the Authority and suggested that the station manager had incorrectly recalled the

matter.

In a letter dated 11 December, The Network responded to the Authority's request to

provide some examples of the phrases used during the broadcast. It advised that the

hosts and management were able to recall three phrases:

"moon lan ding" A great achievement by American astronauts

"shai gai" A bashful person

"wai so dim" Are you trying to save electricity?

The Network added that the hosts also recollected that similar take-offs of the

Australian accent were made that morning.

On 15 December, Mr Yee responded that the phrases cited above were truncated

versions of the phrases used, and did not reflect tenor of the exchange or why it was

so offensive. He also noted that the hosts' recollection of the parody of Australian

accents that day was at odds with his own recollection, and with an earlier letter by

The Network, in which it acknowledged that Mr Yee's recollection of the broadcast

was correct ie that the parody of the Australian accents occurred the following day.

In Mr Yee's view, this was but another example of the inaccurate statements which

had come from the station. He therefore questioned seriously its credibility in

recalling the facts of the broadcast and subsequent matters.