Kavanagh and MediaWorks Radio Ltd - 2019-001 (2 April 2019)
- Judge Bill Hastings (Chair)
- Wendy Palmer
- Susie Staley MNZM
- Paula Rose QSO
- Terence Kavanagh
ProgrammeThe AM Show
BroadcasterMediaWorks Radio Ltd
Channel/StationRadio Live # 3
[This summary does not form part of the decision.]
The Authority has not upheld a complaint that a segment on The AM Show, in which a booth designed to enable doctors to perform discrete testicle examinations was likened to a ‘confession booth’, breached the good taste and decency and discrimination and denigration standards. The Authority found that, in the context of the segment, the comparison was unlikely to undermine or violate widely shared community norms. It also did not reach the level of malice or nastiness necessary to denigrate a section of the community. The public health message in the broadcast was an important one and overall the Authority found that any potential for harm did not justify a restriction on the broadcaster’s right to freedom of expression.
Not Upheld: Good Taste and Decency, Discrimination and Denigration
 During a segment on The AM Show, presenter Aziz Al-Sa’afin described several interesting exhibits at the Big Boys Toys expo, including the ‘Testimatic’, a booth designed to enable doctors to perform discrete testicle examinations. Mr Al-Sa’afin described the apparatus as being ‘kind of like a confession booth’, only ‘instead of stepping in and telling the man or woman your secrets they just feel your balls and check for any lumps’.
 Mr Al-Sa’afin then spoke to a New Zealand urologist who outlined the importance of men having regular testicle examinations and then provided a description of how the Testimatic booth operates.
 The segment was broadcast on RadioLIVE on 16 November 2018 at 8.45am. The Authority have listened to a recording of the broadcast and have read the correspondence referred to in the Appendix.
 Terence Kavanagh complained that the broadcast breached the good taste and decency and discrimination and denigration standards of the Radio Code of Broadcasting Practice, for the following reasons:
- The reference to the Catholic Church’s use of the confessional box was in very poor taste, as it implied that the Catholic Church should alter the confessional box to allow Catholic priests to make contact with the confessor’s genitals.
- It was offensive and denigrating to ‘all Catholics who hold the Sacrament of Penance (for the forgiveness of sin against God) as a major tenet of their faith’ and particularly Catholic priests who take a vow of chastity.
- The fact that a small minority of Catholic priests ‘abuse those vows’ should not be made ‘the subject of cheap and nasty humour’.
The broadcaster’s response
 MediaWorks responded:
- The segment had humorous elements but also a clear public health message.
- The confession booth reference was not expressed with any malice toward the Catholic Church or its community.
- Therefore the broadcast did not discriminate against or denigrate a section of the community, and was unlikely to have caused widespread undue offense or distress to its target audience.
 The purpose of the good taste and decency standard (Standard 1) is to protect audience members from listening to broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards.1
 The discrimination and denigration standard (Standard 6) protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.
 ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community to their detriment. ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.2
 A high level of condemnation, often with an element of malice or nastiness, will be necessary to find that a broadcast encouraged discrimination or denigration in breach of the standard.3
 In New Zealand we value the right to freedom of expression. However, the Authority is concerned with whether a broadcast has caused harm, and whether the broadcaster has appropriately balanced the right to freedom of expression with the obligation to avoid harm. Accordingly, when we consider a complaint that a broadcast has breached broadcasting standards, we weigh the value of the programme and the importance of the expression against the level of actual or potential harm that may be caused by the broadcast.
Good Taste and Decency
 The complainant submitted that the comparison between the Catholic Church’s use of the confessional and the ‘Testimatic’ booth was a cheap and nasty joke in poor taste. He submitted that the segment would cause serious offence to Catholics, as it implied that Catholic priests would use the confessional booth to make contact with the genitals of those inside.
 After listening to the broadcast, we do not agree that the comparison between the ‘Testimatic’ and a confessional booth carried the inference drawn by the complainant. The presenter was clear when he made the comparison that although the booth resembled a confession booth in appearance, its purpose was completely different:
…instead of stepping in and telling the man or woman your secrets, they just feel your balls and check for any lumps. (Emphasis added)
 We therefore found that the comparison was used to give listeners a clear image of the booth, not to draw comparisons between doctors examining testicles and Catholic priests.
 We note that context is crucial when determining a complaint under the good taste and decency standard.4 We found the following contextual factors important in our determination:
- While the piece was tinged with humour, it focused on an important public health message, encouraging men to check for testicular cancer.
- The item highlighted the prevalence of testicular cancer in the western world.
- This was clear from the framing and introduction alongside the discussion with a professional urologist.
- The AM Show has an adult target audience.
 For these reasons, while the item used humour targeted at an adult audience we do not consider the use of this expression on this occasion was likely to cause widespread undue offence or distress, or undermine widely shared community standards.
Discrimination and Denigration
 Taking into account the contextual factors referred to above, it was clear the comments were not made with the condemnation or malice required to find a breach of this standard.5
 We consider any potential for harm arising from this broadcast is outweighed by the public interest in the important health message and the broadcaster’s right to freedom of expression.
 Accordingly we do not uphold this complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
2 April 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Terence Kavanagh’s formal complaint – 26 November 2018
2 MediaWorks’ response to the complaint – 19 December 2018
3 Mr Kavanagh’s referral to the Authority – 13 January 2018
4 MediaWorks’ confirmation of no further comment – 8 February 2019
1 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
2 Guideline 6a
3 Guideline 6b
4 Guideline 1a
5 Guideline 6b