Lee and MediaWorks Radio Ltd - 2017-030 (24 July 2017)
- Peter Radich (Chair)
- Paula Rose QSO
- Te Raumawhitu Kupenga
- Andrea Lee
ProgrammeJay-Jay, Dom & Randell
BroadcasterMediaWorks Radio Ltd
[This summary does not form part of the decision.]
During a segment on Jay-Jay, Dom & Randell, the show’s hosts asked callers to submit a ‘corny joke’. A caller submitted the following joke: ‘What’s the hardest part about cooking a vegetable? Trying to fit the wheelchair in the pot.’ Before the caller delivered the punchline, one of the hosts (who believed he knew the joke), asked his co-hosts to switch off their microphones so they could discuss it. The hosts also spoke to their producer, asking whether it was appropriate to air the punchline to the joke. After some deliberation, they decided to allow the joke to be broadcast. The hosts reacted to the punchline by saying, ‘No! No! That’s a terrible joke!’ and ‘That’s not a joke!’ The Authority did not uphold a complaint that the segment was in poor taste and discriminatory. While the Authority found the joke to be offensive and distasteful, taking into account the context of the broadcast and the reactions of the hosts, it did not consider the material reached the threshold necessary to find a breach of the good taste and decency standard. The broadcast of the joke also did not amount to hate speech or vitriol intended to encourage the different treatment, or devalue the reputation of, people with disabilities as a section of the community.
Not Upheld: Good Taste and Decency, Discrimination and Denigration
 During a segment on Jay-Jay, Dom & Randell, the show’s hosts asked callers to submit a ‘corny joke’. A caller submitted the following joke:
What’s the hardest part about cooking a vegetable? Trying to fit the wheelchair in the pot.
 Before the caller delivered the punchline, one of the hosts (who believed he knew the joke), asked his co-hosts to switch off their microphones so they could discuss it. The hosts also spoke to their producer, asking whether it was appropriate to air the punchline to the joke. After some deliberation, they decided to allow the joke to be broadcast. At various points during the segment the hosts expressed their distaste, reacting to the punchline by saying, ‘No! No! That’s a terrible joke!’ and ‘That’s not a joke!’
 Andrea Lee complained that the broadcaster knowingly gave air time to a joke that was discriminatory and in poor taste.
 The issues raised in Ms Lee’s complaint are whether the broadcast breached the good taste and decency and discrimination and denigration standards as set out in the Radio Code of Broadcasting Practice.
 The segment was broadcast at 9.05am on 20 March 2017 on The Edge. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Overview of findings and freedom of expression
 The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints.
 Our role is to weigh the value of the programme (and the importance of the expression) against the level of actual or potential harm that might be caused by the broadcast. Here, Ms Lee has submitted that the broadcaster caused harm by intentionally airing a joke that was in poor taste, and discriminatory towards those with disabilities.
 At the outset, we acknowledge the complainant’s position and her legitimate concerns about this broadcast. We also acknowledge that this has been a challenging decision for us to make. We accept that the joke subject to complaint reflected a type of humour that is no longer appropriate or acceptable in our society, and, in our view, it was distasteful and offensive. We therefore do not in any way condone the joke submitted by the caller.
 However, more than a general sense of offensiveness is needed to reach the threshold for us to find a breach of broadcasting standards. The important right to freedom of expression means we will sometimes be exposed to content that offends or distresses us. Our task in this case is to determine whether such material crosses the line set in broadcasting standards, to the extent that it threatens current norms of good taste and decency and/or is discriminatory against, or denigrates, a section of the community. Context is crucial to this assessment, and here we have given careful consideration to the context of the broadcast itself, as well as, for example, the target audience and audience expectations of Jay-Jay, Dom & Randell, and of The Edge.
 In our view this broadcast sparked discussion about what we, as a society, will accept as humour at the expense of others. The offensive statement was made by a third party caller and we consider that the broadcaster, through the hosts, clearly reacted and signalled that this joke was not legitimate humour and was in poor taste.
 For this reason, and together with the contextual factors discussed further below, we do not consider that the high threshold has been reached where we are required to intervene and uphold this complaint. We do not consider this segment would have exceeded audience expectations of Jay-Jay, Dom & Randell, particularly given the hosts’ reactions to the joke, which mitigated the potential harm to an extent. Therefore, we find that limiting the broadcaster’s right to freedom of expression and the audience’s right to receive the broadcast, would not be justified in this case.
Did the broadcast threaten current norms of good taste and decency?
 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. In a radio context, this standard is usually considered in relation to offensive language, sexual references or references to violence, but may also apply to other material presented in a way that is likely to cause offence or distress.
The broadcaster’s submissions
 MediaWorks submitted that:
- It agreed the joke was in poor taste, but did not consider that it was likely to cause widespread undue offence or distress to The Edge’s target audience, as The Edge frequently broadcasts edgy and provocative material.
- Although the joke contained a slang term for disabled people which was coarse and outmoded, it was not motivated by malice towards disabled people and did not attempt to draw humour by making light of their disabilities.
- The joke was framed as being in poor taste and listeners were therefore ‘inoculated to the coming offence’.
 As we have noted above in our discussion of freedom of expression, the joke that was subject to complaint was in poor taste and the members of the Authority found it offensive. Humour at the expense of those who are vulnerable in our society can, and does, cause pain and distress.
 However, it does not automatically follow that this segment, or the broadcast of the joke, was in breach of broadcasting standards. We have previously found that the purpose of the good taste and decency standard is not to prohibit challenging material, or material that some people may find offensive, but rather to ensure that sufficient care is taken so that challenging material is played only in an appropriate context, and that the challenges are not so offensive that they are unacceptable regardless of context.1 In other words, our assessment of whether standards have been breached is heavily dependent on the context of the broadcast.
 On balance, we have concluded the broadcast did not meet the threshold for finding a breach of the good taste and decency standard, taking into account the wider context of the broadcast, including that the joke was not prepared in advance and was delivered by a third party rather than the programme hosts, and the broadcaster’s actions in dealing with the potentially offensive content. Relevant contextual factors in this case include:
- the nature of Jay-Jay, Dom & Randell, a weekday entertainment radio show, known for its provocative and challenging content
- the time of broadcast at 9.05am
- the target, and likely, audience
- the joke was submitted by a caller and not delivered by one of the programme’s hosts
- the hosts’ reaction to the joke and steps to mitigate the potential harm
- audience expectations of Jay-Jay, Dom & Randell and The Edge.
 We acknowledge that, in this case, the broadcaster provided a platform for the joke to reach a wide audience and that it would have caused offence. It is arguable, given one of the hosts was aware of the punchline of the joke, that the caller should not have been allowed to complete the joke in the first place.
 However, on the other hand it is relevant that the joke was not pre-planned or told by a host in the normal course of the show, but rather formed part of a light-hearted segment in which third parties were invited to submit their own ‘corny jokes’ live on-air, intended to entertain and humour listeners. While the hosts eventually allowed the joke to be aired, they did take steps to determine whether the material was seriously offensive, and the joke was not prepared in advance or an intentional prank on the part of the broadcaster.
 To safeguard against offensive content being aired, two opportunities were available to the hosts to screen this content. The first was the discussion and deliberations among the hosts. The second was when the joke was screened by the show’s producer (presumably to ensure seriously offensive material was not aired), and the producer advised the hosts she saw no issue with the joke. In the end, the hosts chose to continue with the joke and allowed it to be broadcast.
 However, it was evident from the audio recording that the hosts were clearly uncomfortable throughout this segment, and after the punchline was revealed, they expressed their own distaste, along with a sound effect indicating the joke was objectionable and not funny. Their response, and actions in screening and debating the joke’s acceptability, to some extent mitigated the potential offence caused and ensured listeners were aware that the hosts did not condone this type of material.
 In doing so, the hosts allowed for a discussion to take place around what we consider to be offensive in New Zealand society. Instead of ignoring the issue, or suppressing the content and moving on to the next caller, the hosts confronted what they considered to be offensive content and signalled its unacceptability to the caller and to listeners.
 We therefore find overall, when taken in the wider context of the programme and the station, this segment did not reach the threshold for finding a breach of Standard 1. This was not a pre meditated act but the result of a third party calling in to the show to share what he considered to be a ‘corny joke’. When the punchline was revealed, the hosts acted appropriately in signalling to audiences that this type of humour was not acceptable and taking steps to mitigate the potential harm.
 Accordingly we do not uphold the good taste and decency complaint.
Did the broadcast encourage the denigration of, or discrimination against, people with disabilities as a section of the community?
 The objective of the discrimination and denigration standard (Standard 6) is to protect sections of the community from verbal and other attacks. The standard 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.
 In light of the importance of the right to freedom of expression, a high level of condemnation, often with an element of malice or nastiness, will be necessary to conclude that a broadcast encouraged discrimination or denigration in breach of the standard (guideline 6b).
 ‘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 class of people (guideline 6a).
The broadcaster’s submissions
 MediaWorks submitted that the material in question was intended as legitimate humour and did not carry a high level of condemnation towards disabled people (referring to Guidelines 6b and 6c to Standard 6. Guideline 6c states that the standard is not intended to prevent the broadcast of material that is legitimate humour, drama or satire).
 We consider that the ‘corny jokes’ segment was intended to broadcast material to entertain and humour listeners, and while this joke represented an outdated and inappropriate form of humour that may have overstepped the boundary for some, we do not think the intention was to encourage the different treatment, or devalue the reputation, of disabled people as a section of the community.
 The broadcast of the joke, from a third party, did not amount to hate speech or vitriol and was not intended as an attack against people with disabilities. Further, the hosts, in their reactions to the punchline of the joke, indicated to listeners their distaste and the view that this joke was outdated and unacceptable.
 We therefore do not uphold the complaint under Standard 6.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
24 July 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Andrea Lee’s formal complaint – 21 March 2017
2 MediaWorks’ response to the complaint – 20 April 2017
3 Ms Lee’s referral to the Authority – 20 April 2017
4 MediaWorks’ confirmation of no further comment – 11 May 2017
1 Fattorini and RadioWorks Ltd, Decision No. 2012-034, at