ATV Melbourne - ACMA Investigation Report 2581

Investigation Report No. 2581

The complaint

On 6 May 2011 the Australian Communications and Media Authority (ACMA) received an unresolved complaint regarding a segment of the program Just for Laughs: Montreal International Comedy Festival broadcast on 30 March 2011 by the licensee of ATV, Network TEN (Melbourne) Pty Ltd.

The complainant considers the segment’s content was offensive and vilified the Pope and the Catholic community.

The complainant was not satisfied with the response of the licensee and referred the matter to the ACMA for investigation.[1]

The complaint has been investigated in accordance with clause 1.9.6 [proscribed material] of the Commercial Television Industry Code of Practice 2010 (the Code).

The program

Just for Laughs: Montreal International Comedy Festivalis a one-month comedy festival that occurs annually in Montreal, Canada, and features a cast of worldwide stand up comedians and comedic performances. It is described on the Montreal Events website as ‘a comedy fest crawling with talent scouts, booking agents, managers and producers looking for the next big thing...’[2]

The broadcast on 30 March 2011 was a 2 hour highlight reel of performances from the 2011festival and was hosted by Australian comedian Paul McDermott. The segment complained about was a short highlight clip presented in the lead up to a performance by Australian comedian and entertainer, Tim Minchin. The clip ran for 1 minute and 34 seconds and featured an interview between Paul McDermott and Tim Minchin, and a 12 second excerpt of a song clip produced by Tim Minchin entitled ‘Fuck the Pope’. The song clip contained animations of caricatures representing the Pope dancing together with other clergy. The entire segment, including the interview and song clip was as follows:

PM:Another glorious Sunkist day in Montreal. And we catch up with the legend. The wonder. The true beauty of Australia, Tim Minchin.

PM:...You know him you love him. How are you?

TM:Good.

PM:This is your second time in Montreal?

TM:Yeah I’m having fun. I did a gig last night where my backing track didn’t work. I spent 8 minutes pissing around and then did a song called ‘Fuck the Pope’ and walked off stage.

PM:How is ‘Fuck the Pope’ going by the way?

TM:It’s good.

PM:I saw about 2 seconds of it on YouTube when it went up, and then it went into ‘forbidden’ ...you know ‘zone’.

TM:Yeah ‘forbidden zone’.

[song excerpt]

“There are other fucking songs there are other fucking ways I’ll be a religious apologist on other fucking days. The fact remains if you protect a single kid fucker, then pope or prince or plumber you’re a fucking mother fucker.”

PM:That’s a lovely little animation you’ve got. Who did that?

TM:Yes, a guy called Frasier Davidson, he’s a brilliant animator. And I wrote that song in the peak of another wave of allegations and I was feeling furious, the way you do. Um I wrote that song, and I thought, I’ll never be able to play that live. It’s kind of, it’s just going to have to be a viral thing. So I got it animated. But I did the ‘Hay on Wye’ festival which is a book festival, so it was a very intellectual audience and I got a mid-song standing ovation which I’ve never had before.

PM:Wow, that’s pretty incredible.

TM:Because people are, they’re like, furious, but it’s not an easy fury to express. And I thought I’d do it with the orchestra, and then for people who want to walk out, its sort of, I did this ... probably a terrible idea, but I thought I’d do a little pamphlet, like a Jehovah’s witness pamphlet. If they leave, they get a pamphlet explaining what I’m saying, which is that child rape is more offensive than swearing at a man.

[Applause]

PM: And now ladies and gentlemen, here he is entertaining the world, Tim Minchin.

Ordinary reasonable viewer

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 or viewer.

Australian Courts have considered an ‘ordinary, reasonable’ reader (or listener or viewer) 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[3].

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any).

Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the Codes.

Assessment

The assessment is based on submissions from the complainant and the licensee, and a copy of the broadcast provided to the ACMA by the licensee. Other sources are identified where relevant.

Issues: Proscribed Material

Relevant legislation

1.9 A licensee may not broadcast a program ... which is likely, in all the circumstances, to:

1.9.6 provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of ... religion.

Interpretation of clause 1.9.6 of the Code.

‘Likely, in all the circumstances’

The phrase, ‘likely, in all the circumstances’, imposes an objective test[4] and implies a real and not a remote possibility. That is, something which is probable.[5]

‘Provoke or perpetuate intense dislike, serious contempt or severe ridicule’

As the Code does not include definitions of the terms used in this provision, they have been given their ordinary English language meanings. The Macquarie English Dictionary (5th edition) includes the following definitions:

Provokeverb2. to stir up, arouse or call forth; 3. to incite or stimulate (a person etc) to action.

Perpetuateverb1. to make perpetual; preserve from oblivion.

Intense adjective 1. existing or occurring in a high or extreme degree.

Dislike verb1. not to like; regard with displeasure or aversion.

Serious adjective1. of grave or solemn disposition or character.

Contempt noun1. the act of scorning or despising.

Severeadjective 1. harsh, harshly extreme

Ridicule adjective1.words or actions intended to excite contemptuous laughter at a person or thing; derision.

‘On the grounds of’

The provocation or perpetuation of intense dislike or serious contempt towards the person or group, must occur on one or more of the grounds specified in clause 1.9.6 of the Code, including, for example, religion.

There must be a causal connection, in this case, between the religion of the person or group and the feeling of intense dislike or serious contempt or severe ridicule, which is likely to be provoked or perpetuated by the broadcast.[6]

Complainant’s submissions

The complainant submitted:

The host of the show Paul McDermott, prior to introducing Tim Minchin, showed a clip performed and produced by Tim Minchin entitled “Fuck the Pope”. The video showed caricatures of the Pope and various members of the clergy dancing to the song “Fuck the Pope”. The term fucking motherfucker was repeated ad nauseam, before the video came to an end. Not only did the content vilify the Pope, the entire Catholic clergy, all Catholics but also anyone else who found the contents offensive.

...

I believe Mr Minchin was using the program, and Network 10, rather cynically to further his views on recent events in the Catholic Church. He has made very serious allegations about the Pope and done it in such an offensive manner as to beggar belief. In all my years of watching television I have never encountered such foul language. The word motherfucker, for example, is deemed one of the most offensive words in the English language and fuck is not too far behind in terms of abusiveness.

Network 10, in their reply to my initial complaint, has stated it is alright for Mr Minchin to vilify the Pope because [of] the Pope’s alleged protection of priests who abused children. In my understanding these are simply allegations and have not to my knowledge, been seriously tested. They also use the terms satirical and light hearted to describe the video and suggest it was not mean to be taken seriously when it is obvious, from the intensity of his performance, that Mr Minchin was very serious indeed. ...

Network 10 in common with most television channels is keen to push the boundaries of what is acceptable and have created the so called “community standard” which they tend to hide behind when they are brought to task for broadcasting offensive material.

I have made this complaint as I am a practising Catholic and was deeply offended, distressed and insulted by the outpourings of a third rate comic keen on gaining publicity and notoriety for himself.

...

Licensee’s submissions

In its letter to the complainant dated 14 April 2011, the licensee submitted:

The Code proscribes the broadcasting of material that is likely to provoke intense dislike, serious contempt or severe ridicule against a person or a group of persons on the grounds of religion. This is, however, qualified by an acknowledgement of the role of comedy and satire in broadcasting. In addition, the Code creates an important distinction between a program that may cause offence to some members of the audience, and a program that provokes or perpetuates intense dislike, severe ridicule or serious contempt.

Just for Laughs: Montreal [International] Comedy Festival featured an ensemble of stand-up comedians. The program possessed a markedly comical tone, and as such, it was neither intended, nor expected, that it be taken seriously.

...

The specific segment to which your correspondence refers featured comedian, Tim Minchin, performing a song which expresses his abhorrence of the sexual abuse of children by members of the Catholic Church and the position taken by the Pope in these matters. The song intentionally uses explicit language to contrast the severity of abuse against children compared to offensive lyrics.

Upon review, we consider the segment was satirical and light-hearted in tone. We consider viewers recognise from the format and tone of these segments within the program that they are comical and are not meant to be taken seriously. While we appreciate your concerns, given the overall context of the comments within a humorous program sequence, we consider that the material in question was not likely to provoke or perpetuate intense dislike, serious contempt or severe ridicule against Christians, and therefore complied with the Code.

...

Finding

The licensee did not breach clause 1.9.6 of the Code for the broadcast of Just for Laughs: Montreal InternationalComedy Festival on 30 March 2011.

Reasons

Identification of the relevant person or group, and grounds

Proscribed material is broadcast where a program is likely to provoke or perpetuate intense dislike, serious contempt, or severe ridicule against, any person or group on one of more of the grounds specified by clause 1.9.6.

In this complaint, the complainant alleges that the broadcast of the segment‘not only ... [vilified] the Pope, the entire Catholic clergy, all Catholics but also anyone else who found the contents offensive’.

The delegate is satisfied that the relevant person or groupfor consideration is the Pope andthe Catholic community, and the relevant ground is religion.

Was the broadcast likely, in all the circumstances, to provoke or perpetuate intense dislike, serious contempt or severe ridicule against the Pope or the Catholic community on the ground of religion?

Clause 1.9.6 sets a high threshold for the likely effect of prohibited material. The dictionary definitions above indicate that the Code contemplates a very strong reaction to the prohibited behaviours. It is not sufficient that the broadcast was likely to provoke or perpetuate a moderately negative response.

The delegate has assessed the complainant’s concerns in the context of the segment as a whole, including the song and segment’s features, as well as the content, tone and language used.

The segment featured comedian Tim Minchin performing a song which, as the licensee states, ‘expresses his abhorrence of the sexual abuse of children by members of the Catholic Church and the position taken by the Pope in these matters’.[7] As outlined above, the excerpt of the clip contained animated caricature images ofthe Popedancing with other clergy..

There is noquestionthat the song expressed derision and scorn towards the Pope and clergy. This is evident from the title of the song; the subject of the song; the reference in the song to anybody that ‘protect[s] a single kid fucker’ being a ‘fucking motherfucker’; and repetitive use of the term ‘fucking’. The delegate appreciates the complainant was personally offended by the broadcast and that its contents would also have caused offence to members of the public, including of the Catholic community.

The song excerpt and comments are made in the context of an interview with the comedian who openly opposes the stance that the Pope publicly took regarding recent allegations ofchild sexual abuse against the Catholic clergy. The segment does not engage the audience in a discussion on the beliefs or religious practices of the Pope, the Catholic clergy or of the Catholic community. The ‘ordinary, reasonable viewer’ would understand that the references to the Pope and the Catholic clergy were part of the moral of the song, which applied to perpetrators of child abuse generally, and to those who cover it up. This is highlighted in the lyrics:

“...if you protect a single kid fucker, then pope or prince or plumber you’re a fucking mother fucker.”

The delegate considers the song’s reference to the Pope, in the context of the segment as a whole, in and of itself, did not demonstrate the provocation or perpetuation of the Code’s proscribed reactions – ‘intense dislike’, ‘serious contempt’ or ‘severe ridicule’ – against the Pope, or the Catholic community, on the grounds of religion. Any such dislike, contempt or ridicule arose from their response tothe issue of alleged paedophilia in connection with the clergy.

Furthermore, it is noted thatthe song excerpt was brief (12 seconds in a 1 minutes and 34 second segment). Although the language included the terms ‘fucker’ and‘motherfucker’, and repeated use of the word ‘fucking’, the accompanying animated visuals were mild. The commentary surrounding the song was an explanation of the production and performance, including an acknowledgement of its controversial nature, which overall served to ameliorate the severity of tone expressed by the song in segment:

...I wrote that song in the peak of another wave of allegations and I was feeling furious the way you do. Um I wrote that song, and I thought, I’ll never be able to play that live. It’s kind of, it’s just going to have to be a viral thing.

Applying the threshold test outlined above, including the requirement to consider ‘all the circumstances’ of the broadcast – it is unlikely the segment (notwithstanding the language in the song directed at the Pope), was so harsh or extreme that it would perpetuate or provoke severe ridicule, intense dislike or serious contempt against the Pope, or Catholics on the grounds of religion. For these reasons, the delegate is of the view that in the circumstances of this broadcast, the material complained about has not breached clause 1.9.6 of the Code.

ACMA Investigation Report – Just for Laughs: Montreal International Comedy Festival broadcast by ATV Melbourne on 30 March 2011 1

[1]Sections 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s jurisdiction in relation to complaints made under codes of practice.

[2]

[3]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.

[4]Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at 356-357 [16].

[5] See the discussion in Re Vulcan Australia Pty Ltd and Comptroller-General of Customs (1994) 34 ALD 773 at 778.

[6]Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23].

[7]Licensee’s letter to the complainant dated 14 April 2011.