Investigation Report No. 2596
File No. / ACMA2011/1013Licensee / Port Macquarie Super AM 531 Pty Ltd
Station / 2PM
Type of Service / Commercial radio broadcasting service
Name of Program / Advertisement for Tumblegum Bakehouse and Cafe
Date of Broadcast / 14 April 2011
Relevant Code / Clauses 1.3(a) and 5.6of the Commercial RadioAustralia Codes of Practice and Guidelines 2010
Date finalised / 13 September 2011
Decision / No breach of clause 1.3(a) [standards of decency]
Breach of clause 5.6 [complaints handling]
The complaint
On 4 April 2011, the Australian Communications and Media Authority (ACMA) received a complaint concerningan advertisement for the Tumblegum Bakehouse and Cafebroadcast on
4 April 2011 by Port Macquarie Super AM 531 Pty Ltd, the licensee of 2PM (the licensee).
The complainantwas concerned that the advertisement contained a ‘gratuitous expletive’. 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 against clauses1.3(a) [program content and language] and 5.6 [complaints handing]of the Commercial Television Industry Code of Practice 2010(the Codes).
The advertisement
The advertisement was for Tumblegum Bakehouse and Cafe and was broadcast throughout the day on commercial radio station 2PM.
The advertisement included the following:
Voiceover:Kempsey’s iconic Tumblegum Bakehouse and Cafe has opened a second outlet at downtown Smith Street, Kempsey. So you can experience that Tumblegum feeling at two great locations: Elbow Street, West Kempsey, and the new shop at downtown Smith Street. Fresh breads, scrumptious cakes and pies, fresh made sandwiches and great coffee are all famous Tumblegum products. Join the ever growing fan club at Elbow Street, West Kempsey, and now at Smith Street, downtown Kempsey, where the food’s not just good, it’s bloody great.
Assessment
The assessment is based on:
a recording of the advertisement for Tumblegum Bakehouse and Cafe, provided by the licensee;
the complainant’s submission;
the licensee’s submission; and
publicly available information, the source of which is identified where relevant.
Ordinary, reasonable listener
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’.
Australian courts have considered an ‘ordinary, reasonable listener’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[2].
The delegate asks what the ‘ordinary, reasonable listener’would have understood this program to have conveyed. It 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 delegate to determine whether the material has breached the Code.
Issue 1: Generally accepted standards of decency
Relevant Clause
Clause 1.3 of the Code relevantly provides:
Program Content and Language, including Sex and Sexual behaviour
1.3(a)Program content must not offend generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of therelevant program.
1.3(b)For the purpose of determining:
(i)the audience of the relevant program; and
(ii)the demographic characteristics of that audience,
Regard must be had, in particular, to the results of any official ratings surveys of the licensees’ service in the prior 12 months, (or, in the case of any licensee service operating in regional areas, the most recent official ratings surveys for the licensee’s service).
Complainant’s submission
The complainant submitted:
[...]
I know expletives are often heard in talkback shows but they are unscripted. I really take exception to such words in paid professional advertisements on radio. The above Kemspey cafe advertises about every 15 minutes night and day and ends by saying their scones, sandwiches, coffee etc are ‘not just good, they’re bloody great’.
I bring this to your attention and request the standards you oversee should remove this constant offensive ad.
Licensee’s submission
The licensee submitted:
[...]
The advertisement figures in the Grant Goldman breakfast program, the morning program featuring John Laws, the John O’Callaghan afternoon program, the evening, and midnight program to dawn program compared by Graham Gilbert and Gary Stewart respectively. All of these programs target an adult audience group. The advertisement itself was in-part scripted by the owner of the baker shop in question and it was he who considered the tone and tenure of the advertisement fitted with his targeted clientele.
The range and scope of programming, by way of comparison to a metropolitan market, is not dissimilar to the traditional “talk back” AM stations which target the same audience genre. The FM stations in and around this market tend to be targeted to a younger audience bracket.
As a regional station in a relatively small market no official ratings are conducted for the licensee’s service.
[...]
It is worth noting that the advertisement in question is also played on a rival radio station in the market – seemingly without incident. We also note that the term the [complainant] has objected to being used is one that was part of a rather famous Australian Government tourist campaign featuring Ms Lara Bingle. Whilst it is every person’s right to be able to express a concern about what he or she hears on the radio, and in the media generally, it is our view, given the dominant adult audience this station targets that the advertisement in question does not in our view contravene current standards.
[...]
Finding
In broadcasting the advertisement for Tumblegum Bakehouse and Cafe on4April 2011, the licensee did not breach clause 1.3(a) of the Codes.
Reasons
The ‘purpose’ of the Codes is ‘to prevent the broadcast of programs which are unsuitable, having regard to prevailing community standards and attitudes’. Given this context, clause 1.3(a) of the Codes requires the delegate to consider the meaning of the phrase ‘generally accepted standards of decency’ in light of prevailing broad community standards.
In considering community standards, the delegate notes the objects of the Broadcasting Services Act 1992 (the Act) include the promotion of the availability of a diverse range of radio services to audiences throughout Australia.[3] Another object is to encourage providers of broadcasting services to respect community standards in the provision of program material.[4]
The delegate appreciates that diverse audiences in Australia will not always have everyday tastes and standards in common and further, that material that may be regarded as indecent in one context may be acceptable in another. These issues are addressed in the Codes.
Clause 1.3(a) of the Codes further requires the delegate to have regard to the likely demographic characteristics of a subset of the broad community, being the audience of the relevant program.
The delegate applies the ordinary, English meaning to the term ‘generally accepted standards of decency’.
The Macquarie English Dictionary (5th Edition) states:
Generally adverb:1.with respect to the larger part, or for the most part.
2. usually; commonly; ordinarily.
Accepted adjective:customary; established; approved.
Standards noun1. anything taken by general consent as a basis of comparison; an approved model.
Decencynoun 1. the state or quality of being decent.
2. conformity to the recognised standards of propriety, good taste, modesty, etc.
3. something decent or proper.
Decent adjective1. Fitting; appropriate.
2. conforming to recognised standards of propriety, good taste, modesty, etc., as in behaviour or speech.
The delegate considers that the term ‘generally accepted standards of decency’ refers to the current consensus of recognised present day standards of propriety as opposed, for example, to content that is generally considered indecent or coarse.
As noted by the courts, the question of whether material is indecent, ‘given the court must have regard tocontemporary standards in a multicultural, partly secular and largely tolerant, if not permissive society, is not easy’.[5] The courts have said that community standards will be those of the average person who can be summed up as moderate ‘not given to thoughtless emotional reaction’ nor ‘given to pedantic analysis’.[6]
The delegate considers that it follows from this analysis that the average listener recognises that standards of decency are not hard and fast, either over time or across all sections of the community. In particular, he or she may accept that some material he or she considers indecent would not be so judged by other sections of the community; and that, up to a point, those other groups have a right to have such material broadcast in programs to which they listen.
Accordingly, the question for the delegate is whether the ordinary, reasonable listener, being reasonably tolerant and accepting of diversity, would consider the content offends against generally accepted standards of decency, taking into account its broadcast to a2PM audience.
In this case the delegate is satisfied that the word ‘bloody’ was used to emphasise the quality of the food served at the Tumblegum Bakehouse and Cafe being advertised, rather than as a profanity.
The licensee submitted that the advertisement for Tumblegum Bakehouse and Cafe was broadcast during the advertisement breaks of The Grant Goldman Breakfast Program, The John Laws Show and John O’Callaghan’s Afternoon Show. TheGrant Goldman’s Breakfast Program and The John Laws Show are presented from 2SM Sydney and syndicated in their entirety to other Super Radio Network stations, including 2PM. The John O’Callaghan’s Afternoon Show is presented from 2PM.
The licensee was unable to provide the ACMA with official radio ratings showing the demographic characteristics of the audiences of these programs, as no official ratings have been conducted for the licensee’s service. The delegate has confirmed that no official radio ratings have been conducted in the licensee’s regional radio licence area. Accordingly, the delegate has relied on the official radio ratings for another Super Radio Network station which broadcasts TheGrant Goldman’s Breakfast Program and The John Laws Show to determine the demographic characteristics of those audiences; and, the ‘station profile’ on 2PM’s website to determine the demographic characteristics of audience of John O’Callaghan’s Afternoon Show.
The delegate has observed:
the majority of listeners of Grant Goldman’s Breakfast Program and The John Laws Show are aged 40 and above[7]; and
the target audience of John O’Callaghan’s Afternoon Showare people aged 40 and above[8].
Accordingly, the delegate is satisfied that these programs are targeted to and likely to have an adult listening audience.
The delegate acknowledges the complainant’s concern regarding the use of the phrase ‘bloody great’. The delegate notes that the use of the word ‘bloody’ is a common-day colloquialism used to intensify or strengthen a statement. In this regard, the delegate notes that the Macquarie English Dictionary (5th Edition) relevant includes the following definitions for the word ‘bloody’:
Bloodyadjective:5.Colloquial
a.an intensifier signifying approval, as in bloody beauty, or disapproval, as in bloody bastard.
b.an infix used as an intensifier: abso-bloody-lutely
6.Colloquial
a.(of people) difficult; obstinate; cruel.
b.(of events) cruel; unjust; unbearable.
–verb (t) (bloodied, bloodying)
8.Colloquial very; extremely: bloody difficult.
–phrase
9.bloody well,Colloquial an intensifier: to bloody well do as you are told.
Taking account of the tone and manner in which the word was used, the delegate is satisfied the broadcast did not go beyondgenerally accepted standards of decency. The delegate considers the ordinary, reasonable listener - being reasonably tolerant and accepting of diversity, and taking account of the adult audience of the licensee’s programs- would not consider the advertisement in itself offends against generally acceptedstandards of decency.
Accordingly, the licensee did not breach clause 1.3(a) of the Codes.
Issue 2: Complaints handling
Relevant Clause
Clause 5.6 of the Codes relevantly provides:
Advice in writing
5.6The response must inform the complainant that he or she has the right to refer the complaint to the ACMA if the complainant is not satisfied with the response of the licensee.
Licensee’s submission
The licensee submitted that:
[...]
It is unfortunate that this one off single complaint was not dealt with in accordance with the procedures made available to the station managers and the fact no advice was provided in relation to advising [the complainant] that she could refer her complaint to the ACMA if she was dissatisfied with the licensee response is concerning.
[...]
Finding
The licensee breached clause 5.6 of the Code.
Reasons
Clause 5.6of the Code is specific in that it requires the licensee to ‘inform a complainant of his or her right to refer the complaint to the ACMA if not satisfied with the responseof the licensee to that complaint. The licensee has acknowledged that it did not inform the complainant of the right to refer the complaint to the ACMA.
Accordingly, the delegate is of the preliminary view that the licensee has breached clause 5.6 of the Codes.
ACMA Investigation Report – Advertisement for Tumblegum Bakehouse and Cafebroadcast by 2PMon 4 April 2011 1
[1] Section 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s role in relation to complaints under the Codes of Practice
[2]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167 (references omitted).
[3] See section 3(1)(a) of the Act.
[4] See section 3(1)(h) of the Act.
[5]Pell v Council of Trustees of the National Gallery of Victoria [1997] VSC 52.
[6]Mackinlay v Wiley [1971] WAR 3 at 25.
[7]Newcastle Radio – Survey #1 2011, accessed by the ACMA staff on 16 August 2011.
[8]‘Station profile’, accessed by the ACMA staff on 16 August 2011.