Investigation Report No. 2552

File No. / ACMA2011/338
Licensee / DMG Radio (Perth) Pty Ltd
Station / 6PER Perth
Type of Service / Commercial Radio
Name of Program / Ryan, Monty and Wippa
Date of Broadcast / 11 November 2010
Relevant Code / Clause 1.3(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2010.
Date Finalised / 27 May 2011
Decision / No breach of clause 1.3(a) (generally accepted standards of decency)

The complaint

On 21 December 2010, the Australian Communications and Media Authority (the ACMA) received a complaint concerning the program, Ryan, Monty and Wippa broadcast on 11 November 2010 by DMG Radio (Perth) Pty Ltd, the licensee of 6PER Perth.

The complainant alleged that the licensee broadcast ‘unsuitable’ content in a 5.30pm – 6.00 pm timeslot.

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

The complaint has been investigated in accordance with clause 1.3(a) [generally accepted standards of decency] of the Commercial Radio Codes of Practice and Guidelines 2010 (the Codes).

The program

Ryan, Monty and Wippa ceased airing at the end of 2010. At the time of complaint, the program was broadcast from 4.00 pm to 6.00 pm weeknights on 6PER (Nova 93.7), and was hosted by Ryan Shelton (Ryan), Katie Dimond (Monty) and Michael Wipfli (Wippa). The program formatcomprisedof commercial hit music, celebrity talk, gossip and prize giveaways, and has beendescribed by the licensee as ‘light-hearted entertainment’ and ‘aimed at an audience aged 18-39 years’.[2]

On 11 November 2010, the program featured a discussion among the hosts surroundinga young man who was required to have his genitals surgically reduced in size. The complaint concerns the hosts’ comments made in relation to male genitaliaand inferences made of a sexual nature. Relevant excerptsof the material broadcast include:

Ryan: This is a story told to me by a friend, and this is about someone she knows, about a guy that she knows. When this guy was in high school, he, um, he had a larger member than most guys, ok. So, he was well-endowed. So-well endowed that the doctor said, “We are going to have to do surgery... reduction.” Because... Because it’s getting too big for your body. It’s actually getting so big that the skin can’t house it...

Wippa: So, the casing had trouble continuing to keep up with...

Ryan: ...Yes, they didn’t make sizes any bigger in those cases, so they had to try to...

Monty: How old was this kid...?

Ryan: He was in Year 10, so 16...

Monty: Oh, that’s traumatic...

Wippa: But, you’d prefer that than the other way, wouldn’t you...?

Ryan: What’s that...?

Monty: A little dingy, dingy...

...

Ryan: So anyway, so when he had the surgery the doctor sat him down after the surgery and said “now, in all seriousness, because of the surgery you’re not allowed to...”

Monty: Get excited...

Ryan: Firm up for three months...

Wippa: Impossible...

Monty: As a girl, I don’t really get that...

Ryan: Everyone in their car now will be like, don’t believe it. Well, believe it because it is true. He was not allowed to get it up...

Wippa: What about in the middle of the night... uncontrollably...?

Ryan: These are the questions I asked, Wip. Well, you can’t control it all the time. A lot of the time you wake up and morning glory. Monty, you don’t know about that but it’s a reality of a man’s life. So, he was forced to live with that for three months and I don’t know how he went, because he had stitches...

...

Wippa: He kind of... He almost needed some elastic skin...Well, if he is going to have to have fluctuating size within his member, he’s going to need room for the stretch... How do you do that surgically? I’m thinking from a medical point of view...

...

Ryan: You’ve just put your medical hat on...

Wippa: Yeah, cause you would need... because I’ve heard of other people that have needed operations that have been told the same thing...

Monty: Wip, be careful please...

Wippa: Oh, it’s alright, it’s ok...

Ryan: He’s talking medically...

Wippa: If you have a catheter... when you have one of those... for a male...

Ryan: What’s acatheteragain?

Wippa: It’s so you can urinate... without having to do anything, like if you are in a coma and it just works and apparently that can happen it’s the most painful thing in the world...

...

Wippa: It’s factual...

Monty: Everyone pictures it... Cause I’m standing with two of you and I’m picturing it and I don’t want to picture this...

...

Wippa: Don’t picture us individually...

Ryan: There would be a lot of girls out there who would be very excited to picture Wippa’s... Heaps... Can Wippa name one...?

...

Wippa: Miranda Kerr...

...

Wippa: She’d be having a moment... when she’s pregnant...

Monty: I think we should well and truly get out of here...

Wippa: Can we get a doctor on the show? Is it too late to get a doctor on the show?

Ryan: What about you, Wip? I mean you speak medically all the time...

Wippa: Well, you’d need some sort of... I don’t know... stretchy stitches would be my advice...

Ryan: Ok. Well, if any doctors are listening, feel free... we are running out of time now but feel free to email the show... Tell us if that’s true if that actually happens and if it does... But I don’t know how you would... There must be some sort of anti-Viagra... something you can take to help...

...

Wippa: You’re dead right... just to keep it flaccid...

Monty: Right, we will wrap up the show next...

Wippa: Physical terms... flaccid...

Monty: That’s not necessary...

Wippa: Making it sound smutty... we’re having a very intelligent conversation...

Wippa: Yeah, because I know you’re going to panic... from a childish point of view...

Monty: Oh, sorry... I don’t like talking about men’s penises at 5.58 on a Thursday afternoon...

Wippa: If it was about a person with female issues... why can’t we talk about men’s genitals when you go on about females...?

The segment ran for approximately five minutes.

Assessment

The assessment is based on:

  • a recording of the program broadcast on 11 November 2010, provided by the licensee;
  • the complainant’s letter of complaint to the licensee and
  • the licensee’s response to the complainant; and
  • information from the licensee about the audience for the relevant program.

Other sources consulted are identified where relevant.

‘Ordinary, reasonable’ listener test

In assessing content against the Codes, the ACMAconsiders 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.

In this case, the delegate is satisfied the ‘ordinary reasonable’ listener would have understood the content to be an anecdote concerning a man who had penile reduction surgery and aspects of his convalescence.

Issue 1: Whether the program met generally accepted standards of decency, having regard to the likely demographic characteristics of the audience of the relevant program

Relevant provisions

Purpose

The purpose of this Code is to prevent the broadcast of programs which are unsuitable, having regard to prevailing community standards and attitudes.

Program Content and Language, including Sex and Sexual Behaviour

1.3 (a) All 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 the relevant program.

(b)For the purpose of determining:

(i) the audience of the relevant program; and

(ii) the demographic characteristics of the audience,

regard must be had, in particular, to the results of any official ratings or surveys of the licensee’s service in the prior 12 months [...].

Complainant’s submission

The complainant submitted to the ACMA:

I took offence with the content of [the segment] aired between approximately 5.30pm to 6pm on the evening of 11 November in Perth. I feel that the content of the segment did not comply with [the Codes], specifically Code of Practice 1 – programs unsuitable for broadcast. The segment context included graphic descriptions of male erections and associated themes of a sexual nature, which I believe is definitely unsuitable for younger audiences and exceeds a generally accepted level of decency for older audiences.

Licensee’s submission

The licensee submitted to the complainant:

At the outset I would like to express our regret that the broadcast of the Comments has caused distress to you. This is not something intended by Nova 937.

While we respect your sensitivities and regret that the broadcast of the Comments has caused distress to you, we do not believe that Nova 937 has breached any obligations as a broadcaster.

Notwithstanding this, I agree that at least some of the Comments were in poor taste and inappropriate. They are also, unfortunately, not very entertaining. I think we generally have a very good sense of our listener’s [sic] needs and wants, and I don’t think we met them on 10 November 2011 (regardless of any Codes issues).

Nova’s target and predominant audience is that of adults aged 18 to 39, as confirmed by its rating survey over many years. We are not required to tailor our content towards other audiences in circumstances where those other audiences are neither target nor predominant audience.

Whilst the Comments may not be to everyone’s liking, when considered in context, Nova 937 does not believe that these topics would be unacceptable to a significant proportion of its target audience. Accordingly, Nova 937 does not believe that a significant proportion of its audience would have been offended or found their sense of decency outraged.

Ignoring the Codes issue, I think we missed the mark here. I think the tone of the Comments was inappropriate and disappointing and, in hindsight, we do regret the broadcast of the Comments.

We have discussed the Comments with our programming team and made them specifically aware of your concerns, with a view of taking this on board and learning from this in the future.

Finding

The program content did not offend generally accepted standards of decency, having regard to the demographic characteristics of the audience of the relevant program.

Accordingly, the licensee did not breach clause 1.3(a) of the Codes.

Reasons

Clause 1.3(a) requires the delegate to consider the meaning of the phrase ‘generally accepted standards of decency, having regard to the likely audience demographic characteristics of the relevant program’.

Community standards and generally accepted standards of decency

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.[4] Another object is to encourage providers of broadcasting services to respect community standards in the provision of program material.[5] 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’.[6] 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’.[7]

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.

Likely demographic characteristics of the audience of the relevant program

In considering whether the broadcast meets generally accepted standards of decency, the Codes require the delegate to have regard to the likely demographic characteristics of the audience of the relevant program, in this case the Ryan, Monty and Wippaprogram.

The word ‘likely’ is taken to mean something that is real and not a remote possibility; or, something that is probable.[8]

The licensee provided cumulative audience figures, broken down by age and gender for the Ryan, Monty and Wippaprogram between 4pm and 6pm weekdays. The demographics information was derived from:[9]

  • Nielsen Perth Survey # 8 2010 information (covering the period of the date of broadcast complained about);
  • a Nielsen demographics breakdown chart;
  • a breakdown of the audiences listening in thetime-slot between 4.00 pm to 6.00 pm for 2010 across all commercial radio stations in Perth, showing occupations and ages by category;
  • The following table showing cumulative audience data figures broken down by age and gender for the Mon-Fri 4.00-6.00pm timeslot generated by Survey#8 2010 for the Perth Market[10]:

Market: PERTH
Statistic: Cume (000's) Filter Demographic: None
Survey: Survey #8 2010
Session: Mon-Fri 4:00 PM-6:00 PM
Place of Listening: All
Age 10-17 / Age 18-39 / Age 40-54 / Age 55-64 / Age 65+
Female / 15 / 60 / 16 / 4 / 0
Male / 20 / 39 / 19 / 2 / 1

From this data the delegate has deduced that at the date of the relevant broadcast:

  • on Nielsen Radio Survey data for the Perth market, Nova 93.7 had an approximately 21.2% share of all listeners under 18 and 37.2% share of all listeners aged between 18-39 from 5.30am to midnight[11];
  • Nova 93.7 has an approximately 13.3% share of all listeners during the timeframe of 4 pm to 6 pmin Perth between the ages of 18-39[12];
  • Nova 93.7 has an approximately 13.7% share of all listeners during the timeframe of 4 pm to 6 pm,who are casual or temporarily employed[13];
  • Nova 93.7 has an approximately 17% share of all listeners who are students or school-aged during the timeframe of 4 pm to 6 pm;[14]
  • the largest group of listeners (male and female) was the 18-39 age group; followed by the 10-17 and 40-54 age groups;[15]
  • Audience data for the Ryan, Monty and Wippa program indicates that the program attracts a higher proportion (16.9%) of female listeners aged 18-39 than their male counterparts (10.3%).[16]

The complaint is that the material was inappropriate and unexpected for the 5.30 pm – 6.00 pmtime slot. The complainant is concerned that the content was ‘unsuitable for younger audiences’, and ‘exceed[ed] a generally accepted level of decency for older audiences’.

The delegate notes that although the broadcast was light-hearted and farcical, it included the following explicit and implicit references tomalegenitalia:

  • Dingy, dingy
  • He was well-endowed
  • Member
  • Penis

The broadcast also alluded tomale erections,for example:

  • Firm up
  • Fluctuating size within his member
  • Get excited
  • Get it up
  • In the middle of the night, uncontrollably
  • Morning glory

When the female host stated ‘Everyone pictures it’, this too would have drawn the listener’s attention to male genitalia.

It is accepted that this contentmay have offended some listeners, particularly if they were unfamiliar with the program format and irreverent presentational style of hosts. It is also noted that the licensee conceded that the comments in the segment were ‘in poor taste and inappropriate’ and did not meet its listeners’ ‘needs and wants’ and that it regretted their broadcast.

However, the delegate is not satisfied the content went beyond generally accepted standards of decency, having regard to the demographic characteristics of the audience of the program.

The delegate considers that the content was light hearted. Although doctors were invited to email the show, the segment was not a serious medical discussion; it was anecdotal and the symptoms, any surgical procedure and the convalescence issues were not verified by patients or medical experts. On the other hand, the material was not sexualised and it tended to use euphemistic language to describe male genitals and erections. Although the material may have trivialised a serious medical condition and may have been in bad taste, it discussed an apparently factual situation. The delegate also notes the relatively short duration of the discussion (5 minutes of a 2 hour program), and that the female host attempted to veer the topic to an end with comments that included: