Investigation Report No. 2413
File No. / ACMA2010/1000Licensee / TCN Channel Nine Pty Ltd
Station / TCN Sydney
Type of Service / Commercial Television Service
Name of Program / XXI Winter Olympic Games
Date of Broadcast / 17 February 2010
Relevant Code / Clauses 1.9.6 and 7.11 of the Commercial Television Industry Code of Practice 2010.
Date Finalised / 26 August 2010
Decision / No breach of clause 1.9.6 (dislike, contempt or ridicule)
No breach of clause 7.11 (substantive written response)
The complaint
On 28 April 2010, the Australian Communications and Media Authority (the ACMA) received a complaint about a segment broadcast during the XXI Winter Olympic Games on 17 February 2010, by the licensee of TCN, TCN Channel Nine Pty Ltd. The complainants allege thatcomments were made by hosts during the evening game highlights that expressed ‘contempt’ and ‘ridicule’towards male ice figure skaters on the ground of sexualpreference.[1]
The complainants referred the matter to the ACMA for investigation.[2]
The complaint has been assessed in accordance with clauses 1.9.6 [proscribed material] and 7.11 [complaint handling] of the Commercial Television Industry Code of Practice 2010 (the Code).
The broadcast
TheXXI Winter Olympic Games(the Games) were held in Vancouver, Canada, between 12 and 28 February 2010, andbroadcast in Australia by the Nine Network and on Foxtel. A highlights package was presented each night which was hostedbyEddie McGuire (EM) and contained the day’s highlight events; appearances by comedian Mick Malloy (MM); interviews with athletes; and live event updatesby Leila McKinnon (LM).
On 17 February 2010 the highlights package included, among other things,replays of the ice figure skating and curling,[3] and featured a satirical segment hosted by MMand EM (the segment). The segment ran for approximately 16 minutes in which MM,alongside EM,critiqued the attire of ice figure skaters and curlers. The segment also included a humorous take on the ‘best ice-hockey brawls’ and a skit featuring MM emulatinga child wanting to be an ice-hockey player.
The complaint relates to comments made by MM and EM directed towards the male ice figure skaters.
Shortly after the commencement of the segment, EM led MM into a critique of the attire of athletes as follows:
EM: …what about the fashion at the ice skating?
…
MM: They don’t leave anything in the locker room those blokes.
EM: They leave nothing…
MM: When they get out there…
EM: They don’t leave anything in the closet either do they? [Laughs].
MM: They [laughs], well they — careful you’ll get yourself into trouble there…
EM: Sorry mate.
Footage was then shown of a skater wearing a tuxedo-style costume, and MM commented:
MM: Look at this guy, it was like one of those fake tuxedos that you — even Prince saw that and went, oh hang on, you can’t go out wearing that.
This led into footage of a skater wearing a costume of overalls and a flannelette shirt, and MM commented:
MM:Oh look out, the hay seed look’s in this year. What is that?
EM: A bit of broke back?[4]
MM: A bit of Brokeback Mountain exercise. You can’t wear it. They’re very flamboyant, they lovea bit of colour as we said.
MM then proceeded to parody two ice figure-skating couples. Footage was shown of the first couple wearing overalls:
MM: oh good to see what Macaulay Culkin’s up to these days!
...
And the second couple in a 13th century armoured Knight costume:
MM: Have a look at that.
..
MM: Okay, this reminds me of Gladiator the musical. Could you see if we could get Russell Crow into that outfit for the sequel if it’s ever made...
EM: Well Russell’s coming up in his Robin Hood outfit soon.
MM then commented on the attire of the Curlers:
MM: They’re very flamboyant, they love a bit of colour as we said. But they’ve been totally knocked out of the park by the Norwegian curling team. Who’ve played their joker and [footage of Norwegian curling team]. And, have a look at that one!! [laughter from audience and EM]. Seriously that is,... even John Daly wouldn’t wear those pants I’m guessing.
The segment moved to address comments made the previous evening:
EM: I was going to say, I’m going to bring this up because we’re having a bit of fun and all the rest of it, but you have an apology to make from last night. You did make a joke that could be construed as maybe being a bit homophobic.
MM: Well, look, I made a joke and it was a bit off colour. Some of the crew here didn’t like it did you guys. So there’s a bit of [audience boos]
MM: What I ...suggested that there was a disaster happening in the ice-skating rink, because organisers had found out that one of the male ice-dancers wasn’t gay.
EM:[chuckles]
MM: Um, and I apologise for that I’ve got to, sincerely, but it definitely wasn’t this guy [footage of John Weir making stereotypically feminine gestures –laughter from audience and EM].
MM: That by the way is a guy called Johnny Weir and he is fantastic. You can’t take your eyes off him can you, in a, in a very manly way.
EM: Did you see him with his own pillow at the end there? [footage of John Weir holding a red love-heart shaped pillow].
MM: He had a pillow. Embroidered. I’m sure he embroidered it himself. [EM laughs). He was pretty good. Can I, from one extreme to the other...
...
The segment continued with other humorous takes on athletes and Olympic events.
At the conclusion of the segment, the following exchange took place among hosts:
MM: By the way do you know why they call it a half pipe?
EM: why?
MM: Because you’re allowed to smoke a pipe before...
EM: Thank you Mick! It’ll cost us a fortune these winter Olympic games. We want to get to the second week if you don’t mind. And ah, you have been chucked out of nine before.
MM: Twice. I’m going for the third...
EM: ..he’s a mixed boy, there’s no doubt about it. Johnny Weir. Let’s take a look.
[footage of John Weir’s performance – EM and MM chuckle in background)
Assessment
The assessment is based on the DVD recording of the broadcast provided to the ACMA by the licensee, as well as on submissions provided by the complainants and licensee.
Other sources are identified where relevant.
Issue 1: Proscribed matter
Relevant clause of the Code
Clause 1.9.6 of the Code states:
1.9 A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to:
1.9.6provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or group of persons on the grounds of age, colour, gender, national or ethnic origin, disability, race, religion or sexual preference;
1.10 Except for Clause 1.9.3, none of the matters in Clause 1.9 will be contrary to this Section if:
1.10.1 said or done reasonably and in good faith in broadcasting an artistic work (including comedy or satire); or
1.10.2 said or done reasonably and in good faith in the course of any broadcast of a statement, discussion or debate made or held for an academic, artistic or scientific purpose or any other identifiable public interest purpose;
Interpretation of clause 1.9.6
In assessing whether clause 1.9.6 of the Code has been breached, consideration has been given to what an 'ordinary, reasonable viewer’ would have understood the material broadcast to have conveyed. Australian courts have considered an ‘ordinary, reasonable 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.[5]
The Code requires that the licensee not broadcast a program which is likely in all the circumstances to provoke or perpetuate intense dislike, serious contempt or severe ridicule against a person or a group of persons on specified grounds.
‘likely, in all the circumstances’
The phrase, ‘likely, in all the circumstances’, has, in other legislative contexts, been held to impose an objective test[6] and implies a real and not a remote possibility; something which is probable.[7]The ACMA considers that the same meaning should be given to these words in the Code. That is, for there to be a breach of clause 1.9.6 it must be a real and not remote possibility, considering all the circumstances, that the broadcast would have the prohibited effect.
‘provoke’ or ‘perpetuate’
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 Dictionary (4th 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
‘intense dislike, serious contempt, ‘severe ridicule’
The Macquarie Dictionary (4th edition) includes the following definitions:
intenseadjective1.existing or occurring in a high or extreme degree: intense heat.
2.acute, strong, or vehement, as sensations, feelings, or emotions: intense anxiety.
3.of an extreme kind; very great, strong, keen, severe, etc.: an intense gale.
dislikenoun2.the feeling of disliking; distaste: I have taken a strong dislike to her.
–dislikeable
seriousadjective 5. weighty or important; 6. giving cause for apprehension; critical
contemptnoun1. the act of scorning or despising; 2. the feeling with which one regards anything considered mean, vile or worthless
severe adjective1. harsh, harshly extreme
ridiculenoun1. words or actions intended to excite contemptuous laughter at a person or thing, derision.
‘on the grounds of’
In the context of clause 1.9.6 of the Code, the ACMA considers that the phrase ‘on the grounds of’ is interpreted as requiring that there be an identifiable necessary link between the prohibited ground (for example, the sexual preference of a person or group) and the action complained of.
Complainants’ submissions
The complainant submitted to the licensee in relation to the broadcast of 17 February 2010:
[...]
Messrs Eddie McGuire’s and Mick Molly’s skating jibes regarding the costumes worn by some of the male competitors in the figure skating was unprofessional, ignorant and insensitive as illustrated by the comments by Mr Molloy “They don’t leave anything in the locker room these blokes do they”, and Mr McGuire’s sniggering interjection “They don’t leave anything in the closet either do they” were only further ‘enhanced’ by Mr Molloy’s joking reprimand[ing] of Mr McGuire warning him he could get into trouble.
Channel Nine’s cut to an image of a skater wearing a tuxedo-style costume (that Mr Molloy described as something that not even the singer Prince would wear) was then followed with footage showing a skater wearing a costume of overalls and a flannelette shirt. Mr McGuire’s suggestion it was “A bit of broke back.” With Mr Molloy agreeing, adding that “A bit of Brokeback Mountain exercises, you can’t wear that.” Completed the trifecta of appalling behaviour and taste by both commentators and reinforced by Channel Nine. In today’s global culture of equal rights the subjective comments expressed by Messrs McGuire and Molloy were simply appalling.
[...]
The complainant was not satisfied with the licensee’s response, and submitted to the ACMA:
Channel 9’s response to our complaint ... alleged that Messrs McGuire and Malloy were simply presenting a satirical segment. We strongly refute this as the segment was nothing more than a blatantly contemptual [sic] ridicule of the male figure skaters’ sexual preferences.
Licensee’s submissions
The licensee provided the following response to the complainants:
We note that the comments occurred in the context of a live satirical segment featuring Eddie Maguire and Mick Molloy, where the commentators intended to provide a humorous take on various Olympic events. Despite their intention, we accept that some viewers found the material offensive and we again apologise for this.
[The Code] prohibits behaviour likely to provoke or perpetuate serious contempt or severe ridicule on the basis of sexual preference. In assessing this clause, the government regulator, [the ACMA], has previously held that the test is a high one in which material must provoke a strong reaction. There are also a number of exceptions under the Code, including where the material formed part of a good faith attempt at satire.
We believe the previous ACMA findings are relevant in this instance and the comments are not in breach of the Code.
The licensee submitted to the ACMA:
A relevant consideration in assessing compliance with[clause 1.9.6] is the meaning of theterms ‘intense dislike’, ‘serious contempt’ and ‘severe ridicule’. Nine will review these terms below.
- Dislike, Contempt and Ridicule
The Macquarie Dictionary defines the above terms as follows:
(a)Dislike ‘1. Not to like; regard with displeasure or aversion...’
(b)Contempt ‘1. The act of scorning or despising. 2. The feeling with which one regards anything considered mean, vile or worthless 3. The state of being despised; dishonour; disgrace...’
(c)Ridicule ‘1. Words or actions intended to excite contemptuous laughter at a person or thing; derision. – v.t. 2. To deride; make fun of...’
Each of the above definitions has a common element; the notion that the behaviour must be more than ordinary and in some instances extreme. The Macquarie Dictionary defines extreme as:
- Of a character or kind farthest removed from the ordinary or average: an extreme case, extreme measures .. 5. Going to the utmost lengths or exceeding the bounds of moderation: extreme fashion 6. Going to the utmost or very great lengths in action, habit, opinion: an extreme socialist...’
On the basis of the above, Nine maintains that the inclusion of the amplifiers give significant meaning to the provisions of dislike, contempt or ridicule and that the test by which behaviour is measured is necessarily high.
Application of the provision to the Program
In Investigation Report 1984 (2008) ACMA determined that clause 1.9.6 is an objective test as to whether material exceeds the above threshold. This requires material to be judged by the reactions of a reasonable and objective viewer. In Investigation Report 1984 (2008) the ACMA cited as a relevant authority on this matter the case concerning racial vilification, Judea v Jewish National Fund of Australia Inc [2003] VCAT 1254 (13 March 2003); which outlined the following test:
The test must be that of a reasonable and objective recipient. The recipient must, in my view, be assumed to have a reasonable knowledge of the surrounding context and the circumstances in which the conduct occurs. The recipient should not be assumed to be of a particular race, either the race of the person who engages in the conduct or the race of the person against whom the strongest feelings of antipathy are alleged to have been encouraged. Nor would the person be assumed to be overly sensitive or insensitive in respect of what is said or done’.
A similar reasoning was also adopted in Investigation Report 1400 (2004). Nine maintains that on this basis, when assessing a breach of clause 1.9.6, a standard must be adopted which reflects the opinions of the objective viewer and not that of the individual or group making the complaint. In this regard, Nine maintains that the test is not whether a particular individual believes certain behaviour exceeds the provisions of the clause, but rather on an objective basis the behaviour can reasonably be held to be of a type not permitted by the provision.
On this basis, Nine maintains it could be argued that the segment was not likely, in all the circumstances, to provoke or perpetuate severe ridicule of male figure skaters on the grounds of sexual preference as, while the remarks did offend some viewers, when assessed on the basis of the reasonable viewer, the comments could be taken to fall short of the threshold applied to the provision.
...
Nine notes that Clause 1.10.1 provides that where the behaviour is said or done reasonablyand in good faith in the course of satire or comedy, it does not contravene the matters in clause 1.9.6. The material the subject of the first complaint formed part of a satirical segment of the highlights program ‘Vancouver Gold’ on 17 February 2010. The program hosts discussed the costumes worn by male figure skaters and attempted to engage in a humorous critique of the leading personalities in male figure skating. We accept that the comments offended some viewers.
Nine believes that the segment is not in breach of clause 1.9.6 because it falls under the exemption in clause 1.10.1. In support, Nine notes that as the segment featured a well known comedian who provided satirical comment on a range of Olympic events and related matters on each day of the Olympic coverage. Nine maintains that viewers would have understood the matter to be a satirical piece and while we again accept that the segment offended some viewers, Nine believes that the segment was a genuine attempt at satire which, whilst it might not have been to the taste of all viewers, was made in good faith. For this reason, Nine maintains that the segment falls within the exception under clause 1.10.1 and in that regard, the broadcast was not contrary to the provisions of clause 1.9.6.
Finding
The broadcast content was not likely, in all the circumstances, to provoke or perpetuate intense dislike, serious contempt or severe ridicule against a group of persons on the ground of sexual preference.
Accordingly, the licensee did not breach clause 1.9.6 of the Code.
Reasons
Identification of the relevant group
The contextof the segment was to present a humorous take on some of the Winter Olympic events that took place that day. This was predominantly directed at the attire of ice-skaters, and included ice figure skaters (male, or couples)and curlers:
EM: …what about the fashion at the ice skating?
The comments complained about occurred during MM’s critiquing the attire of the male ice figure skaters.
The delegate is satisfied that the relevant target of the comments complained about was male ice-skaters as a group.
Identification of the relevant grounds
The Code requires that a link be established between the prohibited ground and the action complained of.
The segmentcontained a humorous critique of ice figure-skater couples; individual male ice figure skaters; curlers; and ice-hockey players. The jibes about attire alone were targeted at ice figure-skater couples; individual male ice figure skaters and curlers. In this context, it is questionable whether the male icefigureskaters were being targeted because of their sexual preference, or alternatively, because of their attire.