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2yd report 2156Investigation Report No. 2156 Licensee
Type of Service
Name of Broadcast
Date of Broadcast
Clauses 1.3(c)(ii) and 5.6 of the Commercial Radio Australia Codes of Practice and Guidelines 2004 Date Finalised
No breach of clause 1.3(c)(ii) or 5.6 of the Commercial Radio Australia Codes of Practice and Guidelines 2004. ACMA Investigation Report – Everyone’s at it broadcast by 2YD on 12 November 2008 The complaint
On 17 February 2009, the Australian Communications and Media Authority (ACMA) received an unresolved complaint about the song, Everyone’s at it, broadcast on 12 November 2008 by Nova 96.9 Pty Ltd, the licensee of 2YD. The complainant alleges that the song presents as desirable the use of illegal drugs. The complainant referred the matter to ACMA for consideration.1 The complaint has been investigated in accordance with clauses 1.3(c)(ii) and 5.6 of the Commercial Radio Australia Codes of Practice and Guidelines 2004 (the Code). The broadcast
The song, Everyone’s At It, is sung by Lily Allen and was broadcast by 2YD at 12 pm on 12 November 2008. According to the licensee, the song has been broadcast by 2YD since its release in October 2008 and continues to be broadcast by 2YD. The song is about the widespread use of illegal and legal drugs including drug use by youth, and the current dangers faced by using drugs. A full transcript of the song lyrics is set out at Attachment A. The song lyrics include two references to the illegal drug cocaine, including ‘crack’, and in the line, ‘but when will we tire of putting shit up our noses’. The delegate has identified these references as forming the subject of the complaint. Assessment
The assessment is based on CD recording and written lyrics2 of the song provided to ACMA by the licensee, as well as on submissions received from the complainant and the licensee. Other sources consulted have been identified where relevant. Issue 1: Did the broadcast of the song, Everyone’s At It on 12
November 2008 present as desirable the use of illegal drugs,
narcotics or tobacco?
Relevant sections of code
Code of Practice 1: Programs Unsuitable for Broadcast
Proscribed Matter A licensee must not broadcast a program which: (c) 1 Sections 148 and 149 of the Broadcasting Services Act 1992 set out ACMA’s role in relation to compliance under Codes of Practice. The complainant submitted that she wrote to the station on 21 November 2008. The licensee submitted it did not receive the complaint, and has since provided a response to the complainant. The complainant was not satisfied with the licensee’s response. 2 ACMA has sourced and confirmed the accuracy of the lyrics by reference to http://www.songlyrics.com/lily-allen/everyone-s-at-it/294421/ ACMA Investigation Report – Everyone’s At It broadcast by 2YD on 12 November 2008 (ii) the use of illegal drugs, narcotics or tobacco. [Emphasis added]
Nothing in sub-clauses 1.3(c)(ii), 1.3(d) or 1.3(e) prevents a licensee from broadcasting a program of the kind or kinds referred to in those sub-clauses if the program is presented reasonably and in good faith for academic, artistic (including comedy or satire), religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about any act or matter. Complainant’s submissions
The complainant submitted that that the song, Everyone’s At It, broadcast by 2YD was
‘inappropriate as it glorified and promoted the use of cocaine’.
The complainant submitted to the licensee that: The words of the song said things to the effect of, if [we’re] all honest it’s a normal thing followed by the chorus everyone’s at it. I do believe the song could be harmful for some individuals. […] Because the song pitches Drugs some sort of entrenched social problem for everybody, it implies that Drug addiction is a normal part of normal society. As Drugs is not a normal part of normal Society, I believe this song misrepresents normal values associated with Drug use and in fact promotes Drug use. If an at risk person perceives that any Drug use is normal, then this could be harmful for that at risk person. Licensee’s submissions
The licensee submitted in relation to clause 1.3(c)(ii) of the Code that the song,
Everyone’s At It, does not condone drug use or present the use of illegal drugs as
Nova 969 acknowledges that the subject matter of the Song concerns drug use, both legal and otherwise. The Song itself talks about a culture of both legally prescribed drugs, like anti depressants, and also illegal drug use. The Song offers a critique on both illegal and prescription drug use… […] [T]he Song is actually sending a message to the public and the media that drug use (both legal and illegal) is an issue. ACMA Investigation Report – Everyone’s At It broadcast by 2YD on 12 November 2008 The licensee submitted that should ACMA find the broadcast to be in breach of clause 1.3(c)(ii), in any event, it falls within the exemption at clause 1.4 of the Code, as it was presented in good faith in the public interest and includes discussion and debate on the use of illegal drugs. The delegate is of the view that the licensee did not breach clause 1.3(c)(ii) of the Code for the broadcast of the song Everyone’s At It on 12 November 2008, as the song does not present as desirable the use of illegal drugs, narcotics or tobacco. In assessing whether the broadcast of the song has breached the Code, the delegate has considered what an ‘ordinary, reasonable listener’ would have understood the song concerned to have conveyed, rather than on personal reactions by individuals. 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. An ordinary, reasonable listener 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 complaint concerns the complainant’s belief that the song presents as desirable the use of illegal drugs, and that the song could be harmful for some individuals. Having reviewed the lyrics of the song, the delegate does not consider that the song presents as desirable the use of illegal drugs. The song makes negative comments on the widespread use of both illegal and legal drugs, for example, the repetition of the lines, ‘But how can we start to tackle the problem?’ and ‘The kids are in danger, they’re all getting habits’ (see Attachment A). The delegate notes the complainant’s concern that presenting the use of drugs as an ‘entrenched social problem’ suggests the use of drugs is normal and in effect promotes this behaviour. However, it is considered that the ordinary, reasonable listener, with his or her general experience and knowledge of worldly affairs, would have some understanding that illegal drug abuse is a current problem with society’s youth, and that acknowledging its existence as a social challenge does not amount to presenting as desirable the use of illegal drugs. Read in this context, and applying the ordinary, reasonable listener test, the two references to cocaine in the song do not present the use of cocaine as desirable. Since the song does not breach clause 1.3(c)(ii) of the Code, the delegate is not required to consider the exemptions under clause 1.4 of the Code. 3 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164-167 ACMA Investigation Report – Everyone’s At It broadcast by 2YD on 12 November 2008 Issue 2: Whether the licensee provided a substantive
response to the complainant
Relevant section of code
Code of Practice 5: Complaints
Advice in writing
5.6 Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond to substantively in writing within 30 days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 days, the licensee must, in any event, acknowledge receipt of the complaint within 30 days and provide a final reply within 45 days of receiving the complaint. Complainant’s submissions
The complainant submitted that the licensee did not provide a response to the
complainant’s written complaint of 21 November 2008.
In its submission of 24 March 2009 to ACMA, the licensee stated that it did not
receive the complainant’s written complaint of 21 November 2008.
The delegate is of the view that the licensee did not breach clause 5.6 of the Code. The complainant submitted to ACMA that she wrote to the station with her concerns on 21 November 2008. The complainant provided ACMA with a scanned copy of her signed initial complaint form to the station, dated 21 November 2008. The licensee submitted that it did not receive the initial complaint, and in support of its claim, provided ACMA with a copy of its complaint register for the complaints received around that date. The register showed a record of complaints received by Nova between 3 October 2008 and 16 December 2008. There was no record of the current complaint having been received. In circumstances where there is a factual dispute and no independent information which corroborates either version, the delegate is not able to find a breach of the Code requirements in relation to complaints handling, as set out in clause 5.6 of the Code. ACMA Investigation Report – Everyone’s At It broadcast by 2YD on 12 November 2008 Attachment A
Everyone’s At It Don’t know much but I know this for curtain And that is the sun poking its head round the curtain Now please can we leave? I’d like to go to bed now It’s not just the sun that is hurting my head now I’m not trying to say that I’m smelling of roses But when will we tire of putting shit up our noses I don’t like staying up, staying up past the sunlight It’s meant to be fun and it just doesn’t feel right (Chorus) Why can’t we all, all just be honest? Admit to ourselves that everyone’s on it From grown politicians to young adolescence Prescribing themselves anti depressants Now how can we start to tackle the problem? If you don’t put your hands up and admit that your on it Now the kids are in danger, they’re all getting hammered From what I can see everyone’s at it Everyone’s at it Everyone’s at it Everyone’s at it I get involved but I’m not advocating got an opinion, yea your well off the slating so you’ve got a prescription, yea that makes it legal finding excuses, is well over whelming with people you go to the doctor and you need pills for sleeping if you can convince him then I guess that’s not cheating see you’re daughters depressed, so get her straight on the Prozac but little do you know that she already takes crack (Chorus X2) Why can’t we all, all just be honest? Admit to ourselves that everyone’s on it From grown politicians to young adolescence Prescribing themselves anti depressants Now how can we start to tackle the problem? If you don’t put your hands up and admit that you’re on it Now the kids are in danger, they’re all getting hammered From what I can see everyone’s at it Everyone’s at it ACMA Investigation Report – Everyone’s At It broadcast by 2YD on 12 November 2008
JARECKI v. G. D. SEARLE & CO., 367 U.S. 303 (1961)Home - Site Index - Site Search/Archive - Help http://laws.findlaw.com/us/367/303.html Cases citing this case: Supreme CourtCases citing this case: Circuit Courts U.S. Supreme Court JARECKI v. G. D. SEARLE & CO., 367 U.S. 303 (1961) 367 U.S. 303 JARECKI, FORMER COLLECTOR OF INTERNAL REVENUE, ET AL. v. G.