We live for moments like this, don’t we? Finally someone has thrown the book at Kyle Sandilands. Or at least that’s what it looks like at first glance.
A segment in which Sandilands called a journalist a "fat slag" last year has been found to breach general standards of decency. Yesterday the Australian Communications and Media Authority ruled that comments made by Sandilands in 2011 about a female journalist were "deeply derogatory and offensive" and in breach of the Commercial Radio Codes of Practice.
It hardly needed an ACMA ruling to confirm that Sandilands is a misogynist buffoon — but it’s striking that decency lay at the heart of it. The term rings a little quaint in the current media environment. What other breaches of decency might provoke complaint and investigation down the track?
ACMA’s report contained plenty of stern language but the breach wasn’t enough to separate Sandilands from his microphone. New licence conditions have been proposed for Austereo — but Sandilands remains on air, loved by his large breakfast audience, and loathed by the wider population.
In case you didn’t tune into the segment broadcast on the Kyle and Jackie O show on 2Day FM on 22 November 2011, it involved Sandilands getting stuck into a female journalist who’d written a critical review of his TV show A Night With The Stars. He issued a barrage of invective about her hair, her breasts, her wardrobe and made big guy threats about hunting her down. Sidekick Jackie O giggled along in the background. If you like that sort of thing, you can read the transcript attached to the ACMA investigation.
Uproar ensued. Major advertisers abandoned Austereo, the 2Day FM licensee, and both the station and ACMA were bombarded with complaints. The #vilekyle hashtag did the rounds on Twitter ensuring that any Sandilands-haters who hadn’t heard the segment live found out about it later. Indeed, Austereo’s submission noted that of the 363 complaints received about the segment, only 75 actually heard it on live radio. It was less a case of audience rebellion, then, than of outrage in the wider community. Someone, anyone, get this guy off the air.
ACMA duly investigated three alleged breaches of the Commercial Radio Codes of Practice: that the segment incited hatred, serious contempt or severe ridicule because of gender (clause 1.1(e) of the Code), that it incited violence or brutality (1.1(a)) and that that it did not meet generally accepted standards of decency (clause 1.3). Austereo was let off the hook with regards to the first two complaints — but not the third.
The authority found that Sandilands’ invective did have something to do with gender but that it wasn’t going to incite further serious contempt or hatred. So no breach there — though it was noted that the segment was in "flagrant breach" of the Code’s guidelines relating to the portrayal of women which propose that "reporting and on-air discussions respect the dignity of women".
The investigation found that incitement of violence "presenting, for its own sake, violence or brutality ordinarily requires a gratuitous description of particular acts of violence or brutality". Sandilands’ leery warnings to the journalist weren’t enough to satisfy this requirement.
It was on "generally accepted standards of decency" that Austereo’s case was unstuck. It’s hard to imagine a community standard of decency that Kyle Sandilands wouldn’t violate somehow. The thing about standards of decency is that they are generally imagined — they’re fictive benchmarks. Anything that might get Sandilands off the air should have something going for it — but the breach of decency requirements didn’t actually get him off the air, and raises questions about where and how else decency might impose a limit to free speech.
What does decency mean in the context of the radio code? It exists to prevent broadcast of material which is unsutable with regard to "prevailing community attitudes and standards". The investigation report states:
"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."
Sandilands’ "fat slag" and "bitter troll" talk put the broadcaster in breach of these. Of course, one listener’s indecent and coarse may be another’s racy and exciting. This too was noted by the ACMA: "Diverse audiences in Australia will not have everyday tastes and standards in common and further, material that may be regarded as indecent in one context may be acceptable in another."
Sandilands is certainly acceptable to the 2Day FM audience. The Kyle and Jackie O show’s ratings have risen since November and Austereo’s submission to the ACMA noted that most of the complaints received about the show were made by people outside of its core audience.
This core audience, Austereo argued to ACMA, knows Kyle, knows his schtick and would be "likely to dismiss the comments as a hot-headed rant, as well as typical Sandilands banter".
The ACMA didn’t buy it and has proposed new licence conditions for Austereo. Sandilands and crew will be "instructed" as to what sort of remarks are acceptable for broadcast. (This seems valiant.) The broadcast delay on the program will be extended from 10 to 30 seconds — making the show a little less live, and giving producers more time to think about whether they want to hit the dump button or not. Finally, a warning system will be installed in the studios to alert announcers when content is getting dodgy.
This is the second set of licence conditions imposed on Austereo thanks to Kyle. In 2010, he won himself a dump button by hooking a 14-year-old girl up to a lie detector and quizzing her about her sexual experience. And then staying on air when she revealed she’d been assaulted.
It’s a tricky spot for Austereo. ACMA issues broadcast licences and can impose conditions upon them — as well as revoke them. In this case, Kyle Sandilands wasn’t under investigation, Austereo and 2Day FM were. They’re the ones who have to haul Sandilands and into line. The first set of licence conditions have no doubt caused some headaches for producers — less so for Sandilands. ACMA can’t impose a fine on either him or the network.
Austereo boss Rhys Holleran says the new licence conditions will be unworkable for the network and that they will fight them. "Our difficulty with the proposed licence condition is that terms such as ‘decency, ‘demeaning’ and ‘undue emphasis on gender’ are broad and ambiguous and mean different things to different people."
There’s plenty of reasons to object to Kyle Sandilands. Being offensive is his stock in trade. (If you’re wondering just how repellent his record it, check out the rap sheet put together by the group Sack Vile Kyle.) Though it shouldn’t be hard for producers to work out when Sandilands is being demeaning, and to figure out what an undue emphasis on gender might sound like, Holleran is right, though, to point to the woolliness of the decency criteria.
A statutory requirement that a station adhere to general standards of decency sounds like a throwback to Menzies-era Australia. It’s got more than a whiff of the hemline police about it too. The Sandilands audience could be forgiven for seeing this as a paternalistic intrusion into free speech.
It’s wearisome to mount anything like a free speech defence in favour of Kyle Sandilands. He hardly needs it and in this instance, it’s his producers who’ll be copping the hard work, not him. In a perfect world, he wouldn’t have an audience, wouldn’t be on air. But he is — and even as he propagates the most banal and pernicious reflexive misogyny, decency seems like an unduly restrictive, anachronistic and morally loaded way of shutting him down.
Indeed, it’s hard to see how a general statutory standard of decency can function as anything but a highly conservative norm. It’s anyone’s guess how radio programs with more explicit sexual content would fare in this regard. Could material like that contained on Dan Savage’s hugely popular sex and relationships advice podcast, Savage Love, be broadcast on commercial radio? What other kinds of broadcast material would suffer if people who weren’t in the audience complained about segments they didn’t hear on the grounds that they were offensive? There are surely sufficient limitations to freedom of speech without adding decency to the mix.
So what to do about Kyle Sandilands? Can he be stopped? It doesn’t look like he’ll be sacked, given that large and loyal audience.
The impact of an advertiser boycott may exert more pressure on the station as ad revenues at Austereo continue to fall. The Oportos and Bullas and Hondas who are walking out on the network are worried about their sales dropping. Sandilands might be ratings gold, but he’s bad news for branding. This, of course, is a kind of market-driven morality and the efforts of big companies to present themselves as family friendly should be taken with a good pinch of salt. Is a statutory account of decency any worse than family values meal deals? At the very least, the market provides no legal precedent and those media organisations whose advertisers aren’t required to be squeaky clean can take risks on material that might offend public decency.
At any rate, ACMA has made a martyr of Kyle Sandilands to decency — and hasn’t managed to get him off the air. The market may well do a better job of toppling King Kyle than statutory definitions of decency — and tangle up fewer other broadcasters along the way.
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