CASE NUMBER: 07/2009 – FREY, THIRTLE AND ROUSSEAU VS OFM – CHILDREN

Four complaints that an insert in Rian van Heerden’s programme, Mambo Jumbo, broadcast on Radio OFM at 16:48 on 18 March 2009 contained obscene, vulgar and offensive material unsuitable for children at a time when large numbers of children may be expected to be part of the audience.  The Tribunal found that the target audience of the station is not children and that it is doubtful whether large numbers of children would have been in the audience at the time of the broadcast.  Additionally, the radio station sought the professional opinion of a group of professionals, consisting of senior clinical and counseling psychologists, as well as senior counselors.  The Tribunal accepted the report of the psychologists that stated that current literature studies and clinical experience indicate that children would most likely not understand the content of the interview and/or follow the interview.  Young children usually do not have the ability to understand and interpret auditory content that is not on their intellectual level – as would be in this case.  The content is of such a nature that it is most likely not related to their immediate frame of reference and therefore would not draw their attention and/or encourage them to become participant listeners.  Teenagers might understand content such as the insert in question, but since the general opinion is that something like the Tokolosh does not exist, at worst the insert could evoke discussion about a topic that might be seen as taboo in many instances.  The Tribunal found that the presenter made all reasonable efforts to warn the audience six times about the content of the interview before it was broadcast. Although the interview might have been in questionable taste and offensive to sensitive listeners, the Constitutional Court has held that freedom of speech includes the right to air offensive material within reasonable limits.  It was found that the insert contained no excessively and grossly offensive language.  The Tribunal accepted the bona fides of the broadcaster and that no malice was intended by the presenter.  In the light of the sincere concern of the broadcaster and the decision to suspend the presenter for two days, and judged within context, no evidence could be found that the interview was unsuitable for children or that it exceeded the limits of the broadcaster’s freedom of expression.  No contravention of the Code could be found and the complaints were dismissed.