BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
60 Minutes – item entitled “Fair Game” explored the question of whether fish feel pain – focussed on big game fishing – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – significant viewpoints presented – not upheld

Standard 5 (accuracy) – item was not inaccurate on points of fact – not upheld

Standard 6 (fairness) – not unfair to deep-sea fishermen – not upheld

This headnote does not form part of the decision.

Broadcast

[1] An item on 60 Minutes, broadcast on TV3 at 7.30pm on 18 October 2004, was entitled “Fair Game” and explored the question of whether fish feel pain. The item centred on big game fishing and the introduction said:

Bullfighting, cock fighting, bear baiting. Some cultures have delighted in prolonging the torment of animals, under the guise of some sort of noble contest. But are we any better? What about big game fishermen who fight to land marlin or swordfish?

A growing number of scientists believe fish do feel pain and stress … the people who catch them could find themselves in Court charged with cruelty to animals.

[2] The introduction was followed by an excerpt from a short film which showed a human character picking up food from the beach, only to find that he has a hook through his mouth and is being dragged out to sea.

[3] The reporter conducted interviews with supporters of the view that fish feel pain – Jeffrey Mason (an author who has written about the emotional lives of animals), SPCA worker Jim Boyd, and marine scientist Dr John Montgomery. In addition he spoke to Graham Sinclair (host of the television programme Gone Fishing) and game skipper John Gregory, who disagreed with the proposition.

Complaints

[4] John Holdsworth, on behalf of Blue Water Marine Research Ltd, and Jeff Romeril, President of the New Zealand Big Game Fish Council (NZBGFC), both made formal complaints to CanWest TVWorks Ltd, the broadcaster. The complainants alleged that the item had breached standards of balance, accuracy and fairness.

Blue Water Marine Research Ltd’s Complaint

[5] Mr Holdsworth first addressed the issues of balance and fairness. His first concern was the film clip showing a human being dragged out to sea with a hook in his mouth. He compared the images to showing humans trapped in battery cages or being hung alive by their legs, and argued that they were unfair.

[6] Mr Holdsworth noted Graham Sinclair’s statement that there was doubt in the scientific community about the ability of fish to interpret pain in the same way as humans. However, he said, it was unfair to follow this comment with Dr Montgomery’s response to the question of “what he would say in Court if asked if fish felt pain”. The complainant argued that the real issue was how fish interpret what they feel, and further stated that Dr Montgomery’s answers were not placed in context. He felt it was unfair to place these answers so early in the item without any background to the issue, specifically to negate what a fisherman was saying about how fish interpret pain.

[7] Mr Holdsworth also felt the following statement by the reporter was “judgemental” and unfair:

In your work here as an animal welfare inspector, if you come across cruelty it is criminal, but here it is a way of life.

[8] Turning to consider the accuracy standard, Mr Holdsworth asserted that science did not support the view that fish feel pain in the same way that humans do. He explained what he considered were the key differences between the human brain and a fish’s brain. Mr Holdsworth observed that this question was not put to Dr Montgomery, or “any of the other experts that were available to state this with authority”.

[9] Mr Holdsworth maintained that the item had mentioned six times the example of a fisherman taking 14 hours to catch a marlin. First, he noted that the fish referred to was in fact a broadbill swordfish. Secondly, Mr Holdsworth alleged that most marlin were caught within 30 minutes and cited various statistics to reinforce this point. He was concerned that the item gave the impression that marlin are normally on the line for many hours, when this was not the case.

[10] Mr Holdsworth asserted that there had been a critical omission from the item – the failure to mention that recreational fishing groups were currently working on a code of practice with the National Animal Ethics Advisory Committee. This was occurring even though the Animal Welfare Act gave an exemption to fishing, he said, and demonstrated that there was a willingness among recreational fishing leaders to consider the animal welfare implications of fishing.

New Zealand Big Game Fishing Council’s Complaint

[11] Mr Romeril felt that, in the interests of balance, the broadcaster should have approached the NZBGFC to consult and review the information the broadcaster had on the subject. He stated that the NZBGFC was New Zealand’s largest marine recreational fish body of 32,000 members with 61 clubs throughout the country. Mr Romeril asserted that it was a major omission for the broadcaster not to contact the NZBGFC for a programme that set out to target its members. He added:

It intended to seriously damage our credibility and threaten the ability for our anglers to continue in this popular activity with possible prosecution. The selected candidates to contest the threat, while well known in fishing circles, were not official spokespersons for the NZBGFC and not able to comment on the official position our Council has on the subject matter.

[12] Mr Romeril advised the broadcaster that the Council had been proactive in developing a Code of Welfare for recreational fishing, and that the producer of the programme was aware of this fact. He argued that it should have been included in the item for viewers to consider, and by not doing so the producer had demonstrated that he did not intend to make a balanced or fair programme.

[13] Mr Romeril went on to describe the NZBGFC rules which were adhered to by the majority of people who participated in deep-sea fishing. These rules had been made to ensure that fish survived if they escaped capture, he said.

[14] A major theme of the programme was that recreational fishers were not using the most efficient method of capture, Mr Romeril said. He argued that this was demonstrably not the case, stating that all but the largest fish were captured “as efficiently and effectively as possible”. He added:

For 60 Minutes to focus on one fish where an angler in his mid sixties takes 14 hours to land a world record broadbill on 37kg tackle is biased and unbalanced.

[15] Mr Romeril said he was aware that the broadcaster had been given the contact details of three scientists who were well respected internationally in the field of fish physiology, and that two of them had been contacted. However, he had been informed that the views of those scientists had been dismissed “because they were contrary to the programme’s intent of painting deep-sea anglers as villains and potential animal welfare criminals”.

[16] Mr Romeril asserted that the scientific community was divided as to the extent to which fish are able to interpret pain in the way mammals can. He also argued that the use of selective editing and leading questions appeared to have elicited the response from Dr Montgomery “that the producer wanted”.

[17] The complainant contended that the balance of expert opinion had been completely overlooked by the item. He provided the broadcaster with examples of recent research which proposes that fish are not “conscious” of pain. Similarly, several segments had been devoted to the views of “long time activists” Jeffrey Mason and Jim Boyd, he said, and the producer had failed to provide adequate balance to these views.

[18] Referring to the example of an angler taking 14 hours to catch a broadbill, Mr Romeril said that this was not the normal time, as 60 Minutes implied. He contended that no angler would deliberately extend the catching time, as that would serve no purpose and would increase the risk of the fish freeing itself.

[19] The complainant also felt that the likening of deep-sea fishing to dog fighting or bullfighting was a “gross misuse of analogies and requires an apology”. While the other blood sports mentioned were illegal in this country and not condoned by the NZBGFC, he said, fishing was extremely important to the New Zealand culture. The NZBGFC went to considerable effort to uphold the interests of the recreational fishing public, and tried to ensure that fisheries were managed for the future.

[20] Mr Romeril also expressed concern at the image of a human being caught by a hook in the mouth and dragged to sea. He categorised this as being in very poor taste and “designed only to appeal to the extremist supporters of animal rights”. He argued that there was a distinct lack of constructive argument to counter the views of the extremists, despite there being over a million anglers who regularly fish in New Zealand.

[21] In conclusion, Mr Romeril stated that the NZBGFC accepted that there may be wide debate on the subject of fish feeling pain, but contended that this item was biased and grossly unbalanced in both research and presentation. The producer, he said, wanted to convince viewers that fish interpret pain the same way that humans do, and that recreational fishing would be outlawed if it was not so popular.

Standards

[22] CanWest assessed both complaints under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Responses to the Complainants

[23] In its response to the complainants, CanWest considered each of the nominated standards in turn. Looking at Standard 4 (balance), it noted that balance must only be provided when controversial issues of public importance are discussed. The broadcaster did not accept that the issue of whether fish feel pain was such an issue.

[24] Turning to consider Standard 5 (accuracy), the broadcaster contended that the science of what fish feel when they are hooked and brought to the surface was the primary focus of the programme. Both the reporter and the producer of the programme had investigated likely sources of information on the issue, it said, including the SPCA, the National Institute of Water & Atmospheric Research (NIWA) and various marine biologists.

[25] CanWest contended that the item had made it clear that, while science suggested that fish experience sensation, it was not necessarily pain as humans experience it. It provided references from the programme as evidence of this.

[26] The broadcaster considered that the science on the issue had been clearly presented in the programme. It argued that there was a sound scientific basis for the views expressed by those who were interviewed, and found that there was no breach of Standard 5 (accuracy).

[27] In relation to Standard 6 (fairness), CanWest found that those who disagreed with the view expressed by Dr Montgomery had been treated fairly as they had been given a chance to present their views in the programme, and had been accorded appropriate prominence. CanWest felt that there was adequate material in the item supporting the position that fishing did not cause fish to feel pain.

Referrals to the Authority

[28] Dissatisfied with the broadcaster’s responses, both Mr Holdsworth and Mr Romeril referred their complaints to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

Blue Water Marine Research Ltd’s Referral

[29] Mr Holdsworth contended that CanWest had failed to consider the programme in the context of the wider animal rights debate. He maintained that the item:

…highlighted the most emotive arguments and images, and did not present sufficient balance. The prospect of eco terrorism…and the boycott of New Zealand products and services is an issue of public importance.

[30] While he accepted that Dr Montgomery had an opinion that “fish feel pain of sorts”, Mr Holdsworth questioned why he had not been asked to explain what sort of sensation a fish might feel. Instead, he contended, it was left to a fishing show presenter and a charter boat skipper to try and explain this. The complainant also felt that Dr Montgomery should have been asked if catching fish was “torture” or if the sensation fish feel was comparable to bulls and dogs.

[31] Mr Holdsworth contended that the distinction between what fish feel and what humans feel had been completely lost by the end of the item. The broadcaster should have obtained a second opinion from another expert, rather than setting up statements from a charter boat skipper to be contrasted with those of a scientist.

[32] The complainant identified the following alleged inaccuracies in the programme:

• A 37kg line was not light line as stated in the item, it was heavy tackle.
• The capture time of marlin was stated as many hours, and 14 hours was mentioned several times. In fact two thirds of marlin were caught within 30 minutes.
• The item stated that fishermen did not want to confront the issue of pain in fish, but the broadcaster was aware of the current work on a Code of Practice.

[33] Mr Holdsworth noted that the broadcaster had not responded to his concern about the reporter’s statement to John Boyd that animal cruelty was a way of life for deep-sea fishermen. He maintained that this remark was unfair and unfounded, and also showed the personal bias of the reporter.

[34] The claims of torture and torment in the programme’s introduction, plus the combination of the interviews built a case against fishermen that was “impossible to counter”, the complainant said. He argued that the programme implied that fishermen could be taken to court for cruelty, and did not answer the question of whether fish feel pain.

New Zealand Big Game Fishing Council’s Referral

[35] Mr Romeril argued that, contrary to the broadcaster’s assertion, the issue of whether fish feel pain did represent a controversial issue of public importance. The broadcaster had lost sight of the fact that over one million New Zealanders fish every year, he said, and the programme had a clear intention to prove that fish feel pain and that anglers should therefore alter or cease current fishing practices.

[36] Mr Romeril also maintained that the broadcaster had sought to dissuade the public from fishing, by showing “dramatic and incorrect” comparisons to bullfighting, dog fighting and a person being dragged into the sea. In addition, he said, if recreational fishing was presented as causing pain to fish then commercial fishing practices would also be affected. He maintained that the issue was clearly of public importance as it could adversely affect a quarter of the country’s population and its fourth biggest export industry.

[37] As to the question of accuracy, Mr Romeril argued that the programme suggested that fishing was similar to bullfighting and dog fighting, and could result in a court case. He stated that viewers were left with the conclusion that fish feel pain, but the question of what kind of pain they felt was never explored.

[38] Mr Romeril repeated that the NZBGFC had not been approached in making the programme. He argued that the Council’s members were the most likely to participate in deep-sea fishing, and were clearly the anglers the programme was targeting. However, the broadcaster had not sought any of the Council’s policies, rules or recommended practices, he said.

[39] The complainant argued that it was not established how frequent a capture time of 14 hours was, although the figure was cited often in the programme. No reference was made to the legality of the activity or how it fits within the Animal Welfare Act, Mr Romeril said. He also contended that a study of the programme time accorded to the pros and cons of the issue would reveal a huge imbalance.

Broadcaster’s Response to the Authority

[40] CanWest added nothing further to its original replies to the complainants.

Authority's Determination

[41] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[42] The complainants have alleged that the programme breached standards of balance, accuracy and fairness.

Balance

[43] Standard 4 requires that balance be provided when “controversial issues of public importance” are discussed. In the Authority’s view the item examined the question of whether fish feel pain, and if so, how a sport such as big game fishing might come to be regarded in the near future. The Authority finds that this was a controversial issue of public importance to which the standard applies.

[44] The complainants argued that the item was unbalanced essentially because it failed, first, to adequately present the science surrounding the question of whether fish feel pain, and second, because it had not sought the views of the New Zealand Big Game Fishing Council, a body which represents recreational fishers in New Zealand.

[45] The Authority takes a different view. It considers that the issue of whether fish feel pain, while it may not have been presented with sufficient clarity or depth to satisfy the complainants, was nevertheless presented in a sufficiently balanced way. The programme presented the views of two animal advocates who believed that fish do feel pain (Jim Boyd of the SPCA and the author Jeffrey Mason); two big game enthusiasts who argued strongly that fish do not feel pain in the same way as human beings (Graham Sinclair, the host of Gone Fishing, and John Gregory, a game skipper); and Dr Montgomery from the University of Auckland, whom the programme described as “one of New Zealand’s most respected marine scientists”.

[46] In arguing that the science of whether fish feel pain was presented in an unbalanced way, the complainants contended that the programme should have sought the view of another marine scientist to counter Dr Montgomery and thereby provide a balanced scientific view. The Authority disagrees. It considers that Dr Montgomery was the appropriate independent expert to consult regarding the scientific consensus at that time. The Authority notes that Dr Montgomery was the scientist recommended to CanWest by fish scientists at NIWA and other marine biologists, including one of the two authorities whom the complainants argued should have been interviewed to rebut Dr Montgomery’s views.

[47] In the Authority’s opinion, Dr Montgomery’s comments were considered and qualified, and provided a balanced scientific view which did not mislead viewers as to the science, namely the fact that whatever pain was felt by fish was not “exactly as humans experience it”. For example, Dr Montgomery stated, “I think there’s a reasonable consensus, amongst the neuroscientists that I’ve talked to anyway, that fish do feel pain of sorts”. Later, in response to the reporter’s question about the effect of painkillers on fish whose lips had been affected by a toxin, Dr Montgomery clarified this by saying that pain-killers, rather than easing pain in fish, “put the fish back into a more normal behaviour state”.

[48] On the issue of whether it was necessary to include the views of the NZBGFC, or refer to the policy which the NZBGFC is developing, the Authority again refers to the focus of the item, which, given the allusions to fishing as a blood sport, focussed largely on the emotional responses of those on either side of the debate. The Authority observes that while bodies such as the NZBGFC might properly be regarded as the authority on policy directions for its members, broadcasters are not obliged to seek their views or their approval of interview subjects unless this is critical to the item. It notes that while the NZBGFC complained that the two fishers interviewed for the programme were not “official spokespersons” for the Council, or authorised to comment on the Council’s official position, the two men were not identified as representing anyone other than themselves.

[49] The Authority further notes that, in the context of this item, the significant points of view necessary to provide balance were adequately provided by two individuals, both of whom, as passionate advocates and practitioners of big game fishing, presented strong arguments in support of their views. In this respect, the Authority considers that the broadcaster met the requirement for balance under Standard 4.

Accuracy

[50] Both complainants have argued that the item contained a number of inaccuracies because it did not include another scientific expert in addition to Dr Montgomery. The Authority finds that the scientific facts in the item were presented in an accurate way, both by Dr Montgomery (whose statements were a mixture of fact and opinion) and in other statements which made it clear that the “pain” felt by fish is not the same as pain felt by humans.

[51] In addition to this, the complainants have specified three alleged inaccuracies in the item which the Authority has dealt with in its consideration of whether the item breached Standard 5 (accuracy).

A 37kg line is not light line as stated in the item, it is heavy tackle.

[52] The complainants have argued that the item stated that a 37kg line is “lightweight tackle”, when in fact they say that 37kg is the heaviest line in regular use for the sport. The Authority notes that the programme spoke about game fishermen using “lightweight tackle” in order to prolong the catch. According to the item, the rules of the sport in New Zealand specify that the breaking strain of the tackle may not exceed 37kg, and the use of heavier gear is prohibited.

[53] The Authority observes that there was no direct statement in the programme that a 37kg line is “lightweight tackle”. While some viewers may have been left with the impression that this was the case, the Authority considers that the item was unclear on this point. Accordingly, it does not find the complainant’s allegation to be well-founded and therefore does not find a breach of the accuracy standard.

The capture time of marlin was stated as many hours, and 14 hours was mentioned several times. In fact two thirds of marlin are caught within 30 minutes.

[54] The example of a fisherman taking 14 hours to catch a fish was mentioned in the item several times. However, the Authority does not consider that 14 hours was promoted as the average time taken to catch a big game fish. In fact, the figure was introduced in an anecdote told by Jim Boyd, who commented that “we had one case” where a fisherman had taken that length of time to catch a marlin. He did not give the impression that it was a regular occurrence.

[55] The Authority also observes that Graham Sinclair referred to marlin coming out of the water after 12-14 hours and stated that they “don’t even look like they know that they’ve been hooked”. These comments, from an avid big game fisherman, show that it is not uncommon for a catch to take that length of time.

[56] The Authority finds that, in considering whether fish feel pain, the fact that it can take up to 14 hours to catch big game fish was a legitimate point for the programme to make. The Authority finds that the item did not suggest that this was typical, and accordingly was not inaccurate or misleading in this regard.

The item stated that fishermen do not want to confront the issue of pain in fish, but the broadcaster was aware of the current work on a Code of Practice with the National Animal Ethics Advisory Committee.

[57] The Authority notes that the focus of this item was on the sport of recreational big game fishing. In suggesting that fishermen do not want to confront the issue of whether fish feel pain, the Authority finds that the item was not referring to organisations such as the NZBGFC, but rather it was referring to some individual fishermen who participate in the sport.

[58] Mr Romeril has advised the Authority that the NZBGFC is developing a Code of Welfare for recreational fishing, and that it is the organisation’s “intention to submit this to the National Animal Ethics Advisory Committee”. While the Authority accepts that the Council may be undertaking such a development, there is no information before the Authority to suggest that any such steps have been taken or that any formal measures have been put in place.

[59] In any event, the Authority does not find that the programme was inaccurate on this point. The item did not attempt to address any policy issues surrounding the debate over whether fish feel pain, but rather it explored the subject from the perspective of people involved in the sport.

Fairness

[60] A specific allegation of unfairness identified by both complainants was the use of the short film clip which showed a human character picking up food from the beach, only to find that he has a hook through his mouth and is being dragged out to sea. The Authority agrees that this was a dramatic and graphic take on the issue. However, while it may have promoted the idea that fishing is cruel, the Authority finds that a reasonable viewer would have had little difficulty distinguishing it as theatre which was intended to provoke thought rather than provide a definitive answer. The Authority finds that the use of the clip was legitimate in the context of the item and therefore not unfair.

[61] As to whether comparisons to dog fighting and bullfighting were unfair as alleged by the complainants, the Authority notes that these comparisons were offered either as opinion or advanced as speculation. The Authority points out that genuinely-held opinions, whether or not they seem extreme or emotive to those holding opposing views, are permitted under the standard.

[62] Mr Holdsworth specifically complained about the reporter saying to Jim Boyd “in your work as an animal welfare inspector, if you come across cruelty it is criminal, but here it is a way of life”. While agreeing that some viewers may have perceived this as a display of bias on the part of the reporter, the Authority finds that it was said more in the nature of a challenging question to Mr Boyd rather than as a statement of fact. It does not consider that the remark was sufficiently unfair as to constitute a breach of Standard 6.

[63] Mr Romeril also alleged that it was unfair not to mention the legality of fishing or how it fits within the Animal Welfare Act. The Authority notes that Jim Boyd did in fact mention this when he told the reporter that “the Animal Welfare Act makes it quite clear that fishing and hunting are legal”. Accordingly, the Authority finds no unfairness in this respect.

[64] Both complainants have alleged that the item was generally unfair to deep-sea fishermen and those who hold the view that fish do not feel pain. The Authority observes that the complainants’ main arguments about unfairness in this regard have already been addressed in its consideration of whether the programme was unbalanced or inaccurate.

[65] As stated above, the Authority finds that the item was balanced and accurate on points of fact. It considers that the broadcaster made a reasonable effort to present significant points of view on the subject, and those who held the view that fish do not feel pain had ample opportunity to express their opinions. Similarly, the Authority has not identified any inaccuracies in the programme which could lead to unfairness.

[66] Furthermore, the Authority observes that the item mentioned the move by anglers towards “the more humane approach” of catch-and-release fishing. The item also showed a salmon farm where children were being taught how to minimise pain and distress in fish. Taking all of these factors into consideration, the Authority does not find that the item breached Standard 6 (fairness).

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
31 March 2005

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1. Mr Holdsworth’s formal complaint – undated
2. CanWest TVWorks Ltd’s decision on the formal complaint – 24 November 2004
3. Mr Holdsworth’s referral to the Authority – 27 November 2004
4. CanWest TVWorks Ltd’s response to the Authority – 4 February 2005

1. Mr Romeril’s formal complaint – 25 October 2004
2. CanWest TVWorks Ltd’s decision on the formal complaint – 24 November 2004
3. Mr Romeril’s referral to the Authority – 12 December 2004
4. CanWest TVWorks Ltd’s response to the Authority – 4 February 2005