Cooling and Television New Zealand Ltd - 2004-076
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Vanessa Cooling
BroadcasterTelevision New Zealand Ltd
Complaint under s.8(1)(a) of the Broadcasting Act 1989
Fear Factor – reality programme in which contestants take part in repellent or frightening activities – contestants were required to tread in a vat containing live earthworms and were required to drink worm “juice” – allegedly offensive and not in interests of children
Standard 1 (good taste and decency) and Guideline 1a – context – not upheld
Standard 9 (children’s interests) and Guideline 9e – earthworms not animals under Guideline 9e – S1930 rating imposed by broadcaster indicated that children’s interests were acknowledged – not upheld
This headnote does not form part of the decision.
 An episode of Fear Factor was screened at 7.30pm on TV2 on 2 March 2004. The broadcaster described Fear Factor as a “reality” programme in which the contestants are challenged to take part in repellent and frightening activities. In the segment complained about, contestants were required to tread in a vat containing thousands of live earthworms, and to drink the worm “juice” collected in a glass.
 Vanessa Cooling complained to Television New Zealand Ltd, the broadcaster, that the item breached the standards relating to good taste and decency, children’s interests, and violence.
 It was offensive, she wrote, to see the worms being killed for entertainment. It was not in the interests of children as the ill-treatment of the worms was not handled with sensitivity, and the programme displayed a callous attitude to the destruction of living organisms for the entertainment of adults. Moreover, she complained, the explicit coverage of the killings and the gratuitous repetition of that sequence breached the standards relating to violence.
 By way of general comment, Ms Cooling considered the broadcaster “completely irresponsible” in screening a programme to young people involving “callous and wanton” cruelty.
 TVNZ assessed the complaint under the standards nominated by the complainant. They read:
Standard 1 Good Taste and Decency
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.
1a Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification. The examples are not exhaustive.
Standard 9 Children’s Interests
During children’s normally accepted viewing times broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.
9e Scenes and themes dealing with disturbing social and domestic friction or sequences in which people – especially children – or animals may be humiliated or badly treated, should be handled with care and sensitivity. All gratuitous material of this nature must be avoided and any scenes which are shown must pass the test of relevancy within the context of the programme. If thought likely to disturb children, the programme should be scheduled later in the evening.
Standard 10 Violence
In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.
10f When real or fictitious killings, including executions and assassinations, are shown, the coverage should not be explicit, prolonged, or repeated gratuitously.
Broadcaster's Response to the Complainant
 TVNZ commented in its response to Ms Cooling:
Having viewed a recording of the programme, the [complaints] committee had considerable sympathy for your feeling of revulsion. It was not the sort of material which we found easy to watch or took pleasure from seeing. However, not liking a programme is not the same thing as establishing that a breach of statutory programme standards has occurred.
 Pointing to the wide range of tastes it was obliged to meet, TVNZ said that Fear Factor was very popular and that viewers seemed to enjoy being disgusted.
 With regard to the good taste and decency requirement in Standard 1, TVNZ acknowledged that squashing earthworms might offend, but argued that recording and screening that activity might not do so.
 In view of the programme’s PGR rating, TVNZ did not consider that it was unsuitable for children watching in the company of caregivers. Children, it added, often enjoyed “yucky” situations and, it wrote:
While guideline 9e does say that animals should not be shown being humiliated or badly treated, the committee found it hard to believe that the drafters of this guideline had earthworms in mind.
 TVNZ also argued that the provision in Standard 10 relating to “real and fictitious killings” did not apply to earthworms.
 Reiterating its sympathy, TVNZ expressed the view that the complainant raised an issue of personal preference, rather than a matter of standards, and declined to uphold the complaint.
Referral to the Authority
 Ms Cooling focused on the requirement for broadcasters to exercise social responsibility when she referred her complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.
 In regard to the Standard 1 obligation for good taste and decency, Ms Cooling contended that the majority of New Zealanders would regard “trampling on live creatures and drinking their juice” as offensive. New Zealanders, she wrote, believed in treating animals humanely and killing them only in necessity. They did not accept the mistreatment of them “for the purposes of entertainment”.
 She did not accept that TVNZ’s reference to the target audience was a valid excuse, as target audiences could be found for all extreme activities, and she argued that they did not amount to a majority of New Zealanders.
 Ms Cooling repeated her concern that the programme featured the humiliation and ill-treatment of animals, which was not handled with care and sensitivity. While acknowledging that children enjoyed “yucky” situations, that did not allow the broadcast of material which contravened the guidelines, she wrote.
 Pointing out that Guideline (9e) did not refer to specific types of animals, she said it was concerned with “ill-treatment and humiliation”. She added:
I believe there is an important issue at stake here – that the ill-treatment and humiliation of animals not only affects the animals concerned, but it also adversely affects humans. There has been much research conducted on the links between cruelty to and abuse of animals, and cruelty and violence to humans. Fear Factor targets younger viewers, who are sensitive to peer pressure and disguises cruelty as courage. I do not believe cruelty to animals should be portrayed this way as it is likely to increase its acceptance amongst those who need to feel brave or accepted. This may lead to further cruel behaviours that are not confined to animals.
 Ms Cooling maintained that Guideline 10f applied to her complaint, and she listed a number of references which dealt with the association between cruelty to animals and violence to humans.
Broadcaster’s Response to the Authority
 TVNZ noted that its Complaints Committee shared the complainant’s sense of distaste with the item, but said that such distaste did not mean that viewers did not enjoy being disgusted. It also commented that the complainant could have used the “off” button.
 TVNZ advised:
We point out that in other episodes of this series, competitors have been asked to eat live hissing cockroaches from Madagascar (the competitors were warned the spiny legs could damage their windpipes), and to consume a pile of maggoty cheese covered in larvae. In another sequence competitors had to lie in a coffin-styled box filled with over 300,000 worms. The competitors then had to draw one of three pieces of paper from a jar on one of which was written “eat no worms”, the second said “eat one worm” and the third said “eat five worms”. They complied.
 As such sequences were a well-known feature of Fear Factor, TVNZ contended that they corresponded to audience expectations and did not breach the standards. TVNZ also advised that the programme, in addition to its PGR rating, was classified S1930 which prevented it being screened before 7.30pm.
Complainant’s Final Comment
 Ms Cooling advised first that her complaint was now confined to Standards 1 and 9. She then responded to TVNZ’s reference to the off button and pointed out that she had watched the programme only after seeing a promo, which she had seen on three occasions while watching NZ Idol (another TV2 programme). She added:
If turning the TV off is the solution to all material that breaches the guidelines, then the BSA must surely be a redundant organisation.
 Referring to TVNZ’s comment about the programme’s popularity with some viewers, Ms Cooling observed that Fear Factor nevertheless might offend the majority of New Zealanders, and that did not justify the maltreatment of animals which was apparent in the episode complained about.
 The members of the Authority have viewed the episode of Fear Factor complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing. In view of the complainant’s withdrawal of the complaint under Standard 10 (violence), the Authority confines its deliberations to Standards 1 (good taste and decency) and 9 (children’s interests).
 When determining complaints which allege a breach of Standard 1 (good taste and decency), the Authority is required to take into account the context of the broadcast complained about. While context is not determinative, it is relevant to the Authority’s decision.
 The relevant contextual matters on this occasion include:
- Fear Factor is a well-known and popular programme
- viewer expectations
- the time of screening
- programme featured earthworms being trodden on and their “juice” drunk.
 In view of these contextual factors as well as the matters discussed in para , and in particular the programme’s popularity, the Authority concludes that the broadcast was not an affront to current norms of decency and did not amount to a transgression of Standard 1.
 As part of her complaint that the broadcaster had not considered the interests of child viewers, Ms Cooling referred to Guideline 9e, and especially the first sentence. It reads:
Scenes and themes dealing with disturbing social and domestic friction or sequences in which people – especially children – or animals may be humiliated or badly treated should be handled with care and sensitivity.
 Ms Cooling contended that the ill-treatment of earthworms for entertainment - indeed their mass destruction - breached the guideline. The programme, she wrote, displayed a callous attitude to these living organisms. In response, TVNZ’s complaints committee shared Ms Cooling’s distaste for the broadcast but argued the earthworms were not the type of animals contemplated when the guideline was drafted.
 The Authority agrees that the guideline was not intended to include earthworms or, possibly, crustaceans, molluscs or insects. It reaches this conclusion by noting that the word “animal” was not used in the sense of all living creatures, or in contrast to “vegetables” and “minerals”. Rather, the Guideline refers to “people … or animals”.
 Moreover, the Authority refers to Standard 9 – noting it is the Standard and not the Guidelines with which the broadcasters must comply. As the Television Code records, guidelines are included to assist in the interpretation of the standards. Standard 9 requires broadcasters to consider the interests of child viewers. The types of animals whose ill-treatment would upset children, the Authority considers, do not include earthworms, making Guideline 9e inapplicable.
 Acknowledging TVNZ’s advice that the programme is popular with younger viewers but, nevertheless, that 7.30pm is the earliest time at which the programme may be screened, the Authority accepts that TVNZ has taken the interests of children into account. It declines to uphold the Standard 9 (Children’s interests) aspect of the complaint.
For the above reasons, the complaint is not upheld.
Signed for and on behalf of the Authority
I5 July 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Vanessa Cooling’s Formal Complaint to Television New Zealand Ltd – undated
2 TVNZ’s Response to the Formal Complaint – undated
3 Ms Cooling’s Referral to the Broadcasting Standards Authority – 19 April 2004
4 TVNZ’s Response to the Authority – 3 May 2004
5 Ms Cooling’s Final Comment – 16 May 2004