BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Birdland – presenter Jeremy Wells looked at birdlife in New Zealand – visited a weka farm in Southland – was shown caring for pet mice then releasing them to be eaten by weka – allegedly in breach of good taste and decency, responsible programming, children’s interests, and violence

Findings
Standard 9 (children’s interests) – guideline 9d – animals badly treated – gratuitous and not justified by context – broadcaster did not adequately consider children’s interests – upheld by majority

Standard 1 (good taste and decency), Standard 8 (responsible programming) and Standard 10 (violence) – subsumed into consideration of Standard 9

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An episode of Birdland, a locally produced wildlife programme hosted by comedian Jeremy Wells, was broadcast on TV One at 7pm on Saturday 14 November 2009. Following the introduction, Mr Wells was shown in a hotel room caring for two pet mice which he was carrying in a small container that looked like a toy bus. He was first shown ironing with the container sitting next to him, then taking the container to the bathroom while he brushed his teeth, then pushing the bus around on a table top, and finally turning the lights out with the cage sitting on his bedside table.

[2]   Mr Wells was then shown visiting a weka farm in Southland. As he entered the farm, carrying the mice in the container, the farm owner said, “Nice, favourite food,” to which Mr Wells responded, “I spent the night with them last night” and he reported that the mice had had a fight during the night. At the end of a voiceover introducing the weka farmer, Mr Wells said, holding up the cage, “poor little things, [that’s] nature.”

[3]   Mr Wells was shown setting the cage down on the ground in the weka enclosure, saying, “Roger suggested we bring some mice to feed to the weka, and while most humans consider these rodents pests, to the weka palate they’re as delicious as caviar or whitebait fritters.” Mr Wells opened the front of the cage, and a weka was shown lunging at one of the mice as it began to emerge from the container. Mr Wells and the farmer were shown laughing, and Mr Wells said in a voiceover, “At first, I thought the mouse was a goner, but as the slow-motion camera reveals, it was just a close call.” The shot was shown again in slow-motion to show that the weka had not caught the mouse.

[4]   Later in the programme, Mr Wells was shown walking through the weka farm still carrying the mice’s cage, and said, “It was time to give Roger’s weka a treat and to finally say goodbye to our brave little mice.” He opened the cage and was shown shaking it to drop the mice into the weka enclosure. One weka immediately grabbed one of the mice and carried it off into the grass, and the mouse could be heard squealing. The other mouse was shown sitting on the ground unharmed, and Mr Wells said, “Thankfully, the end, when it came, was swift.” Another weka was shown chasing and pecking the second mouse, and carrying it into the surrounding grasses to eat. Accompanied by sombre music, Mr Wells said, “I don’t know how I feel about that, bittersweet... The wekas are happy. At least I’ve still got a bus [picking up the mice’s container].” Mr Wells was then shown lying on his bed in the hotel with the empty container sitting on the pillow beside him.

Complaints

[5]   Sylvia Irwin, Dr Simon Nelson, and Niall Robertson made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the programme breached standards relating to good taste and decency, responsible programming, children’s interests and violence.

Sylvia Irwin’s complaint

[6]   Ms Irwin argued that the programme encouraged and condoned animal cruelty by letting the presenter “release mice for wekas to peck to death while he laughed about it”. She said there were close up shots of the “terrified mice being attacked more than once”. Ms Irwin considered that the mice should not have been tormented for the purposes of humour or entertainment.

Dr Simon Nelson’s complaint

[7]   Dr Nelson said that he was concerned about the “ethics” of feeding tame mice to wekas, which likely lacked the survival instincts of wild mice. He considered that their deaths appeared to be prolonged, the mice could be seen struggling and “could be heard squealing in what was presumably distress and pain”. Dr Nelson said that, although mice are often fed to other animals, they are usually first euthanised or rendered insensible. Further, he considered that the scene was used only for entertainment, particularly as weka do not rely on a diet of mice for survival, and nor were they being used as food on the weka farm shown. He said, “the fact that weka might eat rodents could have been conveyed verbally without resorting to a graphic representation involving animal suffering”.

[8]   Dr Nelson said that he was particularly concerned about the lack of any warning for viewers, the time of broadcast, the “gratuitous and unnecessary” content, and the violent nature of the scene involving the mice.

Niall Robertson’s complaint

[9]   Mr Robertson believed that feeding the mice to the weka “was an act of gratuitous cruelty as the animals did not die quickly, suffered and the programme host showed no concern for their wellbeing or their suffering”. He considered that this was “not a case where two wild animals hunt and chase”, but rather trusting pets were fed to a predator. Mr Robertson was of the view that the scene was unsuitable for family viewing at 7pm, and noted that members of his family were shocked and distressed by the programme.

Standards

[10]   TVNZ assessed the complaints under Standards 1, 8, 9 and 10 of the Free-to-Air Television Code of Broadcasting Practice. Mr Nelson also nominated guidelines 1b, 8a, 9a, 9c, 9d and 10a. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guideline 1b

The use of visual and verbal warnings should be considered when content is likely to disturb or offend a significant number of viewers except in the case of news and current affairs, where verbal warnings only will be considered. Warnings should be specific in nature while avoiding detail which may itself distress or offend viewers.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified;
• display programme classification information;
• adhere to timebands in accordance with Appendix 1;
• are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
• do not deceive or disadvantage the viewer.

Guideline 8a

Broadcasters should use established classification codes:

classification symbols should be displayed at the beginning of each programme and after each advertising break;

warnings should be considered when programme content is likely to offend or disturb a significant number of the intended audience.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.

Guidelines

9a   Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – normally up to 8.30pm – and avoid screening material that would disturb or alarm them.

9c   Broadcasters should have regard to the fact that children tend to:

• stay up later than usual on Friday and Saturday nights and during school and public holidays; and
• watch television through to midday on Saturday and Sunday mornings, and during school and public holidays.

Accordingly, special attention should be given to providing appropriate warnings during these periods.

9d   Programmes containing 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 should be avoided and any scenes 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

Broadcasters should exercise care and discretion when dealing with the issue of violence.

Guideline 10a

Any violence shown should be justified in the context of screening and not be gratuitous.

Broadcaster's Response to the Complainants

[11]   TVNZ submitted that to constitute a breach of Standard 1 the broadcast material must be unacceptable in the context in which it is shown, including the programme’s classification, time of broadcast, the intended audience and any warnings used.

[12]   The broadcaster noted that on this occasion, the programme was rated PGR which would have given parents sufficient notice that material in the programme may need the guidance of a parent or adult. It considered that the scenes involving the mice were relatively brief, and argued that their deaths were not shown “as the wekas took the mice into the long grass to eat”. TVNZ maintained that the footage was not gruesome as no blood or gore was shown. Further, “it is a fact of nature”, it said, that some animals eat other animals and this is shown on many nature documentaries. TVNZ noted that the programme also showed weka being killed and plucked for eating. Finally, the broadcaster argued that the scene where the mice were fed to the weka was well signposted so that it would not have been unexpected for viewers.

[13]   TVNZ concluded that the scenes did not breach Standard 1.

[14]   Turning to Standard 8 (responsible programming), the broadcaster asserted that the standard related to ensuring that programmes are correctly classified and that the classifications are displayed. It said that Birdland was rated PGR and the PGR rating was shown at the beginning of each segment of the programme. TVNZ did not consider that the programme required a warning. It declined to uphold Dr Nelson’s Standard 8 complaint.

[15]   Looking at children’s interests, the broadcaster reiterated that the programme was rated PGR which indicated that children should view it in the company of a parent or adult. It repeated its arguments in relation to Standard 1, and also noted that the weka farmer had suggested that the presenter bring live mice to feed to the weka to illustrate their feeding habits and behaviour. It said, “this was shown in part to help promote a positive attitude towards the birds which are sometimes seen as pests”. TVNZ emphasised that Birdland was a programme about birds and therefore it was appropriate to show the natural habits of the birds featured. It concluded that it had taken into account the interests of child viewers and declined to uphold the Standard 9 complaint.

[16]   With regard to Standard 10 (violence), TVNZ argued that the mice were fed to the weka to illustrate the feeding habits of a native bird, and that the scenes were brief and no blood or gore was shown. It reiterated that such scenes were common in wildlife programmes, and that the programme was rated PGR which notified parents that some guidance may be required. TVNZ concluded that Standard 10 was not breached.

Referrals to the Authority

[17]   Dissatisfied with the broadcaster’s response, Ms Irwin, Dr Nelson and Mr Robertson referred their complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Ms Irwin’s referral

[18]   Ms Irwin considered that TVNZ’s response was “cowardly” and did not accept accountability for the programme’s cruelty to mice. She reiterated that she objected to condoning cruelty for the purposes of entertainment.

Dr Nelson’s referral

[19]   Dr Nelson considered much of TVNZ’s decision to be “disingenuous”. He maintained that the scenes made it obvious that the mice were being killed, even if it was not explicitly shown, and that it was made even more unsettling by the build up showing the presenter looking after them as pets and checking on them before bed. He considered that did the opposite of “signposting” the mice’s deaths.

[20]   Looking at Standard 8 he argued that the programme was presented in such a way that it had the potential to cause unwarranted alarm or undue distress especially to younger viewers, and particularly given the “deliberate scenes portraying mice as ‘travel companions’ or ‘pets’ before they are deliberately fed to predators”.

[21]   With regard to TVNZ’s argument that other wildlife programmes show animals being eaten, Dr Nelson noted that those scenes were not staged or set up. Even if there was no blood or gore, he considered it was obvious to viewers what was happening. He emphasised that guideline 9d to the children’s interests standard required that programmes containing sequences in which animals are badly treated should be handled with care and sensitivity. Dr Nelson considered that the scenes could have upset children or inspired acts of animal cruelty.

[22]   Dr Nelson concluded by saying he felt that the programme went against principles of animal welfare and represented animal cruelty.

Mr Robertson’s referral

[23]   Mr Robertson said that he was still concerned about TVNZ’s lack of care regarding animal welfare. He said “there is something repugnant about feeding prey to predators for ‘our entertainment’”, and considered that “a simple statement that weka eat mice would have sufficed”.

Complainant’s Final Comment

[24]   Dr Nelson noted that a man had been convicted on charges of wilful cruelty for feeding kittens to a Pit Bull and filming his actions. He considered that the public outrage that followed “might provide some insight as to how the public feels about feeding live animals to a carnivore in the name of entertainment”. The fact that the programme contained mice, rather than kittens, did not lessen the significance of the presenter’s actions, he said.

Authority's Determination

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

Standard 9 (children’s interests)

[26]   Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. Guideline 9a requires broadcasters to be mindful of the effect any programme will have on children during those times and avoid screening material that may alarm or disturb them. Guideline 9d states:

Programmes containing 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 should be avoided and any scenes 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.

[27]   A majority of the Authority (Peter Radich, Tapu Misa and Leigh Pearson) considers that the Birdland scene involving feeding live pet mice to weka was exactly the type of content this guideline was intended to cover. We consider that animals were badly treated in the programme, and that the broadcaster failed to handle that with care and sensitivity, particularly taking into account the early broadcast time of 7pm.

[28]   While Birdland was promoted as a nature programme, we agree with the complainants that the very calculated nature of the scenes went well beyond what one would typically see in a nature documentary where wild animals are seen hunting and feeding in their natural environment. The build-up in the programme, establishing the presenter’s relationship with the mice and showing him caring for them as domesticated pets before he fed them to the weka, was contrived solely for the purposes of entertainment.

[29]   We consider that programmes shown during children’s viewing times should reflect values which our society would like children to hold. We do not believe that a programme in which defenceless animals were cared for and then offered to predatory animals to be pecked to death and eaten, for the purposes of comedy or entertainment, conveyed the sort of values that should be promoted to children.

[30]   Witnessing someone feeding his live pets to another animal was very likely to disturb child viewers whether accompanied by an adult or not, in which case the programme should have been broadcast at a later time in accordance with guideline 9d.

[31]   In these circumstances, we are satisfied that TVNZ did not adequately consider the interests of child viewers in including the scenes in a PGR-rated programme at 7pm.

[32]   Having reached this conclusion, the majority must now decide whether to uphold the complaint as a breach of Standard 9.

[33]   We acknowledge that upholding the children’s interests complaint would place a limit on the broadcaster’s right to freedom of expression. In Harrison and TVNZ,¹ the Authority determined that upholding a complaint under Standard 9 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 9 in the following terms:

In the Authority’s view, the purpose of the children’s interests standard is to protect children from broadcasts which might adversely affect them.

[34]   With that in mind, we must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 9 on this occasion. We find that upholding a breach of the children’s interests standard would ensure that broadcasters take care to protect child viewers from potentially disturbing material involving the maltreatment of animals during their normally accepted viewing times. In this respect, upholding this part of the complaint clearly promotes the objective of Standard 9, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression.

[35]   Accordingly, we uphold the complaints that the programme breached Standard 9.

[36]   A minority of the authority (Mary Anne Shanahan) would not uphold a breach of Standard 9, because she does not consider that the programme was likely to disturb children. Birdland was rated PGR which indicated that it should be watched in the company of an adult. The minority found the footage complained of innocuous.

[37]   Birdland is a quirky yet informative nature programme. The minority is of the view that the footage subject to complaint was presented in a matter-of-fact way; it was not gruesome. No blood or gore was shown. The minority does not agree that the footage was gratuitous, as its purpose was to demonstrate the weka’s feeding habits. Further, children are likely used to the reality that mice are trapped and killed by people in their homes, or caught and eaten by other family pets.

[38]   Even if the content was borderline when considering children’s interests, the minority finds in favour of the broadcaster’s right to freedom of expression under the Bill of Rights Act 1990. The minority would not uphold the complaint.

Standard 1 (good taste and decency)

[39]   Ordinarily, when a finding is made that a broadcast has been in breach of Standard 9 (children’s interests) it follows that such a broadcast, because of its timing and other contextual factors will also have been in breach of Standard 1 (good taste and decency). In this case, having found by a majority, that the broadcast was in breach of Standard 9, we find it unnecessary to specifically find that such broadcast was, because of its contextual features involving children’s viewing times, also in breach of Standard 1. We therefore subsume our consideration of Standard 1 where we must of necessity have regard to children’s interests, into our finding in relation to Standard 9. We do not wish however to leave matters there.

[40]   While this was a broadcast which was squarely within the normally accepted viewing times for children, we have given some consideration to what our views would likely be if this programme had been broadcast outside the normally accepted viewing times for children and had been the subject of a complaint that Standard 1 had been breached. Some of the complaints we have received seek to raise this wider issue.

[41]   We have not reached a point where we are satisfied that this broadcast, had it taken place outside normal viewing times for children, would have breached Standard 1.

[42]   The application of Standard 1 usually arises in the context of material which has a sexual, human violence or human distress component, but the standard is not limited to material of this kind.

[43]   We recognise that this Authority has to be sensitive to changing values. Just as values in relation to the depiction of sexual themes may be becoming more liberal, values in relation to animal protection are changing. This is evident from changing attitudes towards prosecutions for animal cruelty where heavier sentences are being called for and where the legislature has responded to such calls.

[44]   The ultimate feeding of these mice to weka was contrived for entertainment purposes. It was part of what was said to be a comedy type programme. The progression to the mice being fed to the weka was developed to stimulate emotional reactions from viewers with the presenter shown interacting with the mice as pets and with him expressing some contrived sympathy for the fate of the mice. There can be little doubt that this was a depiction deliberately and cynically arranged over a period of time with a full conscious understanding that boundaries were being approached.

[45]   Some adults will have found this broadcast to have been offensive and unacceptable and this is demonstrated by the complaints we have received. We do not consider that the fact that some sections of the public may find a programme to be offensive and unacceptable is enough for that programme to be in breach of the standard relating to good taste and decency. There would need to be a substantial body of opinion to take us to a point to where we can be satisfied that the community standards which we must reflect have been breached. There remains in New Zealand some ambiguity in relation to the welfare and treatment of animals, particularly animals which can be classified as pests or rodents. In time the point may be reached where it is considered contrary to standards of good taste and decency for mice to have been treated in the way in which these mice were treated and for this to be broadcast to adults. We are not satisfied that this point has been reached.

[46]   The issues raised by some of the complainants in this case are more issues of animal welfare and animal cruelty than of broadcasting standards. We recognise that sometimes there will be a merging of these issues in the minds of complainants. We as the Authority, concerned solely with broadcasting standards, are required to limit our considerations to those standards and we have endeavoured to do so in this case.

Standard 10 (violence) and Standard 8 (responsible programming)

[47]   In our view, the complainants’ concerns have been adequately dealt with under Standard 9. We therefore subsume our consideration of violence and responsible programming into our consideration of the children’s interests standard.

For the above reasons the Authority upholds the complaints that the broadcast by Television New Zealand Ltd of Birdland on 14 November 2009 breached Standard 9 of the Free-to-Air Television Code of Broadcasting Practice.

[48]   Having upheld the complaints, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion, taking into account that the decision was not unanimous. We consider that our decision will serve to remind broadcasters to exercise care when broadcasting this type of material and to ensure that it is justified by context and screened in an appropriate timeslot. We are of the view that the publication of the decision is sufficient in all the circumstances.

Signed for and on behalf of the Authority

Peter Radich
Chair
13 May 2010

Appendix

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

Sylvia Irwin’s complaint

1.           Sylvia Irwin’s formal complaint – 17 November 2009

2.          TVNZ’s response to the complaint – 11 December 2009

3.          Ms Irwin’s referral to the Authority – 18 December 2009

4.          TVNZ’s response to the Authority – 3 February 2010

Dr Simon Nelson’s complaint

1.           Dr Simon Nelson’s formal complaint – 15 November 2009

2.          TVNZ’s response to the complaint – 11 December 2009

3.          Dr Nelson’s referral to the Authority – 14 December 2009

4.          TVNZ’s response to the Authority – 3 February 2010

5.          Dr Nelson’s final comment – 12 February 2010

Niall Robertson’s complaint

1.           Niall Robertson’s formal complaint – 15 November 2009

2.          TVNZ’s response to the complaint – 11 December 2009

3.          Mr Robertson’s referral to the Authority – 21 December 2009

4.          TVNZ’s response to the Authority – 3 February 2010

¹Decision No. 2008-066