Investigation Report No. 2850

File No. / ACMA2012/1027
Licensee / Network TEN (Sydney) Pty Ltd
Station / ONE
Type of Service / Commercial television broadcasting
Name of Program / Fear Factor
Date of Broadcast / 30 May 2012
Relevant Code / Clause 1.9.7 of the Commercial Television Industry Code of Practice 2010
Date Finalised / 19 October 2012
Decision / No breach of clause 1.9.7 (presenting participants in a reality television program in a highly demeaning or highly exploitative manner)


The complaint

On 16 July 2012 the Australian Communications and Media Authority (the ACMA) received a complaint regarding the program Fear Factor broadcast by the licensee of commercial television station ONE, Network TEN (Sydney) Pty Ltd (the licensee), on 30 May 2012. ONE is a free-to-air high definition digital channel and part of the Network Ten commercial television network.

The complainant alleged that a segment of the program was humiliating and demeaning for the contestants involved and in breach of clause 1.9.7 of the Commercial Television Industry Code of Practice 2010 (the Code).

The program

Fear Factor is an American reality/game show in which three teams, each consisting of a male and a female, compete with one another in a variety of challenging stunts for prize money. There are normally three stunts per episode. The first stunt is designed to physically test the participants, the second stunt is meant to mentally challenge the participants and the third stunt generally involves some form of ‘extreme’ activity.

The stunt complained about involved the male member of the team being strapped to a large blade that rotated and dunked him into a container of water at the bottom of the rotation. As her partner was being thus rotated, the female member of the team, standing in front of a large container full of bulls’ testicles, had to pick out one of the testicles with her teeth and place it by hand in her partner’s mouth as he passed by on the blade. The partner then had to drop the testicle into another container, referred to in the segment as a ‘testicle receptacle’. The team that dropped the most number of testicles into the testicle receptacle in the allotted period of four minutes was declared the winner. The team that dropped the least number of testicles into the testicle receptacle was eliminated.

Assessment

This investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee.

Relevant code clause

Clause 1.9.7 of the Code states:

A licensee may not broadcast a program, program promotion, station identification or community service announcement which is likely, in all the circumstances, to:

[…]

present participants in reality television programs in a highly demeaning or highly exploitative manner.

Demeaning: A depiction or description, sexual in nature, which is a serious debasement of persons, or a group of persons, within a program.

Exploitative: Clearly appearing to purposefully debase or abuse a person, or group of persons, for the enjoyment of others, and lacking moral, artistic or other values.

Complainant’s submissions

In his complaint to the licensee the complainant stated:

Is this sort of desensitising, dehumanising offensive inane rubbish really allowed under Australian TV broadcasting licensing rules? I thought it was the worst television I had ever seen anywhere, including documentaries about human cannibalism. And how humiliating to the poor women and men who obviously had been tricked into participating with promises of ‘potential’ large cash prizes. I was quite shocked that standards were so low now as to allow such ugly behaviour to be seen on public TV.

Channel Ten is a commercial television broadcaster and as such is bound by the Commercial Television Industry Code of Practice 2010, clause 1.9.7 of the code, which deals with presenting participants in reality television programs in a highly demeaning or highly exploitative manner. I consider that the material I mentioned above was in breach of this clause, and thus your company has definitely breached its licence conditions once too often.

In his complaint to the ACMA the complainant stated:

They [i.e. the licensee] do not admit that the program was demeaning, though it used animal gonads (animal organs such as testes or ovaries used in sexual reproduction) and therefore had a sexual connotation. In my view, the contestants were demeaned, and though it may have been consensual – it was still highly demeaning to the participants.

Licensee’s submissions

In its response to the complainant the licensee stated:

Fear Factor is a long-running US program in which contestants are confronted with a series of challenging stunts, under the supervision of professional Hollywood stunt coordinators. The episode to which you refer was classified PG for parental guidance. In addition, the episode carried spoken and on-screen consumer advice that the program contained ‘some coarse language’ and ‘adult themes’. Classification and consumer advice such as this is provided so that people may make informed viewing decisions for both themselves and those in their care.

The format and characteristics of Fear Factor are well understood by both participants and viewers. By agreeing to compete in the program, the participants consent to be confronted by the challenges. Participants are encouraged and challenged but of course retain at all times the ability to decline to take part in, or cease participating in, a particular challenge. Overall, we consider the program complied with the Code and was suitable for broadcast.

In its response to the ACMA’s request for comments the licensee stated:

In the Reality Television Review Final Report, the ACMA recommended, “That a clause be included in the Code that prohibits the broadcast of material presenting participants in reality television programs in a highly demeaning or exploitative manner.”[1] Clause 1.9.7 of the Code was subsequently included in the Code registered by the ACMA on 18 December 2009, along with an Advisory Note on Reality Television to provide guidance to program producers on factors to consider in the presentation of participants in reality television broadcasts.

Clause 1.9.7 refers to the presentation of reality television participants in a highly demeaning or highly exploitative manner. The definition of Demeaning refers to a serious debasement of a sexual nature, while Exploitative is defined as ‘Clearly appearing to purposefully debase or abuse…’ [emphases added].

In classification terms, the deliberate inclusion of particular adverbs and adjectives in the drafting of the definitions and the clause itself indicates the very high strength and intensity of the depictions or descriptions which clause 1.9.7 is intended to prohibit. This is similar to the drafting of clause 1.9.6 of the Code which the ACMA has previously acknowledged sets a high threshold. It is not sufficient for the participants to be presented in a demeaning or exploitative manner.

The definitions of Demeaning and Exploitative are based on the definitions contained in the List of Terms of the Guidelines for the Classification of Film and Computer Games 2005 (Guidelines). In the Guidelines, ‘demean’ is specifically referred to in the context of X18+ classified material (restricted to adults 18 years and over) and ‘exploitative’ is used in the context of the RC (Refused Classification) category. The X18+ classification is an adults only classification for content with ‘real depictions of actual sexual intercourse and other sexual activity between consenting adults’. RC is the highest classification that can be given to media content in Australia at present. Access to such content is restricted by way of prohibitions on sale and distribution; prohibitions on import and export; and prohibitions on publication online.

The terms are more narrowly defined in clause 1.9.7 to reflect the high threshold set by the provision and the context in which the terms are used in the Guidelines.

The episode of Fear Factor in question formed part of the seventh season of the program. The episode comprised the second part of a special two-hour edition of Fear Factor (titled The Bees Are So Angry). The Bees Are So Angry edition was classified TV-PG (Parental Guidance Suggested) when broadcast by NBC on 12 February 2012 on US free-to-air television under the US TV Parental Guidelines.

The format and characteristics of Fear Factor are well understood by both participants and viewers. The stunts challenge both the physical endurance and mental resolve of the contestants.

The episode involved teams of two contestants. The episode began with a brief recap of the challenges in Part 1 including where one contestant was tied to the bottom of a flying helicopter while their teammate cut the person loose and attempted to drop them onto a target below, and another challenge involving one teammate being covered in bees.

The episode featured three stunts. In the first challenge, one contestant had to collect flags on the ledge of the 13th floor of a building while the other contestant waited inside the building on that floor. For each flag collected, the second contestant collected a sandbag. When the time limit expired, both were rapidly pulled into the air, with the second contestant crashing through a glass window before attempting to land the bags on a target below.

The third challenge involved one teammate unlocking another teammate handcuffed on top of a semi-trailer with a steering wheel. The team then had to run to a car, before one steered the car while the other worked the car pedals around an obstacle course before driving into the moving semi-trailer.


The complainant drew particular attention to the second challenge, where one contestant was strapped to rotating blades which dunked him in a pool of water. The teammate had to lower her face into a box of bulls’ testicles, pick one up by the mouth, then place it (by hand) in the first contestant’s mouth. That contestant then had to drop the testicle into a container. The team with the lowest number in the box was eliminated.

The episode was classified PG as the material was considered mild in impact. The program’s challenges were clearly not intended to be taken seriously and are akin to a game show like It’s A Knockout, only more absurdist. The second challenge played upon some people’s discomfort with unusual foods and animal parts. Such challenges feature in many reality television programs and game shows such as The Amazing Race and Survivor. However, bulls’ testicles are eaten in certain parts of the world and are considered a delicacy. Bulls’ testicles are eaten in Spain and some Central and South American countries. Deep-fried bulls’ testicles are eaten in mid-west USA and Canada where they are sometimes colloquially referred to as ‘Rocky Mountain oysters’ or ‘prairie oysters’.

The participants are not ‘demeaned’ for the purposes of clause 1.9.7 of the Code as there is no debasement of the contestants of a sexual nature depicted or described in the episode.

Nor are the participants presented in a highly exploitative manner under clause 1.9.7. They are clearly not purposefully debased or abused in the episode. Rather the challenges test their physical and mental attributes to find the winning team.

The complainant alleged the participants must have been tricked into participating in the program. However, such challenges are a popular feature of the program and by the seventh series were very familiar to participants and viewers. The contestants were willing participants and understood the ‘over-the-top’ nature of the challenges. Participants were encouraged and challenged but retained at all times the ability to decline to take part in, or cease participating in, a particular challenge. This differs to depictions which may not involve the consent or awareness of a participant. Some of the challenges may be distasteful to some viewers or participants but this is not exploitative. The program’s theme and title, ‘Fear Factor’, indicates that some of the challenges may test personal fears and phobias, such as a fear of heights, fauna or food.

Overall, we submit the segment and episode complied with clause 1.9.7 and other relevant provisions of the Code.

Finding

The licensee did not breach clause 1.9.7 of the Code.

Reasons

Clause 1.9.7 of the Code prohibits the likely presentation, in all the circumstances, of participants in reality television programs in a highly demeaning or highly exploitative manner. A breach can occur if either of the two limbs of the clause is satisfied. The segment has been assessed separately against each of these limbs.

Use of the word ‘highly’ indicates that the Code contemplates an extreme scenario and sets a strong test for the prohibited program material. It is not sufficient that the program material presents participants in a reality television program in a demeaning or exploitative manner. The participants must be presented in a highly demeaning or highly exploitative manner for a breach of the Code to occur.

Were the participants likely, in all the circumstances, to be presented in a highly demeaning manner?

To fall within the definition of ‘demeaning’ that forms part of clause 1.9.7 of the Code, the depiction or description of a person or group of persons must be ‘a serious debasement’ of those persons and that the serious debasement must be ‘sexual in nature’ (emphasis added).

The ACMA does not believe that the depiction of the persons involved in the relevant segment of the program was ‘sexual in nature’. The challenge, involving a person picking up an object, putting it in the mouth of another person and having that person try to drop the object into a container, was not, in and of itself, a serious debasement of those persons that was sexual in nature. Although the object concerned was a bull’s testicle, it was not used or referred to in a sexual manner. As the licensee has pointed out, bulls’ testicles are a source of food in parts of South, Central and North America, where the segment was filmed.