ARCHIVED - Broadcasting - Commission Letter to TQS's 1 September 1998 Broadcast of"Black-out"

Letter

Ref.: 981002ML819L-3
Our File: 4677-341

Ottawa, 21 December 2000

Mr. Jean-Yves Desgagnés
Front Commun des Personnes Assistées Sociales du Québec
1222 St-Hubert
Montréal, Québec
H2L 3Y7

- and -

Mr. Wilbrod Gauthier
Président
Réseau de télévision Quatre Saisons Inc.
405, av. Ogilvy
Montréal (AC)
H3N 2Y4

Re: Complaint About TQS's 1 September 1998 Broadcast of "Black-out"

Dear M. Desgagnés and M. Gauthier:

This letter constitutes the Commission's decision on the 23 November 1999 complaint filed by the Front Commun des Personnes Assistées Sociales du Québec (FCPASQ) concerning the 1 September 1998 broadcast of Black-out by Télévision Quatre-Saisons (TQS). That program was the subject of a Canadian Broadcast Standards Council (CBSC) decision released on 7 June 1999. The CBSC decision is attached for ease of reference and it sets out, in detail, the facts and background to its determination. It may also be accessed at the CBSC'S Website: www.cbsc.ca

Summary of Commission's Determination:

For reasons explained below, the Commission considers that the program fell far short of the high standard requirement that TQS is required to maintain in its programming. In addition, the Commission is of the view that the use of an undisclosed actor by a broadcaster in a show such as this would convey a fundamental lack of respect on the part of a broadcaster for its viewers and would be sufficiently serious to constitute a further breach of the high standard requirement. For this reason, the Commission finds TQS's stated uncertainty as to whether or not actors were used in the show to be completely unacceptable.

The Commission finds that the program did not breach the abusive comment regulation. However, the Commission will carefully monitor the level of complaints on this issue, both at the CBSC and the Commission, and continue to track judicial developments with a view to ensuring that the grounds set out in its regulation are adequate and appropriate.

Background:

The CBSC concluded that TQS had breached paragraph 3 of Clause 6 of the Canadian Association of Broadcasters' Code of Ethics (the Code of Ethics) requiring the full, fair and proper presentation of news, opinion, comment and editorial. The CBSC stated that the show, which was set in a Montreal bar and featured a discussion between bar patrons and four panelists who claimed to be welfare collectors by choice, did not present a full, fair and proper discussion on the issue of social welfare or successfully circumscribe the discussion to deal solely with the issue of persons who choose welfare over gainful employment. The CBSC noted that a song included in the show made no distinction between people legitimately on welfare and those abusing the welfare system. The song painted all welfare recipients as dishonest self-indulging people with disgusting habits neglectful of their children. The CBSC concluded that the mocking tone of the show did not present sufficient differentiation of the two "faces" of the welfare process.

However, the CBSC found that TQS had not breached clause 2 of the Code of Ethicsprotecting persons against abusive or discriminatory comment based upon a number of enumerated grounds. The need for social welfare is not one of the grounds specifically enumerated in the Code of Ethics, and the CBSC ruled that it was not willing to extend the enumerated grounds to include it without "legislated" instruction to do so.

FCPASQ did not feel that the CBSC decision went far enough and referred the matter to the Commission in accordance with the procedures set out in Public Notice CRTC 1999-90.

In addition to FCPASQ's 23 November 1999 complaint, the Commission also viewed a tape of the broadcast and considered the 21 February 2000 reply from TQS and additional submissions from FCPASQ dated 7 February and 18 April 2000 in coming to its determination.

The positions of FCPASQ and TQS are set out fully in their submissions. The Commission considered all of the points raised in those submissions in coming to the conclusions set out below.

The "High Standard" Provision of section 3(1)(g) of the Broadcasting Act:

Section 3(1)(g) of the Broadcasting Act (the Act) provides, as one important element of the broadcasting policy for Canada, that the programming originated by broadcasting undertakings should be of high standard. The Commission finds that this program was not of high standard in that it presented an unfair and distorted discussion on the issue of social welfare. The program did not successfully circumscribe the discussion to deal solely with the issue of persons who voluntarily choose welfare over employment. The Commission is in agreement with the CBSC's finding that the program reflected poorly on all social welfare recipients and, in the Commission's view, it fell far short of the high standard requirement that TQS is required to maintain in its programming.

The Commission also notes that the CBSC was uncertain whether the discussion on the show was staged and/or whether any of the panelists on the show was an actor rather than an individual genuinely in the portrayed circumstances. The CBSC concluded, however, that the substance of its decision remained unaffected by the answers to these questions.

This did not satisfy FCPASQ. It submitted a Le Soleil newspaper article that, it argued, proved clearly that one or more of the panelists was not a welfare recipient, but an actor paid for the performance. FCPASQ concluded that a biased presentation by actors not identified as such but instead portrayed as welfare recipients, was below the minimal standards for Canadian broadcasters.

In reply, TQS stated that it was aware of its responsibility for everything that it broadcast. It stated that it had pre-screened the program and was satisfied that it contained no false representations or anything that appeared to be staging. TQS replied that it was impossible, at that point in time, for it to know with absolute certainty if the assurance it had received from the program's independent producer that actual welfare recipients were used was true; however, it did rely on the producer's statement.

The Commission is extremely concerned by this aspect of the complaint. The Commission is of the view that the use of an undisclosed actor by a broadcaster in a show such as this would be a very serious matter. It conveys a fundamental lack of respect on the part of a broadcaster for the viewers of the program. In the Commission's view, it would be sufficiently serious to constitute a breach of the high standard requirement of the Act. For this reason, the Commission finds TQS's uncertain response completely unacceptable. The Commission expects TQS, and indeed all of its licensees, to take the necessary steps to ensure at all times that viewers are not being misled in shows such as this by the use of undisclosed actors. The Commission would not hesitate to find, in cases where the evidence is clear, that to mislead viewers in this fashion would be a breach of the high standard requirement.

The "Abusive Comment" provision of section 5(1)(b) of the Television Broadcasting Regulations

Section 5(1)(b) of the Television Broadcasting Regulations (the Regulations) provides that a licensee shall not broadcast:

"any abusive comment or abusive pictorial representation that, when taken in context, tends to or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability".

Neither the Regulations, nor clause 2 of the Code of Ethics that the CBSC applied, explicitly list social condition as an enumerated ground. Nor is it listed in section 15 of the Canadian Charter of Rights and Freedoms. However, it is listed in the equality rights provision of the Charter of Rights and Freedoms of Quebec. As FCPASQ points out, the Quebec Human Rights Tribunal has interpreted that provision so that differential treatment based on social assistance or income security status infringes the equality rights provision.

In considering section 5(1)(b) of the Regulations, the Commission also noted cases by Canadian courts examining whether social assistance status could be considered analogous to the enumerated grounds, and therefore deserving protection. The caselaw is far from consistent.

The Commission has also been mindful of section 2(3) of the Act which provides that the Act "shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings`` and section 2(b) of the Canadian Charter of Rights and Freedoms which provides that everyone has freedom of expression, including freedom of the press and other media of communication. The Commission concludes that it would not be appropriate to extend the interpretation of its abusive comment regulation now to include social status and apply the extension retroactively to curtail TQS's freedom of expression on the date of this broadcast. Accordingly, the Commission finds that this episode of Black-out did not breach section 5(1)(b) of the Regulations. However, the Commission will monitor the level of complaints on this issue, both at the CBSC and the Commission, and continue to track judicial developments with a view to ensuring that the grounds set out in its regulation are adequate and appropriate. The Commission appreciates the input that FCPASQ has provided to date in bringing this issue before the Commission.

Consequence of Decision

Finally, FCPASQ submitted that the requirement for TQS to broadcast a short message announcing the CBSC decision was not proportionate to the damage done by the broadcast. The Commission notes that this mechanism for handling public concerns about the programming broadcast by private Canadian radio and television stations was accepted by the Commission when it approved the mandate of the CBSC in Public Notice CRTC 1991-90. If a member broadcaster were to repeatedly breach the same or other provisions of a code or codes, it could lead to a finding that the broadcaster was no longer a member in good standing of the CBSC, and the expulsion of the broadcaster from the CBSC. All complaints lodged against that broadcaster would henceforth be investigated by the Commission from the outset.

Moreover, CBSC decisions are publicized within the broadcasting industry and in the general news media. The CBSC has informed the Commission that they have a significant precedent value as they are taken into account by other broadcasters in making their own programming decisions. In addition, the Commission monitors the activities of the CBSC and receives annual reports detailing its decisions and activities. In the view of the Commission, the requirement for TQS to announce the CBSC decision was appropriate and in keeping with the goals of the self-regulatory process.

In addition, this letter will be placed on TQS's public examination file at the Commission and on the Commission's website at www.crtc.gc.ca.

The Commission thanks FCPASQ for expressing its concerns to the Commission.

Yours sincerely,

Ursula Menke
Secretary General

Attachment: CBSC Decision 98/99-0009+

c.c. Mr. Ron Cohen
National Chair, CBSC