THE FACTS
On
December 2, 1999, between 11:30 a.m. and noon, CJMF-FM (Quebec City)
aired a program hosted by André Arthur, during which the host
treated the Péladeau family=s
organisation of a holiday fundraiser with sarcasm, adding that this
family had a number of problems such as Apsychological
problems, addiction problems and alcoholism problems.@
The host went on to describe the Péladeau family as a Afamily
of crooks@.
The full text of the transcript containing his comments can be found
in Appendix A
of this decision.
A
listener wrote to the CRTC Secretary General (the full text of this
letter can be found in Appendix
B of this decision), who, in the normal course, referred the complainant=s
letter to the CBSC. The following is an excerpt from that letter:
Not
satisfied with defaming Pierre Péladeau=s
descendants, the host took it upon himself to ridicule the
volunteers of the Pierre Péladeau fundraiser and those who
plan to participate in the Saint-Vincent-de-Paul campaign on Sunday.
Had he kept to this foolishness, there would have been no need to
involve the CRTC, whose response to this type of pollution of the
airwaves has always been tentative at best.
In
my opinion, however, the program contained vicious and inflammatory
comments against recipients of income security benefits as a
whole (whom the host revels in repeatedly calling AB.S.@
[welfare recipients]). In listening to the tape, you will see
for yourselves at what point the host=s
description is fraught with intolerance towards the 400,000
Quebeckers in the grip of poverty. To claim that the AB.S.@
rush out to squander their cheques on the most frivolous expenses at
the first of the month is to incite people to close their doors to
the volunteers collecting donations to fight against poverty.
It is also an attempt to disguise the fact that some of our fellow
citizens must allot 50% of their monthly benefits to rent alone.
The station=s
reply (the full text of which can also be found in Appendix B
to this decision) states, among other things, that:
With
respect to the comments for which you criticize the host, it would
be advisable to place the discussion in the context in which it was presented.
He questioned the merits of Afundraisers@
designed to assist the destitute in our society. He felt that, in
spite of this worthy intention, it is unacceptable that so few of the
disadvantaged invest their own time and efforts in collecting funds
and that people belonging to associations, companies and/or various
groups are the ones actually doing it for them. André
Arthur describes them by using the term AB.S.@,
which is an accepted popular expression referring to welfare
recipients. He was expressing his opinion that too many welfare
recipients complacently accept their lot and do not make enough
effort to correct and/or improve their precarious condition.
During
that show, he did however take calls from anyone wishing to freely
agree or disagree with his point of view on the air. You have
opted to do so in writing rather than on our airwaves.
The
complainant was not satisfied with the broadcaster=s
reply. On January 25, 2000, he asked the CBSC to refer the matter to
the appropriate Regional Council for adjudication.
THE DECISION
The
Quebec Regional Council considered the complaint under Clauses 2 and
6(3) of the Canadian Association of Broadcasters=
(CAB) Code of Ethics. These provisions read as follows:
CAB Code
of Ethics, Clause 2
Recognizing
that every person has a right to full and equal recognition and to
enjoy certain fundamental rights and freedoms, broadcasters shall
endeavour to ensure, to the best of their ability, that their
programming contains no abusive or discriminatory material or comment
which is based on matters of race, national or ethnic origin, colour,
religion, age, sex, marital status or physical or mental handicap.
CAB Code
of Ethics, Clause 6(3)
It
is recognized that the full, fair and proper presentation of the
news, opinion, comment and editorial is the prime and fundamental
responsibility of the broadcast publisher.
For its
part, the French version of Clause 6(3) reads as follows:
C=est
un fait reconnu que la tâche première et fondamentale
du radiodiffuseur est de présenter des nouvelles, des points
de vue, des commentaires ou des textes éditoriaux avec
exactitude, d'une manière objective, complète et
impartiale.
The
Council members listened to a tape of the program which triggered the
complaint and reviewed all the relevant correspondence. The
Council determined that the host=s
comments regarding the Péladeau family were in violation of
Clause 6(3) of the Code; however, the Council concluded that Mr. Arthur=s
comments with respect to welfare recipients did not contravene the
human rights provisions of the Code.
The
Comments Concerning the Péladeau Family
Talk
radio is a curious phenomenon. It has the potential to be the
best in radio=s
service to democracy while, at the same time, being open to the
worst of excesses. It is as close to the ancient city-square
opportunity for face-to-face debate as we can hope to muster in the
modern interactive arena. It brings participants from far-and-wide
within radio-wave earshot to a virtual electronic city-square.
It offers a forum for the exchange of ideas and even for downright argument.
Regrettably, though, when not managed well, it may lend itself to
diatribe, to flirting with aggressive, even ugly, opinion, to
catering to outrageous perspectives in the interest of ratings.
It takes a responsible hand to guide the ship of talk through
potentially turbulent waters. As the Ontario Regional Council
stated in CKTB-AM re the John Michael Show (CBSC Decision
92/93-0170, February 15, 1994), AIt
is that delicate role of weighing freedom and restriction, lively
debate and imperturbable responsibility, which the host must play.@
Talk radio is not so purely democratic by its nature that
absolutely any speech emanating therefrom could be seen to
benefit from a total freedom of expression absolution.
One of
the most significant limitations can be found in the wording of
Clause 6(3) of the Code, which provides that any comment or opinion
must be presented in a fair and proper manner. Given an error in the
French translation of the original English version of Clause
6(3) (which renders the French version useless as explained in the
Quebec Regional Council=s
decision in CFTM-TV re Galganov in the Morning (Invasion of privacy)
(Decisions 93/94-0100, 93/94-0101 and 93/94-0102, December 5, 1995)),
the Council relies on the English terms Afull,
fair and proper presentation of news, opinion, comment and editorial@
as a basis for its decision in this case (as well as all other
decisions based on this section of the Code).
In CIQC-AM
re Galganov in the Morning (Invasion of privacy) (CBSC Decision
97/98-0509, August 14, 1998), this Council had no difficulty in
finding the broadcaster in violation of Clause 6(3) for having
directly insulted a complainant on the air. The host had given the complainant=s
name and had insulted her for filing a complaint with the CBSC. The
Council concluded that:
In
this case, however, the Council must deal, not with general comments
directed at an ideological group, but with strong criticism directed
at a specific, identified individual who does not benefit from
the same access to the airwaves. The Council is of the opinion
that the considerable power generated by the broadcast medium
dictates that the person entrusted to wield this power will not abuse
it by using it against relatively Adefenseless@ individuals.
It
should be remembered that the Council is not here dealing with defamation,
a specific civil remedy with respect to which the Council has no jurisdiction.
Success in a defamation case generally depends on the plaintiff=s
success in proving that the statements made were untrue. Given
that the Council is not a fact-finding body, it would have no means
to assess veracity. It is required neither to assess the
truthfulness of statements nor the intention of their interlocutor in
its areas of jurisdiction. It can, however, and must
when requested to do so, assess the fairness and propriety of
comments made on the airwaves about individuals. Looked at from
the other side of the microphone, broadcasters are neither entitled
to defame individuals nor to make unfair or improper comments about
them which may violate private broadcast standards (or, it goes
without saying, the Broadcasting Act or any of the Regulations
adopted pursuant to it), even though any such offending statements
may not constitute a breach of the civil law.
The
Council recognizes fully that critical comments can be made about
individuals, particularly those in public life but also, in
appropriate circumstances which it need not plumb here, with respect
to private individuals. The question for the Council will
always be the weighing of the statement and the circumstances.
At its most basic level, the fairness requirement set out in the
third paragraph of Clause 6 of the CAB Code of Ethics dictates
that a balance must be struck between the type and extent of the
criticism of an individual and the appropriateness or merit of any
such criticism when measured against the individual=s
criticized actions or behaviour. Propriety, a second
requirement found in the same paragraph, dictates that the public
airwaves will not be used for irrelevant or gratuitous personal
attacks on individuals. The Council considers that Howard Galganov=s
show broadcast on December 9, failed on both these counts.
While
it would not take a great deal of far-reaching imagination to
conceive that a reasonable person could be drawn to consider the
possibility of a lawsuit in defamation on the basis of such remarks
as were made in this case, the Council itself takes no position on
this point. Its responsibility in any such case is limited to
the application of on-air statements to the Codes it applies.
While persons, particularly well-known individuals, may be reluctant
to be drawn into defamatory proceedings which cause irresponsibly
raised issues to be further debated in a public forum with little or
no perceived advantage to them as plaintiffs, that is of course a
matter for them alone to consider. This Council must limit
itself to its evaluation of the terms Afull,
fair and proper@
as these are used in Clause 6(3) of the CAB Code of Ethics.
In this
respect, the Council has no doubt. The inflammatory
unjustifiable language of the host is a travesty and the worst
type of journalistic excess to which talk radio can succumb. It
adds absolutely nothing remotely worthwhile to public discourse.
It is petty, scurrilous and hateful. It is not full, but
empty; not fair, but the most unfair use of a one-way microphone; and
not proper, but improper and inappropriate. Whether any one
of the comments might have a ring of truth with respect
to a single member of the family (and the Council does not
suggest that this is at all the case), there is no doubt but that the
host has tarred the entire family with the broad brushstrokes
he has used, capping them all off with the linking conclusion that
they are a Afamily
of crooks.@
Consequently, the Council has not the least hesitation in finding
the broadcaster in breach of Clause 6(3) of the CAB Code of Ethics
with respect to the challenged remarks.
The
Comments Concerning Welfare Recipients
The
Council has, in the past, examined the question of whether social
condition constitutes a ground analogous to those enumerated in
Clause 2 of the Code of Ethics. In TQS re Black-out
(AFaring
Well with Welfare@)
(CBSC Decision 97/98-0009+, January 29, 1999), the Council
determined that Clause 2 did not apply to the comments made
concerning welfare recipients. The Council noted that:
In
this case, the complainants would like the Council to sanction the
broadcaster for discriminating against welfare recipients. In
effect, the complainants contend that this group is one of the most
disadvantaged of society and that, the Council conjectures, welfare
recipients share many of the socio-economic disadvantages and
prejudices faced by persons with physical or mental disabilities.
Without suggesting for a moment that, as a group, social welfare
recipients can be equated to either of the foregoing groups, it seems
clear that there is no other analogous link for them to the protected
grounds in Clause 2. Moreover, the Council is uncertain whether
the socio-economic nature of social welfare can, at the end of
the day, entitle this or any other group, on that basis, to
protection under Clause 2. The issue becomes even more
complicated, in the case of social welfare, when one considers that
social welfare recipients themselves, as illustrated to some extent
by this very program, are susceptible of division into two groups;
namely, those who are voluntarily and those who are involuntarily on
the social welfare rolls.
...
the Council cannot comfortably come to the conclusion that the case
of social welfare recipients can become a protected ground without
the intervention of the codifiers. To borrow the words of Mr.
Justice La Forest in Egan v. Canada, the Council must ask
itself whether the nature of social welfare is so Aunchangeable@
that it ought to fall within the enumerated grounds of Clause 2 of
the Code of Ethics. In so doing, it does not conclude
that this is the case. Except for those cases in which the
presence of individuals on the welfare rolls results from some
physical, mental or related inability of those individuals to fend
for themselves (in which case they might, on those bases,
avail themselves of the enumerated grounds in Clause 2), there is, in
principle, an ability to change their status, likely at less than the Aunacceptable
personal costs@
noted by Mr. Justice La Forest in Egan. In such
circumstances, the Council is unwilling to extend the enumerated
grounds without the intervention of the codifiers.
While
the argument was not raised by the complainant, the Council
considered the fact that social condition is an enumerated ground
protected against discrimination under the Quebec Charter of
Human Rights and Freedoms. Section 10 of that Charter reads as follows:
Every
person has a right to full and equal recognition and exercise of his
human rights and freedoms, without distinction, exclusion or
preference based on race, colour, sex, pregnancy, sexual orientation,
civil status, age except as provided by law, religion, political
convictions, language, ethnic or national origin, social condition,
a handicap or the use of any means to palliate a handicap. [Emphasis added]
Given
the foregoing, the Council cannot find a violation of the human
rights provision of the Code. The Council also considered whether the host=s
comments criticizing welfare recipients could constitute a violation
of Clause 6(3) of the Code. While the Council considers that
the aggressive, mocking, arrogant style of the host does no justice
to the medium of radio, it is of the view that the comments do not
constitute a breach of the clause in question. In such
circumstances, the Council is of the opinion that there is no
violation and that freedom of speech must prevail.
Broadcaster
Responsiveness
In addition
to assessing the relevance of the Codes to the complaint, the CBSC
always assesses the responsiveness of the broadcaster to the
substance of the complaint.
The Council feels that, in this respect, the broadcaster=s
letter replied to the questions raised by the complainant. No
further action is needed in that area. The broadcaster did not
therefore violate the CBSC standard in respect of broadcaster responsiveness.
CONTENTS
OF THE ANNOUNCEMENT OF THE DECISION
The
station is required to announce this decision forthwith, in the
following terms, during prime time and, within the next thirty days,
to provide confirmation of the airing of the statement to the CBSC
and to the complainant who filed the Ruling Request.
The Canadian Broadcast Standards Council has found that CJMF-FM breached one of the provisions of the Canadian Association of Broadcasters’ Code of Ethics in its broadcast, on December 2, 1999, of the program L’heure de vérité, hosted by André Arthur. The Council considers that the comments made with respect to the Péladeau family during that program violate the terms of Clause 6(3) of the Canadian Association of Broadcasters’ Code of Ethics.
This
decision is a public document upon its release by the Canadian
Broadcast Standards Council.