the
facts
On October 8, 2006 at 3:30 pm, Sun TV (CKXT-TV,
The
following is a paid advertisement for Canadates brought to you by Thunder
Studios. This program contains sexually
suggestive content and is intended for adults only. A $50 Cdn. charge may apply depending on service
selected. All models are 18 years of
age or older.
The aural advisory that accompanied the above was
very similar but not identical. It
stated:
The
following is a paid advertisement for Canadates brought to you by Thunder
Studios. This program may contain sexually
suggestive content and is intended for adults only. All models are 18 years of age and older.
Throughout the half-hour infomercial, the words
"Feel Free to Call!" were at the top of the screen and "Call now 1-900-643-[####]"
at the bottom. There was also an 18+
icon in the upper right-hand corner, but this was not the AGVOT 18+ icon.
The images on-screen consisted of women in bikinis/lingerie
and high heels, either individually or in groups, lying on a bed in provocative
poses and making alluring facial expressions. There were also scenes of the women talking
on telephones, having a pillow fight, as well as other scenes of the women
dancing while wearing revealing dresses. Occasionally
the women addressed the camera. Those various non-sequential comments (which
are, nonetheless, presented in the order in which they appeared) were as follows:
Hey
guys, what are you waiting for? Pick
up the phone.
There
are sexy girls in your area who want to talk to you right now. So pick up the phone and call. What are you waiting for?
Hey
guys, what are you waiting for? Pick
up the phone.
Hi
guys. My sister and I aren't the only
ones who know where the party's at. So
pick up the phone and call right now. Call
right now. What are you waiting for?
Did
you know that there's single girls [sic]
in your area who want to talk right now? What
are you waiting for? Give them a call.
Hey
guys, what are you waiting for? Pick
up the phone and call right now.
Pick
up the phone and call right now. What
are you waiting for?
Hi
guys. There's lots [sic] of single ladies in your area just like my sister and I who are
waiting to talk to you. So just pick
up the phone and call right now. What
are you waiting for? Just call.
Hey
guys, what are you waiting for? Pick
up the phone and call right now.
Did
you know there's single girls [sic]
in your area who want to talk right now? What
are you waiting for? Give them a call.
In addition, a disclaimer was broadcast on three
separate occasions about seven minutes apart, during the course of the infomercial.
It was made up of the following visual and aural elements.
These words appeared at the bottom of the screen and in female voice-over:
This
is a paid advertisement and is intended for adults only. A $50 charge may apply depending on the service
selected.
The voice-over continued:
Are
you looking to meet sexy, available girls just like these? It's so easy!
Just pick up the phone and dial the number on the screen. You could be instantly connected to all kinds
of wild women. Whatever you desire,
whatever your fantasies, there are all kinds of beautiful women. So what are you waiting for? Call the number on the screen and make a connection
right now.
At the conclusion of the broadcast, the following
visual advisory was shown:
The
preceding was a paid advertisement for Canadates brought to you by Thunder
Studios. This program contains sexually
suggestive content and is intended for adults only. A $50 Cdn. charge may apply depending on service
selected. All models are 18 years of
age or older.
The accompanying aural advisory was:
The
preceding was a paid advertisement for Canadates brought to you by Thunder
Studios. This program may contain sexually
suggestive content and is intended for adults only. All models are 18 years of age and older.
On the day of the broadcast, a complainant sent the following complaint
to the CRTC, which forwarded it to the CBSC in due course (the full text of
the complaint and all other correspondence can be found in the Appendix):
CKXT, Sun TV, Channel 52 on the antenna,
in
On October 30, the General Manager, Programming, responded to the complainant
in the following terms:
I
would like to apologize on behalf of the station for the unfortunate incident
in which we aired an infomercial intended for late night telecast during the
afternoon. Although the content was
approved for telecast anytime, we self-regulate where these air on our station,
and never schedule these type of infomercials prior to 1:00 am. This one was scheduled incorrectly in our system,
and the infomercial that was supposed to air that afternoon was scooters for
seniors.
What
happened is unacceptable to us as well, and we have subsequently put forth
measures to ensure this does not happen again.
For some reason, the Sun TV reply of October 30 did not get to the complainant.
In an e-mail from the respondent noting the non-receipt of the broadcaster
response, the complainant also observed:
I
have read the CBSC's material that pertains to "Watershed Hours"
and Clause 9 [sic] of the Code of Ethics. I firmly believe that Sun TV in
As
a responsible citizen, I now ask for a ruling by the CSBC with respect to
violations of the watershed hour for airing sexual content, intended for adults
only, at 3:30 pm.
Since the complainant had not received a copy of the General Manager, Programming's
reply, the CBSC forwarded the response of which it had received a copy.
The complainant then sent a Ruling Request on November 24, in which
he added the following question to the Council:
On
what basis/regulation/code of ethics can a phone sex infomercial be "approved
for airing anytime" when there is material intended for adults only?
And what of the Watershed hour?
the decision
The Ontario Regional Panel examined the complaint under the following provisions
of the Canadian Association of Broadcasters' (CAB) Code of Ethics and the CAB Violence Code.
CAB Code of Ethics,
Clause 10 - Television Broadcasting
a)
Programming which contains
sexually explicit material or coarse or offensive language intended for adult
audiences shall not be telecast before the late viewing period, defined as
9 pm to 6 am. Broadcasters shall refer to the Voluntary Code Regarding
Violence in Television Programming for provisions relating to the scheduling
of programming containing depictions of violence.
[...]
f) Advertisements which contain
sexually explicit material or coarse or offensive language intended for adult
audiences, such as those for theatrically presented feature films, shall not
be telecast before 9 pm.
The Ontario Regional Panel Adjudicators read all of the correspondence
and watched the challenged infomercial. The
Panel concludes that the broadcast violated Clause 10(f) of the Code of Ethics.
Programming or Advertising?
In the view of the Panel, an infomercial falls within the category of advertising,
rather than programming, certainly for the purposes of Clause 10 of the CAB
Code of Ethics. It is, after all, a commercial message, that
is, an attempt to sell goods or services to the viewer. Accordingly, the Panel considers that the challenged
infomercial is subject to the requirements of Clause 10(f).
Sexually Explicit Content
Although
the decision of the Quebec Regional Panel in TVA
re a commercial for the Boutique Sexe Cité (CBSC Decision 02/03-0447 &
-0478, July 17, 2003) concluded that the commercial for a Montreal sex shop
called Boutique Sexe Cité was not exclusively intended for adults, it is
instructive in the matter at hand. The
commercial for the sex shop aired during broadcasts of family holiday movies
Maman, je m'occupe des méchants (the French-language
version of Home Alone 3) and Mathilda
which began at 6:30 pm, as well as during the informational program Plančte
Animal at 1:00 pm. The CBSC received
a number of complaints that this commercial, which showed a man arriving home
from work and being greeted by his female significant-other wearing white
lacy lingerie, was too sexually explicit for broadcast during family programming.
The Quebec Panel did not find
that the commercial was explicit enough to necessitate a post-Watershed broadcast:
The Quebec Panel does not consider the Boutique Sexe
Cité commercial appropriate for broadcast to families, on the one hand, but
it does not consider it so adult-oriented
that it could be said to be viewable by an exclusively adult audience.
On the substantive level, the Panel simply does not find that the commercial
was sexually explicit. At worst, it was sexually suggestive but even
such an acknowledgment cannot result in a finding of breach under Clause 10(f)
of the CAB Code of Ethics.
[.]
Moreover, the Panel wishes to underscore the fact that
it understands the commercial to be depicting a domestic situation or relationship
and not a clandestine erotic tryst. The Panel does not conclude that the latter
would necessarily present a Code-related problem but rather that the commercial,
as broadcast, portrayed an even less problematic representation than might
have been the case.
In CHFD-TV
re the documentary Dirty Business: Sex, Thighs and Videotape (CBSC
Decision 04/05-1580, December 15, 2005), the
As might be understood from the corpus of CBSC jurisprudence, there is
no mathematical formula applicable to such programming. It is not the presence or absence of scenes
involving intercourse or other advanced sexual activity. It relates more to the balance of explicitness
and subtlety or innuendo, the nature of the activities, the force or power
of the sexuality or eroticism, the adult orientation of the content, the duration
and/or frequency of the sexual activities, to some extent the context, and
the overall confluence of such considerations.
[...]
In the present matter, the focus of the documentary film
is the combination of sexual and erotic activities and the maximization of
pecuniary benefit from them. There
is not even the modicum of an overlay of other issues [...].
While, in the matter at hand, the interviews were with
clothed people, there were clips from "pornographic" movies, website photographs,
footage shot at a sex trade show, clips of couples in various states of undress
engaging in sexual activities, and discussions with the Edmonton couple as
they determined how far Dawn should progress from her isolated erotic performances
to new levels of sexual contact with others. The collective effect was clearly content that
was, in the view of the Panel, exclusively intended and solely appropriate
for adult audiences.
Nor is the documentary saved by techniques such as blurring
or pixilation. [...]. The Panel [.] is dealing only with the issue
of the Watershed and, on this point, it concludes that the broadcast of the
documentary prior to the Watershed constitutes a breach of Clause 10 of the
CAB Code of Ethics.
In the matter at hand, the infomercial began by representing itself as
"contain[ing] sexually
suggestive content and [.] intended for adults only." Although
there was no Canadian classification icon on the infomercial, there was one
that indicated "18+" as the appropriate level. The images on-screen consisted of women in bikinis/lingerie
and high heels, either individually or in groups, lying on a bed in provocative
poses, as well as other scenes of the women dancing while wearing revealing
dresses. When the women addressed the
camera, as they did frequently throughout the infomercial, their language
and purpose were enticing, provocative and sexual. Moreover, as in the Dirty Business decision, but unlike in the Boutique Sexe Cité decision, this infomercial was relentlessly sexually
provocative for thirty minutes, rather than thirty seconds. The Panel considers that the infomercial's theme
and duration make it clear that it is material intended exclusively for adult
audiences. It also acknowledges that
it was inadvertently and incorrectly run in that afternoon time slot. Despite that unconditional acknowledgement,
the Panel has no choice but to find that the broadcaster in breach of Clause
10(f) of the Code for airing the challenged infomercial prior to the Watershed.
Broadcaster
Responsiveness
In all CBSC decisions, the Council's Panels assess
the broadcaster's responsiveness to the complainant. In the present instance, the Panel finds that
the response of CKXT-TV's General Manager, Programming, was honest and forthright.
Although his e-mail was not long, it spoke candidly to the nub of the
complainant's concern. The Panel considers that CKXT-TV has fully met
its CBSC membership responsiveness responsibilities.
ANNOUNCEMENT OF THE
DECISION
CKXT-TV is required to:
1) announce the decision, in the following terms, once during prime
time within three days following the release of this decision and once more
within seven days following the release of this decision during the time period
in which the infomercial was broadcast; 2) within the fourteen days following
the broadcasts of the announcements, to provide written confirmation of the
airing of the statement to the complainant who filed the Ruling Request; and
3) at that time, to provide the CBSC with a copy of that written confirmation
and with air check copies of the broadcasts of the two announcements which
must be made by CKXT-TV.
The Canadian Broadcast Standards
Council has found that Sun TV breached Clause 10(f) of the Canadian Association
of Broadcasters Code of Ethics in its broadcast of an infomercial for
a telephone sex line at 3:30 pm on October 6, 2006. Because the infomercial was sexually suggestive
and intended exclusively for adults, the CBSC has concluded that the broadcaster
breached the Code article that requires that advertisements
which contain sexually explicit material intended for adult audiences shall
not be telecast before 9:00 pm.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.