Bravo! re the documentary film Give Me Your Soul

NATIONAL SPECIALTY SERVICES PANEL
(CBSC Decision 00/01-1021)
R. Cohen (Chair), P. O'Neill (Vice-Chair), R. Cugini, E. Duffy-MacLean, H. Pawley

THE FACTS

On July 27, 2001, from 9:00 to 10:30 pm (in Toronto), the specialty service Bravo! broadcast a National Film Board of Canada (NFB) documentary film on the commercial pornography industry entitled Give Me Your Soul. It should be noted that Bravo! is a specialty service that, like most other specialty services, has a single feed across the country. In their case, that broadcast feed originates in Toronto.

On the screener copy of the documentary viewed as a part of this adjudication, there was a viewer advisory, both oral and on-screen, which stated:

The following program contains nudity, coarse language and mature subject matter. Parental discretion is advised.

The content of the program itself was clearly intended for adult audiences. Focussing, as it does, on the pornography industry, it includes interviews with pornography producers, performers and critics, and also follows an 18-year-old girl's quest to become a pornography star. The documentary contains numerous scenes depicting men and women in various states of undress, sexual activity, and coarse language.

On July 30, two British Columbia residents, who had seen the program three hours earlier in their time zone, namely, from 6:00-7:30 pm, filed a complaint with the CBSC in which they said, in part (all of the correspondence is reproduced in full in the Appendix),

My husband and I were shocked and appalled when we sat down to watch the 6 pm news and happened upon “Give me your soul” which was airing on BRAVO! Friday evening.

BRAVO! exercised poor judgment in choosing to broadcast such pornographic and inappropriate subject matter when young viewers have access to the TV.

Our objective in voicing our concern is to protect our teenagers at this impressionable age […].

Bravo!'s Director of Programming and Acquisitions responded on August 13, 2001. Her letter said in part:

Give Me Your Soul is a documentary produced by the National Film Board of Canada examining the commercial pornography industry. It was designed to offer an objective view of a controversial subject and elicit thoughtful discussion. But as the very title suggests, the program is strongly anti-pornography, revealing instead a world that is dysfunctional and dangerous. In this world – for instance – the experience of the young girl June is an object lesson to other young people as to the degradation and horror it presents.

The National Film Board has commented on the making of this film: “Director Paul Cowan has tackled complex social issues in his filmmaking. His films have garnered many international awards, as well as an Oscar nomination. In Give Me Your Soul, Paul Cowan takes on a very challenging topic, one that many would choose to ignore. Pornography is a huge industry in North America that garners a profit of billions of dollars annually. Also, as the lines between pop culture and pornography continue to blur – in movies, music, videos, fashion – a documentary that takes a serious look at the industry contributes to a debate on the issues.”

The material is strong, but it is avoids [sic] sensationalism. We felt it was an important document to bring to an audience, provided it was suitably rated and prefixed with appropriate advisories. The program was rated 18+ and carried an advisory as to the language and mature subject matter contained in the program. It was broadcast at the Watershed hour of 9.00 pm in the province of origination. You should be aware that the Canadian Radio-television and Telecommunications Commission – the regulatory agency responsible for overseeing the broadcast industry – in consultation with members of the public and with the industry determined that 9.00 pm in the province of origination constitutes the “Watershed hour” in respect to program content for adult viewers. The program was previously broadcast on CBC's Newsworld, and according to the National Film Board, did not elicit strong viewer reaction. Yours is the only complaint Bravo! has received.

We operate within regulatory guidelines in terms of Watershed hours and rating requirements. To give you some additional background on how we decide what is suitable for air: we adhere to Canada's broadcast content guidelines, and take great care in selecting our programming material. Bravo! follows the Canadian Association of Broadcasters' (CAB) Code of Ethics, Guidelines on Sex-Role Portrayal and Guidelines on Violence in Television Programming, as well as our own programming policy. On Bravo! we try to present a balanced schedule of programming covering a wide range of subjects. But by its very nature, a channel related to the arts will include programming that may be controversial.

Responsible television is a partnership between broadcasters and parents, and we do our best to provide parents with information to help them make viewing choices for their families. Appropriate ratings and advisories are designed as tools to aid parents in the monitoring of their children's viewing. Most of our viewers feel comfortable with the system of disclaimers and ratings that we provide. In addition, we have adopted the new V-chip technology, which enables viewers to block out programming they feel is inappropriate.

The complainants responded to the Program Director's letter of reply on the same day. They wrote:

I don't think you get it. It is not necessary to give me the background of the documentary, its value to society, the credentials of the director, or what the National Film Board has to say about it.

What this has to do with is exposing young children at dinner time to a show that is totally inappropriate for them to see. You can have all the disclaimers and parental warnings in the world, but if a child doesn't happen to turn the T.V. on at the exact time of one of these warnings, they are in for a major shock. And please don't give me the excuse that it is on at 9 pm in Ontario. If they can delay hockey games and basically any other type of broadcast, they can delay this. So please don't insult our intelligence.

If you think that it is of some educational value to a child to turn the TV on at 630 pm, and be confronted with a completely nude woman getting f****d by some naked man, with her tits flopping up and down, moaning and groaning, then you need your head examined. Please don't try to justify the presentation of your documentary by giving us some sanctimonious dribble about the need for this type of exposé. That is not the point!!

Just to ensure you fully understand what my wife and I are saying, I will repeat it. Don't have this type of sexually graphic and explicit shows on at dinner time. Have them on at 10 pm, when young children have gone to bed.

Bravo!'s representative replied to that letter on August 17. She said in part:

The background to the program is relevant, in that it is important to understand the nature of the program in order to fully appreciate the context for its scheduling. As an Arts Channel, Bravo! covers all aspects of the arts. As in the case of Give Me Your Soul, it is certainly appropriate for us to examine all aspects of the film industry. The program was specifically scheduled on our Independent Cinema night. There is a distinction between pornography as such and a program that sets itself up to examine it thoughtfully.

Bravo! is a national service and therefore we have the continuing problem of time differences. We are sensitive to the problem, but, contrary to your statement, our channel does not have the ability to delay programming. We are an arts channel and by our very nature, different strands of our programming are aimed at different members of the family. Most of our programming is appropriate for viewing by all members of the family, but some material – movies and photography for instance – is appropriately aimed at more mature viewers.

We operate in a regulatory framework, and we observe Watershed hours. To broadcast the program at 10.00 pm in British Columbia as you suggest would mean playing it at 1.00 am in the province of origination, which is not a solution. We would be denying a larger Canadian audience the opportunity to see a program of intellectual merit. We are not a broad-based over-the-air channel. As a niche arts service, our viewers do not expect a prime-time schedule aimed exclusively at an adolescent or pre-adolescent audience. We are also mandated by conditions of licence to play fifty-percent Canadian Content programming in the period 6.00 pm to 11.00 pm in the province of origination, hence all Canadian programming of prime-time merit originates within that time period.

A television channel cannot replace the role of responsible parenting. We provide tools to assist parents in making viewing choices for their children. Program descriptions are on our website. We provide ratings, we provide disclaimers, we have adopted the V-chip technology, and encourage parents with concerns such as yours to use it, so that they can block out programming they deem unsuitable.

It is interesting to note however, that of the 117,000 viewers who watched Give Me Your Soul, according to the Nielsen Media Research survey of July 27, no children or teens were recorded. Again, according to A.C. Nielsen, all our viewers for this particular program were aged eighteen and over.

THE DECISION

The CBSCs National Specialty Services Panel considered the complaint under the Canadian Association of Broadcasters' (CAB) Sex-Role Portrayal Code and Violence Code. The relevant provisions of those Codes read as follows:

CAB Violence Code, Article 3 (Scheduling)

3.1.1 Programming which contains scenes of violence intended for adult audiences shall not be telecast before the late evening viewing period, defined as 9 pm to 6 am.

(Note: To accommodate the reality of time zone differences, and Canadian distant signal importation, these guidelines shall be applied to the time zone in which the signal originates.)

CAB Violence Code, Article 5 (Viewer Advisories)

5.1 To assist consumers in making their viewing choices, broadcasters shall provide a viewer advisory, at the beginning of, and during the first hour of programming telecast in late evening hours which contains scenes of violence intended for adult audiences.

CAB Sex-Role Portrayal Code, Article 4 (Exploitation)

Television and radio programming shall refrain from the exploitation of women, men and children. Negative or degrading comments on the role and nature of women, men and children in society shall be avoided. Modes of dress, camera focus on areas of the body and similar modes of portrayal should not be degrading to either sex. The sexualization of children through dress or behaviour is not acceptable.

The National Panel Adjudicators viewed a screener tape of the program in question and reviewed all of the correspondence. For the reasons explained below, the Panel finds that the program was aired appropriately in terms of the scheduling requirements of Article 3 of the Violence Code and that there was no breach of any of the other of the foregoing provisions.

The Broadcaster's Obligation to Supply Tapes

The obligation of all broadcasters is to supply the CBSC with logger tapes, when requested to retain programming upon receipt of a viewer complaint. In this case the broadcaster supplied screener tapes. The difference between the two relates to the obligation under Section 7(4)(a) of the Specialty Services Regulations, 1990 (and all corresponding regulations for radio and television broadcasters) to “retain a clear and intelligible audiovisual recording of all of its programming […] for a period of four weeks after the date of the distribution.” That tape is a logger tape. It shows everything that has actually been broadcast, together with a time code indicating at precisely what hour, minute and second every element of the broadcast has occurred. It includes the programs themselves, as well as all interstitial elements, including advertisements, promos, viewer advisories, and such other elements as classification ratings. The screener tape is merely the record of the actual program which is then used for broadcast purposes. It does not show the entire program as actually aired. It is, so to speak, the pre-broadcast rather than the post-broadcast record. It is the logger tape which contains all the broadcast elements that the CBSC needs in order to adjudicate properly and it is, moreover, the logger tape that broadcast licensees are required by law and by condition of membership in the CBSC to retain.

The supply of a screener tape, technically speaking, constitutes a breach of CBSC requirements. In this case, however, upon inquiry, the Panel was informed that the broadcaster inadvertently supplied the incorrect version of the program and, as it happened, the supplementary information contained on the logger tape was not at issue on this occasion. The CBSC has also been advised that, in all matters arising hereinafter, Bravo! will be supplying logger tapes as required.

The Sex-Role Portrayal Issues

These were not the primary concern of the complainants; however, the Panel considers it appropriate to observe that the challenged program is not exploitative of either gender. In dealing with commercial pornography per se, the documentary interviews, and deals with, men and women, neither to the exclusion nor detriment of the other.

The Applicability of the Watershed

While the Watershed hour was established as part of the Violence Code, the CBSC has for several years extended the applicability of the Watershed hour to all types of adult programming, even though there may be no elements of violence contained in it. A full review of the CBSC's decisions on the subject of adult programming and the Watershed is available in WTN re Sunday Night Sex Show (CBSC Decision 99/00-0672, January 31, 2001). With regard to the program in question, this NFB documentary film consists of material which, in the view of the Panel and the complainants, is intended for adult audiences, the criterion which triggers the Watershed requirement.

The Scheduling Conundrum Created by Multiple Time Zones

The Panel has considerable sympathy for the plight of the complainants. They appear to be open-minded regarding the substance of the NFB documentary and concerned solely with the timing of the broadcast. While they appear to actually favour a later Watershed hour (or at least a later hour for the broadcast of this program), the net effect of their request is to keep programming which is clearly post-Watershed in nature from appearing pre-Watershed in their home. While the position is indisputably reasonable on its face, there is no easy solution in the vast Canadian geographical context.

This Panel was called upon to deal with this very problem in the previously cited WTN re Sunday Night Sex Show (CBSC Decision 99/00-0672, January 31, 2001). In that decision, the Panel asked rhetorically “If … such a program is defined as unsuitable in one part of the country, how can it be suitable in another part of the same country?” The answer of course is that it cannot. It cannot and is not suitable for viewing at dinnertime in either the East or the West. For reasons that have nothing whatsoever to do with suitability, however, it has been deemed to be permissible to broadcast it at an inappropriate hour. In the WTN decision, this Panel explained the problem in the following terms:

While the Panel shares [the complainant's] concern, it also understands the conundrum presented by the vast size of Canada. Given the declared goal of the Broadcasting Act to provide programming which will be “varied and comprehensive, providing a balance of information, enlightenment and entertainment for men, women and children of all ages, interests and tastes,” it must be recognized that this task is to be achieved across six time zones with a relatively thinly spread population base. Since most of the specialty services have a single feed for the entire country (some, but not many, have two feeds), it necessarily results that only some parts of the country can be happy all of the time in terms of the issue of the hour of broadcast of adult programming. Compromise, balance and fairness are essential components of the solution. An adult program which just respects the Watershed in St. John's will be on at dinnertime in Toronto and during pre-dinner after school hours in Calgary and Vancouver. One which just respects the Watershed in Vancouver will be on after people have gone to bed in Toronto, Halifax and St. John's. One which just respects the Watershed in Toronto finds people awake in the Atlantic Provinces but at dinner in Edmonton and Victoria.

In the matter at hand, the dilemma for the broadcaster is the same. There is no way to please viewers across the country with a single feed and there is no feasible financial way to force additional feeds on niche broadcasters, which specialty services are by definition. Had that been the solution at the time of granting Specialty Service licences, the Panel expects that Canadians would have had many fewer programming choices.

There has, in other words, been a trade-off, the intention of which would undoubtedly be to benefit the public as a whole. As a result of this policy direction, Canadians have more programming choices than they might otherwise have had. Canadians also have more adult-oriented Canadian choices than they might otherwise have had. There is, however, a cost, which is the need for greater vigilance on the part of parents in the time zones west of the originating time zone. Is that trade-off reasonable? That is not for this Panel to say. The Panel is faced with a Violence Code in which that issue has been definitively resolved. The Code unequivocally provides that, in order to “accommodate the reality of time zone differences, […] these guidelines shall be applied to the time zone in which the signal originates.”

There are, however, two ways to assist the viewer, not in a legal but in a practical way. Neither will be perfect. First, on the part of viewers. While there is already a duty on viewers to use tools which are provided by broadcasters to assist them in choosing appropriate programming, as the number of digital signals both from within and without Canada proliferates, they will need to become more vigilant and hands-on in determining those signals that will reach their screens. Canadian programming undertakings are required to provide both classification icons and viewer advisories that enable parents to know what is coming. Canada also benefits from V-Chip technology that operates throughout North America (it was invented in Canada by a Canadian, Prof. Tim Collings of Simon Fraser University). What is clearly unfair in the system is that some Canadians may need to become more conversant with these tools than other Canadians; however, the very good news is that there are, at the very least, tools available for the purpose of responsible program selection.

On the broadcaster's part, while not legally required to do anything other than respect the Watershed requirements at the point of origin of the broadcast, broadcasters could be more sensitive to the concerns regarding the availability of their programming in other time zones. The CRTC has established the following principle as a part of its Policy on Violence in Television Programming (CRTC Public Notice 1996-36, March 14, 1996):

6. Dealing with Violence in Programs Received Across Time Zones

A number of participants raised a concern that programs on signals originating in other time zones of Canada may be inappropriately scheduled for the time zones of western provinces in which they are received.

[…]

Although time zone differences may result in unsuitable scheduling of some programs, the Commission notes that provisions of the CAB and pay and pay-per-view violence codes which prohibit gratuitous and glamourized violence, and those which relate to children's programming apply at all times. Nevertheless, the Commission encourages programming undertakings whose signals are distributed over various time zones to be sensitive to their viewers in western time zones when scheduling programs. [Emphasis added.]

In other words, the CRTC encourages time zone sensitivity by broadcasters. In the WTN decision cited previously in this decision, this Panel expressed its appreciation of the broadcaster's sensitivity in that case.

In the view of the National Panel, what the broadcaster has chosen to do in this case is to balance all the time zones, as well as anyone could reasonably expect. Rather than just respect the Toronto time zone (and one cannot lose sight of the economic fact that more than 50% of the Canadian population resides in that time zone), WTN has stretched its market by airing the Sunday Night Sex Show at 11 p.m. EST, thus remaining post-Watershed in nine of the ten Provinces, albeit barely viewable time-wise in the Atlantic Region. By choosing that hour for its broadcast of the challenged show, it has also placed itself in a post-dinner environment in the one time zone in the country where it is still pre-Watershed, namely, British Columbia, thus providing an easier opportunity for parents to regulate family viewing than in, say, a 6:00 or 7:00 p.m. local time slot.

In other words, the National Specialty Service Panel does not consider that the broadcaster could have made more sensitive choices regarding the nation as a whole and, indeed, the various time zones within the country, bearing in mind the needs and entitlements of viewers from east coast to west coast.

In the case at hand, the Panel cannot commend Bravo! for having been as sensitive as WTN in the previous matter. It finds this regrettable but not, as noted above, in breach of the Code. The Panel hopes that, when future options of this nature face Bravo!, it will, despite its legal entitlement not to do so, be more sensitive to the potential concerns of western viewers.

Conflict with Canadian Content: An Exacerbating Matter

In her letter of August 17, Bravo!'s Program Director noted the occasional conflict that can arise between the foregoing CRTC principle regarding time zone sensitivity and the requirements of the Commission regarding Canadian content. She said:

We are also mandated by conditions of license to play fifty-percent Canadian Content programming in the period 6.00 pm to 11.00 pm in the province of origination, hence all Canadian programming of prime-time merit originates within that time period.

The CRTC has established Canadian content requirements for all its licensed broadcasters. There are usually two requirements (both of which amount to essentially the same thing in the context of the NFB film), one relating to the “broadcast day”, which runs from 6 am to 12 midnight, and one relating to the “evening broadcast period”, which starts at 6 pm and also ends at midnight. Bravo!'s conditions of licence require it to air at least 60% Canadian content during the entire broadcast day and at least 50% Canadian content during the “evening broadcast period”. (There is also a separate restriction on the amount of American drama and comedy broadcast during the “peak of prime time” period between 7 pm and 11 pm which is not at issue here.) In light of these requirements, in order for its broadcast of Give Me Your Soul to count as Canadian content, Bravo! could only have aired the documentary starting as late as 10:30 pm EST (which would have rendered it pre-Watershed in Alberta and British Columbia).

It could also be argued that any broadcaster has the option not to run adult Canadian programming for content credit. While it could, in other words, be that all adult programming was intended by the regulator to fall into a non-credit category (in order to respect the Watershed principle in British Columbia), it is not clear to the Panel that this is either the declared policy of the CRTC or that it should be. At the very least, it must be acknowledged that this would be the inevitable result of the imposition of the primacy of the Watershed sensitivity issue over the Canadian content timing calculation requirements.

It is not for this CBSC Panel to determine what should be the policy in this area. It is, however, appropriate for the Panel to point to anomalies which have the effect of making its decision-rendering more difficult, as it has done on previous occasions. It would be useful for light to be shed on this situation for the benefit of both the broadcaster and the viewer. Until such time as this occurs, if at all, the CBSC can only conclude that encouraging a broadcaster to be sensitive to Western Watershed issues when broadcasting a Canadian adult program, as recommended, but not required, by the CRTC Violence Policy of 1996 is rendered doubly difficult. Nor is the fallout on the Western viewer a pleasant prospect.

Broadcaster Responsiveness

The requirement that a broadcaster be responsive to the letter of complaint sent by a member of the public is a significant part of the membership requirements of the CBSC. That responsiveness is an important part of the dialogue by which the CBSC considers that matters of concern to the public are often resolved. When done in thorough and sensitive ways, it is also a way of letting the public know that broadcasters care about their audience's concerns. That being said, matters do not reach the adjudication stage without there being a serious discrepancy between the broadcaster's and the complainant's positions. By definition. That is, of course, the case here, as the text of the foregoing correspondence suggests. The frustration of the complainants is palpable. The CBSC Panels, which see many such letters, know very well, however, when great care and thought goes into such replies by the broadcaster. In this Panel's view, Bravo!'s Program Director could not have been more thoughtful, helpful and thorough in trying to explain its choices. The justifiable frustration of the complainants related more to the existing policy than to a situation of the broadcaster's making. Bravo! is to be commended for its unrelenting effort to resolve this matter on the level of the dialogue with the complainants.

This decision is a public document upon its release by the Canadian Broadcast Standards Council. It may be reported, announced or read by the station against which the complaint had originally been made; however, in the case of a favourable decision, the station is under no obligation to announce the result.