Caution Required in the Use of the Word “Illegal” in the Broadcast of Election Ads, Says Canadian Broadcast Standards Council

Ottawa, October 13, 2010 – The Canadian Broadcast Standards Council (CBSC) today released its decision concerning the broadcast of a PC Party provincial election advertisement that accused the NDP of accepting “illegal” campaign contributions from unions.  The CBSC found that the use of the word “illegal” was inaccurate, with the consequence that the broadcast of the advertisement was found in violation of the Canadian Association of Broadcasters (CAB) Code of Ethics.

A listener who heard the ad on CJLS-FM (Yarmouth) on June 6, 2009 complained to the CBSC that the ad inappropriately characterized the NDP’s activities as “illegal”.  During the election campaign, it was alleged that the NDP was in possession of “illegal campaign contributions” because the Nova Scotia Members and Public Employees Disclosure Act (MPEDA) prohibits a political party from accepting, directly or indirectly, more than $5,000 in campaign contributions from a single organization in one year.  A formal complaint alleging that $45,000 in donations ostensibly made by nine individual union locals but beneficially by a single body (in contravention of Sec. 13 of the Act) was sent to the Chief Electoral Officer of Nova Scotia by the Campaign Director of the PC Party.

The CBSC’s Atlantic Regional Panel examined the complaint under Clauses 13 and 14 of the CAB Code of Ethics, both of which deal with advertising.  The Panel agreed with the complainant that use of the term “illegal” was inaccurate in this instance.

Where […] the word “illegal” is used to describe the breach of a public law or statute, or a code such as the Criminal Code, the effect of the term is notched up significantly.  In such circumstances, the use of the word may become particularly harsh, pejorative, and more consequential.  […]  It follows that any use of the word “illegal” must be measured by a CBSC Panel in order to determine the level of care that the term deserves in the case of any challenged broadcast.  Where the use is of the higher, riskier level […], the Panel must then determine whether the broadcaster has been sufficiently prudent in its application to avoid a breach of the applicable code provision.

[…]

The Panel considers that the assertion of the advertiser was that the NDP had violated a provincial statute and that that violation was serious.  The implication of the paid political announcement criminalized (in provincial terms) the actions of the NDP.  […]  At that time [of the broadcast on] June 6, 2009, there had been no finding of any authority that the NDP had acted illegally in any way.  Indeed, until February 25, 2010, no provincial authority had reached any conclusion regarding the aforesaid contributions.  In the circumstances, the Panel considers that it was not truthful to use the word “illegal” in the paid political announcement, based on the information available at the time of the broadcast.  The Panel considers it an inescapable conclusion of that finding that such an inaccuracy in the advertising would “offend prevailing community standards of tolerability”, to use the words of Clause 13.

On February 25, 2010, the Chief Electoral Officer released her report on the complaint; she found that the NDP had not done anything in contravention of Sec. 13 of the MPEDA.  She said:

There is no evidence on which to conclude that the Official Agent of the NDP knew or should have known, at the time the contributions were accepted, that the contributions made by the Trade Unions were made with funds that did not beneficially belong to them. […]  Accordingly, this alleged violation has not been established.

Canada’s private broadcasters have themselves created industry standards in the form of Codes on ethics, equitable portrayal, television violence and journalistic independence by which they expect the members of their profession will abide.  In 1990, they also created the CBSC, which is the self-regulatory body with the responsibility of administering those professional broadcast Codes and the pay television Codes, as well as the Code dealing with journalistic ethics created by the RTNDA – Association of Electronic Journalists in 1970.  More than 735 radio stations, satellite radio services, television stations and specialty services from across Canada are members of the Council.

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All CBSC decisions, Codes, links to members' and other web sites, and related information are available on the CBSC's website at www.cbsc.ca. For more information, please contact the CBSC National Chair, Mme Andrée Noël CBSC Executive Director, John MacNab