CFTM-TV (TVA) re J.E. (Report on HMS 90)

QUEBEC REGIONAL COUNCIL
(CBSC Decision 97/98-0472)
Y. Chouinard (Vice-Chair), R. Cohen (ad hoc), M. Gervais,S.Gouin and P. Tancred

THE FACTS

On November 21, 1997, TVA’s public affairs program J.E. reported
on a food supplement known as HMS 90 which was manufactured by a company called Recherche
Immunotec ltée. (“Immunotec”). In a segment of that show, Hélène Drainville
reported the results of a journalistic investigation which concluded that exaggerated
claims were being used by independent distributors to sell the product. The report stated
in part (a full transcript of the report is provided in Appendix A to this decision):

Hélène Drainville (Journaliste): Voici le HMS 90. C’est un produit naturel, une protéine de petit lait de plus en plus populaire au Québec. Peut-être trop. Depuis le début de sa commercialisation, en février dernier, l’agence canadienne d’inspection des aliments est débordée d’appels.

G. Angelo (Agence canadienne inspection des aliments): Il y toujours des allégations qui circulent à propos du produit. On reçoit toujours des demandes d’information pour savoir si le produit fait vraiment tout ce qui est écrit dans la littérature.

Hélène Drainville: Selon la documentation qui circule, on ne peut littéralement pas survivre sans ce miraculeux anti-oxydant. Le HMS 90 guérit les cataractes, le cancer, les maladies cardiaques, l’arthrite, le diabète. Puis dans les assemblées de cuisine où l’on vend le HMS 90, on ne se gène pas pour propager la bonne nouvelle.

Dirigeant d’une assemblée de cuisine (captée par caméra cachée): On a vu des résultats au niveau de plusieurs cancers, okay. On a vu des résultats au niveau du SIDA. On a vu des résultats par rapport au Parkinson. On a vu des résultats par rapport à l’Alzheimer. On a vu des résultats par rapport à l’hépatite B, par rapport à la sclérose, par rapport aux cataractes.

L’agence canadienned’inspection des aliments enquête depuis février dernier sur le mode decommercialisation de la compagnie Immunotec. Au Canada, chaque produit doitobligatoirement être commercialisé soit comme aliment ou soit comme médicament.

G. Angelo: Si on veut commercialiser le produit comme aliment,on doit faire aucune réclâme thérapeutique. Par contre, si on veut le commercialisercomme médicament, bien il y a des critères à rencontrer au niveau del’enregistrement du produit et de son évaluation en question de l’efficacité…. Ils en font pratiquement une mise en marché de médicaments — mais sanss’être rendu au bout, en procédant à l’enregistrement de leur produit commemédicament.

The report alleged that unscrupulous selling tactics might be
encouraged by the multi-level marketing strategy employed by Immunotec.

Hélène Drainville: Claudette Normandin et Denise Granger vendent l’HMS 90. Ça se fait par le biais d’un réseau de vente à paliers multiples. Plus les vendeurs recrutent d’autres vendeurs, plus ça devient rentable pour eux.

Hélène Drainville: Au siège sociale d’Immunotec à Vaudreuil, là ou on commercialise le HMS 90, on fait miroiter le paradis à ceux que l’on courtise pour être vendeur. (À une employée chez Immunotec, captée par une caméra cachée) Les gens peuvent faire combien avec ça, le savez-vous?

Employée chez Immunotec: Ah oui, ah oui. Il y a du monde qui font des beaux chèques, oui.

Hélène Drainville: Combien à peu près, le savez-vous?

Employée chez Immunotec: Entre 2,000$ et 10,000$ par 2 semaines.

Hélène Drainville: Entre 2,000$ et 10,000$ par 2 semaines?

Employée chez Immunotec: Hum, hum.

Hélène Drainville: D’entrée de jeu, John Molson (Vice-président, Immunotec) nie toute responsabilité quand à la publicité distribuée par ses vendeurs. Il affirme, entre autre, ne pas savoir d’où vient le dépliant où l’on parle de découverte médicale.

Hélène Drainville: Immunotec n’a pas l’intention de changer son mode de commercialisation, la vente à paliers multiples convient bien à l’entreprise.

G. Angelo : On va aller revoir la firme, puis on va s’asseoir encore pour qu’ils prennent les moyens là pour …, les moyens plus efficaces pour contrôler leurs distributeurs.

On November 28, 1997, a viewer faxed the following letter to the CRTC
with a copy to the CBSC:

[Translation] The purpose of this letter is to lodge acomplaint against the program JE and Télé-Métropole for its November 21, 1997broadcast at 7 p.m. of an episode on a company called Recherche Immunotec ltée and a foodsupplement called HMS 90. This report was highly defamatory and prejudicial to allindependent distributors without regard to the personal integrity of each individual.

In Canada and in Quebec, we are not without rights.Every citizen has a right to a fair trial before a court of law, with a dulyappointed judge and lawyers to represent all parties. Every citizen is innocent untilproven otherwise. Is it normal for commercial broadcast entities such as JE andTélé-métropole, in the guise of disseminating news and information, to substituteitself for a court of law, without a judge and without lawyers, therefore without anymeans to control what it said?

The ironic tone of the reporter in her introduction, the misleadinginformation and the clear lack of professionalism in the handling of this file has damagedmy reputation and that of all my fellow distributors. Here are a few of the erroneousstatements made in the course of this mediocre report:

– “To buy this product, you have to wait until a representativecomes knocking at your door, and he will surely try to enlist you as a distributor”;this is false. You can already buy HMS 90 in many stores and pharmacies. Moreover, manydistributors only use the product themselves and therefore do not sell it and do notenlist any other distributor.

– The report, on numerous occasions, showed a leaflet attributingtherapeutic properties to HMS 90, without mentioning that this leaflet is neitherauthorized nor published by Recherche Immunotec ltée (which produces HMS 90). This leadsviewers to believe that all independent distributors and Recherche Immunotec ltée,indiscriminately, use the leaflet and stand behind its claims. Which is false.

– “In kitchen gatherings, the product’s quasi-miraculoustherapeutic virtues are hailed” (this statement was supported by a videotape of onesuch meeting taken by a hidden camera, without any authorizationwhatsoever). It is a hasty conclusion which leads viewers to believe that alldistributors do that, which is definitely not true.

– “How much money do you make, is it a profitable venture?”This statement leads viewers to believe that there is something wrong with making a profitby selling a product or that we are making phenomenal profits. It leads viewers to believethat all independant distributors without exception are profiteers, liars and thieves.Moreover, the report discriminated against Recherche Immunotec ltée for using the”plan Parizeau” which is a multi-level marketing plan. Pyramid selling isauthorized in Canada and, as a self-employed individual, I have a right to be paid as afunction of the work that I do.

– The report showed a document entitled “Multi-level MarketingPlan” (“Faites de l’argent comme de l’eau” in French), a brochurepublished by the Consumer Protection Bureau, without mentioning its origin (thisconstitutes plagiarism). Moreover, due to the way in which the report wasedited, the document appears to be attributed to Recherche Immunotec ltée and leadsviewers to believe that the leaflet is used by independent distributors to recruit newprospects, which is absolutely false. As this document is the property of theConsumer Protection Bureau, i.e. the Goverment of Quebec,, we’re talkingabout fraudulent use of a document with the intention of causing harm to thereputation and integrity of Recherche Immunotec ltée’s independent distributorsindifferently. You must understand that, in order to film the report in this way, they hadto go to the trouble of bringing the document to the offices of Recherche Immunotec ltéeand intentionally positioning it in front of the HMS 90 product. And in the commentary,the reporter voluntarily let her viewers believe that this document is distributed with aview to recruiting and misleading honest Canadians.

It is evident that the viewing of this report will convince you to justwhat point it was defamatory, discriminatory, misleading and harmful. Such manipulation ofinformation and misuse of a document should be severely punished, especially since it is sohighly prejudicial to over 6000 honest distributors.

The Council also received 189 “form letters”, which, in
effect, collectively constituted a single petition supporting this complaint.

TVA’s Vice President of Information and Public Affairs replied to
the complainant on December 15, 1997 in the following terms:

[Translation] I acknowledge receipt of your complaintconcerning [the J.E. report on HMS 90]. While I understand that HMS-90 distributorsmay have been damaged by some of the statements made in the report, I deny the allegationsmade in your letter.

To help you understand, permit me to make the following points:

  • The report does not put the product, which is still considered foodand not medicine by Canadian regulations, on trial. It is too soon for that. Whether ornot it is effective is something Canadian research will determine in the future.

  • Recherche Immunotec Ltée chose to market its product by using amulti-level marketing plan, which is perfectly legal. Pyramid selling and retail sellingare mutually exclusive, which explains why you do not find the product in pharmacies,boutiques or grocery stores. While there may be exceptions, as a general rule, the productcan only be obtained from an itinerant vendor who himself has obtained the product througha distributor.

  • It was proven that a leaflet containing surprising statements on thevirtues of the product accompanied some boxes of HMS-90. It is stated in the report thatRecherche Immunotec denies being the author of this document but, still, the document doesexist and is nevertheless circulating.

  • A pyramid selling scheme lends itself to overzealous selling tacticsand that is what the report demonstrated by using a videotape of a salespeople recruitmentmeeting taken by a hidden camera. The tape eloquently showed the arguments used as part ofthe sales pitch.

  • It is legitimate to ask what commissions are paid to salespeople insuch a selling scheme. The company’s vice-president himself states that 66% of thecost of the product is attributable to its method of marketing.

  • The Consumer Protection Bureau issued a warning to consumers aboutmulti-level marketing plans. Accordingly, the document produced by the CPB was pertinentto the report.

TVA strongly supports the report broadcast and J.E. rendered aservice to the public by its handling of the topic.

The complainant was unsatisfied by this response and requested, on
February 16, 1998, that the CBSC refer the matter to the appropriate Regional Council for
adjudication. His request for adjudication was accompanied by a letter dated March 6, 1998
which essentially reiterated the concerns raised in his initial correspondence. (The
subsequent letter is reproduced in Appendix B to this decision.)

The CBSC’s Quebec Regional Council considered the complaint under
the Code of Ethics of the Canadian Association of Broadcasters (CAB) and the Code
of (Journalistic) Ethics
of the Radio Television News Directors’ Association
(RTNDA). The texts of the relevant provisions read as follows:

CAB Code of Ethics, Clause 6 (News)

It shall be the responsibility of member stations toensure that news shall be represented with accuracy and without bias. The member stationshall satisfy itself that the arrangements made for obtaining news ensure this result. Itshall also ensure that news broadcasts are not editorial. News shall not be selected forthe purpose of furthering or hindering either side of any controversial public issue, norshall it be designed by the beliefs or opinions or desires of the station management, theeditor or others engaged in its preparation or delivery. The fundamental purpose of newsdissemination in a democracy is to enable people to know what is happening, and tounderstand events so that they may form their own conclusions.

Therefore, nothing in the foregoing shall be understood as preventingnews broadcasters from analysing and elucidating news so long as such analysis or commentis clearly labelled as such and kept distinct from regular news presentations. Memberstations will, insofar as practical, endeavour to provide editorial opinion which shall beclearly labelled as such and kept entirely distinct from regular broadcasts of news oranalysis and opinion.

It is recognized that the full, fair and proper presentation of news,opinion, comment and editorial is the prime and fundamental responsibility of thebroadcast publisher.

RTNDA Code of Ethics, Article 1

The main purpose of broadcast journalism is to informthe public in an accurate, comprehensive and balanced manner about events of importance.

RTNDA Code of Ethics, Article 3

Broadcast journalists will not sensationalize news itemsand will resist pressures, whether from inside or outside the broadcasting industry, to doso. They will in no way distort the news. Broadcast journalists will not edit tapedinterviews to distort the meaning, intent, or actual words of the interviewee.

RTNDA Code of Ethics, Article 4

The Regional Council members viewed a tape of the J.E. broadcast
in question and reviewed all of the correspondence. The Council considers that the report
does not violate any of the provisions of the aforementioned Codes.

The Council notes that the complainant is personally involved in the
activities targeted by J.E.’s report. This fact, which was evident from
the complainant’s letters, was taken into account in considering this complaint. As
the Prairie Regional Council stated in CFRN-TV re Eyewitness News (CBSC Decision
96/97-0149, December 16, 1997):

attention to the words used in the letter of complaint on the assumption that the partymay be expected to know more about the facts surrounding his or her complaint. The Councilis, however, equally aware, that an aggrieved party may come to an issue with a”thinner skin” regarding any allegations made. There is, in that sense, a veryparticular balance to be brought to the viewing of such issues.

While all complaints, whether made by interested or disinterested
parties, are equally entitled to Council decisions, the Council understands that, in this
case, the complainant’s acute sensitivity to the treatment of HMS 90 by the media may
have skewed his perception of parts of, if not the entire, J.E. report. For
example, the Council did not find that Ms. Cazin used an “[translation] ironic
tone” in her introduction to the report, as alleged by the complainant. Nor did the
Council find that the report “[translation] show[ed] a leaflet attributing
therapeutic properties to HMS 90, without mentioning that this leaflet is not
authorized and not published by Recherche Immunotec ltée
[emphasis added]”; to
the contrary, the Council finds that Immunotec’s denial of any association with this
document was clearly stated not once but three times throughout the report, namely,
by the reporter herself, by Dr. Bounous, Medical Director at Immunotec, and by John
Molson, Vice-President at Immunotec.

While, for the reasons stated above, the Council is of the view that some
of the complainant’s allegations reflect the sensitivity of an involved party, it
also considers that two of his concerns raise significant issues with which it will now
deal. That related to the use of hidden cameras is dealt with in the next section. The
other is the concern raised about the reporter’s use of the Consumer Protection
Bureau’s leaflet entitled “Faites de l’argent comme de l’eau”
(figuratively, “Multi-level Marketing Plan” in English translation).

The Council notes that the leaflet (the French title of which seems
particularly ironic in the light of the investigative report in the present matter) was
shown three times in the course of the report. On the first occasion, the leaflet served
as a backdrop for the reporter’s 13-word explanation of the mechanics of pyramid
selling. On the second, the leaflet was seen in the hands of the reporter as she
interviewed an official at the Consumer Protection Bureau. And finally, the leaflet was
displayed near the end of the report, while the reporter stated “[translation]
Immunotec has no intention of altering its marketing strategy…” Each time the
leaflet was shown, it was without properly attributing it to the Consumer Protection
Bureau.

While J.E. may have committed an error of omission with respect
to the non-identification of the source of the document in question, the Council notes
that J.E. never explicitly attributed the document to Immunotec (although the
report did nothing to dissuade viewers from drawing that erroneous assumption). In any
event, the Council considers that the document had some relevance to the report and
further notes that the document’s source (the Consumer Protection Bureau) was at
least involved in the report, thereby justifying its use. Accordingly, while the
Council is of the view that the omission of minimal identification of the document in
question constitutes careless, if not shoddy journalism at best, and, by one possible
interpretation of motive, misleading journalism at worst, it does not conclude that, in
this case, the inclusion of the document in the report without explaining its origin
constitutes a breach of the Codes. To reach such a conclusion would involve an imputation
of motive which, while arguable, does not appear to the Quebec Regional Council to be
justified in this case.

The B.C. Regional Council was faced with a similar situation of
on-the-edge journalism in CHAN-TV re Newscast (Recycling Society) (CBSC Decision
96/97-0004, March 10, 1997). In that case, the Council concluded that “the newscasts
in question were not in breach of the Code provisions cited above but that, in some
respects … they were only on the edge of acceptability.” The Council noted

[I]t was the duty of the station to ensure that it hadall the information it required to tell its story fairly, comprehensively and accurately… In this respect, the Council considers that the station and its reporter did notsucceed in all respects in meeting those standards although it does not believe that thebreach was such as to be constitute a breach of the Code. The Council is of the view thatthe reporter’s principal failure was with respect to the financial issues raised inthe newscasts. There is, for example, a difference between “grants” and”contracts for services rendered”. The Council does not agree with thebroadcaster’s justification of the one term for the other as a “break[ing] outof jargon to properly and directly convey meaning”. The word “grant” is notjargon. It has a well-known meaning and an implication of government largesse. It providesan inherent justification for cautious oversight of the activities of an entity benefitingfrom such beneficence. It appears, on the other hand, that the Society workedfor its money, that it rendered services for which it was paid. That does not imply thatit can do what it wants; the investigation was not unwarranted. The reporter ought,however, to have been “tighter” in his choice of language. Words are, after all,his work.

[The reporter] then made the sarcastic and apparently unwarrantedcomment that the wages of the “administrative staff” rose by “12%, whichapparently translates to 2%”. It appears to the Council that the reporter was readinga line item in a budget and extrapolating from this a conclusion that eachadministrative wage may have risen by an average of 12% rather than that the overalladministrative wage pot may have increased by that amount, which is essentially theinformation conveyed both by the Executive Director in her interview and in the letter sheprovided.

It is, of course, eminently material that she was given the opportunityto be on the record and to present her point of view but, in viewing and re-viewing thetape, Council members believe that the waters were muddied by the reporter in the confusedand unnecessarily sarcastic way he chose to introduce the item.

All in all, the Council considers that the reporter, the News Directorand the station ought to have exercised greater vigilance in the way they chose to tellthis story which they were justified in bringing to the attention of the public. It isnot, and cannot be, that every inadvertence or inappropriate comment will fallafoul of the various broadcaster Codes. This is a case where they do not but where theCouncil would have wished that the broadcaster had been further from the edge.

The Council considers that a similar conclusion and cautionary note is
appropriate in this case.

The Council notes that hidden cameras were used twice in the on-air
segment of J.E.’s report. On the first occasion, such a camera was used to
record the exaggerated claims apparently made by an HMS 90 distributor. On the second, a
hidden camera was used to tape the response of an Immunotec employee regarding potential
revenues associated with the sale of HMS 90.

This is the first time the Council has been called upon to rule on the
issue of the use of hidden cameras as an information-gathering technique. While there are
no specific provisions dealing with these issues in the Codes administered by the
CBSC, Article 4 of the RTNDA Code of (Journalistic) Ethics states, in part, that
“Broadcast journalists will always display respect for the … privacy … of
everyone with whom they deal.” In the view of the Council, “respect for the …
privacy” does not mean that no invasion of an individual’s privacy will
be countenanced. Rather, it is respect for such privacy in those circumstances in which
the public interest is not at issue. Where broadcast journalists encounter issues
which have a material public interest component, they will be justified in bringing these
matters before the public. After all, their basic duty, stated in Article 1 of the RTNDA
Code, “is to inform the public in an accurate, comprehensive and balanced manner about
events of importance
. [Emphasis addded.]”

In the circumstances, the Council considers that the resolution of such
an issue depends on the interpretation of two issues. The first is the public interest in
the matter with respect to which such devices are employed; and the second relates to the
appropriateness of this device to the making of that report.

As to the first issue, in this case, the Council has no hesitation in
concluding that the inquiry into the selling tactics associated with HMS 90 was a
legitimate avenue of pursuit. The public has an interest in knowing about products which
are offered as having curative values, products which may walk the fine line between food
and drugs, products which may find themselves on the border between regulation and
non-regulation, particularly where the public’s health may be at play. Moreover, to
the extent that claims are made regarding the properties of a product, such as HMS 90, to
cure, in whole or in part, such ailments as cancer, arthritis, AIDS, Parkinson’s,
Alzheimer’s, cardiac difficulties and so on, and where such claims are contested, it
is difficult to imagine that fair-minded people would argue that a report on such a
product would not be central to the public interest. To be clear on this point, the
Council makes no suggestion that reporting on a matter in the public interest provides any
licence to report inaccurately. That is another matter which the Council has
already dealt with above. Here the Council is only examining the appropriateness of hidden
recording devices to gather information for a story on which a broadcaster is entitled
to report.

As to the second issue, the Council considers that hidden recording
devices should not, in normal circumstances, be the method of choice to gather reportorial
evidence. In the absence of compelling or unavoidable circumstance, it is the
old-fashioned interview which should be the reporter’s preferred tool. There may,
however, be circumstances in which there is no reasonable expectation that the information
necessary to fairly, accurately, comprehensively and credibly tell a story in the public
interest will be obtainable other than by subterfuge. Where, for example, the revelation
of fraudulent activities is unlikely to be admitted by the perpetrator, it may only be
possible to tell the story by placing the crook in the circumstances in which he or she
will actually commit the fraud on camera. To deal with providers of phoney or incompetent
home or automobile repair services, it may be necessary to lure the providers of those
services into an environment where they are asked to quote on “needed repairs”
to a perfectly functioning piece of equipment. It would be naïve to expect that such
operators could otherwise be forced into the open. In a general sense, the legitimacy of
such devices may be supported where the harm to the public prevented by the revelation of
information so gathered outweighs the harm to the individual caused by the deceptive
gathering of the information.

In the case at hand, the Council believes that the information in
question would not have been comprehensively and credibly unearthed without the use of
hidden recording devices. Moreover, the Council can see no level of harm caused to the HMS
90 promoters’ legitimate interests by the use of the hidden cameras beyond
their obvious interest in keeping their product claims and apparent high-pressure tactics
secret. The level of benefit to the public in revealing both the selling tactics and the
claims is sufficiently overwhelming that the balance tips readily in favour of the use of
the devices to bring the information to the public. As to the countervailing claims
themselves relating to the virtues or vices of the product, the Council is in no position
to make any observations. The point is that, in presenting the report, the network offered
the opportunity for the public to become aware of the issues and to make whatever further
inquiries they might deem suitable to draw their own conclusions as to HMS 90. Moreover,
in providing the claims of the complainant herein by the full reproduction of his letters
in the body of this decision and as Appendix B, the public is given further opprotunity to
weigh the countervailing claims regarding the product itself.

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. In this case, the Council considers that the broadcaster’s response
addressed fully and fairly all the issues raised by the complainant. Consequently, the
broadcaster has not breached the Council’s standard of responsiveness. Nothing more
is required.