CHBC-TV re News Item (Double Homicide)

BRITISH COLUMBIA REGIONAL COUNCIL
(CBSC Decision 97/98-0008)
E. Petrie (Chair), S. Warren (Vice-Chair), R. Cohen (ad hoc), H. Mack and D. Millette

THE FACTS

On August 18, 1997, during its afternoon and evening newscasts,CHBC-TV (Kelowna) aired a story about a double homicide that had taken place in Vernon,B.C. The crime was reported as follows:

Two Vernon residents are dead from gunshot blasts and four other peoplefrom the North Okanagan are in RCMP custody this evening facing murder charges. Theshootings happened just before midnight last night at a residence on … Road. As BlaineGaffney reports, the Mounties are still trying to determine a motive for the doubleslaying but they are confident they have a good case against the suspects.

Reporter:

This morning RCMP homicideinvestigators from Vernon, Kelowna and Salmon Arm were searching for forensic evidence atthe residence at … Road in Vernon. Shortly before midnight, somebody kicked in the frontdoor of the house and a few minutes later, a man and a woman lay dead in their bedroom.Each killed by a single gun shot wound.

A few hours later, just after 3:00 thismorning, somebody phoned the Vernon RCMP and alerted police to the double murder. Actingon information they received, it didn’t take police very long to find the suspectedmurder weapon, to seize a vehicle and to arrest four people on suspicion of murder, threemen and a woman, all from the North Okanagan.

Included in the 5-minute report was an interviewwith an investigating officer and a neighbouring resident. It is the interview with the 16year-old neighbour which sparked a complaint from her parents. That segment of the reportwent as follows:

Reporter:

This afternoon at about 2:15 p.m., RCMP finally removed the bodies of[the victims] from their residence. That was more than 12 hours after they were murdered.The [victims'] residence sits on a large lot and its nearest neighbour is a couple ofhundred feet away. The neighbours I talked to said they didn’t hear anything unusualat all last night. But then, they also say, they didn’t have very much to do with[the victims].

Neighbour:

Hum, parties all the time and … We were used to the noise and stuff,with people coming in and out. So, it doesn’t bother us too much anymore.

Reporter:

But, you sort of steered clear of them over there.

Neighbour:

Oh yeah, he’s not exactly my favourite person in the world.

Reporter:

Just lots of sort of scruffy looking characters around or something?

Neighbour:

Oh yeah!

Reporter:

56 year old [male victim] was a bit of a wheeler and dealer. He soldfire wood, he dappled in horse trading. And he held numerous garage sales where he and his53 year old wife sold various household items. Now [they] are dead. But, there are alwaysmore victims to a murder than just the deceased. This morning, one of [their] fourchildren was at the murder scene grieving the sudden loss of both his parents. In Vernon,Blaine Gaffney, CHBC News.

On August 22, 1997, the complainant sent a fax to the CBSC givingnotice of her complaint concerning the above news item. This notice was followed up with aletter dated August 25 in which the complainant set out her concerns regarding her”daughter being broadcast on CHBC (Kelowna, B.C.) television news coverage about adouble homicide.” Her letter set out the facts as follows:

Reporter Blaine Gaffney and I arrived atthe scene of the homicides, we got our site pictures then started to canvass the arearesidents for comment. We were about to approach the nearest home [the complainant’s]but we noted a plain clothes RCMP officer enter the home, so we approached other homes.Twenty minutes or more had passed when we saw the officer leaving the [complainant’s]home.

We proceeded to approach the home, as we went up the driveway I gavethe shotgun microphone to the reporter and started to roll tape. When we got to the doorthe reporter knocked and a female resident, who I felt was in her late teens earlytwenties, answered the door. Upon opening the door the female saw us and stated”you’re not going to put me on T.V. are you?” The reporter replied”that depends on what you say.”

Never once did the resident say she did not want to be on television.In fact she maintained standing at the door giving responses to the reporters' inquires [sic].The whole time I had the camera on my shoulder pointed at her while the reporter held amicrophone in her direction. The conversation went on for three or four minutes at whichtime the reporter handed back to me the microphone, then I took two or three steps backand took what we call a two shot (this is a picture of the reporter with whoever is beinginterviewed).

While I was taking the two shot the reporter was asking the femaleresident her name and the correct spelling of it. Again there was no mention of notputting her on television, as a matter of fact I felt she was thrilled by the whole event.She was very friendly towards us and at no time tried to hide herself from view of thecamera. Aside from the interview and the two shot I never took any other shots, or did Iwander around the porch or property, while the reporter talked to the resident.

Once the two shot was done friendly goodbyes were exchanged and we leftto continue our work. I must stress in all ten years of doing my job, if a person hasstated they did not want to be televised we have always respected their rights in thisregard.

THE DECISION

The CBSC’s B.C. Regional Council considered the complaint
under the Code of (Journalistic) Ethics of the Radio and Television News Directors
Association (RTNDA). The relevant clauses of that Code read as follows:

RTNDA Code of Ethics, Article 4

Broadcast journalists will always
display respect for the dignity, privacy and well-being of everyone with whom they deal,
and make every effort to ensure that the privacy of public persons is infringed only to
the extent necessary to satisfy the public interest and accurately report the news.

RTNDA Code of Ethics, Article 7

News directors recognize that informed
analysis, comment and editorial opinion on public events and issues is both a right and
responsibility that should be delegated only to individuals whose experience and judgement
qualify them for it.

The Regional Council members viewed a tape of the news item in question
and reviewed all of the correspondence. The Council finds no violation of the RTNDA
Code of (Journalistic) Ethics
in this case.

 Summary of the Issues Raised by the Complaint

The complainant’s two letters may be resumed into three main areas
of concern. The complainant’s biggest grievance is that an interview with her
daughter should not have been broadcast without parental consent, given that the
daughter was under the age of majority.

Her second concern, which is also an issue of consent, is that the
broadcaster aired the interview with her daughter despite having been urged not to do
so by the daughter
at the time of the interview.

Finally, the complainant takes issue more broadly with the
broadcaster’s reporting of the double homicide story, alleging that it was
“reported unfairly, without accuracy and did not respect the dignity and privacy of
the people involved.”

The CBSC and Findings of Fact

There were conflicting versions of the facts (particularly as they
related to the issue of the daughter’s consent to the interview) presented by the
complainant and the broadcaster. Although it is, in a sense, an academic point, on the
basis of the stories of the two sides and the footage used in the report, the Regional
Council considers the hearsay version of the parents less reliable than the carefully
documented position of the interviewer and cameraman who were on the scene in person
and documented their recollections soon after the event. In the end, though, this decision
does not fundamentally turn on that choice of versions.

On the general issue of conflicting versions of the facts in any
matter, the CBSC considers it useful to reiterate its oft-explained position that it is not
set up to be a “fact-finding” body. It does not hold “hearings” in a
quasi-judicial sense and generally does not look to other “evidence” than the
logger tape of the broadcast in question. As stated in CTV re an episode of The Shirley
Show
(CBSC Decision 93/94-0261, August 18, 1995),

In circumstances where the Council is
not in a position to assess the accuracy of either version of events, it will generally be
forced to abstain from dealing with the issue in question as it is not an
evidence-gathering body.

Since, in the case at hand, the Council does not deem it necessary, for
the purposes of resolving the complainant’s concerns, to resolve each and every
question of fact before dealing with the complainant’s main concerns, it can turn directly
to those issues.

No Necessity for Consent to the Broadcast of Images

It is the contention of the complainant that a reporter seeking an
interview must first obtain a clear consent from the interviewee to the broadcast of the
interview. While the Council has on previous occasions dealt with the question of invasion
of privacy related to the broadcast of images (with or without sound accompaniment)
of persons in news reports, this is the first time that the Council has dealt with the
issue of consent to broadcast an interview given to a reporter.

In CTV re Canada AM (Airborne Hazing) (CBSC Decision 94/95-0159,
March 12, 1996), the Ontario Regional Council was called upon to consider the broadcast of
images of one of the unidentified soldiers involved in the hazing ritual. The Council
explained its interpretation of the privacy provisions of the RTNDA Code of
(Journalistic) Ethics
as follows:

It would be right to observe here that
Article 4 of the RTNDA Code of Ethics, in dealing with the issue of privacy, makes
specific reference to the privacy of public persons and not to private persons.
This is perhaps because there may otherwise be a tendency on the part of citizens to
believe that they have a proprietary interest in the lives of persons who have chosen to
make themselves, in part, very public. This could not be said to be the same in the case
of non-public figures.

In general, it is also true to observe that the private lives of
individuals are of little or no interest to the public. There must, however, be exceptions
to this principle or we would never, as a society, be entitled to see news stories
on television on the grounds that they may contain footage of an unwilling participant in
the event. It would not be realistic, for example, for television station news teams to
seek permission from everyone who might be seen on camera at a crime scene, an accident,
the picketing of a shop or a legislature, the arrival of a public figure or other events
too numerous to describe here.

The point is that the issue is not so much the recording and
broadcasting of the image of the individual as it is the identification of
the person. Where the broadcaster provides no information which permits the public at
large to identify the individual, such as in this case, the broadcaster has not interfered
with that person’s right to privacy. The fact that the individual filmed and those
close to him may know who he is does not interfere with his right to be free from
identification by the public at large.

Circumstances do, moreover, arise from time to time in which the public
interest in an event may override the otherwise legitimate interest of individuals to keep
their identity and activities free from filmed scrutiny. Even a situation such as the
hazing ritual in which a home video camera rather than a broadcaster’s
equipment was present would give rise to this principle. The public had such an abiding
interest in learning about the unorthodox and apparently discriminatory practices of the
Regiment, whose members had killed Somalis in questionable circumstances thereby affecting
the reputation of the country in its international peace-keeping role, that the
private interest of any individuals seen in the film in question would have been
overridden by the public’s need to know.

In CHAN-TV re Newscast (Recycling Society) (CBSC Decision
96/97-0004, March 10, 1997) and CKCO-TV re News Report (Police Arrest) (CBSC
Decision 96/97-0174, February 20, 1998), the Council carried forward the principle that,
where images of unidentified persons are relevant to a story about which the public has an
interest in learning, broadcasters may have a justifiable interest in using these images.
In the Recycling Society case, the CBSC affirmed the principles laid down in the Airborne
Hazing
decision.

In applying those principles to this
matter, the Council considers, first, that there was no identification of the
individuals whose images were briefly on camera and, second, that there was a justifiable
interest is using those unidentified images to illustrate the story which the public had
an interest in knowing.

In CKCO-TV re News Report (Police Arrest) (CBSC Decision
96/97-0174, February 20, 1998), the Ontario Regional Council extended the foregoing
principles, even where the image used was that of a 10-year girl who was related to, but
had nothing to do with, an accused murderer.

The Ontario Regional Council also finds,
as it and the B.C. Regional Councils did, in the CTV and CHAN-TV cases, that
there was a justifiable interest in using the unidentified but relevant images to
illustrate a story about which the public had an interest in learning. This principle is
not altered by the age of the individual in the bit of videotape used in the story. The
same privacy principles apply whether the image used is that of a child or an adult.

Finally, for these purposes, the Council refers to a decision of the
B.C. Regional Council in CHBC-TV re Newscast (CBSC Decision 93/94-0292, December
18, 1996), in which the complainant, a defendant in court proceedings, was visited at his
home by news reporters who attempted to interview him. Although he declined to be
interviewed at that time, he did accept, in rather unperturbed fashion, to be interviewed
on the following day. That interview never actually occurred and his rather undefined
image and words, shot through his curtained living room window, on that initial occasion,
were used in the news report. The B.C. Regional Council held that it was not an invasion
of privacy as “this complainant/defendant was a willing, if not blasé,
participant.”

In the case at hand, the B.C. Regional Council readily recognizes the
interest of the broadcaster in visiting the area of the murders and in trying to provide
for its viewers as much information as possible from persons with knowledge of the crime
or the individual victims or perpetrators. In principle, therefore, the broadcaster was
entitled to do what it did, including the seeking of interviews with people likely to have
information on the events. The Council will now look at the specific issue of the age of
the interviewee and the general issue of consent.

 The Age of the Interviewee

The first consensual issue to deal with in this case relates to the age
of the complainant’s daughter, the interviewee. The complainant contends, first and
foremost, that her 16-year-old daughter is a “child” and on this ground was
deserving of some form of protection from the media. She insists that parental consent
must be obtained for the broadcast of an interview with a minor. She rebuts the
broadcaster’s argument that her child was acting of her own free will by saying that
Blaine Gaffney, the interviewer, “was in control of the situation” and was able
to “take advantage of [her daughter’s] vulnerability of being a child.”

On the factual level, the Council considers that the daughter was
always in a position to give or withhold her consent. She knew that she was being
recorded. She was always inside the door of her house while the interviewer was outside.
She could have ended the interview at any time by closing the door. There is no indication
whatsoever in the video footage used in the news report that she was coerced. The Council
readily concedes that she was probably inexperienced but this does not, in the Council’s
view, render her any different than most non-public figures of any age who are
interviewed by the press. While some of the questioning was leading, that issue was not
age-related. Nor, in the view of the Council, was the interviewee in any way compromised
thereby.

The issue for the Council, therefore, is to decide whether the
interviewer should have exercised any greater care in obtaining the interview in the case
of a minor. The Council is not being asked here to decide the question of an interview
with a 6 or 8 year old child. It is rather faced with the case of an interview with a
mature looking 16-year-old. To say that a fiduciary relationship whereby the reporter held
a position of trust vis-à-vis the daughter was created by the mere fact that she
was interacting with an adult is simply naïve.

The Council does not find that use in the report of the interview with
the complainant’s daughter was improper by reason of the absence of parental consent.

Any Necessity for Consent to the Broadcast of an Interview?

The Council finds that the complainant’s contention that a formal
consent from an interviewee must be obtained is, in such circumstances as are present in
this case, too impractical and legalistic to be in the public interest as it would unduly
impede the gathering and dissemination of news of which the public has an interest in
being informed. Nor does the Council consider that a situation such as that which occurred
in this case is, even by analogy, what is envisaged in Section 3(e)(i) of the Radio
Regulations, 1986
, which prohibits a licensee from broadcasting “any telephone
interview or conversation, or any part thereof, with a person unless … the person’s
oral or written consent to the interview or conversation being broadcast was obtained
prior to the broadcast.”

While the Council readily acknowledges that the facts of this case are
very different from those in the decisions previously cited, the principles established in
those matters are at the root of this decision. Although it is undeniable that the
complainant’s daughter was not directly involved in any “public” activity,
such as court proceedings, the matter does not end there. She was clearly identified in
the newscast and this does lead to a presumption of consent on her part. It was, after
all, she who gave her name to the reporter during the course of that interview.
There was no hidden camera nor any other surreptitious recording equipment involved in
this case. The logger tape reviewed by the Council members shows the daughter answering
the reporter’s questions via a large and very present microphone.

It is also significant that, while the CRTC’s Radio Regulations
prohibit the broadcast of an interview or conversation without prior consent, no parallel
prohibition is found in the CRTC’s Television Broadcasting Regulations. The
Council is of the view that the absence of a parallel provision in otherwise parallel
regulatory instruments is indicative of an expectation that it is less likely that there
would be a surreptitious element in the obtaining of a television interview, unagreed to
radio interviews being far easier to obtain. In any event, no such element is present in
this case, where the camera and microphone were in full view. All necessary consent,
whether express or constructive, was present in this case.

Fairness and Accuracy

Finally, the complainant also alleges that the double-murder story
was “reported unfairly, without accuracy and did not respect the dignity and privacy
of the people involved.” She points to the fact that video footage of the
victims’ children was shown immediately after the interview with the daughter during
which she made some statements about the victims which were not particularly flattering.

The Council finds no fault with the broadcaster’s construction of
its report. In this regard, the Council refers to the decision of the Prairie Regional
Council in CFRN-TV re Eyewitness News (CBSC Decision 96/97-0149, December 16,
1997). In that case, in dealing with a complaint that a news story about indoor
playgrounds at fast food restaurants in the Edmonton area had been “alarmist”
and sensational, the Council made the following comments regarding the broadcaster’s
construction of the news feature:

… there is no doubt, in the view of
the Council, that the intention of the news reporter was not to recount a story
that would not attract attention. This alone does not mean that her story would be
in breach of either of the above-noted Codes. There is not either any doubt, in the view
of the Council, that the news reporter would not have merely threaded together the
interviews she obtained in a chronological or other nondescript order. This also does not
mean that her story would breach the aforementioned Codes. There is, in fact, an
expectation on the part of the Council that the feature item was “ordered” in
the first place because it would be newsworthy and that it was edited to be interesting
and to have impact. The question for the Council is whether either goal was achieved at
the cost of any contravention of the Codes.

The Council does not find that the order in which the various footage
clips were presented in this case constituted a breach of the Codes. While the
construction of the report may have been disturbing to the complainant given the
daughter’s comments, that alone does not lead to a conclusion that a breach has
occurred.

The Council finds, however, that the reporter was somewhat leading in
his questioning of the daughter. It is doubtful that he would have obtained the answers he
did had he not construed his questioning as he did. Nonetheless, while the Council has some
concern with respect to the manner in which the report was conducted, it does not find a
breach of the Code.

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. 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.

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.