On March 15, 2010, during its CHCH News broadcast, CHCH-TV aired a report about a vehicle collision that had occurred six days earlier between a mini-van and a motorcycle. Anchor Nick Dixon introduced the report by Al Sweeney. The following is a description and transcription of the relevant portions of the news report (the full transcript can be found in Appendix A):
Dixon: The family of a Hamilton woman critically injured in a nasty crash on Highway 6 say things are looking a little better tonight. They’re rallying around [D.J.] who was paralyzed when her motorcycle was hit by a car. Meanwhile, the wife of the driver charged in the case says he’s not a monster. Al Sweeney has the latest on this story.
The report began with reporter Al Sweeney standing outside a house. There were pieces of wood, a lawn chair, and a children’s plastic picnic table on the front lawn, and a black SUV or mini-van in the driveway.
Sweeney: At [Mr. J.A.]’s home, his wife told us her husband is distraught over the accident, as she spoke out on his behalf.
The wife was then seen standing outside her home talking to Sweeney. Her face was visible, but her body was obscured by the vehicle. A dog was inside the house barking, standing by the screen door.
Mrs. J. A.: This was an accident and everybody is saying that he didn’t even stop and ran her down. He tried to stop.
Sweeney: He tried to stop?
Mrs. J. A.: Yes, he did! He’s not an animal! He’s not a freakin’ monster! [Her voice breaks because she is upset] It was an accident and we feel bad enough as it is!
There was a close-up of the dog through the screen door window and a children’s basketball net was partially visible outside the door.
Sweeney: She said he wants to send his deepest apologies but was told not to contact anyone right now.
Sweeney was then shown speaking on a cell phone.
Sweeney: [Mr. J.A.] wasn’t home, but over the phone he refused to comment, saying a lawyer had told him not to say anything.
There was then a scene in which two police officers and a man in an orange sweatshirt were filmed standing by police cars on a road.
Sweeney: He’s charged with careless driving after a mini-van crashed from behind into a motorcycle on Highway 6 last week.
The report then showed a photograph of the injured motorcycle driver and proceeded to describe the extent of her injuries. It also included interviews with a few of the motorcycle driver’s loved ones, who stated that the woman was in good spirits despite her condition. They also expressed the view that criminal charges should be laid against the mini-van driver and that there should be more publicity about road safety.
The complaint came from the wife of the mini-van driver. In a letter of March 25, she objected to the fact that she had been shown on the news and she provided a detailed account of her version of events that led to that interview being broadcast (the full text of that letter and all other correspondence can be found in Appendix B). She stated that CHCH News had covered the story of the accident all week, but had made no attempt to contact her husband until reporter Al Sweeney showed up at her doorstep unannounced six days after the accident when her husband was not at home. She claimed that she had gone outside to request that the reporter leave her property and told him that she did not want to appear on the news. Sweeney pressed her for a comment, which led to her making the statements that were broadcast in the report. According to the wife, the reporter persisted in asking further questions, so she telephoned her husband, who then spoke with Al Sweeney on his cell phone, asking the reporter to leave his property and indicating that he had been advised by a lawyer not to speak to the media. The wife also wrote that, when she had insisted that she did not want her face all over the news, the reporter assured her that the cameraman behind him was only filming the reporter himself, “implying only he would be visible during the segment.”
The complainant indicated that, later that day, she had telephoned the station and explained to the News Director that she did not want to appear on the news. Apparently the News Director informed her that he would speak with the reporter in question and then determine a course of action. She complained that the clip of her exchange with Sweeney was broadcast on the news that night: “They showed a clip of the entire front of our home and stated they were at our house, they showed me as well as filmed our dog who was inside our home.” The complainant wrote that she spoke on the telephone a few days later with Sweeney, who “denied saying that only he was being filmed.” She apparently also questioned him about showing up on her doorstep with the camera rolling but without knowing whether he even had the correct house. Her overall complaint was that, despite rules regarding freedom of the press, her “wishes and civil rights should have been respected.”
The CHCH News Director responded in writing to the complainant on April 29. He explained that the day of the broadcast was the first day that the motorcycle driver’s family had made a public statement, so the reporter “sought comment from Mr. [A.] in fairness, to offer an opportunity to respond to the family’s remarks. […] Mr. Sweeney’s sole objective on this day was to seek information and balance.” The News Director pointed out that Sweeney identified himself as a reporter. The News Director also pointed out that it was obvious that there was a cameraman behind Sweeney, though, the News Director observed, the reporter “has a different recollection of what was said regarding what was being ‘filmed’.” The News Director then noted that “Mr. Sweeney asked several questions and several answers were given” and that the news crew did leave the property once the husband had made that request in his telephone conversation with the reporter. The News Director concluded his letter with the following explanation of CHCH’s position:
People certainly have the right to turn down media inquiries. But a comment made to a reporter, especially one who has clearly identified himself, is reportable.
And in this case, that comment was compelling, reflecting something about what the [A.] family was going through, a comment that actually added a sympathetic perspective. For that reason, we decided to include it in our story.
The complainant submitted her Ruling Request on May 2 with a lengthy rebuttal to CHCH’s points. First, she argued that March 15 was not the first time the motorcycle driver’s family had made a public statement; she herself had seen an interview with the woman’s sister during the 12:00 noon newscast on March 10. Second, she questioned why, if the station’s objective had simply been fairness and balance, it had not contacted her husband in advance to request “a proper interview” rather than showing up unannounced at their door. Third, she stated that the reporter had not asked her to respond to the specific remarks of the motorcycle driver’s family, despite the News Director’s contention that that was the goal of the interview.
The complainant expressed concerns that the broadcast had engendered public animosity towards them, as people were posting negative comments about them on social networking websites. She was concerned about her family’s safety since the report had included their names, city of residence and an exterior view of their house. Her rebuttal also included a further description of the events that had transpired the day the reporter showed up at her house. She insisted that she had immediately requested that the reporter and cameraman leave her property when she saw the CHCH News vehicle outside, “therefore, it’s fair to suggest I made an attempt to turn down media inquiries. Unfortunately, my wishes were not respected. […] Regardless whether the media felt it was a compelling statement, my wishes were not to be aired on the news.”
The wife also noted that, contrary to the News Director’s assertion, Sweeney had not left the property immediately following her husband’s request; rather Sweeney continued to probe her about whether she had children and whether the neighbours were aware of the accident. She insisted that her reluctance to appear on air had nothing to do with whether or not her husband was at fault in the accident, but rather her own dislike of being filmed or photographed. The complainant further explained her concerns in the following terms:
Mr. Sweeney surely must have sensed I was in a weak state and fragile, as I was shaking and upset. Yet he proceeded to push for information. I telephoned my husband and put him on the phone with Mr. Sweeney in hopes that he would be satisfied to hear my husband’s voice and leave. I did not have the option to shut my door as my children were outside.
I’m not understanding how it seems I’m being centered out as having answered a few questions being justification for airing me on the news!
Specifically, I had stated what I was saying was off the record, as I did not want to appear on the news. I reiterated what I had said was off the record to which Mr. Sweeney replied, off the record means nothing.
At the very least, CHCH News could have contacted me and attempted to work out a happy medium, such as reporting my comment without being physically aired on television. Perhaps any other happy medium we could have worked out rather than absolutely disregarding my feelings and wishes.
She also cited Article 4 of the Radio Television News Directors Association of Canada (RTNDA – The Association of Electronic Journalists) Code of (Journalistic) Ethics, which states that privacy should only be infringed when it is in the public interest to do so. She then posed the question, “How was it in the public’s best interest to reveal exactly where we reside by airing the entire front of our home, my identity as well as our dog inside our home? In doing so, anyone who wishes to seek revenge on my husband can look up [our name] in the [city] phone book (as CHCH News claimed they did), and easily pinpoint the exact home!”
The Ontario Regional Panel has examined the complaint under the Article 4 (Privacy) of the Radio Television News Directors Association of Canada (RTNDA – The Association of Electronic Journalists) Code of (Journalistic) Ethics, which reads as follows:
Broadcast journalists will respect the dignity, privacy and well-being of everyone with whom they deal, and will make every effort to ensure that news gathering and reporting does not unreasonably infringe privacy except when necessary in the public interest. Hidden audio and video recording devices should only be used when it is necessary to the credibility or accuracy of a story in the public interest.
The Panel Adjudicators read all of the correspondence and viewed the report in question. The Panel concludes that CHCH-TV violated Article 4 of the RTNDA Code of (Journalistic) Ethics.
A Preliminary Matter: Off-Air Issues
It has long been made clear in CBSC decisions that the Council is not an evidence-gathering body. In CFSK-TV (STV) re an episode of Friends (CBSC Decision 95/96-0159, December 16, 1997), for example, the Prairie Regional Panel commented on the complainant’s allegations that, when she phoned the station to complain, she had not been taken seriously. On that issue, the Panel stated:
The Panel makes no judgment, however, with respect to the telephone conversation between the complainant and the station manager described in the complainant’s letter. The Council is not an evidence-gathering body and, in the absence of agreement as to the facts, has no means by which to assess what may have transpired between the broadcaster and the complainant.
In CFRN-TV re Eyewitness News (CBSC Decision 96/97-0149, December 16, 1997), the Prairie Regional Panel dealt with a news feature on the subject of indoor playgrounds at fast food restaurants in the Edmonton area. To the point made in CFSK-TV, the Panel added:
The Panel here deals only with the on-air portion of the reporter’s comments. In the first place, it had no way to determine what transpired during telephone conversations attempting to set up interviews. Not only does the CBSC never have a tape or transcript of such conversations, but it is also not an evidence-gathering body. It does not hold “hearings” in a quasi-judicial sense. It limits its review, in almost all cases, to the evaluation of the on-air program against the Codes which it administers.
In CKVR-TV re News Item (Car Troubles) (CBSC Decision 97/98-0235, July 28, 1998), this Panel observed:
In circumstances where there may be any conflict between two versions of what transpired in an off-air telephone conversation, as in this case, the Panel is not in a position to make any determination on that issue since the CBSC does not hear witnesses, carry on investigations or gather evidence in any other way. […] Circumstances often do arise which depend on off-air issues and where there is either agreement on the off-air facts or there is no materially different view of those facts. In such cases, the CBSC is free to express its view of matters, provided they fall under the Codes or standards relating to broadcaster membership.
Finally, for these purposes, the Panel notes the following observation made by the National Specialty Services Panel in APTN re a report on APTN National News (boundary marker YouTube clip) (CBSC Decision 09/10-0509, April 1, 2010):
The CBSC frequently states that it is not a finder of fact and that it does not seek witnesses or evidence in order to make determinations about off-air events. […] That said, the CBSC may rely on agreed upon facts, obvious or very likely circumstantial evidence, or uncontradicted factual assertions.
One of the effects of the foregoing rulings is that Panels have no means to verify what was actually said during off-air exchanges, particularly when the complainant and broadcaster disagree about the facts. Another is that Panels are entitled to rely on agreed-upon off-air facts or uncontradicted factual assertions. They may also determine that there is an absence of material distinctions in two versions. Finally, they may draw conclusions from the presentation of conflicting facts where such a logical presumption presents itself. In any event, the fundamental decision of any Panel on a challenged broadcast must be based on what was actually broadcast.
Invasion of Privacy: A Balancing Act
As Article 4 clearly indicates, any determination regarding the invasion of privacy will depend on the balancing of rights. On the one hand, there is the right of the individual to his or her privacy. On the other hand, the media have an entitlement to invade that privacy to the extent that it is “necessary in the public interest”. In other words, the privacy of an individual is essentially sacrosanct until such time, if any, as the interest of the public is great enough to supersede that isolation. Even where the media’s right to infringe exceeds that right to privacy, the door is not flung open. It is not the case that “anything goes.” It is, after all, possible that the extent or type of the invasion or infringement may be excessive.
In the matter at hand, the Panel finds a number of problems with the challenged broadcast. Above all else, the wife was neither the subject of, nor involved in any way in, the automobile-motorcycle collision that was at the root of the story. She was entirely peripheral and could offer no comment on the events that amounted to anything more than hearsay. She was simply not in a position to shed any substantive light on the events of March 9. The Panel finds it difficult to appreciate that there was significant public interest in the interview snippet obtained from the wife.
In fact, the Panel does not understand why the interview with the wife was so important to the broadcaster. The Panel does appreciate that it would have been logical to seek an interview with the husband, who was involved in the accident, but it was uncontradicted that the station had made no attempt to reach the husband at any time between the accident on March 9 and the date of the interview, six full days later.
The Panel also attaches considerable importance to the fact that there is no indication that any effort was made to obtain the wife’s consent to the interview, that the interview was conducted on private property with a reluctant interviewee, and that she (and her husband on the telephone) requested that the broadcaster’s representatives leave the property. It is clear that the onus on a broadcaster to respect the privacy of an individual is greater when a broadcaster who is undeniably infringing upon the privacy of that individual is doing so on his or her private property. That respect did not happen in the matter at hand. The wife was clearly both fragile and frazzled. She was clearly upset and, as she explained in her letter, she had been crying.
The wife was poorly treated and taken advantage of, particularly in the presence of her children. While she could have retreated into the house to avoid the reporter, the Panel understands why she did not wish to leave the children alone outside in the circumstances. After all, the obligation was on the reporter to leave when asked. All in all, the Panel considers that the broadcaster did not respect the privacy of the woman, both in terms of the filming and the broadcast, as she had, on a timely basis, registered her request with CHCH-TV that the footage not be used. For all of the reasons indicated above, the Panel is of the view that the broadcaster has breached Article 4 of the RTNDA Code of (Journalistic) Ethics.
The Panel hastens to add that it finds no problem with the filming of the family home, which was, after all, where the driver of the mini-van lived. The Panel conclusion would likely have been different had the civic address of the home been provided, as there was no public interest in such information. In a similar circumstance, namely, CIHF-TV re News Item (Random Neighbourhood Shooting) (CBSC Decision 97/98-0622, November 25, 1998), where visuals of the home whence a shooting allegedly originated were part of the news report (although without the identification of the home’s civic address), the Atlantic Regional Panel concluded:
While it may be true that the house may be distinctive in its neighbourhood, and indeed that some friends, neighbours or relatives may have been able to identify the owner of the house on this basis, there is insufficient information in the report to make it clear to others who the possible perpetrators of the alleged offence might be.
Accordingly, the Panel finds no breach of Article 4 on that account.
In all CBSC decisions, the Council’s Panels assess the broadcaster’s responsiveness to the complainant. In the present instance, the broadcaster attempted to explain the precise circumstances and sequence of events that led to the news story. The complainant was, as she candidly explained, most distressed by the events that had given rise to the interest in her family and she clearly did not agree with the broadcaster’s perspective. That was, of course, her right and the reason for which any complaint file is ultimately referred to a CBSC Panel for adjudication. In the end, it is the attention to the complaint that determines whether the broadcaster has met the CBSC membership responsibility of responsiveness. The Panel is satisfied that CHCH-TV has met its membership obligation in this instance.
ANNOUNCEMENT OF THE DECISION
CHCH-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 this CHCH News newscast was broadcast, but not on the same day as the first mandated announcement; 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 CHCH-TV.
The Canadian Broadcast Standards Council has found that CHCH-TV violated Article 4 of the Radio Television News Directors Association of Canada’s Code of (Journalistic) Ethics in a news report of March 15, 2010. In that report, the broadcaster aired an interview with the wife of an individual who had been involved in a motor vehicle accident, despite the fact that she had no involvement in the events, did not wish to be on camera, and had specifically requested that the brief interview not be aired, contrary to the provisions of Article 4, which requires broadcasters to respect the privacy of the individuals with whom they deal.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.