CHNI-FM re an episode of Maritime Morning

atlantic regional Panel
R. Cohen (Chair, ad hoc), B. Jones (Vice-Chair), B. MacEachern, R. McKeen, R. Morrison, T.-M. Wiseman

THE FACTS

Maritime Morning is an open-line talk show broadcast on radio stations owned by Rogers Broadcasting in Halifax, Moncton and Saint John.  It is hosted by Andrew Krystal, who discusses politics, entertainment and current events with guests and callers from 9:00 am to noon on weekdays.  During one segment of the April 4, 2008 episode, the guest was Paul Watson, the head of a marine conservation group called the Sea Shepherd Conservation Society.

Watson and his group are well-known in Atlantic Canada for their anti-sealing views and militant tactics.  On April 4, the Sea Shepherd Society was refuelling one of its ships in St-Pierre, the island territory belonging to France located off the coast of Newfoundland, when a group of fisherman cut the ship’s mooring lines.  This action was apparently taken in retaliation for comments that Watson had publicly made regarding the fate of four sealers who had drowned in March when their trawler capsized and sank in the Cabot Strait as it was being towed to shore by a Canadian Coast Guard icebreaker.  According to reports, Watson had said that the slaughter of thousands of seal pups each year was more of a tragedy than the deaths of the four men.  Watson appeared on Krystal’s program to discuss the incident (a full transcript of the segment is available in Appendix A).

Krystal challenged Watson on some of his views, suggesting that Watson had gone too far with his most recent comments.  Watson defended himself in turn by stating his view that all life is interdependent within the Earth’s ecosystem and that all creatures should be valued.  The majority of callers to the program expressed their support for Watson’s conservation work, but one caller in particular disagreed significantly with Watson’s position.  The exchange with caller Joe went as follows:

Joe:      Good morning.  First off, Paul, I’d like to congratulate you for doing more damage to the ecological movement in, uh, in the last couple of days than any other person I know.  Your comments have, uh, established, I think, without a shadow of a doubt what a whackjob you really are, in that you would value, uh, a seal’s life over another human being’s.  And I think you made a comment before that you didn’t believe that, uh, you had a soul or whatever, and I, I agree.  I don’t think you have a soul, sir.

Watson:            [chuckles]  Well, I’m glad it’s got you thinking about it.

Joe:      But, uh, you know, know what should be done with you?  I think you should be put on the ice floe with the sea-, seals, okay?  And you live out your existence out there and hopefully someone will come along with a hakapik and put it in your skull.  Thank you.

Watson:            Well, that’s, uh, that’s a very humane comment.

Krystal: Well, but, there’s a lot of, you’ve heard that before, right Paul?

Watson:            Yeah, it doesn’t really bother me.  I’m not really too concerned what people think.  I don’t do what I do for people.  My clients are whales, seals, fish, sharks, sea turtles and sea birds.

Krystal: You see, I view it as, uh, democracy is democracy.  And democracy is messy.  And if everybody agreed, it’d be pretty boring.

Watson:            That’s true.

It was that portion of the program which concerned a listener who heard the program on CHNI-FM (News 88.9, Saint John, New Brunswick).  The listener’s complaint of April 18 outlined his concerns as follows (the full text of all correspondence can be found in Appendix B):

My complaint is with a caller at close to the end of the morning show in a 3-way phone conversation with the host and Paul Watson.  There was a direct threat made on the life of Mr. Watson and no air cut-off was made and no comment by the host.

I did reach News Director [M.C.] by phone and he kindly looked into the matter, reviewed the tape and attempted to call me back … much appreciated.

However, his explanation does not address the situation.  He raised some pros and cons on both sides of the issue, made the points of the heatedness of the debate, the fact that they were the words of the caller not the station or host, and that much worse is heard on some radio programs.

Final point he made was that my complaint was the only one they had from the Maritimes.

If as bad and worse is heard on radio and if I am the only voice against, then it’s important that I point out …

In civil life, those exact words constitute cause for laying a criminal charge at the highest level of intent to injure and/or kill.

It makes no difference that the caller uses the “third person” to say “I hope that someone …”; the intent and impact are the same as if he had said he would do the act.

If it is decided that this exchange falls within media standards then perhaps it is time for the CRTC and Parliament to revise those standards.

The Vice-President of Regulatory Affairs for Rogers responded to the complainant on June 11:

Maritime Morning is an open-line radio show broadcast each weekday morning between 9 am to [sic] noon on CJNI-FM Halifax (News 95.7), CHNI-FM Saint John (News 88.9) and CKNI-FM Moncton (News 91.9).  The show’s format consists of live local news reports, sports and traffic updates interspersed with Mr. Krystal’s commentary in which he brings up various topics for discussion and solicits listener comments and opinions.

As you know, the programming format at News 88.9 is News/talk.  As such, much of the programming is live.  Live radio is dynamic and unpredictable and can present certain challenges regarding inappropriate remarks or poor choice of words.

Your complaint centres around comments by a caller whereby “there was a direct threat made on the life of Mr. Watson …”.

Paul Watson is the founder and current leader of the Sea Shepherd Conservation Society.  Although the organization labels itself as an international non-profit, marine wildlife conservation organization, it is better known as an environmental group that engages in direct action tactics such as ramming whaling ships at sea.

We have carefully reviewed the logger tape of the broadcast and must respectfully disagree with your interpretation of the caller’s words and/or intent.  Earlier in the program, Mr. Watson had commented that the killing of 325,000 seals was a greater tragedy than the death of four sealers.

[…]

The exchange […] is a prime example of the challenges of live radio.  While the producer of the program does screen each caller prior to putting them on the air, it can be difficult to control a caller’s temper and the content of his/her remarks once they are on the air.  Although News 88.9 does employ a time delay in its broadcast, it is used primarily to prevent offensive and/or coarse language from being broadcast on the air.

In this particular incident, while the caller did wish harm upon Mr. Watson, we do not believe it was with the intent to promote or sanction violence.  As such, we do not believe News 88.9 breached Clause 9 of the Code.

However, regardless of our explanation, it is clear from your letter that you were offended by our programming, and for that we do apologize.  Thank you for taking the time to express your thoughts about our station.  We value the opinion of all our listeners.

The complainant submitted a letter on June 30 indicating his desire for the CBSC to pursue the matter.

THE DECISION

The Atlantic Regional Panel examined the complaint under Clause 9(a) (Radio Broadcasting) of the Canadian Association of Broadcasters’ (CAB) Code of Ethics:

Recognizing that radio is a local medium and, consequently, reflective of local community standards, programming broadcast on a local radio station shall take into consideration the generally recognized access to programming content available in the market, the demographic composition of the station’s audience, and the station’s format. Within this context, particular care shall be taken by radio broadcasters to ensure that programming on their stations does not contain:

a)         Gratuitous violence in any form, or otherwise sanction, promote or glamorize violence;

The Panel Adjudicators listened to a recording of the program and read all of the correspondence.  The Panel concludes that the broadcast did not violate the aforementioned Code provision.

A Few Preliminary Observations

Although everything turns on the reasonable understanding of caller Joe’s comments, a few initial clarifications must be made in response to comments in the correspondence.  First, the issue of the purpose of the time delay.  The broadcaster’s representative explained that “Although News 88.9 does employ a time delay in its broadcast, it is used primarily to prevent offensive and/or coarse language from being broadcast on the air.”  Whatever the broadcaster’s initial motivation in adopting a time delay device, there can be no doubt but that broadcasters have a responsibility for eliminating any matter that could be in violation of a codified standard.  Whether they choose to employ such a device as was available to them here to eliminate unacceptable content is, of course, their business.  That said, the Panel considers that it would be wise to consider the on-the-fly editing tool for purposes beyond coarse language.

Second, the complainant wrote that the News Director had advised him during a telephone conversation, first, “that they were the words of the caller not the station or host,” and, second, “that much worse is heard on some radio programs.”  Whether that is or is not an accurate report of what was said during that off-line telephone conversation, the points made provide the Panel with the opportunity to deal with the issues that flow from them.  First, the Panel wishes to make it abundantly clear that broadcasters are responsible for everything they broadcast, whether the comments are those of a station employee or a caller.  If the latter makes problematic comments, they must either be edited or, depending on the type of comment, the on-air host must at the very least defuse the offending matter in order to possibly avoid the breach of a Code provision.

Third, it perhaps goes without saying that the fact that the challenged comments are not as offensive as some other broadcast matter that may have escaped scrutiny or complaint is no defence to an accusation of a Code breach.  Such misery does not love company.

Fourth, and various CBSC Panels have made this point in the past, the fact that a complaint about a broadcast is made by but one individual does not diminish the portent of the complaint.  The CBSC does not count heads.  Complaints are upheld only if they are valid, and rejected only if they are not, no matter how many or few they may be.

The Nature of the Comments

As to the challenged comments themselves, the Panel must consider whether they could reasonably be intended to be taken seriously.  Since every comment is different, both in words and context, each one must be individually appraised.  The Atlantic Regional Panel has reviewed the following CBSC decisions.  In CIWW-AM re The Geoff Franklin Show (CBSC Decision 92/93-0181, October 26, 1993), for example, the Ontario Regional Panel dealt with an allegation that the host of an open-line radio show had advocated violence in his response to a case of animal cruelty by encouraging callers to suggest methods of “getting even” with the perpetrator of the crime.  Although the physical reaction suggested by the host fell within the realm of the possible, the Panel did not find any breach of a Code.

It determined that the host had, as a dog-lover himself, been motivated by anger in marshalling the listeners’ calls but that he had not ever meant to be taken as a serious advocate of criminal activities.  In the result, it considered Mr. Franklin’s comments to be in poor taste but not constituting a breach of any of the provisions of the Code of Ethics.

In CIQC-AM re Galganov in the Morning (CBSC Decision 97/98-0473, August 14, 1998) the host said, “we have to […] beat the crap out of all these […] crapheads.”  Despite the fact that one might reasonably conclude that such acts of violence as were proposed by the then well-known activist, anti-separatist campaigner and advocate for the rights of Anglophone Quebeckers were perhaps plausible in nature, the Quebec Panel did not conclude that the host, in making the statement, had seriously advocated violence against whomever he considered to be the “crapheads” at the time.  The Panel stated:

Leaving aside for the moment the issue of vulgar language […], the Council does not find the statement “we have to … beat the crap out of all these … crapheads” to be in breach of the fairness requirement of the Code.  The Council does not view this statement as “[translation] a call to violence”, as contended by the complainant.  While the meaning sought to be conveyed by Mr. Galganov in making this pronouncement is ambiguous, to say the least, the Council does not consider this isolated comment to be more than an unpleasant, tasteless, juvenile comment, but not a genuine pre-meditated attempt to encourage the commission of a criminal offence.

In an opposite circumstance, in CKAC-AM re a segment on Bonsoir les sportifs (CBSC Decision 06/07-0441, April 7, 2008), the Quebec Regional Panel dealt with a complaint about comments made on a sports talk show.  Host Ron Fournier was speaking with his co-host about the meagre reaction of the Montreal Canadiens hockey team to opponents’ interference with their goalie in a recent game.  Fournier suggested that, on the first two instances of goalie interference, the team should approach the referee, but, on the third occasion, [translation] “you break your stick on the back of the player’s neck and he’s on the ground!”  He continued with [translation] “You cross-check him in the back of the head and he ends up […] with his face in the glass enclosure or in the ice!”  The station argued that Fournier had not intended to incite violence and that the comments were made in the context of a specific hockey game.  The Panel found a violation of Clause 9(a):

The issue for the Quebec Panel in interpreting the above-cited provision of the CAB Code of Ethics centres on the meaning of the words “sanction” and “promote”.  The Panel understands the verbs to be the equivalent of “endorse”, “encourage”, “approve”, “support” and the like.  It does not consider that there is a need to provide a “how-to” manual, although it does acknowledge that Ron Fournier has come very close to delivering that very formula.

[…]

The Quebec Panel considers that the foregoing words not only “endorsed”, “encouraged”, “approved” and “supported” such violent acts, they recommended such a course of action to protect a goaltender.

The Ontario Regional Panel reached a similar conclusion in CILQ-FM re John Derringer’s “Tool of the Day” (CBSC Decision 02/03-1465, February 10, 2004), which dealt with a complaint about an editorial segment.  Each day, radio commentator John Derringer selected a figure in the news who had done something with which Derringer disagreed to be his “tool of the day”.  In the broadcast in question, Derringer targeted a judge who had issued what Derringer felt was too light a sentence for a child pornography crime.  Derringer provided the judge’s name and called him a “disgrace” to the justice system, asserting that convictions for child pornography in other countries are much harsher.  He went on to say, “What is gonna have to happen at some point in this province is that a Justice like Justice [X] is gonna have evidence brought into court […] and it’s gonna be his kid being forced to perform fellatio on a man and sent around the world on the Internet.  It’s gonna be his grand-daughter forced to perform acts of bestiality.”  The complaint came from the judge’s ex-wife who was concerned that the remarks put her family in danger because they suggested that harm be done to her children.  The Panel acknowledged that Derringer was legitimately permitted to express his opinion on this legal topic, but found a breach of Clause 9(a) for promoting violence against the judge’s family:

The Panel considers that his remarks would reasonably be understood by any fair-minded person as promoting or at least sanctioning violence, contrary to the provisions of Clause 9.

[…]  The host used language that was apparently, in the view of authorities, sufficiently prone to promote or incite violence that the family of the judge required and received police protection.

The Ontario Regional Panel therefore also finds the John Derringer commentary in breach of Clause 9 of the CAB Code of Ethics because of the promotion or sanctioning of attacks on the judge’s family.  Great harm could have come from all of this, quite apart from the injury caused by Derringer’s words.  This is especially true when children, and families generally, are brought into such an equation.

Applying the foregoing precedents to the matter at hand, the Atlantic Regional Panel concludes that the comments by caller Joe were not of the same nature as the comments previously found in breach.  The Panel, of course, understands that the comments were crude and heavy-handed.  It acknowledges that Joe was angry with Paul Watson’s prioritizing the lives of seals in the relative weighing of human and mammalian life.  It considers, though, that caller Joe was merely advocating that Paul Watson be accorded the life of the seals he valued so much, as in, if you like the seals to that extent, go live with them and suffer their fate, including the worst that may befall them.  “But, uh, you know, know what should be done with you?  I think you should be put on the ice floe with the sea-, seals, okay?  And you live out your existence out there and hopefully someone will come along with a hakapik and put it in your skull.”  The Panel does not, however, conclude that the broadcast in any way advocated or sought such an eventuality.  The Panel does not consider that the comment was inciting, sanctioning or glamorizing violence.  It was admittedly harsh, and the Panel does consider that the host had a duty to keep the guest and callers in line, particularly when such intellectual confrontation can be anticipated.  A disavowing comment by host Krystal would have been appropriate, but the absence of one did not, in the Panel’s view, amount to a breach of Clause 9(a).

Broadcaster Responsiveness

In every CBSC decision, the adjudicating Panel assesses the broadcaster’s responsiveness to the complainant.  It goes without saying that the broadcaster is not under any obligation to agree with the position taken by the complainant, but every broadcaster is obliged, by virtue of its membership in the CBSC, to respond to the complainant in a thoughtful, timely and thorough manner.  The response of the broadcaster’s Vice President of Regulatory Affairs was pointed, specific, thorough and respectful.  The Panel considers that CHNI-FM has met all of its responsiveness obligations as a CBSC member. Nothing further is required in this respect on this occasion.

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.