CHOI-FM re Le monde parallèle de Jeff Fillion

QUEBEC REGIONAL PANEL
(CBSC Decision 02/03-0115)
T. Rajan (Vice-Chair), B. Guérin, G. Moisan, R. Parent, and P. Tancred

THE FACTS

Le monde parallèle de Jeff Fillion airs on CHOI-FM (radio X, Sillery) weekdays from 6:00 amto 10:00 am.  It is hosted by Jeff Fillion who, along with his co-hosts, discusses current events and pop culture with callers and guests.

On October 2, 2002, among other subjects, Fillion and his co-host talked about a recent court judgment in which Fillion's rival radio host André Arthur had been found responsible in damages for uttering defamatory statements against Premier Daniel Johnson (a detailed transcript of relevant portions of the dialogue can be found in Appendix A).  Fillion commented on an interview on television the previous evening with another local competitive radio host, Jacques Tétrault, on the subject of the lawsuit.  He played excerpts from that interview in which Tétrault had accused both Arthur and Fillion of making their living by telling half-truths and he alleged that they had stated that he, Tétrault, had AIDS.  Fillion and his co-host responded to Tétrault's remarks at length. Among other things, Fillion noted that it is impossible for broadcast journalists and announcers to tell the whole truth with respect to every issue since there were always bound to be facts yet undiscovered.  He sarcastically criticized Tétrault for saying as much, “as if he was Mr. Truth and every time he opened his mouth [.] it was the truth and he knew what he was talking about.”

Fillion's criticisms of Tétrault became even harsher, as Fillion referred to him as a “conceited asshole” “that worthless piece of trash”, a “loser”, a “piece of vomit”, a “shit disturber” and a “tree with rotten roots”Fillion expressed his disgust at being preached to “by someone who has lower morals than me” and suggested that Tétrault only did the television interview as a “ratings stunt” because Tétrault was “a poor communicator” who had lost most of his listeners.  Fillion also claimed that Tétrault had only achieved success on the coattails of others, was only interested in young women and was known to leave important business meetings for frivolous personal reasons.  In the same vein, Fillion stated his opinion that television news host Jean-Luc Mongrain had treated the Arthur court ruling report with sarcasm and called Mongrain a “shit disturber” as well.

In an unrelated pop culture segment later in the program, Fillion and his co-hosts discussed R&B singer Barry White who was then sick in hospital.  Fillion indicated that he did not like the singer's romantic, easy-listening style of music and snidely remarked that, although Quebec City's Radio énergie team considered themselves “rockers”, their constant play of his songs revealed the contrary.  Fillion concluded the conversation by calling Radio énergie and its employees a “bunch of faggots.

It was these two segments of the October 2 broadcast that concerned a listener, who filed a complaint the following day (the full text of all correspondence can be found in Appendix B).  The listener complained about the “totally gratuitous verbal aggressiveness towards hosts Jacques Tétrault and Jean-Luc Mongrain, Fillion's disparaging comments on the journalistic profession (acknowledging that, like every body, he also used half-truths)“, as well as Fillion's general treatment of individuals who disagree with his opinions.  He also complained about the “derogatory remarks about gays he called “queers”

The broadcaster's in-house lawyer responded to the complainant on November 5.  With respect to the comments made about Tétrault and Mongrain, CHOI-FM's representative indicated that broadcasters have a right to criticize public figures and to voice opinions on controversial subjects.  In this case, he wrote, Fillion was exercising his right of reply to criticisms levelled against himself and colleague André Arthur by Tétrault and Mongrain.  With respect to the complainant's concerns about the program in general, CHOI-FM stated that the opinions expressed on the program were justifiable given the format and context of the comments, which sometimes involve humour, sarcasm, irony, caricature and exaggeration to stimulate public debate.  It also noted that Le monde de parallèle de Jeff Fillion is an entertainment program rather than a public affairs show.

The complainant requested that his complaint be sent to the appropriate CBSC Panel for adjudication.

THE DECISION

The Quebec Regional Panel reviewed the matter under the following provisions of the Canadian Association of Broadcasters' (CAB) Code of Ethics.

CAB Code of Ethics, Clause 2 – Human Rights

Recognizing that every person has the right to full and equal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status or physical or mental disability.
CAB Code of Ethics, Clause 6 – Full, Fair and Proper Presentation

It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of each broadcaster. This principle shall apply to all radio and television programming, whether it relates to news, public affairs, magazine, talk, call-in, interview or other broadcasting formats in which news, opinion, comment or editorial may be expressed by broadcaster employees, their invited guests or callers.
CAB Code of Ethics, Clause 9 – Radio Broadcasting

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;

b) Unduly sexually explicit material; and/or

c) Unduly coarse and offensive language.
The Panel Adjudicators listened to a recording of the broadcast and reviewed all of the correspondence. The Quebec Regional Panel concludes that there is no breach of the human rights provision involving the use of the word “faggots”, but that there are breaches of Clauses 6 and 9 with respect to the comments made about other broadcasting personalities.

Full, Fair and Proper Presentation

Private radio tends to be a very local medium, focussing on matters of relevance and importance to the community. Depending, of course, on the particular station format and market, the morning drive period often includes what we describe as talk shows, and frequently within that broad genre, the provocative opinions of an outspoken host. Talk shows are themselves a relatively recent creation and the most controversial of these tend to be a yet more recent phenomenon. At its best, talk radio is as close as populous modern cities can hope to come to the ancient city-state open square expression of the divergent points of view that are the basis of democracy. At its worst, talk radio becomes a form of squabbling or a platform for a host seeking substance-less opportunities to grab attention and audience share. That it is entertainment is fair enough. When, however, it becomes shrill, brash, unpleasant, driven by nasty insults, without meaningful justification, it may overreach the broadcasters’ own standards. While talk shows, particularly those of a true interactive nature, are rightfully regarded as a bastion of freedom of expression, the Canadian airwaves are not a free-for-all. The privileged right to bring such shows to air is not without its limitations. In CHOM-FM and CILQ-FM re the Howard Stern Show (CBSC Decisions 97/98-0001+ and 0015+, October 17 and 18, 1997), this Panel said,

Free speech without responsibility is not liberty; it is licence. The freedom to swing one’s arm ends where it makes contact with one’s neighbour’s nose. The length of that arc is what the CBSC must determine from case to case.
After all, underlying such restrictions is the recognition that the airwaves are the property of the Canadian people. They are only made available to those licensees which satisfy the CRTC that they will exercise that licence responsibly and subject to the criteria and conditions established by the regulator. In CFJP-TV (TQS) re “Quand l’amour est gai” (CBSC Decision 94/95-0204, December 6, 1995), the Quebec Panel stated:

The Canadian Broadcast Standards Council has, on numerous occasions, confirmed its attitude regarding the principle of freedom of expression. It is hardly necessary to restate the importance of this principle to a democratic society; however, it may be useful for Canadians to remind themselves from time to time of the critical role played by radio and television broadcasters in the exercise of this freedom. After all, while the purity of the principle remains the same in small or large groups, the freedom to express cannot be as pervasive or influential exercised in a kaffeeklatsch or a street corner as across the public airwaves.
As a part of their responsibility, the vast majority of private broadcasters agree that they will respect a set of standards. In fact, some of the various private broadcasters’ standards have been established since 1987 and modified from time to time, as recently as August 2002. The key is the commitment to standards, on the one hand, and the appreciation that the rules must evolve over time to reflect community standards and expectations, on the other.

There is, in a sense, a hand-in-glove relationship between the broadcasters and their audiences. Because the relationship is, in some senses, disproportionate (in the sense that the microphone and camera are powerful tools on the airwaves), broadcasters must be commensurately conscious of, and responsible to, the public they are licensed to serve. The CBSC has previously recognized that the world of talk radio is, from time to time, a “rough-and-tumble” world. The Quebec Panel can also readily acknowledge that there is some justification for Jacques Tétrault’s comment that Quebec City has particularly aggressive radio. Whether in Quebec City or elsewhere, and depending on the style of the individual talk show host, there may be more or less detachment from a point-of-view regarding the issues, and there may be more or less refinement or intellectual content. There should, however, always be overriding elements of civility, in the sense that any commentary must be full, fair and proper. This does not exclude the possibility of expressions of rivalry in referring to other points of view or other stations’ hosts. It means, though, that any such comment cannot exceed the foregoing bounds.

In CKTB-AM re the John Michael Show (Middle East Commentary) (CBSC Decision 01/02-0651, June 7, 2002), the Ontario Panel made the point that “Skilled practitioners of the [talk radio] art must be deft, not brutal.” The Quebec Panel considers that host Fillion was anything but deft. He was crude and offensive. He spouted ugly and generalized epithets, comprehensible only in their flailing nastiness and not because a serious listener might have actually understood what his competitor did, if anything, to merit criticism. Thus, for example, the Quebec Panel finds that “conceited asshole”, “that worthless piece of trash”, a “loser”, a “piece of vomit”, a “shit disturber” and a “tree with rotten roots” fall into this category, whereas focussed comments such as the accusation that Tétrault was “a poor communicator” who had lost most of his listeners are fair game.

Fillion demonstrated an utter lack of respect, not only for the competitive host, but also, more important, for the audience he ought to serve. The public interest is in no way served by such shallow grandstanding from the safe side of the microphone. As this Panel concluded in CHOM-FM and CILQ-FM re the Howard Stern Show (CBSC Decisions 97/98-0001+ and 0015+, October 17 and 18, 1997), “Every Canadian, regardless of nationality, is diminished by abusively discriminatory remarks which are aimed at any identifiable group. [.] It is clear that representatives of English and other linguistic groups have been as offended by the comments directed at one group of Canadians as the Francophone members of that group have been. That has also been as true of Canadians outside Quebec as Canadians inside Quebec.” All audiences are diminished by the broadcast of unfair and improper material. In the analogous circumstances present in this case, CHOI-FM has aired comments that are contrary to the provisions of Clause 6 of the CAB Code of Ethics.

Coarse or Offensive Language

There is probably a tendency to consider coarse or offensive language as limited to swear words or those words referred to in English as “four-letter words”. The Panel wishes, however, to make it clear that such words are not the only ones that qualify as coarse or offensive language under Clause 9 of the CAB Code of Ethics. In Le Petit Robert, “grossier” means, among other things, “qui est contraire aux bienséances, [.] cru, inconvenant, incorrect, [.] ordurier, [.] vulgaire” and “injurieux”, “blessant, insultant, mortifiant, offensant, outrageant.” Correspondingly, in the Shorter Oxford English Dictionary, “coarse” includes “rude, uncivil, vulgar” and “offensive”, “hurtful, harmful, injurious”. The Panel considers that the terms “hostie de prétentieux”, “hostie de pas bon”, “un vomi” and “un chieur” all fall clearly within the ambit of either coarse or offensive language and that the broadcast of these terms by CHOI-FM constitutes a breach of Clause 9(c) of the CAB Code of Ethics.

Gay-related Comments

The host’s comments about the incompatibility of the style of Barry White’s music with Fillion’s perception of the musical mandate of Quebec and Montreal (where he worked as Programming Director) “rock” stations were, in accordance with his wont, flippant and insulting, but they do not amount to a breach of any Code provision. As in the Ontario Panel’s decision CILQ-F re The Howard Stern Show (Staff Insults) (CBSC Decision 97/98-1223, February 3, 1999), the host used the English words “retard” and “retarded” to insult one of his own production staff with whom he was apparently extremely displeased in terms of an aspect of the production for that day’s show. Although the Ontario Regional Panel indicated that “the terms are generalizations which carry a negative connotation”, it found, in this case, that Stern’s remarks

[were] directed at an individual and does not attribute negative stereotypical characteristics to a defined minority group in such a manner as to amount to a breach of the human rights provision of the Code. Moreover, the references stand alone without any additional characterisation of the referenced group elsewhere in that show. The remarks did not mock or make fun of members of the handicapped group generically but rather attributed diminished mental capacity to an unchallenged individual.
The usage was similar here. Given that the insult “faggots” was hurled anonymously at radio stations and their unidentified staffs, the offensiveness was even more remote. There was no breach of any Code provision on this account.

Broadcaster Responsiveness

It is the practice of all CBSC Adjudicating Panels to assess the broadcaster’s responsiveness to the complainant. Although it is, of course, the case that the broadcaster need not agree with the complainant, it is expected that its representatives charged with replying to complaints will address the complainant’s concerns in a thorough and respectful manner. In the matter at hand, the broadcaster’s lawyer provided a detailed and pertinent response to the complainant. Nothing more could have been requested from the broadcaster on this occasion in this respect.

ANNOUNCEMENT OF THE DECISION

CHOI-FM is required to: 1) announce this decision, in the following terms, once during peak listening hours 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 Le monde parallèle de Jeff Fillion is broadcast; 2) within the fourteen days following the broadcast 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 that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CHOI-FM.

The Canadian Broadcast Standards Council has found that CHOI-FM has breached clause 6 and 9 of the Canadian Association of Broadcasters’ (CAB) Code of Ethics. By broadcasting certain nasty insults and epithets about a rival broadcaster on October 2, 2002, CHOI-FM breached the provisions of Clause 6 of the Code of Ethics, which requires the presentation of fair and proper comments and opinions. By broadcasting those words, CHOI-FM has also breached the provisions of Clause 9(c) of the Code of Ethics which prohibits the broadcast of unduly coarse and offensive language.