CIQC-AM re Galganov in the Morning

QUEBEC REGIONAL COUNCIL
(CBSC Decision 97/98-0509)
Y. Chouinard (Vice-Chair), R. Cohen (ad hoc), M. Gervais,S. Gouin and P. Tancred

THE FACTS

At the time of this complaint, Howard Galganov, well-known political
campaigner for the rights of English-language Quebeckers, hosted a morning show on CIQC-AM
(Montreal) which ran from about 7:00 a.m., following the morning news, to 10 a.m. The
first two hours of Galganov in the Morning consisted of chit chat between Mr.
Galganov and his co-host, Jim Connell, various interviews and discussion of current
affairs topics. This time slot also made room for a daily “editorial” by Howard
Galganov. The last hour of the show was dedicated to taking calls from listeners. On
December 9, 1997, Mr. Galganov chose to discuss a complaint about his show which had been
forwarded to the station by the CBSC for its response. (This complaint is dealt with in
CBSC Decision 97/98-0473, decided and released concurrently with the present decision.) At
approximately 7:45 a.m., he made the following comments concerning the complaint and the
complainant (a more complete transcript of the day’s broadcast is provided in
Appendix A to this decision):

We got a letter today. This really infuriates me and Iwant to tell you, Jim, I’m speaking on my behalf exclusively and not the radiostation. I’m sure the radio station would much rather prefer that I not even mentionthis, but the Canadian Broadcast Standards Council sent us a letter giving us two weeks toapologize to this woman who made these complaints about the language that I use and thethings I’ve called separatists and it gives us two weeks to apologize. So I’mnot going to take the two weeks. The radio station can do whatever they want and this isnot the radio station, this is me, Howard Galganov, not even you, Jim, it’s myself.The Canadian Broadcast Standards Council, screw off. You know, I can’t believe it, inthis letter, you know what they said? You can’t publish the person’s name, oryou can’t mention the person’s name who is complaining about you, who sent thedocument off to the CRTC, who sent the document off to the Canadian Broadcast StandardsCouncil and who’s demanding an apology, or they’re demanding an apology in hername. But yet I can’t mention her name because I don’t know why. So don’tsay another word, Jim, because this has nothing to do with you, it has nothing to do withthe radio station, screw them and her. Her name is [he gives the complainant’s fullname]. If they don’t like it, they can get me off the air but I’m not going tobe censored. You know, these are the guys who are going after Howard Stern because theydon’t like the language he uses. What are they, the taste police? If it doesn’tsuit their taste or their taste standards then we can’t say it on the air? No, Idon’t need censorship. You know, this [unfinished sentence]. I enjoy doing this show,Jim, but I don’t enjoy doing this show enough have some pissant in Toronto tell mewhat I can and can’t say to the people who are listening to this station. And themoment I can’t say what I want to say, then what the hell am I here for? I’ll belike the other guys over on Fort Street. They’re here to entertain and titillate anddo whatever they want to do.

You know, we’ve made more of a difference in this marketplace inthe last three months than I think all of the radio stations in Montreal have donecombined in the last three years. And you got some ass at the Canadian Broadcast StandardsCouncil whose trying to piss all over our parade? Ah, screw them. And again, this hasnothing to do with the station. The owners of the station, I’m sure, are not pleasedto be hearing this, but you know, I got a day job. Anyways, Jim, do you think we are stillon the air?

The complaint was also one of the topics discussed during the open-line
portion of the show. The comments of one caller, referred to as “Robert”, were
particularly pointed towards the complainant:

Caller Robert: This [full name of complainant],is she the same [complainant’s first name] that called you a couple of times?

Howard Galganov: I’m sure she is. She sent off this, Idon’t know how many pages anymore, 8, 10, 12 pages of hand written logs of the show.She’s recorded every segment you can think of. Every time I called them separatistsbastards or shit-holes or peckerheads, she’s recorded everything with the time andthe circumstances. She sends it off to the CRTC, but she didn’t send us a signedcopy. She sent us a copy without her name.

Robert: Okay, but she’s come on the air several times. Shecomes on Joe Cannon’s show also. She has this pathetic story about her father’scar being broken down or something, and she makes no qualms about it that she is aseparatist.

Howard Galganov: Yeah, but who cares, you know?

Robert: Why doesn’t she listen to another radio station?

Howard Galganov: That’s what really bothers me about theCanadian Broadcast Standards Council. If someone doesn’t like what I say or the way Isay it, turn me off. Just go to another station, just turn me off. But she doesn’thave the right to tell you, Robert, what you can hear and can’t hear, ’cause youhave the right to turn me off too.

Robert: Well, worse than that, she has no right to come on theradio station and say she’s a separatist, number one.

Howard Galganov: Actually, she does. She has the right to dothat and I have the right to say “Look, I don’t want to talk.” I won’tspeak to Louis about it on the phone or Gérard. I’m not interested.

Robert: She shouldn’t say that right up front. She can getinto it later on, but to come on [unfinished sentence] Obviously she has some kind ofcharacter flaw to have to say that right in advance. She wants to go against the grain orshe wants [interrupted]

Howard Galganov: Yeah, but, Robert, that’s [unfinishedsentence]. Robert, that’s fine. I don’t have a problem with that, because I havethe same right to say “Goodbye.”

Robert: Yeah, of course, but I mean, why does she have to openup the conversation with that right away? She needs an identity. She’s an inferiorperson. She’s got an inferiority complex. She listens to people talking on the radioand she can’t fit in. She’s got to throw whatever it is she’s throwing outhere. I have one thing to say to her : “Va donc chier, pis crève.” That’sit. Ha, ha, ha.

Howard Galganov: Well that’s pretty clear [laughter]. Allshe needs is a life and all the station’s going to need is a [inaudible]. That’sall. Life’s easy.

Another caller, “Carol” also had a “message” for
the complainant:

Caller Carol: Good morning, Howard. Yes, I thinkyou have no apologies to make to anybody, especially to Josée Legault [reporter for LeDevoir] and [the complainant’s full name].

Howard Galganov: Oh thank you, and I don’t think[unfinished sentence]. I don’t think I do either, Carol. I think, if anything, thesepeople, if they started apologizing today, we would have to wait til the turn of thecentury before they’ve apologized enough for everything that they’ve done andsaid over the last 30 years.

Carol: On the lighter side, I’m the mom of that verypolitical little 3 year old boy. He’s got a message for those two ladies and here itis: [sound of a child’s toy] “The cow says Mooooo.” [Laughter] So keep upthe good work, Howard. Goodbye!

Howard Galganov: Carol, thank you very much. Goodbye. I wonderif there is a market in producing separatist cows to sell in the stores for Christmas.Maybe there is. I guess I’m a bit too late for it.

The majority of callers to the December 9th open-line portion of Galganov
in the Morning
, however, either did not deal with the topic of the complaint at all
(contrary to the complainant’s contention) or mentioned her name only as part of a
general comment on the issue of censorship without making specific statements about her.

The Letter of Complaint

On January 5, 1998, the complainant wrote a follow-up letter to her
initial complaint which was discussed on the December 9th broadcast of Galganov in the
Morning
. Her letter stated in part (its full text is included in Appendix B to this
decision):

[Translation] The host not only made extensive commentsabout me, revealing my identity, he also invited his listeners to participate in his usualopen-line portion of the program from 9 to 10 a.m. which, on that day, was dedicatedentirely to this issue. Caller after caller insulted me, calling me a “cow”among other things, always being mindful of repeating my first and last name, as Mr.Galganov had done so well many times before! The host’s encouragement of thesehateful exchanges only goes to show his arrogance and his baseness.

Other Correspondence

No written response from the broadcaster was received by the
complainant (or the CBSC). During a telephone conversation between the CBSC’s
National Chair and Pierre Béland, the President of CIQC-AM, on December 10, it was agreed
that Mr Béland would call the complainant to apologize and explain the error which
resulted in her name being broadcast by Mr. Galganov on the air. This was confirmed in a
follow-up letter sent that same day by the CBSC’s National Chair:

[Translation] Thank you for this morning’s call…. The explanation provided by you and your employees promises a positive result withrespect to the complainant’s concerns. I appreciate the explanatory call which youwill make to the complainant. I hope she will understand that this error was accidental.

As to the substance of the complaint, I hope that the person who willbe charged with responding will take the necessary time to consider all the detailedinformation she has built up in support of her complaint.

This courtesy call never occurred, according to the complainant’s
letter dated January 5, 1998:

[Translation] Following the broadcast of the December9th show, I contacted [the CBSC]. [The Administrative Assistant] called me the next day totell me that Mr. Béland was going to call me soon in order to apologize for the on-aircomments of his host. Not only did he never call to apologize, he didn’t even respondto my complaint dated December 1st. I even waited an additional two weeks beyond December23rd deadline granted to him to reply. His blatant disregard for my complaint goes to showhis lack of responsibility in defending what he probably considers a “lostcause”.

The Descision

The CBSC’s Quebec Regional Council considered the complaint under
the Code of Ethics of the Canadian Association of Broadcasters (CAB) and, by
analogy, Article 4 of the RTNDA Code of (Journalistic) Ethics. The relevant clauses
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 (Journalistic) Ethics – Article 4

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

The Regional Council members listened to a tape of the December 9
broadcast and reviewed all of the correspondence. The Council considers that the
broadcaster breached clause 6 of the CAB Code of Ethics by allowing its morning
show host Howard Galganov to personally identify and attack a listener/complainant on the
airwaves.

Full, Fair and Proper Comment

In CKAC-AM re the Gilles Proulx Show (CBSC Decision 94/95-0136,
December 6, 1995), the Council was faced with a situation very similar to this one. In
that case, as here, a letter of complaint from a listener was followed by the
broadcast which became the subject matter of the complaint by the same listener. In that
case, a listener sent two letters commenting on the treatment of listeners and the use of
the French language by one of the station’s talk show hosts. The host responded on
air, calling the complainant “petite niaiseuse” (dumb broad) and “an
idiot” and exclaiming that she “needs a good lay” and is “as ugly as
sin”. In finding the broadcaster in breach, the Council stated:

Even if the complainant’s initial letter had been unduly provocative regarding the host’s on-air attitudes, tone and practices, and the Council makes no evaluation of this nature here, it would not give rise to an entitlement on the part of the host to ridicule, demean and insult the letter-writer. The host’s right to defend himself and his style does not extend to the personalized debasing of his critics. The listening public has every right to expect higher standards of those persons whom broadcasters choose to place on the airwaves.

The Council also made the following comments regarding the public
nature of the airwaves.

While the Regional Council recognizes that the Gilles Proulx Show is essentially one of provocative discussion and debate regarding issues of public importance, it equally recognizes that this does not accord the host unlimited freedom of speech. If such an untrammelled right exists in the host’s own living room or, to a lesser extent, in the middle of Parc Lafontaine, it does not exist on the Canadian airwaves. Indeed, radio and television stations in Canada are granted the privilege of using broadcasting frequencies with a view to providing, as stated in section 3(1)(b) of the Broadcasting Act, “a public service essential to the maintenance and enhancement of national identity and cultural sovereignty [emphasis added]”. In this instance, however, the host’s extensive, excessive and abusive commentary on the complainant’s letters to the station in no way furthered public debate or discussion on issues of public importance. Rather, the host used the airwaves to exact a form of private vengeance on an individual listener…

The station also breached the requirement to ensure the “full, fair and proper presentation of … comment”, pursuant to Clause 6(3) of the CAB Code of Ethics. The Regional Council believes that the comments made by Proulx about the listener constituted gratuitous personal attacks and an irresponsible use of the airwaves by the station. They were neither fair nor proper.

While the Council upheld the right to express political criticism, even
vehemently, in its corresponding decision on Galganov in the Morning, also released
today (see CBSC Decision 97/98-0473), it considers that the principles set out in that
case cannot be applied here. In that case, the Council stated

There is no doubt that Howard Galganov's opinions areexpressed strongly, even vehemently, and, some might say, inflexibly, whether off or onthe air. The host might even wear any such characterization as a red badge of courage. Thequestion for the Council, though, is whether political views, even thus expressed,are subject to curtailment or restriction. While freedom of expression is one of thefundamental freedoms enumerated in Section 2 of the Charter, it is a freedom whichwas not drafted as absolute. As Section 1 of the Charter provides, these freedomsare “subject only to such reasonable limits prescribed by law as can be demonstrablyjustified in a free and democratic society.” Although the Codes administered by theCBSC are not subject to the application of the Charter, the Council has alwaysproceeded with its deliberations on the basis that freedom of expression is fundamental tothe rights of the broadcasters but that even they fully expect that the Codes they havecreated are of the nature of those reasonable proscriptions which ought to apply inthe free and democratic society of which they are a part. The foregoing being said, it isthe view of the Council that, of all of the categories of speech, none can be worthier ofprotection than that speech which can be described as political. After all, thefreedom to express political views is at the very root of the need for a guarantee offreedom of expression in the first place. It is that speech which has historicallybeen the bridge to democracy. This is not to say that all speech which can bedescribed as political will be free from any oversight but rather that such speech will bemost carefully protected in the face of that oversight.

In this case, however, the Council must deal, not with general comments
directed at an ideological group, but with strong criticism directed at a specific,
identified individual
who does not benefit from the same access to the airwaves. The
Council is of the opinion that the considerable power generated by the broadcast medium
dictates that the person entrusted to wield this power will not abuse it by using it
against relatively “defenseless” individuals.

It should be remembered that the Council is not here dealing with defamation,
a specific civil remedy with respect to which the Council has no jurisdiction. Success in
a defamation case generally depends on the plaintiff’s success in proving that the
statements made were untrue. Given that the Council is not a fact-finding body, it would
have no means to assess veracity. It is required neither to assess the truthfulness of
statements nor the intention of their interlocutor in its areas of jurisdiction. It can,
however, and must when requested to do so, assess the fairness and propriety of
comments made on the airwaves about individuals. Looked at from the other side of the
microphone, broadcasters are neither entitled to defame individuals nor to make unfair or
improper comments about them which may violate private broadcast standards (or, it goes
without saying, the Broadcasting Act or any of the Regulations adopted pursuant to
it), even though any such offending statements may not constitute a breach of the civil
law.

The Council recognizes fully that critical comments can be made about
individuals, particularly those in public life but also, in appropriate circumstances
which it need not plumb here, with respect to private individuals. The question for the
Council will always be the weighing of the statement and the circumstances. At its most
basic level, the fairness requirement set out in the third paragraph of Clause 6 of the
CAB Code of Ethics dictates that a balance must be struck between the type and
extent of the criticism of an individual and the appropriateness or merit of any such
criticism when measured against the individual’s criticized actions or behaviour.
Propriety, a second requirement found in the same paragraph, dictates that the public
airwaves will not be used for irrelevant or gratuitous personal attacks on individuals.
The Council considers that Howard Galganov’s show broadcast on December 9, failed on
both these counts.

The comments were not fair. The mere act of filing a complaint cannot
in any way, shape or form be construed as warranting the tirade which Galganov in the
Morning
fired at the complainant. In such an unequal setting as exists between a
broadcaster on one side of a microphone and one of the thousands of recipients of those
messages on the other side, the filing of a private unbroadcast complaint
constitutes the simplest and most basic attempt at interactivity, expression of a point of
view and the exercise of a democratic right. The hostile, churlish, nasty belittlement
which the host condoned on his show constitutes an utterly unfair example of bullying.

The comments were not proper. Stating that the complainant has a
“character flaw”, that she must be an “inferior person” and that she
“can’t fit in”, for example, are not relevant to the host’s
“defence” of his position regarding the complaint and are entirely
inappropriate. The admonition that the complainant “[translation] go dump and
die” is clearly a gratuitous, unfounded and unacceptable personal attack. All in all,
the level of the show’s responses reminded the Regional Council members of childhood
name-calling and such gratuitous insults are improper and have no place on Canada’s
airwaves. The Council has no trouble in concluding that some of the comments made on air
about the complainant in this case were at least as hurtful, damaging and inappropriate as
those made about the complainant in the CKAC-AM case referred to above.
Accordingly, it finds that, by airing these comments made by the callers to the show as
well as the host, CIQC-AM breached Clause 6 of the CAB Code of Ethics.

Privacy of Individuals

In addition to the issue of fairness and propriety raised by the
comments made concerning the complainant during the December 9 broadcast of Galganov in
the Morning
, there is also the question of privacy to be considered. In the CKAC-AM
decision referred to above, the Council summarized the following principes relating to the
privacy of individuals.

The CBSC has, in past decisions, established some of theconditions under which private individuals may, and may not, be identified in broadcasts.In CTV re Canada AM (Airborne Hazing) (CBSC Decision 94/95-0159, March 12, 1996),the CBSC’s Ontario Regional Council established that the principle of privacy, forprivate individuals, is primordial; only in exceptional circumstances is the publicinterest served by revealing the identity of private individuals who are involved in anevent of public interest. Interpreting article 4 of the RTNDA Code of Ethics, theOntario Regional Council decided that

Where the broadcaster provides no information whichpermits 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 Regional Council added, however, that

Circumstances do … arise from time to time in whichthe public interest in an event may override the otherwise legitimate interest ofindividuals to keep their identity and activities free from filmed scrutiny.

Applying those principles to the present case, theQuebec Regional Council considers that, other than for reasons of personal vindictiveness,there was no reason for Gilles Proulx to reveal the listener’s name and location(city) on air. Although she wrote a letter of complaint directly to the station managementand to the host, the complainant did not consent to being identified on the publicairwaves. A simple communication with a broadcaster, and even with the host of a talkshow, is not tantamount to a waiver of the listener’s right to privacy. Had the hostgenuinely wished to answer the charges which his critic had levelled against him, he couldhave done so by dealing with those issues which had been raised. Instead, heignored the issues and tore after the messenger. By revealing thecomplainant’s full name and location, the host made it a simple task for any listenerto identify her. It is clear to the Regional Council that the host infringed thecomplainant’s fundamental right to privacy in circumstances where there was no publicinterest, much less an overriding public interest, in revealing her identity on theairwaves. The Regional Council concludes that CKAC breached article 4 of the RTNDA Codeof Ethics.

Since that decision, the Ontario Regional Council has also considered
the issue of privacy in CITY-TV re Speakers Corner (CBSC Decision 97/98-0572, July
28, 1998). In that decision, the Council did not ultimately have to rule on the issue but
made the following point regarding the right to privacy:

As to the question of identification of the complainant,the Council considers that, had the segment permitted an identified individual tobe harshly criticized by an apparent member of her family, this might have offendedcertain privacy principles which underlie the principle of “full, fair and properpresentation of … opinion [and] comment” provided in the third paragraph of Clause6 of the CAB Code of Ethics. The Council does not consider it necessary, however,to deal with this particular issue here as the segment complained of was purged of allidentifying elements by the broadcaster prior to airing. To the extent that thecomplainant considered herself “identified” or targeted by her nephew’scomments, it would only, in effect, have occurred within the context or her family andfriends and not in the broad context of the broadcaster’s audience.

The Quebec Regional Council considers that revealing the
complainant’s full name, and the repetition of this information throughout the
December 9 broadcast of Galganov in the Morning, was merely vindictive and served
no public interest whatsoever. By violating the complainant’s overriding right to
privacy in this case, the broadcaster has breached Clause 6 of the CAB Code of Ethics
as well as the spirit of Article 4 of the RTNDA Code of Ethics.

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. The Council recognized the special role of the broadcasters to the public
and, in CFOX-FM re the Larry and Willie Show (CBSC Decision 92/93-0141, August 30,
1993), established the principle that the CBSC will review broadcasters not only as to
their respect of the Codes but also as to their responsiveness to the complainant. In that
case, they laid out the rationale for this direction, which has since been applied in
every adjudication.

In the CRTC’s Public Notice relating to theCanadian Broadcast Standards Council (Public Notice CRTC 1991-90), the Commission notedthat one of the three major areas of responsibility of the CBSC was ‘to provide ameans of recourse for members of the public regarding the application of thesestandards’ (p. 5, reiterated in the Manual of the CBSC at p. 5) and, in theConclusion thereto, it stated that it was ‘pleased to note … the strong educationalrole the CBSC has taken upon itself.’ (at p. 6) It further declared its satisfactionwith the complaint-resolution process established by the Council:

The Commission is satisfied that the complaints processthat has been established is a useful mechanism for resolving public concerns about theprogramming broadcast by private Canadian radio and television stations. … The Councilis committed to make every effort to resolve complaints at the level of the localbroadcaster.

The extent to which the CBSC has melded the educationaland communication processes can be seen in the following part of its section on GuidingPrinciples in the Manual, which provides the following (at p. 9):

Direct dialogue between a complainant and a broadcasteris the best means of resolving a concern. The Council will not consider a complaint untilit is satisfied that sincere and demonstrable efforts have been made by both parties todeal with the matter to their mutual satisfaction.

Thus, in the course of complaint resolution, the CBSCconsiders that it is firmly within its mandate to evaluate not only the complaint itselfagainst the standards established by the various Codes which it administers but also theresponsiveness of the broadcaster in dealing with the viewer or listener.

In CFTO-TV re Newscast (Pollution) (CBSC Decision 92/93-0178,
October 26, 1993), the broadcaster’s representative did not respond to the substance
of the complaint at all, preferring to send the complainant a transcript of the program
and advising him to contact the CBSC if he wished to carry the matter further. The Ontario
Regional Council was of the view in that case that the broadcaster had “not made any
effort to respond to the complainant’s concerns, much less ‘to resolve the issue
to the complainant’s satisfaction.’ In the Regional Council’s judgment, the
station’s response was dismissive of the complainant’s concerns and ignored the
complainant’s willingness to resolve the matter at the station level, before
approaching the CBSC.” The station was found to be in breach.

In this case, no response appears to have been sent to the complainant
regarding this complaint. A courtesy call which the President of the broadcaster had
committed to make to the complainant apparently did not occur. The Council considers this
lack of responsiveness egregious, given the nature of this complaint. It finds that the
cavalier disregard of the broadcaster’s obligation of responsiveness a breach of the
CBSC’s standard of responsiveness.

Content Of the Announcement of the Decision

The station is required to announce this decision forthwith, in the
following terms, during prime time and, within the next thirty days, to provide
confirmation of the airing of the statement to the CBSC and to the complainant who filed a
Ruling Request.

The Canadian Broadcast Standards Council has found that CIQC-AMbreached provisions of the Canadian Association of Broadcaster’s Code of Ethicsin its broadcast of Galganov in the Morning on December 9, 1997. In theCouncil’s view, personal attacks by the host and callers to the show directed at anindividual who filed a complaint about the show was neither fair nor proper. Moreover, thedisclosure and repetition of the complainant’s name on air violated her right toprivacy. The Council has also found that, by refusing to respond to the complainant’sletter, CIQC-AM was dismissive of the complainant’s concerns and, therefore, inbreach of the Council’s standard of responsiveness.

This decision is a public document upon its release by the Canadian Broadcast Standards Council.