CITY-TV re Fashion Television (Adult Film Stars Photo Shoot)

ONTARIO REGIONAL COUNCIL
(CBSC Decision 97/98-1261)
A. MacKay (Chair), R. Stanbury (Vice-Chair), R. Cohen (ad hoc),P. Fockler and M. Hogarth

THE FACTS

On August 8, 1998, CITY-TV’s Fashion Television, which airs
at 6:30 p.m. in Toronto, included a segment about a fashion photo shoot featuring three
female “adult film stars”. The two-and-half-minute report was about an upcoming
feature in an L.A. fashion magazine exposing links between the fashion and pornography
industries. The segment included scenes of the photo shoot with the porn stars, who were
photographed both nude and in high fashion clothing, as well as clips from interviews with
each of the women. The scenes of nudity were very brief, much more time
having been allocated in the report to the scenes of the porn stars in high fashion
clothing, commenting on how strange it felt to be working with clothes on. Where nudity
was shown, the models were seen from afar or were strategically partially obscured by the
photographer and his equipment.

The Letter of Complaint

On August 11, a viewer wrote the following letter to the owners of the
station, the Secretary General of the CRTC and the Senior Vice-President of
Alberto-Culver:

Congratulations, City TV! In one segmentof Fashion Television, broadcast on Saturday August 8, you have managed to legitimisepornography, denigrate women, vilify healthy human sexuality and outrage your audience -all at a time when young children are around and quite possibly watching your show.Exactly what was your point in showing completely naked (women only) porn”stars” getting ready to “pose” for purely prurient reasons?

How on earth did such content escape the notice of the CRTC, not oncebut twice, as I found out that this “program” was a re-run? And what will theCRTC do to assure the viewing public that such blatant, disgusting, offensive, sexist,pornographic, sensationalist material is not broadcast in future?

For my part, I will not be purchasing any more Alberto-Culver products,not even my favourite V05 conditioner or Alberto mousse. Apparently, to the producers ofthis “show”, morality is of no concern, so the consumer has no recourse but tohit where it hurts – the wallet.

A copy of the complaint was in due course forwarded to the CBSC.

The Broadcaster’s Response

The Program Director of CITY-TV responded to the complaint on September
2, 1998 with the following:

I am writing in response to your letterto the CRTC, a copy of which has been forwarded to us by the CBSC.

Fashion Television (FT) has been airing on Citytv at 6:30pm since 1986and is one of Canada’s most successfully syndicated shows appearing in more than 120countries around the world not to mention nominated for numerous awards. It is not simplya show about models. It may be your perception that it exploits women but it is certainlynot its intent. We report on fashion shows and fashion shoots or layouts as they happenand we do not equate nudity with pornography or degradation. Fashion and photography toour mind are art and we would no more condemn designers and photographers and theirstylists than we would any other artist who chooses to represent the human form.

It would be a disservice to the models and photographers to assume thatthey are not aware of their roles both in society and on the runway. The fashion andphotography shows we report on are artistic expressions of the human form, not sexist andmay we suggest that most of our urban skewing adult audience believes the same.

A show about style is also about changing stereotypes which is whatthis story was all about. The item was about one aspect of fashion and one magazine’sopinion on how fashion and sex relate. Black Book is a legitimate L.A. magazine andwe report on new magazines and new points of view all the time. This was just one of thoseviews. It did not “legitimize pornography” or “denigrate women” as yousuggest. Nor have we “outrag(ed)” our audience, since yours is the only letteror call of complaint.

There is nothing pornographic or exploitative about FT. Pornographyimplies the exploitation of the weak by the strong in an obscene or prurient context.These elements are utterly absent in our material. We have, in fact, done many stories onthe power of women and ultimately believing in your inner self. FT has never purportedthat the outside image of clothes and makeup is the most important part of anyone’sself worth. We have had on feminists such as Gloria Steinem and Naomi Wolfe discussingthis and other topics. Their views on feminism did not seem to clash with their concept offashion – confident women who are cognizant of their self worth despite fashion andbecause of it. We have run stories, for example, on super model Gabrielle Reese whodiscussed the importance of self-esteem based on intelligence, education etc. Anotherformer model, Matouchka, revealed how she dealt with her breast cancer and theindustry’s reaction to her after a mastectomy.

I reviewed the report in question with the supervising producer of theshow. We agree one scene in the story that contains nudity does not belong and issuperfluous to the subject matter. We will be removing that scene from all futurebroadcasts of this episode.

I am sorry you find this program disturbing and apologize that weinadvertently offended you. I hope I have been able to explain our position and allay yourconcerns both with the above letter and the direct action we are taking in response toyour note.

The complainant was unsatisfied with the broadcaster’s response
and requested, on September 16, that the CBSC refer the matter to the appropriate Regional
Council for adjudication.

THE DECISION

The CBSC’s Ontario Regional Council considered the complaint under
the Code of Ethics of the Canadian Association of Broadcasters (CAB), the Violence
Code
and the Sex-Role Portrayal Code. The relevant clauses of those Codes read
as follows:

CAB Code of Ethics, Clause 15 (Sex-Role Stereotyping)

Recognizing that every person has aright to full and equal recognition and to enjoy certain fundamental rights and freedoms,broadcasters shall endeavour to ensure, to the best of their ability, that theirprogramming contains no abusive or discriminatory material or comment which is based onmatters of race, national or ethnic origin, colour, religion, age, sex, marital status orphysical or mental handicap.

Sex-Role Portrayal Code, Clause 4 (Exploitation)

Television and radio programming shallrefrain from the exploitation of women, men and children. Negative or degrading commentson the role and nature of women, men or children in society shall be avoided. Modes ofdress, camera focus on areas of the body and similar modes of portrayal should not bedegrading to either sex. The sexualization of children through dress or behaviour is notacceptable.

Guidance: “Sex-ploitation” through dress is one areain which the sexes have traditionally differed, with more women portrayed in scantclothing and alluring postures.

Violence Code, Clause 3 (Programming)

3.1.1 Programming which contains scenesof violence intended for adult audiences shall not be telecast before the late eveningviewing period, defined as 9 pm to 6 am.

3.1.2 Accepting that there are older children watching television after9 pm, broadcasters shall adhere to the provisions of article 5.1 below (vieweradvisories), enabling parents to make an informed decision as to the suitability of theprogramming for their family members.

3.1.3 In order to provide viewers with the benefit of Canadian programclassification and viewer advisories not available on foreign distant signals,broadcasters who have CRTC-permitted substitution rights over programming which isimported into their markets before the late evening viewing period, may employsubstitution, notwithstanding article 3.1.1.

3.1.4 Broadcasters shall exercise discretion in employing substitutionin accordance with article 3.1.3 and shall at no time avail themselves of substitutionrights over programming which contains gratuitous violence in any form or which sanctions,promotes or glamourizes violence.

3.1.5 Broadcasters shall take special precautions to advise viewers ofthe content of programming intended for adult audiences which is telecast before 9 pm inaccordance with article 3.1.3.

(Note: To accommodate the reality of time zone differences, andCanadian distant signal importation, these guidelines shall be applied to the time zone inwhich the signal originates.)

3.2 Promotional material which contains scenes of violence intended foradult audiences shall not be telecast before 9 pm.

3.3 Advertisements which contain scenes of violence intended for adultaudiences, such as those for theatrically presented feature films, shall not be telecastbefore 9 pm.

Violence Code, Clause 5 (Viewer Advisories):

5.1 To assist consumers in making theirviewing choices, broadcasters shall provide a viewer advisory, at the beginning of, andduring the first hour of programming telecast in late evening hours which contains scenesof violence intended for adult audiences.

5.2 Broadcasters shall provide a viewer advisory at the beginning of,and during programming telecast outside of late evening hours, which contains scenes ofviolence not suitable for children.

Violence Code, Clause 6 (News and Public Affairs Programming), in
pertinent part:

6.3 Broadcasters shall advise viewers inadvance of showing scenes of extra-ordinary violence, or graphic reporting on delicatesubject matter such as sexual assault or court action related to sexual crimes,particularly during afternoon or early evening newscasts and updates when children couldbe viewing.

A Bit of History

This is not the first time the Council has had to deal with complaints
regarding Fashion Television. In CITY-TV re Fashion Television (CBSC
Decision 93/94-0021, February 15, 1994), a viewer was offended by the exposure of
women’s breasts as a part of the fashion report. The Council concluded that this was
not per se a breach of the Code.

The program was typical of depictions ofinternational fashion shows, validity portraying fashion news. The fact that CITY-TV aireda story on the place of women’ s breasts in today’s fashion was notexploitative. … The Council felt that the concern of the complainant may be with whatthe international fashion designers are doing, but Council’s view was that thereporting of those design trends did not exploit women or present a negative or degradingportrayal of women. As a result, the program did not constitute a breach of the Code.

In CITY-TV re Fashion Television (CBSC Decision 93/94-0176, June
22, 1994), the complainant accused a different episode of Fashion Television of
being a form of pornography. The Council disagreed with this accusation.

All members present agreed thatCITY-TV’s Fashion Television was entertainment which highlighted the fashion industryin a manner similar to other programming on the same subject. They felt it did not exploitwomen or present a negative or degrading portrayal of them. … The Regional Councilmembers further noted that the complainant’s concern was really the fashion industryin general, a concern which the station cannot be expected to address.

In CITY-TV re Fashion Television (CBSC Decision 949-0089, March
26, 1996), the Ontario Regional Council was once again called upon to deal with the
combined issues of nudity, art and fashion. The Fashion Television episode in
question showed, among other matters, the work of a leading make-up artist and the
photographic career of a former model, occasioned by the publication of a book of her
photographs of other models. The latter segment included a half dozen photographs from the
book which showed some female nudity, including a full frontal shot, and one photo of two
female models kissing. A viewer felt that it was highly inappropriate for such sexually
explicit material to be shown on television. The Council disagreed.

Furthermore, the Council does notconsider that the showing of partially clothed or even naked models is equivalent topornography or sexual explicitness. Without getting into fine legal definitions, theRegional Council considers it sufficient to observe that the Oxford English Dictionarydefines pornography as “Description of the life, manners, etc., of prostitutes andtheir patrons; hence the expression or suggestion of obscene or unchaste subjects inliterature or art.” There is, in other words, an element of obscenity or pruriencerequired to elevate mere corporal images to the level of pornography. That element isutterly absent in the material complained of.

While the Council notes the irony of its previous reliance on the Oxford
English Dictionary
definition of pornography in light of this complaint about a
segment involving “porn stars”, it also wishes to point out that, since then,
whenever it has been appropriate to consider the definition of pornography, it has
referred to the Supreme Court of Canada’s decision in R. v. Butler for
guidance. In that decision, the court defined three categories of pornography when it
stated that “explicit sex that is not violent and neither degrading or dehumanizing
is generally tolerated in our society and will not qualify as the undue exploitation of
sex unless it employs children in its production.”

In any event, pornography in the public law sense is not the issue
here; rather, the issues to be considered by the Council in relation to this complaint are
whether the Fashion Television segment in question was exploitative or presented a
negative or degrading view of women such that it should not have been aired at all or
whether the segment included a degree of sexual explicitness inappropriate for its
scheduling and the manner in which it was presented.

The Content of the Segment

On the basis of its experience with numerous episodes of Fashion
Television
evaluated by it in the past or even the present episode, the Ontario
Regional Council agrees with the broadcaster’s contention that Fashion Television
reports on “fashion news”. In this regard, the Council’s decision in CTV
re News Item (Topless in Public)
(CBSC Decision 96/97-0235 and 0242, February 20,
1998) is relevant. In that decision, the Council dealt with complaints about news reports
on the controversy surrounding women exposing their breasts in public. The reports
included scenes of topless women or women in bathing suits. One complainant had described
CTV News’ coverage of the controversial issue as “one of the most pornographic,
dehumanizing, degrading and exploitative media coverages of women that I have seen.”
The Council stated that it:

has no hesitation in finding that thecoverage of the topless issue by CTV was entirely justified. This issue, like many othersin the news, was controversial, but it was also Canadian, relevant to other Canadians(whichever side of the substantive issue they might favour) and entitled to coverage,including the expected visual component. Moreover, the Council can find nothingin the CTV coverage itself which can be described, to use the words of the complaints, asdegrading, dehumanizing, exploitative or devaluing. Moreover, there is certainly nothingin the coverage which implies that the Jacob behaviour or that of any of the other personstaking advantage of the Court ruling was normative. As to the acknowledgment of awoman’s breasts as sexual, it would be hard to argue the contrary position. It isperhaps for this reason that, in ordinary social situations, breasts, like male and femalegenitalia, are generally clothed. There is nothing in CTV’s coverage which createsany of the circumstances described by the complainants. To the contrary, thenetwork’s coverage was, in the view of the Council, tasteful, conservative, unexploitativeand fair.

In yet another decision which dealt with a complaint about the
broadcast of alleged “soft-porn” during early evening hours, namely CHCH-TV
re an episode of Baywatch
(CBSC Decision 94/95-0045, August 23, 1995), the Council
concluded that the depiction of men and women in bathing suits on a beach did not amount
to “sex-ploitation”.

Baywatch is set on a beach and focuses on the lifeguards who work on this beach. Accordingly, it is reasonable to expectthat characters depicted in this program will often be seen in swimming attire, i.e.bathing suits. The Council does not consider that it is stretching the point to suggestthat the producers of the program have chosen this setting in the belief that youngpersons in bathing suits may be likely to attract audience attention. This, however, isthe prerogative of producers, who are entitled to look for formulas to create commerciallysuccessful television programming. The only issue for the CBSC is to determine whether ornot the choice in any particular case “crosses the line” and breaches one of theCodes administered by the CBSC.

In this case, the Council agrees with the broadcaster that “theparts of the anatomy that are exposed when wearing a bathing suit cannot reasonably bedescribed as ‘private parts’.” Unless and until genitalia become publiclyexposed, these anatomical parts remain private. The Council acknowledges that thetaste and viewing habits in some, if not many, homes would lead parents to wish to avoidprograms such as Baywatch but the view of the Council is not that such programmingis so inherently unacceptable as not to be entitled to be shown on television. In thisconnection, the CBSC generally considers that the depiction of men and women in bathingsuits does not in and of itself constitute exploitation in violation of the Sex-RolePortrayal Code, or “soft-porn” as contended by the complainant. The Councildoes not consider that the mere showing of partially clothed persons can, by anyreasonable definition, be said to be equivalent to pornography, whether hard or soft.

In accordance with its previous jurisprudence, the Council does not
find that the content of the broadcast of Fashion Television in question was in any
way exploitative of or degrading to women.

Scheduling

In addition to her general concerns relating to the substance of the
show, the complainant expressed concern over the show’s scheduling. In this regard,
the Council considers it appropriate to make some general comments regarding the
“watershed” hour, set at 9:00 p.m. in the Violence Code. In CITY-TV re
Ed the Sock
(CBSC Decision 94/95-0100, August 23, 1995), the CBSC had its first
opportunity to examine issues of principle relating to the watershed hour. The Ontario
Regional Council there observed, among other things, that

In its literal sense, [the watershed],of course, denotes the line separating waters flowing into different rivers or riverbasins. Popularly, the term has been applied to threshold issues but the literal meaningof the word gives the best visual sense of programming falling on one side or the other ofa defined line, in this case a time line. Programming seen as suitable for children andfamilies falls on the early side of the line; programming targeted primarily for adultsfalls on the late side of the line. It should be noted that the definition of that timeline varies from country to country, from 8:30 p.m. in New Zealand to 10:30 p.m. inFrance. (Great Britain, Finland, South Africa and Australia all share the Canadian choiceof 9:00 p.m. as the watershed.)

In Canada, the watershed was developed as a principal component of the1993 Violence Code, establishing the hour before which no violentprogramming intended for adult audiences would be shown. Despite the establishment of thewatershed for that purpose, the Council has reason to believe that broadcastersregularly consider this hour as a rough threshold for other types of adultprogramming. …

In CFMT-TV re an Episode of “The Simpsons” (CBSC
Decision 94/95-0082, August 18, 1995), the Ontario Regional Council elaborated on the
significance of the watershed hour and the tendency for broadcasters to apply it not only
to programming containing violent material intended for adult audiences but also
programming containing other kinds of material deemed by the broadcaster to be more
suitable for mature viewers.

There has been a tendency, since theintroduction of the 9:00 pm watershed hour for everyone to treat that moment as the GreatDivide. The community has tended to consider that all post-watershed programmingfalls into the “adults only” category and that all pre-watershedprogramming falls into the “suitable for everyone, including youngchildren” category. Neither generalization is wholly accurate.

… material broadcast in the early evening falls within “the richbroadcasting fare” mentioned above and should be vetted by parents as to itssuitability in their homes.

In this case, the Council does not, in any event, find that any of the
descriptions or scenes in the episode of Fashion Television in question fall within
the category of programming “intended for adult audiences” thereby triggering
the application of the scheduling provisions of the Violence Code (which are also
generally used by broadcasters and the CBSC for all types of adult programming).

Viewer Advisories

As with the scheduling provisions in the Violence Code, the
provisions relating to viewer advisories in that Code have also been generally applied not
only to violent content but also to other adult content. Under the Violence Code,
there are three instances in which some type of warning to viewers is required. These were
explained in CIII-TV re Before It’s Too Late (CBSC Decision 95/96-0172,
October 21, 1996). In that case, the broadcaster had aired a program sponsored and
produced by World Wildlife Fund Canada (WWF) which, according to the complainant,
contained “grotesque scenes” which “depicted scenes of tortured animals,
describing the details of torture”. The Council concluded that while Clause 5 of the
Violence Code did not apply, Clause 6 did:

Basically, viewer advisories arerequired to be aired in one of the three following circumstances. The first of these,envisaged in Article 5.1, requires a viewer advisory “at the beginning of, and duringthe first hour of programming telecast in late evening hours which contains scenesof violence intended for adult audiences [emphasis added].” The second,anticipated in Article 5.2, requires that “Broadcasters shall provide a vieweradvisory at the beginning of, and during programming telecast outside of late eveninghours, which contains scenes of violence not suitable for children.” Thethird circumstance arises in the area of news and public affairs programming. Article 6.3provides that “Broadcasters shall advise viewers in advance of showing scenes of extra-ordinaryviolence … particularly during afternoon or early evening newscasts and updateswhen children could be viewing [emphasis added].”

It is clear that Before It’s Too Late is not the type ofprogramming envisaged in Article 5.1, which is post-watershed and intended for adultaudiences. The question then is whether an advisory would have been required pursuant tothe terms of Article 5.2. While it is obvious that the WWF program fits the anticipatedtime-frame, the Council does not believe that it applies to the present case. While the ViolenceCode has only been in effect since January 1, 1994, and will have the opportunity tobe interpreted in more detail over the years, Article 5.2 has, in the past two and a halfyears, been viewed as being reserved for programming of a dramatic nature. Whilethere may at some time be circumstances in which the CBSC will see fit to extend theprovisions of Article 5.2 beyond dramatic programming, the Ontario Regional Council doesnot believe that this is the matter in which it ought to do so as Article 6.3 contains aseparate provision dealing with viewer advisories under the heading “News And PublicAffairs Programming”.

Similarly, the Council considers that Clause 6 of the Violence Code
is the appropriate provision to be considered in this case. This provision states that
“Broadcasters shall advise viewers in advance of showing scenes of
extra-ordinary violence, or graphic reporting on delicate subject matter such as sexual
assault or court action related to sexual crimes [emphasis added]”. This provision is
to be contrasted with Clause 5 which requires that “Broadcasters shall provide a
viewer advisory …” which has come to have set language and often a set format.

In this case, no stand-alone “advisory” was provided or would
even have been required pursuant to the Code since, in the view of the Council, the brief
scenes of nudity did not amount to “graphic reporting on delicate subject
matter [emphasis added]”, as required by Clause 6; however, the Council considers
that the broadcaster, thoughtfully, did provide sufficient warning and reaction
time for viewers to make an informed choice as to whether they wished to continue to watch
the program. The Council notes that the report was constructed in such a way as to
minimize viewership by those who might be offended by the subject matter and associated
scenes. The report began with the following introductions by each of the models dressed in
“street attire”:

First model: I’m JanineLindemulder and I think you would know me from my adult films.

Second model: I’m Jenna Jameson and I’ve done verymany adult films.

Third model: My name is Julie Ashton and I’m an adult filmstar. I’ve never done anything like this before, so it’s exciting.

The report then continued with the following voice-over by the reporter
while scenes of the “high fashion” part of the photo shoot were shown:

Reporter: In terms of getting excited, you’d figure thatmost porn stars would have already done just about everything there is to do. Butthat’s exactly the kind of stenotype Black Book magazine set out to squash recentlywhen they set up a high fashion photo shoot using three of the biggest stars in the adultfilm world as their fashion models.

The first scenes of nudity occur more than 1 minute 40 seconds into the report, providing ample time for viewers to exercise their freedom to choose what is palatable to them via remote control dial-out or the on/off switch. The CBSC’s Mandate In light of the complainant’s query as to “how on earth did such content escape the notice of the CRTC”, the Council considers it appropriate to note that its mandate, similarly to the CRTC’s, does not include the monitoring of programming prior to broadcast. In CILQ-FM re the Howard Stern Show (CBSC Decision 97/98-0487, 488, 504 and 535, February 20, 1998), the Council took the opportunity to explain aspects of its role in the application of broadcast standards. It stated: It is neither the role nor duty of the Canadian Broadcast Standards Council to tell Canadians what they can or cannot seeand hear on their radios and television sets. In the aftermath of the first Sterndecision, those who have in various fora accused the Council of attempting to act as acensor, have missed the point of the Council's raison d'être.

The CBSC has been assigned the responsibility to assess, on the basisof complaints by the public, whether its member radio and television stations have in factadhered to the standards and practices which the broadcasters themselves have adopted asacceptable codes of conduct. Whether or not CBSC decisions, either in favour of, oragainst its broadcast members, are unpopular with the industry or the general public isnot at issue.

The CBSC’s mandate is one of responsiveness to public complaints and not censorship by way of anticipation of potential Code breaches. In the event of the expression of concern by one or more members of the public, the CBSC will become involved in the resolution of a complaint; however, it will always await such a complaint before becoming involved in a programming issue. In that sense, therefore, members of the public should be aware that all programming will escape the notice of the CBSC (or the CRTC, which operates on the same basis) unless and until it becomes the subject of a written complaint. Canadian society is, on balance, far better served that way.

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.