CITY-TV re movie Eclipse

ONTARIO REGIONAL COUNCIL
(CBSC Decision 97/98-0551)
A. MacKay (Chair), R. Stanbury (Vice-Chair), R. Cohen (ad hoc), P. Fockler, M. Hogarth and M. Ziniak

THE FACTS

On January 21, 1998 at 9:00 pm, CITY-TV (Toronto) aired a Canadian
movie entitled Eclipse. This Jeremy Podeswa-directed feature film explored many
facets of human sexuality. Themes dealt with in the movie included homosexuality,
prostitution, adultery and juvenile sexuality. Not surprisingly, the movie contained many
scenes involving nudity and sexually explicit dialogue.

The movie was preceded by a viewer advisory in both visual and audio
format which stated: “Viewer discretion is advised. Some scenes contain nudity,
violence, adult situations and coarse language.” This viewer advisory was rebroadcast
before each commercial break throughout the movie. In addition, an on-screen icon,
displayed at the beginning of the movie and after an hour of broadcast, rated the movie as
“18+”.

On January 23, 1998, a viewer wrote a letter of complaint to the CBSC
stating that:

On January 23, 1998, a viewer wrote a letter of complaint to the CBSC stating that:

I wish to lodge a complaint about a movie which was shown on City TV Wed., January 21. The movie was entitled “Eclipse” and was aired at 9:00 pm.

This movie had several sexual scenes and conversations between men and women.

There was a particular scene where two males were in bed together and talked about the removal of the aftertaste of ejaculate.

There were several scenes that were offensive to me. We consider ourselves quite liberal in our views and can tolerate a lot, but this movie went too far. Children could have easily run into this garbage, let alone adults.

I am appalled that this movie was aired on City TV. I appreciate any help you can give the public with respect to this airing and will be available to answer any questions you might have.

On February 6, 1998, CITY-TV’s Program Director responded to the
complainant with the following:

I am writing in response to your recent email to theCBSC.

First, a bit of background on our programmingphilosophies. We have always taken a strong stance against gratuitous violence andespecially anything that features women in violent unconsenting sexual situations. We havealways been at the vanguard of sex-role portrayal at Citytv and, in fact, are therecipients of a couple of major awards in this area.

Our philosophy has always been to select films and programs that willappeal to our urban skewing adult viewers. Whenever possible, Citytv attempts to showfilms in their entirety rather than have to make major edits which seriously alter afilm’s integrity. Over the years, we have developed a relationship with our audiencethat we take very seriously. We try to treat our viewers in a mature and responsible wayand offer them the tools (through viewer advisories, ratings icons, etc.) to choose forthemselves whether they or their children should watch a particular film.

The movie ECLIPSE is a Canadian movie directed by an award-winningyoung Canadian director and was featured at the 1994 Toronto International Film Festival.The theme of the movie might be simply stated as “what goes around, comesaround”. In the film, sexual activity circulates – giving people something to share,making communication possible. It is set against the backdrop of increasing publicdelirium surrounding a solar eclipse in Toronto. The movie certainly was adult in itsorientation. We, therefore, ran advisories at the top of the movie and at each commercialbreak advising people of the content of the movie and offering them the chance to choosewhether they would like to watch or not. In addition the ratings icon of 18+ appeared atthe top of the movie and at each hour. The movie did not begin until 9:00pm, which is theaccepted watershed hour and well after children should be up alone watching television.The content of the movie, while sexual in nature, was all consensual, never totallyexplicit and never violent in any way.

The complainant was unsatisfied with the broadcaster’s response
and requested, on February 26, 1998, that the CBSC refer the matter to the appropriate
Regional Council for adjudication

The CBSC’s Ontario Regional Council considered the complaint under
Clause 4 of the CAB Sex-Role Portrayal Code as well as Clause 3 of the CAB
Voluntary Code Regarding Violence in Television Programming.
The texts of these
clauses read as follows:

Sex-Role Portrayal Code, Clause 4 (Exploitation)

Television and radio programming shall refrain from theexploitation of women, men and children. Negative or degrading comments on the role andnature of women, men or children in society shall be avoided. Modes of dress, camera focuson areas of the body and similar modes of portrayal should not be degrading to either sex.The sexualization of children through dress or behaviour is not acceptable.

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

CAB Violence Code in Television Programming, Clause 3 (Scheduling)

3.1.1 Programming which contains scenes of violence intended for adultaudiences shall not be telecast before the late evening viewing period, defined as 9 pm to6 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.

3.2 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.

The Regional Council members viewed a tape of the program in question
and reviewed all of the correspondence. The Council considers that the program in question
does not violate either of the Codes mentioned above.

The Ontario Regional Council has no difficulty in concluding that Eclipse
was controversial, both in its subject-matter and in its presentation. By accepting this
as a fair characterization of the movie, the Council does not, however, conclude that the
film should not have been aired. In general, the CBSC has long held that the basic general
principle of freedom of expression will militate in favour of a broadcast, whether
controversial or otherwise, except in those circumstances in which some overriding
standard imposed by the private broadcasters in their Codes supersedes. In a decision of
the Quebec Regional Council which also dealt with a controversial documentary film with a
sexual theme, namely, CFJP-TV (TQS) re “Quand l’amour est gai” (CBSC
Decision 94/95-0204, December 6, 1995), the Quebec Regional Council expressed this
perspective in the following terms:

The recognition of thisinfluential role of broadcasters has resulted in burdens imposed both from the heights ofParliamentary statute to the broadcasters’ own self-regulatory instruments. Thus the BroadcastingAct provides, among other things, in Section 3(1)(d) that

(ii) encourage the development of Canadian expression by providing awide range of programming that reflects Canadian attitudes, opinions, ideas, values andartistic creativity…

CABCode of Ethics which encourages the “presentation of news and opinion on anycontroversy which contains an element of the public interest.” That same articleprovides that such “healthy controversy is essential to the maintenance of democraticinstitutions” and the Regional Council has little difficulty in concluding that thesubject of the documentary program in question falls into the realm of “healthycontroversy”. The Council further acknowledges that this program will not beeveryone’s “cup of tea” and it assumes that some members of society wouldbe offended by the film. That is not, however, the criterion by which the programmust be judged. It is rather that the film discusses a controversial subject which is anacknowledged component of Canadian society. By the nature of the medium, this discussionoccurs in images rather than in words alone. Nothing else could be expected and thebroadcaster can hardly be faulted on this account.

The Quebec Regional Council confirmed Canadian private
broadcasters’ right to cater to the tastes of some with programming which may be
offensive to others in CFJP-TV (TQS) re été sensuel (CBSC Decision 95/96-0233,
August 14, 1998). In that decision, the Council considered whether an erotic film aired as
a part of TQS’s late-night series Bleu Nuit was exploitative.

The Quebec Regional Council takesno issue with the assertion by the complainant that the film in question is an eroticfilm. The only question, however, which it is called upon to decide here is whether thefilm is exploitative. The other contentions of the complainant which relate towhether this film or other such films are “idiotic” and whether or not thebroadcasting of such a film is “disrespectful of people like myself” are marketingquestions. They relate to the broadcaster’s choice of material to air. If there is nobreach of a Code (or, of course, the Broadcasting Act or Regulations or other lawsof the land), the broadcaster is entitled to put the film on its airwaves. In aworld which has become increasingly oriented toward niche broadcasting, any station ornetwork appreciates that its choices will never appeal to everyone. This does notmean that such choices should not be made but only that, in making such choices, thebroadcaster knows that only some, but not all, of the public will be pleased. It goeswithout saying that the broadcaster hopes always to make the correct choices but, where noCode is breached, the viewer is always free to go elsewhere. That is, in the end, theviewer’s only option and it is, from society’s perspective, a fair option,provided that society’s codified values have not been breached.

In this case, while the Ontario Regional Council understands that the
complainant was offended by the explicitness of some aspects of the film, it cannot find
that there is any way in which the broadcast of Eclipse has violated any
broadcaster Code provision. It is explicit but not exploitative. As to the aspersions
regarding the quality of the film, the Council does not ever comment. Such matters
are, of course, purely subjective and beyond the purview of the Codes and the Council.
They must, in fairness, be solved by the on-off switch in circumstances in which, as here,
the broadcast comes well within the purview of the broadcaster’s freedom of
expression.

Moreover, it is for precisely this reason that Canada’s private
broadcasters wished to balance freedom of expression and the expectation that not
all persons will wish to watch all programming. They did this by establishing a watershed
hour of 9 p.m. for programs containing violent content intended for adult viewing, a
principle which broadcasters have been entirely willing to extend with greater and greater
frequency to all genres of programming containing other types of material thought not
palatable to all. They did this by providing a system of viewer advisories, again
originally intended for programming with violent content but extended more and more
frequently by broadcasters to other forms of content not suitable to all. They did this by
establishing a classification system and on-screen icons. The presence of all of the
foregoing categories of information are designed to enable viewers to make the choices
suitable for their homes and families even in circumstances where there is no breach of
a Code
.

The Council notes that CITY-TV took every reasonable step to
diminish the likelihood that anyone who might be offended by the film would be likely to
be exposed to it. In the first place, CITY-TV aired the film after the generally-accepted
“watershed hour” for adult programming (which coincides with the watershed
established in the Voluntary Code Concerning Violence in Television Programming for
programming containing scenes of violence intended for adult audiences). The Council notes
that the broadcaster alerted viewers to the content of the movie with an advisory which,
although judicious, was not technically required by any Code. Moreover, these
advisories were shown after every commercial break, in other words, more frequently
than would have been required even in circumstances where the programming would have
contained elements of violence targeted at adult viewers. And, finally, the Council notes
that the movie received the highest classification, namely, “18+” and an icon
displaying this rating was shown at the beginning of the film and then at the top of each
hour throughout the movie. The broadcaster could not have done more to ensure that
vigilant viewers would be appropriately advised of the film’s content.

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 extensively, thoughtfully, pointedly 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.