CJOH-TV re an episode of Ellen

ONTARIO REGIONAL COUNCIL
(CBSC Decision 96/97-0095)
A. MacKay (Chair), R. Stanbury (Vice-Chair), R. Cohen (ad hoc), P. Fockler, M. Hogarth, M. Ziniak

The Facts

Ellen is a weekly half-hour American situation comedy which focuses on the life of
bookseller Ellen Morgan (played by Ellen DeGeneres). The program is broadcast in
Ottawa on CJOH-TV. The January 22, 1997 episode included a subplot in which Joe, an
employee in Ellen's bookstore, tries to sell jokes to a stand-up comedian. It is this subplot
which gave rise to the complaint.

Joe boasts of having great success with certain jokes in a Niagara Falls comedy club and
this enables him to sell two jokes to a stand-up comedian for $10 each. In a later scene,
the comedian is heard giving the following punch line: “And then the guy from
Newfoundland says 'Get away from him, that caribou's spoken for.'” He receives no
laughter or applause from the members of the audience, except Joe. When Joe sees that
he is the only one laughing, he tries to get a reaction from the audience (his remuneration
for the joke depends on it) by saying “It's so true. Those Newfies are so stupid…” The
comedian then follows up with a one-liner purchased from Joe: “The sign when you get
there 'Entering Newfoundland', why?”. Joe laughs loudly (again alone), then makes the
sound of a cash register and says to his companion at the table “Another sawbuck for Joe.”

The subplot ends with the comedian losing his spot in the comedy club. In the show's last
scene (shown only in a small corner of the screen while the credits roll), the comedian is
now performing at 'Canuckleheads' in Vancouver, B.C. This time, the caribou joke
receives huge applause.

The Letter of Complaint

A viewer wrote to the CRTC on January 23 and this complaint was in turn forwarded to the
CBSC. His letter read in part as follows:

I must express my strong condemnation to the derogatory references contained in the
program regarding “Newfoundland” and “Newfoundlanders”. These references promote a
disparaging stereotype which, even in comedy, is not acceptable for broadcast. It would be
unlikely that contemptuous references based on race or religion would be broadcast and it
is equally unsuitable in these circumstances. A program which characterizes any segment
of society as “stupid” is offensive and bigoted.

Newfoundlanders take pride in, and are renowned for, sharing their wonderful sense of
humour. However, they are always keenly aware of the difference between laughing “with”
someone and laughing “at” someone. Obviously the producers of this “comedy” program
need to be informed of this nuance.

The Broadcaster's Response

The broadcaster's Program Manager responded to the complainant by letter dated
February 4. In her letter, the Program Manager stated:

Your concerns regarding “derogatory references contained in the program” are indeed taken
seriously by Baton Broadcasting Incorporated. Baton has taken action by forwarding a copy
of your letter to the Canadian distributor, asking that it be passed along to the production
company in the U.S.A.

The producers of the series and its star, Ellen DeGeneres, have publically [sic] apologized
to the people of Newfoundland. In their apology, they said “we are truly sorry if last night's
episode of ELLEN offended the people of Newfoundland… our efforts to entertain were truly
short-sighted and we apologize.”

Baton Broadcasting Incorporated has been an active participant in the development of the
V-chip classification system in Canada. Presently, many Baton stations, including CJOH,
are taking part in a nation-wide test of the Canadian V-chip system; we are proud to be a
part of this.

Thank you for having taken time to write; we hope your concerns have been adequately
addressed. It may interest you to know that all Baton stations are members of the Canadian
Broadcast Standards Council. The Council provides members of our viewing public with
a formal means to address concerns. If you feel your concerns have not been adequately
responded to, you have recourse to correspond with the Council. We have attached a
CBSC information brochure for your perusal.

The complainant was unsatisfied with this response and requested, on February 17 that
the CBSC refer the matter to the appropriate Regional Council for adjudication.

The CBSCs Ontario Regional Council considered the complaint under Clause 2 of the
CAB Code of Ethics, which reads as follows:

CAB Code of Ethics, Clause 2 (Human Rights)

Recognizing that every person has a right 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 their programming contains no abusive or discriminatory material or
comment which is based on matters of race, national or ethnic origin, colour, religion, age,
sex, marital status or physical or mental handicap.

The Regional Council members viewed a tape of the program in question and reviewed
all of the correspondence. The Council finds that the program in question does not violate
the CAB Code of Ethics.

The Content of the Program

The series in question is a comedy. The Council has recognized in previous decisions that
there is a distinction to be drawn between ethnic humour told in a comedic context and
disparaging comments made about certain ethnic groups in a serious context. This
distinction was first drawn by the CBSC in CHUM-FM re Sunday Funnies (CBSC Decision
95/96-0064, March 26, 1996). In that decision, the Council stated

There is an essential distinction to be drawn between the serious and humorous dialogue.
Each has its content limitations but what those limitations are will vary according to the
nature of the broadcast in question.

The Council believes that it is essential to draw a distinction between a broadcast which is
intended to be serious or at least leaves the impression that it intends to be serious and one
which clearly does not. It is not that the standard to be applied to the potentially offending
statement will be different. It is rather the question of audience perception. …

The situation is different where the context is clearly comedic. After all, where the audience
is given no reason to expect that the substance of the comments made is serious, their
attitude could reasonably be expected to be different. A remark which might reasonably be
assessed as abusive in a serious context and thus in breach of the Code of Ethics may not
be so viewed in the comedic environment.

Furthermore, humour is commonly based on national, ethnic, racial or gender traits, as often
as not related to background matters best-known to the comedian. Even stereotypes are
not unknown in such a context. Such issues cannot alone be the cause of a broadcast
sanction. They must be coupled with another defining criterion; namely, they must be
abusive or discriminatory.

In a comedic context, to amount to a breach of the human rights provision of the Code of
Ethics
, a comment must not merely be discriminatory, it must be abusively so. The point
was first made in the B.C. Regional Council's decision in CFOX-FM re the Larry and Willie
Show
(CBSC Decision 92/93-0141, August 30, 1993). In that decision, the Council
acknowledged that the station had told a series of Irish jokes during St. Patrick's Day week
but concluded that there was no breach of the Code in that

there was neither in implicit nor explicit terms any labelling of the Irish people as 'stupid' or
as 'Paddies'; the Irish people were not referred to derogatorily; and the hosts had used no
'abusive or discriminatory material or comment' in relation to Irish people.

The Ontario Regional Council came to a similar conclusion in both CHFI-FM re the Don
Daynard Show
(CBSC Decision 94/95-0145, March 26, 1996), where the Council dealt
with a “lightbulb” joke featuring “Jewish mothers”, and in CHUM-FM re Sunday Funnies
where the Council dealt with Polish jokes.

The Council notes that these decisions stand in stark contrast to the “Newfie joke” that was
the focus of the Quebec Regional Council's decision in CKTF-FM re Voix d'Accès (CBSC
Decision 93/94-0213, December 6, 1995). In that case, the Council found totally
unacceptable the joke told by the on-air host in which Newfoundlanders were described
as “trous de cul” (“assholes” in English).

The question, of course, is to determine which “ethnic” jokes or comments will be
understood as crossing the boundary of acceptability. There are those which are
sanctionable and those which, even if tasteless or painful to some, are not. It would be
unreasonable to expect that the airwaves be pure, antiseptic and flawless. Society is not.
Nor are individuals in their dealings with one another. Nonetheless, the airwaves are a
special and privileged place and those who occupy that territory are expected to play a more
restrained and respectful social role.

What may constitute the limits of acceptability in each challenged case will need to be
appreciated in its context. Certain cases will clearly fall on one side or the other of the
boundary. Others will lie uncomfortably on the line. The matter at hand was, however, free
of doubt; the depiction of “Newfies” as “assholes” was clearly unacceptable. Whether
intended seriously or in jocular fashion, the use of that term in reference to this or any
ethnic, racial, national or other discernible group was derogatory, abusive and discriminatory
and in violation of clause 2 of the CAB Code of Ethics.

The context in this case is that of a sitcom in which a story is told about a stand-up
comedian who must buy jokes to make a living. In the Council's view, the “Newfie joke”
used in the program was clearly intended to demonstrate the ineptitude of the joke-teller.
The Council also considers that the joke was for the most part harmless, if understandably
offensive to some; however, the added comment by Joe (“Those Newfies are so stupid…”)
could be understood as more directly provocative. When taken in context of the storyline
and the buffoonish joketeller–Joe is clearly incompetent and engaged in an obviously
desperate attempt to get some laughter from the audience in order to get paid for the joke
which the audience does not seem to find interesting, much less amusing–the Council
does not find that this comment was abusively discriminatory.

The Council notes that the broadcaster's letter states that the producers of Ellen
apologized for the episode stating that their “efforts to entertain were truly short-sighted”.
While this may appear as an acknowledgment that the comments made regarding
Newfoundlanders were inappropriate, it does not mean that the “short-sighted” comments
amount to a breach of the Codes. Broadcasters frequently respond to such audience
concerns; however, the question of whether a particular program issue amounts to a
breach of a Code is one which is decided by the Council. Since the Council does not
generally concern itself with matters of bad taste, on most such occasions an issue only
involving a point of taste will not constitute a breach of a Code. Thus, for example, a joke
in bad taste will not be found in breach if it contains no abusive or discriminatory material
or comment which is based on matters of race, national or ethnic origin, colour, religion,
age, sex, marital status or physical or mental handicap. The CBSC put this issue in the
following terms in CHTZ-FM re the Morning Show (CBSC Decision 92/93-0148, October
26, 1993):

In general terms, the CBSC is conscious of the fact that it must balance the right of
audiences to receive programming which is free of abusive or discriminatory material based
on sex and free of negative or degrading sexist comment, with the fundamental right of free
speech in Canadian society.

Broadcaster Responsiveness

The CBSC always recognizes the broadcaster's obligation, as a CBSC member, to be
responsive to complainants. In this case, the Regional Council considers that the
broadcaster's response, while not entirely unresponsive to the complainant's concerns,
could nonetheless have been more receptive to the points raised by the complainant. In
the Council's view, had the broadcaster been more responsive, the complainant might not
have returned a signed Ruling Request to the CBSC at all, thereby avoiding an
adjudication of the matter by the Council.

In another complainant adjudicated by the Council at the same meeting of May 8, 1997,
namely CIII-TV (Global Television) re an episode of Seinfeld (CBSC Decision 96/97-0074),
the Council considered that the written reply from the broadcaster was “on the edge” of not
fulfilling the obligation of providing a full and fair response to the issues raised by the
complainant. The Council was concerned, among other things, that the broadcaster was
attempting to “pass the buck” to the producers of the show rather than taking full
responsibility for its programming. While the Council does not find that the broadcaster's
response in this case is similarly “on the edge” , it is troubled by the manner in which the
broadcaster stated that they would be forwarding the complaint to the producers of the
show. The Council finds that its comments in the Seinfeld decision also apply in this case.
In the Seinfeld decision, the Council stated that

There can be no doubt regarding the broadcaster's responsibility for the programming which
it airs, wherever it is produced. Nor is there anything improper with the provision of the
address of the program's producers. As the Ontario Regional Council found in CFMT-TV
re an Episode of “The Simpsons”
(CBSC Decision 94/95-0082, August 18, 1995),

A broadcaster may, for quite positive reasons, wish to encourage a viewer
to also contact the producer of the program but should not attempt to
sidestep its own responsibility in that regard on the grounds that it was not
the producer of the show at issue.

Canadian broadcasters are also required to direct complainants to
Canadian resources, specifically the Canadian Broadcast Standards
Council, when they have a problem with material they have aired which
they have been unable to resolve directly with the complainant. As
members of the CBSC, broadcasters are encouraged to enclose the
Council's brochure with their initial response as a means of advising
viewers that they have an additional recourse available to them.

The Council reminds the broadcaster that taking action “by forwarding a copy of your letter
to the Canadian distributor, asking that it be passed along to the production company in
the U.S.A.” may not always be sufficient to fulfil its responsibilities vis-à-vis complaints
received regarding programming broadcast on its station.

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.