CKCO-TV re a News Item (Disappearance)

ONTARIO REGIONAL PANEL
(CBSC Decision 00/01-0739)
R. Stanbury (Chair), M. Ziniak (Vice-Chair), R. Cohen (ad hoc),R. Moss, S. Whiting

THE FACTS

On February 23, 2001, a
local resident was charged with possession and distribution of child
pornography.  Information regarding these charges was broadcast
for the first time by CKCO-TV (Kitchener) on February 26.  In
that initial broadcast, images of the accused’s home were shown and
his address was mentioned.  A half hour after that newscast, the
accused, who had been watching the newscast with members of his
family, left the family home.  The next day, when he had not
returned home, the family reported him to the police as missing. 
His abandoned vehicle was found on the following day but police had
not yet located the individual.  On March 2, 2001, CKCO aired a
news report concerning the disappearance of the accused.  At the
time of the broadcast of that report, it was presumed that the man
was still alive and the case was still being treated by both the
police and the broadcaster as a missing person matter. Subsequent to
the broadcast date, the body of the missing man was recovered from
the nearby Grand River.

In the March 2 news
report, an appeal was made to the public by a police staff sergeant
for any information as to where the missing man might be.  The
report named the missing man, included his physical description, and
reported the fact that he was the owner of a local Waterloo pub and
tavern. A photograph of the pub was shown.  (A partial
transcript follows; the full transcript of the report can be found in Appendix
A
.)

 

The Complaint

On March 5, the CBSC
received a complaint (originally sent to the CRTC and then, in the
normal course, forwarded to the Council) from the sister-in-law of
the man whose disappearance was reported by CKCO-TV.  In her
complaint, she indicated that she had pleaded with the News Director
of the station not to broadcast the photo of the establishment on the
grounds, first, that the business was in no way involved in the crime
for which the missing man had been charged and, second, that airing
the photo would negatively impact all those employed by the pub. 
She said, in part (the full text of this letter and all of the
subsequent correspondence is included in Appendix
B
):

It should be noted that
this decision deals solely with the complaint as it relates to the
broadcast of March 2.  While there are aspects of the February
26 broadcast which are noted in the correspondence, the complainant
only raised the first broadcast on May 9, well after the expiry of
the 28 days during which the broadcaster is required to retain the
original logger tapes.  In the circumstances, the tape had been
recycled, leaving the CBSC unable to deal with the issues related to
that newscast.  Consequently, the decision is limited in its
purview to the second of the two broadcasts.

 

The
Broadcaster’s Response

The Vice President and
General Manager of CKCO-TV responded to the complaint on April 25. In
his reply, he stated in part:

 

Further Correspondence

Between the date of the
complaint and the date of the broadcaster’s reply, the body of the
complainant’s brother-in-law was found in the Grand River.  She
sent a further letter to the CBSC on May 2 with the details and
relevance of this incident:

The
complainant was dissatisfied with the broadcaster’s reply and
returned her Ruling Request on May 9 with a covering
“rebuttal” letter, in which she said, among other things:

The complainant then
cited Articles 3 and 4 of the RTNDA Code of Ethics and argued
their applicability to her complaint.

On May 22, 2001 the Vice
President and General Manager of CKCO-TV replied as follows, in part:

The
dialogue between the complainant and the broadcaster ended there.

 

THE DECISION

The Ontario Regional
Panel Adjudicators considered the complaint under the following
provisions of the various Canadian Association of Broadcasters (CAB)
Codes.  They read in pertinent part as follows:

CAB Code of Ethics,
Clause 6 (paragraph 3)

RTNDA Code of
(Journalistic) Ethics
, Article 2 (Old code)

RTNDA Code of
(Journalistic) Ethics
, Article 2 (New code)

RTNDA Code of
(Journalistic) Ethics
, Article 3 (Old code)

RTNDA Code of
(Journalistic) Ethics
, Article 3 (New code)

RTNDA Code of
(Journalistic) Ethics
, Article 4 (Old code)

RTNDA Code of
(Journalistic) Ethics
, Article 4 (New code)

The Adjudicators screened
the challenged news report and reviewed all of the
correspondence.  While readily acknowledging the sadness of the
events which preceded and followed the news broadcast in question,
the Ontario Regional Panel is of the view that, for the reasons given
below, the report does not violate any of the above-mentioned Code provisions.

 

The Old and New
Versions of the RTNDA Code

The RTNDA Code of
(Journalistic) Ethics
, first drafted in 1970, was revised by the
Radio and Television News Directors Association of Canada in
1986.  The 1986 version of the Code was the one that the CBSC
has been administering since October 1993.  In June 2000, the
RTNDA revised and updated the English version of the Code and it is
that version that the CBSC has administered since June 15, 2001, the
date as of which both the French and English texts were
available.  The challenged broadcast occurred in an intermediate
time frame, namely, subsequent to the date that news director members
of the RTNDA itself would have considered the new Code to be in
effect but prior to the date as of which the CBSC had both French and
English texts in order to begin its administration of the new Code.

There are some
differences in wording between the old and new versions of Code
articles covering the same issues.  In the case of Articles 2
and 3, this might have had a bearing on the applicability of the new
provisions to this matter.  In the case of Article 4, the Panel
considers that the change in wording would not have had any bearing
in this instance.  In order to deal with the issues raised by
the March 2 broadcast, the Panel has decided that, taking into
consideration the expectations of the public, it could not apply the
more restrictive wording of the new version of the RTNDA Code so as
to cut off public access to standards which have long since been
applied by the CBSC to journalistic matters when the broad guarantee
of “full, fair and proper presentation of [the] news”
remains enshrined in the CAB Code of Ethics.  Given that,
as will be noted in more pertinent detail below in the appropriate
sections, while the new Code may not contain all the same wording
regarding the sensationalization of the news or the broadcast of
irrelevant background information, the Panel sees no contradiction
between the new text and the general requirement of full, fair and
proper presentation of the news found in the CAB Code.  The
Panel considers that it is its duty to reaffirm, for the benefit of
audiences, that such principles continue to be a part of their
entitlement and expectation of broadcasters, despite their current
absence from the RTNDA Code.

 

The Relevance of the
Death of the Subject of the Report to this Decision

It should be noted
preliminarily that the sad and painful experience of the death of the
complainant’s brother-in-law is not a factor in the Panel’s
determination.  The only question for it to assess is the state
of the information as it was known at the time of the newscast
Even if, as the complainant alleges, the death of her brother-in-law
resulted from what the decedent had seen on the newscast, the Panel
clearly does not understand her to be suggesting that any
responsibility for his death can be imputed to the broadcaster in any legal
sense.  That link would be both remote and fanciful.  The
issue at hand is limited solely to any Code-related aspects of the
following assertion by the complainant in her letter of May 9:

Since the complainant is
clearly referring to the broadcast of February 26, which is not
under consideration here
, the Panel only wishes to make its view
on the foregoing assertion absolutely unequivocal.  With or
without a tape of the February 26 broadcast regarding the criminal
charges in hand, the Panel understands that the laying of charges
relating to child pornography would be disconcerting, even extremely
distressing, to the accused.  No-one could assume for a moment
that any such charges would remain undisclosed and hidden from the
public.  These could readily be imagined to be the
proximate causes of what appears from the sister-in-law’s
correspondence to be suicide.  Such an act cannot be imputed to
the broadcaster and the assessment in this decision of the March 2
broadcast, apparently following the death of the accused, is,
therefore, unaffected by the death.

 

Sensationalization in
News Reporting (Old and New Tools)

As noted above, this is
the first occasion on which the CBSC is called upon to deal with a
complaint regarding sensationalization since the revision of the
RTNDA Code. In any event, whether applying the old or the new
provision, the Ontario Regional Panel considers that the result
would, for the reasons given above, be the same. 

In the event that the old
Code applied to the actions of the CKCO-TV News Director in this
case, the provisions of Article 3 would be applicable; in it the
RTNDA members had agreed that “Broadcast journalists will not
sensationalize news items.”  In the event that the CBSC
were called upon to apply the provisions of the new RTNDA Code, it is
clear that the RTNDA’s prohibition against sensationalizing news
reporting is no longer found there (or anywhere else).  In such
circumstances, the Panel considers it entirely appropriate to apply
the provision in the CAB Code of Ethics which affirms that
“the full, fair and proper presentation of news, opinion,
comment and editorial is the prime and fundamental responsibility of
the broadcast publisher.”  In so doing, the Ontario Panel
observes that a sensationalized news report could not be
characterized as either a fair or a proper presentation of news and
would thus constitute a breach of Clause 6, paragraph 3 of the CAB
Code of Ethics
.  See, for example, CJRQ-FM
re Opinion Poll

(CBSC Decision 94/95-0135, March 26, 1996
), CTV
re News Report

(Police Shooting) (CBSC Decision 94/95-0213, March 26, 1996)
and CFTM-TV
(TVA) re J.E. (Entreprises Pendagron)

(CBSC Decision 97/98-0390, August 14, 1998)
for examples of
sensationalized, unfair and improper presentations of news.

The question then for the
Panel is to determine whether the reporting by CKCO-TV on March 2
amounted to sensationalism or not.  In the view of this Panel,
sensationalism involves the significant exaggeration of some element
of a story to attract the attention of an audience in circumstances
where that audience might not otherwise be drawn to the report. 
It might, as in the foregoing examples, involve the use of flagrant
language in an otherwise sober listener poll, the videotape of a
shooting of an individual with no context for the viewer other than
the fact of the shooting, the ten-fold distortion of profits from an
allegedly fraudulent activity, and so on.

In the matter at hand,
there is nothing of the like.  The objection of the complainant
is that information was provided about the business of the accused
which had no direct connection with the criminal offence with which
he had been charged.  While that is true, the information had a
direct connection with the identity of the individual, who was
well-known in the community.  It was a fact.  It was a
current fact.  It was a publicly known fact, although not in the
context of a criminal indictment.  As will be seen below, it was
also a relevant fact, although one with potential problematic
consequences to the colleagues and family of the accused.  It
was not exaggerated, untrue, distorted, speculative or
“stretched”.  It was not, in other words,
sensationalized.  The Panel finds no breach in this respect.

 

The Reporting of
Irrelevant Background Factors

The issue of divergent
Code texts presents itself here as well.  In the original
language,  “News and public affairs broadcasts will put
events into perspective by presenting relevant background
information.”  There was no limitation to “relevant
background information” as there appears to be now.  In the
revised version of the Code, reporting of human rights type of
information, such as race, skin colour, etc., is restricted to
circumstances in which that information is relevant to the report
being made.  In CKEN-AM
re Newscast

(CBSC Decision 95/96-0134, February 14, 1997
),
for example, the Atlantic Regional Panel found that the reporting of
many details relating to the death of a young woman was justified.

In that case, the
broadcaster in a small community, in reporting on the death of the
young woman in a car accident, chose to include information relating
to a previous accident in which the complainants’ daughter had been
involved, one in which someone else had been killed and for which she
had been “cleared of any wrongdoing in [the] fatal
accident.”  The Panel held

Despite that conclusion,
the Atlantic Panel ruled that the broadcaster had breached the
provisions of Article 2 of the RTNDA Code.

The Ontario Panel
considers the CKEN decision very different from the matter at
hand.  In the former matter, the issue had nothing to do with
the identity of the young woman.  It had only to do with the
tragic irony that she herself had killed someone with her vehicle a
year and a half before and that she was herself killed in a fatal car
accident.  What in a sense was worse regarding that earlier
report was that she had been cleared of any wrongdoing in connection
with the death.  In other words, the only justification for the
story, as told, was irony.  In the present matter, the issue is
identity.  That is, in the view of the Panel, entirely
relevant.  CKCO-TV has not, in reporting the information
relating to the ownership of the pub, gone too far.  There is no breach.

 

The Reporting of
Judicial Proceedings

While the complaint does
not specifically relate to the charges laid against the subject of
the news report, the Panel considers it worthwhile to reiterate the
CBSC’s position relating to court proceedings, which are, of course,
public by their nature in a democratic system.  In CITY-TV
re Newscast

(Toronto Humane Society) (CBSC Decision 95/96-0226, October 21, 1996),

the issue involved the fairness of reporting an arrest when, in the
view of the indicted complainants, they had no opportunity to
“argue” their side of the charges in the television show
dealing with their arrest.  The Ontario Regional Panel made the
following points, which deal, by analogy at least, with the public
nature of the judicial process, particularly its criminal law aspect.

In CHBC-TV
re Newscast
(CBSC
Decision 93/94-0292, December 18, 1996)
, the broadcast giving
rise to the complaint dealt with the difficulties plaintiffs may
encounter when trying to collect court awards.  While the
essence of that complaint was different from that in the matter cited
above as well as the matter at hand, the B.C. Regional Panel made the
following point regarding judicial proceedings.

It is likely true that
persons who become involved in legal proceedings, whether in the
civil or criminal courts, do not intend to thereby become the
subjects of media attention.  Nonetheless, in the Canadian
democratic system, in the absence of a Court order to the contrary
(and assuming that the special rules of the Young Offenders Act
are not in play), the identity of the parties and the substance and
details of the proceedings are accessible by the public and the media
which report these in the public interest. Nor should it be assumed
that the public interest is limited to the safety and security
of members of the public.  It is a concept far broader than that
and one which is particularly untrammelled when it comes to matters
of Government, public figures and the courts.  With respect to
judicial proceedings, as is the case in the matter at hand, it can be
safely assumed that, most of the time, the parties to civil
proceedings and, probably almost all the time, those charged in penal
and criminal matters, do not feel comfortable having their
business conducted in the public eye.  This is probably also
true of their close friends and relatives, who may sense discomfort
in the reflected glare.  It is, however, a personal cost
necessarily incurred for the benefit of  the public.  It
follows that CKCO’s identification of the accused by name, address
and business association was entirely justified as being in the
public interest, despite any pain which may have resulted to the
brother-in-law and the members of his family.

 

Invasion of Privacy

At the end of the day,
the material issue to be determined regarding the challenged newscast
relates to whether or not the photographic inclusion of the pub owned
by the brother-in-law in the news broadcast constituted an
unwarranted invasion of privacy under the RTNDA Code or an improper
presentation of news under the CAB Code.  At that, there may
also appear to be a need to draw a distinction between the interests
of the accused, the complainant’s brother-in-law, on the one hand,
and the “sister [who] has to support her children [from the
business], and [the] twenty-seven people who rely on this income for
their livelihood.”  In fact, though, the only question for
a broadcaster is whether it is justified in including such
information in its story in the first place.  That there may be
consequential concerns on the part of those incidentally affected
cannot be determinative.

As discussed above, the
Panel has no doubt that the broadcaster had the right to name the
individual and the charges laid against him.  Where then were
the limitations, if any, of the description by the broadcaster of the
person indicted?  The Panel can see few, particularly in the
case of a person who, by his profession or public persona, would be
likely to be known to the public.  A photograph of the
individual would be fair.  So would the depiction of the
person’s home, particularly where, as in this case, it was the scene
of the alleged criminal activity.  Believing, though, that the
request from the complainant not to show the house was
reasonable “in recognition of the terrible time the family was
going through,” the broadcaster thoughtfully and sensitively
pulled that shot from later newscasts dealing with the story. 
In any event, the Panel expects that showing the house was not as
material to its viewing audience as showing the pub.  The former
was not known to, or frequented by, the public.  The latter
was.  In fact, that is the issue.  The
identification of any place of business would help the members of the public
understand who the individual was; where the enterprise was not
merely a commercial establishment but one to which the public was
liberally invited, there was a greater opportunity, in the context of
a story about a missing person, to increase the likelihood that
someone in the public who knew him by sight might be able to help
locate him.

Incidentally, the
broadcast of such a report might not also be unreasonable in order to
provide members of the public with information enabling them to
determine whether this was a place they wished to continue to visit
or one which they wished, for their own reasons, to avoid. 
After all, the source of this potential problem, namely, the
consequences to family, pub employees, and so on, was the accused,
not the station, which had every right to fulfill its general
responsibility to inform the public of matters of concern and interest.

The Panel understands and
sympathizes with the complainant and her family and, indeed, with all
of the persons affected by the alleged criminal behaviour of the
accused (alleged, since there will never be a trial of the accused in
this case).  It affirms, however, that the broadcaster exercised
its reporting responsibilities entirely within the limits of the
standards imposed by the RTNDA and CAB Codes.  CKCO did exactly
what it had every right, if not obligation, to do in the interest of
the public.  It generously withdrew the depiction of the
personal residence of the accused from the story.  It verified
with other professionals what its instincts told it to do.  It
was sympathetic and professional.  There is no Code breach here.

 

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 diligence and attention of the
broadcaster to the issues and concerns of the complainant are
clear.  The correspondence was extensive and thorough. 
While the broadcaster and the complainant did not in the end agree
(had they done so, this matter would not have required this
adjudication), that is not the issue.  What is essential is
communication, dialogue.
  The broadcaster owes that to
serious members of its audience who have genuine and material
complaints.  That was certainly the case here.  The
complainant articulated her concerns effectively.  The
broadcaster’s representatives dealt with them that way.  The
dialogue was time-consuming but it constituted an excellent example
of the two-way commitment that is of the essence of this
process.  The Panel commends CKCO-TV for its meaningful attempts
to respond to the complainant.

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.