CKYK-FM re broadcast of a civic address

quebec regional panel
(CBSC Decision 05/06-0710)
G. Bachand (Chair), L. Baillargeon, R. Cohen (ad hoc), G. Moisan, M.-A. Murat

the facts 

At various times of the day (in the morning and afternoon) on Halloween, October 31, 2005, and between about 8:05 and 8:30 am the following day, CKYK-FM (Alma)’s hosts discussed the fact that a caller had left a message on the station’s answering system regarding a home in the area in which a convicted pedophile was apparently living.  The pertinent parts of the transcript for those broadcasts are as follows (the complete transcription of the discussions during those periods that relate to the presence of the pedophile in the community can be found in Appendix A, available in French only): 

October 31, from 7:06 am: 

[translation]

Carbo:   I would like to remind a [?] listener who left me a message in my voice mail.  Halloween is the topic of discussion.  We’ll come back shortly to the schools that don’t celebrate Halloween.  The “boooos”.

Dianne: The children who can’t dress up in costumes.

Carbo:   Yes, I had a few e-mails on that issue.  Um, I obtained the names of other schools that don’t, where the children are not allowed to dress up in costumes.  And a lady, who – this worries me – she left me a message; she told me, she gave me a person’s address, of a house.  We checked; we’re trying to find out who lives there.  It is an individual who was apparently convicted of pedophilia.

Dianne: Mm?

Carbo:   It’s in the lake region – looks like it might be Alma – who is guilty, who was convicted of pedophilia, who decorated his house and who is waiting for the children.

Dianne: But –

Carbo:   She finds it distressing, except I don’t have more details.  I did try Canada 411, I tried to find that individual’s name, to discover if the fact is verifiable, if it really is someone who was convicted of pedophilia, um, because I find it frightening.

Dianne: It’s worrisome, isn’t it?

Carbo:   As a parent myself, I do worry.

Dianne: Yup.

André:   Because if we don’t have the individual’s name we can’t, I would normally go to the court house and check the permanent record.

Carbo:   Yes, um, are there records or a history of pedophilia, or whatever, you can find out who has a record, but we need a name.

André:   We [?] parents accompany their children in that street, you know?

Carbo:   Yup, but unfortunately I don’t have more details.

Dianne: Was that left on your voice mail, or should people be calling you?

Carbo:   No, no.  You can call here at 662-4838 or star 95-5, or 1-800-881-4838, toll free.  I’d like to have more details, so we could in fact check it out.

André:   And we’ll speak to you off the air, naturally.

Carbo:   Yup, and it will all remain confidential, no problem.  We’ll check it out, because parents do get concerned when they hear these things.

Dianne: You’d probably want to [??] child?

Carbo:   Well, no, [???].  Does he have the right to decorate?  Of course he has the right to decorate. Everyone has the right to decorate.

Dianne: He has the right to hand out candy too.

Carbo:   There’s no law preventing that.

André:   So, it does make you worry.

Carbo:   We have the right to say that he has been convicted in the past.

André:   Yup.

Carbo:   If that were in fact the case.

André:   No right to tell you on the air.

Dianne: Hmn, hmn.

Carbo:   And to be careful of a certain house on such and such a street because that person has been, hm, found guilty.  Do we have the right to say that?  For your peace of mind, but I would like that listener to call back please.  You would be really helping us out.

A couple of hours later, the hosts began discussing various safety issues associated with children being in the streets on Halloween, including carrying pocket flashlights, wearing reflective clothing, taking care not to wear capes so long that children could trip on them, and so on.  They also recommended the appeal of the Halloween decorations at a particular address in Alma.  They then returned to the issue of the home inhabited by the convicted pedophile. 

[translation]

Carbo:   I want to come back to that.  You were mentioning good addresses.  A listener left us a message in our voice mail –

André:   Yes.

Carbo:   – telling us of a pedophile living in the Alma area.  She gave us an address.  We don’t have the individual’s name.  I’d like more details, because if it’s true –

André:   Yes.

Carbo:   – we want to do the required research in order, of course to question, not question, but rather give our listeners the information.

André:   Yes, because it appears that there is um, someone convicted of pedophilia who decorated his house and is waiting for the kids tonight – not very reassuring.

Carbo:   And that has parents worried, except that the individual’s address is the only detail we have. No matter how much we search on Canada 411 to discover who lives at that address.  Is it really that individual who lives at that address?

André:   We need a name.

Carbo:   Was this individual in fact convicted of pedophilia in the past?

At 4:39 pm that day, the afternoon hosts returned to the issue of the convicted pedophile’s residence. 

Host 3:  I want to return to, um, this um, sordid story, and I would particularly like [?] them to tell us about it.  What’s all this about a certain pedophile who wants to spoil Halloween today?

Host 4:  Well, he doesn’t want to spoil it.

Host 3:  Well it’s about the fact that this morning, um –

Host 4:  He’s hungry.  [The hosts laugh.]

Host 2:  Ohhhhh.

Host 3:  Well, not quite, but this morning, um, with Carbo some listeners called on the air, um, during [?] morning to say that there is a convicted pedophile living on [X Street] in Alma and that this person decorated his house and is waiting for children tonight on Halloween.  We checked and it is absolutely true.  A man who was previously found guilty of acts of pedophilia.  He was also declared to be a dangerous offender for the next eight years.  Um, in other words, in his conditions of release, because he has done his time.  He was incarcerated and so on; he is prohibited from making contact with children who are not supervised by an adult who is aware of what this guy did in the past.  So, here is the address; you can decide whether to avoid it or not: 451 [X Street].  The guy was convicted.  The police are aware and will be watching at a close distance from the house.  But, if you have children who will be going to that sector and who are not accompanied by an adult, please tell them to avoid that address at least.

Host 4:  What’s the address?

Host 3:  451 [X Street], in Alma.

Host 4:  Yes.

Host 3:  So be vigilant.  We also encourage you to be careful.  If you are going by car, um, I’ll never forget when I was young.  I was all excited and would run from one side of the street to the other.

Host 2:  Yes.

Host 3:  And the way I saw it as a youth, um, there were no cars; the day belonged to kids.  So, always keep in mind that kids can be rather reckless and that incidents of that nature may occur.  By driving more slowly, by being vigilant and perhaps by avoiding the sectors, um, that are [?].  If you can take a street, a major street, um, it’s probably better than going [?] in residential streets –

Host 2:  Neighbourhoods that are better lit, eh?

Host 3:  That’s it exactly.  So we encourage parents to be very vigilant. 

The next morning, the CKYK-FM hosts returned to the subject. 

[translation]

Carbo:   André, a few hours before Halloween, we talked about a pedophile –

André:   Yes.

Carbo:   A notorious, proven criminal, –

André:               A list as long as your arm.

Carbo:   – a dangerous offender, whatever.

André:   Three pages of charges in the permanent record at the court house.

Carbo:   Who lives at 451 [X Street].

André:   In Alma.

Carbo:   Alma.

André:   And we were telling kids: “Don’t go trick or treating there.”  He had decorated his house and everything.

Carbo:   Exactly.  And –

André:   Or, go there with your parents.

Carbo:   He was acting legally because he lives with someone who knows who he has taken in. Except that we have a slight problem.  People think it’s the person living at number 449 in the basement.

André:   Yep.  Because there is an apartment in the basement of that house.  There is a guy who, um, has been living there for the past eight years.  Now, this person works at the Société [. of] Québec. He’s not the pedophile, O.K.?  We didn’t name him at the time and we won’t name him today either, but it’s not [Mr. L] who works at the [.], O.K.?  He’s the one who, um, –

Carbo:   Stop stalking him.

Dianne: He’s fed up.

Carbo:   He lives at number 449 below in the basement.  There is no connection.  It’s another residence.

André:   We call that collateral damage.  Not much fun.  We did point that out when we, when we talked about it.

Carbo:   He’s not the only one in that position.  He’s not the only one.  I tried to reach one whose name is [Mr. H].

André:   Hm?

Carbo:   In fact, I have his coordinates in my pocket.  [Mr. H] has the same name as the guy who is doing time for assault.

André:   Hit, um, demolished a woman’s face.

Carbo:   Demolished a woman’s face.

Dianne: Yes, yes.

Carbo:   It isn’t his first offence.

Dianne: At Parc Soleil?

Carbo:   In fact, he was still in the news this week because he has remained incarcerated.  Well, there’s another [Mr. H] who was born the same day as the other guy on top of everything else.  The guy, you know, he has to deal with this.  He has the same name and he was born the same day.  As if that wasn’t enough of a similarity?

Dianne: Identical?

Carbo:   The father of the first guy is named René.  No, the first guy’s father is Iréné, the second guy’s is René, something like that.  It’s like –

Dianne: Pretty similar.

Carbo:   And look, that guy has also been through hell.  You know, one is a felon, a notorious criminal and extremely violent; the other has a very [?] life and is trying in fact to live a quiet life.  But, unfortunately, he ends up in this type of situation, um, involved in this mess against his will.  What is the man’s name, [L]?

André:   Um, [Mr. L] who works at the Société [.] of Québec.

Carbo:   At number 4-4-9 and not at number 4-5-1.

André:   It’s the same house, but it’s not the same address because it’s a separate residence.

Carbo:   O.K.?

André:   Yup.

Carbo:   Don’t bug him anymore.

Three persons who lived at the address announced on the air filed a complaint with the CRTC on November 16.  That complaint, which was forwarded to the CBSC in due course, read in pertinent part as follows (the full text of all the correspondence can be found in Appendix B, available in French only):

[translation]

People were warned several times on the radio to avoid trick or treating at number 451 [X Street] in Alma, because a pedophile lives there and you should go there at your own risk.

No one has the right to give out an individual’s address, as that is an invasion of people’s privacy.  If there was a danger, the police should have been contacted, not the population at large.

There are three of us living at this address and each one of us has been harassed, plus we have heard about this everywhere – at work, at school and in the street.

Does one have the right to live in peace when one has paid for his crime?!

N.B.: As for the announcer, I was told his name remains confidential.  And our private life isn’t? UNBELIEVABLE, ISN’T IT?! 

The President of the broadcaster group replied to the complainants on December 29.  He said: 

[translation]

This is in response to a letter dated November 16, 2005 that was forwarded to the Canadian Broadcast Standards Council.  In that letter, you object to the information aired on CKYK on October 31, 2005 to the effect that a convicted pedophile declared a “dangerous offender” was preparing to receive children at his home on Halloween night to give them treats.  You claim that this information violated your privacy and that we should not have aired it.

To respond to your complaint, it is necessary, first of all, to point out that freedom of speech, the right to know and the right to privacy are fundamental values that we respect in the course of our broadcasting activities.  Nevertheless, we often find ourselves faced with issues where broadcasting them or not broadcasting them encroaches on one of these values.  In each case of that nature, we must ask ourselves questions on the right to know and the public interest in general.  If we opt to broadcast, we must also ask ourselves how to keep the invasion of privacy to a minimum.

In this case, we must inform you that we received several telephone calls from parents who were concerned about the fact that a convicted pedophile, also declared a dangerous offender, was preparing to receive children at his home to give them treats.  In this regard, we believe that the calls received, as well as raising the awareness of the audience in general to cases of pedophilia, clearly demonstrated general interest where this subject is concerned.

Before airing the information we received from our listeners, we were careful to establish its veracity.  Once it was confirmed to be true, we decided to air it given its public nature and the great concern expressed by our listeners.  We nevertheless decided to minimize the violation of privacy by broadcasting only the residential address and not the name of the person found guilty of pedophilia.  We believe that in doing so we limited the information to the only pertinent aspect, i.e. the address, thereby fulfilling our duty to provide information while limiting the invasion.

While you claim that a criminal record is part of an individual’s private life, we contend the opposite is true.  Information regarding the criminal record of an individual is public and easily accessible to everyone.  In fact, criminal proceedings, as well as convictions, are frequently reported in the media despite the fact that this constitutes an invasion of people’s privacy.  Moreover, the courts have stated on several occasions that a person’s right to privacy is limited where freedom of speech is exercised to ensure the public’s right to know.  The same is true for those found to be dangerous offenders who are preparing to distribute treats to children.

Finally, we would draw your attention to the fact that our host clearly stated on the air that you had a right to offer children treats at Halloween and that you were not contravening any court order.  He also added, however, that parents were equally entitled to know who their children were dealing with and that it was up to them to decide with full knowledge of the facts.  It was therefore information of a public nature that was objectively communicated.

Consequently, we believe that we could broadcast the information concerning you as it was in the public interest.  Furthermore, we believe we acted correctly by limiting the information that was communicated, thereby limiting the invasion of your privacy. 

Dissatisfied with the broadcaster’s reply, the complainants submitted their Ruling Request on January 6, 2006.  Some months later, namely, on May 31, the President of the radio group sent a further letter to the CBSC.  It read in principal part as follows: 

[translation]

CKYK-FM’s target audience is comprised largely of adults and the station concentrates mainly on local and regional news.  It is in that context that our host received several telephone calls objecting to the fact that a convicted pedophile declared a “dangerous offender” was preparing to distribute treats at his home on Halloween night.

Given the issue and the number of calls received, we are certain this was a topic of public interest and that the right to freedom of speech as well as the right to know guaranteed by the Quebec Charter of Human Rights and Freedoms justified broadcasting the information.  However, in order to respect the individuals concerned, and also comply with the CAB’s Code of Ethics, in particular articles 2, 5, 7 and 9, we took certain steps to avoid broadcasting more information than necessary.  In this way, no person was identified by name and we were careful to indicate clearly that the individual concerned was acting in a completely legal manner and was not contravening any court order whatsoever.  We avoided making a judgment of any kind by choosing instead to encourage parents to decide for themselves.  Finally, it is important to keep in mind that since the information in question was time sensitive, it needed to be broadcast quickly.

These factors, therefore, motivated our decision to limit the information broadcast strictly to the facts required in the public interest.  We believe that we were able to balance the public’s right to know and the right to privacy of the individuals involved. 

 

the decision 

The Quebec Regional Panel examined the complaint under the following clause of the Radio-Television News Directors Association of Canada (RTNDA) Code of (Journalistic) Ethics, which reads as follows: 

RTNDA Code of (Journalistic) Ethics, Article 4 (Privacy) 

Broadcast journalists will respect the dignity, privacy and well-being of everyone with whom they deal, and will make every effort to ensure that news gathering and reporting does not unreasonably infringe privacy except when necessary in the public interest. Hidden audio and video recording devices should only be used when it is necessary to the credibility or accuracy of a story in the public interest. 

The Quebec Panel Adjudicators reviewed all of the correspondence and listened to a recording of the challenged broadcast.  The Panel concludes that the broadcasts were in violation of the foregoing clause. 

 

The Private Nature of Some Public Information 

It is of the essence of the principles relating to privacy on the airwaves that broadcast journalists “will make every effort to ensure that news gathering and reporting does not unreasonably infringe privacy.”  The Panel notes in particular that this requirement does not relate to the public or private nature of the information that is broadcast.  It rather refers to the issue of the privacy or private life of the persons who are the subject of its reports.  If one begins with the assumption that, as a general principle, the broadcast of private information about private individuals will fall afoul of the Code, the resulting implication is twofold.  First, there may be private information about public individuals that is inappropriate for broadcast (not the issue before this Panel on this occasion) and, second, there may be public information about private individuals that is inappropriate for broadcast.  It must also be noted immediately that there exists a potential exception to this general principle, which is worded “except when necessary in the public interest”.  It will be discussed in the following section of this decision. 

The first issue for the Panel is whether the disclosure of the address of the complainants even constituted an invasion of privacy.  Of this the Panel has no doubt.  Indeed, it has been admitted by the broadcaster, which has claimed that it did its best to minimize the infringement of privacy by broadcasting only the address, and not the name, of the convicted pedophile.  (It is not without importance to note in this context that there were three persons living at that address, at least two of whom would apparently not fall within the category of the station’s designated target yet they were also made to suffer the consequences of the disclosure.)  The broadcaster does, however, contend that it was in effect disclosing public, not private, information.  In its next step, the broadcaster’s President justifies the station’s disclosure in part “given its public nature” and he goes on to argue: 

[translation]

Information regarding the criminal record of an individual is public and easily accessible to everyone.  In fact, criminal proceedings, as well as convictions, are frequently reported in the media despite the fact that this constitutes an invasion of people’s privacy. 

As to the second sentence of that proposition, the Panel agrees but considers it essential to point out that that issue has nothing to do with the circumstances under consideration here.  It is indeed true that criminal (and civil) procedures may be reported on, among other things, because of the nature of our judicial system.  In Canada (which does not have the American Grand Jury system or the European civil law institution of the juge d’instruction), trials and other court proceedings (with the exception of hearings on security certificates and some immigration matters in the interest of the immigration applicant) are not held in camera.  With rare exception, and then generally only on application, courtrooms in democratic nations are open to the public and the media (there are, however, circumstances when the media may not be permitted to report what transpires in the courtroom but that has nothing to do with the matter at hand). 

As to the first sentence of the President’s letter, it should be noted that not all publicly accessible information is public for broadcast purposes.  A prime example is, of course, the telephone and address co-ordinates of private individuals.  Although these are among the most publicly accessible pieces of information, they cannot be broadcast on the basis of that rationale alone.  There are several CBSC decisions on that point [see, for example, CKAC-AM re The Gilles Proulx Show (CBSC Decision 94/95-0136, December 6, 1995), TQS re Gilles Proulx comments on Journal du midi (transportation strike) (CBSC Decision 03/04-0334, April 22, 2004), and CJMS-AM re comments on two episodes of Le p’tit monde à Frenchie (CBSC Decision 04/05-0939, October 24, 2005)], as well as the leading Quebec decision of Robbins v. Canadian Broadcasting Corp., (1957) 12 D.L.R. (2d) 35. The point is that the disclosure on the airwaves of public information or public facts cannot be justified solely on the basis of the public nature of the information. 

Criminal records are another such example.  While it must be acknowledged that criminal records may well be matters of public record and reasonably easily verified, this does not automatically render them appropriate for broadcast.  It is, after all, a goal of the penal system that those who have been incarcerated for their crimes and released be seen as rehabilitated and susceptible of re-integration into society at large.  Just as the individuals are rehabilitated, the Panel considers that the completion of their criminal sentence may, for these purposes, effectively convert the general public nature of such information into private information, at least for general broadcast purposes (subject, of course, to the exception discussed in the following section). 

 

The Public Interest 

When, then, may there be an exception that entitles a broadcaster to infringe the private lives of individuals?  The answer is provided in the Code article itself, “when necessary in the public interest [emphasis added]”.  There are thus two elements to satisfy before a broadcaster makes a decision to infringe the solitude or privacy of an individual; namely, the matter disclosed must be one of serious or legitimate interest to the public, on the one hand, and necessary to disclose for that purpose.  In such cases, the interest of the public in learning the private information will trump the private interest of the individual who wishes to keep it secret.  The Panel also wishes to be clear that it is not simply “the number of calls received” that will qualify as the definition of “public interest”.  Nor will the public’s “craving” for information, at the level of gossip.  As the Ontario Regional Panel said in CTV re Canada AM (Airborne Hazing), (CBSC Decision 94/95-0159, March 12, 1996), 

Circumstances do, moreover, arise from time to time in which the public interest in an event may override the otherwise legitimate interest of individuals to keep their identity and activities free from filmed scrutiny. Even a situation such as the hazing ritual in which a home video camera rather than a broadcaster’s equipment was present would give rise to this principle.  The public had such an abiding interest in learning about the unorthodox and apparently discriminatory practices of the Regiment, whose members had killed Somalis in questionable circumstances thereby affecting the reputation of the country in its international peace-keeping role, that the private interest of any individuals seen in the film in question would have been overridden by the public’s need to know. 

The Panel considers that information about the criminal record of an individual would also fall into this category when that person is engaged in public activities (such as a trial, running for public office, exercising a public office or trust, or the like) that would justify such scrutiny.  There will, of course, be many other examples of the primacy of the public interest but the issue for the Quebec Panel to decide is whether the broadcast of the address of the convicted pedophile on and after Halloween falls into this category. 

The broadcaster has assumed that the public interest was being served by the disclosure of such information on a day when children could be expected to be roaming the streets in search of candy and other treats.  The Panel disagrees.  The broadcast of such information can only be justified when a convicted and released offender can reasonably be considered to represent a genuine and verifiable threat to the lives and safety of the community.  The Panel considers it unreasonable to assume that every criminal (which would include every sex offender) poses a danger once his or her societal reintegration is underway.  Consequently, the broadcast of privacy-piercing information constitutes a breach of Article 4 of the RTNDA Code of (Journalistic) Ethics

The Panel also notes that, while it appreciates the care taken to provide only the address and not the name of the offender, it considers the effect to be similar.  It points a community finger at the identified residence.  It breaches the peace and seclusion of the individual, who has already paid for his crime to the extent deemed suitable by the law.  It may have the effect of interrupting a good-faith reintegration process.  Unless there is evidence that the interests of the community have been particularly served by the avoidance of a real danger, such information should not be broadcast.  Moreover, there is no indication that the provision of the civic address was necessary in order to achieve the broadcaster’s desired result.  Generalized advice to parents to accompany their children from door to door on Halloween would have quite sufficed. 

 

Broadcaster Responsiveness 

It is the practice of all CBSC Adjudicating Panels to assess the broadcaster’s responsiveness to the complainant.  Although it is, of course, the case that the broadcaster need not agree with the complainant, it is expected that its representatives charged with replying to complaints will address the complainant’s concerns in a thorough and respectful manner.  In the matter at hand, the broadcaster’s President took the trouble to set out a lengthy, thoughtful and thorough response supplemented by a second thoughtful letter.  The Panel considers that the broadcaster’s obligation of responsiveness has been on this occasion. 

 

announcement of the decision 

CKYK-FM is required to:  1) announce the decision, in the following terms, once during morning peak listening hours within three days following the release of this decision and once more within seven days following the release of this decision during afternoon peak listening hours; 2) within the fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the statement to the complainants who filed the Ruling Request; and 3) at that time, to provide the CBSC with a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CKYK-FM. 

The Canadian Broadcast Standards Council has found that, in broadcasts of October 31 and November 1, 2005, CKYK-FM invaded the privacy of individuals living in its broadcast area.  By broadcasting the civic address of a convicted and released pedophile, which was also the address of other persons living at the same address, CKYK-FM invaded the privacy of the convicted offender and the other co-residents, when it was neither necessary nor in the public interest to do so.  In the circumstances, the Quebec Regional Panel has found that CKYK-FM breached the requirements of Article 4 of the Radio-Television News Directors Association of Canada Code of (Journalistic) Ethics. 

 

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