CTV re a News Report on Charles Ng’s Sentencing

ONTARIO REGIONAL COUNCIL
(CBSC Decision 98/99-1120)
P. Fockler (Vice-Chair), R. Cohen (ad hoc), M. Hogarth and M. Ziniak

THE FACTS

On June 30, 1999, CTV's 11:00 p.m. National Newsreported the results of the sentencing hearing of Charles Ng which had concluded that dayin a California court. Ng, the notorious serial killer who had escaped from California in1985, was recaptured in Canada soon thereafter and extradited to the United States in 1991to face trial, was found guilty in February 1999 of the murders of 1984 and 1985 murdersof 11 individuals (six men, three women and two baby boys). Leonard Lake, his accomplicein those crimes, had committed suicide in 1985. After a lengthy hearing, Ng was sentencedto be executed by lethal injection. As a part of CTV's 1 minute 47 second report of theoutcome of that hearing, the network inserted a video clip of about seven seconds inlength which showed either Ng or Lake beginning to cut the blouse of one of the femalevictims who was at that moment tied helplessly to a chair. The clip used was a shortextract from one of the videotapes exhibited at the trial which had been shot by Ng andhis cohort in the course of their sadistic crimes.

The complainant wrote directly to CTV's VicePresident, News, and then to the CBSC two days later “to express [her] overwhelminganger at the complete decrepitude demonstrated by all involved in broadcasting” thebrief clip showing the victim. While the full text of the correspondence between thecomplainant and CTV's Vice President, News, is included as an Appendix to this decision, a couple of short excerptsare included here.

How would you feel if your murdered daughter,mother, or sister's torture was videotaped and images of her terrifying ordeal werebroadcast across the continent? Doesn't the airing of those segments encroach on therights of that woman's family? How can you justify contributing to the pain of thathorrible nightmare?

… Perhaps you refrained from airing any of thegraphic violence. But the image of that terrified woman having the clothes hacked off herbody will remain with me forever; there is no doubt in my mind that this is the substanceof snuff movies.

… Not only have your actions caused harm to thefamilies of murder victims everywhere, but you have violated my rights as a televisionviewer. I should not have to expect, or be prepared, to be subjected to those kinds ofimages. You may find the torture of murder victims interesting, informative, orpleasurable, but I don't. Yes, human atrocities are committed daily. Yes, this is part ofwhat consists news. I might accept images of torture victims in the context of war, withinthe bounds of graphic content that our society deems acceptable. This might have a purposein informing me of political issues. But I should not have to turn on the news and watchsegments of what essentially is a snuff movie. There is a huge difference between war andthe Ng video. The latter was videotaped for the sole purpose of bringing pleasure to theviewer(s).

CTV's Vice President, News, responded in part asfollows (for his full reply, see the Appendix):

That image itself was troubling. But it was limited,and our editors ensured there was only the cutting of clothing that aired, no torture, nonudity or anything else that occurred during those horrible murders.

The videotape was part of the evidence presented atthe murder trial. Other images from the videotape have appeared elsewhere on news andpublic affairs programs across North America. We apologize if you were offended, but webelieve the single image we used was appropriate in the context of this horrible story.

The complainant was not satisfied by CTV's replyand, among the point-by-point responses to the justifications provided by its VicePresident, News, argued:

– the portion of the videotape shown was only 7seconds long (WHAT DOES LENGTH HAVE TO DO WITH WHETHER IT WAS RIGHT OR WRONG, or WHETHERIT SHOWED DISRESPECT TO THE VICTIM AND HER FAMILY?)

– only this act of violence was shown, not anyfurther torture (IS HAVING YOUR CLOTHES HACKED OFF BEFORE BEING KILLED NOT VIOLENT ENOUGH?THIS VIOLENT ACT WAS VIDEOTAPED FOR THE SOLE PURPOSE OF GIVING SICK PEOPLE PLEASURE. …)

– other networks and newspapers aired or printedsimilar images. (WHAT DOES THIS HAVE TO DO WITH WHETHER IT IS RIGHT OR WRONG? IT SHOULDNEVER HAVE HAPPENED ON ANY NETWORK.)

Your broadcast demonstrated inappropriate editorialjudgment in the reporting of violence, showed irrelevant details, portrayed the victimwithout respect or dignity, and perpetuated the link between women in a sexual context andwomen as victims of violence.

THE DECISION

The Ontario Regional Council reviewed the loggertape of the news report as well as all of the correspondence and considered the complaintunder Article 6 of the Canadian Association of Broadcasters (CAB) Violence Code andArticles 3 and 4 of the Radio and Television News Directors Association of Canada(RTNDA) Code of (Journalistic) Ethics. It is the view of the Council that the reportin question is, as a result of the inclusion of the brief film clip of the victim, inviolation of Article 6 of the Violence Code and Article 4 of the RTNDA Code,although not in breach of Article 3 of the latter Code.

The Characterization of the News Clip

In the view of the Ontario Regional Council, thedecision turns on the characterization of the news clip of Charles Ng (or hisco-assailant) cutting the blouse of the victim, who, as noted above, was tied helplesslyto a chair. CTV's Vice President, News, acknowledged that the “image itself wastroubling” but essentially went no further. He said that the video component was”limited” and argued that “our editors ensured there was only the cuttingof clothing that aired, no torture, no nudity or anything else that occurred duringthose horrible murders. [Emphasis added.]”

That is the nub of the matter. While it is true thatnothing as obvious as nudity or overt brutality and blood was shown, it isdifficult to imagine that the threshold event of the cutting of the victim's clothes whileshe was immobilized, not only physically, but psychologically, could be fairly understoodas causing anything other than helpless agony, stark terror and torture from thevictim's perspective.

Pictorial Representation of Violence and Aggression It is hardly necessary to observe that theCouncil understands and accepts the use of relevant video clips in news stories. As theB.C. Regional Council said in CHAN-TV (BCTV) re Newscast (Toronto Subway Death)(CBSC Decision 97/98-0383, May 20, 1998),

It goes without saying that television news reportsoften contain visuals depicting acts of violence. This is to be expected, for televisionis by its nature a visual medium. Audiences expect more than “talking heads” intheir newscasts and it would be unreasonable on the part of broadcasters not to providethe video elements which are so essential to the medium. That being said, Canada's privatebroadcasters and radio and television news directors have created codes which expresstheir agreed limitations to the depiction of violence. These are found in Clause 6 of the ViolenceCode and Article 3 of the RTNDA Code of (Journalistic) Ethics.

It is the view of the Council that the segmentdepicting the victim employed in this newscast constituted an unnecessary pictorialrepresentation of violence and aggression. In the first place, the CTV story had to dowith the sentencing of one of the two murderers, not with any question of theactual commission of the crimes. If it might have had relevance and purpose intelling the story of the criminal activities themselves (and while the Council does not soconclude in the context of that story), it does readily find that the inclusion ofthe footage in this story was irrelevant.

While the inclusion of unnecessary footage isgenerally a point of little more than the efficacity of the story being told or anevaluation of the quality of the editing of the piece, the potential inconsequentialnature of the evaluation disappears when the material is violent and aggressive. In such acase, Article 6.1 of the Violence Code calls for the use of “appropriateeditorial judgment” in the selection of the pictorial representation. In the B.C.decision referred to above, the four-second video clip of the dying woman was integral tothe very accident which was being reported on the newscast in question. Despite its relevanceto that story, the B.C. Council concluded that relevance is not the only factor to beconsidered in the exercise of appropriate editorial judgment in a given instance.

While, in the matter at hand, the B.C. RegionalCouncil accepts that the news story was inherently violent and that some pictorialrepresentation of the violence that occurred may have been acceptable, it finds that theshot of the victim's face as she lay dying on the paramedics' gurney was utterlyunnecessary to the story. It added no clarification of any of the issues, no expositoryvalue to the sad tale, and no information which the viewer required to understand theseries of events. The additional depiction ought reasonably to have been expected to makea viewer cringe or, at least, feel discomfited.

On this occasion, the Ontario Regional Council alsoconcludes that those responsible for the structure of the story went too far. In the termslaid down in the B.C. case, the shot of the tortured victim was utterly unnecessary,marginally relevant at best, added no clarification of the issues reported that day, noexpository value to the brutal tale and absolutely no information which was required tounderstand the series of events related to the sentencing.

To respond to the broadcaster's assertion, it is notnecessary for a clip to be as unsubtle as including on-screen nudity or physical violenceor bloodshed for it to be readily understood as violent. The Atlantic Regional Councildealt with this concept in two decisions which dealt with dramatic programming, ratherthan actuality, but the underlying principles relating to on-screen versus off-screenimagery are applicable. In CIHF-TV re an episode of Millennium (CBSC Decision96/97-0044, February 14, 1997), the Council found that, in the program in question,

the scenes complained of do not generally show theoccurrence of violent acts as much as they do the results of the violent acts and,at that, the violence is not overplayed. There is also violent imagery andeffective editing which give rise to fear, if not terror, on the part of the viewer.

The matter was explored further in CIHF-TV re anepisode of the X-Files (CBSC Decision 96/97-0043, Decided February 14, 1997), wherethe same Council ruled:

It is the Council's view that scenes which do notdepict violent actions may, nonetheless, constitute “violence” within themeaning of the Violence Code. …

The extent to which the scenes show violent actsrather than consequences of acts, or are graphic rather than subtle, may help to determinewhether or not they are gratuitous in their presentation. They will not, however,escape that characterization solely because they are traces of off-screen occurrences.

Although the broadcaster apparently does not see thecomplainant's point, the Council has no doubt whatsoever that the cutting off of a realvictim's clothes in anticipation of the awful crimes which were to follow (feared,no doubt, by the victim but known after the fact by the television audience) constitutedan act of terrifying violence, exceeding the limits of the term “aggression”used in Article 6.1 of the Violence Code.

Furthermore, the Council considers it important tounderscore the issue raised by the complainant, namely, that “the videotapes [hadbeen] made by Charles Ng and his partner,” in other words, the murderers themselves.While the language of the Violence Code lays down the requirements of”appropriate editorial judgment … in the pictorial representation of violence”in Article 6.1 and A[c]aution … in the selection of video which depicts violence”in Article 6.2, the Council wishes to stress the special additional vigilance whicha broadcaster must bring to any such editorial choices in circumstances where the videomaterial it wishes to use has been created by the perpetrators of a crime as a partof their malevolent activities.

Respect for the Dignity of the Victim

There is no issue here of an invasion ofprivacy. The names of the three female victims had been publicly disclosed during thecourse of the trial (although not revealed in this particular CTV news report). The sisterof one of the victims was also interviewed as a part of this news report. There was noindication, however, in the CTV report of the identity of the particular victim in theseven-second video clip. Insofar as the presentation of an image (which could beidentified by someone) is concerned, the CBSC has said the following in previousdecisions. In CTV re Canada AM (Airborne Hazing) (CBSC Decision 94/95-0159, March12, 1996), the Ontario Council ruled:

The point is that the issue is not so much therecording and broadcasting of the image of the individual as it is the identificationof the person. Where the broadcaster provides no information which permits the public atlarge to identify the individual, such as in this case, the broadcaster has not interferedwith that person's right to privacy. The fact that the individual filmed and those closeto him may know who he is does not interfere with his right to be free from identificationby the public at large.

The B.C. Regional Council ruled similarly in CHAN-TVre Newscast (Recycling Society) (CBSC Decision 96/97-0004, March 10, 1997) as did theOntario Regional Council in CKCO-TV re News Report (Police Arrest) (CBSC Decision96/97-0174, February 20, 1998):

In this case, the Council notes that the report inquestion does not mention the name of either the accused or, for that matter, the victimof the assault, and no other indicators were given in the report which would permit theidentification of the two persons portrayed by persons other than those who already knewthem.

The concern of the Council is not that aspect of Article 4 of the RTNDA Code of (Journalistic) Ethics; it is rather that part ofthe provision relating to the respect for the dignity of the victim. The words of the B.C.Regional Council in CHAN-TV re Newscast (Toronto Subway Death) (CBSC Decision97/98-0383, May 20, 1998) are chillingly apt here:

In the Council's view, there is a distinction to bemade with respect to showing other less readily identifiable parts of a person's body,such as arms, legs, torso, etc. and showing the victim's face. It is not so much an issueof the identification of the individual (especially in this case where the victim had beennamed) as it is an issue of identification of pain, agony, distress, even distortion ofthe individual, in short, an affront to the dignity, if not the privacy, of the victim andher family and friends.

In this case, if not moreso than in the B.C. case,the Council believes that the broadcast of the victim in extremis was a significantaffront to the dignity of the soon-to-be tortured, assaulted and murdered young woman.

Sensationalization

While the complainantdid not herself raise the question of sensationalization in either of the letters she sentto the CBSC, the Council considers that the matter before it bears so many similarities tothe British Columbia decision referred to above that it ought to deal with the issue. Italso provides an opportunity for the Council to expand on its understanding of the meaningof “sensationalize” (as used in “will not sensationalize news items”in Article 3 of the RTNDA Code of Ethics) and the related nouns”sensationalization” and “sensationalism”. As applied in that article,the usage constitutes a relatively modern definition which is related directly to a formof journalism or journalistic practice. The Council understands the clause to mean, forthese purposes, that a broadcaster will not create or so present a news item to shock,rather than inform, the audience. There are obviously stories which, by theirnature, are shocking or terrifying, titillating or salacious. The point, though, is thatbroadcasters adhering to the RTNDA Code of (Journalistic) Ethics agree not topurposefully convert a story which is not or need not be, by its nature, of thatcategory, into one which becomes shocking.

In applying that principle to the matter at hand,the Council considers that, despite the fact that the entire videotape created bythe murderers (and screened in the courtroom) is reported to have included material whichwould have been viewed as sensationalistic, it is not that material which thebroadcaster chose to include in this newscast. While the Council has concluded that nopart of that tape ought to have been broadcast in connection with this story, itdoes not consider that its airing amounted to sensationalization. To adopt the words ofthe B.C. decision referred to above, “while it was unnecessary, and, in thatsense, gratuitous, it was not sensational and consequently not in breach of Article 3 ofthe RTNDA Code of (Journalistic) Ethics.”

The Defences Raised by the Broadcaster The broadcaster’s Vice President, News, statedthat the “videotape was part of the evidence presented at the murder trial.” TheCouncil believes it relevant and important to make absolutely clear the difference betweenthe courtroom and the television screen. In the broad quest for truth which occurs beforea judge, and occasionally a jury, the rules of evidence apply. Any material whichconforms to those rules and is critical to the determination of guilt or innocence may,indeed, must be brought to that forum, however cruel, shocking or violent. There are noother Codes which regulate that entitlement on the basis of the sensibilities of thecourtroom or greater audience at that level. Broadcasters, on the other hand, haveestablished codes to deal with what ought and ought not to be presented to that greateraudience. What has been presented to the judge and jury is not, on that account,necessarily suitable for the television audience. It is for precisely such reasonsthat the broadcasters, with the approval of the regulator, have seen fit to requirethe exercise of appropriate editorial judgment in the selection of video materialto be shown in a news report. Its previous use in a trial is simply not a defence to thosechoices.

As to the fact that the contested images “haveappeared elsewhere on news and public affairs programs across North America,” theCouncil needs only to say two things. First, with respect to the airing of the footage inthe United States of America, the CBSC has often made the point that Canadian and Americanstandards are simply not the same. Not only are the basic provisions of constitutional lawregarding the issue of freedom of expression or speech different, but Americanbroadcasters have also not established any Codes applicable to their industry whileCanadian broadcasters have adopted Codes with respect to ethics, violence, genderportrayal and journalistic ethics. In the result, programming which is acceptable there,where there are no common enforced broadcaster Codes, may not be in Canada and,interestingly enough, some material which is not deemed offensive or problematic here,might not pass muster at the American network Standards and Practices Departments. Simplyput, the standards are not the same on both sides of the border.

Second, with respect to the possible broadcast ofthe footage elsewhere in Canada, it should be remembered that the decisions of the Councilare rendered in response to complaints. They deal with the programming after thefact and only to the extent that it is brought by viewers, or listeners, to theself-regulatory process. If the fact that the material had been aired elsewhere (and,better still, had not been complained of) were a defence, then the wider the spread of theoffending material, the better off the broadcaster would be. Fortunately, that is not thecase; if it were, the self-regulatory system would be a shambles. It is no defence to apossible Code breach that more than one, or even many, broadcasters may have committed it.

It is to the credit of the process which the privatebroadcasters have established that well-publicized decisions of the Council are adhered tonot only by the broadcaster or broadcasters involved in each decision but also by thosebroadcasters to which the identical or even analogous circumstances may apply. When theCBSC's decision in CIII-TV re Mighty Morphin Power Rangers (CBSC Decision93/94-0270 and 0277, October 24, 1994) was rendered, it was respected not only by GlobalTelevision but by other CBSC members and even YTV, at that time not yet a CBSC member.When the decision in CHOM-FM and CILQ-FM re the Howard Stern Show (CBSC Decisions97/98-0001+ and 0015+, October 17 and 18, 1997) was rendered, no other stations in Canadapicked up the syndicated American talk show and the current broadcasters modified theprogram to conform to the Canadian private broadcasters' codified standards. Canadianstations made similar broadcasting choices following the CBSC's decision in CIHF-TV andCKMI-TV re The Jerry Springer Show (CBSC Decisions 97/98-1277 and 98/99-0294 and 446,May 28 and June 23, 1999).

Broadcaster Responsiveness

In addition to assessing the relevance of theCodes to the complaint, the CBSC always assesses the responsiveness of thebroadcaster to the substance of the complaint. In this case, the Council considers thatthe broadcasters' responses addressed fully and fairly the issues raised by thecomplainants. Nothing more is required. Consequently, the broadcaster has not breached theCouncil's standard of responsiveness.

CONTENT OF THE ANNOUNCEMENT OF THE DECISION

The station is required to announce thisdecision forthwith, in the following terms, during prime time and, within the next thirtydays, to provide confirmation of the airing of the statement to the CBSC and to thecomplainant who filed a Ruling Request.

The Canadian Broadcast Standards Council has foundthat CTV breached provisions of the Canadian Association of Broadcasters' Violence Codeand the Radio and Television News Directors Association Code of (Journalistic) Ethicsin its 11 p.m. newscast of June 30, 1999. By including a video shot of one of the victimsof the serial murderer Charles Ng, CTV unnecessarily depicted the violence associated withthat tragedy, contrary to the provisions of Article 6 of the Violence Code. Theaddition of that shot of the victim's face in the last moments of her life also failed toshow respect for the dignity of the victim as required by Article 4 of the RTNDA Codeof (Journalistic) Ethics.

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