On January 19, 1995, during its 7:00 a.m. newscast, Canada AM included a segment relating to the hazing practices of the since-disbanded Airborne Regiment of the Canadian Armed Forces.
Canada AM's regular newscaster, Wei Chen, began her reading of the 7:00a.m. newscast with the Airborne Regiment story. She said:
Good morning, everyone. We begin this morning with anotherhorrifying look at the ugly side of the Canadian military, from ahome video that can only be described as a vulgar record ofsome very repulsive and racist acts. The video was shot in thesummer of 1992 during a hazing ceremony for new members ofthe Canadian Airborne Regiment. You may not want to see thisor hear this. It shows drunk soldiers being smeared with humanfeces, urine and vomit. Again a warning. You will find thesepictures shocking and offensive.
The entire news segment was 1:10 long and the video clip used, (which began33 seconds into the item), was 15 seconds long. The announcer's tone, visual cues andwords made it apparent from the end of the first sentence that the news itemwould be unpleasant. Her explicit warnings were given before the video clipran. Ironically, it would have been very difficult to determine from the poorquality home video most of what was happening but for Wei Chen'sintroductory description.
The viewer provided her complaint to the Coalition for Responsible Televisionon the day of the broadcast. It was only re-submitted by the Coalition to theCBSC two months later, namely, on March 20 and received by the Council onMarch 29. While this is customarily well beyond the delays during which thebroadcaster is required to retain logger tapes and, thus, beyond the time whenthe CBSC can be expected to deal with a matter, the record-keeping and co-operation of the broadcaster permitted the CBSC to deal with the citizen'scomplaint.
In the transcript of the complaint, the viewer described her reaction to thenews item in the following way:
The scene of the Canadian military eating vomit and the acts ofviolence against the other members of the armed forces … andthe black man being abused … I have been gagging. It was fartoo explicit. This was disgusting. I gagged three times.
The Vice-President of CTV News, Eric Morrison, responded to thecomplainant on April 28. He stated:
Please believe that I understand your concern and I ask you toaccept my assurance that we debated this story thoroughlybefore playing the tape. It is unfortunate that horrible events,such as the dehumanization and degradation of human beings,occur, but to shy away from the reality and not make the factsavailable to the public only makes matters worse. CTV doeshave a policy of warning viewers about upcoming footage thatmay be disturbing, and this was effected in connection with thehazing video.
Just by way of information, the tape in our possession containeda number of segments which were even more disgusting thanthose shown on the News; these were omitted out of concern forour viewers' feelings.
The viewer was unsatisfied with this response and requested, on May 5,1995, that the CBSC refer the matter to the appropriate Regional Council foradjudication. She also sent an accompanying letter addressed to the CBSCin which she commented:
I found Mr. Morrison's response somewhat cavalier at the least. I cannot recall a more disturbing display of “facts” in televisionnews it was beyond explicit. I am a little alarmed at CTV'sapparent option to “censor” what is seen by television viewers. I remain concerned about the victims' privacy I was appalledby such an exposure. … I hope I, and my children, can continueto use television for information on local/national/internationalevents.
With her letter to the CBSC, the complainant enclosed a copy of her letterreplying to Mr. Morrison's letter, which elaborated on certain aspects of herletter to the CBSC.
Do not the victims have some right to privacy … I remain veryconcerned at the exposure of these particular victims specifically, an Airborne member of “colour” efforts were nottaken to conceal the identities of the victims of this debasement. What about these men's families and communities? … [Y]ou gobeyond what is necessary to convey acts of injustice and I askyou to step back.
In his covering letter of August 16, 1995, enclosing the logger tapes whichmembers of the Ontario Regional Council ultimately viewed as a part of thisadjudication, Mr. Morrison pointed out that
we did warn viewers of the disturbing footage, and that evenwithout sanitizing we were sensitive as to what could be shownon a morning program.
He referred to two clauses of the Violence Code and asserted that
in this case CTV maintained the balance between the reality ofdegradation, cruelty and racism in the Airborne, while notexaggerating the situation, and we did use editorial judgmentwithin the newscasts.
In addition, CTV has a policy, as set out in our Style andJournalistic Policy Manual, which advises us to question whetherour coverage is likely to serve any constructive purpose beyondsimply engaging the audience's attention, that our newsjudgment must hinge on what is important, and that there be noplace in the news for exploitation or sensationalism. The storyon the Airborne Regiment, together with the story about theincidents in Somalia, led to an independent public inquiry and thedisbanding of the Regiment. Contrary to what [the complainant]feels, we did not go beyond the threshold of what the factsshowed. The racism shown in a division of the Canadian militaryis something that warranted the discomfort we all felt with theimages.
Section 6, Voluntary Code regarding Violence in Television Programming
- Broadcasters shall use appropriate editorial judgment inthe reporting of, and the pictorial representation of violence,aggression or destruction within their news and public affairsprogramming.
- Caution shall be used in the selection of, and repetition of,video which depicts violence.
- Broadcasters shall advise viewers in advance of showingscenes of extra-ordinary violence, or graphic reporting ondelicate subject matter such as sexual assault or court actionrelated to sexual crimes, particularly during afternoon or earlyevening newscasts and updates when children could be viewing.
- While broadcasters shall not exaggerate or exploitsituations of aggression, conflict or confrontation, equal careshall be taken not to sanitize the reality of the human condition.
Article 3, RTNDA Code of Ethics
Broadcast journalists will not sensationalize news items and willresist pressures, whether from inside or outside the broadcastingindustry, to do so. They will in no way distort the news. Broadcast journalists will not edit taped interviews to distort themeaning, intent, or actual words of the interviewee.
Article 4, RTNDA Code of Ethics
Broadcast journalists will always display respect for the dignity,privacy and well-being of everyone with whom they deal, andmake every effort to ensure that the privacy of public persons isinfringed only to the extent necessary to satisfy the publicinterest and accurately report the news.
The Regional Council members viewed a tape of the program in question andreviewed all of the correspondence. The members agreed that the programdid not contravene either of the Codes cited above.
Since, as stated above, this is the first violence complaint to beconsidered under the new Voluntary Code regarding Violence inTelevision Programming, the Council considered it appropriateto remind Canadians that the protection of children was one ofthe pillars of the Code's existence. Furthermore, those whodrafted the Code were conscious of the need to create thisprotection in an environment in which preservation of thefreedom of expression remains a paramount but not immutableprinciple. Public Notice CRTC 1993-149 provides (at p. 2):
The Commission is generally satisfied that theCAB's revised Code achieves the appropriatebalance between preserving freedom of expressionand protecting the viewing public, especiallychildren, from the harmful effects of televisionviolence.
In the case at hand, the Council, in measuring freedom of expression and theprovisions of the Code relating to the broadcasting of news and public affairsprogramming, has additional considerations to meld into its evaluativeprocess. In a sense, the balance is not simply between customary freedomof expression and customary restrictions on that right. News plays a differentrole in the lives of the public.
In a democratic society, one of the fundamental rights of individuals is accessto the news of the day. It is the cornerstone of the citizens' collectiveknowledge base and the foundation of their own ability to evaluate publicpolicy and the performance of their governments at all levels. Consequently,broadcasters' reporting of the news is more than a right; it is a responsibility. The introduction to the RTNDA Code of Ethics states in its preamble that
Recognizing the importance to a democracy of an informedpublic, the members of the RTNDA of Canada believe thebroadcasting of factual, accurately-reported and timely news andpublic affairs is vital.
Clause 6(3) of the CAB Code of Ethics, in the statement and extension of thatprinciple, also provides:
It is recognized that the full, fair and proper presentation of news,opinion, comment and editorial is the prime and fundamentalresponsibility of the broadcast publisher.
Thus, if anything, there must be a greater tolerance by society in the reportingof reality than in the creation of dramatic programming to entertain the public. It is for this reason that Clause 6.6 of the Violence Code explicitly providesthat “care shall be taken not to sanitize the reality of the human condition.” The Code recognizes that society has a right, if not an obligation to havepresented to it the reality of the news, however unpleasant or even intolerablethat news may be from time to time.
This does not, however, open the floodgates to every bit of reality which could be defined as news or every bit of every story which ought to be brought tothe attention of the Canadian public. Elements of editorial judgment must beexercised on many levels. Since, in the first place, there are innumerablestories competing for the time available in any newscast, a story ought to bereported for reasons “beyond simply engaging the audience's attention”, asCTV News' Vice-President said in his letter of August 16. A story broadcastsimply to engage the public's attention would likely be characterized assensationalism and thus in breach of the RTNDA Code of Ethics.
Almost every story which must be told will require editorial judgment as to howit will be told. Nor will every story requiring such judgment ultimately come tothe CBSC's attention. Such rare occurrences will generally be those which,in their edited form, still attract viewer attention by reason of their frightening,violent, graphic or other unpleasant characteristics. In each such case, thebroadcaster must temper the public's need to know with the measure of howmuch needs to be known so as not to exceed the bounds provided in theViolence Code.
The clauses dealing with this point collectively require editorial judgment “inthe reporting of, and the pictorial representation of violence, aggression ordestruction” in news stories. Broadcasters must use “caution” in the selectionof the video clips depicting violence which they run. They must not”exaggerate or exploit situations of aggression, conflict or confrontation” insuch reports and they must be discreet in their “use of explicit or graphiclanguage related to stories of destruction, accidents or sexual violence.” Finally, it should be noted that, in circumstances in which the exercise ofcareful editorial judgment still results in the legitimate need to broadcast”scenes of extra-ordinary violence, or graphic reporting on delicate subjectmatter”, the broadcaster “shall advise viewers in advance” of the sequence ofwhat is to come. While the public in general must be informed, individualviewers are, of course, entitled to decide what is not palatable for them andtheir families.
In the view of the Council, the CTV News Department fulfilled all of itsresponsibilities. In the first place, it is clear that the story had to be told. Withthe benefit of hindsight, Canadians know that this story has remained a matterof great institutional importance up to and including the date of this decisionand current events indicate that the end of this sorry episode of Canadianmilitary history is not yet in sight. There can thus be no doubt but that CTV'sforesight in running the story was entirely justified.
The question is then whether the editorial judgment exercised wasappropriate. Members of the Council were aware not only of what materialwas used by CTV but also, broadly speaking, of how much more videomaterial might have been selected. However unpleasant was the materialwhich was used, there were, Council concluded, much more explicit andlengthier clips which could have been chosen for airing. If anything, memberswere hard pressed, in viewing and re-viewing the 15 seconds of material, tofind bits which were as visually unpleasant as the warning had suggested. Inthe view of the Council, CTV News, while clearly not sanitizing the report, hadnot either exaggerated or exploited it as a function of what could have beenshown. Members were of the view that CTV had exercised caution, asrequired by the Violence Code.
There is a further question to consider, namely, whether the viewer advisorywas required at all and, if so, whether it was appropriate as a function of thehour of the newscast in question. In this connection, the Council consideredthe wording of Clause 6.3 of the Violence Code, which provides for anadvisory in advance of the broadcast of scenes of “extra-ordinary violence, orgraphic reporting on delicate subject matter … particularly during afternoon orearly evening newscasts and updates when children could be viewing.” In theCouncil's view, despite the absence of an explicit reference to “morning” in theprovision regarding the timing of newscasts, it was the intention of the framersof the Code to include all time periods “when children could be viewing” asrequiring advisories. Hence, the 7:00 a.m. newscast would be included in theadvisory requirement.
It was, furthermore, the view of the Council that the advisory read by thenewscaster constituted an ample warning. It was clear and unambiguous. Viewers were alerted to the fact that what was about to be shown was “avulgar record” and would be “shocking and offensive”. If anything, Councilmembers did not consider that all of the elements described were visuallyapparent; some may not have been recognized as what they were without theannouncer's description.
It would be right to observe here that Article 4 of the RTNDA Code of Ethics, in dealing with the issue of privacy, makes specific reference to the privacy ofpublic persons and not to private persons. This is perhaps because theremay otherwise be a tendency on the part of citizens to believe that they havea proprietary interest in the lives of persons who have chosen to makethemselves, in part, very public. This could not be said to be the same in thecase of non-public figures.
In general, it is also true to observe that the private lives of individuals are oflittle or no interest to the public. There must, however, be exceptions to thisprinciple or we would never, as a society, be entitled to see news stories ontelevision on the grounds that they may contain footage of an unwillingparticipant in the event. It would not be realistic, for example, for televisionstation news teams to seek permission from everyone who might be seen oncamera at a crime scene, an accident, the picketing of a shop or a legislature,the arrival of a public figure or other events too numerous to describe here.
The point is that the issue is not so much the recording and broadcasting ofthe image of the individual as it is the identification of the person. Where thebroadcaster provides no information which permits the public at large toidentify the individual, such as in this case, the broadcaster has not interferedwith that person's right to privacy. The fact that the individual filmed andthose close to him may know who he is does not interfere with his right to befree from identification by the public at large.
Circumstances do, moreover, arise from time to time in which the publicinterest in an event may override the otherwise legitimate interest ofindividuals to keep their identity and activities free from filmed scrutiny. Evena situation such as the hazing ritual in which a home video camera rather thana broadcaster's equipment was present would give rise to this principle. Thepublic had such an abiding interest in learning about the unorthodox andapparently discriminatory practices of the Regiment, whose members hadkilled Somalis in questionable circumstances thereby affecting the reputationof the country in its international peace-keeping role, that the private interestof any individuals seen in the film in question would have been overridden bythe public's need to know.
The Council was unable to agree at all with the complainant's contention thatMr. Morrison was “cavalier” in his reply. That the incident was a “disturbingdisplay” was not CTV's fault. The video record's explicitness was the majorevidence of the story. The story's survival depended on the video existenceof the “disturbing display”. One might argue that, in this case, as in theRodney King case in the United States, the public interest was served by therecording of the awful events. Their appalling nature might have disappearedfrom scrutiny had not the the record been brought to the attention of thepeople. The broadcaster's editorial choices were even-handed and itsresponse to the viewer equally fair; the broadcaster cannot always expect tosatisfy the viewer who, after all, begins a complaint letter in a negative frameof mind but the broadcaster must be responsive. That was achieved in thiscase.
This decision is a public document upon its release by the CanadianBroadcast Standards Council and may be reported, announced, or read bythe station against which the complaint had originally been made; however,in the case of a favourable decision, the station is under no obligation toannounce the result.