CTV re W-Five (Swingers)

ATLANTIC REGIONAL PANEL
(CBSC Decision 99/00-0347)
Z. Rideout (Chair), R. Cohen (ad hoc), K. MacAulay, R. McKeen, H. Montbourquette

THE FACTS

On February 1, 2000, the W-Five episode included a segment entitled “Bob & Carol & Ted & Alice 2000″which was dedicated to the issue of swinging, a practice which, as Tom Clark, the programhost, and Wei Chen, the segment host, noted, had been more in vogue in the 1970s but wasnow enjoying a revival following the apparent societal concerns about venereal disease inthe intervening period. Although the program ran in other regions of the country on thatdate at different hours, it was seen by the complainant in Halifax, where it ran between8:00 and 9:00 p.m. on that date; the challenged segment was aired at 8:30 p.m. At thebeginning of the program, Tom Clark states: ''We caution that this is a mature subject andit is intended for adults.” A similar type of oral advisory is again given by theprogram host about midway through the broadcast.

The segment personifies the resurgence of theswingers lifestyle in Canada by following two couples, euphemistically identified as Boband Carol and Ted and Alice, from clothed interviews to the verge of their sexualinteraction toward the end of the segment. During the interview component, the couplesexpress their views on the subject quite candidly, elaborating on the need to concealtheir activities from their children and families. Other persons, one of whom is asexologist, share their opinions and experiences as well.

Among the various scenes, some of whichappear to take place on a dance floor, several unidentifiable couples are shown moving tothe music and embracing, if not groping, each other. While it is fair to say that there isno explicit sexual activity in the segment, there are certainly quite suggestive scenes,including those in the hot tub, in which Bob and Carol and Ted and Alice are shownundressing and stepping into the tub. In the process, we see the men's buttocks and thewomen's breasts. The couples are also shown kissing while the men fondle the women'sbreasts. Once out of the hot tub, the two couples are shown drying off and then fallingonto the bed. We then see both couples in bed continuing their foreplay but no explicitsexual acts are shown.

The complainant wrote to the CRTC thefollowing day. His letter was, in the ordinary course, forwarded to the CBSC. He said, inpart (the full text of this letter and all the other correspondence is reproduced in the Appendix hereto):

While watching the CTV program W5 lastevening (8:00-9:00 p.m., AST), I was dismayed to see that it had a segment devoted to”Swingers” (people who exchange spouses for sexual purposes). What I founddisturbing was that the segment showed complete frontal female nudity and also a malefondling the breasts of a female. I think that this was highly inappropriate for the timeslot allotted to the program.

The Vice-President of News and ExecutiveProducer of W-Five replied on March 2 as follows, in principal part:

W-Five clearly warned viewers before thedocumentary began, that the subject matter was intended for a mature audience. Thiswarning was repeated half-way through the documentary. Viewers had the option to switchchannels or turn the television off.

The program originated from CTV in Toronto.This segment was broadcast in different time zones across the country. In the Eastern Timezone it aired at 10:30 p.m. B 11:00 p.m., while in some parts of the country between 8:30p.m. B 9:00 p.m. We at CTV are sensitive to who is watching our news programming atdifferent times of the day. We regularly edit out violent images from war zones or crimescenes that we deem to be gratuitous. Similarly we edit out images where the only purposeis to titillate. While we edit out material, we also seek to achieve a balance inpresenting images that illustrate a story or issue.

The McSorley stick swing incident is a casein point. It was a horrible and violent picture but at the same time it was we believe,important to use the images throughout the broadcast day in the context of reporting onhockey violence. While a TV movie or drama about hockey violence might be restricted tolate hour viewing, news and public affairs programming is different and must have theability to report on topics some may consider sensitive or offensive.

When the subject of a documentary isrelationships and human sexuality, it is important to illustrate the issue in a limitedand tasteful fashion without being pornographic or obscene. Eighty percent of thedocumentary was composed of on-camera interviews with individuals explaining in their ownwords, and willingly, their interests in this lifestyle. The pictures used for thisprogram were carefully filmed and edited so as not to be salacious or prurient.

Allow me to explain why we chose to report onthis topic.

CTV has a responsibility to report on allaspects of Canadian society, including issues about morality. This obligation is set outin The Broadcasting Act which states broadcasters should:

“provide a reasonable opportunity forthe public to be exposed to the expression of differing views on matters of publicconcern…”

We believe morality is an issue of publicconcern. As with most important issues, there are many varied and divergent ideas. TheW-FIVE documentary reported on the resurgence and renewed interest in the swingers'lifestyle and we believe it was an appropriate topic that reflects some circumstances ofcontemporary Canadian life.

The complainant was dissatisfied with thereply and expressed his unhappiness in the following terms, in part:

I received this somewhat self-serving andarrogant reply from CTV regarding my original complaint. I believe my original point thatthis program was inappropriate for the time slot was totally glossed over.

Please notice that they showed thisparticular program at a later time slot in other markets, but chose to air it in theMaritimes during a time when children would be watching. The Maritimes should have beengiven the same consideration as the rest of the country.

THE DECISION

The Atlantic Regional Panel considered thecomplaint under the following provisions of the Sex-Role Portrayal Code and the ViolenceCode.

CAB Sex-Role Portrayal Code, Clause 4 (Exploitation)

Television and radio programming shallrefrain from the exploitation of women, men and children. Negative or degrading commentson the role and nature of women, men or children in society shall be avoided. Modes ofdress, camera focus on areas of the body and similar modes of portrayal should not bedegrading to either sex. The sexualization of children through dress or behaviour is notacceptable.

Guidance: “Sex-ploitation”through dress is one area in which the sexes have traditionally differed, with more womenportrayed in scant clothing and alluring postures.

CAB Violence Code, Article 3.1.1(Scheduling)

Programming which contains scenes of violenceintended for adult audiences shall not be telecast before the late evening viewing period,defined as 9 pm to 6 am.

(Note: To accommodate the reality of timezone differences, and Canadian distant signal importation, these guidelines shall beapplied to the time zone in which the signal originates.)

The Regional Panel Adjudicators watched thetape of the program which they received from the broadcaster and reviewed all of thecorrespondence. While, for the reasons given below, the Panel does not consider theprogram in question in breach of the CAB Sex-Role Portrayal Code, it finds thescheduling of the program before the Watershed in violation of the scheduling provisionsof the Violence Code.

Preliminary Issue: The Logger Tape As noted above, Panel Adjudicators viewed thetape received from the broadcaster. Normally, the broadcaster supplies a dub from thelogger tape of the challenged program, which provides a time code, indicating preciselywhen the programming in question aired. In this case, CTV provided the Panel with a dub ofthe master of the program without time code. Given the central importance of the broadcasthour to this complaint, a dub of the logger tape of the program as broadcast in Halifaxwould have been particularly useful.

The Subject Matter: Too Exploitative?

It is the experience of the CBSC thatprograms dealing with such an overtly sexual subject sometimes lead to some sensitivity ofreaction on the part of the viewing audience. This does not, of course, mean that thebroadcaster ought not to air such a program. As the broadcaster correctly points out, the BroadcastingAct itself provides, in Section 3(1)(i), that

the programming provided by the Canadianbroadcasting system should

(iv) provide a reasonable opportunity for thepublic to be exposed to the expression of differing views on matters of public concern.

To this the Panel would add that Section3(1)(i) also provides that

the programming provided by the Canadianbroadcasting system should

(i) be varied and comprehensive, providing abalance of information, enlightenment and entertainment for men, women and children of allages, interests and tastes

While the Panel is well aware that this wasnot the primary concern of the complainant, it considers that it ought to deal with thispotentially contentious aspect of the segment in question.

In this regard, the Panel concludes that thesegment in question was of the well-known nature of a magazine format news and publicaffairs show and was produced with the goal and intention of being “limited andtasteful … without being pornographic or obscene.” Moreover, it is clear that, interms of the Sex-Role Portrayal Code, it is not exploitative with respect to thepresentation of either of the sexes vis-à-vis the other. Nor was there anything in thesegment which would lead anyone to conclude that there is anything negative or degradingstated or suggested with regards to either men or women as a group.

The Subject Matter: Intended for Adults? It remains for the Atlantic Regional Panel todetermine whether the subject matter is intended for adults. It is true that the programhost stated at the start of the program and again halfway through it that it was. Thatwould not alone be determinative of the issue; however, in consideration of all of theelements of the segment, the Panel does not consider that it is possible for it toconclude otherwise. In this connection, it should be noted that the fact that theprogramming was of the nature of news and public affairs does not rescue it from itsorientation. While the Panel has no quarrel with the importance of broadcasters treatingmatters of public interest even when they may have an erotic component, the issue iswhether they are oriented exclusively toward adults. In this regard, reference to a numberof previous Quebec decisions is pertinent.

It is true that, in TQS re the Movie StripTease (CBSC Decision 98/99-0441, February 21, 2000), the Quebec Regional Panelconcluded that the showing of bare breasts prior to the Watershed hour of 9 p.m. was notin breach of the Code. In effect, that Panel drew the conclusion (material to this matter)that the presence of bare breasts on screen did not characterize such programming as necessarilyintended exclusively for adults.

It is the view of the Council that, in thecase of the film Strip Tease, the showing of the bare breasts of Demi Moore or theother dancers was in no way comparable to the erotic matter in été sensuel [TQSre été sensuel (CBSC Decision 95/96-0233, August 14, 1998)], much less than in L'inconnu.While acknowledging that the showing of bare breasts on strip tease dancers was intendedby the filmmaker to be sexual, the Council considers that the absence of sexual contact orlovemaking in the film rendered it, to all intents and purposes, sufficiently innocentthat there would not even be a requirement that its broadcast occur only in apost-watershed time frame.

It is also true that, in its decision in TQS re an episode of the program Faut le voir pour le croire (CBSC Decision 99/00-0460,August 29, 2000), the same Panel found that the content of that program differed from thatin Strip Tease. It held:

The Council has no hesitation in concludingthat this case differs significantly from TQS re the Movie Strip-Tease. In thiscase, the broadcaster has supplied the element missing from Strip Tease which mightresult in a conclusion of inappropriateness of the program in a pre-Watershed environment.In the view of the Council, the sexual activity portrayed in this case was clearly of anature intended for adult audiences. The practice of cunnilingus, the love-making in theclandestine circumstances of a parking garage on the hood of a car, the sexual interludein an elevator, these are all activities which may not be problematic in the context ofadult audiences but are entirely inappropriate, as the complainant states, for children.

Similarly, in TQS re an episode of 2000ans de bogues (CBSC Decisions 99/00-0116 and 0345, August 29, 2000), the Panelconsidered that the program content was sufficiently erotic to be intended for adults.

In this case, the Council is of the opinionthat the symphony of images presented in the program 2000 ans de bogues istoo risqué to be aired at 7:30 p.m. There are numerous illustrations of what concerns theCouncil. Among other things, despite the fact that they were run at double speed anddigital pixillation had concealed the actors' genitalia, the sexual acts during thepornography segment were excessive. Moreover, in distinct contrast to the film StripTease, the scenes of nudity in this case are presented in an overwhelmingly eroticcontext, namely, in one part of the episode, during the making of a pornographic film. In 2000ans de bogues, not only are we able to see the actresses' bare breasts, we are alsoable to see them engaging in explicitly sexual acts. The Council has no doubt that suchscenes belong to the category of programming considered to be “intended for adultaudiences”

In the case of the W-Five segment, there can be no doubt but that the material went beyond the bare breasts of Strip Tease.Here, the bare breasts and buttocks were displayed precisely because they were related to sexual activity. In fact, the discussion of that activity by third parties and by the veryparticipants made it clear that this link was intended. The scenes of groping on the dance floor, the foreplay in the hot tub, the preliminary retirement to bed all make it clear toany viewer that what nakedness is shown is in a sexual context. The Panel does notconsider that it is necessary that the purpose of the show's producer is totitillate. It suffices that the link between nudity and sexual activity is sufficiently established.

It should be added that the Panel is equallyconscious of the fact that the swingers themselves made it absolutely clear that theyconsidered it necessary to deceive their families, to lie to them about what they aredoing. If this was not a matter suitable for their own children to learn, the Panel hasdoubts about the appropriateness of such information for other young people. As notedabove, this appears also to have been the view of the broadcaster, for Tom Clark began thesegment with the statement quoted above, namely, “We caution that this is a maturesubject and it is intended for adults.”

Application of these Principles to the Watershed Requirement

Having determined that the segment inquestion was, by all accounts, intended for adults, there can be no doubt that thebroadcast of it prior to the Watershed constitutes a breach of the scheduling provision ofthe Violence Code. As the complainant argued, the material “was highlyinappropriate for the time slot allotted to the program.”

If anything, the argument of the VicePresident of News, was convoluted on the issue of when the program actually played. Hesaid:

The program originated from CTV in Toronto.This segment was broadcast in different time zones across the country. In the Eastern Timezone it aired at 10:30 p.m. B 11:00 p.m., while in some parts of the country between 8:30p.m. B 9:00 p.m.

It should be clear to broadcasters andmembers of the public that the exception provided in the Violence Code regarding”Canadian distant signal importation” only applies to the time zone in which thesignal originates and not to the time zone in which the programmingoriginates. The difference, in other words, is between the extension over two or three ormore time zones of a signal which is transmitted at one instant in time tothat broader audience, on the one hand, and the simple delivery of a program(whether by satellite, cassette or other means) on a non-time sensitive basis to thebroadcaster which will then deliver the signal to its local audience, on the other.In the first case, the Code protects the originator of the signal; in the second case, itdoes not.

In this case, the Panel accepts the pointthat the programming originated in Toronto where the segment appears to have beenbroadcast at 10:30 p.m. In the Atlantic region, however, the program was run at 8:00 p.m.and the segment in question at about 8:30 p.m. In fact, in this case, the signaloriginated at that hour in the complainant's time zone. As the CTV representative said,the program did originate “In some parts of the country between 8:30 p.m.-9:00p.m.” This was one of those places. Where the others may have been, if anywhere, isnot disclosed.

In the matter at hand, there can, therefore,be no doubt but that the broadcast in question was in breach of the scheduling provisionof the Code.

Broadcaster Responsiveness

The CBSC always recognises the broadcaster'sobligation, as a CBSC member, to be responsive to complainants. In the present case, thePanel regrets the fact that the broadcaster's Vice President of News wrote of many issuessurrounding the airing of the show without dealing with the principalconcern of the viewer, namely, the time slot in which the episode of W-Five aired.He referred to the fact that the show aired in different time zones in the country,never acknowledged that it had even run in the Atlantic Region in the 8:30-9:00p.m. time slot, and never responded in any way to that concern of the complainant. Abroadcaster is never constrained to agree with the complainant as a part of theprocess; however, the CBSC does expect that broadcasters will at least attempt to beresponsive to the major concerns which are raised. In any event, the Vice President ofNews did discuss other substantive issues and, with respect to these, provided thoughtfuland important information. On balance, the Panel finds the letter satisfactory.

CONTENTS OF THE ANNOUNCEMENT OF THE DECISION

The broadcaster 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 hasfound that CTV has breached the scheduling provision of the Canadian Association ofBroadcasters' Violence Code in its broadcast of an episode of W-Five onFebruary 1, 2000. The Council considers the program contained scenes of sexuality intendedfor an adult audience. By airing the program in the early evening, at 8:30 p.m., ratherthan after the Watershed hour, CTV breached the scheduling requirements set out in Article3 of the Violence Code.

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