THE FACTS
At the time of this complaint, Howard Galganov, well-known political campaigner for the rights of English-language Quebeckers, hosted a morning show on CIQC-AM (Montreal) which ran from about 7:00 a.m., following the morning news, to 10 a.m. The first two hours of Galganov in the Morning consisted of chit chat between Mr. Galganov and his co-host, Jim Connell, various interviews and discussion of current affairs topics. This time slot also made room for a daily "editorial" by Howard Galganov. The last hour of the show was dedicated to taking calls from listeners. On December 9, 1997, Mr. Galganov chose to discuss a complaint about his show which had been forwarded to the station by the CBSC for its response. (This complaint is dealt with in CBSC Decision 97/98-0473, decided and released concurrently with the present decision.) At approximately 7:45 a.m., he made the following comments concerning the complaint and the complainant (a more complete transcript of the day’s broadcast is provided in Appendix A to this decision):
We got a letter today. This really infuriates me and I want to tell you, Jim, I’m speaking on my behalf exclusively and not the radio station. I’m sure the radio station would much rather prefer that I not even mention this, but the Canadian Broadcast Standards Council sent us a letter giving us two weeks to apologize to this woman who made these complaints about the language that I use and the things I’ve called separatists and it gives us two weeks to apologize. So I’m not going to take the two weeks. The radio station can do whatever they want and this is not the radio station, this is me, Howard Galganov, not even you, Jim, it’s myself. The Canadian Broadcast Standards Council, screw off. You know, I can’t believe it, in this letter, you know what they said? You can’t publish the person’s name, or you can’t mention the person’s name who is complaining about you, who sent the document off to the CRTC, who sent the document off to the Canadian Broadcast Standards Council and who’s demanding an apology, or they’re demanding an apology in her name. But yet I can’t mention her name because I don’t know why. So don’t say another word, Jim, because this has nothing to do with you, it has nothing to do with the radio station, screw them and her. Her name is [he gives the complainant’s full name]. If they don’t like it, they can get me off the air but I’m not going to be censored. You know, these are the guys who are going after Howard Stern because they don’t like the language he uses. What are they, the taste police? If it doesn’t suit their taste or their taste standards then we can’t say it on the air? No, I don’t need censorship. You know, this [unfinished sentence]. I enjoy doing this show, Jim, but I don’t enjoy doing this show enough have some pissant in Toronto tell me what I can and can’t say to the people who are listening to this station. And the moment I can’t say what I want to say, then what the hell am I here for? I’ll be like the other guys over on Fort Street. They’re here to entertain and titillate and do whatever they want to do.
You know, we’ve made more of a difference in this marketplace in the last three months than I think all of the radio stations in Montreal have done combined in the last three years. And you got some ass at the Canadian Broadcast Standards Council whose trying to piss all over our parade? Ah, screw them. And again, this has nothing to do with the station. The owners of the station, I’m sure, are not pleased to be hearing this, but you know, I got a day job. Anyways, Jim, do you think we are still on the air?
The complaint was also one of the topics discussed during the open-line portion of the show. The comments of one caller, referred to as "Robert", were particularly pointed towards the complainant:
Caller Robert: This [full name of complainant], is she the same [complainant’s first name] that called you a couple of times?
Howard Galganov: I’m sure she is. She sent off this, I don’t know how many pages anymore, 8, 10, 12 pages of hand written logs of the show. She’s recorded every segment you can think of. Every time I called them separatists bastards or shit-holes or peckerheads, she’s recorded everything with the time and the circumstances. She sends it off to the CRTC, but she didn’t send us a signed copy. She sent us a copy without her name.
Robert: Okay, but she’s come on the air several times. She comes on Joe Cannon’s show also. She has this pathetic story about her father’s car being broken down or something, and she makes no qualms about it that she is a separatist.
Howard Galganov: Yeah, but who cares, you know?
Robert: Why doesn’t she listen to another radio station?
Howard Galganov: That’s what really bothers me about the Canadian Broadcast Standards Council. If someone doesn’t like what I say or the way I say it, turn me off. Just go to another station, just turn me off. But she doesn’t have the right to tell you, Robert, what you can hear and can’t hear, ’cause you have the right to turn me off too.
Robert: Well, worse than that, she has no right to come on the radio station and say she’s a separatist, number one.
Howard Galganov: Actually, she does. She has the right to do that and I have the right to say "Look, I don’t want to talk." I won’t speak to Louis about it on the phone or Gérard. I’m not interested.
Robert: She shouldn’t say that right up front. She can get into it later on, but to come on [unfinished sentence] Obviously she has some kind of character flaw to have to say that right in advance. She wants to go against the grain or she wants [interrupted]
Howard Galganov: Yeah, but, Robert, that’s [unfinished sentence]. Robert, that’s fine. I don’t have a problem with that, because I have the same right to say "Goodbye."
Robert: Yeah, of course, but I mean, why does she have to open up the conversation with that right away? She needs an identity. She’s an inferior person. She’s got an inferiority complex. She listens to people talking on the radio and she can’t fit in. She’s got to throw whatever it is she’s throwing out here. I have one thing to say to her : "Va donc chier, pis crève." That’s it. Ha, ha, ha.
Howard Galganov: Well that’s pretty clear [laughter]. All she needs is a life and all the station’s going to need is a [inaudible]. That’s all. Life’s easy.
Another caller, "Carol" also had a "message" for the complainant:
Caller Carol: Good morning, Howard. Yes, I think you have no apologies to make to anybody, especially to Josée Legault [reporter for Le Devoir] and [the complainant’s full name].
Howard Galganov: Oh thank you, and I don’t think [unfinished sentence]. I don’t think I do either, Carol. I think, if anything, these people, if they started apologizing today, we would have to wait til the turn of the century before they’ve apologized enough for everything that they’ve done and said over the last 30 years.
Carol: On the lighter side, I’m the mom of that very political little 3 year old boy. He’s got a message for those two ladies and here it is: [sound of a child’s toy] "The cow says Mooooo." [Laughter] So keep up the good work, Howard. Goodbye!
Howard Galganov: Carol, thank you very much. Goodbye. I wonder if there is a market in producing separatist cows to sell in the stores for Christmas. Maybe there is. I guess I’m a bit too late for it.
The majority of callers to the December 9th open-line portion of Galganov in the Morning, however, either did not deal with the topic of the complaint at all (contrary to the complainant’s contention) or mentioned her name only as part of a general comment on the issue of censorship without making specific statements about her.
The Letter of Complaint
On January 5, 1998, the complainant wrote a follow-up letter to her initial complaint which was discussed on the December 9th broadcast of Galganov in the Morning. Her letter stated in part (its full text is included in Appendix B to this decision):
[Translation] The host not only made extensive comments about me, revealing my identity, he also invited his listeners to participate in his usual open-line portion of the program from 9 to 10 a.m. which, on that day, was dedicated entirely to this issue. Caller after caller insulted me, calling me a "cow" among other things, always being mindful of repeating my first and last name, as Mr. Galganov had done so well many times before! The host’s encouragement of these hateful exchanges only goes to show his arrogance and his baseness.
Other Correspondence
No written response from the broadcaster was received by the complainant (or the CBSC). During a telephone conversation between the CBSC’s National Chair and Pierre Béland, the President of CIQC-AM, on December 10, it was agreed that Mr Béland would call the complainant to apologize and explain the error which resulted in her name being broadcast by Mr. Galganov on the air. This was confirmed in a follow-up letter sent that same day by the CBSC’s National Chair:
[Translation] Thank you for this morning’s call. ... The explanation provided by you and your employees promises a positive result with respect to the complainant’s concerns. I appreciate the explanatory call which you will make to the complainant. I hope she will understand that this error was accidental.
As to the substance of the complaint, I hope that the person who will be charged with responding will take the necessary time to consider all the detailed information she has built up in support of her complaint.
This courtesy call never occurred, according to the complainant’s letter dated January 5, 1998:
[Translation] Following the broadcast of the December 9th show, I contacted [the CBSC]. [The Administrative Assistant] called me the next day to tell me that Mr. Béland was going to call me soon in order to apologize for the on-air comments of his host. Not only did he never call to apologize, he didn’t even respond to my complaint dated December 1st. I even waited an additional two weeks beyond December 23rd deadline granted to him to reply. His blatant disregard for my complaint goes to show his lack of responsibility in defending what he probably considers a "lost cause".
THE DECISION
The CBSC’s Quebec Regional Council considered the complaint under the Code of Ethics of the Canadian Association of Broadcasters (CAB) and, by analogy, Article 4 of the RTNDA Code of (Journalistic) Ethics. The relevant clauses read as follows:
CAB Code of Ethics, Clause 6 (News)
It shall be the responsibility of member stations to ensure that news shall be represented with accuracy and without bias. The member station shall satisfy itself that the arrangements made for obtaining news ensure this result. It shall also ensure that news broadcasts are not editorial. News shall not be selected for the purpose of furthering or hindering either side of any controversial public issue, nor shall it be designed by the beliefs or opinions or desires of the station management, the editor or others engaged in its preparation or delivery. The fundamental purpose of news dissemination in a democracy is to enable people to know what is happening, and to understand events so that they may form their own conclusions.
Therefore, nothing in the foregoing shall be understood as preventing news broadcasters from analysing and elucidating news so long as such analysis or comment is clearly labelled as such and kept distinct from regular news presentations. Member stations will, insofar as practical, endeavour to provide editorial opinion which shall be clearly labelled as such and kept entirely distinct from regular broadcasts of news or analysis and opinion.
It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of the broadcast publisher.
RTNDA Code of (Journalistic) Ethics - Article 4
Broadcast journalists will always display respect for the dignity, privacy and well-being of everyone with whom they deal, and make every effort to ensure that the privacy of public persons is infringed only to the extent necessary to satisfy the public interest and accurately report the news.
The Regional Council members listened to a tape of the December 9 broadcast and reviewed all of the correspondence. The Council considers that the broadcaster breached clause 6 of the CAB Code of Ethics by allowing its morning show host Howard Galganov to personally identify and attack a listener/complainant on the airwaves.
Full, Fair and Proper Comment
In CKAC-AM re the Gilles Proulx Show (CBSC Decision 94/95-0136, December 6, 1995), the Council was faced with a situation very similar to this one. In that case, as here, a letter of complaint from a listener was followed by the broadcast which became the subject matter of the complaint by the same listener. In that case, a listener sent two letters commenting on the treatment of listeners and the use of the French language by one of the station’s talk show hosts. The host responded on air, calling the complainant "petite niaiseuse" (dumb broad) and "an idiot" and exclaiming that she "needs a good lay" and is "as ugly as sin". In finding the broadcaster in breach, the Council stated:
Even if the complainant’s initial letter had been unduly provocative regarding the host’s on-air attitudes, tone and practices, and the Council makes no evaluation of this nature here, it would not give rise to an entitlement on the part of the host to ridicule, demean and insult the letter-writer. The host’s right to defend himself and his style does not extend to the personalized debasing of his critics. The listening public has every right to expect higher standards of those persons whom broadcasters choose to place on the airwaves.
The Council also made the following comments regarding the public nature of the airwaves.
While the Regional Council recognizes that the Gilles Proulx Show is essentially one of provocative discussion and debate regarding issues of public importance, it equally recognizes that this does not accord the host unlimited freedom of speech. If such an untrammelled right exists in the host’s own living room or, to a lesser extent, in the middle of Parc Lafontaine, it does not exist on the Canadian airwaves. Indeed, radio and television stations in Canada are granted the privilege of using broadcasting frequencies with a view to providing, as stated in section 3(1)(b) of the Broadcasting Act, "a public service essential to the maintenance and enhancement of national identity and cultural sovereignty [emphasis added]". In this instance, however, the host’s extensive, excessive and abusive commentary on the complainant’s letters to the station in no way furthered public debate or discussion on issues of public importance. Rather, the host used the airwaves to exact a form of private vengeance on an individual listener. ...
The station also breached the requirement to ensure the "full, fair and proper presentation of ... comment", pursuant to Clause 6(3) of the CAB Code of Ethics. The Regional Council believes that the comments made by Proulx about the listener constituted gratuitous personal attacks and an irresponsible use of the airwaves by the station. They were neither fair nor proper.
While the Council upheld the right to express political criticism, even vehemently, in its corresponding decision on Galganov in the Morning, also released today (see CBSC Decision 97/98-0473), it considers that the principles set out in that case cannot be applied here. In that case, the Council stated
There is no doubt that Howard Galganov's opinions are expressed strongly, even vehemently, and, some might say, inflexibly, whether off or on the air. The host might even wear any such characterization as a red badge of courage. The question for the Council, though, is whether political views, even thus expressed, are subject to curtailment or restriction. While freedom of expression is one of the fundamental freedoms enumerated in Section 2 of the Charter, it is a freedom which was not drafted as absolute. As Section 1 of the Charter provides, these freedoms are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Although the Codes administered by the CBSC are not subject to the application of the Charter, the Council has always proceeded with its deliberations on the basis that freedom of expression is fundamental to the rights of the broadcasters but that even they fully expect that the Codes they have created are of the nature of those reasonable proscriptions which ought to apply in the free and democratic society of which they are a part. The foregoing being said, it is the view of the Council that, of all of the categories of speech, none can be worthier of protection than that speech which can be described as political. After all, the freedom to express political views is at the very root of the need for a guarantee of freedom of expression in the first place. It is that speech which has historically been the bridge to democracy. This is not to say that all speech which can be described as political will be free from any oversight but rather that such speech will be most carefully protected in the face of that oversight.
In this case, however, the Council must deal, not with general comments directed at an ideological group, but with strong criticism directed at a specific, identified individual who does not benefit from the same access to the airwaves. The Council is of the opinion that the considerable power generated by the broadcast medium dictates that the person entrusted to wield this power will not abuse it by using it against relatively "defenseless" individuals.
It should be remembered that the Council is not here dealing with defamation, a specific civil remedy with respect to which the Council has no jurisdiction. Success in a defamation case generally depends on the plaintiff’s success in proving that the statements made were untrue. Given that the Council is not a fact-finding body, it would have no means to assess veracity. It is required neither to assess the truthfulness of statements nor the intention of their interlocutor in its areas of jurisdiction. It can, however, and must when requested to do so, assess the fairness and propriety of comments made on the airwaves about individuals. Looked at from the other side of the microphone, broadcasters are neither entitled to defame individuals nor to make unfair or improper comments about them which may violate private broadcast standards (or, it goes without saying, the Broadcasting Act or any of the Regulations adopted pursuant to it), even though any such offending statements may not constitute a breach of the civil law.
The Council recognizes fully that critical comments can be made about individuals, particularly those in public life but also, in appropriate circumstances which it need not plumb here, with respect to private individuals. The question for the Council will always be the weighing of the statement and the circumstances. At its most basic level, the fairness requirement set out in the third paragraph of Clause 6 of the CAB Code of Ethics dictates that a balance must be struck between the type and extent of the criticism of an individual and the appropriateness or merit of any such criticism when measured against the individual’s criticized actions or behaviour. Propriety, a second requirement found in the same paragraph, dictates that the public airwaves will not be used for irrelevant or gratuitous personal attacks on individuals. The Council considers that Howard Galganov’s show broadcast on December 9, failed on both these counts.
The comments were not fair. The mere act of filing a complaint cannot in any way, shape or form be construed as warranting the tirade which Galganov in the Morning fired at the complainant. In such an unequal setting as exists between a broadcaster on one side of a microphone and one of the thousands of recipients of those messages on the other side, the filing of a private unbroadcast complaint constitutes the simplest and most basic attempt at interactivity, expression of a point of view and the exercise of a democratic right. The hostile, churlish, nasty belittlement which the host condoned on his show constitutes an utterly unfair example of bullying.
The comments were not proper. Stating that the complainant has a "character flaw", that she must be an "inferior person" and that she "can’t fit in", for example, are not relevant to the host’s "defence" of his position regarding the complaint and are entirely inappropriate. The admonition that the complainant "[translation] go dump and die" is clearly a gratuitous, unfounded and unacceptable personal attack. All in all, the level of the show’s responses reminded the Regional Council members of childhood name-calling and such gratuitous insults are improper and have no place on Canada’s airwaves. The Council has no trouble in concluding that some of the comments made on air about the complainant in this case were at least as hurtful, damaging and inappropriate as those made about the complainant in the CKAC-AM case referred to above. Accordingly, it finds that, by airing these comments made by the callers to the show as well as the host, CIQC-AM breached Clause 6 of the CAB Code of Ethics.
Privacy of Individuals
In addition to the issue of fairness and propriety raised by the comments made concerning the complainant during the December 9 broadcast of Galganov in the Morning, there is also the question of privacy to be considered. In the CKAC-AM decision referred to above, the Council summarized the following principes relating to the privacy of individuals.
The CBSC has, in past decisions, established some of the conditions under which private individuals may, and may not, be identified in broadcasts. In CTV re Canada AM (Airborne Hazing) (CBSC Decision 94/95-0159, March 12, 1996), the CBSC’s Ontario Regional Council established that the principle of privacy, for private individuals, is primordial; only in exceptional circumstances is the public interest served by revealing the identity of private individuals who are involved in an event of public interest. Interpreting article 4 of the RTNDA Code of Ethics, the Ontario Regional Council decided that
Where the broadcaster provides no information which permits the public at large to identify the individual, such as in this case, the broadcaster has not interfered with that person’s right to privacy.
The Regional Council added, however, that
Circumstances do ... 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.
Applying those principles to the present case, the Quebec Regional Council considers that, other than for reasons of personal vindictiveness, there was no reason for Gilles Proulx to reveal the listener’s name and location (city) on air. Although she wrote a letter of complaint directly to the station management and to the host, the complainant did not consent to being identified on the public airwaves. A simple communication with a broadcaster, and even with the host of a talk show, is not tantamount to a waiver of the listener’s right to privacy. Had the host genuinely wished to answer the charges which his critic had levelled against him, he could have done so by dealing with those issues which had been raised. Instead, he ignored the issues and tore after the messenger. By revealing the complainant’s full name and location, the host made it a simple task for any listener to identify her. It is clear to the Regional Council that the host infringed the complainant’s fundamental right to privacy in circumstances where there was no public interest, much less an overriding public interest, in revealing her identity on the airwaves. The Regional Council concludes that CKAC breached article 4 of the RTNDA Code of Ethics.
Since that decision, the Ontario Regional Council has also considered the issue of privacy in CITY-TV re Speakers Corner (CBSC Decision 97/98-0572, July 28, 1998). In that decision, the Council did not ultimately have to rule on the issue but made the following point regarding the right to privacy:
As to the question of identification of the complainant, the Council considers that, had the segment permitted an identified individual to be harshly criticized by an apparent member of her family, this might have offended certain privacy principles which underlie the principle of "full, fair and proper presentation of ... opinion [and] comment" provided in the third paragraph of Clause 6 of the CAB Code of Ethics. The Council does not consider it necessary, however, to deal with this particular issue here as the segment complained of was purged of all identifying elements by the broadcaster prior to airing. To the extent that the complainant considered herself "identified" or targeted by her nephew’s comments, it would only, in effect, have occurred within the context or her family and friends and not in the broad context of the broadcaster’s audience.
The Quebec Regional Council considers that revealing the complainant’s full name, and the repetition of this information throughout the December 9 broadcast of Galganov in the Morning, was merely vindictive and served no public interest whatsoever. By violating the complainant’s overriding right to privacy in this case, the broadcaster has breached Clause 6 of the CAB Code of Ethics as well as the spirit of Article 4 of the RTNDA Code of Ethics.
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. The Council recognized the special role of the broadcasters to the public and, in CFOX-FM re the Larry and Willie Show (CBSC Decision 92/93-0141, August 30, 1993), established the principle that the CBSC will review broadcasters not only as to their respect of the Codes but also as to their responsiveness to the complainant. In that case, they laid out the rationale for this direction, which has since been applied in every adjudication.
In the CRTC’s Public Notice relating to the Canadian Broadcast Standards Council (Public Notice CRTC 1991-90), the Commission noted that one of the three major areas of responsibility of the CBSC was ‘to provide a means of recourse for members of the public regarding the application of these standards’ (p. 5, reiterated in the Manual of the CBSC at p. 5) and, in the Conclusion thereto, it stated that it was ‘pleased to note ... the strong educational role the CBSC has taken upon itself.’ (at p. 6) It further declared its satisfaction with the complaint-resolution process established by the Council:
The Commission is satisfied that the complaints process that has been established is a useful mechanism for resolving public concerns about the programming broadcast by private Canadian radio and television stations. ... The Council is committed to make every effort to resolve complaints at the level of the local broadcaster.
The extent to which the CBSC has melded the educational and communication processes can be seen in the following part of its section on Guiding Principles in the Manual, which provides the following (at p. 9):
Direct dialogue between a complainant and a broadcaster is the best means of resolving a concern. The Council will not consider a complaint until it is satisfied that sincere and demonstrable efforts have been made by both parties to deal with the matter to their mutual satisfaction.
Thus, in the course of complaint resolution, the CBSC considers that it is firmly within its mandate to evaluate not only the complaint itself against the standards established by the various Codes which it administers but also the responsiveness of the broadcaster in dealing with the viewer or listener.
In CFTO-TV re Newscast (Pollution) (CBSC Decision 92/93-0178, October 26, 1993), the broadcaster’s representative did not respond to the substance of the complaint at all, preferring to send the complainant a transcript of the program and advising him to contact the CBSC if he wished to carry the matter further. The Ontario Regional Council was of the view in that case that the broadcaster had "not made any effort to respond to the complainant’s concerns, much less ‘to resolve the issue to the complainant’s satisfaction.’ In the Regional Council’s judgment, the station’s response was dismissive of the complainant’s concerns and ignored the complainant’s willingness to resolve the matter at the station level, before approaching the CBSC." The station was found to be in breach.
In this case, no response appears to have been sent to the complainant regarding this complaint. A courtesy call which the President of the broadcaster had committed to make to the complainant apparently did not occur. The Council considers this lack of responsiveness egregious, given the nature of this complaint. It finds that the cavalier disregard of the broadcaster’s obligation of responsiveness a breach of the CBSC’s standard of responsiveness.
CONTENT OF THE ANNOUNCEMENT OF THE DECISION
The station is required to announce this decision forthwith, in the following terms, during prime time and, within the next thirty days, to provide confirmation of the airing of the statement to the CBSC and to the complainant who filed a Ruling Request.
The Canadian Broadcast Standards Council has found that CIQC-AM breached provisions of the Canadian Association of Broadcaster’s Code of Ethics in its broadcast of Galganov in the Morning on December 9, 1997. In the Council’s view, personal attacks by the host and callers to the show directed at an individual who filed a complaint about the show was neither fair nor proper. Moreover, the disclosure and repetition of the complainant’s name on air violated her right to privacy. The Council has also found that, by refusing to respond to the complainant’s letter, CIQC-AM was dismissive of the complainant’s concerns and, therefore, in breach of the Council’s standard of responsiveness.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.