THE FACTS
On November 21, 1997, TVA’s public affairs program J.E. reported on a food supplement known as HMS 90 which was manufactured by a company called Recherche Immunotec ltée. ("Immunotec"). In a segment of that show, Hélène Drainville reported the results of a journalistic investigation which concluded that exaggerated claims were being used by independent distributors to sell the product. The report stated in part (a full transcript of the report is provided in Appendix A to this decision):
Hélène Drainville (Journaliste): Voici le HMS 90. C’est un produit naturel, une protéine de petit lait de plus en plus populaire au Québec. Peut-être trop. Depuis le début de sa commercialisation, en février dernier, l’agence canadienne d’inspection des aliments est débordée d’appels.
G. Angelo (Agence canadienne inspection des aliments): Il y toujours des allégations qui circulent à propos du produit. On reçoit toujours des demandes d’information pour savoir si le produit fait vraiment tout ce qui est écrit dans la littérature.
Hélène Drainville: Selon la documentation qui circule, on ne peut littéralement pas survivre sans ce miraculeux anti-oxydant. Le HMS 90 guérit les cataractes, le cancer, les maladies cardiaques, l’arthrite, le diabète. Puis dans les assemblées de cuisine où l’on vend le HMS 90, on ne se gène pas pour propager la bonne nouvelle.
Dirigeant d’une assemblée de cuisine (captée par caméra cachée): On a vu des résultats au niveau de plusieurs cancers, okay. On a vu des résultats au niveau du SIDA. On a vu des résultats par rapport au Parkinson. On a vu des résultats par rapport à l’Alzheimer. On a vu des résultats par rapport à l’hépatite B, par rapport à la sclérose, par rapport aux cataractes.
...
Hélène Drainville: L’agence canadienne d’inspection des aliments enquête depuis février dernier sur le mode de commercialisation de la compagnie Immunotec. Au Canada, chaque produit doit obligatoirement être commercialisé soit comme aliment ou soit comme médicament.
G. Angelo: Si on veut commercialiser le produit comme aliment, on doit faire aucune réclâme thérapeutique. Par contre, si on veut le commercialiser comme médicament, bien il y a des critères à rencontrer au niveau de l’enregistrement du produit et de son évaluation en question de l’efficacité. ... Ils en font pratiquement une mise en marché de médicaments — mais sans s’être rendu au bout, en procédant à l’enregistrement de leur produit comme médicament.
The report alleged that unscrupulous selling tactics might be encouraged by the multi-level marketing strategy employed by Immunotec.
Hélène Drainville: Claudette Normandin et Denise Granger vendent l’HMS 90. Ça se fait par le biais d’un réseau de vente à paliers multiples. Plus les vendeurs recrutent d’autres vendeurs, plus ça devient rentable pour eux.
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Hélène Drainville: Au siège sociale d’Immunotec à Vaudreuil, là ou on commercialise le HMS 90, on fait miroiter le paradis à ceux que l’on courtise pour être vendeur. (À une employée chez Immunotec, captée par une caméra cachée) Les gens peuvent faire combien avec ça, le savez-vous?
Employée chez Immunotec: Ah oui, ah oui. Il y a du monde qui font des beaux chèques, oui.
Hélène Drainville: Combien à peu près, le savez-vous?
Employée chez Immunotec: Entre 2,000$ et 10,000$ par 2 semaines.
Hélène Drainville: Entre 2,000$ et 10,000$ par 2 semaines?
Employée chez Immunotec: Hum, hum.
...
Hélène Drainville: D’entrée de jeu, John Molson (Vice-président, Immunotec) nie toute responsabilité quand à la publicité distribuée par ses vendeurs. Il affirme, entre autre, ne pas savoir d’où vient le dépliant où l’on parle de découverte médicale.
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Hélène Drainville: Immunotec n’a pas l’intention de changer son mode de commercialisation, la vente à paliers multiples convient bien à l’entreprise.
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G. Angelo : On va aller revoir la firme, puis on va s’asseoir encore pour qu’ils prennent les moyens là pour ..., les moyens plus efficaces pour contrôler leurs distributeurs.
The Letter of Complaint
On November 28, 1997, a viewer faxed the following letter to the CRTC with a copy to the CBSC:
[Translation] The purpose of this letter is to lodge a complaint against the program JE and Télé-Métropole for its November 21, 1997 broadcast at 7 p.m. of an episode on a company called Recherche Immunotec ltée and a food supplement called HMS 90. This report was highly defamatory and prejudicial to all independent distributors without regard to the personal integrity of each individual.
In Canada and in Quebec, we are not without rights. Every citizen has a right to a fair trial before a court of law, with a duly appointed judge and lawyers to represent all parties. Every citizen is innocent until proven otherwise. Is it normal for commercial broadcast entities such as JE and Télé-métropole, in the guise of disseminating news and information, to substitute itself for a court of law, without a judge and without lawyers, therefore without any means to control what it said?
The ironic tone of the reporter in her introduction, the misleading information and the clear lack of professionalism in the handling of this file has damaged my reputation and that of all my fellow distributors. Here are a few of the erroneous statements made in the course of this mediocre report:
- "To buy this product, you have to wait until a representative comes knocking at your door, and he will surely try to enlist you as a distributor"; this is false. You can already buy HMS 90 in many stores and pharmacies. Moreover, many distributors only use the product themselves and therefore do not sell it and do not enlist any other distributor.
- The report, on numerous occasions, showed a leaflet attributing therapeutic properties to HMS 90, without mentioning that this leaflet is neither authorized nor published by Recherche Immunotec ltée (which produces HMS 90). This leads viewers to believe that all independent distributors and Recherche Immunotec ltée, indiscriminately, use the leaflet and stand behind its claims. Which is false.
- "In kitchen gatherings, the product’s quasi-miraculous therapeutic virtues are hailed" (this statement was supported by a videotape of one such meeting taken by a hidden camera, without any authorization whatsoever). It is a hasty conclusion which leads viewers to believe that all distributors do that, which is definitely not true.
- "How much money do you make, is it a profitable venture?" This statement leads viewers to believe that there is something wrong with making a profit by selling a product or that we are making phenomenal profits. It leads viewers to believe that all independant distributors without exception are profiteers, liars and thieves. Moreover, the report discriminated against Recherche Immunotec ltée for using the "plan Parizeau" which is a multi-level marketing plan. Pyramid selling is authorized in Canada and, as a self-employed individual, I have a right to be paid as a function of the work that I do.
- The report showed a document entitled "Multi-level Marketing Plan" ("Faites de l’argent comme de l’eau" in French), a brochure published by the Consumer Protection Bureau, without mentioning its origin (this constitutes plagiarism). Moreover, due to the way in which the report was edited, the document appears to be attributed to Recherche Immunotec ltée and leads viewers to believe that the leaflet is used by independent distributors to recruit new prospects, which is absolutely false. As this document is the property of the Consumer Protection Bureau, i.e. the Goverment of Quebec,, we’re talking about fraudulent use of a document with the intention of causing harm to the reputation and integrity of Recherche Immunotec ltée’s independent distributors indifferently. You must understand that, in order to film the report in this way, they had to go to the trouble of bringing the document to the offices of Recherche Immunotec ltée and intentionally positioning it in front of the HMS 90 product. And in the commentary, the reporter voluntarily let her viewers believe that this document is distributed with a view to recruiting and misleading honest Canadians.
It is evident that the viewing of this report will convince you to just what point it was defamatory, discriminatory, misleading and harmful. Such manipulation of information and misuse of a document should be severely punished, especially since it is so highly prejudicial to over 6000 honest distributors.
The Council also received 189 "form letters", which, in effect, collectively constituted a single petition supporting this complaint.
The Broadcaster’s Response
TVA’s Vice President of Information and Public Affairs replied to the complainant on December 15, 1997 in the following terms:
[Translation] I acknowledge receipt of your complaint concerning [the J.E. report on HMS 90]. While I understand that HMS-90 distributors may have been damaged by some of the statements made in the report, I deny the allegations made in your letter.
To help you understand, permit me to make the following points:
The report does not put the product, which is still considered food and not medicine by Canadian regulations, on trial. It is too soon for that. Whether or not it is effective is something Canadian research will determine in the future.
Recherche Immunotec Ltée chose to market its product by using a multi-level marketing plan, which is perfectly legal. Pyramid selling and retail selling are mutually exclusive, which explains why you do not find the product in pharmacies, boutiques or grocery stores. While there may be exceptions, as a general rule, the product can only be obtained from an itinerant vendor who himself has obtained the product through a distributor.
It was proven that a leaflet containing surprising statements on the virtues of the product accompanied some boxes of HMS-90. It is stated in the report that Recherche Immunotec denies being the author of this document but, still, the document does exist and is nevertheless circulating.
A pyramid selling scheme lends itself to overzealous selling tactics and that is what the report demonstrated by using a videotape of a salespeople recruitment meeting taken by a hidden camera. The tape eloquently showed the arguments used as part of the sales pitch.
It is legitimate to ask what commissions are paid to salespeople in such a selling scheme. The company’s vice-president himself states that 66% of the cost of the product is attributable to its method of marketing.
The Consumer Protection Bureau issued a warning to consumers about multi-level marketing plans. Accordingly, the document produced by the CPB was pertinent to the report.
TVA strongly supports the report broadcast and J.E. rendered a service to the public by its handling of the topic.
The complainant was unsatisfied by this response and requested, on February 16, 1998, that the CBSC refer the matter to the appropriate Regional Council for adjudication. His request for adjudication was accompanied by a letter dated March 6, 1998 which essentially reiterated the concerns raised in his initial correspondence. (The subsequent letter is reproduced in Appendix B to this decision.)
THE DECISION
The CBSC’s Quebec Regional Council considered the complaint under the Code of Ethics of the Canadian Association of Broadcasters (CAB) and the Code of (Journalistic) Ethics of the Radio Television News Directors’ Association (RTNDA). The texts of the relevant provisions 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 Ethics, Article 1
The main purpose of broadcast journalism is to inform the public in an accurate, comprehensive and balanced manner about events of importance.
RTNDA Code of Ethics, Article 3
Broadcast journalists will not sensationalize news items and will resist pressures, whether from inside or outside the broadcasting industry, to do so. They will in no way distort the news. Broadcast journalists will not edit taped interviews to distort the meaning, intent, or actual words of the interviewee.
RTNDA Code of 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 viewed a tape of the J.E. broadcast in question and reviewed all of the correspondence. The Council considers that the report does not violate any of the provisions of the aforementioned Codes.
The Complaint
The Council notes that the complainant is personally involved in the activities targeted by J.E.’s report. This fact, which was evident from the complainant’s letters, was taken into account in considering this complaint. As the Prairie Regional Council stated in CFRN-TV re Eyewitness News (CBSC Decision 96/97-0149, December 16, 1997):
[T]he complaint of an aggrieved party does require particular attention to the words used in the letter of complaint on the assumption that the party may be expected to know more about the facts surrounding his or her complaint. The Council is, however, equally aware, that an aggrieved party may come to an issue with a "thinner skin" regarding any allegations made. There is, in that sense, a very particular balance to be brought to the viewing of such issues.
While all complaints, whether made by interested or disinterested parties, are equally entitled to Council decisions, the Council understands that, in this case, the complainant’s acute sensitivity to the treatment of HMS 90 by the media may have skewed his perception of parts of, if not the entire, J.E. report. For example, the Council did not find that Ms. Cazin used an "[translation] ironic tone" in her introduction to the report, as alleged by the complainant. Nor did the Council find that the report "[translation] show[ed] a leaflet attributing therapeutic properties to HMS 90, without mentioning that this leaflet is not authorized and not published by Recherche Immunotec ltée [emphasis added]"; to the contrary, the Council finds that Immunotec’s denial of any association with this document was clearly stated not once but three times throughout the report, namely, by the reporter herself, by Dr. Bounous, Medical Director at Immunotec, and by John Molson, Vice-President at Immunotec.
The Content of the Report
While, for the reasons stated above, the Council is of the view that some of the complainant’s allegations reflect the sensitivity of an involved party, it also considers that two of his concerns raise significant issues with which it will now deal. That related to the use of hidden cameras is dealt with in the next section. The other is the concern raised about the reporter’s use of the Consumer Protection Bureau’s leaflet entitled "Faites de l’argent comme de l’eau" (figuratively, "Multi-level Marketing Plan" in English translation).
The Council notes that the leaflet (the French title of which seems particularly ironic in the light of the investigative report in the present matter) was shown three times in the course of the report. On the first occasion, the leaflet served as a backdrop for the reporter’s 13-word explanation of the mechanics of pyramid selling. On the second, the leaflet was seen in the hands of the reporter as she interviewed an official at the Consumer Protection Bureau. And finally, the leaflet was displayed near the end of the report, while the reporter stated "[translation] Immunotec has no intention of altering its marketing strategy..." Each time the leaflet was shown, it was without properly attributing it to the Consumer Protection Bureau.
While J.E. may have committed an error of omission with respect to the non-identification of the source of the document in question, the Council notes that J.E. never explicitly attributed the document to Immunotec (although the report did nothing to dissuade viewers from drawing that erroneous assumption). In any event, the Council considers that the document had some relevance to the report and further notes that the document’s source (the Consumer Protection Bureau) was at least involved in the report, thereby justifying its use. Accordingly, while the Council is of the view that the omission of minimal identification of the document in question constitutes careless, if not shoddy journalism at best, and, by one possible interpretation of motive, misleading journalism at worst, it does not conclude that, in this case, the inclusion of the document in the report without explaining its origin constitutes a breach of the Codes. To reach such a conclusion would involve an imputation of motive which, while arguable, does not appear to the Quebec Regional Council to be justified in this case.
The B.C. Regional Council was faced with a similar situation of on-the-edge journalism in CHAN-TV re Newscast (Recycling Society) (CBSC Decision 96/97-0004, March 10, 1997). In that case, the Council concluded that "the newscasts in question were not in breach of the Code provisions cited above but that, in some respects ... they were only on the edge of acceptability." The Council noted
[I]t was the duty of the station to ensure that it had all the information it required to tell its story fairly, comprehensively and accurately ... In this respect, the Council considers that the station and its reporter did not succeed in all respects in meeting those standards although it does not believe that the breach was such as to be constitute a breach of the Code. The Council is of the view that the reporter’s principal failure was with respect to the financial issues raised in the newscasts. There is, for example, a difference between "grants" and "contracts for services rendered". The Council does not agree with the broadcaster’s justification of the one term for the other as a "break[ing] out of jargon to properly and directly convey meaning". The word "grant" is not jargon. It has a well-known meaning and an implication of government largesse. It provides an inherent justification for cautious oversight of the activities of an entity benefiting from such beneficence. It appears, on the other hand, that the Society worked for its money, that it rendered services for which it was paid. That does not imply that it can do what it wants; the investigation was not unwarranted. The reporter ought, however, to have been "tighter" in his choice of language. Words are, after all, his work.
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[The reporter] then made the sarcastic and apparently unwarranted comment that the wages of the "administrative staff" rose by "12%, which apparently translates to 2%". It appears to the Council that the reporter was reading a line item in a budget and extrapolating from this a conclusion that each administrative wage may have risen by an average of 12% rather than that the overall administrative wage pot may have increased by that amount, which is essentially the information conveyed both by the Executive Director in her interview and in the letter she provided.
It is, of course, eminently material that she was given the opportunity to be on the record and to present her point of view but, in viewing and re-viewing the tape, Council members believe that the waters were muddied by the reporter in the confused and unnecessarily sarcastic way he chose to introduce the item.
All in all, the Council considers that the reporter, the News Director and the station ought to have exercised greater vigilance in the way they chose to tell this story which they were justified in bringing to the attention of the public. It is not, and cannot be, that every inadvertence or inappropriate comment will fall afoul of the various broadcaster Codes. This is a case where they do not but where the Council would have wished that the broadcaster had been further from the edge.
The Council considers that a similar conclusion and cautionary note is appropriate in this case.
The Use of Hidden Cameras
The Council notes that hidden cameras were used twice in the on-air segment of J.E.’s report. On the first occasion, such a camera was used to record the exaggerated claims apparently made by an HMS 90 distributor. On the second, a hidden camera was used to tape the response of an Immunotec employee regarding potential revenues associated with the sale of HMS 90.
This is the first time the Council has been called upon to rule on the issue of the use of hidden cameras as an information-gathering technique. While there are no specific provisions dealing with these issues in the Codes administered by the CBSC, Article 4 of the RTNDA Code of (Journalistic) Ethics states, in part, that "Broadcast journalists will always display respect for the ... privacy ... of everyone with whom they deal." In the view of the Council, "respect for the ... privacy" does not mean that no invasion of an individual’s privacy will be countenanced. Rather, it is respect for such privacy in those circumstances in which the public interest is not at issue. Where broadcast journalists encounter issues which have a material public interest component, they will be justified in bringing these matters before the public. After all, their basic duty, stated in Article 1 of the RTNDA Code, "is to inform the public in an accurate, comprehensive and balanced manner about events of importance. [Emphasis addded.]"
In the circumstances, the Council considers that the resolution of such an issue depends on the interpretation of two issues. The first is the public interest in the matter with respect to which such devices are employed; and the second relates to the appropriateness of this device to the making of that report.
As to the first issue, in this case, the Council has no hesitation in concluding that the inquiry into the selling tactics associated with HMS 90 was a legitimate avenue of pursuit. The public has an interest in knowing about products which are offered as having curative values, products which may walk the fine line between food and drugs, products which may find themselves on the border between regulation and non-regulation, particularly where the public’s health may be at play. Moreover, to the extent that claims are made regarding the properties of a product, such as HMS 90, to cure, in whole or in part, such ailments as cancer, arthritis, AIDS, Parkinson’s, Alzheimer’s, cardiac difficulties and so on, and where such claims are contested, it is difficult to imagine that fair-minded people would argue that a report on such a product would not be central to the public interest. To be clear on this point, the Council makes no suggestion that reporting on a matter in the public interest provides any licence to report inaccurately. That is another matter which the Council has already dealt with above. Here the Council is only examining the appropriateness of hidden recording devices to gather information for a story on which a broadcaster is entitled to report.
As to the second issue, the Council considers that hidden recording devices should not, in normal circumstances, be the method of choice to gather reportorial evidence. In the absence of compelling or unavoidable circumstance, it is the old-fashioned interview which should be the reporter’s preferred tool. There may, however, be circumstances in which there is no reasonable expectation that the information necessary to fairly, accurately, comprehensively and credibly tell a story in the public interest will be obtainable other than by subterfuge. Where, for example, the revelation of fraudulent activities is unlikely to be admitted by the perpetrator, it may only be possible to tell the story by placing the crook in the circumstances in which he or she will actually commit the fraud on camera. To deal with providers of phoney or incompetent home or automobile repair services, it may be necessary to lure the providers of those services into an environment where they are asked to quote on "needed repairs" to a perfectly functioning piece of equipment. It would be naïve to expect that such operators could otherwise be forced into the open. In a general sense, the legitimacy of such devices may be supported where the harm to the public prevented by the revelation of information so gathered outweighs the harm to the individual caused by the deceptive gathering of the information.
In the case at hand, the Council believes that the information in question would not have been comprehensively and credibly unearthed without the use of hidden recording devices. Moreover, the Council can see no level of harm caused to the HMS 90 promoters’ legitimate interests by the use of the hidden cameras beyond their obvious interest in keeping their product claims and apparent high-pressure tactics secret. The level of benefit to the public in revealing both the selling tactics and the claims is sufficiently overwhelming that the balance tips readily in favour of the use of the devices to bring the information to the public. As to the countervailing claims themselves relating to the virtues or vices of the product, the Council is in no position to make any observations. The point is that, in presenting the report, the network offered the opportunity for the public to become aware of the issues and to make whatever further inquiries they might deem suitable to draw their own conclusions as to HMS 90. Moreover, in providing the claims of the complainant herein by the full reproduction of his letters in the body of this decision and as Appendix B, the public is given further opprotunity to weigh the countervailing claims regarding the product itself.
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. In this case, the Council considers that the broadcaster’s response addressed fully and fairly all the issues raised by the complainant. Consequently, the broadcaster has not breached the Council’s standard of responsiveness. Nothing more is required.
This decision is a public document upon its release by the Canadian Broadcast Standards Council. It may be reported, announced or read by the station against which the complaint had originally been made; however, in the case of a favourable decision, the station is under no obligation to announce the result.