This decision relates to two songs broadcast by CIOX-FM (more familiarly known as Xfm, Ottawa) in February 2001: "Livin' It Up" by Limp Bizkit, played at 8:31 p.m. on February 3, and "Outside" by Aaron Lewis and Fred Durst, played at 11:31 a.m. and 4:00 p.m. on February 11. While the Panel fully expects that these songs were also played at other times on other days, these were the broadcasts which are the subject of this complaint. The full lyrics of the two songs can be found in the Appendix. Excerpts are provided here.
"Livin' It Up"
The repeated refrain of the song, which contains the most frequent use of the language which is the subject of the complaint, is as follows:
I'm just a crazy motherfucker
Livin' it up
Not giving a fuck
Livin' life in the fast lane
Another crazy motherfucker
Livin' it up
Not giving a fuck
In the fast lane
That part of the body of the song that includes another example of an offensive word, is as follows:
Drama makes the world go around
Does anybody got a problem with that?
My business is my business
Can I get a witness?
First things first
The Chocolate Starfish is my man Fred Durst
Access Hollywood licence to kill
A redneck fucker from Jacksonville
Bangin' on the dumpster funk
My microphone machete's in the back of my trunk
The lyrics of the song itself present no problem; however, the version of the song played on CIOX-FM had been recorded live at a concert in Biloxi, Mississippi and the following line shouted to the audience by the performer was included in the broadcast version:
"Biloxi! This is the real motherfuckin' deal y'all!
Feelin' those lighters!"
Of the first song, "Livin' It Up", the complainants wrote on February 13 (the full text of this e-mail and all the other pertinent correspondence can be found in the Appendix):
The song contained the word "fuck" or "fucker" ten times and "motherfucker" nine times. The song was played completely unedited. We, the undersigned, believe the song's lyrics (more specifically the words "fuck" and "motherfucker") are not socially acceptable common jargon and therefore are inappropriate for the airwaves during the daytime and early evening hours although an argument could be made they are not appropriate at any time. If the station insists on playing music containing the words in question unedited, it should at least do so during a time slot when younger audiences are less likely to be listening (after 10 or 11 pm).
Of the second, "Outside", the same complainants wrote:
About one minute into the song, one of the singers yells out the line "Biloxi, this is the real motherfuckin' deal y'all!". The line is not part of the actual lyric and is gratuitous in nature. While it could easily be edited out, the station has elected not to. We, the undersigned, believe the airing of the word "motherfucker" (especially in light that it is not part of the actual lyric) is not socially acceptable common jargon and therefore is inappropriate for the airwaves during the daytime and early evening hours, although an argument could be made they are not appropriate at any time. If the station insists on playing music containing the passage in question unedited it should at least do so during a time slot when younger audiences are less likely to be listening (after 10 or 11 pm).
The Manager of CIOX-FM replied on March 29. He said, in part:
Fifteen months ago when we launched Xfm with its New Rock Alternative format, we knew by virtue of the controversy sometimes associated with its artists and music that we risked a degree of alienation in the community. Clearly we have had that effect on you, which we regret.
We understand and respect the fact that some of our programming is not necessarily compatible for all listeners' tastes and interests, but there is a substantial following in the area for it. We will however, carefully continue to balance the needs of our listeners with the standards of the community as a whole.
On April 30, the complainants, dissatisfied with the broadcaster's response, filed their Ruling Request with the CBSC.
The Ontario Regional Panel Adjudicators considered the complaint under the following provision of the Canadian Association of Broadcasters (CAB) Code of Ethics, which reads in pertinent part as follows:
CAB Code of Ethics, Clause 6 (paragraph 3)
It is recognized that the ... proper presentation of ... opinion [and] comment ... is the prime and fundamental responsibility of the broadcast publisher.
The Adjudicators listened to tapes of the songs in question and reviewed all of the correspondence. It is the Panel's view that their broadcast in unedited form at times of day when children could reasonably be expected to be listening constitutes a breach of the CAB Code of Ethics.
Songs and Broadcaster Codes
The CBSC has rendered several decisions in which it has concluded, as a general principle, that song lyrics are as subject to private broadcaster standards as any other form of broadcast matter. In CIGL-FM re a song entitled "The Bad Touch" (CBSC Decision 99/00-0654, October 12, 2000), the Ontario Regional Panel held that
it is not the intention of the Codes that any material broadcast by any private sector programming undertaking be exempt from consideration thereunder. Whether it is spoken word or set to music, the same rules apply. Music is, after all, no more or less a form of programming than other dramatic, documentary, news or, indeed, advertising material, all of which must conform to the terms of the various Canadian private broadcaster Codes.
The Manager of CIOX-FM has, on another occasion not related to the current file, made the following general points to the CBSC regarding song lyrics:
It is very difficult, if not impossible, to regulate lyrics in music and apply the same formula to their compliance as we do with station produced spoken word.
Lyrics are, essentially, written by storytellers. They are often fictitious pieces of work by songwriters intended to enlighten, entertain, express emotion, be thought-provoking or simply ridiculous in some cases.
They are the authors' interpretation of a subject or event.
We absolutely agree that broadcasters are responsible for everything they air, including musical selections.
However, to take the view of Regional Council when they ruled that the "essential storytelling" in music should be taken out of context when regulating suitability, is not what broadcasters and legislators had in mind when developing the Codes.
The Panel has considered the foregoing important points made by the broadcaster and it agrees with much that the Manager has said in that letter. It expects, however, that it sees the effect of these arguments differently and would likely not, in the application of those principles, always arrive at the same conclusion as CIOX-FM's Manager.
Looking at the points he has made, one by one, the Panel acknowledges that it is often very difficult to resolve many of the issues which the various CBSC Panels are called upon to consider. Song lyrics are not, in that respect, different from other types of dramatic, journalistic, open line or other forms of programming which frequently present new challenges to the CBSC Panels. Such difficulties do not ever rise to the level of impossibility, though. A decision can always be rendered. Indeed, in the case of a complaint which is sent to an adjudicating Panel, a decision must always be rendered. The CBSC has been delivered a set of codified standards established by Canada's private broadcasters, pursuant to which the broadcasters expect that the programming of all members of their community will be evaluated.
The Manager's letter suggests that the nature of song lyrics is such that a different "formula" than that applied to spoken word broadcast material is required. Some of those potential differences are highlighted in his next paragraph, which refers to song lyrics as "fictitious pieces of work by songwriters intended to enlighten, entertain, express emotion, be thought-provoking or simply ridiculous in some cases." In the broad experience of the Ontario Regional Panel and, indeed, of the CBSC generally, it would be fair to say that elements including fiction, as well as the extremes of "thought-provoking" or "ridiculous" matter, among others, have been considered in the past. While the standards against which all programming is measured must be the same, the appreciation of the programming in that application may differ. Dramatic effects involving even such exaggerated factors as satire and hyperbole are understood and contextualized. Purpose will be appreciated but will not necessarily constitute a justification for what is said, sung or depicted.
When broadcasters developed the Codes, they did (as codifiers generally do) establish a set of general principles which could be adapted to the broadest range of complaints about specific issues, however disparate. In the end, song lyrics are but another form of communication, subject, as all others, to the private broadcasters' standards and assessed as a function of their Codes by the CBSC Panel Adjudicators who are responsible for the exercise of that function whatever the nature of the complaint or of the programming complained of.
It is also of relevance to note that the other English-speaking countries with bodies or standards similar to the CBSC and Canadian Codes also deal with song lyrics. In Great Britain, for example, the Radio Authority Programme Code contains a section on "Language in Programming, including Song Lyrics", which reads:
1.3 The gratuitous use of offensive language, including blasphemy must be avoided. Bad language and blasphemy must not be used in programmes aimed at young listeners or when audience research indicates they might be expected to be listening in significant numbers.
[...] Where lyrics in songs might cause offence, licensees must make considered judgements having regard to scheduling (particularly bearing in mind listener sensitivity to school run' times as revealed in research [...]), station remit, re-mixes, editing possibilities and the like.
While the Panel is unaware of other broadcast codes which include provisions specifically referring to song lyrics, it is aware of the fact that the other Western countries with similar regulatory bodies and codes treat songs under general broadcast rules, much as the CBSC currently does. In Australia, for example, broadcasters have been judged by the Australian Broadacsting Authority (ABA) under both the Commercial Radio Code and the Community Broadcasting Code for the airing of coarse language in song lyrics. So, too, in New Zealand, where the Broadcasting Standards Authority (NZBSA) has decided against broadcasters for the same reason under the Radio Code of Broadcasting Practice. In South Africa, the Broadcasting Complaints Commission of South Africa (BCCSA) has also ruled on song lyrics under their Code of the BCCSA, and, even in the First Amendment environment of the United States of America, song lyrics have been dealt with by the Federal Communications Commission (FCC) under Section 503(1)(b) of the Communications Act (and title 18 of the United States Code). In other words, the position with respect to song lyrics taken by the CBSC over the course of the last two years is mirrored in other Western jurisdictions.
Offensive Language and the Suitability of Subject Matter for Children
As to specific offensive language decisions, a scant seven years ago, in CFRA-AM re Steve Madely (CBSC Decision 93/94-0295, November 15, 1994), the Ontario Regional Panel was called upon to deal with a complaint that a radio host had used the words "damn" and "Goddammit". In comparison to those relatively innocuous words, it would be reasonable to observe that the song lyrics challenged by the listeners in this file represent a quantum leap. There was a finding in favour of the broadcaster in the 1994 matter and, in CJOH-TV re "White Men Can't Jump" (CBSC Decision 94/95-0060, March 12, 1996), where the language was raunchier, more akin to that occurring in "Livin' It Up", this Panel again decided that the broadcaster was justified in broadcasting the feature film in question. In the 1996 decision, it considered that the language was contextually justified and that the time period of the broadcast, post-9:00 p.m., and the presence of viewer advisories referring to "coarse language" at the start of the film and coming out of each commercial break during the first hour, rendered the broadcast of the film within the codified norms. The Panel declared that it was
of the view that, provided viewers were alerted to the program content in accordance with the terms of Article 5 of the Violence Code, the airing of the film at 9:00 pm would not give rise to a violation of the Code. This was indeed the case here; the viewer advisories were ample and the Council agrees that there was no breach of the Code.
While various CBSC Panels have since dealt with the question of coarse and offensive language, none has concluded that the challenged broadcast breached the codified standard. In every case, the Panel either decided that the language was relatively innocuous, not amounting to more than a matter of taste (and should be turned off by the viewer or listener), or that, since the broadcast hour was unspecified, the Panel could not determine whether the question of the suitability of the program for children could be ascertained. Examples of such decisions follow.
In a later radio decision, CIQC-AM re Galganov in the Morning (CBSC Decision 97/98-0473, August 14, 1998), regarding a morning talk-show hosted by a well-known political campaigner for the rights of English-language Quebeckers, the Quebec Regional Panel made the following statements regarding the vulgarity of the host's language:
When the Council considers the language which has offended the complainant in this case, i.e. words such as "kiss-ass", "son-of-a bitch", "puke" and "crap", it is unable to determine that this language is any worse, although certainly more repetitious, than the words used in the matters considered above. Applying the "broad social norms" test, the Council concludes that no Code has been violated. In coming to this conclusion, the Council has taken into consideration the fact that Galganov in the Morning addresses primarily an adult audience. Had the target audience been more youth-oriented, the Council's conclusion may have been different. [Emphasis added.]
More recently, in one of the first CBSC decisions involving song lyrics, CIOX-FM re a song entitled "Boyz in the Hood" (CBSC Decision 99/00-619, October 12, 2000), this Regional Panel observed:
While, in the Galganov decision, the Quebec Regional Council held that the language used by the host was not in breach of the Code but might have been had "the target audience been more youth-oriented", in the present case, the Council has no information regarding the time of broadcast which might enable it to evaluate the extent to which the target audience was young enough to push its assessment into another place.
As to the issue of the suitability of certain types of program content for children, the leading CBSC decision is CHOM-FM and CILQ-FM re the Howard Stern Show (CBSC Decisions 97/98-0001+ and 0015+, October 17 and 18, 1997), in which the Quebec and Ontario Regional Panels said:
It is the view of the Quebec and Ontario Regional Councils that the unsuitable language and graphic discussion of sexual situations is not proper material for Canadian children and does not meet their needs in a broadcast sense. Nor does it meet the high standards of public service and integrity that the industry has set for itself when aired during a time of the day when children could reasonably be expected to be a part of the audience. In addition, therefore, to the other concerns expressed by the CBSC, it is its view that the time period in which the Howard Stern Show plays is entirely inappropriate and that the unsuitable language and graphic discussion of sexual situations which the CBSC found in the two weeks of episodes it reviewed will be repeated on a daily basis in future episodes, thus rendering the broadcasters carrying it in constant ongoing violation of the Code of Ethics.
Unlike the other breaches found in this matter, which would remain breaches of the Codes involved at any time of the day or night, the suitability of subject matter for children is a time-related issue. The aspects of the Stern Shows treated under this heading are unsuitable by reason of their ready accessibility by children rather than by reason of their nature. While perhaps not either pleasant or of broad social value at a late evening hour, their broadcast would not be challenged at that hour.
Since the matter at hand is the first occasion on which a CBSC Panel is called upon to deal with the words "fuck", "motherfucker" and related terms, it is instructive, although not necessarily determinative, to consider how regulatory or self-regulatory authorities in other countries have dealt with such language. In Great Britain, where the Broadcasting Standards Commission has a mandate to conduct research as well as render decisions under its codes, a 2000 study indicated that those two words were among the three most offensive to society and should not be broadcast at any time of day. In New Zealand, a similar study found those words among the four most offensive and, in the case of a song played at 5:10 pm on a campus radio station in which "motherfucker" was used six times, the NZBSA ruled against the broadcaster. They ruled similarly in the case of a song played at 9:00 am and containing such lyrics as "Take a stand, fuck the man" and "Fuck the rule, smash a car, make it fuck up." In the case of a rap song played at 10:40 pm, however, they ruled in favour of the broadcaster, accepting that the music was played late at night, among other things.
In the present matter, it is the view of the Panel that the two songs under consideration were broadcast at times of the day when younger persons could reasonably be expected to be listening to the radio. Moreover, it should be borne in mind that, at this or any time of day, broadcasters generally have a choice of playing potentially offensive songs in edited formats. In CIGL-FM re a song entitled "The Bad Touch" (CBSC Decision 99/00-0654, October 12, 2000), this Panel explained this option in the following terms:
It should, moreover, be noted that music recording companies, like distributors of motion pictures, generally create more than one version of their respective products. They understand that, in order to facilitate the responsibilities of broadcasters and to render broadcast markets more accessible to their products, they must provide versions that are susceptible of being aired. While broadcasters themselves frequently edit motion pictures, whether for content or to ensure that there are appropriate breaks for commercials, it is obvious that recorded popular songs are not as readily susceptible of broadcaster intervention. The decision for the broadcaster, when there is no edited version of a song, may, therefore, become, in black and white terms, whether to play or not to play. Knowing that, in order to assure air time, recording companies frequently provide a second version which they consider suitable for radio broadcast.
It is also appropriate to add that both the music recording industry and Canada's private broadcasters are aware that there are often edited versions of songs, one for direct sale and the other for radio play. They often, therefore, have the choice of which version of a song to play or, in circumstances where they do not, their choice is reduced to whether the song is or is not suitable for airing in terms of the Codes with which they have agreed to comply.
In the case of the song lyrics in "Livin' It Up", the Panel finds that the repeated use of the coarse and offensive language "fucker", "fuck" and "motherfucker" constitutes a breach of the CAB Code of Ethics when broadcast at hours when children could reasonably be expected to be listening. In the event that an edited version of the song was unavailable, CIOX-FM had the choice of delaying the airplay until a later hour or not playing the unedited song at all. The choice made constitutes a breach of Clause 6, Paragraph 3, of the CAB Code of Ethics.
While, in the song "Outside", the inappropriate word, "motherfuckin'", was used only once, as a live interjection by the singer at the time of the Biloxi concert, the Panel considers that its use was utterly gratuitous and broadcast at an hour when children could reasonably have been expected to be listening. Moreover, given its placement in the song, it could very easily have been excised without effect by the broadcaster. The broadcast of the song without editing when children could be expected to be listening constitutes a breach of Clause 6, Paragraph 3, of the CAB Code of Ethics.
Broadcaster responsiveness is always an issue considered in CBSC adjudications. The CBSC considers that the dialogue between broadcasters and complainants is an extremely positive component of the self-regulatory process, to the point that it is in fact a membership responsibility of all CBSC broadcaster members. In this case, the broadcaster's response was not extensive but it did deal with its perspective on the issues raised by the complainants. Something more might have been useful but the failure to send such a letter does not on this occasion amount to a breach of the standard of responsiveness.
CONTENT OF THE ANNOUNCEMENT OF THE DECISION
CIOX-FM is required to: 1) announce this decision, in the following terms, once during peak listening hours within three days following the release of this decision and once more within seven days following the release of this decision during the time period in which the songs "Livin' It Up" and "Outside" had been broadcast; 2) within the fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the announcements to the representative of the complainants who filed the Ruling Request; and 3) to provide the CBSC with that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CIOX-FM.
The Canadian Broadcast Standards Council has found that CIOX-FM has breached provisions of the Canadian Association of Broadcasters' Code of Ethics in its broadcast of the songs "Livin' It Up" and "Outside" in February 2001. By broadcasting those songs, which contained coarse and offensive language, CIOX-FM violated the provision of the CAB Code of Ethics which prohibits the use of improper comment, particularly during hours of the day when children could reasonably be expected to be listening.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.