Fairchild Television & Talentvision re news reports about a political campaign

national specialty services panel
(CBSC Decision 05/06-1841 & 1842)

THE FACTS

Fairchild Television and Talentvision are Chinese-language specialty services.  On July 27, 2006, both services broadcast the same story (in Cantonese and Mandarin respectively) about the campaign for the federal Liberal Party nomination in the Vancouver Kingsway riding (only the news anchors for the two services were different, a male in the case of Fairchild and a female in the case of Talentvision).  The actual vote for the nomination was scheduled to occur two days later, on July 29.

Both the complainant and the broadcaster provided the CBSC with English translations of the news report; although they differ, they do so in ways that are not at all material to the outcome of this decision.  Nonetheless, since they are relatively short, both translations are included here. For the one aspect of the story that is particularly material, namely, the non-oral printed component of the news stories, the CBSC hired its own translator.

Complainant’s Translation

Anchor: On Saturday, the Vancouver Kingsway riding, which became the focus of attention when International Trade Minister David Emerson switched political affiliation, will nominate its candidate to represent the Liberal Party in the next Federal election.  Presently, the two persons vying for nomination are both of Chinese origin and are busy making preparations for the race.  Vincent Ng reports:

[Scenes from campaign kick-off party at a restaurant]

Ng:       Mr. [L], one of the candidates for nomination, was with two-hundred-odd supporters last night during his campaign kick-off held in a restaurant.  He stated that, even though he had joined the race hastily, he was confident that he would win the nomination with his experience.

Interview with Mr. [L]:      I feel that the Party Members of this riding should have a choice.  They should not just be represented by someone without having had a choice.

Ng:       Outside the restaurant, someone had left flyers on parked cars.  The flyers, issued in the name of A Group of Righteous Traditional Chinese Medicine Practitioners, charge that, while Mr. [L] was Chairman of the College of Traditional Chinese Medicine Practitioners & Acupuncturists of British Columbia [CTCMA], he mishandled the termination of Mr. [W], causing the CTCMA to suffer losses.  However, when this TV station tried to confirm this matter with some doctors of TCM today, no one wanted to admit that they had anything to do with these flyers.

There was no video shot of any cars with the flyer on their windshields; however, while the reporter was making the immediately preceding comments, the camera panned down the text of a page (written in Chinese), apparently the flyer mentioned in the news item, and then zoomed in on certain words.  The first close-up was on the printed “signature” of the letter, which bore the anonymous designation, “A Group of Honourable and Just Chinese Medicine Practitioners”.  The next close-up was on the last couple of sentences in the first paragraph, which constituted the first reference to the numbers which are the cornerstone of the complaint and this decision.  The final close-up was on the text of the full sentence, which read: “the Administration was sued and will have to pay Mr. [W] for insulting his professional conduct and reputation.  Mr. [W] will be paid 750 thousand dollars (made up of 500 thousand dollars plus two years of salary).”  The news story then cut to a shot of Ms. [Y], the other candidate seeking the nomination in Vancouver Kingsway, walking down the street (the complainant’s translation continues):

Ng:       Ms. [Y], the other candidate for nomination, was on her final round of vote soliciting.

Interview with Ms. [Y]:    I feel that, as a representative of the people, the most important thing, the most important thing is to have contact with the real constituents of this riding, and to hear what their real concerns are.  This is the only way to effectively represent them.

[Scene of a road]

Ng:       On the other hand, some Party Members have pointed out that there were only four days between the announcement of the nomination meeting and the cut-off for filing papers, causing many candidates to not have enough time to prepare for the nomination.  Mr. [G], Executive Director of the Liberal Party of Canada in BC, emphasized that the Riding Association had announced the nomination meeting in March.

Interview with Mr. [G] [in English]:            We have in this situation a candidate who has found the time to file his papers and, and participate in the race.  So I don’t think at all it wasn’t enough time.

Ng:       Mr. [G] emphasized that the entire process was in accordance with the Party’s rules and regulations concerning nomination.  This is Vincent Ng, Fairchild TV.

Broadcaster’s Translation

Anchor: Since former Liberal MP David Emerson joined the Conservative Government and became the new International Trade Minister, all eyes are on who would represent the federal Liberals in Vancouver/Kingsway come the next federal election.  By this weekend, the new Liberal candidate for Vancouver Kingsway will be born.  The federal Liberals are hosting their nomination meeting this Saturday, and right now both candidates vying for this riding are from Chinese descent.  And both are working hard to win the nomination this weekend.

[Scenes from campaign kick-off party at a restaurant]

Ng:       [Mr. L] is one of the two candidates seeking Liberal nomination for Vancouver Kingsway riding.  Last night, he hosted a pre-nomination party at an east-side Chinese restaurant.  More than 200 guests joined the party.  According to [Mr. L], although his decision to run in this nomination seemed rushed, he is confident his past experience will help him win this riding.

Interview with [Mr. L]:      I feel that the Liberal members in this riding should have a choice … instead of having no choice in who should represent them.

Ng:       Outside of the party, however, some anonymous letters were stuck to the windshield of parked cars in the restaurant parking lot.  The signature on the letter stated A Group of Traditional Chinese Medicine Practitioners with Conscience.  The letters accused [Mr. L] (as chairman of CTCMA) of mishandling the firing of Mr. [W], executive director [actually the registrar] of CTCMA, leading to financial losses for CTCMA.  We tried to contact a number of Chinese traditional medicine practitioners today but no one admitted responsibility of [sic] distributing the letters.

The flyers, described as “anonymous letters” in this translation, were shown under the preceding comments by the reporter; the translation and description of the document is given above.  The news story then cut to a shot of Ms. [Y], the other candidate seeking the nomination in Vancouver Kingsway, walking down the street (the broadcaster’s translation continues):

Ng:       As for the other candidate, Ms. [Y], she spent her day trying to meet voters in the riding.

Interview with Ms. [Y]:    I feel that as representative of the people, the most important thing is to listen to what they have to say, to learn what are the issues that concern them.  This is the only way to represent their interests.

[Scene of a road]

Ng:       On the other hand, while some Liberal members complained that the deadline for submitting their nomination was too short, only four days from calling for nomination, causing candidates insufficient time to prepare, Federal Liberal Party’s BC Executive Director Mr. [G] emphasized that the call for submission of nomination began in March at their general meeting.

Interview with Mr. [G] [in English]:            We have in this situation a candidate who has found the time to file his papers and, and participate in the race.  So I don’t think at all it wasn’t enough time.

Ng:       Mr. [G] emphasized that the procedures that were followed were according to the proper nomination meeting process and regulations.

Further broadcast reports

On July 28 Fairchild and Talentvision broadcast a follow-up report (an English translation and description of that report can be found in Appendix A), which covered a press conference held by Mr. [L] to respond to the allegations made in the anonymous flyer originally reported on both stations.  The reports began with Mr. [L] criticizing the television coverage, accusing the broadcasters of attempting to influence the outcome of the race, and dismissing the accusations made in the anonymous letter as groundless.  They also included an interview with Fairchild’s News Director, who insisted that the stations had reported only the facts of the situation.  It should also be noted that the subsequent broadcasts included the text of the anonymous flyer which is at issue in the present file.  No complaint was received by the CBSC relating to the broadcasts of July 28.  Consequently, this decision does not deal specifically with the later news reports.

Complaints

The CBSC received a complaint about the broadcasts via its website form on July 28 (the full text of all correspondence can be found in Appendix B):

The news report was on Mr. [L]’s political campaign for the Federal Liberal Party nomination in Vancouver Kingsway.  It included a reference to an anonymous circular being distributed which is highly defamatory towards Mr. [L].  The station did not verify the truthfulness of the allegations in the circular.  Nor did it contact Mr. [L] for comment.  It put the circular on screen and outlined some or all of the allegations therein.

I have concerns that the report is not accurate, it is not fair, nor is it balanced, among possible other breaches of your Code of Ethics.  The timing of the broadcast is of particular concern because the vote in the campaign will take place tomorrow, July 29, 2006.

The Broadcaster’s Correspondence

Fairchild Television (which owns both stations) responded to the complainant on August 24:

We at Fairchild believe that we have upheld high journalistic standards of accuracy and fairness in this case.  We did not report any allegations in the anonymous letter which could not be verified.  The one statement in the letter we reported was verifiable as a matter of public court record.  We also broadcast Mr. [L]’s press conference the following day responding to the letter, criticizing Fairchild Television as well as announcing Mr. [L]’s intention to take legal action against Fairchild Television.  Allow me to elaborate on our coverage of this story and to answer the specific complaints you have raised.

Your first complaint was that the news report did not verify the information reported.  That is not the case.  Fairchild made a specific point of only broadcasting the information that could be verified.  The verification came from the judgment of the British Columbia Court of Appeal which held that the dismissal of Mr. [W] by the College of Traditional Chinese Medicine Practitioners and Acupuncturists of B.C. (CTCMA) which Mr. [L] handled personally as Chairman of the College, was wrongful and in breach of the duty of fairness to Mr. [W], such that Mr. [W] had to be reinstated and given two years back pay.  The Court quoted the termination letter Mr. [L] personally signed and noted that Mr. [L] personally met with Mr. [W] regarding his termination.  […]

Accordingly, the one portion of the anonymous letter which was included in Fairchild’s news report, which stated that Mr. [L], as Chairman of the CTCMA, had mishandled the firing of Mr. [W] resulting in financial losses to CTCMA, was an accurate account of the court decision.  As you know, the Mr. [W] lawsuit was reported by various Chinese media including Fairchild on or after October 24, 2005 shortly after the court decision was released.

With respect to verification of other aspects of the anonymous letter, we did attempt to speak to various people, all of whom denied responsibility for the letter.  We reported that fact so that viewers could judge for themselves whether the letter was credible.  In addition, we reported fully on Mr. [L]’s news conference the next day responding to the letter, criticizing Fairchild Television and announcing Mr. [L]’s intention to sue Fairchild Television.  Again, this gave viewers the opportunity to judge the circumstances, along with Mr. [L]’s response, for themselves.  I note that although Mr. [L] generally denied the content of the anonymous letter, you did not identify any inaccuracy regarding the Mr. [W] matter.

You have asserted that Fairchild should not have even reported on the anonymous letter.  I am afraid that as journalists we do not make the news but report on the news, and the appearance of the anonymous letter during the candidates’ meeting was considered an important and newsworthy aspect.  We recognized that it needed to be handled with care and that we could not report on any allegations in the letter which were not verified.  It is for that reason that we did not report on any allegation other than the one pertaining to the Mr. [W] court case.  Our job as journalists is to observe public events and report them with fairness and accuracy.  We believe we did that.

Your concern about showing an image of the anonymous letter must be put into context.  We did not show the entire letter.  The only portion which was shown was a portion of the letter showing a signature of the author and the portion identifying the estimated amount of damages arising from the Mr. [W] court case.  This was consistent with the amount of damages reported by our station and others on October 24, 2005 after the court decision, which was Mr. [W]’s own estimate of the amount he would be paid as a result of the decision.  There has never been a complaint about inaccuracy regarding the amount and Mr. [W] confirmed to us that the October 24, 2005 newscast was accurate.  Of course, if there is a factual correction to the amount of money involved, we would be happy to discuss that with Mr. [L] and clarify that matter.

Your last complaint is that Fairchild Television did not contact Mr. [L] for comment.  If this were a case of a new and untested allegation, we would of course contact Mr. [L] for comment before broadcasting a news story.  But in this case, the information was verified by the court decision and we feel we were entitled to rely on that.  In addition, we did broadcast Mr. [L]’s response from his news conference the following day.  The obligation of providing balance in news coverage does not always mean that every response to a news story must be reported the same day.  Some stories result in reaction that is reported in the days following a news story.  The question of balance is to be judged looking at the whole series of broadcasts and not just a one day snapshot.  In this case, we are confident that the accuracy of the report was verified by the court decision and the fairness to Mr. [L] was satisfied by broadcasting his response the very next day.

Based on all of the above, we believe that we have lived up to our obligations of fairness, accuracy and a high standard of journalism.

The Ruling Request

After the resolution of some administrative issues at the CBSC, the complainant filed his Ruling Request on July 3, 2007.  He included the following additional information:

1.         Fairchild, in its response to my complaint, states that it does “not make the news but report[s] on the news”.  It should be noted that, to the best of my knowledge, no other media outlets reported on the anonymous letter on July 27, 2006.  With its broadcast in question and report the next day on Mr. [L]’s complaint, Fairchild has made news with the anonymous letter, to Mr. [L]’s detriment.

2.         Fairchild said it did not report on any unverifiable allegations in the anonymous letter.  But in fact, it put the whole letter on screen.  And the letter is clearly malicious on its face and full of inaccuracies and defamatory allegations.

3.         Fairchild highlighted a portion of the anonymous letter in the broadcast which states that Mr. [L] was sued for smearing a dismissed employee and that CTCMA had to pay $500,000 of damages in addition to $250,000 for two years’ salary to the employee.  In fact, the appeal court ruling only dealt with the procedure and not the grounds for the dismissal of the employee or any other issues.  And it did not set out an amount of the wages or damages.  There was a separate lawsuit in which CTCMA sued the employee for financial irregularities and the employee counter-sued CTCMA, Mr. [L], another director and CTCMA’s auditor for defamation.  But that lawsuit never went to trial and was settled out of court.  Fairchild acknowledges it got the damages figures from the employee, one party to a lawsuit, but did not independently verify them before reporting them.  If it did, it would have known that the figures are grossly incorrect and the true figure is protected by the confidentiality provision in a settlement agreement.  The anonymous letter is clearly malicious in its deliberate inaccuracy and Fairchild was reckless in its broadcast.

4.         Fairchild acknowledged it did not contact Mr. [L] for comment before reporting on the anonymous letter but that it reported on his complaint against it the next day.  This should all be viewed in the context of the nomination vote being held on July 29, 2006, a mere two days after the broadcast in question.  Should it not be more imperative for a media outlet to be fair and balanced in a heated and tight political contest?  Fairchild’s report on July 28, 2006 of Mr. [L]’s complaint against it is very one-sided and defensive.  It doesn’t have the effect of balancing its report a day earlier.  It states that the broadcaster had checked the letter before reporting on it.  Therefore, it might have the effect of further confirming the credibility of the anonymous letter.

5.         The margin of victory for Mr. [L]’s opponent in the nomination contest held on July 29, 2006, two days after the broadcast in question, was only 28 votes out of a total of about 600.  I believe the broadcast was not accurate, it was not fair and it was not balanced.  It had prejudiced Mr. [L] and possibly cost him the nomination.

6.         Mr. [L] has accepted the nomination result.  But I believe a media outlet should have a duty to be more vigilant in its report of an anonymous letter which on its face is malicious and intended to influence a political vote.

7.         My complaint is against both Fairchild TV and Talentvision.

The Broadcaster’s Further Responses

The broadcaster sent the following letter to the CBSC on July 27, 2007:

On reviewing this matter, it appears that we did not provide our answer to [the complainant]’s follow-up letter to the CBSC of August 24, 2006.  Although that letter is mostly a repeat of Mr. [L]’s earlier letter of complaint to which we have responded, we do wish to respond to some of the points raised.

First, Mr. [L] told our reporter and we paraphrased him where he said he is confident his past experience will help him win this riding.  He went on to give a direct clip by saying, “I feel that the Liberal members in this riding should have a choice … instead of having no choice in who should represent them.”

In this context, Mr. [L] raised the interest and question in [sic] whether his past experience and background would indeed help his nomination result.  It is in this light that when the anonymous letter surfaced after the pre-nomination party and part of the letter raised a very prominent part of Mr. [L]’s past experience, that is his involvement as chairman of CTCMA, that made it relevant for our news report to include the anonymous letter because it was clear to us that a part of Mr. [L]’s background and past experience has raised concerns in the community or potential voters in the nomination party to issue an anonymous letter placed on the windshield of Mr. [L]’s guests’ parked cars.

Second, as stated before, the part of the anonymous letter we reported in our story was limited to the court decision on mishandling of Mr. [W]’s firing.  The visual we showed in our story also was not readable except for that page of the content.  I would like to reiterate that the anonymous letter included many pages of information, we only reported on the one area that was factually supported by court decision.

The item from the letter which was reported was confirmed as a matter of public court record, and was directly relevant to an important issue in any nomination campaign, emphasized by Mr. [L] himself, namely, his past experience and performance.  In our journalistic judgment this was both factually solid and in the public interest as voters in the community had taken issue with one part of Mr. [L]’s past experience and we merely included that fact in our news story.

Third, regarding the alleged inaccuracy in the amount of the dismissal award, we had direct factual information from a source which was privy to the information, and Mr. [L] fails to provide any details to judge whether his disagreement with the figure is simply based on a different calculation or estimate and whether the difference is of any significant amount.  The full magnitude of wrongful dismissal awards requires the inclusion of the salary over time, interest and costs.  Without further detail from Mr. [L], we can only assume the difference may lie in whether he is including all aspects of the award.  We have offered to report a correction if any concrete error and amount is provided, and his letter fails to assist.

Fourth, as for Mr. [L]’s point that because the other media did not report on the same information, therefore we should not either, I wanted to emphasize that we reported on many stories that the other media did not cover.  A free and energetic media thrives on differing approaches and stories, not behaving like sheep.

Lastly, I would also like to quote a radio audience [member] who called in a radio talk show about our coverage in question, and pointed out that if Fairchild TV did not include that letter, Fairchild TV would look as if we were trying to help Mr. [L] in his campaign.  The letter was a relevant part of the campaign, we only reported the part which could be factually confirmed, and we broadcast Mr. [L]’s response.

The broadcaster’s lawyer sent an additional letter on November 14 after the CBSC sent it copies of the translations provided by the complainant.

Fairchild Television submits that that translation provided by Mr. [L] does not provide a fair or realistic representation of what actual viewers of the newscast saw and understood.

First, it was apparent that Mr. [L]’s translator had an actual copy of the letter which was referenced in the newscast in preparing the translation, as the newscast did not show the entire letter.  The most obvious illustration of this is that the translation includes a large title “[Mr. L]’s Wicked Conduct in the CTCMA” which was never shown onscreen in the newscast.

Second, the letter, which is quite lengthy, was only shown in a quick four second camera tilt-down, which viewers would not actually be able to read.  The camera panned quickly from near the top of the letter to the bottom and was simply a visual depiction of what someone had placed on car windshields during the nomination meeting which was the subject matter of the newscast.

Obviously, the CBSC should judge the complaint based upon what an actual viewer actually saw.  To provide the best evidence of this, our client has consulted translators in both the Mandarin and Cantonese languages as the newscasts are transmitted in both languages, to identify (in translation) what they could actually notice by watching the broadcast.

To ensure that Fairchild Television were being generously fair to the complainant, they had each translator watch the newscast in their respective languages twice, as Fairchild’s newscasts are broadcast twice.  Our client’s research indicates that viewers tend to watch only one or the other, but given the possibility that a small number of viewers might have watched them both, our client wanted their translators to simulate that experience.

The translations, along with a document setting forth a translation of the voiceover which accompanied the image of the letter, are attached as follows:

1.  Cantonese translation from the first viewing of the Cantonese broadcast, in which the translator was only able to catch the following words:

“Mr. [L] indicates” … “A Group of Righteous Chinese Medicine Doctors” … “as a result, the court awarded seven hundred fifty-five thousand dollars (five hundred thousand dollars)” … “a group of righteous Chinese medicine doctors”.

2.  Cantonese translation after the translator’s second viewing of the Cantonese newscast, in which he was able to glean the following from the image of the letter:

“The reputation of Mr. [W] as a result of the court awarded seven hundred fifty-five thousand dollars (five hundred thousand dollars) as a result five hun” … “seven hundred fifty-five thousand dollars (five hundred thousand dollars)” … “Mr. [W] the court awarded” … “seven hundred fifty-five thousand dollars (five hundred thousand dollars)”.

3.  Mandarin translation from the first viewing of Mandarin broadcast, in which the translator explained what he could understand from the letter showing the newscast as follows:

“I did see the flyer on the screen but did not get much of it because it was not a whole-page shot and it seems only the middle part of each sentence was displayed.  I remember I saw some name (‘Huang’?) and some numbers (‘seven hundred fifty thousand’?) and saw what I guess (is) the signature part most clearly (‘A Group of Righteous …’) because it was displayed relatively longer.  I don’t remember I saw the heading of the flyer.  These may be from different shots of the whole story because I don’t have the expertise to distinguish different kinds of shots.”

This interpreter goes on to say that he was unable to associate the translated voiceover with the image of the letter.

4.  Mandarin translation after his second viewing of Mandarin broadcast.  The translator states:

“On the second viewing, I saw the flyer more clearly.  I don’t remember I saw the heading.  I remember the moving shot was from top to bottom.  Different from what I remembered from the first viewing, each line was displayed from beginning to end.  I saw the signature/bottom part more clearly (‘A Group of Righteous Traditional Chinese Medicine Practitioners’).  I saw the name ‘Huang Zhigiang’, the words ‘court’ and the numbers ‘750,000’.  I saw other words but just don’t remember.  What I saw may be different shots because I don’t have the expertise to distinguish different types of shots.”

It is apparent that even a professional translator, watching the newscast twice, was unable to catch any more than snippets of the letter.  It is submitted that this is not surprising considering the quick pan of the letter was too fast for a reasonable person to read, and was intended to simply show a brief image of what was handed out.  The voiceover explained the one aspect of the letter which our client felt confident reporting given that it was confirmed by judicial decisions in British Columbia, namely the wrongful dismissal award given to Mr. [W].  The other allegations in the letter were not reported by Fairchild Television and the quick pan of the image of the letter did not permit viewers to see them.

THE DECISION

The National Specialty Services Panel examined the complaint under the following provisions of the Radio-Television News Directors Association of Canada (RTNDA) Code of (Journalistic) Ethics and the Canadian Association of Broadcasters’ (CAB) Code of Ethics.

RTNDA Code of (Journalistic) Ethics, Article 1 – Accuracy

Broadcast journalists will inform the public in an accurate, comprehensive and fair manner about events and issues of importance.

CAB Code of Ethics, Clause 5 – News

It shall be the responsibility of broadcasters to ensure that news shall be represented with accuracy and without bias.  Broadcasters shall satisfy themselves that the arrangements made for obtaining news ensure this result.  They 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 formulated on the basis of the beliefs, opinions or desires of 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.

CAB Code of Ethics, Clause 6 – Full, Fair and Proper Presentation

It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of each broadcaster.  This principle shall apply to all radio and television programming, whether it relates to news, public affairs, magazine, talk, call-in, interview or other broadcasting formats in which news, opinion, comment or editorial may be expressed by broadcaster employees, their invited guests or callers.

CAB Code of Ethics, Clause 7 – Controversial Public Issues

Recognizing in a democracy the necessity of presenting all sides of a public issue, it shall be the responsibility of broadcasters to treat fairly all subjects of a controversial nature.  Time shall be allotted with due regard to all the other elements of balanced program schedules, and the degree of public interest in the questions presented.  Recognizing that healthy controversy is essential to the maintenance of democratic institutions, broadcasters will endeavour to encourage the presentation of news and opinion on any controversy which contains an element of the public interest.

The Panel Adjudicators reviewed all of the correspondence and translations and watched the challenged reports broadcast on Fairchild Television and Talentvision.  The Panel also reviewed the decision of the British Columbia Court of Appeal, which was provided to it by the broadcaster.  The Panel concludes that the reports of July 27, 2006 violated Article 1 of the RTNDA Code of (Journalistic) Ethics and Clauses 5 and 6 of the CAB Code of Ethics, but did not violate Clause 7 of the CAB Code of Ethics.

Some Preliminary Issues regarding the Broadcast

This matter has complex overtones, in the sense that it relates to the ultimate democratic process, namely, the selection and election of candidates to a legislature, whether federal or provincial.  In the challenged newscasts, there is an additional and important related element, namely, the timing of any news reports that could affect that process.  In this case, the fuse was particularly short; there were two days between the news reports and the candidate nomination meeting.  Sensitivities were running high.  On the one hand, the broadcaster wanted to be sure it ran everything newsworthy and pertinent.  On the other hand, each candidate for the Party nomination would wish no negative comment (in an ideal world) but certainly no unfair negative comment.

While the Panel does consider that reporting the placing of a flyer on car windshields may be newsworthy to some media, it also recognizes that there may be a danger in such a report where the document is anonymous and no-one can be found to stand behind its allegations.  It is an interesting comparative observation that most, if not all, major daily newspapers will not even publish a letter to the editor without having the name and relevant co-ordinates of the writer of such a letter.

The Panel does not question Fairchild and Talentvision’s right to report on the placing of such a flyer; it merely notes that there may have been indications that they ought to have been especially cautious considering they were according some on-air credibility to an anonymous document.  That being said, the Panel does not consider the complainant’s point that “no other media outlets reported on the anonymous letter on July 27” to be meritorious.  It agrees with Fairchild’s representative, when she stated in her letter of July 27, 2007, that they report on many stories that other media do not cover.  She added that a “free and energetic media thrives on differing approaches and stories, not behaving like sheep.”

It is, of course, correspondingly true that Fairchild cannot justify its broadcast on the fact that there had “never been a complaint about inaccuracy regarding the amount” which is challenged by the complainant.

The Material Issue

In the matter at hand, the complainant has alleged inaccuracy, unfairness and a lack of balance in the report.  The CBSC does not, as a matter of practice, assess the issue of balance within the confines of a single program (or newscast).  It does, however, deal with accuracy and fairness.  In the case of the challenged newscasts, the Panel notes the importance that both the complainant and Fairchild attach to their respective translations of the core of the newscast, namely, the report by Mr. Ng and the associated visuals.  As the Panel has stated above, it is its view that the possibly conflicting translations provided by the complainant and the broadcaster were not material; the Panel’s decision does not turn on the spoken word, but only on the on-screen written word.  It is based on the broadcast of the text of the flyer and the close-ups of excerpts from it.

What the Viewers See

Preliminarily, the Panel wishes to comment on the time issue that has been raised by the broadcaster’s lawyer.  He wrote:

Second, the letter, which is quite lengthy, was only shown in a quick four second camera tilt-down, which viewers would not actually be able to read.  The camera panned quickly from near the top of the letter to the bottom and was simply a visual depiction of what someone had placed on car windshields during the nomination meeting which was the subject matter of the newscast.

He then put forth the test conducted by the broadcaster, which had translators view the news item twice and try to convey everything they had seen.  As he explained:

To ensure that Fairchild Television were being generously fair to the complainant, they had each translator watch the newscast in their respective languages twice, as Fairchild’s newscasts are broadcast twice.

While the Panel does not doubt the bona fides of the purpose and execution of the experiment, it does not agree that that is the test to be applied.  When there is, for example, an image that broadcasters should not, or do not wish to, air, they do not show it fleetingly, they pixillate it (i.e. digitally scramble the image) for every instant of its on-screen presence, just as they bleep inappropriate language.  If the content should not be seen, that is how broadcasters are expected to deal with it.  And it is how they should do so.  They cannot be unequivocal in their treatment of inappropriate content; they must not broadcast it.

This is the moreso necessary in the broadcast world of the 21st century.  Programming is easily time-shifted, paused during broadcast, played and replayed at the instant, or recorded and saved for later consumption, when it can again be re-viewed, played back and paused.  While there have been video recording devices for more than 30 years, the advent and prevalence of the personal video recorder in the very recent past has made that exercise astonishingly easy.  It is the view of the National Specialty Services Panel that the brevity of the view of inappropriate material will not save a broadcaster from a Code breach.

The Panel also notes that, in the case of conventional radio broadcasts, it is always the case that moments pass in fractions of a second and are gone.  They cannot be paused or played back, as they can on television.  They can, of course, be recorded or purchased from one of the companies specializing in such a service, but that, in the experience of the CBSC in dealing with tens of thousands of complaints over time, has almost never occurred.  If the test were strictly limited to “what actual viewers [or listeners] of the newscast saw and understood,” and, presumably, recount, the CBSC would virtually never be able to rule on radio issues.  That is not, and cannot be, the test.  The test today is what was broadcast.  Full stop.

If, in the matter at hand, the broadcaster wished to show the flyer, it could have done so in its reported location, on car windshields, with, say, a sufficiently long lens, obliquely or on a pixillated basis, so that no wording could have been seen.  It chose not to do so.  Consequently, the determination of this Panel will be made on the basis of its view of the content as broadcast and seen, however fleetingly.

The Content

The broadcaster has made it clear that it only broadcast “the information that could be verified.”  It added: “We recognized that it needed to be handled with care and that we could not report on any allegations in the letter which were not verified.”  That point was made in the correspondence numerous times.  The broadcaster also was careful to identify the source of its confidence in the details it chose to reproduce from the letter or circular, which it explained in the following terms: “the information was verified by the court [of Appeal] decision and we feel we were entitled to rely on that [see Appendix C for links to that decision and to the decision of the Supreme Court of British Columbia, at trial].”  In the letter of July 27, the News Controller, News & Current Affairs, made the point again: “I would like to reiterate that the anonymous letter included many pages of information, we only reported on the one area that was factually supported by court decision.”

It is, however, there that the Panel has its problem with both the full text and the close-ups.  While there is an issue relating to the quantum, or the amount, of the reported payment, what is far more important to the Panel is the characterization of the nature of the decision of the Court of Appeal on which the broadcaster relies.  The close-ups read, as noted above, “the Administration was sued and will have to pay Mr. [W] for insulting his professional conduct and reputation.  Mr. [W] will be paid 750 thousand dollars (made up of 500 thousand dollars plus two years of salary) [emphasis added].”  That information is in fact wrong and finds no basis in the decision of the Court of Appeal.  The message of the zoomed-in-on part of the flyer is fundamentally linked to “insult” and damages.  While there is a reference to “two years of salary”, the principal part of the message is that there was an award of “500 thousand dollars”, which is tied to the insult to the “professional conduct and reputation” of the registrar.

That message appears to have been picked up in the subsequent correspondence of the broadcaster, in which the repeated emphasis is on the fact that the dismissal of Mr. [W] by the CTCMA was (all of the following emphases are added) “handled personally [by Mr. L] as Chairman of the College”, that “Mr. [L] personally signed” the termination letter, and that ‘Mr. [L] personally met with Mr. [W] regarding his termination.”  Then the broadcaster added that “the one portion of the anonymous letter which was included in Fairchild’s news report, […] stated that Mr. [L], as Chairman of the CTCMA, had mishandled the firing of Mr. [W] resulting in financial losses to CTCMA.”  There is, however, no indication anywhere that Mr. [L] was acting other than in his capacity as Chairman of the CTCMA or that he was doing anything other than the bidding of the College, which had been sufficiently concerned that it had hired an outside accountant to investigate the actions of the registrar.  There is not so much as a hint that Mr. [L] was doing other than carrying out his corporate duties.  Furthermore, the decision of the Court of Appeal on which the broadcaster relies does not include Mr. [L] or any other physical person as a party.

What is most important about the decision of the Court of Appeal is that it has nothing whatsoever to do with insults or damages.  It was, as the plaintiff Mr. [W] himself alleged in his argument before the Court (cited frequently in the decision), and the Court itself repeatedly indicated, an issue of procedural fairness with which the Court was dealing.  As the Court said, in its analysis of the matter, “Either the rules of procedural fairness were observed or they were not.”  The Court was scrupulous in distinguishing between the “process [and] substantive issues.  The two must remain separate for a clear-headed analysis.”  The court of first instance, the Supreme Court of British Columbia, dealt in far more detail with the nature of the registrar’s conduct that led to his dismissal.  Parenthetically, the Panel finds it curious that the broadcaster spent as much time during the news item on the personal involvement of the College’s Chair in the dismissal without adding a single word about the alleged insubordination and dishonesty of Mr. [W] which had led the College to dismiss its registrar.

As to the factual aspects of the Court of Appeal decision on which Fairchild and Talentvision relied, the broadcaster was not scrupulous.  All that decision had concluded was that “Mr. [W] should be reinstated as registrar but the College need not bring him into active service.”  Indeed, the Court added, “The fact that he would be back on the payroll provides an incentive to the College to get on quickly with the natural justice hearing.”  The Court was also not shy about including in its decision references to the issues of insubordination and dishonesty of Mr. [W] on which the College had relied.  The Court did, however, make the point that, notwithstanding such allegations, there was a proper procedure to be followed.  It was not, with the consequence that the College had to return to square one in the pre-termination natural justice process.  The point is that Mr. [W]’s victory was limited and strictly process-related.  As the Court concluded, “I would quash the decision to terminate, reinstate Mr. [W] as registrar on the limited basis described above, and award full back pay and benefits less earnings from other employment [emphasis added].”  There was not a word of discussion about defamation or damages.  There was not even a full award of back pay for the period during which Mr. [W] did not act as registrar.  He was obliged to reduce any such amount by any compensation he might have received during that roughly two-year period.

It is the view of the Panel that the anonymous flyer totally miscast the nature of the proceeding and its result on which the broadcaster focussed and relied.  Moreover, it tied Mr. [L] tightly to that decision.  The Panel finds the assertion of a half million dollars of damages a significantly misleading amount in any event, but the moreso when it is not even clear to viewers what the value of two years of salary “less earnings from other employment” would be.  The Panel is even more troubled by the characterization of the amounts as damages associated with any insult to the reputation of Mr. [W] and the association of such damages with Mr. [L] personally.

While the flyer was not the creation of the broadcaster, it was the latter which decided to make some of the content its own.  In this it took a risk, particularly when the flyer was, as discussed above, anonymous and Fairchild and Talentvision could find no-one to stand behind it or be answerable for its content.  They chose to rely on information that was materially incorrect and that they ought to have known was materially incorrect.  They admit to having the decision of the Court of Appeal in hand since October 24, 2005, a full nine months before the broadcasts of July 27, 2006.  They had ample time to review it and, if necessary, seek the advice of legal counsel to understand what it meant.  Their reliance on its text to support the broadcast of a hostile anonymous document was unfounded and, worse, erroneous in material respects.  The news reports were neither accurate nor fair and consequently in breach of Article 1 of the RTNDA Code of Ethics and Clauses 5 and 6 of the CAB Code of Ethics.

The Panel has no way to assess bias in this matter and renders no opinion on that issue.

Broadcaster Responsiveness

Since broadcasters are required, as a part of their membership requirements, to respond in a thoughtful and fulsome way to complainant(s), it is the practice of the CBSC to include, as a part of its decisions, an assessment of the broadcaster’s responsiveness.  In the matter at hand, the broadcaster engaged in considerable correspondence on the issues, whether directly or via its outside legal representatives.  It also went to considerable effort to provide translation of the broadcast material to the CBSC and was entirely collaborative in furnishing the CBSC with related documentation, such as the decision of the British Columbia Court of Appeal.  While it is clear that Fairchild did not share the complainant’s view of the challenged broadcast, it is under no obligation to agree.  Its only burden is to respond and explain its perspective.  In the view of the Panel, the Fairchild organization could not have responded more thoroughly to the complaints they faced.  Through their corporate owner, the specialty services have more than fulfilled their obligation of responsiveness with respect to the complaint about the challenged newscasts.

ANNOUNCEMENT OF THE DECISION

Fairchild Television and Talentvision are required to:  1) announce the decision, in the following terms, on their respective services in the language of the original newscast, once during prime time 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 reports were broadcast; 2) within the fourteen days following the broadcasts of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by Fairchild Television and Talentvision.

In the case of Fairchild Television, it is the following announcement that is to be used (in Cantonese):

The Canadian Broadcast Standards Council has found that Fairchild Television breached the Canadian Association of Broadcasters’ Code of Ethics and the RTNDA-Association of Electronic Journalists’ Code of (Journalistic) Ethics in its broadcast of a newscast on July 27, 2006.  During the course of that newscast, Fairchild displayed an anonymous flyer with close-up shots which included inaccurate information about a lawsuit taken against the College of Traditional Chinese Medicine Practitioners and Acupuncturists of B.C.  The document alleged that substantial damages had been awarded against the CTCMA for insulting the reputation of the College’s registrar when the Court of Appeal had awarded no such damages at all.  The document also implied the Chairman who was not a party to the proceedings and against whom the Court of Appeal made no such finding.  By broadcasting that document, Fairchild was found by the CBSC to have breached the accuracy and fairness provisions of Clauses 5 and 6 of the CAB Code of Ethics and Article 1 of the RTNDA Code of (Journalistic) Ethics.

加拿大廣播標準委員會裁定,新時代電視於2006727播放的新聞報道,違加拿大廣播業協會專業道德守則和電台與電視新聞總監協會新聞工作者專業道德守則。

於上述的新聞報道中,新時代電視播出由匿名人士派發傳單的近距離拍攝片段。內容涉及一宗控告卑詩省中醫針炙管理局的訴訟含有不準確資料。文件指,管理局要就辱該局註冊總監一事作出巨額賠償。不過卑詩上訴庭並沒有作出有關裁定。另外文件又暗示,管理局主席處事不當。不過上訴庭沒有發現主席牽涉入訴訟和處事不當。

於播放上述文件,委員會裁定新時代電視違加拿大廣播業協會道德守則第五和第六條款下有關準確和公平報道的道德守則,與及電台與電視新聞總監協會新聞工作者道德守則第一項。

In the case of Talentvision, it is the following announcement that is to be used (in Mandarin):

The Canadian Broadcast Standards Council has found that Talentvision breached the Canadian Association of Broadcasters’ Code of Ethics and the RTNDA-Association of Electronic Journalists’ Code of (Journalistic) Ethics in its broadcast of a newscast on July 27, 2006.  During the course of that newscast, Talentvision displayed an anonymous flyer with close-up shots which included inaccurate information about a lawsuit taken against the College of Traditional Chinese Medicine Practitioners and Acupuncturists of B.C.  The document alleged that substantial damages had been awarded against the CTCMA for insulting the reputation of the College’s registrar when the Court of Appeal had awarded no such damages at all.  The document also implied the mishandling of the file by the Chairman, who was not a party to the proceedings and against whom the Court of Appeal made no such finding.  By broadcasting that document, Talentvision was found by the CBSC to have breached the accuracy and fairness provisions of Clauses 5 and 6 of the CAB Code of Ethics and Article 1 of the RTNDA Code of (Journalistic) Ethics.

加拿大廣播標準委員會裁定,城市電視於2006727播放的新聞報道,違加拿大廣播業協會專業道德守則和電台與電視新聞總監協會新聞工作者專業道德守則。

於上述的新聞報道中,城市電視播出由匿名人士派發傳單的近距離拍攝片段。內容涉及一宗控告卑詩省中醫針炙管理局的訴訟含有不準確資料。文件指,管理局要就辱該局註冊總監一事作出巨額賠償。不過卑詩上訴庭並沒有作出有關裁定。另外文件又暗示,管理局主席處事不當。不過上訴庭沒有發現主席牽涉入訴訟和處事不當。

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