HBO Canada re Paradise Lost 3: Purgatory

NATIONAL SPECIALTY SERVICES PANEL
Decision 11/12-2012
December 13, 2012
A. Noël (Chair), S. Crawford (ad hoc), F. Niemi, J. Pennefather (ad hoc), C. Sephton, L. Todd

THE FACTS

Paradise Lost 3: Purgatory is the third in a series of documentaries about three adolescent males who were convicted in 1994 of the murders of three eight-year-old boys in West Memphis, Arkansas. The documentary presents the argument that the three young men were wrongfully convicted.  It includes interviews with people involved in the case, as well as news and other video footage spanning the time of the original murder investigation in 1993 through to the release of the three men in 2011.

The two-hour-long film begins with video footage of the discovery of the three boys’ bodies near a creek in a wooded area. The bodies are visible, naked and bruised, first from an aerial camera shot and then closer up.  This footage is accompanied by a heavy metal soundtrack.  Later in the film, photographs of the bodies are shown during video footage of the three men’s court trials, as well as during a press conference held to announce subsequent forensic developments in the case.  There is also graphic discussion about the state of the bodies, including mention of the fact that the bodies were hog-tied at the arms and legs, and one boy’s body was castrated.

The pay television service HBO Canada aired the documentary on its Western licence at 3:15 pm Mountain Time on May 30, 2012. It preceded the broadcast with the following viewer advisory in both audio and video format:

The following program is rated 18A and contains scenes with violence, coarse language, nudity and mature themes. Viewer discretion is advised.

Icons designating this information were also displayed.

The producer of the film also put its own advisory at the beginning of the film in video format only, which read:

This film contains images from actual crime scene footage. Viewer discretion is advised.

The CBSC received a complaint on June 1 from a viewer in the Pacific time zone who had seen the film at 2:15 pm. The viewer expressed shock and disgust at the inclusion of the images of the boys’ bodies.  The viewer felt that it was disrespectful and exploitative to show these images.  The viewer did, however, admit to having watched only five minutes of the program before turning it off.  HBO Canada wrote to the viewer on July 11 pointing out that it is a discretionary premium pay service that provides unedited films and documentaries in a variety of formats and genres, including those which are provocative and controversial.  The station noted that it had rated the broadcast 18A and preceded it with a viewer advisory.  It also indicated that it had re-evaluated the scheduling of the film and in future would only broadcast it between the industry-accepted late-night viewing period of 9:00 pm to 6:00 am.

The viewer filed a Ruling Request on July 26 indicating dissatisfaction with HBO Canada’s response. The viewer stated that the footage of the dead bodies remained unjustified and exploitative regardless of what time the film was shown and was completely unnecessary to further the creators’ argument regarding the outcome of the criminal trials.  HBO Canada wrote again to the CBSC on August 20 to provide some additional information about its broadcast.  The station noted that similar footage of the bodies also appears in the first two documentaries in this series and agreed that “this is a haunting film and controversial subject matter that may be unsettling for some viewers.”  It emphasized, however, that the footage in question was relevant to the context of the critically-acclaimed film which aimed to provide an in-depth analysis of the West Memphis case.  (The full text of all correspondence can be found in the Appendix).

THE DECISION

The National Specialty Services Panel examined the complaint under the following provisions of the codes relating to pay television:

Industry Code of Programming Standards and Practices governing Pay, Pay-per-View and Video-on-Demand Services

A. Introduction

2. Programming Provided by Licensees of Pay Television Programming Undertakings

Licensed pay television, pay-per-view (“PPV”) and video-on-demand (“VOD”) services in Canada are committed to the presentation of programming that is well balanced, of high quality, and of interest to a wide number of Canadians.  The programming so presented is intended to appeal to a variety of interests and tastes.

A major appeal of premium pay, PPV and VOD television services is the ability to see feature films and other programming material in their original theatrical form, uninterrupted by commercials.

Discretionary services including pay television, PPV and VOD services are distinguished from conventional television, as they require an affirmative decision by a subscriber to purchase and receive them on an unencrypted basis in the home. As discretionary services, pay television, PPV and VOD services have more latitude to program material that is intended for mature audiences than is the case with conventional television services.

[…]

Pay television and PPV/VOD licensees have a responsibility to ensure that the programming they provide is of high quality and meets general community standards within the context of a discretionary service.

Pay TV and PPV/VOD services are typically distributed in digital format, which requires digital set-top boxes at each subscriber’s television set. Each set-top box has the capability of locking out programming by rating and by channel.  This gives each Canadian home equipped with digital service the capability of precluding reception of unwanted programming.

B. Selection of Programs

[…]

  1. Exercise of Discretion

The discretion in the selection of programs will be exercised by the programming personnel of the pay television or PPV/VOD licensee, pursuant to these Standards and Practices and as directed by management consistent with its internal policies, where applicable. All material will be screened prior to airing.

  1. Basis of Discretion

The discretion of programming personnel will be exercised responsibly and in good taste. In particular, no material shall be selected that is:

a) contrary to law, including the Broadcasting Act and CRTC Regulations; or

b) offensive to general community standards

“Community standards” will necessarily change over time and therefore will be subject to continuing review and evaluation.

[…]

C. Classification and Viewer Advisories

  1. Classifications

All full-length programs aired by pay and PPV/VOD licensees will be rated. Recognizing the differing jurisdictions of provincial classification/review boards across Canada, each pay television and PPV/VOD licensee will utilize the current classification system used by the classification/review board (the “Review Board”) in the province in which the licensee’s primary broadcast operations are based.

Programs that have been classified by the applicable provincial Review Board will attract the same classification by the pay or PPV/VOD licensee.

The licensee will classify any program that has previously not been classified by the Review Board […] with a view to reflecting current community standards, using one or more of the following criteria:

(i) the guidelines then in effect for the applicable Review Board; or

(ii) the classification system of the Action Group on Violence on Television (AGVOT), as amended from time to time.

These classifications will designate the intended audience (i.e. age group) for programming or a warning that the programming is not intended for a specific age group.

[…]

  1. Viewer Advisories

While a classification is given to a program based on its overall impact, descriptive viewer advisories will be provided to alert subscribers to the fact that the titles contain scenes with specific content, such as “violence” or “horror”, which may cause concern for subscribers. Classifications and Advisories will appear in written and spoken form at the beginning of every aired title that is not suitable for viewing by children.  Advisories will also appear as part of the written descriptions given for all titles exhibited on the service, as published in the subscribers’ monthly guide.  All media are provided with any viewer advisories assigned to a program along with the program’s classification.

E. Scheduling of programming

  1. Pay Television Services

a) Programming Content intended for a general audience

Pay television services generally schedule fewer programs per month than conventional television services, but such programs are repeated more frequently to suit the convenience of the schedules of pay television subscribers.

At the same time, licensees of pay television services, as distinguished from PPV or VOD services, are sensitive to the concerns expressed by some that mature material should not be scheduled in periods when school-age children are home. There may also be certain mature material on pay television services that should not be programmed prior to 9:00 p.m. or after 6:00 a.m. in the home province of the service in question.

Licensees of pay television services will exercise particular care for all time periods in the scheduling of programs that are likely to be considered as not suitable for viewing in a family context.

The Pay Television and Pay-per-View Programming Code regarding Violence

Article 1.0 – Content

1.1        Pay and pay-per-view licensees shall not air programming which:

(“Gratuitous” means material which does not play an integral role in developing the plot, character or theme of the material as a whole.)

Article 3.0 – Scheduling

Subscription pay television services will not air scenes of violence intended for adult audiences prior to 9:00 p.m. or after 6:00 a.m. in the home province of the service in question.

Article 4.0 – Classification/Ratings and Advisories

4.1        Licensees will adopt the current ratings supplied by the Classification/Censor/Review Boards of their home province.  Programming which is classified/rated by the applicable Provincial Board will attract the identical classification/rating by the pay or pay-per-view licensee.  Any programming not classified/rated by the applicable Provincial Board will be classified in a manner consistent with the guidelines in effect for that Provincial Board.

4.2        All ratings will designate the intended audience (ie:  age group) for programming or a warning that the programming is not intended for a specific age group.

[…]

4.5        Viewer advisories and ratings (including an identification of the intended audience and/or the audience to which programming is not directed) will be given prominence in the monthly subscribers’ guide.

4.6        Viewer advisories and ratings will appear “on air”, in both written and spoken forms, in all programming not suitable for children.

The Adjudicating Panel members read all of the correspondence and viewed the challenged broadcast. The Panel unanimously agrees that HBO Canada did not violate Article B(4) of the Industry Code of Programming Standards and Practices governing Pay, Pay-per-View and Video-on-Demand Services (the “Pay TV Programming Code”) or Article 1.0 of the Pay Television and Pay-per-View Programming Code regarding Violence (the “Pay TV Violence Code”).  The majority of the Panel finds that the pay service did violate Article E(1)(a) of the Pay TV Programming Code and Article 3.0 of the Pay Television and Pay-per-View Programming Code regarding Violence for scheduling the film before 9:00 pm, but two adjudicators dissent on this point.

Gratuitous Violence and Exploitation

The Panel fully acknowledges that the visual images of the young boys’ dead bodies were distressing and disturbing, as were the verbal descriptions of the state of the bodies. Indeed, the film as a whole explores controversial and difficult subject matter which could be unsettling to some viewers.  Although it may not have been absolutely necessary to show as much detail about the bodies as the film did, those images and descriptions were relevant to the story being told because they demonstrated the severity of the crimes and underscored the tragedy that befell the boys.  In that sense, the images were not gratuitous, nor were they exploitative of the deceased boys.  Inclusion of the images also did not violate any laws or regulations and were not offensive to general community standards.  HBO Canada, therefore did not violate Article B(4) of the Pay TV Programming Code or Article 1.0 of the Pay TV Violence Code.

Scheduling of Violent and Mature Content

This is the first occasion on which a CBSC Adjudicating Panel has examined a complaint about a pay television broadcast.  The CBSC began administering the Pay TV Codes in September 2008 (prior to that time, those Codes were administered by the Canadian Radio-Television and Telecommunications Commission (CRTC)).

The Introduction (Section A(2)) of the Pay TV Programming Code notes that “[a] major appeal of premium pay, PPV and VOD television services is the ability to see feature films and other programming material in their original theatrical form […].”  It also emphasizes the discretionary nature of pay services:  “they require an affirmative decision by a subscriber to purchase and receive them [… and therefore] have more latitude to program material that is intended for mature audiences than is the case with conventional television services.”  As well, that Introduction acknowledges that subscribers receive pay television services using a digital set-top box, which has the capability of blocking out programs that subscribers do not wish to receive.

Despite that highly discretionary nature of pay television channels, the Codes nevertheless contain provisions related to the time of day at which certain types of programming should be scheduled. Section E(1)(a) of the Pay TV Programming Code states that certain mature material should not be broadcast outside of the hours 9:00 pm to 6:00 am and Article 3.0 of the Pay TV Violence Code sets out that same requirement with respect to scenes of violence intended for adult audiences.

With respect to the content of Paradise Lost 3, the majority of the Panel concludes that, taken as a whole, the documentary presented difficult, disturbing and mature subject matter.  The treatment of that subject matter included visual images and graphic discussions of gruesome crimes.  Although there were no scenes of the actual violence being committed,[1] the use of real video footage and photographs of the actual bodies constitutes “scenes of violence intended for adult audiences”.[2]  The majority considers that the film should therefore only have been scheduled between 9:00 pm and 6:00 am.  The station therefore breached Section E(1)(a) of the Pay TV Programming Code and Article 3.0 of the Pay TV Violence Code in its broadcast on May 30.  The Panel notes that HBO Canada itself decided, after a re-evaluation of the content, that it will only show the documentary during the late-evening viewing period.

Two adjudicators disagree with the majority regarding the scheduling of the film. One adjudicator considers that the threshold for what constitutes mature or adult content can be higher for pay television services given their discretionary nature.  More importantly, however, there were no scenes of actual violence and the images that showed the results of violence were relatively brief.  The other dissenting adjudicator does not necessarily believe that pay television services should be held to a different standard regarding adult material, but agrees that the images of and discussions about the crimes were not graphic enough to constitute material intended exclusively for adult audiences.  Both adjudicators would conclude that HBO Canada did not violate the scheduling provisions in airing this film at 3:15 pm Mountain Time.

Viewer Advisories and Classification

Under Article C(2) of the Pay TV Programming Code and Article 4.6 of the Pay TV Violence Code, pay television services are required to display a viewer advisory at the beginning of all programming not suitable for children that alerts viewers to the nature of the upcoming content.  HBO Canada clearly respected this rule as it provided a detailed advisory in both audio and video format.  The additional producer advisory alerting viewers to the use of real crime scene footage provided further information to viewers about the nature of the content.

Section C(1) of the Pay TV Programming Code and Article 4.1 of the Pay TV Violence Code require pay television services to employ the classification rating given to feature films by the film review boards in their home provinces.  In cases where no provincial film board rating exists for a particular program, pay services shall select a rating based on the guidelines of the film board.

In this case, HBO Canada explained that the Alberta Film Board had not yet assigned a rating to Paradise Lost 3 at the time of the May 30, 2012 broadcast.  HBO Canada therefore sought out the ratings by other films boards as well as the ratings given to the previous two films in this documentary series in order to make its own rating decision.  HBO Canada then actually chose to assign Paradise Lost 3 an even higher rating (namely, 18A) than provincial film boards had given to the previous two films in this documentary series.  The Panel considers that HBO Canada made an informed and appropriate decision in assigning an 18A rating to this film, but it does note that the rating choice seemed inconsistent with the station’s original choice to schedule the film during the afternoon.  As noted above, however, HBO Canada itself recognized that the film is more appropriately scheduled in the late-evening viewing period.

Broadcaster Responsiveness

In all CBSC decisions, the Panels assess the broadcaster’s response to the complainant. The broadcaster need not agree with the complainant’s position, but it must respond in a courteous, thoughtful and thorough manner.  In this case, HBO Canada provided a lengthy and detailed response to the complainant as well as a second comprehensive letter to the CBSC.  Moreover, pursuant to the viewer’s initial complaint, HBO Canada determined that it would only air this film post-9:00 pm in future.  Although this did not satisfy the complainant, the CBSC commends HBO Canada for taking that action on its own volition.  The broadcaster clearly fulfilled its obligations of responsiveness and, subject to the announcement of this decision, nothing further is required in this regard in this instance.

Announcement of the Decision

HBO Canada is required to: 1) announce the decision, in the following terms, 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 Paradise Lost 3: Purgatory was broadcast, but not on the same day as the first mandated announcement; 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 HBO Canada.

The Canadian Broadcast Standards Council has found that HBO Canada breached provisions of the Pay TV Programming Code and the Pay TV Violence Code in its broadcast of the documentary Paradise Lost 3: Purgatory on May 30, 2012 at 3:15 pm.  It contained mature themes and disturbing footage which should not have been shown before 9:00 pm under the scheduling provisions of the Codes.

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

[1] See the following decision for a discussion about showing the results of violence rather than the actual violent acts: CIHF-TV (MITV) re an episode of The X-Files (CBSC Decision 96/97-0043, February 14, 1997).

[2] See the following decisions for examples of content that was and was not considered “intended for adult audiences” under the relevant codes for conventional and specialty television services: CIII-TV (Global Television) re Before It’s Too Late (CBSC Decision 95/96-0172, October 21, 1996); CIHF-TV (MITV) re an episode of Millennium (CBSC Decision 96/97-0044, February 14, 1997); CITY-TV re an episode of Hard Copy (CBSC Decision 96/97-0055, May 8, 1997); Showcase Television re the movie Police 10-07 (CBSC Decision 00/01-0613, January 16, 2002); History Television re the documentary film Argentina’s Dirty War (CBSC Decision 00/01-0944, May 3, 2002); Global re ReGenesis (“Baby Bomb”) (CBSC Decision 04/05-1996, January 20, 2006); CJMT-TV (OMNI.2) re episodes of Law & Order: Criminal Intent (“Want”) and Law & Order: Special Victims Unit (“Pure”) (CBSC Decision 07/08-1441, January 7, 2009); CITY-TV re Trauma (“Stuck”) (CBSC Decision 09/10-0389, June 22, 2010); CTV re an episode of Criminal Minds (“Omnivore”) (CBSC Decision 08/09-1405, June 25, 2009); TQS re two episodes of Les experts: Manhattan (CSI: New York) (CBSC Decision 08/09-0880, August 11, 2009); Séries+ re CSI: Miami (CBSC Decision 09/10-1730, January 25, 2011)