History Television re the documentary film “Argentina’s Dirty War”

NATIONAL SPECIALTY SERVICES PANEL
(CBSC Decision 00/01-0944)
R. Cohen (Chair), P. O'Neill (Vice-Chair), R. Deverell,E. Duffy-MacLean, M. Hogarth, F. Niemi

THE FACTS

The specialty service History Television broadcast the documentary film”Argentina's Dirty War” as a part of its series Turning Points of History at 9:00 pm ET on June 18, 2001 (the complainant, who lived in the Mountain Time Zone, saw the film at 7:00 pm). The subject being military rule in Argentina during the 20th century, the film includes archival footage, descriptions of torture methods and, in some cases, re-enactments. Among the scenes included were one of a naked woman lying face down in a cell, bound and gagged; another of a man being wrestled to the ground by military officers, who placed a cloth hood over his head and handcuffed him; another re-enactment of a “torture theatre”, accompanied by a voice-over explaining that it smelled like blood, sweat, burned flesh and excrement; and still other scenes of bodies on torture tables. The broadcast did not include viewer advisories at either the beginning of the program or coming out of any of the commercial breaks.

The complainant sent a letter to the CRTC on the following day, which was, in the normal course, forwarded to the CBSC. The most pertinent sections follow (the full text of the letter and all of the other correspondence can be found in the Appendix):

[T]he show was a documentary about the “death squads” of the military dictatorship in Argentina. This was clearly a subject that was for adults only, so my children were not present. Interspersed with interviews of victims (of this type of abuse of political power) and narration, were lengthy re-enactments of naked women being sadistically tortured by electric shock and other methods. The images were the most graphic I have ever seen. I could not believe my eyes, or believe that I was actually seeing this on public [sic] TV. I can not express my disgust strongly enough. It appeared to be ghoulish pornography in the guise of a documentary. While the topic of death squads and human rights abuses is one of the most important for public awareness, discussion and action; it should not be recreated and filmed in such a way that it appears to be actually happening all over again! The film became a “torture squad” itself where families are whisked away in the blink of an eye and subjected to psychological abuses against there [sic] will (until parents can rush to the remote control to turn the evil images off!). What could possibly be the purpose of this? […] [C]ountless children have been scarred [sic] to death and scared with the images of others being scared in graphic detail. Shame!!! Last night's broadcast went beyond the level of information and well into the arena of entertainment. What kind of entertainment! […]

What ever the case, I know that children could never distinguish the “niceties” of whether or not this was a “documentary”. I fail to understand why this was broadcast during the “family hours” of 7:00-8:00 and why there were no warnings in between the commercial breaks. I fervently request that the CRTC view this program and investigate this broadcaster for this vial [sic] assault on the psyches of young viewers all across Canada. If there was ever a warning (it would have to say, “the most heinous acts of sadism and torture are about to be shoved into your face-enjoy! Just after supper, at a time when children are watching) it was insufficient. Any warning, at the beginning of this hour-long broadcast, could never prepare viewers for what they and their children were about to see!

I propose three things: 1) that the CRTC investigate this case to the greatest extent of their charter and mandate, 2) The History Channel start coordinating the timing of its broadcasts so that a showing at 9:00 in Toronto (presumably for adults only, although let's remember that this is not a video store and is for public consumption) does not appear in Vancouver at 6:00 or Calgary at 7:00 just as little Johnny or Aisha is watching some television with their family! And 3) The CRTC should enforce rules about warnings being strongly worded and inserted often; not just at the beginning of the show.

The Vice-President of Programming for History Television responded on August 8:

We endeavour to provide our viewers with intelligent and accurate programming. You can be assured that each program aired on History Television is considered very carefully. Before we broadcast a film or series, our Programming Department screens it to ensure that it is suitable for broadcast and that the historical content is accurate. The determination of suitability also includes ensuring that the broadcast does not contravene the Canadian Association of Broadcasters' Sex-Role Portrayal Code for Television and Radio Programming, The Broadcast Code for Advertising to Children or the Voluntary Code Regarding Violence in Television Programming.

Turning Points: “Argentina’s Dirty War” is a powerful documentary about military rule in Argentina. It was our intent to portray, as accurately as possible, the brutality perpetuated on the victims of the dictatorship. Our decision to include the torture scenes was not taken lightly and they were based on precise, eyewitness accounts.

Two weeks later, the complainant wrote back to the CBSC, saying in part:

Specifically, I wish them to, at least, show more concern for young family audiences by not airing such offensive programs during the dinner hour in the west and also, by showing a warning after each and every commercial break (not just before the opening credits at the beginning of an hour long program of depraved violence). I am aware, as a sophisticated viewer, that this program was a depiction of the evil perpetrated on people by the Argentine Gov't; however, in creating such graphic re-enactments, History Television is actualizing the horror in an all new and powerful form, yet again. We all know that there are ways, and then there are ways, to dramatize events.

It is interesting to note that they feel that this particular show does not contravene the Canadian Broadcasters' Sex-Role Portrayal Code; of course it does not, since that code deals chiefly with ridding television of the “blonde bimbo” image of women, not whether nude women in graphic torture chambers should be shown to kids! My question is, “for whose education and for whose ENTERTAINMENT AND SPORT”!!!

[…] I wish to convince them to change to multiple broadcast times (to compensate for the Western time zones) to prevent “very adult” shows being aired too early and for more warnings to be displayed. I would, of course, prefer it if they would admit, with the same disgust that I feel as a parent of young children, that the show was gross and indecent and like-material will never be shown again on a public air-way [sic]. People in our country are free to purchase such material (or worse) but let us not confuse censorship with the rights of children and other innocent people to an unassaulted evening of television viewing.

A Second Broadcast

On November 27, having seen the film again, the complainant wrote to the CBSC:

I was under the impression that this show was being investigated […] and that, at least, it would not be broadcast until after being judged by the CBSC. Is this true?

Argentina’s Dirty War on Turning Points in [sic] History was aired again yesterday (Nov. 26, 2001), at 9:00-10:00 am Calgary time and at 6:00-7:00 pm, just in time for children staying home from school in the morning or families having dinner, to watch unbelievably obscene re-enactments of torture scenes. Again, during the hour-long show, there were no warnings between the copious number [sic] of commercial breaks .

The Executive Director of the CBSC replied on December 3, in part:

I have investigated this rebroadcast with History Television and have been told that it was broadcast in error prior to our adjudication of this matter.

The Senior Vice-President of Factual Programming at History Television responded to the CBSC's letter with the following explanation:

We appreciate the CBSC informing us that the November 26 broadcast of Turning Points of History: Argentina's Dirty War failed to include an advisory, warning viewers of the program's mature content. After having received the comments submitted by [the complainant] in his letter dated June 19, it was History Television's intention to include an advisory in future broadcasts of this documentary.

The advisory reads, “The following program contains scenes with violence and nudity and deals with mature subject matter and may not be suitable for young viewers. Viewer discretion is advised.” Due to an unforeseeable administrative error, the advisory failed to run during the November 26 broadcast.

Turning Points of History: Argentina’s Dirty War is a powerful documentary about military rule in Argentina. It was our intent to portray, as accurately as possible, the brutality perpetrated on the victims of the dictatorship. Our decision to include the torture scenes was not taken lightly. The scenes were based on precise, eyewitness accounts.

It is never our intention to offend viewers and all future broadcast [sic] of the documentary will include this advisory before the broadcast and after every commercial break. We have respectfully pulled two future broadcasts of this show until this matter has been reviewed by the CBSC.

The broadcaster did not refer to the morning broadcast mentioned by the complainant in his letter; however, the November 26 logger tape it sent to the Council did indicate a broadcast hour of 8:00 pm in Toronto, the originating time zone. The Panel accepts that it may well have also been broadcast at the earlier hour but does not consider it necessary to arrive at that conclusion since the early evening broadcast is equally pre-Watershed in nature.

THE DECISION

The Specialty Service Panel considered the matter under the following provisions of the Canadian Association of Broadcasters' (CAB) Voluntary Code Regarding Violence in Television Programming:

CAB Violence Code, Article 3.1.1 (Scheduling):

Programming which contains scenes of violence intended for adult audiences shall not be telecast before the late evening viewing period, defined as 9 pm to 6 am.

(Note: To accommodate the reality of time zone differences, and Canadian distant signal importation, these guidelines shall be applied to the time zone in which the signal originates.)

CAB Violence Code, Article 5 (Viewer Advisories):

5.1 To assist consumers in making their viewing choices, broadcasters shall provide a viewer advisory, at the beginning of, and during the first hour of programming telecast in late evening hours which contains scenes of violence intended for adult audiences.

5.2 Broadcasters shall provide a viewer advisory at the beginning of, and during programming telecast outside of late evening hours, which contains scenes of violence not suitable for children.

The Panel Adjudicators viewed the logger tape of the broadcast of June 18. Since it was the same film, the logger tape of the November broadcast was viewed by CBSC staff in order to verify questions regarding the timing of the broadcast and the use of viewer advisories.

The Adult Nature of the Program Content

The Panel does not consider that the scenes complained of are overtly violent. While the Panel Adjudicators acknowledge that the threatening scenes constitute more of a suggestion of violence than actual violent occurrences, they are concerned that the context and the theme of the film are sufficiently violent and intellectually inappropriate for children that “Argentina's Dirty War” can only be broadcast after the Watershed hour of 9:00 pm.

Watershed Rules in Western Time Zones

This Panel has been faced with aspects of the Watershed issue on several occasions. While it has been sympathetic to the dilemma of Western viewers who are subjected to a pre-Watershed broadcast of a program acknowledged to be post-Watershed in nature in the originating time zone (generally Ontario), it has been unable to do more than to restate the rule in the Violence Code that the broadcaster can only reasonably be obliged to respect the provision which states that the “guidelines [regarding Watershed compliance] shall be applied to the time zone in which the signal originates.” In WTN re Sunday Night Sex Show (CBSC Decision 99/00-0672, January 31, 2001), this Panel dealt with the issue in the following terms:

While the Panel shares [the complainant's] concern, it also understands the conundrum presented by the vast size of Canada. Given the declared goal of the Broadcasting Act to provide programming which will be “varied and comprehensive, providing a balance of information, enlightenment and entertainment for men, women and children of all ages, interests and tastes,” it must be recognized that this task is to be achieved across six time zones with a relatively thinly spread population base. Since most of the specialty services have a single feed for the entire country (some, but not many, have two feeds), it necessarily results that only some parts of the country can be happy all of the time in terms of the issue of the hour of broadcast of adult programming. Compromise, balance and fairness are essential components of the solution. An adult program which just respects the Watershed in St. John's will be on at dinnertime in Toronto and during pre-dinner after school hours in Calgary and Vancouver. One which just respects the Watershed in Vancouver will be on after people have gone to bed in Toronto, Halifax and St. John's. One which just respects the Watershed in Toronto finds people awake in the Atlantic Provinces but at dinner in Edmonton and Victoria.

There is no denying that the effect of the Violence Code and Canadian geography is that audience members in Western time zones need to be more vigilant than Central and Eastern Canadians with respect to programming broadcast after 9:00 pm in Toronto in full compliance with Watershed requirements. When, as in the case of the June broadcast, the show aired at 9:00 pm in Toronto, History Television was in compliance with the scheduling requirements of the CAB Violence Code. When, on the other hand, the broadcaster aired the film at 8:00 pm in the originating time zone on November 26, it exacerbated the Western dilemma and, furthermore, breached the requirements of Article 3.1.1 of the CAB Violence Code.

Additional Audience Viewing Tools

The Watershed is, in an important sense, a device or tool that audiences can use to assist them in making informed viewing choices. Programs following it can be expected to contain material intended for adult viewing; programs preceding it can be expected not to contain material intended for exclusively adult viewing.

In addition, though, broadcasters provide other tools to facilitate audience vigilance. These include viewer advisories and classification icons, as well as channel blocking techniques. The CBSC considers it important that viewers use these. As this Panel said in Bravo! re the film The House of the Spirits (CBSC Decision 00/01-0738, January 16, 2002), it

does not accept that members of the audience ought to be relieved of their responsibility in becoming familiar with the tools and their use. The viewer aids have been established by broadcasters to improve the audience's arsenal of information which will enable them to make informed choices regarding programming selection. Broadcasters now also encode programs with the required information for the operation of the V-chip in order to give audiences yet another opportunity to ensure that programming they may not wish to see can be avoided. It would not be reasonable to conclude that viewers should abdicate their responsibility to take the fullest advantage of these viewing aids. It may be a question of time and effective media education but it is a step that must be taken. Broadcasters still have their own obligations relating to the Watershed and other Code-related standards but viewers must play their role in the exercise of the viewing options that broadcasters have equipped them to undertake.

In the case of both the June and November screenings of the film, though, History Television failed to provide viewers with advisories at all. In this respect, the Panel finds the broadcaster in breach of Article 5 of the CAB Violence Code. There is, however, a nuance with respect to the use of viewer advisories which the Panel addresses in the following section.

Respect of Pre-Watershed Advisory Rules in Certain Post-Watershed Circumstances

Article 5 of the Violence Code provides for viewer advisories; however, it provides two different rules regarding their frequency of use. In the event that a program includes content that is intended for adult audiences and must, in consequence, play after 9:00 pm, the Code envisaged that it was only necessary that viewer advisories be provided at the start of the program and coming out of each commercial break during the first hour of a show of longer than 60 minutes duration. The Panel assumes that the codifiers considered that this precaution was sufficient to enable viewers to make informed choices with respect to a post-9:00 pm broadcast.

Where, on the other hand, a program airs before the Watershed, audiences are safe, as noted above, to assume that it is not intended exclusively for adults. That being said, the codifiers were cautious in their consideration of the fact that such programs might not be suitable for children (defined in the Code as being under 12 years of age). In such circumstances, they provided that viewer advisories would be appropriate at the start of the program and coming out of every commercial break during the entire duration of the show. Thus, potential audience members happening on a program while channel-surfing would be as protected as possible by the provision of information throughout the duration of the show enabling them to make informed choices at any time.

The Panel has already determined above that the total absence of advisories in the present matter itself constitutes a breach of the Violence Code; however, there is another aspect of the advisory issues that present itself to the Panel for the first time. It relates to whether the post-Watershed rule of Article 5.1 or the pre-Watershed rule of Article 5.2 applies to a single-feed program that runs after 9:00 pm in the originating time zone and before 9:00 pm in other more Westerly time zones. If the former, advisories must run at the beginning and during the first hour only; if the latter, they must be present at the start of, and throughout the entire, show. The Panel's view is that the exemption relating to the originating time zone in Article 3 is exceptional and applies only to the scheduling issue. It is not present in any other article of the Code and has no application to the question of the requirements for the inclusion of advisories established in Article 5 of the Violence Code.

The Panel considers that the circumstances which drive the advisory issue are aimed toward the provision of as much information as can suitably, reasonably and fairly be required. It is thus absolutely certain that, if programming not suitable for children benefits from the more frequent inclusion of advisories pursuant to the requirement in Article 5.2 (rather than 5.1), then programming which is intended for adults ought, by its nature, to be even more in need of such viewer alerting information. Consequently, when a broadcaster airs a program after the Watershed in one time zone on that account but knows that it will be received in any other time zone of the country before the Watershed, it must protect the more Western-residing viewer with the information that is minimally required pre-Watershed. While the sound reasons relating to the provision of programming across the country are the basis for the establishment of the scheduling exception for single-feed services, there is no equivalent rationale limiting the extension of the post-Watershed advisory rule. The insertion of the additional advisories is a small inconvenience for the broadcaster but a major informational benefit for the viewing audience. The imbalance resulting from their non-inclusion would be unfair to viewers.

In the case at hand, since the broadcaster failed to provide any advisories, it is in breach of Article 5.1 in any event. The Panel considers it helpful, however, to advise this broadcaster and others that they will be expected to include viewer advisories coming out of every commercial break for any programs which begin prior to the Watershed in any time zone in the event that their content is unsuitable for children, in accordance with the rule established in Article 5.2 of the Violence Code.

The Rebroadcast prior to the CBSC Adjudication

It appears from the correspondence that the broadcaster had intended not to replay the challenged program prior to the anticipated CBSC adjudication of this complaint and that the rescheduling was inadvertent. While there is no CBSC requirement that a program awaiting adjudication not be rebroadcast, the Council does appreciate the sensitivity of a broadcaster that decides to await the Panel's conclusions. There may occasionally be financial exigencies relating to the term of a licence or other matters that militate against a wait that is too lengthy, and this should be borne in mind by any complainant as counterpoint. Moreover, it goes without saying, since CBSC decisions can go either way, those involved on either side of a complaint should be sensitive to the overall fairness involved in a rebroadcasting decision. After all, the existence of a complaint is no more decisive as to the issue of Code compliance, on the one hand, than the initial decision of a broadcaster to air the program, on the other.

Broadcaster Responsiveness

The Panel always takes the time to consider the broadcaster's responsiveness to the complainant's concerns, which is a part of each broadcaster's CBSC membership requirements. In this file, the broadcaster was consistent in fulfilling its obligation to reply to the complainant. History Television's representatives were helpful and forthcoming, notwithstanding their failure to satisfy the complainant. Nothing more could be asked of the broadcaster in this respect.

ANNOUNCEMENT OF THE DECISION

History Television is required to: 1) announce this 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 in the time period in which “Argentina's Dirty War” in the series Turning Points of History was broadcast on June 18; 2) within fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the announcements to the complainants who filed the Ruling Request; and 3) at that time, 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 History Television.

The National Specialty Services Panel of the Canadian Broadcast Standards Council has found that History Television has breached Article 5 of the Canadian Association of Broadcasters' Violence Code by failing to provide viewer advisories at the beginning of, and during, its broadcast of “Argentina's Dirty War” in the series Turning Points of History in June 2001. The Panel has also found that, by rebroadcasting that film with scenes intended for adult audiences prior to the Watershed hour of 9:00 pm in November 2001, and by failing to include viewer advisories on that occasion, History Television has breached Articles 3 and 5 of the Violence Code.

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