MusiquePlus re the song “Va donc chier” by Les Chiens sales

quebec regional panel
(CBSC Decision 04/05-1399)
G. Bachand (Chair), L. Baillargeon, R. Cohen (ad hoc), B. Guérin, M.-A. Murat

the facts

MusiquePlus is a music specialty service that broadcasts music videos, live performances and other programs about pop culture and the music industry.  On April 20, 2005, apparently between 6:30 to 7:30 pm (the complainant advises that it was between 6:00-7:00 pm, although the Panel does not consider that there is any material difference between those two times for the purpose of its present deliberations), MusiquePlus broadcast a video countdown program entitled Top5.M+.com.  The first half of the program contained the top five anglophone music videos, while the second half contained the top five francophone videos.  During the francophone portion of the program, the number one video was for the song “Va donc chier” by the group Les Chiens sales.  A viewer advisory in visual format only appeared before the video, which stated:

[translation]  Warning: This song contains explicit lyrics that may offend some viewers. 

The video then began with the following words on-screen: “Avec le succès arrivent les rumeurs … En voici quelques unes:” [“With success come many rumours … Here are a few.”]  The video component consisted of the band members playing their instruments, with occasional tongue-in-cheek words supered on the screen, describing humorous, fictitious rumours that had circulated about the band members.  The full lyrics of the song being played were as follows:

Eille maudit tabarnac’

Va donc chier, va donc chier, va donc chier, mange donc d’la marde
Va donc chier, va donc chier, va donc chier, mange donc d’la marde

Va donc chier, va donc chier, va donc chier, mange donc d’la marde
Va donc chier, va donc chier, va donc chier, mange donc d’la marde

Va donc chier, va donc chier, va donc chier, mange donc d’la marde
Va donc chier, va donc chier, va donc chier, mange donc d’la marde
Va donc chier, va donc chier, va donc chier, mange donc d’la marde
Va donc chier, va donc chier, va donc chier, mange donc d’la marde

Va donc chier, va donc chier, va donc chier, mange donc d’la marde
Va donc chier, va donc chier, va donc chier, mange donc d’la marde
Va donc chier, va donc chier, va donc chier, mange donc d’la marde
Va donc chier, va donc chier, va donc chier, mange donc d’la marde 

On May 16, either between 9:00 and 11:30 pm (according to the complainant) or post-11:30 pm (according to the broadcaster), MusiquePlus broadcast an episode of the program Les pourris … de talent.  (Once again, the issue of the exact time at which the song was broadcast on this occasion – it may also have been broadcast at earlier hours on other dates that are not under consideration by the Quebec Regional Panel – is not material, since it is, in both the complainant and broadcaster versions, after the Watershed hour.)  The purpose of that program was to showcase emerging and undiscovered musical artists.  One of the guests on the May 16 episode was Les Chiens sales, who performed their signature song “Va donc chier” live in the MusiquePlus facilities.  That broadcast was not accompanied by any viewer advisories.

A viewer complained to the CBSC about the broadcast of the song in both of the aforementioned programs.  The complainant’s first letter was dated April 21 and explained his concerns in the following terms (the full text of all correspondence can be found in the Appendix, available there in French only):

[translation]

I wish to file a complaint concerning MusiquePlus (Astral Média) for their broadcast during the period April 11 to 20, 2005.

They are in fact broadcasting a song entitled “Va donc chier” by the group Les Chiens sales. The refrain, consisting of the words “Va donc chier! Mange donc d’la marde!”, is screamed out by a bunch of hysterical singers.

My children were watching MusiquePlus, yesterday, April 20, 2005, and this song was number 1 on the French language top 5 that is broadcast several times a day, including every day between 6:30 pm and 7:00 pm […].

[…] [W]e often hear of “high quality” radio and television.  It seems to me that there is a major problem with this broadcast and that the television station is responsible for what it broadcasts.

Please consider my complaint seriously as I heard my children (six children between the ages of 5 and 9) singing “Va donc chier! Mange donc d’la marde!” when they were playing with our neighbours. 

MusiquePlus replied to the complainant on May 13, in part as follows:

[translation]

First, I want to mention that the management of MusiquePlus places a great deal of importance on the opinion of its audience.  In fact, it has added an audience service to its organization in the last few years, whose function is to take the pulse of its audience on a timely basis.

In fact, in recent weeks that audience service provided senior management and the MusiquePlus Management Committee with a detailed and timely report on the comments we received concerning the video clip you refer to.  Given the comments we received, the Programming Branch decided on April 29 to cease broadcasting this video clip on our airwaves. We hope the decision taken by MusiquePlus demonstrates to you that we are aware of the influence we have on our audience.  Thank you for sending us your comments.

The complainant expressed his dissatisfaction with that response in the following terms on May 15:

[translation]

The broadcaster took action after the fact for something that should never have been on the air and that was broadcast for several weeks.  “Va donc chier, mange donc d’la marde” – it seems to me there is no need for a serious broadcaster to wait for complaints in order to understand that this is absurd!

I want a decision that reflects the industry’s sense of responsibility. 

On May 18, the complainant wrote again to the CBSC to file his complaint about the May 16 broadcast of the song:

[translation]

Madam, I also wish to complain about the lack of seriousness reflected in the reply I was given.  Contrary to what was said in that reply, the clip “Va donc chier” was in fact broadcast again on Monday, May 16, 2005, between 9:00 pm and 11:30 pm.  It has not been taken off the air as claimed.

I therefore wish to complain about that segment of the programming in relation to the complaint I have put before you.

In response to that new complaint, MusiquePlus wrote to the CBSC explaining why the song was broadcast on MusiquePlus in May:

[translation]

The song at issue was broadcast during the “Top 5 franco” segment between 6:30 pm and 7:30 pm.  […] As we explained in our reply to the complainant, we no longer broadcast that video clip.

MusiquePlus never edits the content of a video clip out of respect for the moral rights of the creators of an audiovisual work.  Our intervention consists only of accepting or refusing a video clip for which we establish various broadcasting parameters.  Our Video Screening Committee accepted the work of the group Les Chiens sales based on the fact that it was a first work of clearly superior production quality and on its iconoclastic nature – a rare feature of Québec groups.

With respect to the second complaint […], last winter MusiquePlus worked with Zone 3 to produce a series of programs called Les pourris … de talent hosted by the comedy duo Les Denis Drolet, and Izabelle Desjardins, a MusiquePlus VJ.

Producing the 18 episodes provided an opportunity to discover scores of new talent, among others:

    • érik Mongrain – guitar player who is now Lynda Lemay’s accompanist on tour;
    • Hot Springs – one of the most popular groups on the local scene;
    •   and, of course, Les Chiens sales, a group from Montebello whose most popular song is “Va donc chier”. 

Following the success of these performances, Zone 3 and MusiquePlus decided to produce and market a CD compilation featuring the seven artists who were discovered on the program Les pourris … de talent and to promote it.  More than 3,000 copies of this compilation have been sold to date.  This is considerable given that all the artists on the album are just starting out and are therefore not well known. There were also a few shows at La Tulipe in Montréal on May 10, 17 and 24.

Following the complaints raised by the “Va donc chier” video clip featuring Les Chiens sales, MusiquePlus decided to withdraw it from its programming.  Please note, however, that this video clip was aired primarily during the program Top 5 franco.  The video clips aired during this program are chosen by members of the public who vote for them on our website.  Given those complaints, MusiquePlus decided to withdraw that video clip from its list of video clips to be put to a vote for the top 5.  This decision gave rise to a great hue and cry on the part of our viewers.

In the course of making that decision we did not contemplate pulling episode 3 of the series Les pourris … de talent, which was the episode through which we discovered the group Les Chiens sales among others.  We concluded that a complete withdrawal of that clip would have penalized other participants in the contest.

Following the second complaint […], MusiquePlus decided to reschedule the series Les pourris … de talent, as well as the rebroadcast of the episodes that had already been produced for that series.  Consequently, the series has been broadcast after 9:00 pm since September 2004.  In our opinion, this change deals with the complainant’s concerns in an adequate fashion while allowing us to ensure that no participant is penalized.

We hope these details demonstrate to you that MusiquePlus deferred to the complainant.  We understand that he could confuse the program on the discovery of the group Les Chiens sales and the broadcast of their video clip in our regular programming.

the decision 

The Quebec Regional Panel examined the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Code of Ethics:

CAB Code of Ethics, Clause 10 – Television Broadcasting

Scheduling

(a)        Programming which contains sexually explicit material or coarse or offensive language intended for adult audiences shall not be telecast before the late viewing period, defined as 9 pm to 6 am. […].

(b)        Recognizing that there are older children watching television after 9 pm, broadcasters shall adhere to the provisions of Clause 11 below (viewer advisories), enabling viewers to make an informed decision as to the suitability of the programming for themselves and their family members.

CAB Code of Ethics, Clause 11 – Viewer Advisories

To assist consumers in making their viewing choices, when programming includes mature subject matter or scenes with nudity, sexually explicit material, coarse or offensive language, or other material susceptible of offending viewers, broadcasters shall provide a viewer advisory

(a)                 at the beginning of, and after every commercial break during the first hour of programming telecast in late viewing hours which contains such material which is intended for adult audiences, or

(b)        at the beginning of, and after every commercial break during programming telecast outside of late viewing hours which contains such material which is not suitable for children.

The Quebec Regional Panel Adjudicators reviewed all of the correspondence and viewed tapes of the two broadcasts.  The Panel considers that MusiquePlus has not breached the terms of Clause 10 or most of the requirements of Clause 11, although it did not provide complete viewer advisories in accordance with the CBSC’s standard advisory requirements.

Coarse Language

The Panel readily understands the concerns of the complainant in the case of both broadcasts, which were, he advises, heard by six children between the ages of 5 and 9.  It further acknowledges that few parents would like their children of those ages to be exposed to such language, whether on or off the airwaves.  That being said, the material issue for the Panel is, and must be (in terms of the Code requirements), whether the language used was “coarse or offensive language intended for adult audiences.”  If not, then the challenged programming can be broadcast prior to the Watershed hour of 9:00 pm.  On this very issue, the Quebec Regional Panel considers that the use of the phrase “Va donc chier” is not, by its nature, a phrase that requires relegation to a post-9:00 pm environment.

In the previous circumstances in which the use of the expression was sanctioned, the Quebec Panel encountered its use in a personal, negative, insulting, hostile way.  In its decision in CHOI-FM re Le monde parallèle de Jeff Fillion (CBSC Decision 02/03-0115, July 17, 2003), this Panel faced former on-air host Jeff Fillion’s harsh criticisms of a competitive radio host, among which was the related term, “chieur”.  In the more recent decision of this Panel in CJRC-AM re an interview by Daniel Séguin on L’Outaouais ce matin (CBSC Decisions 03/04-2082 and 04/05-0023, April 4, 2005), the host expressed his hostility toward his guest, the owner of the CHOI-FM radio station criticized for the use of such language, by exclaiming his pleasure at telling the guest to “envoyer chier”.  In both cases (and in admittedly not perfectly analogous circumstances), this Panel considered that the challenged programs were in breach of the radio equivalent of the CAB Code of Ethics clause under consideration here.

In the matter at hand, however, the usage of the expression was, relatively speaking, benign.  It was a song refrain (and title), one which resonates worse in its repetitiveness on paper than over the air, but which is directed at no individual in particular.  At worst, it could be seen as a youthful expression of a rebellious societal observation, and one undeniably in poor taste in terms of what polite adults and caring parents would wish to hear.  Nor can the inappropriateness of the lyrics be denied in terms of the young children who heard them in the presence of the complainant.  That is not, however, the standard against which they are to be measured.  That must be whether the coarse language was exclusively intended for adult audiences.  The Panel considers it was not.  Consequently, the broadcast of that song does not constitute a breach of Clause 10 of the CAB Code of Ethics, even if before 9:00 pm, as in the case of the April 20 broadcast.  It follows that the broadcast of the song on May 16, post-Watershed, is not either a breach of that clause.

Broadcaster Sensitivity

The Quebec Regional Panel is aware, as other Panels have been before this moment, that broadcasters frequently take decisions as a function of their concern for the sensibilities of their audience.  In other words, their decisions are not simply reactions to codified standards, they are a reflection of what may be offensive to segments of their audience.  This is just such a case.  MusiquePlus has taken the extra step of committing not to broadcast the Chiens sales song “Va donc chier”.  The Quebec Panel commends the broadcaster for its commitment.  (While the complainant has asserted that the second broadcast of the song belied the broadcaster commitment, the reasons for that broadcast were carefully explained in the service’s lengthy letter following the May complaint.)

The Question of Viewer Advisories

In accordance with the requirements of Clause 11 of the CAB Code of Ethics, the broadcaster must provide the audience with viewer advisories in the case of programming broadcast before the Watershed hour that is unsuitable for children (defined as being under 12 years of age).  While, as discussed above, the video broadcast was not intended exclusively for adults, the Panel considers that it does not meet the test of suitability for children.  In the circumstances, viewer advisories are mandatory and must be aired in both video and audio formats.  In the case of the April 20 broadcast, the advisory was only in a video format and was, to that extent, in breach of Clause 11.

Since the video broadcast on May 16 was not intended exclusively for adult audiences, there was no obligation to include viewer advisories at all in a post-Watershed environment.  Consequently, the absence of such warnings does not constitute a breach of Clause 11.

The Panel wishes to add that, in the case of the April 20 broadcast, it found that the video appearance of the advisory was rather brief.  While there is no minimum time period for the on-screen presence of a video advisory (unlike the case of ratings icons, which do have a minimum 15-second on-screen presence), the Panel believes that a longer appearance would be more helpful to audiences wishing to make informed choices for themselves and their families.

There is also a question of the timing and frequency of the advisories.  While the general rule for programming is that the advisory must appear at the start of the program and following each commercial break thereafter, the Panel considers that the nature of music videos may be different.  They are, in some respects, distinctive, discrete segments, closer in nature to a segment of a newscast, and it may be that the audience is better served by advisories closer to the segment containing the potentially offensive material.  In any event, the Panel is not providing herewith a hard-and-fast rule regarding the relationship of music videos and viewer advisories but rather its sense of the considerations that may be germane to the appropriateness of their usage.  In the present instance, the Panel is of the view that the broadcaster’s choice of when to provide the advisory was justified in relationship to the potentially offensive material to which it provided an alert.

Broadcaster Responsiveness

The CBSC always reviews the broadcaster’s effectiveness in the dialogue with the complainant as a part of its decision.  Occasionally, it finds that the broadcaster has not provided a sufficient explanation of its perspective (which may, it goes without saying, be contrary to that of the complainant).  On most occasions, the dialogue is effective and thoughtful.  On some occasions, it rises well above the expected standard.  This is such a case.  Both the substance of the dialogue and the broadcaster’s commitment to be responsive to the complainant’s ultimate wish, namely, not to see the rebroadcast of any video version of the song are examples of the fullest compliance with its obligations as a member of the CBSC.

ANNOUNCEMENT OF THE DECISION

MusiquePlus 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 Top5.M+.com was broadcast; 2) within the fourteen days following the broadcast 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 that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by MusiquePlus.

The Canadian Broadcast Standards Council has found that, in its broadcast of a music video with potentially offensive content during its Top5.M+.com on April 20, MusiquePlus breached its obligation of providing complete viewer advisories.  By broadcasting the viewer advisory in video format only without an audio component, MusiquePlus failed to provide the audience with sufficient information to make an informed viewing choice, as required by Clause 11 of the CAB Code of Ethics.

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