RDS and V re comments made on Le réveil olympique (figure skating)

quEbec regional Panel
D. Meloul (Chair), Y. Bombardier, G. Bonin (ad hoc), A. H. Caron, M. Ille, M.-A. Raulet

THE FACTS

During the 2010 Winter Olympics in Vancouver, a number of Canadian broadcasters formed Canada’s Olympic Broadcast Media Consortium to pool resources for the broadcast of the Olympic Games.  The two primary French-language broadcasters in this consortium were Réseau des sports (RDS) and V.  During certain times of day, both broadcasters were airing the exact same programming.  One such program was the Olympic morning show entitled Le réveil olympique, which aired daily from 7:00 am to noon.  The show was hosted by Claude Mailhot, who discussed Olympic news and events, and interviewed athletes and sports commentators.

On February 17, 2010 at 11:33 am, Mailhot had figure skating analyst Alain Goldberg as a guest.  They talked about the men’s figure skating short programmes.  They discussed different skaters and showed clips of their performances.  At 11:36 am, they discussed American figure skater Johnny Weir. They showed a clip of Weir’s performance, during which he wore a black and pink outfit.  The two hosts then made the following comments about Weir:

[Translation]

Mailhot:                        I am probably not being politically correct as they say, but I want to show you some clips of Johnny Weir.  Um, I really like figure skating, but Johnny Weir, um, creates a situation that makes everyone reticent when the terms figure skating, figure skaters, come up.  I don’t like that.  Do you think he lost points due to his costume and his body language or does that not come into play?  That doesn’t matter?

Goldberg:         He doesn’t lose points on account of his costume.  He got noticed.  He got disapproval and not without reason.  Um, he, he wears lipstick.  Um, he dresses in a feminine fashion.  He tries to be as feminine as possible on the ice.  And he has the right.  He has the right to be what he is.  He has the right to be as he pleases.  But, obviously, that presents a rather unpleasant picture of figure skating.

Mailhot:                        And –

Goldberg:         And that is very troublesome because people think that, um, all the boys who are figure skaters will turn out like him.  So, it sets a very bad i-, um, a very bad example.  But, he has the right, why wouldn’t he, some people are that way.  Others are another way.  I think we shouldn’t discriminate against him, but –

Mailhot:                        We’re getting into, we’re getting into, we’re getting into stereotypes at that point.

Goldberg:         Exactly, exactly.  And it is thought that figure skating is not something that particularly qualifies as a sport, that it is feminizing, while that is not the case at all.  There is everything in the world and there is everything on the ice.

Mailhot:                        And as far as –

Goldberg:         It’s a reflection of society.

Mailhot:                        And, Alain, to, to be fair, when such a fuss was made in the summer about the South African runner, when people were saying “mmm, maybe she’s a man, –

Goldberg:         So –

Mailhot:                        – maybe she’s not, she’s not a woman” and so on.

Goldberg:         He could be given –

Mailhot:                        I would like it if he were given those tests and just that –

Goldberg:         He could be given, absolutely, I, he should be given a test to determine whether he’s a woman in that case.

Mailhot:                        Hey, wait a minute.

Goldberg:         Or a man.

Mailhot:                        No but, but you know?  Oh, I know.  He did that to help you commentators predict what Joannie Rochette and the others will be doing because maybe he should be competing with the ladies [he and Goldberg laugh].  No, I don’t want to be mean, but I, I find that we’re getting into stereotypes when you see a guy like that figure skating.

Goldberg:         Well, it doesn’t help.  I want to tell you that that isn’t really the picture of figure skating that I like, but I do admire the skater that he is.

Mailhot:                        Yes.

Goldberg:         It doesn’t make him any less –

Mailhot:                        No, no.  It takes nothing away from his talent.

Goldberg:         – an athlete and, and a sportsman, but with the twist that he expresses himself, in an, um, unusual fashion.

Mailhot:                        I said it.  I know I am not being politically correct, but it is nevertheless –

Goldberg:         Not at all.  It’s, it’s, it’s what everyone thinks, so we whisper it.  But now we’re saying it a bit louder.

Mailhot:                        But that’s all.  But at least, for, between you and Michel Lacroix, you want to improve the quality of figure skating.

Goldberg:         Well, no, the athletes are the ones, the ones who improve it, not us. We just help.

On February 19 at 10:51 am, the hosts apologized for their comments:

[translation]

Mailhot:                        Mr. Goldberg, it is, once again, a pleasure to have you visit in the morning.

Goldberg:         For me as well.  I hope it puts you in a good mood.

Mailhot:                        What an extraordinary performance we saw last night.  But first, I want to take this opportunity to, on your behalf, um, apologize for our comments.  It appears that when we talked about clothing we offended some people and it was certainly not our aim to offend anyone at all.  If you felt, um, criticized, we do apologize.  But, um, we had some very, very good performances, and I think we need to talk about them.

The CBSC received a total of 119 complaints regarding the February 17 broadcast.  Some complainants mentioned RDS, some mentioned V and others did not identify a specific broadcaster.  Out of 119 complaints, only 25 provided enough information (name of broadcaster, date and time) for the CBSC to investigate the complaints, and, of that 25, only two individuals filed Ruling Requests.

One of those complainants was the CEO of the Quebec Council of Gays and Lesbians (QCGL).  He outlined his concerns in an e-mail sent February 21 (the full text of all correspondence, in French only, can be found in the Appendix):

[Translation]

The Quebec Council of Gays and Lesbians (QCGL) is hereby filing an official complaint with the Canadian Broadcast Standards Council concerning homophobic (see definition below), insulting and coarse comments made by Claude Mailhot and Alain Goldberg about the figure skater Johnny Weir in the program Le réveil olympique aired between 7 and 11 am on February 17, 2010 on television stations RDS and V […].

On February 18, the QCGL issued a press release (see below) in which it demanded that the hosts apologize publicly.  On Thursday the 18th, around 4:50 pm, the Chief of Communications contacted me to inform me that an apology would be made on Friday, February 19, in the same program. That Friday, as announced, Mr. Mailhot did in fact apologize on behalf of Mr. Goldberg.  Unfortunately, that apology was unrelated to the comments for which we sought an apology.

The QCGL therefore deems that the apology given by the hosts is inappropriate and insufficient and asks the Canadian Broadcast Standards Council to take action in this matter.

We thank you for your attention to this complaint.

Homophobia

The Commission des droits de la personne et des droits de la jeunesse (CDPDJ) [Human Rights and Youth Rights Commission] defines homophobia as follows:  “A fear or an aversion felt by some individuals towards homosexuality and those having a homosexual orientation …”, but also “towards any person whose appearance or behaviour does not conform to the stereotypical image of masculinity or femininity.”

The complainant then included a copy of the press release that his organization had published, in which the QCGL expressed its [translation] “indignation at the extreme and homophobic comments made by Messrs. Alain Goldberg and Claude Mailhot” and demanded a public apology for what the CEO of the QCGL viewed as an attack [translation] “not only on the integrity of the athlete, but also on that of gays and lesbians who do not fit social stereotypes.”

Another complaint came from an individual viewer who stated his view that Mailhot and Goldberg’s comments were [translation] “completely discriminatory”.  He also demanded an apology from the broadcasters and added the following:

[Translation]

The figure skater Johnny Weir is an artist.  He is entitled to do what he wants.  This is Canada, where gays and lesbians have the right to same-sex marriage.  These comments run counter to the Charter of Rights and Freedoms.

The response from RDS to the complaints outlined the station’s position as follows:

[Translation]

Let me begin by saying, as we have in many fora, that RDS does not endorse any discriminatory comment.  As a responsible broadcaster, we do not want our employees to use the means at their disposal to fuel, publish or promote any type of prejudice.  It is a question of respect.

During a live telecast on February 17, 2010 in which they discussed the possible impact the choice of costume may have on the judges of an artistic sport, Claude Mailhot and Alain Goldberg expressed themselves in a very tactless fashion.  They then attempted to be humorous and to caricature, going as far as to insinuate that the athlete could be given a gender test or even compete with the ladies.  That was clearly inappropriate in our opinion.  Although the hosts did not intend to wound, the result shows without a shadow of a doubt that their attempt fell flat.  The choice of words, expressions and tone left little room for interpretation and belonged to the realm of what is rightly considered discrimination.

Clumsy comments can unfortunately arise in a live airing.  In such circumstances, our task is to stop the sideslipping and readjust our aim for future broadcasts, to apologize and see to it that our ZERO TOLERANCE policy regarding this type of lapse is followed, understood and endorsed by our employees.

We of course met with the two hosts to ensure that there is no recurrence of this type of comment that detracts from what RDS has been accomplishing on a daily basis for more than 20 years.  We can confirm that this meeting produced the desired effect, as the two hosts readily acknowledged the harm done and the negative impact of their comments.

Given the two men’s track record as well as the fact that we have known them for many years, we know very well that no discriminatory intention was at issue.  That said, we feel certain that the content of their discussion on Johnny Weir was totally out of place.

RDS issued a statement to the media following that incident.  The essence of that statement was reproduced in the national media, including La Presse, Cyberpresse, Le Journal de Montréal, Le Soleil, Le Journal de Québec as well as by several radio stations.  That statement reads as follows:

RDS is of the opinion that all discriminatory statements, or those appearing discriminatory, have neither a place in society nor in the media.  Messrs. Mailhot and Goldberg made tactless comments on the appearance and manner of a figure skater.  As soon as they were made aware of the reaction their comments sparked, and because they never meant to defame an individual or a sexual orientation, they decided to offer an apology on the air.

When he gave the apology, Claude Mailhot identified the segment where the comments were made, namely the one during which the two men exchanged comments on Mr. Weir’s costumes.  The apology therefore referred to the entire incident without distinction.  We do, however, understand and concur that the apology could have been more detailed in order to address the various controversial elements more specifically.

We are of the opinion, as are Messrs. Mailhot and Goldberg, that this incident will serve as a reference point so that lapses of this nature will have no place in the media in the future.

The high visibility of the Olympic Games, combined with the considerable and justified media attention surrounding this tactless act, will surely have a regulating effect on others who are inadvertently, or worse, by choice, tempted to repeat comments of this type.

In addition, we would like to mention that the Réseau des sports is a member in good standing of the Canadian Broadcast Standards Council and that we adhere to its policies.

V’s response largely cited portions of RDS’s letter since RDS was the “lead” broadcaster of the French division of the consortium.  V indicated that it was [translations] “totally in agreement with the position taken by RDS on the matter” and also added that they were “sorry that the comments made by the hosts offended you and we apologize for them.  Rest assured that we will take all necessary measures to avoid a recurrence in the future.”

On March 26, the QCGL filed its Ruling Request, and explained why it felt it was necessary to pursue its complaint:

[Translation]

The Quebec Council of Gays and Lesbians (QCGL) is pleased to note that RDS has taken our complaint very seriously and that it thoroughly deplores the fact that the Johnny Weir incident took place on the air.  We cannot but be grateful that the broadcaster asserts it does not accept the broadcasting of discriminatory comments and also asserts it has taken all the required steps to prevent a recurrence.

We want to take this opportunity to inform you that we were also pleased by the apology made by Alain Goldberg on Sunday, March 7, 2010 during the Radio-Canada program Tout le monde en parle.  Mr. Goldberg took the time needed to explain himself and re-contextualize the reasons for making that public apology concerning the comments we held against him.

However, the same cannot be said of Claude Mailhot who never apologized for the comments he made that the QCGL denounced in its complaint.  Yes, Mr. Mailhot did in fact apologize on the air, but unfortunately he did so very quickly without re-contextualizing (in fact the broadcaster recognizes this in its letter).  Since the apology did not address the comments our organization found objectionable, we have pursued the complaints process and we are still pursuing it today.

The individual viewer took a similar position in his Ruling Request of March 26:

[Translation]

While I understand the position taken by RDS, I would like to know whether broadcasting discriminatory comments is part of the “standards” of the Canadian Broadcast Standards Council.

RDS apologized neither in its letter nor to the public for having aired these comments.  In fact, reference is made to the “poor judgement of the hosts” as well as the fact that RDS does not endorse discriminatory comments of any kind and that the hosts apologized, but RDS does not in any way apologize for having aired these comments.

The closest thing to an apology is when the [CEO of RDS] writes that these comments “will serve as a reference point” in the future.  That is not enough as far as I am concerned.  This is not an apology.

THE DECISION

The CBSC’s Québec Regional Panel examined the complaints under Clause 2 of the Canadian Association of Broadcasters’ (CAB) Code of Ethics and Equitable Portrayal Code which read as follows:

CAB Code of Ethics, Clause 2 – Human Rights

Recognizing that every person has the right to full and equal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status or physical or mental disability.

CAB Equitable Portrayal Code, Clause 2 – Human Rights

Recognizing that every person has the right to the full enjoyment of certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability.

The Panel Adjudicators read all of the correspondence and viewed the broadcast in question, as well as the broadcast of the apology.  The Panel concludes that RDS and V did not breach any of the Clauses mentioned above.

Unduly Abusive or Discriminatory Comments

The CBSC has consistently explained that it is not just any mention of, or reference to, among other things, race, nationality, colour of skin, religion, or sexual orientation that will constitute a breach of the Human Rights Clauses of the above Codes.  What will trigger a finding of a code breach is content that reaches a level of abusive or unduly discriminatory comment.  Much, in other words, depends on the harshness or nastiness of the challenged content.  The context of the usage is also likely to play a significant role in a Panel’s evaluation of the broadcast.  A good summary of offending examples in the area of comments made regarding individuals or groups on the basis of their sexual orientation can be found in a recent decision of the Ontario Regional Panel, namely, CITS-TV re Word.ca and Word TV (CBSC Decision 08/09-2142 & 09/10-0383+, June 22, 2010).

Where, however, programs include extremely negative, insulting, nasty generalizations about the group of persons on the basis of their sexual orientation, the comments will be found to violate the Human Rights clauses of the CAB Code of Ethics and the CAB Equitable Portrayal Code.  Examples include the labelling all homosexuals as “devils”, the suggestion by an evangelical that he would kill a homosexual if he made romantic advances to him, the characterization of a person wishing a sex-change operation as “some sick demented obviously mentally disturbed homosexual”, accusing gays and lesbians of an insidious agenda to recruit children to the homosexual lifestyle in the schools, the characterization of the sexual behaviour of gays and lesbians as “abnormal”, “aberrant”, “deviant”, “disordered”, “dysfunctional”, “an error” or the like, as well as numerous others not cited here [see, e.g., Vision TV re Power Today (CBSC Decision 01/02-0617, September 13, 2002), OMNI.1 re an episode of the Jimmy Swaggart Telecast (CBSC Decision 04/05-0097, April 19, 2005), CJRQ-FM re Opinion Poll (CBSC Decision 94/95-0135, March 26, 1996), CKRD-AM re Focus on the Family (CBSC Decision 96/97-0155, December 16, 1997), and CFYI-AM and CJCH-AM re the Dr. Laura Schlessinger Show (CBSC Decision 99/00-0005 & 98/99-0808+, February 9 and February 15, 2000)].

The Panel also considers it extremely pertinent to note that the list of protected groups, namely, those based on “matters of race, national or ethnic origin, colour, religion, age, sex [or gender], sexual orientation, marital status or physical or mental disability”, while not limitative, is not easily extended.  Thus, for example, previous CBSC decisions have not permitted the extension of the list to include occupation or profession [CKLZ-FM re Announcer Comments (CBSC Decision 94/95-0113, December 18, 1996); CJKR-FM re Announcer Comments (CBSC Decision 99/00-0130, May 5, 2000); and CHAN-TV (Global BC) re reports on News Hour (CBSC Decision 08/09-1422, November 10, 2009)], hair colour [CKNG-FM re “Blond Moments” (CBSC Decision 96/97-0060, December 16, 1997)], socio-economic status [TQS re Black-out (“Faring Well with Welfare”) (CBSC Decision 97/98-0009, January 29, 1999)], social condition [CJMF-FM re the program L’heure de vérité avec André Arthur (CBSC Decision 99/00-0240, August 29, 2000)], political affiliation [TQS re Le Grand Journal (Michel Villeneuve Commentary)(CBSC Decision 03/04-1949, February 10, 2005)], drug addicts [CKNW-AM re an episode of Bruce Allen’s Reality Check (CBSC Decision 05/06-0651, May 9, 2006)] or criminals [Comedy Network re Open Mike with Mike Bullard (Leah Pinsent Film) (CBSC Decision 99/00-0482, January 31, 2001)].

In the matter at hand, the Quebec Panel is conscious of the delicacy, indeed riskiness, of the dialogue of the two sportscasters.  Moreover, it sees little benefit associated with the direction they took in order to comment on the unusual costume worn by figure skater Johnny Weir.  There would certainly have been better, safer, more tasteful ways for the broadcasters to have had their discussion on that subject.  That said, that there might have been “better, safer, more tasteful ways” to deal with the issue does not necessarily lead to the conclusion that there has been a breach of any codified standard.  As noted above, a degree of harshness or nastiness would be required to constitute such a breach.  The Panel does not find the required level of negativity in any of the commentary, much less the totality of the back-and-forth.  None of the observations of Alain Goldberg that the skater wore lipstick or dressed in a feminine style, or that he tried to present himself in the most feminine possible way on the ice constitutes anything other than a factual appreciation of Johnny Weir’s on-ice comportment.  The allusion to the South African runner in the Summer Olympics whose presence raised press discussion of gender-related issues was perhaps unnecessary, even excessive, but the Panel does not find those observations abusive, and that is the sole issue for the Panel in this connection.  Moreover, Alain Goldberg made the point immediately following his comments that Johnny Weir had the right to use lipstick, to dress in a feminine fashion and to present himself in a feminine manner on the ice.  In his words,

[Translation]

[H]e has the right.  He has the right to be what he is.  He has the right to be as he pleases.  But, obviously, that presents a rather unpleasant picture of figure skating.

It must also be remembered that, as pointed out above, there is no protection granted under the Human Rights Clauses for professions, occupations or the other categories discussed there.  The Panel considers that the list of protected grounds does not either extend to sports or athletes.

In the circumstances, the Quebec Regional Panel finds no breach of either of the Human Rights Clauses.

An Apology by the Host

The host, Claude Mailhot, returned with his guest Alain Goldberg two days later to express his regrets at their comments on the broadcast on the 17th.  Mailhot put the point in the following words:

[Translation]

I want to take this opportunity to, on your behalf, um, apologize for our comments.  It appears that when we talked about clothing we offended some people and it was certainly not our aim to offend anyone at all.  If you felt, um, criticized, we do apologize.  But, um, we had some very, very good performances, and I think we need to talk about them.

Given that the Panel considers that there was not a breach of the Code in the first place, it views the situation in a different light.  The Panel does not so much consider the wording of what was said as it does the effort by the sports commentators to speak to the offence felt by some viewers.  Broadcasters are in general very sensitive to the concerns of their audiences.  In the matter at hand, the Panel believes they were concerned about the reaction of viewers to what they themselves described at the time of the original broadcast as, in essence, “political incorrectness”.  This sentiment was echoed in the broadcasters’ replies, in which the original comments were described as [translation] “clearly inappropriate”.  The Panel applauds the broadcasters’ attempt to put the matter right.

Broadcaster Responsiveness

In all CBSC decisions, the Council’s Panels assess the broadcaster’s responsiveness to the complainant.  In the present instance, the Panel finds that the responses of V’s Director of Legal Affairs, and that of the CEO of RDS, honest and apologetic about the host’s and guest’s choice of words to describe the appearance of Johnny Weir and related issues.  Their replies were thoughtful although they did not satisfy the complainants.  That said, the Panel considers that V and RDS have fully met their membership obligations of responsiveness in this instance.

This decision is a public document upon its release by the Canadian Broadcast Standards Council.  It may be reported, announced or read by the station against which the complaint had originally been made; however, in the case of a favourable decision, the station is under no obligation to announce the result.