On March 18, 2002, specialty service Showcase Television broadcast an episode of its weekly dramatic series Queer as Folk, which follows the lives of a group of gay men and women living in Pittsburgh. Showcase broadcasts the series at 10:00 pm on Thursdays (and 11:00 pm on Wednesdays) with an 18+ rating.
There were three storylines involving returning characters in the March 18 episode. In one, Ted, who had taken Viagra, found that he was then unable to lose his erection for an extended period of time. The second involved Brian attempting to cope with his strained relationship with his mother. The third dealt with Michael's attempt at reconciliation with an ex-boyfriend. The episode included a number of scenes of sexual activity, explicit conversations about sex, as well as some instances of coarse language. The episode was preceded by a viewer advisory in audio and visual format:
The following program contains nudity, sexuality and coarse language. Viewer discretion is advised.
Coming out of each of the commercial breaks, an advisory, broadcast in audio format only, stated “We now return to Queer as Folk. Viewer discretion is advised.”
A viewer sent a complaint dated April 16 to the CRTC, which forwarded it to the CBSC in due course (the full text of that letter and all other relevant correspondence can be found in the Appendix to this decision). The viewer stated his concern about the “graphic homosexual pornography and vulgar language” in the March 18 episode of Queer as Folk. He also stated his objection to the fact that Showcase Television, a specialty service, comes bundled with other channels in his satellite distribution service without his being aware or notified in any way that the service carries this type of content. He suggested that “children and babysitters will be going through the channels and coming across content which homeowners had no idea was on their television channels.”
Showcase responded to the complainant on May 7. The service explained its programming mandate to “offer an alternative to other broadcasters' offerings” by broadcasting “high-quality international drama series and world-class films.” It noted that Queer as Folk has received critical acclaim for providing a realistic look at gay life. It acknowledged that “certain sex scenes may [cause] grave concern,” but pointed out that the scenes depict consensual sex and are relevant to the storyline. Showcase emphasized that it broadcasts this program after the “Watershed” hour of 9:00 pm, assigns it an 18+ rating and provides a viewer advisory. In response to the complainant's concerns about his satellite channel package, Showcase explained that it is the distribution companies, not the broadcasters, that determine which services will be packaged together.
On May 8, the complainant requested that the matter be referred to National Specialty Services Panel for adjudication.
The National Specialty Services Panel examined the complaint under the Canadian Association of Broadcasters' (CAB) Sex-Role Portrayal Code and Voluntary Code Regarding Violence in Television Programming. The relevant provisions of those Codes read as follows:
CAB Sex-Role Portrayal Code, Article 4 (Exploitation):
Television and radio programming shall refrain from the exploitation of women, men and children. Negative or degrading comments on the role and nature of women, men or children in society shall be avoided. Modes of dress, camera focus on areas of the body and similar modes of portrayal should not be degrading to either sex. The sexualization of children through dress or behaviour is not acceptable.
CAB Violence Code, Article 5.1 (Viewer Advisories):
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.
The National Specialty Services Panel reviewed all of the correspondence and viewed a tape of the episode in question. The Panel finds no breach of the CAB Sex-Role Portrayal Code, but does find Showcase's provision of viewer advisories in violation of Article 5.1 of the CAB Violence Code.
A Preliminary Matter: The Treatment of This Complaint
As noted above, the complainant requested on May 8 that the CBSC adjudicate his complaint. Due to an administrative error of the CBSC Secretariat, this file was inadvertently not considered at a meeting of the National Specialty Services Panel that was held on September 13, which adjudicated a complaint about a different episode of Queer as Folk (that of November 12, 2001). The decision concerning the earlier episode was publicly released on November 4, 2002, obviously long after the broadcast of the episode being dealt with in this decision.
In its review of the complaint and the episode at hand, the CBSC Secretariat had determined that no new issues (new, that is, vis-à-vis those treated in the September 13 Queer as Folk decision) had arisen. Accordingly, the Secretariat sent the complainant in this file a copy of that decision with an explanatory letter on November 6. He wrote back to the CBSC on December 9 requesting that his specific complaint be examined by the National Specialty Services Panel since he was “particularly concerned with the fact that the warning of adult content before the show and after each commercial breaks [sic] were not identical to the September 13, 2002 decision which you have ruled on.”
The CBSC agreed to adjudicate his complaint through the normal CBSC process and the result is the present decision.
The Program's Sexual Content
After reviewing the March 18, 2002 episode, the National Specialty Services Panel does not believe that any new programming considerations arise that it did not address in the first Queer as Folk decision. Both episodes included scenes of sexual activity and discussions about sex using explicit language. In the earlier decision, namely, Showcase Television re an episode of Queer of Folk (CBSC Decision 01/02-0217, September 13, 2002), this Panel addressed the complainant's concerns about the program's sexual content in the following terms:
The National Specialty Services Panel acknowledges that there is significant sexual content in the challenged episode of Queer as Folk, which is more than merely suggestive. It further acknowledges that the sexual content in question is intended for adult audiences. Although undeniably present, such sexual content is not in violation of any codified standards when played after the Watershed hour. As the National Conventional Television Panel explained in CTV re W-Five (Swingers) (CBSC Decision 99/00-0347, February 14, 2001) (which dealt with the subject of swinging, that is, the exchange of sexual partners):
It is the experience of the CBSC that programs dealing with such an overtly sexual subject sometimes lead to some sensitivity of reaction on the part of the viewing audience. This does not, of course, mean that the broadcaster ought not to air such a program. As the broadcaster correctly points out, the Broadcasting Act itself provides, in Section 3(1)(i), that
the programming provided by the Canadian broadcasting system should
provide a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern.
To this the Panel would add that Section 3(1)(i) also provides that
the programming provided by the Canadian broadcasting system should
) be varied and comprehensive, providing a balance of information, enlightenment and entertainment for men, women and children of all ages, interests and tastes
Nor does the Panel consider that the sexual content is at all exploitative, in terms of Article 4 of the Sex-Role Portrayal Code. In any event, the complainant's concerns lay with sexual explicitness rather than with gender representation. That is fair enough. There was, however, nothing in the content that violated any Code provision such that the program ought not to have been accessible for those persons who might have wished to see it. That, indeed, is the reason for which audiences are entitled to have sufficient information about program content to enable them to exercise a knowledgeable viewing decision.
While the Panel is unsure whether the complainant in the matter at hand is more concerned with the graphic nature of the sexual content or the homosexual nature of it (his expression was “graphic homosexual pornography”), it wishes to make plain its view that the only issue for the CBSC is the graphic aspect of the scenes. The Panel does not support any differentiation between homosexual and heterosexual sexual activity; its concern is solely the appropriateness of the level of activity, not the gender of the participants, in terms of the time at which the programming is shown and the information provided to the potential audience. As to the level of activity, it adopts its conclusions regarding content in the first Queer as Folk decision in the matter at hand.
It ought to first be noted that, although Article 5.1 of the CAB Violence Code makes mentions of violence only, it has long been established by the CBSC that the requirements of that provision apply equally to other types of adult-oriented content, such as sexuality and coarse language.
The issue of viewer advisories in the matter at hand, like the issue of sexual content, is similar to the previous Queer as Folk decision. Contrary to the complainant's assertion that “the warning of adult content before the show and after each commercial breaks [sic] were not identical to the September 13, 2002 decision,” the wording and format of the viewer advisories provided at the beginning and coming out of all commercial breaks in both episodes were identical. The sole difference in the provision of advisories was the number of them. In the Queer as Folk episode which was the subject of the first decision, the detailed audio and visual advisory was broadcast at the beginning of the program, while the shorter audio-only advisory was provided only after the second commercial break. In the March 18 episode in question here, the audio-only advisory was broadcast coming out of all three commercial breaks.
In the first Queer as Folk decision, Showcase was found in violation of Article 5.1 of the CAB Violence Code both for the inadequate number of viewer advisories, as well as for their format and the information provided in those advisories following the commercial breaks. In that case, this Panel stated
Showcase has failed to provide advisories coming out of every commercial break. Moreover, in the case of the second commercial break, the advisory was in audio format only; it also provided no information to the audience about the reason for which the program required a viewer advisory. The second advisory consisted of only a reminder of the name of the program and the general statement that “viewer discretion is advised”. It did not reiterate the informative statements associated with the initial advisory as to the sexuality, coarse language and mature content. Both failures constitute breaches of Article 5.1 of the CAB Violence Code.
In the case of the March 18 episode, Showcase is not at fault with respect to the number of advisories provided. The Panel does, however, find Showcase in breach for its provision of audio-only advisories coming out of commercial breaks. As this Panel ruled in Showcase Television re the movie Rats (CBSC Decision 99/00-0772, August 23, 2001), the broadcast of an advisory in audio-only format was insufficient because
this warning in audio format only is of no assistance to the hearing impaired or to those who may be glancing at their television sets at a distance or with the volume turned down or otherwise rely on visuals only to determine the viewing choices for their household.
It also finds Showcase in breach for its failure to offer more specific information about the content of the program in those advisories. “Viewer discretion is advised” tells the audience nothing material about the program content. It does not differentiate, to its own disadvantage, between those who cannot tolerate, say, violent content but have no difficulty in accepting mature sexual content on their television screens. The purpose of advisories is to inform. The content-devoid four-word alert does not do that. It does not fulfill the needs of the viewer. It does not meet the basic requirements of Article 5.1.
Distribution of Services
A large portion of the complainant's original letter outlined his objection to the lack of information provided to customers when choosing their television service provider and channels. He stated that Showcase comes bundled with other channels “without any notification that Showcase carries graphic, homosexual, vulgar language and pornography.” The Panel finds this perspective to be exaggerated and unjustified and the use of the word “pornography” in association with Showcase or the series Queer as Folk utterly inappropriate. With respect to the other elements of the complainant's statement, the Panel notes that many services, stations and networks, whether specialized or conventional, broadcast some part of their programming schedule with mature elements including adult themes, coarse language, nudity, sexuality or violence. It can hardly be said of Showcase that its schedule is dominated by such programming.
In any event, as a general rule, in order to help viewers decide what they wish to see and what they would prefer to avoid, all private broadcasters provide tools and information that permit viewers to make informed choices. These include the implementation of the Watershed hour of 9:00 pm, before which no adult programming can be broadcast. Even after that hour, broadcasters provide on-screen ratings icons and viewer advisories, as well as the program encoding that is compatible with the use of the V-Chip, which has been built into all television sets sold in Canada for several years. Moreover, both digital cable and DTH satellite services permit the blocking of entire channels via their decoding boxes.
As to the bundling issue itself, Showcase correctly indicated in its response letter that a broadcaster “does not have any control over which channels are packaged together – this decision is made by individual cable providers.” In the light of the audience tools and information described above, families do, in any case, have sufficient opportunity to avoid programming they do not wish to see. The overall richness and variety of programming provided by general and niche broadcasters is entirely in keeping with the principle in the Broadcasting Act that programming provided by the overall broadcasting system “should be varied and comprehensive, providing a balance of information, enlightenment and entertainment for men, women and children of all ages, interests and tastes. [Emphasis added.]” That goal can only be achieved by the recognition and acknowledgment that having “different strokes for different folks” is fair, positive and beneficial provided that it meets the codified standards and that those folks have the opportunity to make informed viewing choices.
ANNOUNCEMENT OF THE DECISION
When the CBSC receives multiple complaints of a similar nature about one program or series, it is customary procedure to address all complaints in the text of a single decision. In this case, it was an administrative error that prevented the March 18, 2002 episode of Queer of Folk from being treated at the same time as that of November 12, 2001. Both complaints, and now both decisions, dealt with the same issues, namely, the sexual content and the provision of viewer advisories. In accordance with the requirements of the first Queer as Folk decision, Showcase announced that it had breached Article 5.1 of the CAB Violence Code in its broadcast of the program on November 12. Since the National Specialty Services Panel comes to the same conclusion with respect to the currently challenged broadcast and since the broadcaster had no opportunity to modify its viewer advisory policies for this broadcast following the first decision, it finds that there is no need to repeat a similar announcement with respect to this decision. It is expected, however, that Showcase Television has had the opportunity to sort out the viewer advisory issues and will succeed in avoiding any further breaches of this nature in future broadcasts.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.