On March 14, 2000, as a part of their series Faut le voir pour le croire, Télévision Quatre Saisons (TQS) (Montreal) aired an episode which included scenes of nudity and sexual activity in the 7:30 pm time slot. The potentially offending scenes were somewhat obscure due to their having been filmed in semi-dark circumstances or even as a result of the poor rather “home-movie” quality of some of the filming. Other clearer scenes included appropriate video distortion in the form of happy faces covering what would otherwise have been exposed genitalia.
The broadcast elicited a letter from a woman who complained that she had been watching the program with her husband and two teenaged children and found the episode “inapproprié et immorale”. She elaborated on what she found offensive in the show:
Dans les scènes qui y étaient présentées, entreautres, deux femmes dans une buanderie qui se faisaient le cunnilingus, ensuite il y avaitun couple dans un ascenseur où l’on voyait l’homme dénudé et empoignergénéreusement les seins de la femme, il y avait également un couple dans unstationnement sur le capot d’une voiture [en train d’] avoir une relationsexuelle par derrière. Ils ont également montré plusieurs autres scènes de nudité etainsi rabaisser la sexualité à un niveau plus bas que l’animal, car même desanimaux n’ont pas la perversité des humains. Cela atteint gravement la pudeur et lamoralité des enfants de notre génération. Ce passage de l’émission a duréenviron une quinzaine de minutes, ils ont placé à quelques endroits des”sourires” sur les parties génitales des gens pour prétexte de pudeur mais lesscènes étaient tellement explicites et inacceptables que cela m’a donné “LeHaut le Coeur”.
On April 12, TQS’s Vice-president, Communications, respondedwith a brief letter, the essential paragraph of which stated:
Cette émission rapporte des situations cocasses oùdes gens se sont trouvés dans l’embarras à leur insu. Effectivement, il arrive quedes scènes plus osées soient présentées. Toutefois, les scènes les plus voyantes sontcensurées. De plus, cette émission ne s’adresse pas à un public jeune, mais avertiet qui a toujours le choix de changer de chaîne ou continuer à écouter l’émissiontout en acceptant son contenu.
The complainant was dissatisfied with the broadcaster’s reply and requested, on April 17, 2000, that the matter be referred to the Quebec Regional Council for adjudication.
The Quebec Regional Council considered the complaint under the Voluntary Code regarding Violence in Television Programming, the applicable provisions of which reads as follows:
Violence Code, Article 3 (Scheduling)
3.1.1 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.
Violence Code, Article 4 (Classification System)
4.1 Canadian broadcasters are in the process of co-operatively developing with other segments of the industry, a viewer-friendly classification system, which will provide guidelines on content and the intended audience for programming.
Once complete, the classification system shall complement this Voluntary Code.
Quebec Regional Council members screened the program and reviewed the correspondence. They consider that the broadcast of the episode of Faut le voir pour le croire under consideration here at 7:30 pm constitutes a violation of Article 3.1.1 of the Violence Code. The Council also finds that the failure to classify the program (and the absence of an on-screen ratings icon) constitutes a violation of Article 4 of the Violence Code.
The “Watershed” Issue
Since the decision at hand is so similar to that in TQS re 2000 ans de bogues (CBSC Decision 99/00-00116 and 0345, August 29, 2000), decided by the same Council on the same date, there is nothing in the substantive reasoning in support of the Council’s conclusions to distinguish the two. In that decision, the Council referred to the Ontario Regional Council’s decision in CITY-TV re Ed the Sock (CBSC Decision 94/95-0100, August 23, 1995), in which that Council, explaining the “Watershed” for the first time, stated metaphorically:
In its literal sense, it, of course, denotes theline separating waters flowing into different rivers or river basins. Popularly, the termhas been applied to threshold issues but the literal meaning of the word gives the bestvisual sense of programming falling on one side or the other of a defined line, in thiscase a time line. Programming seen as suitable for children and families falls on theearly side of the line; programming targeted primarily for adults falls on the late sideof the line. It should be noted that the definition of that time line varies from countryto country, from 8:30 p.m. in New Zealand to 10:30 p.m. in France. (Great Britain,Finland, South Africa and Australia all share the Canadian choice of 9:00 p.m. as thewatershed.)
In Canada, the watershed was developed as aprincipal component of the 1993 Violence Code, establishing the hour beforewhich no violent programming intended for adult audiences would be shown. Despite theestablishment of the watershed for that purpose, the Council has reason to believethat broadcasters regularly consider this hour as a rough threshold for other typesof adult programming. There is, in fact, no formal restriction on the timing ofbroadcasting of slightly “racy” material but the earliest of the promos underconsideration here could not be said to have been run in a time slot which was primarilya young children’s slot or even at a time when one would have expectedsignificant numbers of young children to be watching television at all.
Having determined that the movie contained scenes ofviolence and sex intended for adult audiences, the Council must conclude that themovie should not have been broadcast in a pre-watershed time period. Accordingly, theCouncil concludes that the broadcaster is in violation of Clause 3.1 of the ViolenceCode …
It is the view of the Council that, in the case ofthe film Strip Tease, the showing of the bare breasts of Demi Moore or the otherdancers was in no way comparable to the erotic matter in été sensuel [TQS reété sensuel (CBSC Decision 95/96-0233, August 14, 1998)], much less than in L’inconnu.While acknowledging that the showing of bare breasts on strip tease dancers was intendedby the filmmaker to be sexual, the Council considers that the absence of sexual contact orlovemaking in the film rendered it, to all intents and purposes, sufficiently innocentthat there would not even be a requirement that its broadcast occur only in apost-watershed time frame.
The scope of the classification system should beresponsive to the public’s concerns while being practical to implement. TheCommission expects classifications to be applied, at a minimum, to children’sprogramming (programs intended for children under 12 years of age), drama,”reality-shows” (reality-based dramatic programs), feature films, promotions forany of these programs and advertisements for theatrical releases. In order to ensure theprotection of children from the harmful effects of TV violence, regardless of the time atwhich the programming is scheduled, the programming described above should be encoded withratings at all times.
- the scope of the classification system should be responsiveto the public’s concerns while being practical to implement;
- classifications should be applied, at a minimum, tochildren’s programming (programs intended for children under 12 years of age), drama,”reality-shows” (reality-based dramatic programs), feature films, promotions forany of these programs and advertisements for theatrical releases; and
- in order to ensure the protection of children from theharmful effects of television violence, regardless of the time at which the programming isscheduled, the programming described above should be encoded with ratings at all times.
Exempt programming includes: news, sports,documentaries and other information programming; talk shows, music videos, and varietyprogramming.
a non-fiction representation of reality thatcontains the following elements:
- informs or engages in critical analysis of a specific topic or point of view;
- provides an in-depth treatment of the subject;
- is meditative and reflective;
- is primarily designed to inform but may also entertain;
- treats a specific topic over the course of at least 30 minutes (including commercialtime);
- requires substantial time in preparation, production and post-production;
- has an original narrative and visual construction (which may include scenes of dramaticre-enactments);
- has enduring appeal and therefore a long shelf life
Projects presenting information primarily for its entertainment value are notconsidered to be documentaries.
In summary, the Quebec Regional Council has no doubt but that the episode of Faut le voir pour le croire under consideration was intended as unadulterated entertainment and was subject to the requirement that it be classified in accordance with the rating system applied by the Quebec Régie du Cinéma. In this case, bearing families in mind, the Council is of the view that the rating 13+ would be insufficiently restrictive since it provides that “Scenes of sexual activity of a dominant nature, for example, or the portrayal of unconventional sexual relationships, may not be suitable for this age group.” Although the 18+ category includes “films showing explicit sexual activity”, it is the view of the Council that the16+ rating would be appropriate.
Repeated Disrespect for the Violence Code
Beyond its findings against the broadcaster in the present case, the Quebec Regional Council is very troubled by the fact that, in its programming decisions, TQS pays absolutely no attention to the scheduling requirements of the Violence Code. In TQS re Scheduling of Advertisements and Promos (CBSC Decisions 98/99-0212, 0213 and 0882, June 23, 1999), the Council considered the airing of commercials and promotional material by the broadcaster, not merely before the Watershed, but within children’s television programming.
In this case, the Council has no hesitation in concluding that the advertisement for the movie Virus, which employed scenes of violence and promoted the scariness of the movie, contained “scenes of violence intended for adult audiences.” Nor does the Council have any difficulty in arriving at the same determination with respect to the promotional material for the upcoming broadcast of the movie Rob Roy.
Then, in TQS re the movie L’inconnu (CBSC Decision 98/99-0176, June 23, 1999), as noted above, this Council considered that the broadcast of the psychological thriller L’inconnu (Never Talk to Strangers) included sexual material intended for adult audiences and, consequently, in breach of the Code. Finally, in this regard, there are the examples of this decision and that of the same Council, rendered today, in TQS re an episode of 2000 ans de bogues (CBSC Decisions 99/00-0116 and 0345, August 29, 2000). In both cases, the Council has had no hesitation in concluding that the airing of this allegedly documentary style of programming, which does not require the presence of on-screen rating icons in Canada, has included scenes of sexuality intended for adult audiences which ought not to be aired prior to the Watershed hour.
There has been but one other occasion when it appeared that a CBSC member station might have been acting in disregard of the private broadcasters’ codified standards and the conclusion of an earlier decision of a CBSC Regional Council. Since, in that case, continuing episodes of the same radio show were involved, it was perhaps a more evident practice of the station. In that matter, CILQ-FM re the Howard Stern Show (CBSC Decision 97/98-0487, 488, 504 and 535, February 20, 1998), the Ontario Regional Council explained the requirements of membership and their application to such a situation.
As the CBSC Members Manual provides, under the heading “Criteria of Membership”, “To become a member of the Council, a broadcaster … must agree to carry out the responsibilities of membership outlined in the following” and, under the immediately following heading “Responsibilities of Membership”, it is provided:
Stations voluntarily becoming members of the Council agree to:
(a) Abide by, and agree to be judged by, the broadcasting codes of the CAB administered by the Council.
(b) Encourage, educate and assist managers, programmers, producers, journalists and performers to understand, and conduct themselves in accordance with these standards.
Thereafter, as a part of “Compliance”, the rules of membership provide:
If a member broadcaster fails to comply with a decision of the Council, by not broadcasting a Council decision in favour of the complainant or by refusing to adhere to an approved standard, the broadcaster’s membership in the Council will be revoked.
The consequence of not adhering to the “approved standards”, which were the creation of the private broadcasters themselves, would be the removal of the member from the voluntary authority of the CBSC. While, ultimately, all CBSC members are subject to the regulatory authority of the CRTC, any broadcasters who might cease to be members would be more immediately involved with the formal regulatory regime.
It should not be forgotten that the standards were instituted by Canada’s private broadcasters to ensure that the acceptable content criteria of broadcast material would be the same for all listeners and viewers and, moreover, that no individual stations would be able to steal a competitive march on other broadcasters in their market by breaching those standards.
It is an extremely positive endorsement of the self-regulatory process that, hitherto, the CBSC has never invoked the above-noted provisions relating to adherence to standards to remove a member from its midst. It is equally significant that no member has ever resigned by reason of its refusal to adhere to industry Codes.
In the case of the Howard Stern Show, the broadcaster had already put infrastructural mechanisms in place prior to the rendering of the second decision and it was clear that diligent, even expensive, methods were being employed to ensure that the program would conform to Canadian private broadcaster standards. In this instance, the broadcaster’s Code breaches have not involved a single program. Rather, they are spread over movies, movie commercials and television series; however, at the end of the day, they constitute the same thing. This broadcaster has evidenced its desire to broadcast sexual content clearly intended for adult audiences in a pre-Watershed environment on an ongoing basis in disregard of the conclusions of this Council.
In the circumstances, in addition to its finding regarding the specific breach in the case of the broadcast under consideration, the Council specifically concludes that the broadcaster must, within the thirty days following its receipt of the text of this decision, provide the CBSC with concrete indications of the measures which it intends to put in place in order to avoid the recurrence of the broadcasting of inappropriate sexual content prior to the Watershed. Failing that, the CBSC will determine whether there is any reason for which Télévision Quatre Saisons should be entitled to remain a member of the CBSC or whether TQS should become the first private broadcaster in Canada to be removed from the self-regulatory mechanism.
CONTENT OF THE ANNOUNCEMENT OF THE DECISION
The station is required to announce this decision forthwith, in the following terms, during prime time and, within the next thirty days, to provide confirmation of the airing of the statement to the CBSC and to the complainant who filed a Ruling Request.
The Canadian Broadcast Standards Council has found that Télévision Quatre Saisons breached provisions of the Canadian Association of Broadcaster’s Violence Code in its broadcast of an episode of Faut le voir pour le croire on March 14, 2000. In the Council’s view, the episode contained scenes of sexuality clearly intended for adult audiences. By broadcasting the program in the early evening, at 7:30 p.m., rather than after the watershed hour, TQS has breached the scheduling requirements set out in Article 3 of the Violence Code. In addition, by failing to include the rating of the program in accordance with the rating system of the Régie du Cinéma, TQS has breached the classification requirements set out in Article 4 of the Violence Code.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.