TQS re Gilles Proulx comments on Journal du midi (transportation strike)

QUEBEC REGIONAL PANEL
(CBSC Decision 03/04-0334)
G. Bachand (Chair), T. Rajan (Vice-Chair), R. Cohen (ad hoc), R. Parent

THE FACTS

November 24, 2003, during his midday television program on TQS, Journal du midi,host Gilles Proulx discussed the public transportation strike.  He put the following question to his audience: ''Should public transportation workers be denied the right to strike?'' (translation)  In the course of his review of that issue, he discussed a complaint that had been registered against him at the CRTC in the following terms: 

So the strike is settled. You think it is, but it is not ladies and gentlemen. There will surely be another chapter to the whole story.  Naturally, the minute you declare your opposition to organised labour in Quebec, you are accused of ignorance and demagoguery, because opposing organised labour in the public or parapublic sectors, and I stress this, is to come up against the infinitely thick wall of the status quo. Of course, you are fair game for retaliatory comments such as ''you're ignorant, you're a demagogue, you don't know anything, you're putting on a show''.  We are not entitled to question unionism in the public and parapublic sectors even though, once again, the public is boss. You have just had an example of this with the Saint-Charles-Borromée incident, and you have another example with the STM and that's not the end of it since the Charest government plans in fact to amend Law 45.  

I received a nasty letter from [GP gives the complainant's name] who has complained to the broadcasting governing body, the CRTC, against me for the arguments I presented last week.  The guy lives in Laval, works in Montréal and has understood nothing – couldn't get it into his thick head and his brain the size of a pea.  I repeat, I repeat, I repeat, that the public is the boss of these arrogant individuals, not the government and not the city. (translation)

Gilles Proulx then provided his opinion on unions in the introduction to an interview he was about to do with a lawyer who was suing a hospital for its poor treatment of patients.  The host asserted, among other things, that ''you can hire a primate and as long as a good collective agreement is in place, he or she can get away with all sorts of foolishness.'' (translation) 

The host had also made comments during an earlier episode of his program, namely, that of November 17, which were of concern to some audience members but, due to an inadvertent office error, the CBSC did not request the tapes of that episode of the show within the 28-day period during which broadcasters are required to retain logger tapes.  In the circumstances, the broadcaster had already recycled the tapes and the CBSC was not in a position to assess the aspect of the complaint related to the episode of that date. 

In all, the complainant wrote three letters, which were forwarded to the CBSC as a single package on December 3.  In the first of these, an e-mail of November 18 which was addressed to Gilles Proulx and copied to the CRTC, the complainant wrote the text that follows (the full text of all correspondence between the complainant and the broadcaster is included in the Appendix).  It should be noted that, although this letter relates to the recycled broadcast of November 17, its text is included since it does establish the tone of the complaint. 

I listened with interest to the interview you conducted yesterday with my union president, Mr. Pierre Saint-Georges. 

I may not be DOC MAILLOUX, but I detect a great deal of jealousy and envy in your comments and that is why I am so pleased to write to you to inform you that the STM hires a large number of people.  Therefore, instead of envying us, you can join us. Obviously, a smaller number of avenues will be open to you given that you have no other skill than communications. Nevertheless, you should try your luck and I hope with all my heart that your name will “come out'' of the draw for the position of cleaner or attendant. 

You will have to work nights for the first 10 to 15 years, but the salary is so ''attractive'' that you will soon forget all about that drawback. And, on the human side, there is the added bonus that this will do you a lot of good!  You will learn the real values of honest workers, such as respect that begins with the truth. It is very ironic that someone like you, who worked so hard to get the truth known about the emperor Napoleon, and who was even given an international award for his efforts in that regard, should be reduced to hosting the noon news program, a program that is nothing other than a big ''show'' where you are the sole keeper of the truth on every conceivable subject. 

You will see how much easier it is to call someone an asshole when you're in a studio and also how far less painful it is than in person.  Without downplaying the efforts made by your researcher, who you far outstripped, you will see that a man accustomed to physical work can fight back harder than a 110-pound woman – something you are clearly not used to. 

You will be so popular that even those workers with 25 years of service will want to go back to the night shift for the pleasure of working with you. 

We will consequently be watching the nominations and if we ever see your name, we will give you the kind of reception that none of your researchers has ever given you.  We will have so much to laugh about when we work with you since everyone knows that you are nothing more than a JOKE. (translation) 

On the 19th, the complainant forwarded the letter of the 18th to the CRTC, with a covering note that read in part as follows: 

I find this host's attitude deplorable. 

Would it be possible to intervene with TQS so that it might finally settle the issue of Mr. Proulx's behaviour?  It seems to me that serious disciplinary action should be taken against him.  There is always a limit. (translation) 

The complainant sent a second complaint to the CRTC and the CBSC on November 27, relating to the Journal du midi episode of November 24 (for which the CBSC has the logger tape, and which is the subject of this decision).  In it he said in part: 

On the program, Journal du midi, broadcast on November 24th, Mr. Gilles Proulx featured STM president Mr. Claude Dauphin. During the interview, he asserted that I, [name of the complainant], had filed a complaint with the CRTC and also with his employer concerning the comments he made to my union president, Mr. Pierre Saint-Georges, on I was extremely surprised to hear my name on television and I find this unacceptable.  Does he have the right to do that?  Do television stations not have a code of ethics that they must follow? 

As I am unfamiliar with the broadcasting sector, I did not know that it was allowed to name a person on television who has filed a complaint with the CRTC. I consider myself extremely lucky not to have denounced a member of the Hells Angels, as I would probably be dead today. 

I deplore the fact that the CRTC, along with the CBSC, do not inform the public that if someone files a complaint, confidentiality is not observed, even before a decision is handed down by one of the panels.   

I therefore ask that you determine whether the television station is allowed to divulge, in the absence of any proceeding, the names of individuals who file complaints. If that is the case, where does this end? Can a station mention the telephone number, or the address for that matter?  If the answer is yes, it is clearly a disincentive to filing a complaint. (translation) 

On December 12, the Vice President, Communications of TQS replied in part as follows: 

After examining the applicable laws and regulations with respect to the CRTC, we have ascertained that publicising documents is the rule, while confidentiality is the exception and the person requesting it must justify it.  In this case, we have no information that would lead us to believe that you requested that this complaint be treated confidentially.  

Moreover, from the journalistic ethics point of view, it cannot be said that ''confidentiality is not observed'' under the circumstances, since no principle exists to the effect that complaints are confidential.  In fact, it is rather the reverse, as indicated above.   

This being said, the decision to make a complaint to the CRTC known and to identify the complainant becomes, from a journalistic standpoint, an issue of public interest if, given this principle, it is in the public interest to divulge the complainant's name. 

From the moment all proceedings before the CRTC become public and are part of a public file on the one hand, and the complaint deals with an issue of public interest on the other hand (public transportation), it seems clear to us that there could be no question of any obligation whatsoever to keep the complainant's name confidential in this case. (translation)  

January 19, 2004, the CBSC received a Ruling Request (dated January 7) sent by the complainant to the CBSC, requesting that the matter be referred to the appropriate Regional Panel for adjudication.  The complainant also sent a covering letter, as well as a copy of a letter to the CRTC dated January 6, both of which are included in the Appendix hereto. 

 

THE DECISION

In its review of the broadcast, the Quebec Regional Panel considered the following provisions of the Canadian Association of Broadcasters' (CAB) Code of Ethics and the Radio and Television News Directors' (RTNDA) Code of (Journalistic) Ethics

, Clause 6 – Full, Fair and Proper Presentation 

It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of each broadcaster.  This principle shall apply to all radio and television programming, whether it relates to news, public affairs, magazine, talk, call-in, interview or other broadcasting formats in which news, opinion, comment or editorial may be expressed by broadcaster employees, their invited guests or callers.

RTNDA Code of (Journalistic) Ethics, Article Four (Privacy)  

Broadcast journalists will respect the dignity, privacy and well-being of everyone with whom they deal, and will make every effort to ensure that news gathering and reporting does not unreasonably infringe privacy except when necessary in the public interest. Hidden audio and video recording devices should only be used when it is necessary to the credibility or accuracy of a story in the public interest.

The Quebec Regional Panel Adjudicators reviewed all of the correspondence as well as the logger tape of the November 24 episode referred to above.  The Panel concludes that the broadcaster has breached the terms of each of the foregoing Code provisions.

The Right to Privacy and Freedom from Insulting and Vindictive Comments 

The delineation of the conflict between the positions of the complainant and the broadcaster are frequently not as clearly drawn as they are in the matter at hand.  The complainant argued that it is, or ought to be, unethical for a broadcaster to publish the name of a person filing a complaint against it on the airwaves.  If it can, he asked rhetorically what the limits then are.  Could the phone number be given?  The address?  If so, he concluded, this would be a significant disincentive to the filing of a complaint. 

The broadcaster was clearly of an opposing viewpoint.  Its Vice President asserted that, pursuant to broadcasting laws and regulations, publicity was the rule and confidentiality the exception.  Then, she argued, in accordance with journalistic ethics, there would exist no principle pursuant to which complaints are confidential and, moreover, the determination to file a complaint renders the name of the complainant a matter of public interest. 

The Panel disagrees with the position of the broadcaster.  Subject to some possible exception in extraordinary circumstances (of which there are none here), there is nothing in the filing of a complaint that renders the identification of the complainant of the remotest interest to the public.  Nor can there be any argument that a complainant waives his or her entitlement to privacy by making a complaint.  If anything, the facts of the matter under consideration make it abundantly clear that the complainant was stunned by the involuntary publicity given to him by the program host and was shocked that any such publicity could be considered ethical. 

In fact, in the view of the Panel, the broadcast of the complainant's name on the airwaves was contrary to both general broadcast ethics and to journalistic ethics.  It was an unjustifiable exercise of the power of the microphone for petty and vindictive reasons.  There was no conceivable justification for Gilles Proulx to mention his name, much less to identify the city where he lives and that where he works, on the air.  The host's actions were taken in an atmosphere of nastiness and insult.  That the complainant had written Proulx directly was a private matter, that he filed a complaint with the CRTC was also intended by him as a non-public act.  Canada's private broadcasters, in fact, established a process nearly 15 years ago to encourage audience members who have complaints to feel comfortable in bringing them forward to the self-regulatory body they had created.  It would make no sense for them to render that process user-unfriendly or to create disincentives to the audiences they serve.  That would be the result if the position of the TQS Vice President of Communications were sustained. 

It should also be remembered that those who complain to the CRTC or the CBSC are not persons who have access to the power of a microphone and a broadcast licence.  Those who receive such complaints and do have the power of a microphone and a licence must be conscious that those powerful tools have not been provided for personal retributive purposes.  Audience members are entitled to complain and, in the vast majority of cases that pass through the hands of the CBSC, broadcasters deal responsively and responsibly with them.  It is, thankfully, rare that a situation such as the present one occurs.  In the experience of the CBSC, in fact, there have only been two such instances in the past decade and one of these involved the same host (but a different broadcast licensee) in an equally vindictive mood.  In the other case, the host is no longer on the air. 

In CKAC-AM re the Gilles Proulx Show (CBSC Decision 94/95-0136, December 6, 1995), this Panel said of the vindictive, insulting, bitter comments levelled against the complainant: 

Even if the complainant's initial letter had been unduly provocative regarding the host's on-air attitudes, tone and practices, and the Council makes no evaluation of this nature here, it would not give rise to an entitlement on the part of the host to ridicule, demean and insult the letter-writer.  The host's right to defend himself and his style does not extend to the personalized debasing of his critics.  The listening public has every right to expect higher standards of those persons whom broadcasters choose to place on the airwaves. 

On the question of the privacy entitlement of the complainant in that matter, the Panel said: 

Applying those principles to the present case, the Quebec Regional Council considers that, other than for reasons of personal vindictiveness, there was no reason for Gilles Proulx to reveal the listener's name and location (city) on air.  Although she wrote a letter of complaint directly to the station management and to the host, the complainant did not consent to being identified on the public airwaves.  A simple communication with a broadcaster, and even with the host of a talk show, is not tantamount to a waiver of the listener's right to privacy.  Had the host genuinely wished to answer the charges which his critic had levelled against him, he could have done so by dealing with those issues which had been raised.  Instead, he ignored the issues and tore after the messenger.  By revealing the complainant's full name and location, the host made it a simple task for any listener to identify her.  It is clear to the Regional Council that the host infringed the complainant's fundamental right to privacy in circumstances where there was no public interest, much less an overriding public interest, in revealing her identity on the airwaves.   

In CIQC-AM re Galganov in the Morning (Invasion of Privacy) (CBSC Decision 97/98-0509, August 14, 1998), this Panel concluded that it must deal 

with strong criticism directed at a specific, identified individual who does not benefit from the same access to the airwaves.  The Council is of the opinion that the considerable power generated by the broadcast medium dictates that the person entrusted to wield this power will not abuse it by using it against relatively “defenceless” individuals.

when requested to do so, assess the fairness and propriety of comments made on the airwaves about individuals.  Looked at from the other side of the microphone, broadcasters are neither entitled to defame individuals nor to make unfair or improper comments about them which may violate private broadcast standards (or, it goes without saying, the Broadcasting Act or any of the Regulations adopted pursuant to it), even though any such offending statements may not constitute a breach of the civil law. 

The Council recognizes fully that critical comments can be made about individuals, particularly those in public life but also, in appropriate circumstances which it need not plumb here, with respect to private individuals.  The question for the Council will always be the weighing of the statement and the circumstances.  At its most basic level, the fairness requirement set out in the third paragraph of Clause 6 of the CAB Code of Ethics dictates that a balance must be struck between the type and extent of the criticism of an individual and the appropriateness or merit of any such criticism when measured against the individual's criticized actions or behaviour.  Propriety, a second requirement found in the same paragraph, dictates that the public airwaves will not be used for irrelevant or gratuitous personal attacks on individuals.  The Council considers that Howard Galganov's show broadcast on December 9, failed on both these counts. 

The comments were not fair.  The mere act of filing a complaint cannot in any way, shape or form be construed as warranting the tirade which Galganov in the Morning fired at the complainant.  In such an unequal setting as exists between a broadcaster on one side of a microphone and one of the thousands of recipients of those messages on the other side, the filing of a private unbroadcast complaint constitutes the simplest and most basic attempt at interactivity, expression of a point of view and the exercise of a democratic right.  The hostile, churlish, nasty belittlement which the host condoned on his show constitutes an utterly unfair example of bullying. 

The comments were not proper.  Stating that the complainant has a “character flaw”, that she must be an “inferior person” and that she “can't fit in”, for example, are not relevant to the host's “defence” of his position regarding the complaint and are entirely inappropriate.  The admonition that the complainant “[translation] go dump and die” is clearly a gratuitous, unfounded and unacceptable personal attack.  All in all, the level of the show's responses reminded the Regional Council members of childhood name-calling and such gratuitous insults are improper and have no place on Canada's airwaves.  The Council has no trouble in concluding that some of the comments made on air about the complainant in this case were at least as hurtful, damaging and inappropriate as those made about the complainant in the CKAC-AM case referred to above.  Accordingly, it finds that, by airing these comments made by the callers to the show as well as the host, CIQC-AM breached Clause 6 of the CAB Code of Ethics. 

That the host knew well enough not to abuse his power of the microphone was previously established in the CKAC decision.  This is, however, the first occasion of which the CBSC is aware on which TQS has participated in such a breach of standards.  The general principle is that complaints are confidential, at least insofar as the broadcast of any personal information about those who make them is concerned.  The broadcast of the name of the complainant and the information relating to where he works and lives constitutes a breach of the above-cited provisions of the CAB and RTNDA Codes and the broadcast of the insulting and vindictive comments such as “his thick head and his brain the size of a pea” is both unfair and improper and in breach of Clause 6 of the CAB Code of Ethics. 

Broadcaster Responsiveness

It is a fundamental obligation of broadcasters to be responsive to complainants who take the time to express in writing their concerns about programming they have heard or seen on the airwaves.  It is the duty of the CBSC Panels to assess the thoughtfulness of the broadcaster replies on each occasion that they adjudicate a file.  In this case, although the Panel has expressed its disagreement with the position of the Vice Present, Communications, it readily acknowledges that she took the time to research and focus her response on the concerns raised by the complainant.  Consequently, the Panel considers that the broadcaster has fulfilled its obligations vis-à-vis the complainant.  Nothing further is required in this instance. 

ANNOUNCEMENT OF THE DECISION 

TQS 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 the Gilles Proulx midday program was broadcast; 2) within fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the announcements 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 TQS. 

The Canadian Broadcast Standards Council has found that TQS= broadcast of comments of Gilles Proulx on his Journal du midi show of November 24, 2003 were in breach of the CAB Code of Ethics and the RTNDA Code of (Journalistic) Ethics.  By identifying a member of the public who had written a complaint directly to Gilles Proulx and then sent that complaint to the CRTC, and by telling the audience where he lived and worked, TQS breached the fairness clause of the Code of Ethics and the privacy article of the Code of (Journalistic) Ethics.  By also vindictively insulting the complainant, TQS breached the requirement in Clause 6 of the Code of Ethics that broadcasters not air comments that are not fair and proper. 

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