TQS re Scheduling of Advertisements and Promos

QUEBEC REGIONAL COUNCIL
(CBSC Decision 98/99-0212, 0213 and 0882)
P. Audet (Chair), Y. Chouinard (Vice-Chair), R. Cohen (ad hoc),S. Gouin, P.-L. Smith and P. Tancred

THE FACTS

For reasons explained below, there was some confusion as to the
identity of the commercials or program promos complained of by the individual (who was
responsible for the filing of all three complaints which are the subject of this decision)
and those which apparently ran at the times in question, according to the traffic logs of
the broadcaster. Since the issues remain the same whether the advertising which ran was
that highlighted by the complainant or that noted by the broadcaster, the discrepancy is
of no material effect. The point is raised at the start of this decision, however, because
there will immediately be seen to be a contradiction between the facts as laid out
immediately below and the substance of the letters of complaint. The CBSC does assume, for
these purposes, that the broadcaster’s traffic logs were accurate.

On December 30, 1998, during the early morning children’s show Maya,
Télévision Quatre Saisons (TQS) aired a commercial for an “extreme fighting”
tournament, the sport being a “no holds barred” fight consisting of a
combination of wrestling, boxing and kick-boxing. The commercial was made up of short
scenes from previous competitions showing men and women grappling, punching, kicking and
stomping on each other.

On January 11, 1999, during the morning children’s show Bibi et
Geneviève
, TQS aired a commercial for a science fiction feature film entitled Virus.The commercial included scenes from the movie which depicted explosions and various
acts of destruction of property, people being pursued by a monster, a man pointing a gun,
people screaming and a scary-looking cyborg.

On May 8, 1999, during the commercial break just prior to the
commencement of a program on farm animals, TQS aired a promo for the upcoming broadcast of
the feature film Rob Roy. The commercial showed a man pierced by an arrow, a man
punching another in the face and a close-up of a gunshot.

The Letters of Complaint

On December 30, a viewer sent a complaint to the CRTC and the CBSC.
This letter read, in part, as follows:

[Translation] This letter is a complaintabout a commercial which aired on TQS on December 30, 1998 between 8:15 a.m. and 8:25 a.m.during the children’s program Maya.

The commercial, which was very violent for very young children,constitutes a MORAL VIOLATION vis-à- vis children. The ad in question is for a movieabout a teacher who works in a very violent school environment. … To broadcast such acommercial during a gentle program for children between the ages of 3 and 8 years is adirect assault on the child viewer and his or her parents.

… I hope the programming directors will quickly come to understandthe effect that this type of violent and brutal advertising has on children! And I hopethat we will finally make a collective effort to protect our children from televisionviolence.

On January 11, 1999, the same viewer sent a second letter to the CRTC
and CBSC, this time complaining of an advertisement for a movie which he thought was Terminator
II
and which he indicated as having aired during the children’s shows Maya
and Bibi et Geneviève. This letter presented the same arguments as those raised in
his December 30 complaint.

Sometime in May 1999 (the letter was erroneously dated May 8, the day before
the broadcast of which he complains, but it was received by the CBSC May 26), the same
viewer lodged his third complaint about violent advertising during early morning
children’s programming on TQS. That letter read as follows:

[Translation] I hereby express myconcern with a violent commercial which was broadcast by TQS on May 9, 1999 between7:15 and 7:30 am, just prior to a program dealing with farm animals.

This is the third complaint of this nature which I have had to make andI am starting to believe that TQS is really trying to pull the rug over our eyes by sayingthat it is another routing problem. The CBSC must stop believing such lies fed to it bythe broadcaster.

I even consider that the weight of your penalty is insufficient todissuade TQS and perhaps other stations from surreptitiously including violent ads duringprime children’s viewing time. I am dumbfounded that your organization is not capableof stopping such practices.

The violent ad in this case showed a man from the Middle Ages beingpierced by an arrow.

I strongly urge your organization to take firm action and to become animportant player in stopping television violence.

The Broadcaster’s Response

TQS failed to reply to the first complaint but the Vice-President of
Communications replied to the second letter of complaint on January 26, 1999 in the
following terms:

We have received a copy of the letterthat you sent us on January 11, 1999 in which you expressed your dissatisfaction regardinga commercial aired during a children’s program.

We have considered your complaint and, after reviewing a tape of theshow, have realized that the advertising for the film Terminator II was broadcastdue to a error in rotation.

We are careful in ensuring that this type of advertisement never runsduring children’s programming.

We offer our most sincere apologies for this unfortunate mistake.

Please rest assured that we will inform the people concerned and thatwe will be much more careful in the future.

On March 10, following an inquiry by the CBSC Secretariat as to the
missing response to the first letter of December 30, the broadcaster’ s
Vice-President of Communications did respond to that first complaint with essentially the
same letter as she wrote on January 26, but she noted in the March letter that
“[translation] the commercial [broadcast on December 30] … is not an ad for a movie
but rather a wrestling-boxing style competition where there are ‘no holds
barred’.”

The third complaint received the following brief response on June 28:

[Translation] We have received yourletter which was sent to the CBSC and in which you set out concerns with respect to thebroadcast of a promo for the movie Rob Roy on TQS on May 9 between 7:15 and 7:30am.

Upon review, we note that the promo was in fact broadcast but in thebreak preceeding the program.

The Requests for a Ruling and Additional Correspondence

The complainant was not satisfied with the broadcaster’s responses
and requested that all three of his complaints be referred to the Quebec Regional Council
for adjudication. The following letter accompanied the first signed Ruling Request form:

[Translation] I wish to express mydissatisfaction with respect to the letter sent to me by TQS concerning violentcommercials aired during children’s programming on December 30 1998 (at least twice)and on January 11, 1999.

The response of the [Vice-President’s of Communications] seems toignore the complaint that I made over the telephone on December 30, 1998 in reference to acommercial for Combat Extrême which was aired during the children’s programs Mayaand Les Pierres à Feu between 8 a.m. and 9 a.m. If the best way to deal with aproblem such as this is to call the station in question directly, it was not the case atTQS…

I believe that Ms. …, who is in charge of rotation, should have takencare of the problem immediately after my phone call of December 30, 1998. In otherrespects, I believe that the rotation errors alleged by the Vice-President ofCommunications at TQS are simply excuses: in her reply, she said to me and I quote”We are committed to insuring that this type of advertisement never runs duringchildren’s programming.” If this is true, how can they explain running this kindof commercial (Virus, Combat Extrême, Terminator) at least threetimes between December 30, 1998 and January 11, 1999.

Therefore, I do not accept these explanations and ask that you applythe sanctions outlined in your code of conduct to TQS.

THE DECISION

The CBSC’s Quebec Regional Council considered the complaint under
the Voluntary Code Regarding Violence in Television Programming. The relevant
clauses of that Code read as follows:

Violence Code, Clause 2 (Children’s Programming)

2.1 As provided below, programming forchildren requires particular caution in the depiction of violence; very little violence,either physical, verbal or emotional shall be portrayed in children’s programming.

2.6 Programming for children shall not contain realistic scenes ofviolence which create the impression that violence is the preferred way, or the onlymethod to resolve conflict between individuals.

Violence Code, Clause 3 (Scheduling)

3.2 Promotional material which containsscenes of violence intended for adult audiences shall not be telecast before 9 p.m.

3.3 Advertisements which contain scenes of violence intended for adultaudiences, such as those for theatrically presented feature films, shall not be telecastbefore 9 p.m.

The Regional Council members viewed tapes of the commercials in
question and reviewed all of the correspondence. The Council considers that the
commercials in question contained violent content intended for adult audiences and should
not have been aired prior to the watershed hour. By doing so, TQS has breached Article 3
of the Violence Code. Moreover, as some of the ads were broadcast during
children’s programming, the inclusion of such violent material there also constitutes
a breach of Article 2 of the Violence Code.

Some Initial Confusion

As noted above, there was some confusion surrounding the subject matter
of the first two complaints. While, in his letter of December 30, the complainant referred
to a movie about a teacher working in a violent environment, the broadcaster stated that
the ad in question was actually for an extreme fighting tournament. The Council surmises
that the complainant may have gotten the wrong broadcast date or time and finds it very
unlikely that his description was actually for the extreme fighting tournament. In any
event, the broadcaster proferred the extreme fighting ad as the one in question and so the
Council considers it appropriate to consider that commercial in light of the Codes.
There would not, in the Council’s view, be any material difference in its conclusions
unless the commercial complained of was less violent than the one which the
broadcaster admitted airing.

As to the second complaint, while the complainant states that the ad
was for a movie entitled Terminator II, the Council notes, as did the broadcaster,
in providing the tapes, that the ad is in fact for a movie entitled Virus, which is
actually produced by the same person as Terminator II and is materially in the same
genre for the purposes of this decision.

The General Scheduling Issue

This is the Council’s first opportunity to consider Articles 3.2
and 3.3 of the Violence Code which deal with the scheduling of promotional material
and advertisements respectively. Both sections deal with what is essentially similar
content and, correspondingly, set out identical requirements regarding scheduling. In a
broader sense, the substance of these requirements is the same as the more familiar
Article 3.1, which deals with general programming. The scheduling requirement is clear:
“material which contains scenes of violence intended for adult audiences shall not be
telecast before 9 p.m.” While the Council may not yet have had the opportunity to
consider promotional material and advertisements separately, it has had numerous
opportunities to determine whether any programming “contained scenes of
violence intended for adult audiences.”

In one of the most oft-cited decisions on the point, namely, CKCO-TV
re Kazan
(CBSC Decision 96/97-0226, February 20, 1998), the Ontario Regional Council
set out some criteria to determine whether scenes of violence are “intended for adult
audiences”. The decision concerned a Sunday matinee movie which told the story of a
canine, part dog/part wolf, named Kazan whose personal challenge was to decide whether he
belonged in the wilderness or in the company of humans. The movie included scenes
depicting the strangulation of a man as well as the beating, shooting and near drowning of
Kazan. The Council found that none of these scenes of violence could be described as
“intended for adult audiences”.

The Council does not consider that thescenes of violence contained in Kazan are of such a nature as to be intended foradult audiences only, although they contain more violent elements than do the scenescontained in Before It’s Too Late and in the episode of Matrixconsidered by the Council . While it is difficult to propose any cut-and-driedformula to apply in coming to any such conclusion, the Council does consider that thepresence of the combined elements of fear, suspense, gore and explicitness may helpcharacterize programming containing scenes of violence as adult. The Council notesthat the scenes of violence in the movie Kazan were short and often obscured tolimit their scariness. The Council finds that, overall, the movie was very tame; in theCouncil’s view, the few scenes of violence do not negate this characterization. Giventhe viewer advisories which preceded the broadcast of the movie and were repeated duringthe first commercial break, the Council is comfortable with CKCO-TV’s scheduling ofthe movie Kazan at 1 p.m.

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.

The Council does not consider, however, that the scenes in the
advertisement for the extreme fighting tournament were of such a nature as to fall afoul
of the scheduling provision of the Violence Code. Their problem lies
elsewhere.

Broadcast of Violent Ads and Promos During Children’s Programming

Having concluded that two of the advertisements contained scenes of
violence intended for adult audiences, it is not difficult to conclude that such ads
should not have been included during children’s programming. The promo for Virus
clearly was and therefore TQS has breached provisions of Article 2 of the Violence Code
which state that “very little violence … shall be portrayed in children’s
programming” and “programming for children shall not contain frightening or
otherwise excessive special effects not required by the storyline.”

Moreover, while the Council did not find the advertisement for an
extreme fighting tournament to be in breach of the scheduling provision of the Violence
Code
, it does find that its inclusion in children’s programming constitutes a
breach of Article 2.6 of the Code which states that “programming for children shall
not contain realistic scenes of violence which create the impression that violence is the
preferred way, or the only method to resolve conflict between individuals.”

The General Issue relating to Scenes of Violence in Children’s Programming

The issue relating to the watershed (discussed above with respect to
two of the promos) is really quite straightforward. Canada’s private broadcasters
have collectively agreed that they will not broadcast any form of violence intended for
adult audiences
before 9:00 p.m. Whether it consists of dramatic programming, or paid
or unpaid advertising for such programming, they decided that, as of January 1, 1994, any
broadcasting which includes such elements would not be scheduled before 9:00 p.m. If the
Clauses in question were not sufficiently clear (which, in the view of the Council, they
are), then the principles behind these provisions were also laid out in the
background material in the Violence Code, which provides, among other things:

1.11 This Voluntary Code represents aresponsible and pro-active approach to the issue of violence in programming telecast byCanada's private, over-the-air broadcasters.

1.17 [C]reative freedom carries with it the responsibility of ensuringthat our children are protected …

And the Statement of Principle behind the Code also provides:

1.2 By their adherence to this VoluntaryCode of practice, Canadian private broadcasters are publicly endorsing the followingprinciples:

1.2.2 that young children not be exposed to programming which isunsuitable for them.

1.3 By the adoption of this Voluntary Code Canadian privatebroadcasters shall ensure these standards are met in the production, the acquisition, thescheduling, the promotion and the telecast of their programming.

1.8 In all genres of programming, the depiction of violence shall beevaluated in relation to the individual program, its intended audience and the time ofbroadcast.

Broadcasters were unquestionably concerned about the welfare of
children when they took the step of adopting this Code and this case clearly goes beyond
the mere question of the inviolability of the watershed hour. As a question of fact, the
three alleged transgressions by the broadcaster occurred in the context of programs aimed
at children
. If ever a case of greater vigilance was merited, it is in the case of such
programming. While slip-ups in programming issues can, of course, occur from time to time,
the repetition of the excuse related to problems of traffic rotation in children’s
programming
is particularly problematic. Moreover, the broadcaster was put on alert in
this regard very shortly after the initial traffic problem arose.

Broadcaster Responsiveness

In addition to assessing the relevance of the Codes to the complaint,
the CBSC always assesses the responsiveness of the broadcaster to the substance of
the complaint. In this case, the Council considers that there were several problems. In
the first place, the broadcaster totally ignored the complainant’s letter until the
CBSC, following up on the issue two months later, provoked a reply. On January 26 and
March 10, the broadcaster merely referred to “an error of rotation” and, on June
28, the broadcaster’s response could hardly have been said to have even attempted to
address the issues raised by the complainant. It only reiterated the complainant’s
own observation that the promo in question aired “just prior to a program dealing
with farm animals.” The entire substance of the
broadcaster’s response was that “Upon review, we note that the promo was in fact
broadcast but in the break preceeding the program.” Broadcasters owe more to their
audience than such a brush-off, particularly in circumstances where they are, by their own
admission (as well as, ultimately, the CBSC’s finding), in breach of the Violence
Code
. Moreover, they are required to be responsive in terms of their membership
in the CBSC.

In the circumstances, while the broadcaster was not in breach of the
Council’s standard of responsiveness with respect to its reply of January 26 and was
on the verge of being in breach by not responding to the complaint of December 30 until
prompted by the CBSC to do so, the Council is of the view that the letter of June 26
simply did not constitute a substantive response and was, consequently, in breach of the
CBSC’s members’ requirement of responsiveness to complainants.

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 TQS breachedprovisions of the Canadian Association of Broadcasters’ Voluntary Code RegardingViolence on Television in airing, on December 30, 1998, and  January 11 and May9, 1999, advertisements and promotional material which contained scenes of violenceintended for an adult audiences in the early morning and by not responding adequately tothe viewer’s complaint.  By broadcasting the ads and promos prior to 9 p.m., thewatershed hour established in the Violence Code, TQS has breached Article 3, thescheduling provision, of the Violence Code.  Moreover, as some of the ads werebroadcast during the children’s programming portion of the broadcast schedule, theCouncil also found that TQS’s actions constituted a breach of Article 2 of the ViolenceCode.  By not addressing the substance of the viewer’s complaint, TQS hasalso breached one of the responsibilities of membership of the Council.

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