TSN 4 re CFL on TSN (Hamilton at Ottawa)

ENGLISH-LANGUAGE PANEL
CBSC Decision 17/18-0396
2018 CBSC 10
April 25, 2018
S. Courtemanche (Chair), C. Bell, V. Dubois, K. Hesketh, S. Sammut

THE FACTS

On October 27, 2017, TSN 4 broadcast a Canadian Football League (CFL) game between the Hamilton Tiger-Cats and the Ottawa Redblacks.  The broadcast began at 7:00 pm.  There were no advisories at the beginning of the broadcast or coming out of commercial breaks, nor were there any other types of warnings regarding coarse language.

At 9:12 pm, the Tiger-Cats scored a touchdown.  There was a close-up of some Tiger-Cats players expressing their excitement and one player was heard yelling, “Yeah, motherfucker!”, then “Fucking go, boy!” and “Fucking, yeah!”

The next day, the CBSC received a complaint from a viewer who characterized the language as “disgusting and abhorrent” and pointed out that TSN 4 had “already received a ruling for the same offence”, but appeared not to have learned from that past experience.

TSN 4 replied to the complainant on November 28.  It explained that the purpose of live microphones on the field is “to capture the excitement and intensity of the game as it unfolds from the perspective of the players.”  TSN 4 also stated that “this unique audio and camera perspective make it difficult to anticipate the use of profanity by players which are then picked up by our adjacent live microphones.”  The broadcaster acknowledged that this was the viewer’s second complaint about this issue and indicated that it had communicated with the CFL to make them aware of viewer feedback and to strongly caution them to exercise greater awareness throughout live games so as to prevent profanity from being part of the live television broadcasts.

The complainant wrote back to TSN 4 on November 30, complaining that it appeared nothing would be done to stop profanity from being broadcast.  He also wrote directly to the CBSC on December 9, indicating his dissatisfaction with the broadcaster’s response because TSN 4 refused to eliminate the coarse language and had not addressed why the CFL cannot accomplish this when the NFL has addressed this issue.  (The full text of all correspondence is in the Appendix.)

THE DECISION

The English-Language Panel examined the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Code of Ethics:

Clause 10 – Television Broadcasting (Scheduling)

a) Programming which contains sexually explicit material or coarse or offensive language intended for adult audiences shall not be telecast before the late viewing period, defined as 9 pm to 6 am. […]

Clause 11 – Viewer Advisories

To assist consumers in making their viewing choices, when programming includes mature subject matter or scenes with nudity, sexually explicit material, coarse or offensive language, or other material susceptible of offending viewers, broadcasters shall provide a viewer advisory

a) at the beginning of, and after every commercial break during the first hour of programming telecast in late viewing hours which contains such material which is intended for adult audiences, or

b) at the beginning of, and after every commercial break during programming telecast outside of late viewing hours which contains such material which is not suitable for children.

The Panel Adjudicators read all of the correspondence and viewed a recording of the challenged broadcast.  The Panel concludes that TSN 4 violated Clause 10(a) for broadcasting coarse language intended for adult audiences in a program beginning before 9:00 pm, and Clause 11 for failing to provide viewer advisories.

The questions put to the Panel were:

Did TSN 4 breach Clause 10 of the CAB Code of Ethics for airing variations of the word “fuck” during a broadcast that started before 9:00 pm?

Did TSN 4 breach Clause 11 of the CAB Code of Ethics for failing to provide viewer advisories?

Airing variations of the word “fuck” before 9:00 pm

The CBSC has said that a program that begins before the 9:00 pm Watershed hour must be treated as a pre-Watershed program for its entire duration, even if the coarse language (or other adult material) only occurs after the 9:00 pm mark.[1]  In addition, the CBSC has consistently determined that the word “fuck” (and its variations) can only be aired after 9:00 pm regardless of frequency or context.[2]

A CBSC decision on the very same issue at hand was issued in May of 2017.[3]  The decision involved a CFL game beginning at 7:00 pm, where on-field microphones picked up coarse language from the players, including the word “fuck” which was used on three occasions.  The announcer apologized for the coarse language in the first instance but made no comment in the other two.  In its decision, the CBSC stated the following:

The Panel recognizes that broadcasters are always striving to improve the viewer experience.  In 2016, new methods have evolved to allow broadcasters to bring viewers closer than ever to the action in sports broadcasts with the use of a variety of tehnologies including on-field microphones.  Such advances clearly add value for viewers, but unfortunately have the unintended result that viewers may occasionally be exposed to coarse language.

On the issue of using coarse language outside of the Watershed period, the CBSC determined that:

The rules that are in place were set by broadcastes to create a safe haven within which viewers are entitled to expect programming that does not contain “adult” content including very coarse language and that is preceded by an advisory where content is of a more mature nature.

[…]

However, in some recent decisions, where the CBSC has been faced with live events that veered unexpectedly into content that would normally require a post-9:00 pm scheduling, the rules have been slightly and narrowly modified.  […]

In the broadcast in question, […] the language could and should have been anticipated, there appears to have been no attempt to discourage such language, and there were not consistent acknowledgments and repudiations of the language by hosts or other announcers.

In the present circumstance, the Panel notes that following the three exclamations from the football players that contained very coarse language, the announcers made no attempt to repudiate the use of such content.

In its May 2017 decision, the CBSC stated that “it might be possible to evolve the approach taken by the CBSC to ensure that viewers have access to the best calibre content, while protecting those viewers who wish to avoid such language.”  The CBSC set out in its decision the steps that might, in future, mitigage a breach of the code.  These included:

  • Simple advisories adverting to the potential for the unexpected in a live broadcast;
  • The immediate repudiation by a host of such language when it occurs;
  • Efforts on the part of the broadcaster to sensitize players, other on-field personnel, and the sports leagues to avoid using coarse language.

This list was not meant to be exhaustive but merely examples of ways to mitigate the use of coarse language during live events prior to the Watershed hour.  Although the broadcaster did state in its response that it had taken steps to sensitize players and the CFL to ensure they avoid using coarse language, there were neither viewer advisories nor were there any attempts by the announcers to repudiate the use of the very coarse language.

Accordingly, the Panel has determined that, in the present circumstance, TSN 4 violated Clause 10(a) of the CAB Code of Ethics for broadcasting coarse language intended for adult audiences in a program beginning before 9:00 pm.

The need for viewer advisories

On the need for viewer advisories for live event programming, the CBSC’s May 2017 decision stated the following:

Because of the unique nature of the live sports broadcast, the Panel considers that advisories are likely not possible after each commercial break.  Further, the Panel recognizes that live sports are not generally considered by most people to be adults-only programming requiring advisories.  However, given the goal of “ensuring a ‘safe haven’ for audiences uncomfortable with the use of coarse or offensive language” some efforts need to be made to reconcile the potential for adult content with the current rules.

The Panel concurs with the May 2017 decision and believes that efforts need to be made to provide viewers with advisories that would inform them of the potential for coarse language during live events.  In the present circumstance, no viewer advisories were provided.  As a result, the Panel has determined that the broadcaster has breached Clause 11 of the CAB Code of Ethics for failing to provide viewer advisories.  New technologies require new practices by broadcasters “to reconcile the potential for adult content with the current rules.”

Broadcaster Responsiveness

In all CBSC decisions, the Panels assess the broadcaster’s response to the complainant.  The broadcaster need not agree with the complainant’s position, but it must respond in a courteous, thoughtful and thorough manner.  In this case, TSN has, in its response, satisfied its obligation to respond adequately to the complaint.  The broadcaster fulfilled its obligations of responsiveness and, subject to the announcement of this decision, nothing further is required in this regard in this instance.

ANNOUNCEMENT OF THE DECISION

TSN 4 is required to:  1) announce the 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 during the time period in which CFL on TSN was broadcast, but not on the same day as the first mandated announcement; 2) within the fourteen days following the broadcasts of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by TSN 4.

The Canadian Broadcast Standards Council has found that TSN 4 breached the Canadian Association of Broadcasters’ Code of Ethics on October 27, 2017.  During a CFL football game that began at 7:00 pm, TSN 4 broadcast coarse language without any viewer advisories.  This is contrary to Clauses 10 and 11 of the code.

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

[1] Bravo! re the film The House of the Spirits (CBSC Decision 00/01-0738, January 16, 2002) and CTV re a segment featuring Eminem at the Junos (CBSC Decision 02/03-1130, January 30, 2004).

[2] Showcase Television re the movie Destiny to Order (CBSC Decision 00/01-0715, January 16, 2002); WTN re the movie Wildcats (CBSC Decision 00/01-0964, January 16, 2002); Showcase Television re The Cops (CBSC Decision 01/02-0682, January 30, 2004); Showcase Television re the movie Muriel’s Wedding (CBSC Decision 02/03-0882, January 30, 2004); Bravo! re the movie Perfect Timing (CBSC Decision 03/04-0928, December 15, 2004); Bravo! re the movie Ordinary People (CBSC Decision 03/04-1187, December 15, 2004); Bravo! re the film RKO 281 (CBSC Decision 04/05-0584, July 20, 2005); Global re an episode of fatbluesky (CBSC Decision 05/06-1611, January 8, 2007); BBC Canada re The F-Word (CBSC Decision 08/09-1516, April 1, 2010); BITE TV re The Conventioneers (CBSC Decision 10/11-0627, July 12, 2011); Sportsnet Ontario re Party Poker Premier League Poker (CBSC Decision 14/15-0908, October 21, 2015); GameTV re Eastern Promises (CBSC Decision 15/16-1652, December 21, 2016).

[3] TSN 4 re CFL on TSN (Winnipeg at Hamilton) (CBSC Decision 15/16-1744, May 16, 2017).


Appendix

The Complaint

The CBSC received the following complaint via email on October 28, 2017:

Subject: CFL broadcast obscenities

Once again I find myself having to protest the obscene language which was allowed to be broadcast from open, and obviously unmonitored microphones.  The last time I submitted a complaint the following details were requested by your office.

Station: TSN4-HD, channel no. 730 on COGECO Cable.

Date & time of obscenities broadcast by TSN was approx. 9:15 pm, EST on October 27, 2017.  It occurred IMMEDIATELY following the touchdown scored by Hamilton Tiger-Cats against Ottawa Red Blacks – someone utters the word “Motherf****r” and then “F*****g”.

Like I said the last time I complained, this disgusting and abhorrent language has no place in my home or the homes of thousands of other fans.  I hold the producer in contempt for such a blatant disregard for decency and total disrespect of the TV audience.

Furthermore, the NFL does not seem to have this problem and I watch as many NFL games as CFL games without having to put up with this – if NFL broadcasters can do it, why can’t Canadian counterparts?

In light of the fact that TSN4 has already received a ruling for the same offence (see attached), it seems they have not learned from past experience.

The complainant attached the CBSC’s previous decision on this same issue from May 16, 2017.

After he received the CBSC’s response indicating that it was processing his file, he wrote back on November 8:

Thank you for your response.  I will patiently await the broadcaster’s response; however, on previous complaints that I have submitted, the broadcaster’s response has been defensive and basically refused to take measures to prevent airing the obscene language.  Furthermore, the response REFUSED TO ACKNOWLEDGE THAT THE N.F.L. DOES NOT HAVE THIS PROBLEM.

Again, I will respectfully wait for their response.

Broadcaster Response

The broadcaster responded to the complainant on November 28

Thank you for your letter, which we received through the Canadian Broadcast Standards Council on Tuesday, Nov. 7, 2017.

I understand and appreciate your concern regarding comments made by players during CFL ON TSN’s live coverage of the Hamilton Tiger Cats vs. Ottawa REDBLACKS game on October 27, 2017.  Please allow me to take this opportunity to address your stated issues.

The intent of using live microphones around the field during our CFL ON TSN broadcasts is to capture the excitement and intensity of the game as it unfolds from the perspective of the players.  Consequently, this unique audio and camera perspective makes it difficult to anticipate the use of profanity by players which are then picked up by our adjacent live microphones.  I can assure you that in no way does TSN condone the use of profanity during the coverage of live events, and our CFL broadcasts are no exception.

I am aware that this is the second complaint you have filed with TSN regarding profanity captured during a game.  Our CFL on TSN production team has worked with, and strongly cautioned, the various teams to exercise greater awareness throughout live games to prevent profanity from being part of our live television broadcasts.  This is something that we will continue to be vigilant about with both the players and the teams throughout the 2018 season.

We have also raised your concerns with our partners at the CFL to ensure they are aware of the feedback we are receiving from our viewers watching at home.  We will also continue to elevate our communication with the CFL and stress the education of their players and staff on language and behaviour used during games to ensure preventing profanity is something that is a consistent effort from all sides.

We hope this letter clarifies how seriously we take our programming and broadcast responsibilities, and the action we have taken to address your concerns.

TSN is a member in good standing of the Canadian Broadcast Standards Council and follows the Council’s guidelines.

Thank you for taking the time to write to us with your concerns.

Additional Correspondence

The complainant wrote back directly to TSN on November 30 and copied the CBSC:

Thank you for forwarding the response from [TSN’s Senior Vice-President and General Manager].

The response is almost identical to the one I received from [TSN’s Communications Officer] on July 27, 2016 (see attached) when I complained then about the exact same issue of profanity being broadcast irresponsibly by TSN.  This tells me that NOTHING has actually been done to stop the disgusting audio coming into my home.

I offer the following in direct response to [TSN’s Senior Vice-President and General Manager]:

[TSN’s Senior Vice-President and General Manager], I doubt very much that you would allow anyone to speak to your children or family members using this kind of language in your home without stopping the problem.

I fail to see your mandate of capturing “the excitement and intensity of the game” as being dependent on vulgar, obscene language.  Might I remind you that the NFL does not seem to have this problem and I watch as many NFL games as CFL games without having to put up with this – if the NFL can do it, why can’t you?

The guilty sources of the foul language have NOT heeded the admonition to curb the language and clearly the TSN production team cannot, OR WILL NOT, solve the problem!  It’s simple, TURN OFF THE MICROPHONES!!!!!

He also wrote back directly to the CBSC on December 9:

Thank you for your response.

The broadcaster’s response was almost a carbon copy of the one I received from [TSN’s Communications Officer] last year.  I am totally unsatisfied with the feeble attempt by [TSN’s Senior Vice-President and General Manager] to address the problem.

He has refused to:

–           Eliminate the broadcasting of obscene language

–           Acknowledge why the NFL does NOT have this problem – my point is that if the NFL can eliminate the problem, why can’t the CFL?

I wish to proceed with a ruling as soon as possible.