TSN 4 re CFL ON TSN (Winnipeg at Hamilton)

ENGLISH-LANGUAGE PANEL
CBSC Decision 15/16-1744
2017 CBSC 5
May 16, 2017
A. Noël (Chair), S. Crawford, V. Dubois, T. Kenney, T. Reeb, C. Scott, M. Ziniak

THE FACTS

TSN 4 broadcast a Canadian Football League (CFL) game between the Winnipeg Blue Bombers and Hamilton Tiger-Cats during its CFL ON TSN broadcast of July 7, 2016 beginning at 7:00 pm Eastern Time.  Microphones on or near the field picked up comments from the players, some of which included coarse language.

For example, at one point a group of players were on the sidelines looking at a tablet computer. One player was heard saying the word “fuckin’”.  The announcer then said “Apologize for that live mic down there, if you’re offended by that.  Live TV.”  Later in the game a player was heard yelling “Hey man, call the fucking holding, man!” and another saying “Give me some fucking water!”  The announcer made no comment after those two instances.

There were no advisories at any point during the broadcast.

The CBSC received a complaint dated July 8. The viewer identified three instances of coarse language that he had heard during the broadcast.  He felt this language was inappropriate during this type of broadcast and wrote that the producer was showing “blatant disregard for decency and respect of the TV audience.”  TSN replied to him on July 27, stating that “in no way does TSN condone the usage of profanity during its coverage of live events, [but] it remains impossible to anticipate that a player would use such profanity when standing adjacent to a live microphone.  Consequently, our production team cannot immediately censor the content of these comments, as they are made during live television broadcasts.”  In addition, TSN stated that they have reviewed the situation with the production team and the sports franchises, and made it clear that this type of language should be avoided.  The complainant did not find this response satisfactory and requested a CBSC ruling.  He suggested that TSN did not indicate how it would alter its broadcast to prevent this from happening again and did not even acknowledge that its own announcer felt the need to apologize.  He also questioned whether the station truly “cannot” censor or simply will not do so.  (The full text of all correspondence can be found 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 is in violation of both the aforementioned clauses for broadcasting coarse language in a program beginning before 9:00 pm and for failing to provide any viewer advisories.

Coarse Language during Live Events

At the outset, the Panel observes that much of the coarse language picked up by live microphones in the broadcast was difficult to hear. Further they acknowledge that in one instance, an announcer immediately apologized for the language.

In addition, 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 technologies 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.

The CBSC has maintained a policy regarding the broadcast of the f-word on television and has determined it to be unacceptable outside of the Watershed period (defined as 9:00 pm to 6:00 am).[1]

The rules that are in place were set by broadcasters 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. There is clearly a disconnect between the rules as they currently exist, and the coarse language that was picked up by live mics during the broadcast in question.

The Panel adopts the following as set out in CP24 re 30th Annual Pride Parade:

[The] Panel sees no reason to question the long-applied principle of ensuring a “safe haven” for audiences uncomfortable with the use of coarse or offensive language on broadcasts outside of later evening hours. It considers that the policy relating to the broadcast of such language applied by the CBSC strikes an appropriate equilibrium between freedom of expression and respect for the values of those viewers (or listeners) concerned by such content.[2]

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 Pride Parade, there were three instances of the f-word in a 2:00 pm live broadcast of a parade.  In each case the reporter pulled the microphone away and commented that the language was inappropriate.  In that case the Panel found no breach noting that it was a live broadcast, that the language was unexpected, that reporters had asked interviewees to be careful with language, that the coarse language was infrequent and that reporters immediately disavowed it.

In CP24 re an interview with Mike Tyson, an afternoon live interview with a famous boxer suddenly and unexpectedly saw the boxer begin repeatedly to use coarse language.  Although the broadcast was found in breach of Clause 10 of the CAB Code of Ethics, the Panel likely would not have found a breach had the interview been ended after the first instance.  The Panel further found that there was no way to anticipate the coarse language and thus no advisory was required.[3]

In the broadcast in question, the Panel acknowledges that, similar to the above noted decisions, the event was live. However, it differed significantly in that 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.  The Panel concludes that TSN 4 is in violation of Clause 10 for broadcasting coarse language in a program beginning before 9:00 pm and Clause 11 for failing to provide any viewer advisories.

The Panel considers 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. 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 considers that some steps might, in future, mitigate a similar breach. While any such future broadcast would of course have to be considered on its own merits with reference to the codes and previous decisions of the CBSC, some factors that might contribute to a different outcome could include:  1) simple advisories adverting to the potential for the unexpected in a live broadcast; 2) the immediate repudiation by a host of such language when it occurs; 3) 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 is not exhaustive.  In past instances broadcasters have often crafted creative solutions to accomplish the aims of the codes

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 4 provided a reasonable reply to the complainant, outlining the station’s efforts to educate both production staff and the teams involved with respect to the problematic content.  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 July 7, 2016.  TSN broadcast coarse language during a CFL football game at 7:00 pm 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] CTV re a segment featuring Eminem at the Junos (CBSC Decision 02/03-1130, January 30, 2004); CTV re the Green Day performance during Live 8 (CBSC Decision 04/05-1753, January 20, 2006); Global re an episode of fatbluesky (CBSC Decision 05/06-1611, January 8, 2007); TSN re 2007 World Junior Hockey Championships (Interview) (CBSC Decision 06/07-0515, May 1, 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).

[2] CP24 re 30th Annual Pride Parade (CBSC Decision 09/10-1834, February 11, 2011)

[3] CP24 re an interview with Mike Tyson (CBSC Decision 14/15-0071 & -0089, April 8, 2015)


Appendix

The Complaint

The following complaint dated July 8, 2016 was sent to the CBSC:

Once again I find myself having to protest the obscene language which was allowed to be broadcast from open, and obviously unmonitored microphones not ONCE, not TWICE but THREE TIMES in the same game. The last time I complained the following details were requested by your office.

Station: TSN-HD, channel no. 730 on Cogeco.

Time of obscenity:

1. During 1st half of game during color commentary (video clip on sidelines with several Ti-Cats reviewing a play on a tablet) with Rod Black – it was so offensive that Rod apologized to viewers.

2. During 3rd quarter at approx. 8:10 by the play clock someone shouts “What about the f—–g holding?”

3. During 4th quarter at approx. 8:00 by the play clock someone shouts “Give me some f—–g water!”

Date of obscenity: Thursday, July 7, 2016

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 respect of the TV audience.

I fully expect an apology and the assurance that a stern reprimand be delivered to the responsible parties.

P.S. Would you please acknowledge receipt of my complaint or direct me to the appropriate person if your responsibilities have changed.

The CBSC requested further information from the complainant who provided the following, also on July 8. He answered the CBSC’s questions within the body of its email; his responses are in red:

Please see my responses below:

Subject: (C15/16-1744) Your complaint concerning comments during CFL football

The Canadian Broadcast Standards Council (CBSC) has received your correspondence concerning comments during CFL football.

I have a couple questions in order for the CBSC to secure a copy of the logger files of the broadcast that concerned you:

1. Do you still live in [city], Ontario? YES

2. When you write 8:00 & 8:10, do you mean AM or PM? Neither, as I wrote in my previous email these are the readings on the game time clock.

3. Is channel 730 on Cogeco is TSN 1, 2, 3, 4, or 5? Or is it just an HD version of TSN 1? HD

Please note that broadcasters are only required to hold logger tapes of their programming for a period of 28 days following the broadcast. We have nevertheless forwarded your complaint to TSN’s head office at Bell Media so that they can be aware of your new complaint, while we wait for more information from you.

The CBSC then asked the complainant to provide the time of the broadcast. The complainant responded:

The game started at 7:00 PM last night. Does that help?

Broadcaster Response

The broadcaster sent the following response on July 27:

Thank you for your letter, which we received through the Canadian Broadcast Standards Council.

I understand and appreciate your concerns regarding comments made by players during CFL ON TSN’s live coverage of the Winnipeg @ Hamilton game on July 7, 2016. Please allow me to take this opportunity to address your concerns.

In no way does TSN condone the usage of profanity during its coverage of live events, and these comments were no exception.

Unfortunately, it remains impossible to anticipate that a player would use such profanity when standing adjacent to a live microphone. Consequently, our production team cannot immediately censor the content of these comments, as they are made during live television broadcasts.

While the mandate of our live game coverage is to capture the excitement and intensity of the game, our senior management team has thoroughly reviewed the situation with our CFL ON TSN production team.  We have made it very clear that our team must work diligently in an effort to prevent comments like these from making it into our live television broadcasts.

We have also raised your concerns with the franchises in question so that they are aware of the feedback we are receiving from their fans, and our viewers, watching at home.

TSN is very sensitive to these types of situations and certainly had no intention of offending our viewers. Please accept my sincere apology on behalf of the network.  We hope this letter clarifies how seriously we take our programming and broadcast responsibilities.

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

On August 2, the complainant sent the following letter directly to the broadcaster:

Thank you for your response to my letter concerning obscenities uttered by players during the live coverage of the Winnipeg at Hamilton game on July 7, 2016.

It is somewhat comforting to know that TSN does not condone this deplorable language.

However, from this point on in your letter you make no attempt whatsoever to suggest altering your broadcast to eliminate the possibility of this offensive and vulgar language from entering the homes of fans across the nation.

You didn’t even acknowledge that one of your own commentators, Rod Black, felt the language was so offensive that he deemed it necessary to apologize to viewers.

[President], I doubt very much you would allow anyone to speak to your children or family members using this kind of language in your home without stopping the problem. Furthermore, I would love to hear from your sponsors as to their reaction to “our production team cannot immediately censor the content”.  ‘Cannot’ [President], or WILL NOT??

I fail to see your mandate of capturing “the excitement and intensity of the game” as being dependent on foul, 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?

This is not the first time I have written about the exact same problem and yet it persists so I fail to understand how TSN can be a member in good standing of the CBSC.

On that same day, the complainant submitted his Ruling Request with the following comments:

[The President of TSN] responded by email – however, despite his defence that TSN does not condone obscene language in broadcast, absolutely no indication is given to eliminate the open microphones that allow the foul language to enter fans’ homes. The remedy is called a “switch” and TSN clearly intimates it is unwilling to use it.  This is NOT the first time I have complained and still the problem persists – this is unacceptable.