TV5 re Le sexe autour du monde (“Japan”)

QUEBEC REGIONAL PANEL
CBSC Decision 11/12-1648
October 24, 2012
D. Meloul (Chair), G. Moisan (Vice-Chair), S. Charbonneau, M. Ille

THE FACTS

Le sexe autour du monde (Sex Around the World) is a documentary program that explores sexual practices and values in different parts of the world. Philippe Desrosiers, the host of the program, interviews a number of experts around the world and explains to his viewers the various practices and cultures pertaining to sexuality.  On March 27, 2012, TV5 aired an episode of this program about Japan at 9:00 pm Eastern time.  As TV5 uses a single feed originating from Montreal, Quebec, the program was broadcast at 7:00 pm Mountain time.  A viewer in Edmonton, Alberta filed a complaint (written in English) with the CBSC on March 27, 2012 saying she felt the content was too sexually explicit to be broadcast at 7:00 pm and that it was degrading to women (the text of all correspondence can be found in the appendix).

The program contained several sexually explicit scenes, such as a discussion about the common practice in Japan of purchasing used underwear worn by young women; a hands-only demonstration on the operation of a masturbation device for men; another demonstration on the practice of sibari involving a young woman being tied with ropes by her male partner; erotic pictures of men and women; and a performance in a bar during which a dominatrix butted a cigarette out on another woman’s tongue.

TV5 aired the following viewer advisory in audio and video format prior to the beginning of the program and after each commercial break:

[translation]

Warning: Please be advised that the following program is intended for an adult audience.

In its reply to the complainant on April 5, TV5 noted that the documentary at issue explored sexuality around the world and that it aired viewer advisories several times throughout the 9:00 pm broadcast. As the complainant specified in her Ruling Request of April 11, 2012, however, she was not satisfied with the station’s reply, particularly in view of the time it was broadcast in her area, i.e. 7:00 pm Mountain.

THE DECISION

The Quebec Regional Panel examined the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Equitable Portrayal Code and Code of Ethics:

CAB Equitable Portrayal Code, General Principles

[c]        Nothing in this Code should be interpreted as censoring the depiction of healthy sexuality; however, broadcasters shall avoid and eliminate the depiction of gratuitous harm toward individuals in a sexual context, as well as the promotion of sexual hatred and degradation.

CAB Equitable Portrayal Code, Clause 7 – Degrading Material

Broadcasters shall avoid the airing of degrading material, whether reflected in words, sounds, images or by other means, which is based on race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability.

CAB Equitable Portrayal Code, Clause 8 – Exploitation

  1. Broadcasters shall refrain from the airing of programming that exploits women, men or children.

CAB Code of Ethics, Clause 10 – Television Broadcasting (Scheduling)

  1. 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. Broadcasters shall refer to the CAB Violence Code for provisions relating to the scheduling of programming containing depictions of violence.
  2. Recognizing that there are older children watching television after 9 pm, broadcasters shall adhere to the provisions of Clause 11 below (viewer advisories), enabling viewers to make an informed decision as to the suitability of the programming for themselves and their family members.(Note: To accommodate the reality of time zone differences, and Canadian distant signal importation, these guidelines shall be applied to the time zone in which the signal originates.)
  3. […]

CAB Code of Ethics, 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

  1. 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
  2. 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.
  3. Suggested language for suitable viewer advisories is outlined in Appendix A. The suggestions are meant as possible illustrations; broadcasters are encouraged to adopt wording which is likeliest to provide viewers with the most relevant and useful information regarding the programming to which it applies.

The Panel Adjudicators read all of the correspondence and viewed the program in question. The Panel concludes that TV5 did not violate any of the Code provisions, except Clause 11 of the CAB Code of Ethics for failing to specify the sexual content in the viewer advisories.

Exploitation and Degradation

After carefully viewing the documentary that TV5 aired on March 27, 2012 in terms of the provisions of the CAB Equitable Portrayal Code and the CBSC’s jurisprudence, the Panel concluded that nothing in the documentary in question can be interpreted as constituting material that degrades or exploits men, women or children.  The Panel wishes to point out that explicit content must not be confused with degrading content.  This case concerns a documentary on certain sexual practices used in Japan.  The CAB Equitable Portrayal Code specifically states at Clause (c) of its General Principles that “Nothing in this Code should be interpreted as censoring the depiction of healthy sexuality” and the Panel agrees unreservedly with that position.

Moreover, the CBSC has always held in its previous decisions that airing programs on sex and sexuality between consenting adults is not problematic under the Codes.[1]

Therefore, the Panel concludes there was no violation of the provisions of the CAB Equitable Portrayal Code.

Scheduling

The Panel Adjudicators recognize, as the broadcaster does, that the documentary in question did contain sexually explicit scenes intended for an adult audience and that it should therefore be broadcast during the late viewing period between 9:00 pm and 6:00 am. Clause 10 of the CAB Code of Ethics, however, provides for an “exception” in the case of specialty services using a single feed, namely that the broadcast time corresponds to the time zone of the originating signal.  This means that a program aired via a single feed from Montreal at 9:00 pm, i.e. during the late viewing period, can be seen in Edmonton at 7:00 pm without there being any violation of Clause 10 of the CAB Code of Ethics.

That is precisely what occurred in this case. TV5 aired the documentary in question at 9:00 pm Eastern and the complainant saw it on her television set at 7:00 pm Mountain in Edmonton, Alberta.

While the CBSC, like the CRTC, has recognized in previous decisions that this situation can be problematic for viewers in Western Canada, the fact remains that the rule and the exception are clear.[2]  Therefore, TV5 did observe the rule and did not violate Clause 10 of the CAB Code of Ethics.

Viewer Advisories

The Panel then examined the wording and the frequency of the viewer advisories broadcast by TV5. Although the advisory was aired at the beginning of the program and after each commercial break as required by Clause 11 of the CAB Code of Ethics in both audio and video format, the Panel considers that the wording of the advisory, [translation] “Warning:  Please be advised that the following program is intended for an adult audience”, would not inform viewers of the fact that the documentary contained sexually explicit material.

The CBSC has always held in its previous decisions that viewer advisories must be worded in such a way as to give viewers a clear idea of the content they are about to see.[3]  In this case, the wording of the advisory broadcast by TV5 was too general and did not give viewers useful information on the content of the program.  In this regard, TV5 violated Clause 11 of the CAB Code of Ethics when it broadcast the documentary at issue.

Classification

One of the Panel Adjudicators pointed out that, although documentaries are exempt from classification, TV5 could have displayed an appropriate classification icon, thereby blocking the program on television sets equipped with V-Chip technology or another form of blocking technology.

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, TV5 provided an adequate response explaining its point of view to the complainant.  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

TV5 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 Le sexe autour du monde 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 TV5.

The Canadian Broadcast Standards Council has found that TV5 violated the Canadian Association of Broadcasters’ Code of Ethics in its broadcast of Le sexe autour du monde on March 27, 2012.  TV5 failed to specifically mention the sexual content in its viewer advisories, contrary to Clause 11 of that Code.

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

[1] Bravo! re the documentary film Give Me Your Soul (CBSC Decision 00/01-1021, January 16, 2002); Discovery Channel re an episode of The Sex Files (CBSC Decision 00/01-0791, January 16, 2002); Bravo! re the film Chippendales & the Ladies (CBSC Decision 01/02-0379, September 13, 2002); TQS re two episodes of the program Sex Shop (CBSC Decision 03/04-0162 & -0320, April 22, 2004); and Canal D re an episode of Sexe Réalité (CBSC Decision 09/10-1790, January 25, 2011).

[2] WTN re Sunday Night Sex Show (CBSC Decision 99/00-0672, January 31, 2001); Bravo! re the documentary film Give Me Your Soul (CBSC Decision 00/01-1021, January 16, 2002); History Television re the documentary film “Argentina’s Dirty War” (CBSC Decision 00/01-0944, May 3, 2002); History Television re an episode of the series Sexual Century (CBSC Decision 02/03-1495, January 30, 2004); and OUTtv re the film L.I.E. (CBSC Decision 09/10-1703, January 7, 2011).

[3] Teletoon re Team America: World Police (CBSC Decision 07/08-1011, August 7, 2008); and The Comedy Network re South Park (CBSC Decision 09/10-1432 & -1562, October 5, 2010).