During the month of December 2002, on multiple occasions, TVA broadcast an advertisement for a Montreal sex shop called Boutique Sexe Cité. The commercial showed a man arriving home from work. He was obviously fatigued and, when his female significant other called to him from the other room, he responded that he had not had a very good day. The man then entered the living room, where his partner was standing by the Christmas tree wearing a Santa Claus hat and white lace lingerie with garters. The man's quickly brightening countenance was suggestively photographed via a camera angled between the woman's legs. The camera then zoomed to a close-up of the woman's face and shoulders as she said “Joyeux Noël, mon amour.” The commercial concluded with a voice-over narration stating “[translation] La Boutique Sexe Cité, your partner in love for a very Merry Christmas.”
The CBSC received a number of complaints about the airing of this commercial by TVA during family programming over the holiday season. Two of the complainants requested that the CBSC rule on the matter (the full text of those complaints and all other relevant correspondence can be found in the Appendix to this decision, available in French only). One of those complainants had seen the commercial twice on December 22 during the broadcast of the feature film Maman, je m'occupe des méchants (the French-language version of Home Alone 3) which began at 6:30 pm. The other individual was concerned about the inclusion of the commercial during the movie Matilda on December 29, also at 6:30 pm, as well as during the informational program Planète Animal on December 30 at 1:00 pm. Both films carried a classification rating of “General” and were preceded with a notice indicating that “[translation] This film is intended for all audience age groups.” Planète Animal did not carry either a classification rating (as it belongs to the category of informational programming which is exempt from classification), nor any sort of initial advisory.
The complainants were concerned that this commercial was too sexually explicit for broadcast during family programming or programs that target young audiences. One of the complainants also observed that the broadcast of the commercial was clearly not just a one-time error since it had been broadcast multiple times during different family programs.
TVA responded to all complainants with the information that, in the network's view, the content of the commercial was sufficiently subtle so that children would not understand what it was implying, but that it had nonetheless removed the advertisement from rotation in that time slot. Both complainants sent further correspondence indicating their dissatisfaction with TVA's response. They were concerned that the television station had dismissed their complaints about the scheduling of the commercial and that TVA had not acknowledged their poor judgement in this respect.
The CBSC Quebec Regional Panel examined the complaint under the following provision of the Canadian Association of Broadcasters' (CAB) Code of Ethics:
CAB Code of Ethics, Clause 10 – Television Broadcasting
Advertisements which contain sexually explicit material or coarse or offensive language intended for adult audiences, such as those for theatrically presented feature films, shall not be telecast before
The Quebec Regional Panel viewed a tape of the commercial and reviewed all of the correspondence. It concludes that, although the commercial in question would have been more appropriately scheduled in programming that was less appealing to children, it was not so sexually explicit as to be found in breach of Clause 10(f) of the CAB Code of Ethics.
A Preliminary Issue: The Decision of Advertising Standards
Advertising Standards Canada (ASC) is the self-regulatory agency established by the advertising industry to deal with complaints about advertisements. Its Montreal office which deals with complaints from or relating to French Canada, also received complaints about this commercial. When it receives a complaint, ASC deals with the responsibility of the advertiser vis-à-vis the complaint. The Canadian advertising industry has established its own set of codes of standards, which are not identical to those of Canadian private broadcasters administered by the CBSC.
ASC examined the complaints under Article 14 (Unacceptable Depictions and Portrayals) of the Canadian Code of Advertising Standards which relates in pertinent part to material which does not “offend the standards of public decency prevailing among a significant segment of the population.” In its assessment, ASC also acknowledged the “Scope of the Code”, which explains that the Standards Councils will consider “the context and content of the advertisement and the audience actually, or likely to be, or intended to be, reached by the advertisement, and the medium/media used to deliver the advertisement.” On the basis of its standards and criteria, ASC concluded that the advertisement was intended for an adult audience and did in fact violate the Canadian Code of Advertising Standards for airing at a time when children were watching.
The CBSC, for its part, must deal with these same complaints insofar as they relate to the responsibility of the broadcaster for all that is aired on its station.
The Scheduling Issue under the Broadcast Codes
The Quebec Panel does not consider the Boutique Sexe Cité commercial appropriate for broadcast to families, on the one hand, but it does not consider it so adult-oriented that it could be said to be viewable exclusively by an adult audience. On the substantive level, the Panel simply does not find that the commercial was sexually explicit. At worst, it was sexually suggestive but even such an acknowledgment cannot result in a finding of breach under Clause 10(f) of the CAB Code of Ethics. In CITY-TV re a promo for SexTV (CBSC Decision 99/00-0133, July 6, 2000), the Ontario Regional Panel considered a complaint about a promo in which a naked woman was lying on her side facing the camera, limbs appropriately arranged to cover her breasts and groin. The promo ran at 7:15 pm but the Panel did not conclude that it was destined exclusively for an adult audience.It is those words, “intended for an adult audience”, which set out the test under which the Council evaluates the scheduling of all programming pursuant to Clause 3 of the Violence Code. In the Council's view, to fall afoul the scheduling provision of the Violence Code, the challenged programming must not merely be “attractive” mainly to adults, it must be intended for an adult audience to the exclusion of a non-adult audience.[T]he Council finds no breach in the present matter. It does, however, agree with both the broadcaster and the complainant that it would be more appropriate not to run such promos at a time when children could be expected to be watching.
Moreover, the Panel wishes to underscore the fact that it understands the commercial to be depicting a domestic situation or relationship and not a clandestine erotic tryst. The Panel does not conclude that the latter would necessarily present a Code-related problem but rather that the commercial, as broadcast, portrayed an even less problematic representation than might have been the case. The Panel finds no breach of Clause 10(f).
In all CBSC decisions, the Adjudicating Panels assess the broadcaster's responsiveness to the complainant. Although the broadcaster need not agree with the complainant, it is expected that its representatives charged with replying to complaints will address the complainant's concerns in a thorough and respectful manner. In his complaint to the CBSC, one of the complainants expressed his dissatisfaction with the treatment he had received on the telephone when he had called to complain about the advertisement. Apparently he had been informed that the station had received many complaints on this issue, but that nothing would be done about them until after the holiday season. As the CBSC has stated on numerous previous occasions, because it is not an evidence-gathering body, it is not in a position to comment on any telephone conversations a complainant may have had with a broadcaster. It would always hope that such conversations would be co-operative and respectful but it has no method of making such an evaluation in the absence of a mutually agreed perspective (between the complainant and the broadcaster) of what was actually said. In this case, with respect to the aspect of the communications which the Panel is in a position to assess, TVA did provide an adequate written response to all complainants within 21 days of receiving copies of the complaints from the CBSC. Consequently, the Panel finds that TVA has met its responsibilities of responsiveness. Nothing further is required in this regard on this occasion.
This decision is a public document upon its release by the Canadian Broadcast Standards Council. It may be reported, announced or read by the station against which the complaint had originally been made; however, in the case of a favourable decision, the station is under no obligation to announce the result.