TVA re a segment of an episode of Dans la mire

QUEBEC REGIONAL PANEL
(CBSC Decision 04/05-1043 and -1070)
B. Guérin (Acting Chair), L. Baillargeon, R. Cohen (ad hoc), M.-A. Murat

THE FACTS

Dans la mire was a public affairs panel discussion program hosted by Jocelyne Cazin and broadcast on TVA. The episode of February 1, 2005 dealt with the subject of autism. The host and her guests explained the nature of the condition, its symptoms and possible treatments. The guests included a paediatric psychiatrist, parents with autistic children, representatives from organizations that help children with autism and a representative of the provincial Ministry of Health and Social Services. The host also accepted e-mails and telephone calls from viewers.

At various times during the episode, TVA broadcast video clips of (presumably) autistic children at home and at school in order to illustrate the discussions. During the last ten minutes of the program, Cazin read an e-mail from a viewer who suggested that zootherapy may help people with autism. Cazin asked the guest paediatric psychiatrist to comment on this suggestion. As the doctor offered his thoughts on the subject, TVA broadcast a video excerpt of two women and a man playing with a dog.

It was that video clip that was the subject of two complaints (each dated February 14) received by the CBSC. The man and one of the women who had been featured in that clip objected to its broadcast without their permission and outside the context in which the footage was originally shot. The main points of the first complainant’s letter are as follows (the full text of all correspondence can be found in the Appendix, available in French only):

[translation]

This letter is to file a complaint against the TVA network for the use of a visual document filmed in 2001, which should have been destroyed, containing private information about me and providing false information.

[…]

The justification for this request is: In 2001, I participated with my spouse and her boss in the visual document (dealing with medical assistance dogs trained by the Fondation CORAZÕN of Quebec, School for Medical Assistance and Guide Dogs). This document was supposed to have been broadcast on the program Dans la mire on the TVA network. This document should have been destroyed due to the fact that it was refused at the last minute.

February 1, 2005 on the program Dans la mire between noon and 1:30 pm, on the TVA network, with the subject “People with Autism and Specialized Zootherapy”, the images in question were used without my permission. Since it was mentioned that autistic people can be treated with specialized zootherapy at the same time that the images were broadcast, they thus indicated that I was an autistic person being treated with zootherapy.

Which is not at all the case. These images and information were an attack on my integrity and psychological capacities.

The second complainant’s letter contained similar facts surrounding the circumstances of the broadcast and added the following points to her personal complaint:

[translation]

At the time of this appearance it was stated that autistic people can often be treated with specialized zootherapy services and they showed the images in which I appeared with my spouse and my boss, Mme [G.], Founder, Executive Director, Program Coordinator and Trainer of the Fondation CORAZÕN of Quebec and the little English cocker, Paco. They even thanked the Fondation MIRA for the document in question.

Many people saw this document. Some of these people were those with whom I deal regarding sponsorship of our foundation and this led to a lot of confusion and created a lot of problems for me: “How can an autistic person be responsible for sponsorship requests?” Without even counting the mockery and offensive comments that are regularly uttered at me since that time, which is very demoralizing. I already have to live with the conditions of being a visually-impaired person without enduring the mockery of others.

Yes, I am a blind person and I am also diabetic, BUT I AM NOT AUTISTIC! I am an autonomous person possessing all of my psychological faculties. (I say despite all the respect I owe to people with autism. This should not be considered an insult.)

TVA responded to the complainants on May 9, once they had resolved some problems with the logger tapes of the challenged program. The text of both letters was substantially the same, though tailored slightly to the concerns of each complainant:

[translation]

We have received your complaint of February 14, 2005 which was forwarded to us by the Canadian Broadcast Standards Council (CBSC) on March 1, 2005.

The content of your letter was also discussed with [the] chief editor of the program Dans la mire with whom you or one of your entourage spoke after the February 1, 2005 broadcast.

First, we understand that in 2001 your participation in the program Dans la mire, a live public affairs program, was cancelled at the last minute. We are sorry for that inconvenience which unfortunately is an inherent part of any program based on current events and broadcast live.

Moreover, you say that on February 1, 2005, during a program, the recorded images in which you agreed to participate in 2001 were broadcast as archival material without your consent being sought again. You are seen with your guide dog, in a report about zootherapy. You say that you were indirectly presented as someone suffering from autism, a condition dealt with in the program, while you are blind but not autistic

You have made two requests.

First, you have asked to have all the material filmed at the interview to which you consented in 2001. Unfortunately that material has been destroyed. With respect to the excerpts which were found and broadcast on February 1, they were destroyed from our archives after your call to Mr. [T.] since you wished that that material would not be reused despite your initial consent. Mr. [T.] has also apologized for the inconveniences caused although we do not agree that a consent was required.

Secondly, you have asked for a complete copy of the February 1, 2005 episode of Dans la mire as broadcast. That program was conserved and I have asked my assistant to forward you a copy, in order that you need not pay the usual costs required by TVA’s program research and reproduction services.

Respectfully, we believe that we respected all of the codes administered by the CBSC […].

The second complainant wrote to the CBSC on May 31, stating her dissatisfaction with TVA’s reply in the following terms:

[translation]

After reading that letter, I still feel that I was wronged, indeed, even insulted now. The letter and the copy of the tape did not provide any compensation. If you read TVA’s letter and you read my original letter that I sent you in April you will see many errors of analysis and interpretation that I feel are completely unjustified. I do not believe that my original letter was that incomprehensible.

In my original letter, I asserted that I am a visually-impaired person and also diabetic. In the images of the report, you see Paco, First Medical Assistance Dog for diabetic people and NOT A GUIDE DOG. Paco was not my guide dog. […].

Further, when the program was taped in 2001, my boss, my spouse and I were assured that all of the images taken during that filming were destroyed immediately following the taping seeing that the program would not air. That was why we were not able to have ANY copy or image of that tape. How is it that they kept the scenes in the archives even if they had consent at the time?

In addition, if you watch the tape, one of the main subjects is autism and the images featuring me were shown at exactly the same time that they were talking about that subject. It is evident that an assumption would be made that these scenes showed an autistic person. I am still suffering from the consequences of this broadcast.

They also asserted that I communicated with Mr. [T.] to request the destruction of the images from the February 1, 2005 program (despite the initial consent, WHAT CONSENT?), which I never did. The only communications made were with the CRTC and you to follow up.

What is also extremely insulting is when they state: “Mr. [T.] has also apologized for the inconveniences caused although we do not agree that a consent was required.” In the paragraph it is stated that Mr. [T.] offered his apologies to me. What apologies??? He has never communicated with me at all.

What is worse, as you can read in TVA’s letter, the February 1 images were supposedly destroyed as per my request as soon as I supposedly talked to Mr. [T.]; how is it then that they could send me a copy?

The insult of all insults, they wrote: “Respectfully, we believe that we respected all of the codes administered by the CBSC […].” THEY did not respect any of my rights in this case. I trust it is not necessary to mention the rights I have which were not respected.

THE DECISION

The Quebec Regional Panel examined the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Code of Ethics and the Radio Television News Directors Association (RTNDA) Code of (Journalistic) Ethics:

CAB Code of Ethics, Clause 5 – News

(1) It shall be the responsibility of broadcasters to ensure that news shall be represented with accuracy and without bias. Broadcasters shall satisfy themselves that the arrangements made for obtaining news ensure this result.

RTNDA Code of (Journalistic) Ethics, Article 1 – Accuracy

Broadcast journalists will inform the public in an accurate, comprehensive and fair manner about events and issues of importance.

RTNDA Code of (Journalistic) Ethics, Article 4 – Privacy

Broadcast journalists will respect the dignity, privacy and well-being of everyone with whom they deal, and will make every effort to ensure that news gathering and reporting does not unreasonably infringe privacy except when necessary in the public interest. Hidden audio and video recording devices should only be used when it is necessary to the credibility or accuracy of a story in the public interest.

The Quebec Panel finds that TVA breached Clause 5 of the CAB Code of Ethics and Article 1 of the RTNDA Code of (Journalistic) Ethics. It makes no determination with respect to Article 4 of the RTNDA Code of (Journalistic) Ethics.

The Broadcaster’s Dilemma

Television is, the CBSC Adjudicators understand, a visual medium. While panels such as that employed by TVA in this instance can be extremely informative and helpful, television broadcasters seek visual enhancements for their discussions. Sometimes these will be live (generally in the context of the news); at other times, the producer will seek library footage. In CKVR-TV re a News Report (Penned Hunt) (CBSC Decision 00/01-0761, June 7, 2002), the Ontario Regional Panel put this broadcaster dilemma in the following terms:

It must readily be acknowledged that, being a visual medium, television broadcasters will wish their news broadcasts to be supplemented by video footage. It must equally be acknowledged that they are not, on that account, at liberty to choose just any footage for that purpose. Factors that will assist in determining acceptability of such footage will include the extent of the identifiable images, on the one hand, and the justifiability of their use, on the other.

Such a dilemma notwithstanding, the broadcaster cannot avoid the obligation to be accurate. In the CKVR-TV decision, the issue related to the use of film (shot, as it happens, at the same time as the rest of the story) of penned deer to illustrate a story about a proposed deer hunt park. The neighbour of the hunt park owner complained to the CBSC, explaining that the deer in the footage were actually his deer and not the free-ranging deer in the forest that were to be part of the hunt park. As the Ontario Panel pointed out,

In the matter at hand, the filmed subjects are deer rather than people and the Panel considers that the likelihood of their identification by viewers in general is non-existent. Nor does the Panel consider that, as a herd, the animals will be identifiable by the general audience as belonging to the complainant. Furthermore, the broadcaster has done its best to avoid the filming and broadcast of any signage or markings which would facilitate that identification.

In the matter at hand, though, the filmed subjects were people, who could, consequently, be identified. Moreover, while one of the complainants readily acknowledged that she was sight-impaired, both complainants were decidedly not autistic. Using their images in the context of such a story could reasonably have led viewers to conclude that they were autistic. Referring again to the CKVR-TV decision, the Quebec Panel finds that the following observations by the Ontario Panel have full application to the present matter:

Television journalism tells stories primarily through visual images. The accurate juxtaposition of visuals and words in the television context are key to disseminating news in such a way as “to enable people to know what is happening, and to understand events so that they may form their own conclusions,” as required by the CAB Code of Ethics. In disseminating an image, a broadcaster must assume, unless it advises the audience otherwise, that that visual component is a part of the story it is telling. It is not justifiable for it to expect that, unless it advises the viewer that it is a part of the story, the viewer is not reasonably entitled to draw that conclusion. The Panel does not consider that the broadcaster was intending to mislead its audience. Nonetheless, while attempting to help its viewers, it has, in the view of the Panel, done them a disservice in its misrepresentation of the nature of the hunt park.

In conclusion, the Quebec Regional Panel, while sympathetic to the dilemma of the broadcaster in seeking to find appropriate images beyond the “talking heads”, concludes that TVA has reported this public affairs story inaccurately, and thus in breach of Clause 5 of the CAB Code of Ethics and Article 1 of the RTNDA Code of (Journalistic) Ethics.

The Privacy Issue

The Panel is at a distinct disadvantage. It has contradictory assertions regarding the communications between one of the complainants and the broadcaster regarding the purpose for the original taping of the complainant, its fate once the original broadcast did not occur as planned in 2001, and the entitlement to use the video segment in question in 2005. In the circumstances, and without any documentary evidence or agreed positions regarding the intended use of the footage, the Council has no way to assess the issue of consent. The Panel recognizes that the complainants had no reason to expect that the footage would be used in a context so far removed from their original (reasonably presumed) expectation. Moreover, one of the complainants added that, as a result of the use of that footage, she was “still suffering from the consequences of this broadcast.” Unfortunately, however, the Panel finds that it has insufficient information regarding the circumstances of the taping to make a determination regarding a violation of Article 4 of the RTNDA Code of (Journalistic) Ethics.

Broadcaster Responsiveness

In all CBSC decisions, the Adjudicating Panels assess the broadcaster’s responsiveness to the complainant(s). Broadcasters need not share the complainant’s view of the broadcast but it is expected that the station will provide a thoughtful, considerate reply. In this case, there appear to be conflicting stories between the complainants and the broadcaster regarding the issue of consent and a telephone conversation that the program editor had with a member of the complainants’ “entourage”. As it has explained in previous decisions, in most cases, the CBSC is only able to address concerns about on-air content; it is rarely in a position to comment on events that may have occurred prior to or following the challenged broadcast. The position of the Prairie Regional Panel in CFSK-TV (STV) re an episode of Friends (CBSC Decision 95/96-0159, December 16, 1997) is applicable here:

The Panel makes no judgment, however, with respect to the telephone conversation between the complainant and the station manager described in the complainant’s letter. The Council is not an evidence-gathering body and, in the absence of agreement as to the facts, has no means by which to assess what may have transpired between the broadcaster and the complainant.

In the matter at hand, the Quebec Regional Panel likewise makes no comment regarding any communications that may or may not have occurred following the 2001 taping of the footage or the 2005 broadcast of the footage. The only piece of broadcaster correspondence that it is in a position to examine is TVA’s written letters of May 9. With respect to those letters, the Panel finds that TVA reasonably offered its version of events and met its requirement of responsiveness.

ANNOUNCEMENT OF THE DECISION

TVA 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 Dans la mire was broadcast; 2) within the fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the statement to the complainants who filed the Ruling Requests; and 3) at that time, to provide the CBSC with that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by TVA.

The Canadian Broadcast Standards Council has found that TVA violated the News clause of the Canadian Association of Broadcasters’ Code of Ethics and the Accuracy clause of the Radio Television News Directors Association Code of Ethics in a broadcast of Dans la mire on February 1, 2005. By broadcasting footage that incorrectly implied that the individuals in the segment suffered from autism, TVA breached the provisions of the Codes of Ethics that require the accurate representation of news and issues of public importance.

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