WTN re Sunday Night Sex Show

NATIONAL SPECIALTY SERVICES PANEL
(CBSC Decision 99/00-0672)
R. Cohen (Chair), P. O'Neill (Vice-Chair), S. Crawford, M. Hogarth,E. Holmes, H. Pawley, S. Teicher

THE FACTS

On July 2, 2000, the program Sunday Night Sex Show was broadcast by WTN at 8:00p.m. (PDT) in British Columbia. (It should be noted that WTN, which is situated inWinnipeg, broadcasts to its subscribers throughout the country via a single feed out ofToronto.) The program, a call-in show on which the host, Sue Johanson, answers questionsand gives advice on matters relating to human sexuality, was preceded by the followingviewer advisory in both oral and on-screen form: “This program contains sexuallyexplicit dialogue. Viewer discretion is advised.” In addition, the show’s hostmade the following statement at the beginning of the episode:

Welcome to the Sunday Night Sex Show. I am Sue Johanson and weare talking sex. And if you are a parent, you’ve got to talk sex. In 1997, 38% of15-year old girls and 45% of 15-year old boys had sex. And condom use was erratic at best.The focus of the Sunday Night Sex Show is to know what you’re doing, thinahead, plan ahead and never let sex just happen. We try to answer your questions about sexand love. We review new books and sex toys and we update you on all new research. Solet’s start with you. Got a question? Got a concern? Give me a call.

There was another advisory following the second commercial break but no other vieweradvisories following the first, third and fourth commercial breaks.

On the challenged episode the host replied to calls from viewers about the followingissues, among others: how to talk dirty to your male partner (Liz), how to give yourpartner multiple orgasms (Melissa), possible causes for a partner’s impotence(Catherine), potential sexual side effects of steroid use (Rico), the effect of having athreesome on future relationships (Melanie), the effects of sex underwater (Charlotte), aproduct evaluation of a vibrator by Sue herself (with an example present, although not insexual use), problems with under- and over-lubrication (Anna and Natalie), whether findingthe A-spot meant that the caller was bi-sexual (Darren), and Sue’s review of a bookon sexual positions (without showing actual positions).

The program prompted a viewer to communicate his concerns two days later via theCBSC’s web site complaint form, on which he stated, in part: “I feel that 8:00in the evening is too early for a show which displays sex toys, vibrators, advice aboutsex lubricants, diagrams of sexual positions and homosexual sex acts. I do not object tothe show, only the hour at which we get it here.” The full text of this complaint andthe broadcaster’s response are provided in the Appendixto this decision. The President of WTN replied on July 31 in the following terms:

WTN broadcasts programs that offer different points of view and balanced coverage on awide range of topics. As a network, we make it clear to our viewers when a program hasmature subject matter. In the case of the Sunday Night Sex Show, each episode carries thisadvisory: “This program contains sexually explicit dialogue. Viewer discretion isadvised.” WTN stands by the content of this program and believes that the informationconveyed is extremely important, particularly within today’s potentially dangeroussexual environment.

WTN’s President also noted the availability of cable products permitting moreparental control over accessibility to channels and services.

We recognize that in this hectic environment it is not possible tocontrol every minute of everyday, let alone supervise and monitor the whirlwind lives ofour families. In response to this need, the cable industry has developed and makesavailable a wide range of consumer products to assist us in managing those things mostimportant to the way we choose to live our lives. These products simply remove theopportunity and offer a sense of security in limiting what our children can access. Yourcable carrier is equipped with information on these products or if you wish, WTN willforward you extensive product information.

The viewer was unsatisfied with this response, and sent the following letter on August3:

I received your letter dated July 31 today. In it you failed to answerthe only questions I posed in my original letter. […] So here they are again:

1. Why do you think Sunday Night Sex Show should air at 8:00 pm PDT? 2. Do you consider this an appropriate time? If so, why? 3. Does WTN consider certain timeslots inappropriate for Sunday Night Sex Show? If so, what is the earliest in the evening you would show SNSS [sic] in the time-zone it originates in

THE DECISION

The CBSCs National Specialty ServicesPanel considered the complaint under the Canadian Association of Broadcasters’ (CAB)Sex-Role Portrayal Code and Violence Code. The relevant provisions of thoseCodes read as follows:

Sex-Role Portrayal Code, Article 4 (Exploitation)

Television and radio programming shall refrain from the exploitation ofwomen, men and children. Negative or degrading comments on the role and nature of women,men or children in society shall be avoided. Modes of dress, camera focus on areas of thebody and similar modes of portrayal should not be degrading to either sex. Thesexualization of children through dress or behaviour is not acceptable.

Guidance: “Sex-ploitation” through dress is one area in which the sexes havetraditionally differed, with more women portrayed in scant clothing and alluring postures.

CAB Violence Code, Article 3.1.1 (Scheduling)

Programming which contains scenes of violence intended for adultaudiences shall not be telecast before the late evening viewing period, defined as 9 pm to6 am.

CAB Violence Code, Article 5.1 (Viewer Advisories)

To assist consumers in making their viewing choices, broadcasters shallprovide a viewer advisory, at the beginning of, and during the first hour of programmingtelecast in late evening hours which contains scenes of violence intended for adultaudiences.

The National Panel Adjudicators viewed a tape of the program in question and reviewedall of the correspondence. For the reasons explained below, the Panel finds that theprogram was aired appropriately in terms of the scheduling requirements of Article 3 ofthe Violence Code; however, it equally concludes that the broadcaster did notinclude sufficient viewer advisories as anticipated in accordance with the requirements ofArticle 5.1 of that Code.

The Applicability of the Watershed Requirement to All Types of Adult Programming

While it is not necessary for this Panel to dwell on this matter since it is theestablished policy of the Canadian Broadcast Standards Council for several years now, thePanel considers that a resumé of these principles may be valuable in the first of thedecisions of the National Specialty Services Panel on this subject.

Although the terms of the CAB Violence Code are limited to programmingcontaining “scenes of violence intended for adult audiences [emphasisadded]”, it almost instantly since the introduction of the Violence Code onJanuary 1, 1994 became the de facto policy of the broadcasters that allkinds of programming intended for adult audiences should be subject to the Watershedrequirement limiting the availability of such adult-oriented be limited to the post-9 p.m.hour. It was, in other words, clear from the start that Canada’s private broadcasterswere sufficiently concerned about their audiences that the benefit of such caution forchildren and families ought to be reflected in their broadcasting choices. Growing out ofthis pragmatic approach to the broadcasters’ view of the Watershed, the CBSCgradually drew the conclusion that its extension from scenes of violence to scenes ofsexuality and other equivalent matters was both reasonable and desirable.

It began with the decision of the Ontario Regional Panel in CITY-TV re Ed the Sock(CBSC Decision 94/95-0100, August 23, 1995), in which that Panel observed, “Despitethe establishment of the watershed for that purpose, the Council has reason tobelieve that broadcasters regularly consider this hour as a rough threshold for othertypes of adult programming.” In CFMT-TV re an Episode of “The Simpsons”(CBSC Decision 94/95-0082, August 18, 1995), that same Panel stated:

Private broadcasters have voluntarily tended to extend thisprinciple to all programming containing any material which they believe is intended foradult audiences, even if not of a violent nature.

Then, in TQS re the movie L’inconnu (Never Talk to Strangers) (CBSCDecision 98/99-0176, June 23, 1999), the Quebec Regional Panel took the step offormalizing the extension of the Watershed to non-violent programming. It concluded:

The Council also considers that some of the erotic scenes, in particularthe very first sex scene which depicts “rough” lovemaking, come within thepurview of what would generally be considered as material “intended for adultaudiences”. … Having determined that the movie contained scenes of violence and sexintended for adult audiences, the Council must conclude that the movie should nothave been broadcast in a pre-watershed time period. Accordingly, the Council concludesthat the broadcaster is in violation of Clause 3.1 of the Violence Code whichstates that “programming which contains scenes of violence intended for adultaudiences shall not be telecast before the late evening viewing period, defined as 9 pm to6 am.”

More recently, in TQS re an episode of the program Faut le voir pour le croire(CBSC Decision 99/00-0460, August 29, 2000), the Quebec Panel ruled:

In the view of the Council, the sexual activity portrayed in this casewas clearly of a nature intended for adult audiences. The practice of cunnilingus, thelove-making in the clandestine circumstances of a parking garage on the hood of a car, thesexual interlude in an elevator, these are all activities which may not be problematic inthe context of adult audiences but are entirely inappropriate, as the complainant states,for children. The showing of this episode of Faut le voir pour le croire at apre-Watershed hour is clearly in breach of the Code.

In CTV re W-Five (Swingers) (CBSC Decision 99/00-0347, February 14, 2001), theAtlantic Regional Panel concluded that the segment on swinging in Canada as a lifestyle,showing both genitalia and a sexual context for these, constituted programming intendedfor adult audiences, requiring post-Watershed broadcast. As that Panel explained:

It remains for the Atlantic Regional Panel to determine whether thesubject matter is intended for adults. It is true that the program host stated at thestart of the program and again halfway through it that is was. That would not alone bedeterminative of the issue; however, in consideration of all of the elements of thesegment, the Panel does not consider that it is possible for it to conclude otherwise.

[T]he bare breasts and buttocks were displayed precisely because they were related tosexual activity. In fact, the discussion of that activity by third parties and by the veryparticipants made it clear that this link was intended. The scenes of groping on the dancefloor, the foreplay in the hot tub, the preliminary retirement to bed all make it clear toany viewer that what nakedness is shown is in a sexual context. The Council does notconsider that it is necessary that the purpose of the show’s producer is totitillate. It suffices that the link between nudity and sexual activity is sufficientlyestablished.

In this regard, it should be noted that the news and public affairs orientation of thatshow, a factor also relevant to the present decision, was also discussed there. The Paneldealt with it in the following terms:

In this connection, it should be noted that the fact that theprogramming was of the nature of news and public affairs does not rescue it from itsorientation. While the Panel has no quarrel with the importance of broadcasters treatingmatters of public interest even when they may have an erotic component, the issue iswhether they are oriented exclusively toward adults.

With respect to the present matter, while SueJohanson’s explanations are positive, useful, focussed and helpful, and notsalacious, gratuitous, exploitative or even titillating, the foregoing principle leaves nodoubt that here, too, the show is unquestionably directed toward adults. While the SundayNight Sex Show is not graphic, it does include sexually explicit dialogue andadult-oriented explanatory discussion.

The Sex-Role Portrayal Issues

Nothing is easier for the Panel to deal with than the sex-role portrayal issuesrepresented in this programming. Simply put, it is difficult for the Panel to imagine amore sex-neutral approach to such a program than is presented by the host. She deals withthe calls as presented by her producer, treats each subject with the same impartial airand could not be described as other than impeccable in her gender-neutrality.

The Scheduling Issue

While straightforward on one level, the scheduling issue is ultimately far more complexin the geographically huge Canadian context. The provisions in the Violence Code,which have been extended to be applicable to all forms of adult-oriented programming, areabsolutely clear. On the one hand, programming intended for adult audiences must be shownpost-Watershed. On the other hand, an exception is provided for signals originating in atime zone other than that in which it is received pre-Watershed. In such a case,the Code provides that the broadcaster is to be judged by the respect for the Watershedshown in the time zone in which the signal originates.

The complainant has, with justifiable concern, raised the question of theappropriateness of the broadcast of this show in his time zone at what is, from hisperspective, a pre-Watershed hour. If, the Panel presumes he asks, such a program isdefined as unsuitable in one part of the country, how can it be suitable in anotherpart of the same country?

While the Panel shares his concern, it also understands the conundrum presented by thevast size of Canada. Given the declared goal of the Broadcasting Act to provideprogramming which will be “varied and comprehensive, providing a balance ofinformation, enlightenment and entertainment for men, women and children of all ages,interests and tastes,” it must be recognized that this task is to be achieved across sixtime zones with a relatively thinly spread population base. Since most of the specialtyservices have a single feed for the entire country (some, but not many, have two feeds),it necessarily results that only some parts of the country can behappy all of the time in terms of the issue of the hour of broadcast of adult programming.Compromise, balance and fairness are essential components of the solution. An adultprogram which just respects the Watershed in St. John’s will be on atdinnertime in Toronto and during pre-dinner after school hours in Calgary and Vancouver.One which just respects the Watershed in Vancouver will be on after people havegone to bed in Toronto, Halifax and St. John’s. One which just respects the Watershedin Toronto finds people awake in the Atlantic Provinces but at dinner in Edmonton andVictoria.

In the view of the National Panel, what the broadcaster has chosen to do in this caseis to balance all the time zones, as well as anyone could reasonably expect. Rather than justrespect the Toronto time zone (and one cannot lose sight of the economic fact that morethan 50% of the Canadian population resides in that time zone), WTN has stretchedits market by airing the Sunday Night Sex Show at 11 p.m. EST, thusremaining post-Watershed in nine of the ten Provinces, albeit barely viewable time-wise inthe Atlantic Region. By choosing that hour for its broadcast of the challenged show, ithas also placed itself in a post-dinner environment in the one time zone in thecountry where it is still pre-Watershed, namely, British Columbia, thus providing aneasier opportunity for parents to regulate family viewing than in, say, a 6:00 or 7:00p.m. local time slot.

In other words, the National Specialty Service Panel does not consider that thebroadcaster could have made more sensitive choices regarding the nation as a whole and,indeed, the various time zones within the country, bearing in mind the needs andentitlements of viewers from east coast to west coast. The broadcaster also providedinformation to viewers in the form of advisories which would enable those who did not wishthis show to be a part of their viewing choices to avoid it. Nonetheless, the Panel doesrecognize the seriousness of the complainant’s concern. It does not, however, appearto the Panel that the Canadian broadcasting system can offer a more manageable and viablealternative than that provided by this broadcaster on this occasion. By their nature,specialty services do not provide the time zone options of national conventionaltelevision networks. Consequently, some additional parental surveillance component isrequired for families which wish to limit certain more mature viewing options. The Panelrecognizes that this constitutes a price for those families but considers it a fair pricein return for the immense value of the national programming opportunities for the Canadianpublic. Moreover, there are currently technical forms of assistance available (which willsoon be more widely accessible) which enable parental viewing decisions to be stilleasier.

Viewer Advisories All of the foregoing being said, the scheduling issue is fundamentally related to theadvice given to potential viewers regarding content. Even after the Watershed, whichitself serves as a form of generalized advice to viewers that programs airing after thathour may contain material intended for adult audiences, viewers are entitled toknow, both for themselves and their children, what type of content may be included in ashow which could be objectionable to them. The advisories provide more pertinent detailsregarding the type of material which may be present in the programming about to be, or inthe process of being, screened which will enable a viewer, even one tuning in after thestart of the show, to evaluate the appropriateness of the content for his or her tastes.

It is for this reason that advisories are called for by the Violence Code“at the beginning of, and during the first hour of programming which contains scenes… intended for adult audiences.” As the Quebec Regional Panel stated in TQS rethe movie L’inconnu (Never Talk to Strangers) (CBSC Decision 98/99-0176, June 23,1999), “The Council does not consider that the one-time scroll of the vieweradvisory meets the requirements of providing viewers advisories duringprogramming.” In CTV re Poltergeist – The Legacy (CBSC Decisions 96/97-0017and 96/97-0030, May 8, 1997), the Ontario Regional Panel had to evaluate a situation inwhich the two-hour pilot contained advisories at the beginning of, and during the secondhour, but not otherwise during the first hour. The Panel found a breach.

While the Council notes that the majority of the violent scenes wereconcentrated in the second hour of the program and also notes that viewer advisories wereprovided for these upcoming scenes, the Council finds that the wording of subsection 5.1of the Violence Code is unequivocal: “To assist consumers in making theirviewing choices, broadcasters shall provide a viewer advisory, at the beginning of, andduring the first hour of programming telecast in late evening hours which containsscenes of violence intended for adult audiences.” [emphasis added]

The rationale underlying the requirement of viewer advisories is foundin the background section of the Code. Therein it is stated that “… creativefreedom carries with it the responsibility of ensuring … that viewers have adequateinformation about program content to make informed viewing choices based on their personaltastes and standards.” The repetition of viewer advisories in the first hour servesas a second chance for viewers to receive important information concerning the programthey are considering watching. The Code takes into account that many viewers make theirviewing choices in the first few minutes of a program, which at times leads viewers tomiss an initial viewer advisory. The Council is of the view that CTV’s approach toviewer advisories in this case, i.e. other than the initial advisory, providing them onlyin the second hour of the program, is unfair to viewers, especially parents who screenprograms for their children.

Applying these principles to the matter at hand, the Panel considers it important toemphasize the informative value to viewers of advisories coming out of everycommercial break. It is not reasonable to expect that viewers who may be channel-surfingor simply turning on their television sets ten or fifteen or more minutes into a showshould be deprived of such important viewing information. This is the moreso true when thebroadcaster knows that a program containing adult content will be shown on apre-Watershed basis in some parts of the country. In the matter at hand, the broadcasterinserted viewer advisories at the beginning of the program and after the second commercialbreak. There were none after the first, third or fourth commercial breaks. In thisrespect, despite the care which was taken in the scheduling of the program, the absence ofthe required advisories during the entire first hour of the show constitutes a breach ofthe Code.

Broadcaster Responsiveness

In addition to assessing the relevance of the Codes to the complaint, the CBSC alwaysassesses the responsiveness of the broadcaster to the substance of the complaint.From the complaint’s subsequent correspondence, it is clear that he was dissatisfiedthat the broadcaster did not respond to his concerns. That being said, the Panel is awareof the care and sensitivity which were manifest in the broadcaster’s attempt toexplain the options which were available to the complainant to assist in his control overcontent. The Panel is equally aware that there was little further explanation which couldhave been provided regarding the scheduling issue with which the broadcaster was in fullcompliance. There is nothing more which could reasonably have been expected of thebroadcaster.

Content of Broadcaster Announcement of the Decision

WTN is required to: 1) announce this decision, in the following terms, once duringprime time within three days following the release of this decision and once within sevendays following the release of this decision during the course of the Sunday Night SexShow; 2) within the fourteen days following the broadcast of the announcements, toprovide written confirmation of the airing of the statement to the complainant who filedthe Ruling Request; and 3) to provide the CBSC with that written confirmation and with aircheck copies of the broadcasts of the two announcements.

The Canadian Broadcast Standards Council has found that WTN has breached therequirement concerning the use of viewer advisories in the industry’s ViolenceCode. While the Council found that the Sunday Night Sex Show, which aired onJuly 2, 2000, was broadcast at the proper hour, it should have contained viewer advisoriesfollowing each of the commercial breaks during the first hour of the show advisingaudiences of its sexually explicit content.

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