CP24 re a news report about 4-20
and a panel discussion about the Ontario provincial election

ENGLISH-LANGUAGE PANEL
CBSC Decision 17/18-1438
2018 CBSC 16
October 18, 2018
S. Courtemanche (Chair), R. Brown, S. Crawford, R. Hutson, D. Kingsbury, T. Rajan, S. Sammut

THE FACTS

CP24 is a discretionary television service that provides news coverage throughout the day.  On April 20, 2018, beginning at 2:00 pm, there was coverage of a pro-marijuana rally taking place at Nathan Phillips Square in Toronto. Anchor Nathan Downer announced that CP24 reporter Nick Dixon was there live.  Dixon described the scene as the camera panned around the Square.  At 2:01 pm, a man in a black jacket and cowboy hat ran into the shot.  He put his arms up in the air and shouted, “Four-twenty!  Fuck her right [unintelligible]” and then the man walked out of the shot.  Dixon, in a sarcastic tone, said, “Thank you very much for that.  Uh, let’s move on here,” and then proceeded to interview a man who owns a website company serving the legal marijuana marketplace.

After the interview and a further description of the scene at the rally, Dixon said, “Also, gotta apologize to our viewers for the vulgarity right off the top there.  Uh, some people getting a little out of hand.  But nevertheless this is it, this is 4-20.  We are here at Nathan Phillips Square this afternoon and, uh, we’ll have the latest throughout the afternoon.  It’s back to you for now, Nathan.”  Downer then said, “It happens on live TV from time to time.”

Later during the broadcast, at 2:13 pm, there was a panel discussion about the upcoming Ontario provincial election, moderated by CP24 News Editor Stephanie Smyth.  The panellists were strategists from each of the major Ontario political parties: Michael Balagus from the New Democratic Party (NDP), David Herle from the Liberal Party (Liberal), and Michael Diamond from the Progressive Conservative Party (PC).

They discussed key election issues.  At one point around 2:21 pm, David Herle accused the PCs of being “shit-scared” of what their leader Doug Ford might say while on the campaign trail, so they were avoiding the media.  The representative from the PCs, Michael Diamond, disagreed.

A few moments later, the discussion turned to how the Liberals and PCs had levelled insults and allegations at each other.  The following exchange occurred:

Smyth: But how concerning is it? Let’s go back to the municipal election here in Toronto where Doug Ford, Rob Ford, rather, was elected on the gravy train.  It was slo- , a slogan that worked, right?  It was the moment.  It was caught up in a movement.  Voters were angry, wanted change.  This is similar.  Are you concerned by that?  And by, by Doug Ford standing up and saying the “six million dollar hydro man”, that stuff resonates or could very well resonate with voters.

[they all talk over each other for a second]

Herle:   Doug Ford is not, Doug Ford is not Rob Ford.  Rob Ford was a good politician.  People liked Rob Ford.  He was a popular guy.  He won the mayoralty.

Smyth:You don’t think people like Doug Ford?

Herle:   I don’t actually.

Smyth:Do you think they trust him more than Rob Ford?

Herle:   No.  I think people liked Rob Ford and I think people think Doug Ford’s a bit of a dick, to be honest.

Smyth:Oooh, language!

Diamond:         There’s, there’s a few things.

Smyth:Sorry, everyone.

After the panellists summarized what their party leaders would be doing in the coming weeks, Smythe concluded the segment:

Smyth:I thank you all, gentlemen, minus some salty language.

Herle:   Sorry about that.

Smyth:We will –

Diamond:         Five second delay next time?

Smyth:We will recon-, maybe, yes. We will reconvene again.  Have a good week and thanks again.

Later that same day, at 6:29 pm, anchor Ken Shaw reported that David Herle had publicly apologized for using the word “dick” to describe Doug Ford:

We have more on the name-calling in Ontario politics. Co-chair of the Ontario Liberal Party David Herle has put out a statement now after using an ugly term to the PC leader earlier.  He writes [words appear on screen beside photo of Doug Ford], “Doug Ford has a long history of using derogatory and insulting terms to refer to a wide range of people with whom he disagrees, including female journalists, parents of autistic children and many others.  No matter how commonplace such conduct might be for Mr. Ford, it is no justification to follow suit.  There is an important difference between naming behaviours and name-calling. Today, I used a term in reference to Mr. Ford that was inappropriate and I regret it.  I withdraw that remark and apologize for its use without qualification.”

(A fuller transcript of the broadcast is in Appendix A.)

The CBSC received a complaint about the broadcast on April 20. The complainant expressed his concern about the “swearing at the very top of the program at a 4-20 (marijuana) rally that was not censored and during a political segment a Liberal commentator called Doug Ford a ‘dick’.”  The broadcaster responded on May 16.  With respect to the coverage of the marijuana rally, the station’s Director of Production wrote,

Although I could not determine exactly what the man was yelling from a review of the video (and hopefully that was the case for most of our viewers), our reporter on scene confirms to me that the man shouted “F*** her right in the P****”.  This profanity was captured while we were reporting live and was certainly not expected. Accordingly, we regret any offence this may have caused you and believe such occurrences are very troubling in our society.

The Director of Production also characterized David Herle’s comment about Doug Ford as “completely unexpected”.  He further added,

This group of panelists has been on air with us previously and none of their behaviour has ever led us to be worried or concerned about what they would say.  We rely on the professionalism of our guests in these panel discussions to behave appropriately.  While we believe the panellist is entitled to his opinion and to express those of others, we regret that he used an inappropriate reference in this regard.  Furthermore, when this segment was repeated, CP24 ensured that the word in question was edited out.

The station also pointed out that Herle had apologized for his remarks. The complainant filed his Ruling Request on May 16.  He acknowledged that “live programming can be unpredictable at times”, but noted this was not the first time that CP24 had allowed swearing on air and suggested that CP24 should “consider using a delay during live programming or should issue disclaimers throughout its broadcasts (especially during the day) that obscene language could be aired”.

CP24 provided further information directly to the CBSC on June 5.  The broadcaster reiterated that the swearing during the pro-marijuana rally was difficult to discern and that it had reported on David Herle’s apology regarding use of the word “dick”.  It also pointed out that host Stephanie Smyth “immediately indicated her admonishment” on air and that, when the segment was repeated, the inappropriate word was edited out.

The broadcaster cited previous CBSC decisions regarding coarse language. CP24 acknowledged that “the CBSC has not ruled specifically on the use of the word, ‘dick’ [… but that] even in some cases where the f-word or a variant was used in a live journalistic context during daytime viewing, the CBSC has expressed concerns about ‘such sweeping limitations on the use of coarse language in a journalistic context’ and recognized the possibility of an evolution in the coarse language area.”  Moreover, “the reaction/disapproval of the journalists to the use of the inappropriate words was an important factor in their decision.”  CP24 also suggested “that community standards should also be considered, and that the one-time use of the word ‘dick’ which is seen today as a very mild derogatory expression frequently used in our society should not constitute a breach in the context of live news television.”  (The full text of all correspondence is in Appendix B.)

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.

Suggested language for suitable viewer advisories is outlined in Appendix A [of the code].  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.

Clause 6 – Full, Fair and Proper Presentation

It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of each broadcaster.  This principle shall apply to all radio and television programming, whether it relates to news, public affairs, magazine, talk, call-in, interview or other broadcasting formats in which news, opinion, comment or editorial may be expressed by broadcaster employees, their invited guests or callers.

The Panel Adjudicators read all of the correspondence and viewed a recording of the challenged broadcast.  The majority of the Panel concludes that there is no breach of any of the aforementioned code provisions.  Two adjudicators dissent on the matter of the word “dick” during the panel discussion when used to describe an identified individual.

The questions put to the Panel were:

Did the broadcaster violate Clause 10 by airing the f-word at 2:00 pm during live coverage of a news event?

Did the broadcaster violate Clause 11 for failing to air viewer advisories during the segment?

Does the word “dick” in and of itself constitute language “intended exclusively for adult audiences” and, therefore, should only be broadcast between 9:00 pm and 6:00 am, regardless of context?

Where the word “dick” does not constitute language “intended exclusively for adult audiences”, if used to describe an identified individual, does this breach Clause 6?

Did the broadcast of the language require viewer advisories under Clause 11?

The F-Word in Live Event Coverage and the Need for Viewer Advisories

The CBSC has consistently stated that the uncensored broadcast of the word “fuck” and its variations is not acceptable before the 9:00 pm Watershed period and that this also generally applies to live programming.[1]

However, the CBSC has recognized that live programming can pose challenges and that there are circumstances where the broadcast of the f-word and its variations would not constitute a breach of Clause 10.[2]

The Panel considers that in the present factual circumstances there was no breach of Clause 10.  Many factors came into play including:

Although the CBSC has long-applied the principle of ensuring a “safe haven” for audiences uncomfortable with the use of coarse or offensive language outside of later evening hours, it has always done so in a manner to strike the appropriate equilibrium between freedom of expression and respect for the values of those viewers concerned by such content.  In the previous decision where use of the f-word was not found to constitute a breach of Clause 10, the CBSC was particularly concerned regarding the application of sweeping limitations on the use of coarse or offensive language in a journalistic context.  Accordingly, the decision was limited to a live news broadcast.[4]

The Panel considers that similarly, the factual circumstances of this particular complaint justify a finding of no breach of Clause 10. But it wishes to remind broadcasters that certain viewers are genuinely disturbed or offended by such content and, therefore, they should employ, where reasonable, measures to filter out such language including:

Regarding the issue as to whether there is a breach of Clause 11, the Panel has determined that in the present circumstances, no viewer advisory was required.  In its previous decision involving the use of the f-word that was found not to contravene Clause 10, the Panel, in that factual circumstance, believed that “the broadcaster ought to have alerted the public to the possibility that coarse language could have been broadcast during the coverage.[5]

The live event was the 30th Annual Pride Parade which was a three-hour program. The broadcaster had issued viewer advisories regarding the possibility that the event could contain scenes of nudity at the beginning of the broadcast and coming out of every commercial break.  In addition, the reporters made every effort during the program to curtail all uses of the f-word by, for example, pulling the microphone away from the interviewee and immediately apologizing when coarse or offensive language was used.  It was clear from the broadcast that the reporters had anticipated the possibility of coarse or offensive language being used.  Given that such interventions were anticipated, the Panel considered that viewer advisories relating to this type of content should have been provided.

In the present case, the Panel has determined that it was not reasonably forseeable at this particular live event to anticipate being “mic-bombed” by a passerby.  To require the broadcaster to provide advisories in the present circumstance would effectively require advisories for all and any live events or, alternatively, it would require the broadcaster to make stereotypical judgments in their coverage of live events as to when viewer advisories are necessary.  Such stereotypical judgments would be contrary to the public interest.  The Panel does not wish to create a chilling effect on the provision of what is considered very important content, the coverage of live event local programming.

The broadcaster must reasonably expect unruly behaviour could happen before being required to issue advisories.  They cannot be expected to anticipate being sabotaged during a live public event especially in the context of a well-intentioned news segment.

Use of the Word “Dick” during the Political Panel Discussion and the Need for Viewer Advisories

The CBSC has never had to determine whether the use of the word “dick” in isolation is, regardless of context, “intended exclusively for adult audiences” and, therefore, can only be broadcast between 9:00 pm and 6:00 am.

Generally speaking, in terms of coarse or offensive language, the CBSC has stated that two words, in and of themselves, regardless of context, constitute language “intended exclusively for adults” and, therefore, can only be broadcast between 9:00 pm and 6 am.  These are the f-word and its variations and the word “cunt”.[6]

Other coarse or offensive language might constitute breaches of Clause 10 only if it is used as an insult, such as in the case of the use of the term “piece of shit”.[7]  If coarse or offensive language is used to insult an identified individual, the broadcast might also breach Clause 6 on that basis.[8]

The Panel considers that the word “dick” is now commonly used and is considered a mildly pejorative term.  It is more on par with the use of the word “bitch” which the CBSC has recognized is not polite language but does not cross the threshold of language “intended excIusively for adults” regardless of context.[9]

In this particular instance, it was not used in a sexual manner and, in accordance with the concept of “community standards”, it is certainly not a word that is considered on par with the f-word and its variations or the word “cunt”.  In fact, the panelist could have used a number of other equivalent terms such as “idiot” or “goofball”.

Although the Panel does recognize that it is an insulting term, as stated earlier, it does not believe that it is one that is “intended exclusively for adults” regardless of context and therefore, in this context, there was no breach of Clause 10.  In making its determination, the Panel considered two recent studies relating to the use of coarse or offensive language in broadcasting.  One such study was issued by Ofcom, the broadcast regulator in the United Kingdom, and the other was prepared by The Broadcasting Standards Authority(BSA) of New Zealand.[10] Both reports support the Panel’s conclusion regarding the use of the word “dick”.  Other factors were also noted in the Ofcom report which the Panel found helpful, such as the inclusion of immediate and sincere apologies that can serve to mitigate the broadcast of inappropriate language; and, audiences recognize that broadcasters have limited control during live programming.

CP24 offered an apology immediately following the segment and, as such, they did not let the insult slide.  A more formal apology on behalf of the political pundit was reported by the broadcaster as well.

A majority of the Panel also considered that there was no breach of Clause 6.  The political pundit using the word “dick” did not actually say that Doug Ford was a “dick” but rather that some people consider him to be “a bit of a dick”.  Moreover, the Panel does not want to discourage the spontaneous and unrehearsed nature of live talk shows.

Finally, the Panel does not consider that any viewer advisory was required. There was no breach in this circumstance and it was certainly not reasonably forseeable that, in the context of a political panel, this would occur.

Dissent of R. Brown and T. Rajan

Contrary to our Panel colleagues, we believe that the use of the word “dick” in this circumstance constituted a breach of Clause 6 because the term was used to insult a particular individual and it does not constitute “full, fair and proper presentation of news, opinion, comment and editorial”.

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, CP24 in its responses, met its obligation to respond adequately to the complaint.  The broadcaster having fulfilled its obligations of responsiveness, nothing further is required on this occasion.

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

[1]TSN re 2007 World Junior Hockey Championship (Interview) (CBSC Decision 06/07-0515, May 1, 2007); 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); CP24 re an interview with Mike Tyson (CBSC Decision 14/15-0071 & -0089, April 8, 2015); TSN 4 re CFL on TSN (Winnipeg at Hamilton)(CBSC Decision 15/16-1744, May 16, 2017); TSN 4 re CFL on TSN (Hamilton at Ottawa)(CBSC Decision 17/18-0396, April 25, 2018).

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

[3]The term “mic-bombed” is used to mean an act similar to “photo bombing” whereby an individual spoils a photograph by unexpectedly appearing in the camera’s field of view as the picture is taken.  In this circumstance, the footage caught someone who is not part of the broadcast unexpectedly in the background with the intention of being caught on camera and, as a result, is both seen and heard on air.

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

[5]Ibid.

[6]See, for example, BITE TV re The Conventioneers (CBSC Decision 10/11-0627, July 12, 2011).

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

[8]CJMF-FM re the program L’heure de vérité avec André Arthur (CBSC Decision 99/00-0240, August 29, 2000); CHOI-FM re Le monde parallèle de Jeff Fillion (CBSC Decision 02/03-0115, July 17, 2003); CILQ-FM re John Derringer’s “Tool of the Day” (CBSC Decision 02/03-1465, February 10, 2004); CJRC-AM re an interview by Daniel Séguin on L’Outaouais ce matin (CBSC Decision 03/04-2082 & 04/05-0023, April 4, 2005); CJMF-FM re comments made on an episode of Le trio de l’enfer (CBSC Decision 04/04-0761, October 24, 2005); CJMF-FM re an interview on Bouchard en parle (CBSC Decision 04/05-1852, February 3, 2006); CKAC-AM re an episode of Doc Mailloux (Adolescent Sexuality) (CBSC Decision 05/06-1104, June 30, 2006); CHRB-AM (AM 1140) re an episode of Freedom Radio Network (CBSC Decision 05/06-1959, January 7, 2007); TQS re an episode of L’Avocat et le diable (Court of Appeal decision) (CBSC Decision 05/06-1636, December 11, 2006); Sun News Network re The Source (Chiquita Banana) (CBSC Decision 11/12-0847 +, June 13, 2012); CFRB-AM re comments made on The City with Mayor Rob Ford (CBSC Decision 11/12-1881 & -1942, December 21, 2012).

[9]Prime re the film Smokey and the Bandit (CBSC Decision 05/06-1575, January 8, 2007); HGTV re Timber Kings (CBSC Decision 14/15-0784, October 21, 2015).

[10]See Ofcom, September 2016 report entitled Attitudes to potentially offensive language and gestures on TV and radio
(https://www.ofcom.org.uk/__data/assets/pdf_file/0022/91624/OfcomOffensiveLanguage.pdf, accessed September 24, 2018) and BSA, June 2018 report entitled Language That May Offend in Broadcasting
(https://bsa.govt.nz/images/Final_Report_-_Language_That_May_Offend_in_Broadcasting_2018.pdf, accessed September 24, 2018)

APPENDIX A

CP24 is a discretionary service that provides news coverage throughout the day. The segments at issue were broadcast on April 20, 2018 beginning at 2:00 pm.

Report about 4-20 Rally

14:00:44-14:03:56

Anchor Nathan Downer announces that the 4-20 pro-marijuana rally is underway at Toronto’s Nathan Phillips Square and reporter Nick Dixon is there.  Dixon describes the scene as the camera pans around the Square.

At 14:01:16, a man in a black jacket and cowboy hat runs into the shot. He puts his arms up in the air and shouts.  It is somewhat difficult to discern what he is saying, but the viewer can make out “Four-twenty!  Fuck her right [unintelligible]” and then the man walks out of the shot.  Dixon, in a sarcastic tone, says, “Thank you very much for that.  Uh, let’s move on here,” and then proceeds to interview a man who owns a website company serving the legal marijuana marketplace.

After the interview, Dixon describes the security presence at the site. At 14:03:41, he says, “Also, gotta apologize to our viewers for the vulgarity right off the top there.  Uh, some people getting a little out of hand. But nevertheless this is it, this is 4-20.  We are here at Nathan Phillips Square this afternoon and, uh, we’ll have the latest throughout the afternoon.  It’s back to you for now, Nathan.”  Downer says, “It happens on live TV from time to time.”

Panel Discussion about Ontario Election

14:13:47-14:28:47

At 14:13:47, there is a clip of Ontario PC Party leader Doug Ford making an announcement about investing in health care.  That is followed by a panel moderated by CP24 News Editor Stephanie Smyth. The panellists are strategists from each of the major Ontario political parties:  Michael Balagus from the NDP, David Herle from the Liberals, and Michael Diamond from the PC Party.

They discuss key election issues, such as increasing the number of long-term care spaces; proposals for childcare; and taxes for corporations.

At 14:21:41, the following exchange occurs:

Smyth: We were talking this morning about how Andrea Horwath spoke with the Ontario Nurses Association.  Uh, so did Premier Wynne.  Doug Ford in Sarnia today say, saying he loves the nurses, how important those front-line workers are.

Herle:   He loves the nurses. Nobody’s done more for nurses than Doug Ford, unless maybe Rob Ford.  [laughs]

Diamond:         Are you going to tweet that?

Herle:   Unless maybe Rob Ford.

Diamond:         Or are you going to make that up and tweet it also?

Smyth: But the thing is Doug Ford was absent at the, at the, uh, at the meeting.

Diamond:         [??] important for Doug Ford to meet voters.  And, you know, last week, he, he missed an event.  And he was at another one where he had a much larger crowd.  Doug Ford is getting these huge crowds everywhere he goes. Ontarians are very curious and they’re really enjoying what they’re seeing with him.  So we’re not going to change our strategy.  Uh, we’re running Doug Ford’s campaign.  We’re not running someone else’s campaign.

Herle:   And this is –

Diamond:         And he’s going to be meeting with a great variety of stakeholders over the next 45 days.

Herle:   Let’s just be, let’s just be clear about this, Michael.  Okay? You guys, you’re the only person on the campaign team that actually supported Doug Ford or likes Doug Ford.

Diamond:         Oh, not true at all!

Herle:   Your campaign –

Diamond:         That’s completely not true! Just like that tweet that you put out.

Herle:   Your campaign is so shit-scared of what Doug Ford might say.  You are going to the most extreme lengths to hide him.  [Diamond chuckles]  You don’t give media an itinerary.  You’re not going to have a media bus.  He doesn’t take media –

Diamond:         We are giving media an itinerary.  It’s just not true.

Herle:   He doesn’t take media, he doesn’t take media requests.

Diamond:         We’re doing interviews.

Herle:   No campaign in Canadian history has gone to these lengths to hide their leader –

Diamond:         That’s –

Herle:   – from the voting public.

Diamond:         – absolutely not true. I would argue Doug Ford’s the most accessible, uh, uh, leader that Canada’s ever seen.  People, everyone –

Smyth:Well, he, I text him all the time. He used to text me back, but he doesn’t text me anymore now.

Diamond:         The volume has gone up, but just be patient.  He’ll get back to you.  He gets back to everyone.

They then play a clip of a speech by Kathleen Wynne comparing Doug Ford to Donald Trump.  The discussion turns to how the Liberals and PCs have levelled insults and allegations at each other.

Smyth: But how concerning is it? Let’s go back to the municipal election here in Toronto where Doug Ford, Rob Ford, rather, was elected on the gravy train.  It was slo- , a slogan that worked, right?  It was the moment.  It was caught up in a movement.  Voters were angry, wanted change.  This is similar.  Are you concerned by that?  And by, by Doug Ford standing up and saying the “six-million dollar hydro man”, that stuff resonates or could very well resonate with voters.

[they all talk over each other for a second]

Herle:   Doug Ford is not, Doug Ford is not Rob Ford.  Rob Ford was a good politician.  People liked Rob Ford.  He was a popular guy.  He won the mayoralty.

Smyth: You don’t think people like Doug Ford?

Herle:   I don’t actually.

Smyth: Do you think they trust him more than Rob Ford?

Herle:   No.  I think people liked Rob Ford and I think people think Doug Ford’s a bit of a dick, to be honest.

Smyth:Oooh, language!

Diamond:         There’s, there’s a few things.

Smyth: Sorry, everyone.

Diamond:         So on the Trump comparison, the only person being negative, I mean, Doug Ford just laughed it off because this is, this is absolutely ridiculous.  Kathleen Wynne wants to run a campaign against somebody who’s not on the ballot.  She did this very successfully last time.  It was a good strategy when she ran against Stephen Harper instead of anyone wanting to be premier.  It worked for her last time, but you can only use the same trick so many times.  The gig’s up.

[The panellists summarize what their leaders will be doing in the coming weeks.]

Smyth: I thank you all, gentlemen, minus some salty language.

Herle:   Sorry about that.

Smyth: We will –

Diamond:         Five second delay next time?

Smyth: We will recon-, maybe, yes. We will reconvene again.  Have a good week and thanks again.

Report about David Herle’s Apology

18:29:37-18:30:21

Later that same day, at 6:29 pm, anchor Ken Shaw reports the following:

We have more on the name-calling in Ontario politics.  Co-chair of the Ontario Liberal Party David Herle has put out a statement now after using an ugly term to the PC leader earlier.  He writes [words appear on screen beside photo of Doug Ford], “Doug Ford has a long history of using derogatory and insulting terms to refer to a wide range of people with whom he disagrees, including female journalists, parents of autistic children and many others.  No matter how commonplace such conduct might be for Mr. Ford, it is no justification to follow suit.  There is an important difference between naming behaviours and name-calling.  Today, I used a term in reference to Mr. Ford that was inappropriate and I regret it. I withdraw that remark and apologize for its use without qualification.”

APPENDIX B

The Complaint

The CBSC received the following complaint via its webform on April 20, 2018:

Television or Radio Station:        CP24

Program Name:               News

Date of Program:             2018/04/20

Time of Program:            2pm-2:30pm

Specific Concern:             There was some swearing at the very top of the program at a 420 (marijuana rally) that was not censored and during a political segment a Liberal commentator called Doug Ford ‘a dick’.

Broadcaster Response

The broadcaster responded on May 16 with the following:

I am writing in response to your complaint to the Canadian Broadcast Standards Council (CBSC) dated April 20, 2018.

In your complaint you state, “There was some swearing at the very top of the program at a 420 (marijuana rally) that was not censored and during a political segment a Liberal commentator called Doug Ford ‘a dick’.”

I can confirm that at approximately 14:02 on April 20, 2018, our reporter was reporting live from a pro-marijuana rally at Nathan Phillips Square when a man walked into our shot and at a distance of about fifteen feet shouted something at our crew. Although I could not determine exactly what the man was yelling from a review of the video (and hopefully that was the case for most of our viewers), our reporter on scene confirms to me that the man shouted “F*** her right in the P****”.  This profanity was captured while we were reporting live and was certainly not expected.  Accordingly, we regret any offence this may have caused you and believe such occurrences are very troubling in our society.

Later that afternoon at approximately 14:15, CP24 hosted a panel of Ontario election campaign organizers to discuss the upcoming election.  During this panel discussion one of our panelists said “I think people liked Rob Ford, and I think people think Doug Ford is a bit of a dick to be honest”.  Obviously these comments were completely unexpected.

This group of panelists has been on air with us previously and none of their behavior has ever led us to be worried or concerned about what they would say.  We rely on the professionalism of our guests in these panel discussions to behave appropriately.  While we believe the panellist is entitled to his opinion and to express those of others, we regret that he used an inappropriate reference in this regard.  Furthermore, when this segment was repeated, CP24 ensured that the word in question was edited out.

Please be aware that Mr. Herle issued an apology for his remarks about Doug Ford including the following “Today, I used a term in reference to Mr. Ford that was inappropriate and I regret it. I withdraw that remark and apologize for its use without qualification.”

I hope this explanation goes some way in addressing your concerns and I thank you for taking the time to write with your concerns.

CP24 is a member in good standing of the CBSC and complies with the Codes and guidelines administered by the CBSC.

Additional Correspondence

The complainant submitted his Ruling Request on May 16:

While I appreciate that live programming can be unpredictable at times, this is not the first time that CP24 has had issues with swearing on the air.  For instance, the CBSC made a ruling in regards to Mike Tyson on the air. Clearly CP24 has a history of this. In regards to the political interview in which Doug Ford was called a ‘dick’, if I recall, the interview did go on for quite some time after the comment was made.

CP24 should consider using a delay during live programming or should issue disclaimers throughout its broadcasts (especially during the day) that obscene language could be aired.

I would appreciate the CBSC rule whether or not CP24 was in violation of the Code!

At the request of the CBSC, CP24 submitted additional information on June 5:

Further to your request on May 28th for additional information, please be advised with respect to the Marijuana rally complaint, as noted in our earlier response to the complainant, when I viewed the broadcast in question, I was unable to determine what the man was yelling and needed to reach out to the reporter on scene to determine what was actually said.  After your request for additional information, I played the video for some staff internally and asked them the same question.  They in turn could not determine what was said either.

Regarding the same complaint involving the use of the word “dick” by a panellist in the context of saying “a bit of a dick”, please be advised that the apology by Mr. Herle was aired by CTV at 18:29 p.m. (and simulcast on CP24) on April 20th and was reported again on CP24 that night at 21:30, 22:00, 22:30, 23:00 and the next morning on CP24 breakfast.

A copy of the broadcast is attached for your information.

While we understand that the CBSC has not ruled specifically on the use of the particular word, “dick”, there have been many decisions where the CBSC has ruled on the f-word which is considered the most offensive word that at least in English language television, should not be aired during daytime television and not before the watershed hour.  However, even in some cases where the f-word or a variant was used in a live journalistic context during daytime viewing, the CBSC has expressed concerns about “such sweeping limitations on the use of coarse language in a journalistic context” and recognized the possibility of an evolution in the coarse language area.

In the 2011 CP24 decision regarding the live broadcast of the 30th Annual Gay Pride Parade, the Panel considered that “a confluence of circumstances may render the use of extremely coarse language justifiable.”  In that case, the f-word was used in a live context on 3 separate occasions, and CP24 was not found in breach of Clause 10(a) of the CAB Code of Ethics with regards to such use. The “contextual basis for the usage” and the “journalistic nature” of the program were two of the factors highlighted in the decision.  In addition, the CBSC found that the reaction/disapproval of the journalists to the use of the inappropriate words was an important factor in their decision. Likewise, in this case, Stephanie Smyth immediately indicated her admonishment by saying on air – “Ooh language…, Sorry everyone.”  In addition, the panellist who made the remark also later apologized and this apology was repeatedly broadcast on CP24.

The panel in the aforementioned Gay Parade decision also indicated that “the inclusion of such language in a similar set of journalistically contextual circumstances could be reasonably understood as justifiable and thus excusable on future occasions.”  We believe that the same reasoning should definitely preclude a finding of any breach in this case with like circumstances, even more so, given that the term “dick” is considerably less offensive than the f-word.

In terms of repeats, in the current situation, when the broadcast was repeated (no longer in a live situation), the inappropriate word was edited out.  In the earlier CP24 decision, CP24 was found in breach for failing to completely excise one of the offending f-words in a repeat situation. CP24 in the earlier case was also found in breach for failing to include a viewer advisory for coarse language in the live context, because the CBSC believed that the broadcaster could have anticipated the use of coarse language at the parade.  However, in this case, such use was definitely not expected.

In the CP24 Gay Parade decision, a reference was made to an earlier TSN decision, where the panel anticipated “that the public’s standards relating to content issues are constantly evolving and that such evolution is likely to affect the coarse language area as much, if not more, than any other.”  The Quebec Regional Panel in CHOM-FM (April 4, 2005) also cited in the decision, anticipated such evolution as follows: “Formerly unacceptable language gradually but invariably insinuates itself into more common usage and a review of the old and new practice is merited from time to time.”  Obviously this has become the case, even with the f-word and its derivatives, as the CBSC has recently found that the f-word is acceptable during daytime hours in certain cases in the French language context.

Likewise, we believe that community standards should also be considered, and that the one-time use of the word “dick” which is seen today as a very mild derogatory expression frequently used in our society should not constitute a breach in the context of live news television.

Also, in a much earlier CBSC decision in 2003 regarding a documentary about feminism aired before the watershed hour, where an interviewee used the f-word to express her views on the Catholic Church, the CBSC found no breach.  The factors considered included the unscripted nature of the documentary, as well as “the non gratuitous use of coarse language, its infrequent presence, and the lack of appeal to a younger audience.”  These additional factors also apply in this case.

And finally, in a non news context, in connection with the adult animated show, South Park that was aired during the day, and my apologies in advance for the use of language that may be seen as offensive by some, the CBSC indicated in a 2010 decision, that certain words that may be offensive to some viewers are acceptable for airing at any time during the day, “taking context, frequency and broad social norms into consideration.”  Those acceptable words included “crap”, “ass” “bitch” and others. While the CBSC found that other terms used in the broadcast (especially when used repeatedly) including “suck my balls” (5x), “stupid assholes” (2x), “dumb ass and asshole” (4x) and “dick” used once, were a problem on a cumulative basis, the panel did go on to note that it might have sanctioned one or a very small number of instances of some of the foregoing terms. In our opinion, the one time use of the word “dick” would likely have been seen as acceptable, if the panel had been more specific or at least 8 years later that should be the case.

In conclusion, if the f-word is acceptable in the context of a “live news broadcast”, then surely a much less offensive reference like “a bit of a dick” should equally be excusable. As well, if other offensive words can be acceptable during day time viewing in a non-live news context as noted in the South Park decision, then surely the one time use of a minor disparaging term like “dick” should be acceptable in a live news context. Hoping this additional information is of assistance.