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THE FACTS

TSN 4 broadcast a Canadian Football League (CFL) game between the Winnipeg Blue Bombers and Hamilton Tiger-Cats during its CFL ON TSN broadcast of July 7, 2016 beginning at 7:00 pm Eastern Time. Microphones on or near the field picked up comments from the players, some of which included coarse language.

For example, at one point a group of players were on the sidelines looking at a tablet computer. One player was heard saying the word “fuckin’”. The announcer then said “Apologize for that live mic down there, if you’re offended by that. Live TV.” Later in the game a player was heard yelling “Hey man, call the fucking holding, man!” and another saying “Give me some fucking water!” The announcer made no comment after those two instances.

There were no advisories at any point during the broadcast.

The CBSC received a complaint dated July 8. The viewer identified three instances of coarse language that he had heard during the broadcast. He felt this language was inappropriate during this type of broadcast and wrote that the producer was showing “blatant disregard for decency and respect of the TV audience.” TSN replied to him on July 27, stating that “in no way does TSN condone the usage of profanity during its coverage of live events, [but] it remains impossible to anticipate that a player would use such profanity when standing adjacent to a live microphone. Consequently, our production team cannot immediately censor the content of these comments, as they are made during live television broadcasts.” In addition, TSN stated that they have reviewed the situation with the production team and the sports franchises, and made it clear that this type of language should be avoided. The complainant did not find this response satisfactory and requested a CBSC ruling. He suggested that TSN did not indicate how it would alter its broadcast to prevent this from happening again and did not even acknowledge that its own announcer felt the need to apologize. He also questioned whether the station truly “cannot” censor or simply will not do so. (The full text of all correspondence can be found in the Appendix.)

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

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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.

The Panel Adjudicators read all of the correspondence and viewed a recording of the challenged broadcast. The Panel concludes that TSN 4 is in violation of both the aforementioned clauses for broadcasting coarse language in a program beginning before 9:00 pm and for failing to provide any viewer advisories.

Coarse Language during Live Events

At the outset, the Panel observes that much of the coarse language picked up by live microphones in the broadcast was difficult to hear. Further they acknowledge that in one instance, an announcer immediately apologized for the language.

In addition, the Panel recognizes that broadcasters are always striving to improve the viewer experience. In 2016, new methods have evolved to allow broadcasters to bring viewers closer than ever to the action in sports broadcasts with the use of a variety of technologies including on-field microphones. Such advances clearly add value for viewers, but unfortunately have the unintended result that viewers may occasionally be exposed to coarse language.

The CBSC has maintained a policy regarding the broadcast of the f-word on television and has determined it to be unacceptable outside of the Watershed period (defined as 9:00 pm to 6:00 am).[1]

The rules that are in place were set by broadcasters to create a safe haven within which viewers are entitled to expect programming that does not contain “adult” content including very coarse language and that is preceded by an advisory where content is of a more mature nature. There is clearly a disconnect between the rules as they currently exist, and the coarse language that was picked up by live mics during the broadcast in question.

The Panel adopts the following as set out in CP24 re 30^th Annual Pride Parade:

[The] Panel sees no reason to question the long-applied principle of ensuring a “safe haven” for audiences uncomfortable with the use of coarse or offensive language on broadcasts outside of later evening hours. It considers that the policy relating to the broadcast of such language applied by the CBSC strikes an appropriate equilibrium between freedom of expression and respect for the values of those viewers (or listeners) concerned by such content.[2]

However, in some recent decisions, where the CBSC has been faced with live events that veered unexpectedly into content that would normally require a post-9:00 pm scheduling, the rules have been slightly and narrowly modified. In Pride Parade, there were three instances of the f-word in a 2:00 pm live broadcast of a parade. In each case the reporter pulled the microphone away and commented that the language was inappropriate. In that case the Panel found no breach noting that it was a live broadcast, that the language was unexpected, that reporters had asked interviewees to be careful with language, that the coarse language was infrequent and that reporters immediately disavowed it.

In CP24 re an interview with Mike Tyson, an afternoon live interview with a famous boxer suddenly and unexpectedly saw the boxer begin repeatedly to use coarse language. Although the broadcast was found in breach of Clause 10 of the CAB Code of Ethics, the Panel likely would not have found a breach had the interview been ended after the first instance. The Panel further found that there was no way to anticipate the coarse language and thus no advisory was required.[3]

In the broadcast in question, the Panel acknowledges that, similar to the above noted decisions, the event was live. However, it differed significantly in that the language could and should have been anticipated, there appears to have been no attempt to discourage such language, and there were not consistent acknowledgments and repudiations of the language by hosts or other announcers. The Panel concludes that TSN 4 is in violation of Clause 10 for broadcasting coarse language in a program beginning before 9:00 pm and Clause 11 for failing to provide any viewer advisories.

The Panel considers that it might be possible to evolve the approach taken by the CBSC to ensure that viewers have access to the best calibre content, while protecting those viewers who wish to avoid such language. Because of the unique nature of the live sports broadcast, the Panel considers that advisories are likely not possible after each commercial break. Further, the Panel recognizes that live sports are not generally considered by most people to be adults-only programming requiring advisories. However, given the goal of “ensuring a ‘safe haven’ for audiences uncomfortable with the use of coarse or offensive language” some efforts need to be made to reconcile the potential for adult content with the current rules.

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The Panel considers that some steps might, in future, mitigate a similar breach. While any such future broadcast would of course have to be considered on its own merits with reference to the codes and previous decisions of the CBSC, some factors that might contribute to a different outcome could include: 1) simple advisories adverting to the potential for the unexpected in a live broadcast; 2) the immediate repudiation by a host of such language when it occurs; 3) efforts on the part of the broadcaster to sensitize players, other on-field personnel, and the sports leagues to avoid using coarse language. This list is not exhaustive. In past instances broadcasters have often crafted creative solutions to accomplish the aims of the codes

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, TSN 4 provided a reasonable reply to the complainant, outlining the station’s efforts to educate both production staff and the teams involved with respect to the problematic content. 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

TSN 4 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 CFL ON TSN 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 TSN 4.

The Canadian Broadcast Standards Council has found that TSN 4 breached the Canadian Association of Broadcasters’ Code of Ethics on July 7, 2016. TSN broadcast coarse language during a CFL football game at 7:00 pm without any viewer advisories. This is contrary to Clauses 10 and 11 of the code.

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