THE FACTS
“Shots & Afterthoughts” is a segment broadcast on CFBK-FM (105.5 Moose FM, Huntsville, Ontario) during which the hosts give their opinions on current events or other topics of interest to listeners. On December 3, 2014 at approximately 8:42 am, host Grant Nickalls made the following editorial:
You know when I go on and on about how much, uh, you know, I’m honoured by the, uh, support that I get, the emails, the, the Facebook. But I also like it when people don’t like me. I’m not going to lie to you. I mean, I just, uh, if I’m provoking thought and getting someone worked up a little bit, then, uh, I think that I’m doing my job. And, you know, we’re not supposed to talk down to listeners, and I’m not talking down. I’m just going to respond, ʼcause I respond to the positive stuff, so I’m going to respond to the negative stuff. This is from, uh, this is from my friend, uh, [K. M.]. [K.] says, “When you changed to hard rock and moved Grant to the daytime position, my ears just couldn’t stand it. The music was bad enough, but Grant! Grant stumbles through interviews and he often crosses into territory that verges on unacceptable.” Well, here’s what I’ll say. As far as the music goes, [K.], we’re tweaking that. And I don’t know if you’ve noticed, but our sound has mellowed quite a bit. So we’re tweaking the music. We’re, we’re working with that and we appreciate your, your response to that. As far as me stumbling through interviews, I like to keep my interviews conversational. I like to keep them so they, they sound the way people actually talk. You know, no, they’re not all polished by any means, but I enjoy communicating with people and I enjoy listening to people. So I, you know, I apologize if, if it comes across to you as, uh, stumbling through. I guess that’s, uh, that’s what I do, [K.]. I just, I stumble through life. I’m, uh, I haven’t found my little jar of perfect pills. And as far as saying I go into territory that verges on unacceptable, well, take a number, [K.]. You know what? Uh, I like to provoke thought. I like to have some fun. I like to have a sense of humour. And I like sometimes not taking life so serious. ʼCause, you know what? We need to have a little fun sometimes and we need to cross that line. Sometimes we need to get out of our comfort zone. So, I thank you for your, uh, for your little Facebook, uh, message, [K. M.]. And, uh, I guess what I’ll say to you, [K.], ʼcause I know you are, thank you. Thanks for listening, [K.]. This has been “Shots & Afterthoughts”, brought to you by the Huntsville Place Mall. It’s all at the Mall.
On December 10, 2014, the CBSC received a complaint from the person mentioned in the segment, alleging that Nickalls had “aired an extremely defamatory rant about me”. She explained that she had sent a private Facebook message to the station providing her feedback on its programming, but she had not expected her full name to be announced on air or to endure “on-air bullying”. She also alleged that Nickalls had called her a “hater” and was concerned about being identified in this context given that she lives in a small town.
Once it learned of the complaint with the CBSC, 105.5 Moose FM informed the CBSC that the complainant had contacted the station directly before filing her CBSC complaint and that the host had already sent her a letter of apology. Station management then sent an official written reply to the complainant on December 24. In that letter, the broadcaster pointed out that Nickalls’ comments were simply a response to her criticisms of his on-air abilities and were “not in any way defamatory”. It noted that at no time did Nickalls call the complainant a “hater”. The station also explained that the complainant’s original Facebook message was posted in a manner that all employees could see it. The message was not marked “private and confidential”, nor was there any other indication that it should not be discussed on air. It reiterated that Nickalls had already apologized and also noted that the station had attempted to set up an in-person meeting with the complainant to address her concerns, but she had cancelled the meeting.
The complainant filed her Ruling Request on January 15, 2015. In it, she argued that she had not posted her criticisms of the station publicly and therefore did not expect that they and her full name would be broadcast without her consent. She wrote that she especially did not expect the “name-calling” and “bullying” that occurred on air. She also requested that Nickalls apologize on air for his behaviour. (The full text of all correspondence can be found in the Appendix.)
THE DECISION
The Ontario Regional Panel examined the complaint under Clause 6 of the Canadian Association of Broadcasters’ (CAB) Code of Ethics and Article 4 of the Radio Television Digital News Association of Canada’s (RTDNA) Code of Ethics:
CAB Code of Ethics, 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.
RTDNA Code of Ethics, Article 4 – Privacy
Electronic journalists will respect the dignity, privacy and well-being of everyone with whom they deal, and will make every effort to ensure that newsgathering and reporting does not unreasonably infringe privacy except when necessary in the public interest. Clandestine newsgathering techniques should only be used when necessary to the credibility or accuracy of a story in the public interest.
The Panel Adjudicators read all of the correspondence and listened to a recording of the station’s programming of December 3 from 8:00 to 9:00 am. The Panel concludes that CFBK-FM (105.5 Moose FM) did not breach the aforementioned code provisions.
Full, Fair and Proper Presentation
Although the on-air person, Mr. Nickalls, responded to criticisms levelled against him and his tone was somewhat defensive, the Panel does not consider that Mr. Nickalls, “aired an extremely defamatory rant about [the complainant]” as mentioned by her (the full transcript of the segment is quoted above with the exception of the name of the complainant) nor did he bully her on air as she alleged. The Panel listened to the full hour of programming surrounding the editorial and heard no use of the word “hater”, as the complainant claimed. On the contrary, Nickalls was polite and even thanked the complainant for her comments concerning the station’s programming and for listening to the station. Therefore the Panel is of the view that the broadcaster did not violate Clause 6 of the CAB Code of Ethics for anything that was cited from or said about the complainant’s original message to the station.1
Privacy Issue
In addition to what was said about her, the complainant was also troubled by the fact that Nickalls broadcast her full name. Concerning this privacy issue, the Panel is of the view that sending a message to the station on its Facebook account so that it will be read by all its employees is certainly not an appropriate way to ensure the sender’s privacy. The complainant claims that she sent her comments in a “private message via the station’s Facebook group” and did not post them publicly; therefore the station should have refrained from mentioning her name on air.
Although the message was not on the recipient’s wall for the entire Facebook community to read, it was sent at large to all the station’s employees and it did not contain any request for confidentiality. To be confidential, messages should be sent via e-mail or letter addressed to one individual and/or marked “private and confidential”. While it is understandable that the complainant may not have thought to put such an indication on her message, there should be some expectation on the part of the sender that general communications with a station could be mentioned on air. This includes emails sent to general accounts (rather than to the account of specific individuals), filling out “contact us” online forms, telephone calls to the studio line, and messages sent via social media such as Facebook and Twitter. In that regard, the Panel finds that the broadcaster did not violate the spirit of Article 4 (Privacy) of the RTDNA Code of Ethics or Clause 6 of the CAB Code of Ethics. (Given that the programming was not strictly journalistic in nature, the RTDNA Code does not apply directly, but in instances where privacy is at issue in a non-journalistic program, the CBSC applies Clause 6 of the CAB Code of Ethics with the language of Article 4 of the RTDNA Code of Ethics in mind.2)
This being said, the Panel notes that citing the name of the complainant in his remarks did not add any value to Mr. Nickalls’ comments, although they were certainly not a defamatory rant. The Panel is of the view that broadcasters should be cautious about naming persons on air even when no harsh comments are made. The Panel also notes that had additional identifying information about the complainant been broadcast (for example, civic address, place of employment, etc.), it might have decided differently.3
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, CFBK-FM made considerable effort to resolve the complainant’s concerns. First, the host himself sent a letter of apology. Second, the station manager had a telephone conversation with the complainant during which they discussed the complaint and attempted to arrange an in-person meeting to resolve the matter. When those efforts still did not satisfy the complainant and she contacted the CBSC, CFBK-FM sent a lengthy letter to her, outlining its view of the broadcast at issue and the measures it had taken. CFBK-FM’s actions were entirely reasonable and indeed laudable. The broadcaster clearly fulfilled its obligations of responsiveness and nothing further is required in this regard in this instance.
This decision is a public document upon its release by the Canadian Broadcast Standards Council. It may be reported, announced or read by the station against which the complaint had originally been made; however, in the case of a favourable decision, the station is under no obligation to announce the result.
1 See the following previous CBSC decisions in which the CBSC concluded that comments were not insulting towards an individual: CHMP-FM re a segment broadcast on Puisqu’il faut se lever (CBSC Decision 06/07-0607, April 7, 2008); CHKG-FM re Lac Viet Radio (CBSC Decision 05/06-0023, May 9, 2006).
2 See the following decisions in which the CBSC likewise applied the “spirit of” Article 4 of the RTDNA Code of Ethics to non-journalistic programming: CFTM-TV (TVA) re Tôt ou tard (CBSC Decision 00/01-1080, April 5, 2002); CIKI-FM re a joke on Tout le monde debout (CBSC Decision 02/03-0358, July 17, 2003); CJMS-AM re comments on two episodes of Le p’tit monde à Frenchie (CBSC Decision 04/05-0939, October 24, 2005); CHMP-FM re a segment broadcast on Puisqu’il faut se lever (CBSC Decision 06/07-0607, April 7, 2008); CKZZ-FM re a segment on Kiah & Tara Jean (CBSC Decision 11/12-0686, July 4, 2012).
3 See the following previous CBSC decisions in which the CBSC did find privacy violations: CKAC-AM re the Gilles Proulx Show (CBSC Decision 94/95-0136, December 6, 1995); CIQC-AM re Galganov in the Morning (Invasion of Privacy) (CBSC Decision 97/98-0509, August 14, 1998); TQS re Gilles Proulx comments on Journal du midi (transportation strike) (CBSC Decision 03/04-0334, April 22, 2004); CJMS-AM re comments on two episodes of Le p’tit monde à Frenchie (CBSC Decision 04/05-0939, October 24, 2005).