CFRB re news report (streaming services)

ENGLISH-LANGUAGE PANEL
CBSC Decision 19/20-1221
2020 CBSC 2
June 3, 2020
S. Courtemanche (Chair), D. Barry, S. Commer, W. Gray, H. Mack, D. Proctor, T. Rajan

THE FACTS

CFRB is a news talk station in Toronto, Ontario. On December 17, 2019, newsreader David McKee introduced the 5:00 pm newscast with the following:

The company that handles things like testing your blood when you visit the doctor was the target of a successful cyber attack. Toronto Council hiking your property taxes further. It’s no small amount. Plus a call for more Canadian content when it comes to streaming services. Details on these and other stories are coming up, but first let’s check your drive, NewsTalk 1010 time-saver traffic.

After some of those stories, the item on streaming services went as follows:

David McKee: The libraries of streaming services like Netflix, Disney+ could soon have more of a Canadian flavour that nobody watches or wants if the federal government gets its way.

Michelle Zadikian: Netflix has generated seven hundred and eighty million dollars in the first nine months of the year from Canadian subscriptions. It’s a number big enough to add fuel to the fire on whether or not government should charge a US tech giants tax on revenues made in Canada. Currently, only Quebec and Saskatchewan have implemented provincial taxes. Some critics say Netflix gets away with not paying its fair share of taxes in Canada, all while taking viewers away from homegrown tv programming. I’m Michelle Zadikian from BNN Bloomberg.

The CBSC received a complaint on December 18 from a listener who complained that “Mr. McKee often uses sarcasm, jokes or includes his own opinions in news broadcasts. I have complained to the station on numerous occasions, explaining the CBSC Code as it pertains to news. The News Editor replies with a typical ‘that's just Dave being Dave’. After hearing this broadcast, I feel it is finally time to address this and bring forward a formal complaint against Dave McKee. Canadian Content is important, and Mr McKee seems to forget that he is part of a Canadian Content Broadcaster. His opinions should be kept off of the regular news sections and limited to a specific commentary section if he is so transfixed on being a commentator.” The complainant also suggested that the broadcast constituted a violation of the News clause of the Canadian Association of Broadcasters’ (CAB) Code of Ethics.

Although the complainant clearly identified the 5:00 pm broadcast as his concern, CFRB’s January 10, 2020 reply referenced the 6:00pm broadcast, which it characterized as “not a traditional newscast, which is why we specifically introduce the segment as ‘news and views’ and further explain that it is David McKee’s take on the news of the day.” CFRB further explained that it did not believe any code breach had occurred.

The complainant wrote back on January 24, reiterating that his complaint was about the 5:00 pm news hour, not the News and Views segment that airs at 6:00 pm. CFRB responded a second time on January 28. It apologized for not responding to the correct broadcast in its first response. It maintained that no breach had occurred because “it was obvious to the listener that David was inserting editorial comment before introducing the news report” and listeners thus had sufficient information to understand what was happening.

The complainant filed his Ruling Request on February 2. The complainant pointed out that CFRB had addressed the wrong broadcast in its first response. He went on to write that “At no time did the broadcaster indicate that the news included personal commentary and observations. The comments made by [McKee] clearly provided a personal opinion [... and McKee] constantly uses personal opinions, sarcasm and a general disdain for the truth in his news broadcasts if they do not align with his personal opinions.” The complainant suggested that McKee should do opinion-based commentary only and other staff should do the news if McKee cannot refrain from inserting his personal opinions into the newscasts. (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 and the Radio Television Digital News Association of Canada’s (RTDNA) 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. They shall also ensure that news broadcasts are not editorial.

2) News shall not be selected for the purpose of furthering or hindering either side of any controversial public issue, nor shall it be formulated on the basis of the beliefs, opinions or desires of management, the editor or others engaged in its preparation or delivery. The fundamental purpose of news dissemination in a democracy is to enable people to know what is happening, and to understand events so that they may form their own conclusions.

3) Nothing in the foregoing shall be understood as preventing broadcasters from analyzing and elucidating news so long as such analysis or comment is clearly labelled as such and kept distinct from regular news presentations. Broadcasters are also entitled to provide editorial opinion, which shall be clearly labelled as such and kept entirely distinct from regular broadcasts of news or analysis.

RTDNA Code of Journalistic Ethics, Article 2.0 – Fairness

We are committed to impartial, unbiased journalism that serves the public interest through the free and open exchange of ideas, and respects the diversity of society.

2.1 Journalists should be fair and balanced, and avoid allowing their personal biases to influence their reporting. News events and public issues may be analyzed and put into context, but commentary, opinion or editorializing must be kept distinct from regular news coverage.

The Panel Adjudicators read all of the correspondence and listened to a recording of the challenged broadcast. The Panel concludes, with one Adjudicator abstaining, that CFRB breached Clause 5(1) of the CAB Code of Ethics and Article 2.0 of the RTDNA Code of Journalistic Ethics when editorializing was included in the 5:00 pm newscast. The Panel also concludes that editorial comment was not clearly labelled and kept distinct from regular news as required under Clause 5(3) of the CAB Code of Ethics and Article 2.1 of the RTDNA Code of Journalistic Ethics.

The questions put to the Panel were:

Did the news presentation contain bias or editorializing contrary to Clause 5(1) of the CAB Code of Ethics and Article 2.0 of the RTDNA Code of Journalistic Ethics?

Was any analysis, comment, opinion or editorial clearly labelled as such and kept distinct from the regular news as required by Clause 5(3) of the CAB Code of Ethics and Article 2.1 of the RTDNA Code of Journalistic Ethics?

The question of editorializing within a newscast has been considered in two previous CBSC decisions. In both cases the CBSC did not find a breach.

The first case involved a news report about a Peterborough hospital opening a new palliative care family centre. The report included an interview with a doctor involved in the project who described the centre and noted that funding for the centre had come from a fundraising festival that had been well supported by the community and was therefore, “an expression of the community’s caring for those who are dying within the community.” The newsreader concluded the interview by saying “Well said, Dr. John Beamish”. The Panel did not find a breach and determined that, even though it is possible to conclude there was a technical breach of the CAB Code of Ethics, “the focus of the benefit is sufficiently uncertain and the news issue so uncontroversial and innocuous that the Regional Council has no difficulty in concluding that no breach of [the News clause] of the Code is disclosed.”1

In the second case, the CBSC Panel was dealing with comments made during open-line programs. On both programs, the discussion related to the role of First Nations Chiefs in a demonstration that was occurring at the Manitoba Legislature, as well as on other general issues relating to the First Nations. During the Larry Updike Show, the on-site reporter describing the event arguably inserted some of her own opinions into the commentary. Larry Updike asked the on-site reporter if she was expressing a personal opinion and the reporter confirmed that she was indeed expressing her personal views. The Panel did not find a breach although it conceded “a couple of occasions on which Carolyn Siefert, the reporter, appears to have been expressing her own opinion (without so identifying it), rather than strictly reporting the news.” These occasions were considered by the Panel as “small lapses between news reporting and the expression of opinion” and did not go to the allegations of human rights violations.2

In the case at hand, David McKee, during the 5:00 pm news program, when dealing with the news item on streaming services clearly inserted his personal opinion when he stated that “The libraries of streaming services like Netflix, Disney+ could soon have more of a Canadian flavour that nobody watches or wants if the federal government gets its way.” (emphasis added)

Accordingly, the Panel has concluded, with one Adjudicator abstaining, that when David McKee expresses his view that Canadian content is something that “nobody watches or wants” he is communicating an editorial opinion which, under the relevant codes, should be kept entirely distinct from regular broadcasts of news or analysis. The abstaining Adjudicator, T. Rajan, considers that the news segment contained a combination of facts, interpretation and commentary, which are all frequently used in news reporting. Although such a combination is not allowed under Article 2.0 of the RTDNA Code of Journalistic Ethics, she believes that Clause 5(3) of the CAB Code of Ethics appears to allow such a combination up to a certain point. Accordingly, since, based on CBSC precedents, some commentary is permitted under narrow circumstances outlined the CAB Code of Ethics, she decided to abstain on the first question posed to the Panel.

The role of news coverage serves an important public interest purpose. It is essential in a democratic system and it is for this reason that a traditional newscast needs to be objective and factual and does not lend itself to the inclusion of opinion or commentary.

The Panel notes that David McKee does have the opportunity during his 6:00 pm show, which is clearly labelled as “news and views”, to provide editorial comments of the type he expressed during the 5:00 pm newscast. Under the relevant codes, editorializing during the 6:00 pm program would be appropriate.

The Panel also concluded that the editorial comment was not clearly labelled and kept distinct from regular news as required by Clause 5(3) of the CAB Code of Ethics and Article 2.1 of the RTDNA Code of Journalistic Ethics.

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, CFRB addressed the wrong broadcast in its first reply. Once this mistake was pointed out by the complainant, it did provide a second reply, referencing the complainant’s actual concerns. Although the broadcaster fulfilled its obligations of responsiveness with the second reply, the CBSC encourages the broadcaster to be more attentive to the details of complaints before crafting and sending a reply. Subject to the announcement of this decision, nothing further is required on this occasion.

DECISION ANNOUNCEMENT

CFRB is required to: 1) announce the decision, in the following terms, once during peak listening hours 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 this newscast 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 CFRB.

The Canadian Broadcast Standards Council has found that CFRB breached the Canadian Association of Broadcasters’ Code of Ethics and the Radio Television Digital News Association of Canada’s Code of Journalistic Ethics. In a newscast on December 17, 2019 at 5:00pm, the newsreader inserted his editorial opinion into a news report without identifying it as such. This is contrary to Clause 5 of the CAB Code and Article 2 of the RTNDA Code.

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

1 CKRU-AM re Noon News (CBSC Decision 97/98-0446, July 28, 1998)

2 CJOB re the Adler on Line and Afternoons with Larry Updike Talk Shows (CBSC Decision 99/00-0092, May 5, 2000)

APPENDIX

The Complaint

The CBSC received the following complaint via its webform on December 18, 2019:

Name of Station: CFRB News Talk 1010

Program Name: The Rush

Date of Program: 17/12/2019

Time of Program: 05:00

Specific Concern:

During the 5:00pm News on December 17th 2019, Broadcaster Dave McKee read a news segment regarding the push to require streaming services such as Disney + and Netflix to include more Canadian Content. In this segment he stated:

"They are going to force streaming services to include Canadian content no one needs or wants.”

Mr. McKee often uses sarcasm, jokes or includes his own opinions in news broadcasts. I have complained to the station on numerous occasions, explaining the CBSC Code as it pertains to news. The News Editor replies with a typical "that's just Dave being Dave". After hearing this broadcast, I feel it is finally time to address this and bring forward a formal complaint against Dave McKee. Canadian Content is important, and Mr McKee seems to forget that he is part of a Canadian Content Broadcaster. His opinions should be kept off of the regular news sections and limited to a specific commentary section if he is so transfixed on being a commentator.

It is my understanding that this incident represents a violation of the CBSC Code Of Conduct under Clause 5 as it pertains to News.

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. They shall also ensure that news broadcasts are not editorial.

(2) News shall not be selected for the purpose of furthering or hindering either side of any controversial public issue, nor shall it be formulated on the basis of the beliefs, opinions or desires of management, the editor or others engaged in its preparation or delivery. The fundamental purpose of news dissemination in a democracy is to enable people to know what is happening, and to understand events so that they may form their own conclusions.

Thank you.

Broadcaster Response

The broadcaster replied to the complainant on January 10, 2020:

We are in receipt of your complaint from the Canadian Broadcast Standards Council (the “CBSC”), (CBSC ref. 20.1920-1221.1) with respect to the broadcast of (the “Program”) “The Rush with Ryan and Jay”, hosted by Ryan Doyle and Jay Michaels, broadcast on NEWSTALK 1010 CFRB, Toronto, (the “Station”).

Before we address your concern, it should be noted that we follow all of the broadcast codes administered by the CBSC including the Canadian Association of Broadcasters Code of Ethics (the “CAB Code”). We would like to point out that the 6pm segment is not a traditional newscast, which is why we specifically introduce the segment as “news and views” and further explain that it is David McKee’s take on the news of the day.

Based on our review of the broadcast, we do not believe that the Program violated of any broadcast standards set out in the CAB Code.

NEWSTALK 1010, CFRB is a member in good standing of the Canadian Broadcast Standards Council and adheres to the Council’s guidelines. We will continue to exercise great diligence on such matters in order to ensure that the Station’s overall programming remains balanced and reflects the breadth and diversity of our listeners’ views.

Thank you for taking the time to share your concerns with us.

The complainant replied to that letter with the following on January 24:

Prior to me formally responding, I would like to call to your attention that your reply is inaccurate. The incident in question occurred during the 5:00 news hour, not the News and Views segment that occurs at 6:00. Please reconsider your response accordingly.

For your consideration.

CFRB responded a second time on January 28:

Let me apologise for not accurately responding to your incident. I have reviewed the newscast and my response is attached.

The following letter was attached:

We are in receipt of your complaint from the Canadian Broadcast Standards Council (the “CBSC”), (CBSC ref. 20.1920-1221.1) with respect to the broadcast of (the “Program”) “The Rush with Ryan and Jay”, hosted by Ryan Doyle and Jay Michaels, broadcast on NEWSTALK 1010 CFRB, Toronto, (the “Station”). Let me apologize for not understanding your complaint during my initial response.

Before we address your concern, it should be noted that we follow all of the broadcast codes administered by the CBSC including the Canadian Association of Broadcasters Code of Ethics (the “CAB Code”).

Based on our review of the broadcast, we do not believe that the Program violated of any broadcast standards set out in the CAB Code. We feel that it was obvious to the listener that David was inserting editorial comment before introducing the news report from BNN/Bloomberg. Our guidelines indicate that the listener be given enough information to “…enable people to know what is happening, and to understand events so that they may form their own conclusions,” which was absolutely the case in this circumstance.

NEWSTALK 1010, CFRB is a member in good standing of the Canadian Broadcast Standards Council and adheres to the Council’s guidelines. We will continue to exercise great diligence on such matters in order to ensure that the Station’s overall programming remains balanced and reflects the breadth and diversity of our listeners’ views.

Thank you for taking the time to share your concerns with us.

Additional Correspondence

The complainant filed his Ruling Request on February 2 with the following comments:

I have received 2 responses from the broadcaster. The first one incorrectly stated that the segment occurred during the 6:00 News And Views program in which news and commentary occurs. This was not the case. The incident occurred during the 5:00pm news broadcast. At no time did the broadcaster indicate that the news included personal commentary and observations. The comments made by [McKee] clearly provided a personal opinion that "No one is interested in Canadian Content and it is a waste of airwaves". This is not factual, this is an opinion and should be prohibited from a news broadcast as clearly indicated in section 5 of the CBSC act. The follow-up reply from the broadcaster again denied any wrong-doing. The person in question, Mr. McGee [sic], constantly uses personal opinions, sarcasm and a general disdain for the truth in his news broadcasts if they do not align with his personal opinions. This creates a mistrust with the listening public and erodes the believe [sic] we have in the News Content on News Talk 1010. I believe this station can do better, and if Mr. McGee [sic] wants to be a full-time commentator, I would encourage him to do so and leave factual news to other members of the team.