Resolving the issue of televisionb violence: the Canadian experience

Cynthia Rathwell is a corporate lawyer and a member of the Communications Group at the Toronto law firm McMillan Binch.

The following is the second of a two-part article comparing the American and Canadian approaches to regulating the depiction of violence on television. Part one, which appeared in the Jan. 3 issue of Playback, dealt with the American experience. Here, the Canadian perspective is explored.

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the Canadian experience respecting the curtailment of violence on television has involved a much more co-operative process than the US experience although it has not been without critics. Some commentators have expressed the opinion that the crtc ‘finagled’ the Voluntary Code Regarding Violence in Television Programming out of the Canadian Association of Broadcasters, that the code is neither voluntary nor a simple elaboration of the 1987 CAB Voluntary Code, and that the new voluntary code is a ‘prior restraint’ on free expression.

While it is true that the crtc has a major club by which to induce the submission of the television industry (its power to revoke, fail to renew or to place conditions upon broadcast licences), it would be overly simplistic to attribute the responsiveness of the cab and other industry players to mere coercion.

The Broadcasting Act and the public interest

Both the policy provisions and the provisions respecting the establishment of the cbc in the Canadian Broadcasting Act recognize that a strong public interest element is inherent in the Canadian broadcasting system.

While the Broadcasting Act stipulates that its interpretation shall be ‘consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings,’ it also declares, as matters of broadcasting policy, that frequencies are public property, that the system should provide programming of high standards, and that all broadcasters and cable operators are responsible for the programming which they broadcast.

In addition, all rights under the Canadian Charter of Rights and Freedoms, including the right to freedom of expression, are subject to ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ As with the judicially established law in the US, the Canadian law implies that the broadcaster’s freedom of expression is likely not absolute and is tempered by a responsibility to the public.

Industry and

government co-operation

Unlike their American counterparts, the Canadian government, regulators and television industry have each responded to public pressure to limit violence on tv.

As early as 1987, the cab recognized the need for a voluntary code, which embodied many principles similar to those in the current voluntary code but lacked imperative language.

In addition, rather than increasing the amount of formal regulation respecting broadcasting, the crtc in January 1988 released a public notice expressing a desire to eliminate all but essential regulations necessary to achieve the objectives of the Broadcasting Act and to encourage industry groups ‘to assume greater responsibility for improvements in the broadcasting system, particularly with respect to social issues of public concern,’ noting that violence and children’s programming were two such issues.

The criticism could be levied that such non-regulation is a form of government coercion, dangerous because by avoiding the law-making process the government avoids constitutional scrutiny. On the other hand, the crtc invited public comment on the establishment of guidelines for developing industry-administered standards, while stipulating that the crtc must ultimately approve such standards. As well, the crtc insisted that any industry standards be developed pursuant to a fair, consultative process and that the public have input into the evaluation of whether an industry had met the standards which it had set for itself.

In 1992, the cab began to renegotiate its voluntary code with the crtc. By November 1992, public pressure had mounted considerably with respect to the limitation of tv violence.

After Quebec teenager Virginie Lariviere presented the government with a petition signed by 1.3 million Canadians requesting government action to curb excessive violence on tv, the House of Commons instructed the Standing Committee on Communications and Culture to consider the issue.

By June 1993, the committee had released its recommendations. It urged that the establishment of self-regulatory codes by industry players proceed expeditiously, suggested the creation of a national violence classification system for television programs, films and videos and the designation of a time period when adult-only programs could be aired. It also recommended further research into technology that would enable parents to control their children’s viewing habits.

In the meantime, the industry and regulators had met in Toronto at a conference on tv violence and had established the National Action Group on Violence on Television, comprised of several industry associations and certain pay and specialty television licensees, with the crtc and Department of Communications as observers.

This past September, the National Action Group announced a number of principles. While the commitment to freedom of expression was again articulated, so was the belief that there should be no gratuitous violence on television, that broadcasters, cable operators and pay and specialty services should be responsive to viewer concerns, that they should be sensitive to their audience in making scheduling decisions and, in particular, should exercise special responsibility with respect to children. Most importantly, each segment of the industry agreed to adopt a code, for submission to the crtc, by Dec. 7, 1993.

The CAB voluntary code

In late October, the cab submitted to the crtc its revised voluntary code, having consulted with a large number of public and industry groups (including the Canadian Film and Television Production Association). The contents of the code have been well publicized, and include a ban on gratuitous violence, specific guidelines for children’s programming, a defined ‘safe harbor’ for violent programming (to use the American term) and provisions for viewer advisories.

The cab has charged individual broadcasters with administering the code, and unresolved complaints are to be heard by the Canadian Broadcast Standards Council. In addition, the cab, in conjunction with the cbsc, the crtc and the federal government, will undertake a large public awareness campaign respecting the code.

The crtc conditionally accepted the code, provided that a program classification system be added to it. As well, the commission left open the door for reconsideration of the definition of the ‘safe harbor’ period for violence. Provided that the broadcaster was a member of the cbsc, the crtc agreed that such broadcaster would be exempt from having the code imposed as a condition of licence.

Coercion, collusion or compromise?

The presentation and acceptance of the cab voluntary code by the crtc was an important step towards the resolution of the problem of tv violence in one segment of the industry, with the promise that other segments will soon follow suit. Although the Americans have not resolved the issue, the framework that ultimately emerged in Canada is not unlike the American rules that developed respecting indecency after years of court battles.

Was the Canadian process coercive, given that the crtc refrained from regulating and ‘encouraged’ self-regulation and voluntary codes? While such a conclusion may be argued, the Canadian industry is aware of its rights under the Charter, as well as its responsibilities under the Broadcasting Act. Had the crtc been unwilling to accept the final proposal offered by the cab concerning the code, the industry could have waited for regulation or legislation to be imposed and then could have instituted a constitutional challenge.

In taking a leading role in the debate, the cab is also converting its position as an obvious target of criticism into one of strength. It thus acquires some leverage in ensuring that other industry players make similar contributions and sacrifices in doing their part to ensure the high quality of the Canadian broadcasting system.

Was the policy process used in arriving at the voluntary code dominated by collusive elites to the exclusion of the public? The inclusion of public comments in the setting of guidelines for industry self-regulation and the development of the code itself, not to mention the articulation of public sentiments through Lariviere’s petition, suggests that the process was quite public. The crtc call for public comment on any proposed classification system suggests that a high level of public input will continue.

Perhaps our system can be blamed for forsaking the type of well-defined ‘Cowboys and Indians’ debate that seems inevitable in the US If, however, the process is democratic and the result is efficient, as it has been in this case, Canadians may excuse their lack of polemical rigor and congratulate themselves on swift and effective action on a significant social issue.

(this article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on any particular situation.)