Broadcasting Decision CRTC 2007-135

Ottawa, 14 May 2007

Radio McGill
Montréal, Quebec

Review of a Commission staff determination on a complaint relating to the airing of a song on CKUT-FM Montréal during the programming segment Space Bop

In this decision, the Commission addresses a request to review a Commission staff determination on a complaint regarding the airing by Radio McGill of the song Banging in the Nails on CKUT-FM Montréal during the programming segment Space Bop. The Commission finds that by airing the song, Radio McGill did not contravene the Broadcasting Act and did not breach the prohibition against abusive comment contained in the Radio Regulations, 1986. Furthermore, the Commission finds that the licensee addressed the concerns of the complainants adequately and in a timely manner.

Introduction

1.

In October 2006, the Commission received a request from a Montréal resident for a review of a prior Commission staff determination regarding the airing of the song Banging In The Nails, performed by the musical group The Tiger Lillies. This song was aired by Radio McGill, licensee of CKUT-FM Montréal, during the programming segment Space Bop. Specifically, this individual requested that the Commission overturn the prior determination of Commission staff, level a finding of misconduct against Radio McGill and issue a mandatory order against the licensee, unless the licensee takes specific steps to rectify the situation.

2.

In the following, the Commission sets out the background to the present decision, which includes information relating to the original complaint submitted to CKUT-FM, as well as information relating to the complaint subsequently filed with the Commission. The Commission then sets out its determination with respect to the requested review of the Commission staff’s prior determination.

Background

Complaint submitted to CKUT-FM

3.

In March 2005, a complaint was filed by two Montréal residents (the complainants) in regard to the airing, by Radio McGill, of the song Banging In The Nails on CKUT-FM during the programming segment Space Bop. Specifically, the complainants contended that the song in question was distasteful, hateful and "gleefully mocked" the Crucifixion. They also argued that Radio McGill, in airing a song that glorified hatred, contempt and sadistic violence towards a venerated religious figure, contravened provisions of both the Broadcasting Act (the Act) and the Canadian Human Rights Act. It was also noted in the complaint that in a phone call placed to CKUT-FM shortly after the song was aired, one of the complainants asked the host of Space Bop why a selection of that nature would be aired on the station, to which the host replied that she had "a broad sense of humour" and that the only problem was the complainants’ "lack of same."

4.

In reply to the complainants, Radio McGill indicated that, in its view, there was no deliberate intention, on the part of either the artists or the hosts, to spread hatred or harm. It described the song as "an ironic expression of the death of Jesus Christ" and contended that the song "does not promote hatred to any identifiable group." In acknowledgement that the song that was aired could have been more appropriately contextualized, as a simple reading of the lyrics could easily offend certain individuals, the licensee noted that The Tiger Lillies have performed at the Just For Laughs Festival and Off-Broadway in New York City, and that the group’s live performances consist of "a mix of cabaret and musical vaudeville theatre." It also described the group’s music as "very much satirical, dark and uniquely British, with a twisted sense of humour reminiscent of Monty Python."

5.

Radio McGill also indicated that the complaint was being investigated and that a dialogue between its programming committee and its programmers had been initiated. Noting the importance of presenting its listeners with background and context about controversial pieces going to air, as set out in its musical policy, the licensee acknowledged that the producers could have more appropriately contextualized the song for the audience. It also indicated that its concerns respecting contextualization of the song had been relayed to Space Bop programmers, and expressed its confidence that the programmers would demonstrate due diligence and greater care in the future. Finally, Radio McGill ensured that the hosts of Space Bop would re-familiarize themselves with the station’s complaint procedure as it pertains to dealing with phone calls from listeners.

6.

In reply, the complainants expressed their dissatisfaction with the licensee’s reply, qualifying it as dishonest and self-serving, and stated that they did not agree with the assertion that the music of The Tiger Lillies was satirical. The complainants requested that Radio McGill offer a sincere apology and acknowledge on-air that the airing of the song was wrong.

7.

Radio McGill subsequently acknowledged the controversial nature of the song and stated that it would issue an on-air apology for not having contextualized the song and for not having justified its being aired. This on-air apology was issued on 17 April 2005,¹ at which time the licensee also expressed its regrets for having offended any of its listeners and provided contact information for any listeners who wished to provide additional feedback.

8.

This apology was rejected by the complainants, who then proposed wording for a new on-air apology that, according to them, would "end this affair." According to the proposed wording, Radio McGill would state that it contravened its broadcasting policy in airing the song, that it apologizes for any offence caused to its listeners, and that it was reviewing its guidelines and policies to ensure that this does not happen again. In reply to the complainants, the licensee indicated that, after "serious consideration, discussion, debate and numerous meetings," it was standing by the on-air apology it had issued and by its initial letter of response to the complainants.

9.

As an alternative to the on-air apology originally requested, and in reaction to the contextualization first provided by the licensee, the complainants requested that Radio McGill provide a convincing contextualization of the song. In reply, the licensee supplemented the original contextualization by describing the song as a "very pointed comment on people growing up with strict religious beliefs and turning against them," and noted that it did not read any sexual violation in the song. It contended that, on the whole, the lyrics were suggestive of a self-conscious parody and that the purpose of the song was to shock and provoke a reaction rather than promote hatred against Christians. It also submitted that The Tiger Lillies play "with lowbrow humour and satire to comment on all things sacred, often pointing out the extreme amounts of violence that are sanctioned on a daily basis in our cultural history." The complainants subsequently rejected this contextualization of the song, reiterating many of the arguments that they had previously raised and dismissing the notion that the song could be satire.

Complaint filed with the Commission

10.

In December 2005, one of the Montréal residents (the complainant) filed a complaint with the Commission, contending that Radio McGill’s 14 March 2005 airing of the song exposed Christians and those with Christian beliefs to hatred and contempt. Arguing that the airing of the song violated broadcasting standards, the complainant requested that the Commission take the following steps:

• censure Radio McGill for having aired material that heaps contempt on a particular religion;
   
• require the licensee to withdraw the offending material from air play;
   
• require the licensee to apologise on-air and in writing for having aired this material; and
   
• note this infraction in the licensee’s record for its next licensing hearing in 2007 to ensure that it maintains a more responsible broadcast policy in the future.

11.

In reply to a request by the Commission staff to address the allegations contained in the complaint, Radio McGill provided additional background documentation. The licensee took issue with the complainant’s characterization of its contextualization as "whimsical" and "unsubstantiated" and noted that, in regard to the original complaint filed in March 2005, it had responded to the complainants’ correspondence in a timely manner (i.e., within one month) and had provided an on-air apology. The licensee also reiterated that it was not its intent to stage an attack on or offend any religion, group of people or individual, and submitted that its responsibility as a broadcaster is to ensure contextualization of material rather than imposing interpretations of artistic forms. In the view of Radio McGill, the song in question could be perceived as offensive to some and satirical to others.

12.

On 10 October 2006, the Commission staff issued its determination that, in its view, Radio McGill had satisfied its obligation to respond to the concerns of the complainant, noting in particular that it had apologized, both in writing and on-air. The Commission staff further noted that its complaints process does not require the agreement of all parties. The Commission’s role, under the Act, is to regulate and supervise the Canadian broadcasting system in a manner that respects freedom of expression and the journalistic, creative and programming independence enjoyed by broadcasters. Moreover, the Commission is not a censor board, nor does it generally intervene in the day-to-day editorial decisions of broadcasters.

Request for a Commission review of the Commission staff’s prior determination

13.

In the request for a review of the Commission staff’s determination of 10 October 2006, the complainant specifically requested a full review of the file in question, an overturning of the Commission staff’s prior determination, a finding of misconduct against Radio McGill, and the issuance of a mandatory order against the licensee, unless it immediately:

• apologizes for broadcasting the material in question;
   
• acknowledges the material’s hateful and offensive nature;
   
• vigourously acts to revamp its broadcasting guidelines and oversight processes; and
   
• ensures that such hateful and abusive broadcasts are never repeated.

Commission’s analysis and determinations

14.

In its review of the Commission staff’s determination of 10 October 2006, and after considering the positions of the parties in regard to the initial complaint filed in March 2005, the Commission finds that the issues relevant to its determination are the following:

1. Did the Commission staff err in finding that the licensee had adequately addressed the concerns of the complainants?

2. Did the Commission staff err in not finding that the song contravened the Broadcasting Act?

Procedure adopted by Radio McGill to address the concerns of the complainants

15.

The first issue relates to whether Radio McGill adequately addressed the complaints.

16.

The Commission regulates and supervises all aspects of the Canadian broadcasting system and requires broadcasters to comply with its regulations. However, it is not a board of censors, it does not regulate taste, and it does not have the authority either to tell broadcasters what they can broadcast or to act pre-emptively before a broadcaster airs a program. In the spirit of self-regulation, companies are expected to monitor themselves to ensure that they comply with applicable law, regulations and standards.

17.

When assessing whether a broadcaster has adequately addressed the concerns of a complainant, the Commission is primarily concerned with whether the complainant’s concerns were taken seriously by the broadcaster and were addressed in a timely manner.

18.

While acknowledging that the complainant does not accept Radio McGill’s on-air apology and continues to disagree with its position, the Commission notes that the licensee responded in a timely manner to the complainants’ correspondence. Furthermore, the Commission considers that Radio McGill took the complaint seriously, by issuing both an on-air apology and a contextualization of the song that was aired. The fact that the complainants do not agree with the decision taken by the Commission staff does not mean that they were not taken seriously and does not mean that they were treated unfairly. The Commission also notes the measures taken by Radio McGill to re-familiarize the hosts of the programming segment Space Bop with the licensee’s complaint procedure as it pertains to dealing with phone calls from listeners.

19.

The Commission therefore considers that the actions taken by Radio McGill were indicative of serious reflection and consideration of the subject matter of the complaint. Accordingly, the Commission finds that, in regard to the initial complaint that was filed with CKUT-FM, Commission staff did not err in finding that the licensee addressed the concerns of the complainants in an adequate and timely manner.

Abusive comment

20.

The second issue relates to whether the airing of the song Banging in the Nails contravened the Act and its associated regulations.

21.

Section 3(b) of the Radio Regulations, 1986 (the Regulations) prohibits a licensee from broadcasting programming that contains:

any abusive comment that, when taken in context, tends to or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability.

22.

As the Commission has stated in a number of decisions,² the regulation prohibiting abusive comment is intended to prevent the very real harms that such comments cause, harms that undermine Canadian broadcasting policy objectives. Comments that tend to or are likely to expose a group to hatred or contempt cause emotional damage that may be of grave psychological and social consequence to members of the target group. The derision, hostility and abuse encouraged by such comments can have a severe negative impact on the targeted group’s sense of self-worth, human dignity and acceptance within society. This harm undermines the equality rights of those targeted, rights which the programming of the Canadian broadcasting system should respect and reflect, according to Canadian broadcasting policy. In addition to preventing the harm to those targeted by the comments, the regulation prohibiting abusive comment is required to ensure that Canadian values are reflected and respected for all Canadians. The broadcast of comments provoking hatred and contempt also undermines the cultural and social fabric of Canada, which the Canadian broadcasting system should safeguard, enrich and strengthen.

23.

Section 3(b) of the Regulations reflects a fair balance between freedom of expression on the one hand and, on the other hand, the values of equality and multiculturalism that are entrenched in the Act and in the Canadian Charter of Rights and Freedoms. Section 3(b) of the Regulations provides extensive protection to freedom of expression, while guarding against the broadcast of discriminatory comments that may have a severe adverse impact on the values of equality and multiculturalism.

24.

On-air comments contravene section 3(b) of the Regulations where all three of the following criteria are met:

• the comments are abusive;
   
• the abusive comments, taken in context, tend or are likely to expose an individual or group or class of individuals to either hatred or contempt; and
   
• the abusive comments are on the basis of an individual’s or a group’s race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability.

25.

The Commission considers that, in any analysis of allegations of abusive comment, the context of the broadcast of the material in question is a crucial component. Most often, the wider context in which programming content is depicted or comments are expressed has a key influence on how a reasonable listener would perceive this content, particularly when the material and/or comments might be considered controversial, inappropriate or offensive in and of themselves.

26.

In the present case, the broadcaster in question is a community-based campus radio undertaking. As noted in Campus Radio Policy, Public Notice CRTC 2000-12, 28 January 2000, the primary purpose of such campus radio stations is to offer programming that is different in style and substance from the programming offered by other types of radio stations. In other words, campus radio stations are to provide music outside of the mainstream that does not receive exposure on commercial radio stations. Thus, in the view of the Commission, it is incumbent on the programmers of campus radio stations to seek out and broadcast alternative music programming. Likewise, listeners of such stations should expect to hear music that is out of the ordinary, which does not preclude content that may be shocking to some. Given this context, the Commission considers that it would not be unusual for music programming from The Tiger Lillies, a clearly alternative music band, to be played by a campus radio station.

27.

Furthermore, the Commission considers that the genre of the programming in question is also germane to the issue at hand. Listeners bring different levels of expectations to different types of programs. Generally speaking, news programming, for example, can be expected to be held to a higher level of responsibility in terms of information and opinions exchanged than programming based upon alternative music. While all programming is subject to abusive comment regulations, the source of the information conveyed, including its credibility, is a relevant component in appreciating the context.

28.

In this case, the song in question was played on the CKUT-FM programming segment known as Space Bop. According to Radio McGill, the purpose of this programming segment is to explore primarily electronic-based music genres that generally do not receive exposure and to introduce new and alternative artists to the broadcaster’s airwaves. The Commission is of the view that it would therefore be reasonable that listeners could expect to tune into music on the margins of taste.

29.

Finally, given the general nature of The Tiger Lillies’ music, the character of its live performances, and the venues in which it has performed, the Commission is of the view that there is ample evidence to indicate that this musical group employs satire and other comedic devices to relay its artistic messages. The use of satire goes to the question of abusive intent, that is, whether satirical comments are likely to expose an individual or group to hatred or contempt. Given the above contextual analysis, the Commission is of the view that a reasonable listener could interpret the performance of the song as satire rather than as abusive content.

30.

Accordingly, the Commission finds that, in regard to the initial complaint that was filed with CKUT-FM, Commission staff did not err in not finding that the song in question contravened the Act and its associated regulations.

Conclusion

31.

Although it does not support or necessarily agree with the message transmitted by the lyrics of the song, the Commission has an obligation to respect freedom of expression. Based on the above analysis, the Commission considers that the decision as to whether the song in question is offensive is, in the final analysis, a matter of taste. The Commission therefore affirms the determination reached by the Commission staff on 10 October 2006, specifically, that the airing of the song in question did not contravene the Broadcasting Act or its associated regulations, and that in dealing with the complaints filed with CKUT-FM and with the Commission, Radio McGill acted responsibly in addressing the complainants’ concerns. Accordingly, the Commission denies the complainant’s request for the Commission to level a finding of misconduct against Radio McGill with respect to the airing of the song in question, denies the complainant’s request to issue a mandatory order against the licensee, and dismisses the complaint.

Secretary General

This decision is to be appended to the licence. It is available in alternative format upon request, and may also be examined in PDF format or in HTML at the following Internet site: http://www.crtc.gc.ca 

Appendix to Broadcasting Decision CRTC 2007-135

Formal on-air apology issued by Radio McGill on 17 April 2005, regarding the airing of the song Banging in the Nails on CKUT-FM Montréal

On March 16, 2005, the CKUT Programming Committee received a written complaint over a musical piece aired on Saturday, March 13 during Space Bop (heard weekly between 4 p.m. and 5 p.m.). The song in question, Banging in the Nails, by the U.K. group The Tiger Lillies, offended the complainants, who felt it had no place on CKUT-FM’s airwaves.

The CKUT Programming Committee, comprised of volunteers elected annually at our AGM, take all complaints and feedback seriously. After investigating this specific complaint, the committee recognizes the controversial nature of the track and the fact that in this case, it was not properly contextualized or justified. It was felt that it was not the intent of the artists or the programmers to deliberately promote hatred or discrimination.

CKUT-FM’s mandate, licence and musical policy is to "explore all kinds of music. This can often include texts of artists exploring the most difficult facets of human experience and behaviour. CKUT-FM programmers must justify the airing of potentially offensive material by identifying its redeeming factors and by providing a context."

We regret in this instance to have offended our listeners. We will use this episode to further reiterate our licence, mandate and musical policy to all of our programmers, as well as to refresh them of the station’s complaint procedure. Listener feedback is always welcome. Please email programming@ckut.ca. Letters can be addressed to The CKUT Programming Committee at 3647 University Street, Montréal, Quebec, H3A 2B3.

Footnotes :

A copy of the on-air apology issued by Radio McGill is included in the Appendix to this decision.

Most recently, Complaints about the broadcast of episodes of the program Les Francs‑tireurs by Télé‑Québec, Broadcasting Decision CRTC 2006‑293, 14 July 2006