CRTC opposed to false and misleading news change, but taking heat for it

The CRTC disagrees with its own proposed regulatory change about false and misleading news—an amendment spearheaded by a parliamentary committee that has drawn national public attention and criticism of the commission. The CRTC opened separate consultations in December and January that said it intends to amend a regulation prohibiting the broadcasting of false and misleading news so that it will instead be a prohibition on “any news that the licensee knows is false or misleading and that endangers or is likely to endanger the lives, health or safety of the public.” But the change originated with the recommendation of a parliamentary committee, and documents show the CRTC has opposed it. The Standing Joint Committee for the Scrutiny of Regulations, a joint House and Senate committee that reviews regulations to ensure they are enacted correctly, has asked the CRTC to water down regulations that prohibit the broadcasting of “false or misleading news.” The proposed change has elicited national headlines and a public backlash resulting in more than 3,000 comments in the CRTC's proceeding. Comments for a consultation that closed Feb. 9. The Wire Report reported last week that the parliamentary committee argues that the regulations as they stand are not consistent with the Supreme Court’s 1992 ruling R. v. Zundel. On the basis of freedom of expression under the Charter, the Zundel decision struck down the Criminal Code’s prohibition on the publication of false information or news. But in a Nov. 1, 2001 letter to the joint parliamentary committee, obtained from the committee by request, the CRTC expressed its disagreement with the proposal, noting that the Criminal Code provision struck down by the Supreme Court covered all published statements, not only news. The letter said the committee recommendation fails to address the power and influence of news broadcasting and its responsibility to air accurate information. “he serious harm that could result from the broadcast of false news is more foreseeable and potentially more serious than the harm that could result from the publication of false statements or tales not even held out as news and distributed by means other than broadcasting,” the letter, signed by John Keogh, the CRTC’s senior legal counsel, said. “There is a reach and immediacy to the broadcasting industry that means that news bulletins heard by large audiences may not be subject to timely, independent verification. Moreover, at least in Canada, where prohibitions on false news have long been part of the tradition of regulation, there is a high level of public trust in what is broadcast as news by the licensees regulated by the Commission.” The CRTC went on to say that the commission intended to study the Charter decision, adding that “there has very seldom been a need for the Commission to enforce this regulation.” The CRTC declined to comment on the letter Tuesday. But The Wire Report hears that the commission’s position on the matter has not changed. The scrutiny of regulations committee reviews “statutory instruments,” such as regulations, after they come into force to ensure they are valid and implemented correctly. Peter Bernhardt, general counsel to the committee, said by email that, in cases where the committee finds regulations that need amendment, the committee communicates with the responsible department or agency to seek assurances that “an amendment will be made.” Ultimately, according to the House of Commons Procedure and Practice, a guide to Canada’s parliamentary rules, the joint committee can remove regulations. The committee “has the power to initiate the revocation of a statutory instrument,” the guide says. Bernhardt said the committee is simply pointing out that the provision in the CRTC’s broadcasting regulations is “virtually identical” to that which the Supreme Court struck out of the Criminal Code for contravening the Charter. “So you are free under the Charter to spread deliberate falsehoods, subject to the hate laws, libel, mischief offences, etc.,” Bernhardt said. “The question for the Committee is simply how the CRTC can put the very same provision in its broadcasting regulations if Parliament cannot itself enact such a provision in connection with publishing because it violates the Charter.” The committee is scheduled to meet Thursday on Parliament Hill, where the false and misleading news regulatory amendment is on the agenda. NDP MP Brian Masse, a member of the regulations committee, told The Wire Report in a previous interview that he expected the committee to discuss the amount of public attention drawn to the issue. If the committee decides to change course on the issue, the CRTC could withdraw its proposed changes to the regulations. The Canadian Broadcasting Standards Council (CBSC), an independent, self-regulating body of about 760 private broadcasters, also has codes in place to enforce ethics and accuracy in broadcast news. The CBSC’s codes include articles stipulating that broadcast journalists “will inform the public in an accurate, comprehensive and fair manner about events and issues of importance” and that broadcasters “ensure that news shall be represented with accuracy and without bias.” Ronald Cohen, national chair of the CBSC, said in an interview that those code articles would remain in place regardless of any regulatory changes of the CRTC. “From the point of view of our broadcast members, those code provisions aren’t going to change, and they will continue to adhere to them,” he said. sdoyle@thewirereport.ca

CRTC opposed to false and misleading news change, but taking heat for it

Broadcast | February 15, 2011

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