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Filed via Access Key

February 9, 2011

Mr. Robert A. Morin


Secretary-General
Canadian Radio-television and Telecommunications Commission
Gatineau, Quebec K1A 0N2

Dear Mr. Morin:

RE: Call for comments on amendments to the Radio Regulations, 1986, Television
Broadcasting Regulations, 1987, Pay Television Regulations, 1990, Specialty
Services Regulations, 1990, and the Broadcasting Information Regulations, 1993,
Broadcasting Notice of Consultation CRTC 2011-14, 10 January 2011
(“BNC 2011-14” or the “Notice”)

1. Avaaz Foundation (“Avaaz”) is a not-for-profit international advocacy group which


makes use of new technologies to enhance citizens’ ability in participate in the public
decision-making processes that affect them. More than 400,000 individual Canadians
have lent their voices to Avaaz’ campaigns over the last three years.1

2. Avaaz’ comments are restricted to the change that the Notice proposes to the rule against
false or misleading news set out at paragraph 3(d) of the Radio Regulations, 1986,
paragraph 5(1)(d) of the Television Broadcasting Regulations, 1987, paragraph 3(2)(c) of
the Pay Television Regulations, 1990, and paragraph 3(d) of the Specialty Services
Regulations, 1990 (collectively, the “Programming Regulations”).

3. For the reasons set out below, Avaaz opposes the proposed change which, we
respectfully submit is neither required at law nor sound policy.

1
Avaaz is established as a foundation in the state of Delaware, headquartered in New York and has staff
based in Rio de Janeiro, Geneva, New York, London, Washington DC, and other international locations.
Avaaz operates in 14 languages and is funded by its members located around the world.
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A. SUMMARY

4. We understand that the Standing Joint Committee for the Scrutiny of Amendments’
concerns focus on the possibility that the rule against false or misleading news is not in
conformity with the Canadian Charter of Rights and Freedoms2 as a result of the R. v.
Zundel decision3 (described more fully below in section C, paragraphs 10-16).

5. We respectfully disagree (see section D below):

• First, Zundel was about a provision which purported to regulate all Canadians’
expression, not the expression of broadcasting undertakings whose operation is
not an inherent right and is subject to conditions that the Commission must set to
ensure the broadcasting system meets its policy objectives (paras. 21-27 below).

• Second, Zundel was about a published tract. It was not about broadcasting, which
is pervasive and provides audiovisual or audio streams at the touch of a button
(paras. 28-32).

• Third, Zundel was about a far broader restriction on any “statement, tale or news”,
a difference that the Commission’s treatment of the false or misleading news rule
has supported (paras 33-42).

6. Further, policy considerations militate against any revision to the rule against false or
misleading news (see section E below):

• The insertion of “that the licensee knows” is not required, because it is subject to
a “reverse onus” due diligence defence that allows undertakings to demonstrate
that they neither knew nor ought to have known of the falsehood. Nor it is
desirable, as it would create a significant loophole and would render the rule
unworkable (paras 44-50 below).

• The rule plays an important norm-setting function, and is a key means by which
the Commission fulfills its requirement to ensure that the Canadian broadcasting
system contains programming that is balanced and of high quality (paras. 51-54).

• Our international partners have similar rules in place (paras 55-57).

B. BACKGROUND

7. This is the second CRTC proceeding in which Avaaz has participated. In the first, which
related to the licensing of Sun TV News, Avaaz filed both detailed substantive comments
and reply comments, and a petition signed by thousands of Canadians expressing their
concern with the Canadian news environment. Our involvement reflects the deep and
ongoing engagement of our Canadian members with the important role that news

2
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
3
[1992] 2 S.C.R. 731.
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programming plays in sustaining a healthy marketplace of ideas as a basis for Canadian


democracy. We appreciate the opportunity to participate in this proceeding.

8. Avaaz is concerned about the changes proposed to the long-standing rule against false or
misleading news set out in the Programming Regulations. Currently, the rule states: “No
licensee shall distribute programming that contains … any false or misleading news.”
The Commission has proposed to modify this to “… 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.”

9. The Notice provides little background as to why this change has been proposed. It
simply states that the Commission has proposed amendments to “address concerns raised
by Parliament’s Standing Joint Committee for the Scrutiny of Amendments.” It does not
state what those concerns are. Nor does Broadcasting Notice of Consultation CRTC
2010-931 (“BNC 2010-931”), in respect of which comments are to be filed one week
from today.4 BNC 2010-931 proposed the same amendment to the equivalent provision
on false or misleading news in the Broadcasting Distribution Regulations (“Distribution
Regulations”). Like BNC 2011-14, BNC 2010-931 simply stated that the purpose of this
amendment is to “address concerns related by Parliament’s Standing Joint Committee for
the Scrutiny of Amendments.”

C. CONCERNS OF THE STANDING JOINT COMMITTEE

10. The Commission did not describe the nature of the Parliament’s Standing Joint
Committee for the Scrutiny of Amendments (“Standing Joint Committee” or
“Committee”)’s concerns in BNC 2011-14, nor in BNC 2010-931. However, we
understand that, with respect to the provision on false or misleading news, those concerns
focus on the possibility that that provision is not in conformity with the Canadian
Charter of Rights and Freedoms (“Charter”)5 as a result of the Supreme Court of
Canada’s 1992 decision in R. v. Zundel.6 This understanding is based on the following
four items, all of which are on the public record.7

11. First, at the Committee’s 17 February 2005 meeting, its counsel reported on ongoing to
correspondence with the Commission to suggest “there is reason to think” that
unspecified provisions of broadcasting regulations “are not in keeping with the Canadian
Charter of Rights and Freedoms”:

Mr. Chairman, as can be seen from the correspondence, SOR/97-


5558 raises problems of the same nature as several other

4
Call for comments on amendments to the Broadcasting Distribution Regulations, Broadcasting Notices of
Consultation CRTC 2010-931 and 2010-931-1, 10 December 2010 and 4 February 2011.
5
Note 2 above.
6
Note 3 above (“Zundel”).
7
All emphasis (underlining) added.
8
Broadcasting Distribution Regulations, SOR/97-555.
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regulations9 which come under the responsibility of the Canadian


Radio-television and Telecommunications Commission….

There remain points 2, 3, 4 and 10, concerning which the change


of correspondence with the [C]ommission has not led to a
conclusion, as you can see from the [C]ommission's letter dated
November 22, 2004.

As for points 2 and 3, discussions centre on the validity of the


provisions. The committee already studied point 2 when it
examined SOR/90-106.

In both cases there is reason to think that the regulatory provisions


are not in keeping with the Canadian Charter of Rights and
Freedoms. The [C]ommission has not rejected our point of view,
even though it maintains that the provisions are valid.

However it points to the fact that the Federal Court of Appeal


agreed to hear an appeal in the Genex Communications Inc. v. The
Solicitor General of Canada and the CRTC case, and has deferred
a final response until later. The validity of provisions of this nature
has been raised and the Court of Appeal may have to render a
decision on the matter. The fact remains that the committee does
not play the same role as the courts, as was discussed in relation to
the previous file.

Moreover, this matter was raised incidentally in the Genex case. It


is possible that our arguments may not even be discussed by the
court. For these reasons, Mr. Chairman, it would be appropriate to
insist that the commission provide us with a complete response.

12. Second, at the Committee’s 19 November 2009 meeting, its counsel returned to the
matter and reported that the Commission had committed to prepare and publish proposed
amendments. These amendments were to address the assertion by counsel to the
Committee that certain broadcasting regulatory provisions “contradict the Canadian
Charter of Rights and Freedoms”:

The last time the committee discussed the majority of these files
was in 2005. Following that meeting, counsel sent the CRTC a
letter dated May 10, 2005, listing all the points for which the
committee sought more information, as had been done previously.

9
The meeting minutes refer, in addition to the Broadcasting Distribution Regulations, to SOR/87-49
(Television Broadcasting Regulations, 1987), SOR/90-105 (Pay Television Regulations, 1990), SOR/90-
106 (Specialty Services Regulations, 1990), SOR/92-609 (Radio Regulations, 1986, Amendment), SOR/92-
611 (Television Broadcasting Regulations, 1987, Amendment), and SOR/93-420 (Broadcasting Information
Regulations, 1993).
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The CRTC did not reply to that letter until April 4, 2009, further to
a meeting with committee counsel in which we gave the CRTC a
categorized list of all the points that were pending. The CRTC used
that list of points to prepare the document appended to the letter of
February 4, 2009, which constitutes a response addressing all of
the pending points.

The note prepared for the committee puts that response in


perspective, as mentioned in point 1 of the note, with respect to all
of the regulatory provisions at issue except two. The CRTC says
that it is preparing amendments, but it has not provided any details
on the nature of these amendments. It stated that it will share them
with the committee when the proposed amendments are published.
Clearly, this response is not very satisfactory, particularly with
respect to the points that deal with matters of substance, which are
laid out in detail in the note. Point 3 of the note addresses
provisions that contradict the Canadian Charter of Rights and
Freedoms, and the committee is not satisfied with the justification
provided by the CRTC under section 1 of the charter….

Regarding all of those points, it is recommended that the


committee write to the CRTC to request greater precision on future
amendments…

13. Third, at the Committee’s meeting of 25 November 2010, counsel to the Committee
reported as follows:

On December 2, 2009, committee counsel wrote to the CRTC


concerning each of the files on today's agenda. These files go from
SOR/97-555 to SOR/2006-108. As the committee will have noted
at the meeting of November 19, 2009, the CRTC committed to
making amendments, with one exception, concerning all of the
points raised. However, the CRTC did not provide any details on
the changes to be made.

The committee wanted to know more, particularly as pertains to


substantive issues. In its letter of January 29, 2010, the CRTC still
provides no details, but indicates that the amendments will be
included in draft regulations to be published before their adoption.

The amendments were drafted and were being examined by the


Department of Justice. As to the point the CRTC refused, in its
recent correspondence, to amend, whereas it had previously
committed to repealing the provision, it repeats that it will examine
the issue when the in-depth review of the Broadcasting
Distribution Regulations takes place; they are to come into effect
on September 1, 2011.
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14. Finally, on 23 December 2010, counsel to the Committee wrote a letter to Commission
counsel. The Commission has placed that letter, which is attached as Appendix A, on the
public record of the proceeding initiated by BNC 2010-931. With respect to the BNC
2010-931’s proposed amendment proposed to the false or misleading news provision in
the Distribution Regulations, which is the same as the equivalent amendment proposed to
the Programming Regulations, that letter stated as follows:

Le libellé de cette proposition est semblable à celui de la


disposition du Code criminel que la Cour suprême du Canada a
invalidée pour des raisons constitutionnelles dans l’arrêt Zundel. Il
est difficile de voir pourquoi cette interdiction pourrait être jugée
valide.

15. Beyond this cursory statement, which is not compelling, the Joint Committee’s concerns
with the provision on false or misleading news are not set out at length in any public
document of which we are aware.

16. In any case, we respectfully disagree, for the reasons set out below. The amendments
that the Commission has proposed to the Programming Regulations’ provision on false or
misleading news are not required. The existing provision on false or misleading news is
in conformity with the Charter. Zundel does not suggest otherwise.

D. CHARTER CONFORMITY

17. We understand that one of the Joint Committee’s functions is to review statutory
instruments to determine whether, in its judgement, they are in conformity with the
Charter.10 At the same time, we are mindful of the statement made to the Joint
Committee by its counsel on 18 May 2000, during a debate on broadcasting regulations:

We must always keep in mind that this is a parliamentary


committee, not a court of law. Regulations made pursuant to
statute, made by the executive, enjoy the benefit of a presumption
of validity until either the executive itself agrees that there is no
authority for them, in which case the presumption obviously
disappears -- there is an admission that the regulation is not
authorized -- or until a court has found the regulation to be ultra
vires.

As a parliamentary committee, the committee has to work with the


knowledge of that presumption of validity and cannot, because it
has a different opinion, force the government to not apply a
regulation or to immediately revoke a regulation in instances
where the government does not agree the regulation is invalid.

10
Standing Joint Committee on Scrutiny of Regulations, 40th Parl., 3rd Sess., First Report.
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18. The Standing Joint Committee has suggested to the Commission that the rule against
false or misleading news does not conform with the Charter. A purpose of this
proceeding is to determine whether the Commission ought to modify the rule in light of
the Standing Joint Committee’s suggestion. We respectfully submit that you should not.

19. The Zundel case, on which the public record suggests that the Joint Committee has
wholly relied in reaching its conclusion, was about the Charter compatibility of section
181 of the Criminal Code, which stated:

Every one who wilfully publishes a statement, tale or news that he


knows is false and that causes or is likely to cause injury or
mischief to a public interest is guilty of an indictable offence and
liable to imprisonment for a term not exceeding two years.

20. The Supreme Court’s finding in that case does not justify the Joint Committee’s
conclusion or cause the rule on false or misleading news to be in non-conformity with the
Charter. There are three reasons for this. First, Zundel was about a provision which
purported to regulate all Canadians’ expression, not the expression of broadcasting
undertakings whose operation is not an inherent right and is subject to conditions that the
Commission must set to ensure the broadcasting system meets its policy objectives.
Second, Zundel was about a published tract, not broadcasting, which provides audiovisual
or audio streams at the touch of a button. Third, Zundel was about a far broader
restriction on any “statement, tale or news”, a difference that the Commission’s treatment
of the false or misleading news rule has supported.

Regulated System

21. The Zundel case tested section 181 of the Criminal Code, which applied to any assertion
published in any format. Section 181 thereby purported to regulate the published
expression of all Canadians.

22. The Programming Regulations operate in a very different context. They apply only to the
activity of carrying on a broadcasting undertaking under the Broadcasting Act. Further,
they apply only to such undertakings’ participation in the “single system” in respect of
which the Commission is required to implement the Broadcasting Policy for Canada set
out in the Act.11 That Policy describes a highly regulated environment whose
programming is, for instance:

• to be “of high standard”;


• to be “varied and comprehensive”; and
• to “provide a reasonable opportunity for the public to be exposed to the
expression of differing views on matters of public concern”.12

11
Act, subsection 5(1).
12
Act, paragraph 3(1)(g) and sub-paragraphs 3(1)(h)(i) and 3(1)(h)(iv).
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23. These policy goals do not merely describe outcomes which it is hoped the broadcasting
system will produce. They are standards which the Commission is required to
implement, which it may do by setting out the criteria to be met by the broadcasting
undertakings whose operation the Commission, exercising its discretion, elects to
authorize.13 As the Federal Court of Appeal stated in the Genex decision, referring to
paragraphs 9(b) and (d) of the Act:

These paragraphs expressly authorize the CRTC to determine the


conditions that it deems appropriate for the implementation of
Canadian broadcasting policy. Considered in isolation, it is not
immediately apparent that they infringe or authorize the
infringement of freedom of expression since, as mentioned earlier,
the appellant has no inherent right to be given a broadcasting
licence and it is not obvious that its freedom of expression is
breached if, in compliance with the law, its licence is not renewed.
However, when read bearing in mind other provisions of the Act
and the Regulations, which the CRTC must take into consideration
in the exercise of its discretionary power, as we will see later, it
seems quite clear that these paragraphs give the CRTC the power
to infringe freedom of expression by establishing restrictive licence
conditions.14

24. Indeed, the Federal Court of Appeal in Genex went on, citing its previous finding in the
CJMF-FM case, to find that

failure to comply with a condition of licence imposed in the public


interest, as this Court has previously held, constitutes conduct that
may justify a refusal to renew a licence without such refusal
infringing freedom of expression or the Charter[.]15

25. It is clear that the reasoning set out in these two passages applies equally to paragraph
10(1)(c) of the Act, which provides for the Commission, in furtherance of its objects, to
make regulations “respecting standards of programs”.

26. Thus, the Federal Court of Appeal did not accept the argument16 that Charter
jurisprudence pertaining to speech outside the regulated broadcasting system may be
imported wholesale to test the conditions to which broadcast licensees are held. Nor did
the more comprehensive review of the Canadian broadcasting regulatory framework

13
Act, sections 9-10.
14
Genex Communications v. Canada (Attorney General), [2006] 2 F.C.R. 199 (C.A.) (“Genex”), paragraph
55.
15
Paragraph 182, citing CJMF-FM Ltée v. Canadian Radio-television and Telecommunications Commission-
-CRTC, [1984] F.C.J. No. 244 (C.A.)
16
This argument was implicit in the submissions of the Canadian Civil Liberties Association, to which the
Federal Court of Appeal had granted intervener status.
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conducted in 2007 by Laurence Dunbar and by Christian Leblanc, who is an expert in


media and defamation law:17

The Television Broadcasting Regulations, 1987 prohibit licensees


from broadcasting anything in contravention of the law, abusive
comment or pictorial representation, obscene or abusive language
or pictorial content, and false or misleading news….

These requirements implement the objectives of broadcasting


policy that relate to quality and balance in the programming
provided by the Canadian broadcasting system (paragraphs 3(1)(g),
(h) and (i)).

In our view, the rules governing quality and balance have been and
remain effective and minimally intrusive. We do not propose
changes in these requirements.18

27. The concerns raised by the Joint Committee as to the post-Zundel status of the false or
misleading news provision neither overcome nor, as far as we are aware, address these
findings.

Pervasive Media Form

28. Even beyond the statutory framework which grants the Commission discretion to pass
regulations to ensure the quality and balance of broadcast programming, it is important to
note that the reach and pervasiveness of broadcasting, which streams instantly into the
home at the touch of a button, is qualitatively different from the distribution of printed
tract publications, as was at issue in Zundel.

29. Nor need we go back to the War of the Worlds to find extreme examples of the effects of
this pervasiveness. Only last year panic broke out briefly in the Republic of Georgia19
after Imedi TV, a Georgian programming service, aired a half-hour satirical newscast that
“pretended to report on a Russian invasion of the country.”20

30. There is evidence that consideration of broadcasting’s reach and pervasiveness played a
role in a prior implementation of the Programming Regulations’ provision on false or
misleading news. The Regulations for Broadcasting Stations Made Under the Canadian
Broadcasting Act, 1936 adopted in 1937 by the Commission’s predecessor, the Canadian
Broadcasting Corporation, asserted that “No one shall broadcast … (e) false or

17
Lexpert, Canadian Legal Lexpert Directory, Litigation—Defamation & Media (online:
<http://www.lexpert.ca/Directory/DirectoryContent/Ranking.aspx?pa_id=D1>.
18
L.J.E. Dunbar and C. Leblanc, Review of the Regulatory Framework for Broadcasting Services in Canada
(Online: <http://www.crtc.gc.ca/eng/com100/2007/r070912.htm>, 2007), page 92.
19
For 2009, International Telecommunications Union indicators show mobile penetration of 70.92 per 100 in
Canada and 66.59 in Georgia.
20
Andrew E. Kramer, “Panic in Georgia After a Mock News Broadcast”, New York Times (Online:
<http://www.nytimes.com/2010/03/15/world/europe/15georgia.html>, 14 March 2010).
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misleading news”.21 However, that section of the 1937 Regulations was accompanied by
an asterisked note stating that

it should be realized that the message of broadcasting is received at


the fireside in the relatively unguarded atmosphere of the home,
reaching old and young alike. Certain subjects, while meriting
discussion elsewhere in the public interest[,] are not necessarily
suitable for this intimate medium.

31. The U.S. Supreme Court made similar note of broadcasting’s pervasiveness in its
landmark 1973 FCC v. Pacifica decision22—although it is not clear that the distinction
drawn in Pacifica between over-the-air and subscription services is relevant in the
Canadian context, where more than 96 percent of households subscribe to broadcasting
distribution packages, nearly all of which include services like specialty and audio
services in the basic package.

32. Accordingly, even leaving aside the basic distinction between the regulated broadcasting
system, participation in which is not an inherent right, and the broader unregulated
marketplace of ideas, the concerns raised by the Joint Committee as to the post-Zundel
status of the false or misleading news provision are not relevant to the broadcast
environment.

Narrower Class of Speech

33. Any assumption that the Zundel decision applies to the provision on false or misleading
news set out in regulations adopted under the Broadcasting Act fails to attend to the much
narrower ambit of the broadcasting provision.

34. Section 181 of the Criminal Code pertained to “[e]very one who wilfully publishes a
statement, tale or news that he knows is false and that causes or is likely to cause injury
or mischief to a public interest”. The Programming Regulations pertain only to “false or
misleading news”.

35. That distinction is important for two reasons.

36. First, writing for the four justices who carried the split 4-3 decision to overrule section
181 of the Criminal Code in Zundel, Justice McLachlin noted of that section that

[t]he phrase "statement, tale or news", while it may not extend to


the realm of true opinion (wherever the line is to be drawn, itself a
question of great difficulty), obviously encompasses a broad range

21
Paragraph 7(e). Reproduced in R. Bird, ed., Documents of Canadian Broadcasting (Ottawa: Carleton
University Press, 1988), page 161. A prior rule in the Canadian Radio-Broadcasting Corporation (CRBC)’s
1936 Rules and Regulations, P.C. 535, had stated at paragraph 101(c) that “Newspapers broadcasting false
or misleading news shall be prohibited from further broadcasting unless extenuating circumstances are
found”: ibid., page 132.
22
438 U.S. 726 (1978).
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of historical and social speech, going well beyond what is patent or


provable to the senses as a matter of "pure fact".

37. The Programming Regulations, on the other hand, restrict themselves only to “news”.
“Statement[s]” or “tale[s]” are simply not at issue.

38. Second, the Commission’s application of the false or misleading news rule has
strengthened this distinction, by clearly establishing that it applies only to news and not,
for instance, to opinion.

39. The Commission has done so on two occasions.

40. First, in hearing a complaint about an open-line radio station which broadcast remarks
about First Nations Canadians that were found to be racially offensive, the Commission
found that the false or misleading news rule was not applicable, stating:

In respect of the allegation of "false or misleading news", the


Commission is satisfied that much of the information broadcast by
Mr. Bannerman was false, but notes that the prohibition of
paragraph 5(1)(d) of the A.M. Regulations tends to envisage a
newscast rather than a program directed at the exchange of
opinions.23

41. Second, in hearing a complaint years later about another radio program, the Commission
described the test to be applied to the false or misleading news rule as follows:

A threshold test would be whether the comment complained of


could be characterized as news. One, although not the only,
indicator of whether the comment constituted news would be its
presentation as part of a program identified as being a newscast.

The Commission notes that the Radio Active interview was not
presented as part of a newscast, but as an exchange of opinion in
the context of a public affairs program…. The interviewer was
speculating that, given the nature of the attacks, comparisons could
be made between two situations present in different parts of the
world. In the Commission's view, such speculation and discussion
are outside the scope of section 3(d) of the Regulations.24

42. Thus, the wording of the broadcasting regulation relates to a substantially narrower class
of speech than the criminal provision considered in Zundel, and the Commission has
confirmed this by confining its application to news, not opinion, speculation or discussion
about the news.

23
Complaints by the Nishga Tribal Council and Musqueam Indian Band against CKNW New Westminster,
B.C., Public Notice CRTC 1985-236, 4 November 1985, emphasis added.
24
Complaint concerning comments broadcast during Radio Active, Broadcasting Decision CRTC 2006-282,
10 July 2006, paragraphs 15-16, emphasis added.
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E. POLICY CONSIDERATIONS

43. The legal concerns that the Standing Joint Committee raised having been addressed, there
should remain no reason for the Commission to revise the rule against false or misleading
news. However, we do wish to add three additional clarifications. They relate to the
existing defence available to an undertaking, that it neither knew nor ought to have
known that the news was false or misleading; to the rule’s norm-setting function, which
is far more important than the frequency with which the rule has been applied; and to
similar provisions in the United States and United Kingdom.

Due Diligence Defence

44. The proposed redraft of the false or misleading news, which we have demonstrated is not
necessary for any reason raised on the public record by the Joint Committee, would also
reword the rule to capture news “that the licensee knows is false or misleading”.

45. This revision is not required. What is more, there are good reasons not to make it.

46. The revision is not required because the rule is already subject to, and the Commission
ought already to apply, a restricted application. That is because the rule against false or
misleading news describes a regulatory offence, which at law is subject to a due diligence
defence.25 A due diligence defence is one in which the defendant will avoid infringement
if it can show that it took whatever measures were reasonable under the circumstances.
Thus, if a programming undertaking knew or, more importantly, ought to have known
that the news it broadcast was false or misleading, then it will have infringed the rule and,
presumably, the Commission will note such infringement at its next licence renewal.
However, if the undertaking neither knew nor ought to have known that the news was
false or misleading, acting reasonably in the circumstances in which it did distribute the
false or misleading programming, then it will not infringe the rule.

47. The revision should not be made because it would create a significant loophole, and
render the rule difficult to apply in all cases.

48. The loophole would arise from reducing the two-pronged due diligence defence—that the
broadcasting undertaking neither knew nor ought reasonably to have known that the news
was false or misleading—to only the first of these. As a result, broadcasting undertakings
would no longer be required to take the care reasonably necessary to ensure that they do
not distribute false or misleading news. That does not promote programming that is “of a
high standard”, and it is not consistent with the Commission’s most basic role as a
standard-setter.

49. Further, the addition of “knows is false or misleading” would render the rule unworkable
because it would shift the onus back to the filing party to demonstrate what the
broadcasting undertaking did or did not know. Currently, as a result of the due diligence
defence, the false and misleading news rule operates under a reverse onus. First, the

25
R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154.
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filing party must demonstrate that the programming constituted “news”. Second, the
filing party must demonstrate that the news was false or misleading. If so then, third, the
onus shifts to the broadcasting undertaking to show that it did not know and ought not
reasonably to have known that the news was false or misleading. By inserting the
language “knows is misleading”, the third step would now lie with the complainant to
show what the broadcasting undertaking did or did not know. That is clearly an
unworkable arrangement. A complainant cannot determine what was in the mind of the
people working at a broadcasting undertaking.

50. As a result, we respectfully submit that the Commission should not alter the wording of
the false or misleading news rule to restrict it to what the undertaking “knows” to be so.
The broadcasting undertaking can already excuse itself by demonstrating that it did not
know of its error, and that it would not have been reasonable to do so. Eliminating the
requirement to take care, or requiring the complainant to show what the broadcasting
undertaking did or did not know, is of no assistance at all.

Norm-setting Function

51. Some participants in the public debate on the false or misleading rule have protested that
the Commission has rarely applied it, and that there is therefore surely no purpose in
maintaining it.

52. We respectfully disagree. Particularly in a regulated industry sector, rules play a key
norm- and standard-setting function. Market participants should be presumed to attempt
to comply with the rules. What the Federal Court of Appeal said of licence non-renewal
applies to false or misleading news, too:

It is true that there are not many cases, but this indicates two
things: that broadcasting undertakings, as a general rule, act in a
responsible way, and that the CRTC is parsimonious in its exercise
of this coercive measure, using it when the public interest so
requires and other measures prove ineffective.26

53. In this case, the norm established by the rule is one that, as the Dunbar-Leblanc Report
cited above found, is a key means by which the Commission fulfils its requirement to
ensure that the Canadian broadcasting system contains programming that is balanced and
of high quality:

Under the Broadcasting Act (the Act), all persons who are licensed
to carry on broadcasting undertakings have a responsibility for the
programs they broadcast. In addition to the important regulatory
prohibition against the broadcast of any false or misleading news,
the Act specifically requires broadcasters to provide balanced
programming in areas that deal with matters of public concern.

26
Genex, note 10 above, paragraph 204.
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54. The Commission’s rule against false or misleading news is narrowly tailored to
programming that constitutes news, that is false or misleading, that the broadcasting
undertaking knew or ought to have known was false or misleading, and that therefore
does not meet the requirements that the Commission is obliged to meet. The rule has
been a cornerstone of Canadian broadcast regulation since 1933.27 Nor is Canada alone
on this issue.

International Partners

55. In the U.S., whose First Amendment protections are well-known, the Federal
Communications Commission set out in 1949 what has become the FCC’s news
distortion policy:

[a] licensee would be abusing his position as a public trustee of


these important means of mass communications were he to
withhold from expression over his facilities relevant news of facts
concerning a controversy or to slant or distort the news.28

56. In the U.K., the Communications Act 2003 requires Ofcom to set standards whose
objectives are, among other things, “that news included in television and radio services is
reported with due accuracy”.29 As a result, the Broadcasting Code requires “due
accuracy in news”:

5.1 News, in whatever form, must be reported with accuracy


and presented with due impartiality.

5.2 Significant mistakes in news should normally be


acknowledged and corrected on air quickly. Corrections should be
appropriately scheduled.

57. As these examples underline, the rule against false or misleading news which has always
been present in Canada is by no means unusual. Indeed, abolishing it or watering it down
would serve little purpose and would put Canada out of step with its trading partners.

F. CONCLUSION

58. The changes that the Commission has proposed to the Programming Regulations’ rule
against false or misleading news are neither necessary, nor desirable, for the reasons set
out above.

59. The Zundel decision does not result in the non-conformity of the rule against false or
misleading news: it was not about the regulated broadcasting sector, it was not about a
pervasive medium, and it was about a broad restriction that extended well past news.

27
See note 21 above.
28
Report on editorializing by broadcast licensees, 13 FCC 1246 (1949).
29
Communications Act 2003, c. 21, paragraph 319(2)(d).
- 15 -

60. Nor is modifying the rule consistent with the policy that governs the Commission.
Adding a knowledge requirement would gut the existing reverse onus, create a loophole,
and render the rule unworkable. Further, the rule plays an important norm-setting
function, both in Canada, and at our international trading partners, which have similar
rules in place.

61. We thank the Commission for the opportunity to submit these comments on the important
public issues canvassed in BNC 2011-14, and ask you not to amend the rule against false
or misleading news.

All of which is respectfully submitted,

AVAAZ FOUNDATION

[original signed by Ricken Patel]

Per: Ricken Patel


Executive Director

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