False news and the CRTC: who asked for what, when - and why?

On February 17, 2011, it was reported that the Parliamentary Joint Committee on the Scrutiny of Regulations (“the Joint Committee”) agreed not to ask the CRTC to amend its regulations that prohibit the broadcast of false or misleading news (source: The Wire Report). The impression left is that the Joint Committee had asked the CRTC to change its strict prohibition on the broadcast of false or misleading news, to a more complex and difficult-to-prove prohibition on the broadcast of news that a broadcast licensee knows is false or misleading and that endangers or is likely to endanger the lives, health or safety of the public.

Over 3200 people have filed comments about the CRTC’s proposal to change its false/misleading news regulation. The CRTC may somehow withdraw its proposal (or, more likely, decline to make the changes it had proposed).

But questions remain about this important issue: What was the Joint Committee’s concern with the CRTC’s false/misleading news regulation? When did the Joint Committee first ask the CRTC to change its regulations? Why did the CRTC first propose to change the false/misleading news regulation years after the Joint Committee first questioned the regulation? Who at the CRTC decided to make the change – and why?

Here is why answers to these questions would be helpful.

1. Section 181 of Canada’s Criminal Code makes it an offence for a person to knowingly publish news that is false and that causes or is likely to cause injury or mischief to the public interest. In 1992 the Supreme Court of Canada heard the case of a person charged under section 181 after publishing a printed document containing statements that contradict accepted history. The Court concluded that section 181 was unconstitutional, being a violation of the guarantee of freedom of expression under the Canadian Charter of Rights and Freedoms.

2. From 2000 to 2009, a Joint Committee of the House of Commons and the Senate which considers regulations made by government departments and agencies, wrote the CRTC with unknown questions about unknown parts of the CRTC’s regulations.

3. In December 2010 the CRTC decided to amend its Broadcasting Distribution Regulations' strict prohibition on the broadcast of false or misleading news, and adopted wording resembling that used in section 181 of the Criminal Code which the Supreme Court had held to be unconstitutional in 1992. Although the Joint Committee had apparently set out its concerns about the CRTC's false/misleading news regulation many times in the past, the CRTC first informed the Joint Committee about its proposal the very day the CRTC published the proposed amendment for public comment.

4. Two weeks after the CRTC first announced its proposal to change the false/misleading provisions in its Broadcasting Distribution Regulations, the lawyer of the Joint Committee wrote the CRTC to question the CRTC’s proposal, pointing out that the wording put forward by the CRTC resembles the wording in the 1992 case making it “difficult to see why this prohibition could be judged valid” [translation from French original: “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 ….Il est difficile de voir pourquoi cette interdiction pourrait être jugée valide”]. The language in this letter does not sound as if the Joint Commitee either came up with or wholeheartedly welcomed the wording that the CRTC ultimately proposed.

5. Two weeks after the lawyer for the Joint Committee raised concerns that the CRTC's proposed amendment for its Broadcasting Distribution Regulations uses language similar to that already found to be unconstitutional by the Supreme Court, the CRTC proposed to make precisely the same change to its regulations for television, radio, specialty and pay TV services. Did the Joint Committee suddenly decide that the amendment's wording was acceptable after all? Or did the CRTC fail to consider the concern set out by the Joint Committee's lawyer?

What we do not know is this: what was the Joint Committee’s original concern about the CRTCs’ false/misleading news prohibition, when did it first ask the CRTC to change its regulations, what led the CRTC to make the change now , some five to ten years after the Joint Committee first made its inquiries about the regulations – and why?

What we do know so far, from the Canadian Legal Information Institute (CanLII), CRTC decisions, minutes of Parliament’s Joint Committee on the Scrutiny of Regulations, and several letters between the CRTC and the Committee which have been made public - is the following:

August 27, 1992: In R. v. Zundel, [1992] 2 S.C.R. 731 a majority of the Supreme Court of Canada finds that a provision in Canada’s Criminal Code that prohibited the willful publication of false news violates the section 2(b) guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms. Section 181 of the Criminal code states that:

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.

May 2, 2001: the Joint Committee writes the CRTC regarding its regulations – copy of the letter unavailable

August 29, 2001: the Joint Committee writes the CRTC regarding its regulations – copy of the letter unavailable

September 6, 2001: the CRTC writes the Joint Committee – copy of the letter unavailable

September 10, 2001: the CRTC writes the Joint Committee – copy of the letter unavailable

November 1, 2001: the CRTC writes the Legal Counsel of the Joint Committee to say that the CRTC intends to “scrutinize [the false/misleading news] regulation carefully in light of the emerging Charter caselaw, the Zundel case as well as other jurisprudence that focuses more specifically on broadcasting, and also take [sic] into account policy and public safety concerns, and I will keep you informed of our views as they develop.”

May 10, 2005: the Joint Committee writes the CRTC listing the matters about which the Committee wanted more information – copy of the letter unavailable

February 4, 2009: the CRTC writes the Joint Committee with a response ‘addressing all pending points’, but does not provide details on the amendments it is proposing – copy of the letter unavailable

April 4, 2009: CRTC replies to Joint Committee’s May 10, 2005 letter – copy of the letter unavailable

November 19, 2009: Joint Committee meets and says CRTC should commit to make amendments to address the problems that have been identified. It instructs its legal counsel to write the CRTC.

December 2, 2009: Joint Committee’s legal counsel writes the CRTC – copy of the letter unavailable

January 29, 2010: CRTC writes the Joint Committee, but “still provides no details” – copy of the letter unavailable

June 4, 2010: CRTC writes the Joint Committee – copy of the letter unavailable

June 16, 2010: Quebecor applies to the CRTC to convert its over-the-air TV station in Toronto to "Sun TV", an all-news specialty service (Source: The NBF Daily Bulletin (16 June 2010) at: http://pdf.cyberpresse.ca/lapresse/dufour/QuebecorFBN.pdf)

July 5, 2010: The CRTC returns Quebecor's all-news application because Quebecor is asking for mandatory distribution (source: The Globe and Mail at: http://www.theglobeandmail.com/report-on-business/crtc-refuses-sun-tvs-b...)

July 26, 2010: Quebecor applies for a non-mandatory all-news specialty service

November 25, 2010: The Joint Committee meets
and says CRTC should commit to make amendments to address the problems that have been identified and instructs its legal counsel to write the CRTC

November 26, 2010: the CRTC approves Quebecor's application for an all-news specialty service

December 2, 2010: the Joint Committee writes the CRTC about concerns it has regarding the Broadcasting Distribution Regulations - copy of this letter is not available [this date added after original posting on Feb 19,2011]

December 10, 2010: the CRTC writes the Joint Committee and provides a copy of the draft amendment to the Broadcasting Distribution Regulations – copy of this letter and its attachment are not available

December 10, 2010: the CRTC seeks comments on amendments it proposes to the regulations governing the cable and satellite companies that distribute television programming. Section 8(1)(d) of the current Broadcasting Distribution Regulations prohibits cable and satellite licensees from broadcasting false news:

8. (1) No licensee shall distribute a programming service that the licensee originates and that contains
...
(d) any false or misleading news.

The fourth amendment in the appendix to Broadcasting Notice of Consultation CRTC 2010-931 is as follows:

4. (1) Paragraph 8(1)(d) of the Regulations is replaced by the following:
(d) 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.

Broadcasting Notice of Consultation CRTC 2010-931 does not quote the existing section of the Broadcasting Distribution Regulations, requiring those interested in the impact of the amendment to check back with the current BDU regulations.

December 23, 2010: the Legal Counsel of the Joint Committee writes the CRTC to say that the wording proposed by the CRTC (a prohibition on the broadcast of false or misleading news which the licensee knew to be false or misleading and which constituted a threat to the life, health or security of the public) resembled the wording that the Supreme Court had found to be invalid for constitutional reasons in Zundel. The Joint Committee’s legal counsel tells the Commission, “It is difficult to see why this prohibition could be judged valid. [translation from French original].

January 10, 2011: the CRTC seeks comments on its proposal to amend the false/misleading news regulations for radio, television, specialty television and pay television

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