Broadcasters say no to political ads using their content. Sounds good, but can they do it?
With a provincial election underway in Ontario and 4 federal by-elections slated for the end of June the timing of the announcement by Canada’s national broadcasters that they will not allow unauthorized use of their content in political ads is auspicious. But as Law Editor Thomas Rose writes, making the ban stick may prove harder than anticipated.
By Thomas Rose, Law Editor
With a provincial election underway in Ontario and four federal by-elections slated for the end of June, the timing of the announcement by Canada’s national broadcasters that they will not allow unauthorized use of their content in political ads is auspicious.
The announcement late last week by CBC, Rogers, Shaw and CTV—who own or operate the bulk of all television and radio stations in Canada—came wrapped in the ideal of journalistic independence.
As CBC first reported, the broadcasters are concerned that the use of their content “in political advertisements without our express consent may compromise our journalistic independence and call into question our journalistic ethics, standards, and objectivity.” In other words, if politicians won’t play fair in their ads, Canadian broadcasters can. Or can they?
As high minded as these intentions sound, what the laws and the courts say about election advertising, copyright and freedom of expression may render the broadcasters’ journalistic cri de coeur little more than empty rhetoric, much like the empty rhetoric often found in political ads.
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Regulation of Election Advertising
Election ads are regulated by the Canada Elections Act, the Broadcasting Act and the Canadian Radio-television and Telecommunications Commission, otherwise known as the CRTC. The rules are fairly explicit: During an election period, broadcasters must make room for 12 minutes of paid “advertisements of a political character.” The producer of those ads— the politicians, their parties and operatives— also get to choose when and on what medium the ads are broadcast, whether it’s television, radio or the Internet.
The rules are equally clear on the blocking of political ads. Section 325 of the Elections Act provides that no one other than “a person with authority” can block the transmission of election advertising. A person with authority is generally accepted to mean individuals such as the chief electoral officer or a judge, not a broadcaster. As the CRTC noted in 2013, “the broadcaster does not enjoy the position of a benevolent censor who is able to give the public only what it ‘should’ know.”
The CRTC also acknowledges that its rules do not cover all conceivable disputes over election broadcasting. Presumably this would include a broadcaster who might claim the right to block an election ad that contained material the broadcaster felt was protected under copyright laws. This interpretation of such laws suggests that should a political candidate, for example, say something embarrassing while being interviewed on a TV news show or even at a public gathering at which a reporter has recorded the politician’s words and then incorporated them into a broadcast news report, then the broadcaster has proprietary rights over that content.
Canada’s Copyright Act recognizes a variety of instances in which individuals or organizations, including broadcasters, that produce original content have a right to protect that content from unauthorized use. In this way, a composer, a playwright, or an inventor is comforted in the knowledge that the law generally agrees that what they have created is theirs alone to do with as they see fit.
But the Copyright Act also recognizes that there are occasions when others can and should be allowed to make use of someone else’s original work. The rules governing these exceptions can be found in section 29 of the Act under the heading Fair Dealing. In 2012, the Supreme Court of Canada issued a series of landmark decisions known as the copyright pentalogy that helped clarify when copyright exceptions are allowed.
As communications scholar Michael Geist notes in his 2013 book about the decisions, the pentalogy has shifted judicial interpretation of the fair dealing clause from copyright creators to public users. The court has determined that the exception should be granted “a large and liberal interpretation” so that the rights of the users of such content are not unduly constrained.
Article 29.1 provides for example that fair dealing for the purpose of criticism or review does not infringe copyright as long as the source of the material is clearly identified in the ad. This means that as long as the ad clearly identifies for example CTV’s Power Play as the source of the clip it contains, then presumably it would be alright to use the material.
There are other criteria a court may apply when determining whether the use of content disseminated by a broadcaster qualifies as an exception to copyrighted material but in essence the Supreme Court in its pentalogy seems to have taken to heart Justice Ian Binnie’s 2002 caution in Theberge v Galerie d’Art du Petit Champlain that excessive control by holders of copyrights “may unduly limit the ability of the public domain to incorporate” their material in other works.
Free speech and journalistic independence
On a purely ethical level the broadcasters’ intention to prevent unauthorized use of its content in political ads may hold more weight if it weren’t for the fact that broadcasters are often accused of unethical behaviour when it comes to political reporting. In 2009, for example, CTV was found to have breached broadcast ethics when it included three false starts in an election interview with then Liberal leader Stephane Dion. By including the three false starts in the version people watched in their homes, Dion was made to look like an inarticulate fool. In 2002, the CBC lost a bid to overturn a decision by an Ontario court that ordered the public broadcaster to pay $1-million in damages for maliciously and unfairly manipulating the facts to defame an Ottawa scientist at the centre of a story about regulating heart medication.
Time will tell just whether the broadcaster’s prohibition has any teeth but, if nothing else, keep this in mind—the broadcasters have only stated they will block any unauthorized use of their content. What about authorized use?
It is no secret that Canada’s broadcasters often display a political bias. Toronto radio station Newstalk 1010, which is owned by Bell Media, which also owns CTV, is a recognized safe haven for sitting and former right wing politicians including Mayor Rob Ford and John Tory, the former leader of the Ontario Progressive Conservative Party. CBC, rightly or wrongly, has long been accused of being a hotbed of left wing ideology. What if content exists that could help a political party that shares a broadcaster’s economic, social or other interests, would it be alright to authorize use of that content in a political ad? Would that work to undermine or enhance journalistic independence, ethics and objectivity?
Most people assume that political candidates and their operatives regularly distort the truth and misrepresent facts in their television spots. Perhaps the public and journalistic integrity would be better served if broadcasters ensured identification of those distortions were part of their regular election coverage.
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