To read LOW's formal submission, click here.
LOW has extensive experience in administrative law, with special emphasis on issues related to public consultation and transparent decision-making. As a not-for-profit organization, we also have experience working with media (providing interviews and background information) and creating news (weekly radio program 2007-2010 and weekly news articles 2001-present).
LOW has reviewed the proposed changes to the Radio Regulations, 1986. Based on our experience with law, environment, and media we have concluded that the change to Paragraph 3(d) is ill-advised and hasty. We strongly recommend that the CRTC decide not to amend the regulation at this time.
Currently, Section 3(d) of the Radio Regulations, 1986 reads as follows:
"A licensee shall not broadcast ... (d) any false or misleading news; or ..."
The Broadcasting Notice of Consultation CRTC 2011-14 states that a change to this section has been requested by Parliament: "The amendments address concerns raised by Parliament’s Standing Joint Committee for the Scrutiny of Regulations ..." The proposed amendment would change Section 3(d) to read as follows:
"A licensee shall not broadcast ... (d) 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; or ..."
The two changes of primary concern relate to these concepts:
The licensee must know that the news is false or misleading; and
The false or misleading news must also endanger or be likely to endanger the lives, health or safety of the public.
The proposed wording of Section 3(d) creates more confusion and less certainty for broadcasters and the public than the existing wording. It may encourage and facilitate the broadcast of news that does little to promote public education or the public interest, especially in the areas of science, public policy, and the environment.
(i) The requirement that the licensee must know that the news is false or misleading is unworkable.
The current test is one of truth: Is the news false or misleading? This test will be replaced by a far more subjective test: Does the broadcaster know that the news is false or misleading? In essence, the amendment means that it is no longer a problem to broadcast false or misleading news in Canada; it is only a problem to broadcast false or misleading news if the licensee knows it to be false or misleading.
This new requirement is virtually unenforceable. Government, the general public, or competitors are highly unlikely to be able to prove what a licensee knew or did not know at the time of broadcast. As a result, there is no deterrent against the broadcast of false or misleading news.
The amendment may encourage superficial journalistic efforts. Since the test is no longer "what is true?" but is instead, "what does the licensee know?", licensees are encouraged not to investigate controversial or complicated stories very deeply. This is especially problematic for coverage of environmental issues, which often require in-depth research on scientific and legal issues.
The amendment may create a different standard for public and private news broadcasters. The CBC, as a public corporation, is subject to the Access to Information Act. While it may be possible for government, the public, or competitors to prove what the CBC knew at the time of a broadcast, the Act does not apply to Canada's private broadcasters; it becomes virtually impossible to obtain evidence documenting what a licensee knew or did not know about its news report. As a result, the playing field is not level for Canada's news broadcasters.
The requirement that the licensee must know that the news is false or misleading creates an unworkable legal test, is virtually unenforceable, discourages thorough journalistic research, and may hold the nation's private broadcasters to a lower standard than public broadcasters. Thus the regulation fails to deter licensees from broadcasting false or misleading news.
(ii) The requirement that the false or misleading news must also endanger or be likely to endanger the lives, health or safety of the public is unworkable.
It is virtually impossible to prove that any news - false, misleading, or otherwise - will endanger or be likely to endanger lives, health or safety. To meet the new test, one must first prove that the news was false or misleading. This is consistent with the old test. A new element has been added, however, and one must now also prove that the news endangers or is likely to endanger lives, health or safety.
It is virtually impossible to prove this element of the test, especially with regard to news stories about science, law, and the environment. Establishing causal relationships in environmental matters is complicated, sometimes impossible to do with great certainty. Establishing causal relationships also require specialized scientific study and evidence; this may require decades of monitoring and observation before effects can be determined. In light of how difficult it can be to accurately predict environmental impacts, Canadian law-makers have adopted what is known as the "precautionary principle". In the context of environmental decision-making, the precautionary principle states:
Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.1
The CRTC's proposed regulatory changes rejects the precautionary principle and declares that false or misleading news must be known to "endanger or be likely to endanger" the public; thus, the CRTC’s proposal places greater burden of proof on complainants than any other legal proceeding in the country.
This requirement is unwise to specifically, solely prohibit endangerment to "lives, health or safety of the public". Such a standard assumes first, that the consequence of false or misleading news could be anticipated and second, that there would be a direct cause-and-effect relationship between the false or misleading news and the consequence. As every environmental, scientific, and management decision-maker knows, the consequences of cumulative effects are as important as the consequences of individual effects. One piece of false or misleading news may not, in and of itself, directly endanger the public; this does not mean that the cumulative effects of several pieces of false or misleading news will not endanger lives, health or safety of the public.
Each of the two new tests is unworkable: proving what a licensee knows and proving that one piece of false or misleading news is likely to endanger the public. By combining the two tests into one new regulatory requirement it, becomes virtually impossible for government, the general public, or competitors to hold a broadcaster accountable for disseminating false or misleading news. The regulatory amendment creates an unenforceable, meaningless standard for Canadian news broadcasters.
Lake Ontario Waterkeeper strongly urges the CRTC to abandon the proposed change to Section 3(d) of the Radio Regulations, 1986. The change creates an unworkable regulation that could have serious long-term consequences for the health and safety of Canadians and the nation's environment.
To read LOW's formal submission, click here.