Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 10 - Evidence - June 3, 2003
OTTAWA, Tuesday, June 3, 2003
The Standing Senate Committee on Transport and Communications met this day at 9:35 a.m. to examine the current state of Canadian media industries; emerging trends and developments in these industries; the media's role, rights, and responsibilities in Canadian society; and current and appropriate future policies relating thereto.
Senator Joan Fraser (Chairman) in the Chair.
[English]
The Chairman: This is a meeting of the Standing Senate Committee on Transport and Communications, which is examining the state of the Canadian news media.
[Translation]
The committee is examining the appropriate role of public policy in helping to ensure that the Canadian news media remain healthy, independent, and diverse, in light of the tremendous changes that have occured in recent years, notably, globalization, technological advantage, convergence, and increased concentration of ownership.
[English]
Today, our first witness is Mr. Brian MacLeod Rogers, a lawyer specializing in media law and civil litigation. Mr. Rogers has represented individuals and media organizations in proceedings dealing with libel, privacy, copyright, freedom of expression and constitutional issues. He also teaches a course on media law at Ryerson.
Welcome to the Senate. I think you understand the drill here. You make an opening statement of maybe 10 minutes and then we go to questions and comments.
Mr. Brian MacLeod Rogers, Lawyer, as an individual: I look forward to those questions. I am here to be of whatever assistance I can. My intent is to talk about laws that affect the media at present, both publishers and broadcasters. At Ryerson School of Journalism, my colleague, Mr. Bert Bruser, and I teach a 13-week course that we created in 1993. It is interesting that, until that time, there were just a few lectures every year on Canadian legal issues for journalism students.
Other journalism schools have also adopted media law courses, and I also teach in newspapers and at other gatherings where particular aspects of the law need to be focused on. There is, at present, no course at any law school in Canada that is focused on the law affecting the media. For example, there is no course that focuses on libel law, which is by far the most important area of concern to the media. In fact, when I was at law school — it was a few years ago; I was at the University of Toronto law school, a great law school — there was not a single course available to me to learn libel law. I had to undertake independent research — papers and studies — to do that, which I did in my second and third year.
One of the themes I want to bring to bear, as well as answering questions about the nature of the law, is that in this country we have not had the same devotion to, and focus on, free-expression interests as other countries. It is particularly true in relation to our neighbour to the south, where first amendment studies is like an independent industry, and they have institutes and studies and professors of so and so and this and that. There is a great, ongoing debate at the academic level, as well as at the popular level, on what they call ``first amendment'' or free-speech-related issues. There are organizations that are completely devoted to these issues.
I feel, and I know my colleagues who are judges feel, that there is a need in this country for a more vigorous, academic debate on legal issues affecting the media and free expression. When you face times of crisis, the importance of free expression in a democracy is never more proven, and also most fragile. I have spent a lifetime involved in these issues, right from being a kid involved in a university newspaper to being a reporter while at law school. I was not intending to be a lawyer. I ended up being a lawyer because, all of a sudden, the Charter was brought in and made the life of a lawyer concerned with these issues very interesting.
I am involved at a professional level, as well as at Ryerson. A group of us founded the National Media Law Seminar, an annual event open to lawyers acting for the media. That led to the formation of something called Ad IDEM, Advocates in Defence of Expression in the Media, of which I am very proud to be the founding president. I am also proud to be on the board of Canadian Journalists for Free Expression. However, I am not here in those capacities. I am not speaking for those organizations, and what I say today are solely my own opinions.
In the materials that have been presented, you have a copy of the outline of the 13-week course we teach at Ryerson. I think you also have a copy of a paper that I prepared for a U.S. organization and which was published in the States. I thought it was helpful because it dealt with the contrast between U.S. law and Canadian law on matters affecting the media, which is an area that is often not clearly understood.
In this country, by far the greatest regulator of what can appear in our media on a day-to-day basis is the law of libel.
The law of libel is quite an extraordinary tort in law terms because it is one of three torts that is a strict liability. Once a plaintiff establishes that defamatory words have been published about him or her, damage is presumed, falsity is presumed, and malice is presumed. It then is the role of the defence to find some means to defend what was published or broadcast. The analogy at law to defamatory words is if, on your private property, you store noxious or poisonous chemicals, or you have a lion in your backyard that escapes, you are strictly liable for any damage that lion or the chemicals cause.
I do not think that many in society appreciate the way the law works in its application. It forces the media to defend what they have published. That is the intent of the law. That is the way it developed.
Those defences are quite restrictive. The key defence is truth. Truth is an absolute defence. The only difficulty with truth is what is it that you have to prove is true, and what is the evidence that is admissible at court, and which is credible and convincing to the judge and jury? Who will appear as your witness on the stand when the trial comes? It certainly has an impact on stories that are written about matters that occur in other lands because it becomes costly and difficult to prove your case. You need witnesses and evidence from those foreign countries. The evidence may require translation. Commissioned evidence abroad may be necessary.
It also has an impact here, because if you are relying on confidential sources, you cannot prove your case without exposing them. That confidentiality, and whatever promise was made, will be lost if the source is put on the stand to prove your case.
Truth is obviously a potent defence and an important one. Every media client I act for strives at all times to publish things that are true. It is not as obvious as one might think that one can prove the truth of what was published because the second part is what is the meaning that you have to prove is true? If you as a broadcaster think that the meaning you have to prove is true is that there is an issue concerning, for example, conflict of interest that is worth raising and considering, do you have to prove that the person was in a conflict of interest? Do you have to prove that, at the end of the day, or is it sufficient to say that there are enough facts to make this an issue that is worth talking about. The threshold then is something less.
That gets us to our second defence, fair comment, which only protects statements of opinion. I do not need to tell this committee that the dividing line between statements of opinion and statements of fact is a murky one at best. It is not something that can be counted on with great certainty. Even there, you have to prove the underlying facts are true, again by admissible evidence, through witnesses, that is convincing and credible in a court of law. That defence and the third defence, the qualified privilege defence, will be lost if the plaintiff can prove malice.
The third defence, qualified privilege, applies to covering these proceedings, for example, covering Parliament, municipal council meetings and judicial proceedings. It has been expanded to encompass a broader range of public interest matters. In other countries of the common law, Australia, New Zealand, England, in cases decided over the last decade, a significant defence has been established with respect to matters of public interest. It not only concerns politicians, but matters of public interest. It creates a privilege where you do not to have to prove what you published is true. That applies to statements of opinion and statements of fact. It gives a broader ambit, a broader protection. That is the defence, which is discussed in my paper, that the United States created in 1964 and applied to defamatory matters concerning public officials.
A few years earlier, Canada had taken a different direction, which denied a qualified privilege and removed a qualified privilege in circumstances where there is publication in the media.
In the States they went the opposite way. Australia, New Zealand and England are all developing a qualified privilege defence on their own terms that I hope our courts in Canada will adapt and apply to Canadian circumstances.
I do not think the famous Hill v. Scientology case, which rejected the New York Times v. Sullivan defences, has closed the door completely on the development of the qualified privilege defence.
I complete this by commenting on the importance of the concept of malice. Malice is a very loosey-goosey legal concept. If you can be shown to have acted recklessly, or for some improper purpose — not only spite, or the usual notion we have a of malice, but something that shows you were not using the occasion for the purpose for which it was intended and if you do not have an honest belief in what you have decided to publish — then those two defences, of fair comment and qualified privilege, are lost and you are left with only truth. Through the Trojan horse of malice, plaintiffs get to explore every corner of the newsroom and the reporter's work effort and state of mind as to what was happening when the article was being written and published.
It is used in all kinds of circumstances to expand the scope of discovery and the exploration of what has been done by the media.
I have used libel as one area. In the course outline, there is law relating to privacy, to contempt, publication bans, coverage of court proceedings, difficulties in access to bodies of information — a host of problems that arise when getting the information for a story. Post-publication, there may be subpoenas of reporters, search warrants and assistance orders on newsrooms.
In 13 weeks, we try to cover a lot of ground. My purpose here is to make you aware that there are myriad laws applicable to the media already that very much affect what you and I can see and read.
I look forward to your questions.
Senator Graham: Welcome, Mr. Rogers. What you have said and what I have read makes for an interesting hour. I think we could keep Mr. Rogers here all morning. We would enjoy the time and obtain plenty of information under the general terms of reference under which we are operating.
In one of your documents you talked about libel laws south of the border and north of the border regarding criminal court proceedings, and suggested that north of the border, the winds affecting free speech blow much colder. Could you expand on that?
Mr. Rogers: In the United States, the law of contempt does not exist in the way it does here. Here, you cannot publish something that poses a significant risk of prejudicing the right to a fair trial. In addition, there are various publication bans on bail hearings, preliminary inquires, voir dires during a criminal case before a jury and so on that are all designed to protect the fair trial rights of the accused and to ensure that people who are convicted — if they are — are judged solely on what is before the court.
South of the border, they have an entirely different approach. I am not saying it is right. In many ways, what we have has evolved over time and is a very acceptable way to go. However, it is very different; and Americans cannot understand how we get a prior restraint on something that happens in open court, and why we will not publish something simply because there is a speculative possibility that it will affect some trial somewhere down the road. They would publish those things in an instant.
Senator Graham: You co-authored How to Get the Story Without Getting Sued or Put in Jail. How do you teach your journalism students —
Mr. Rogers: There is a copy here.
Senator Graham: Good. Is it for sale in the local bookstore?
Mr. Rogers: Not anymore, unfortunately. It was written in 1985, and Mr. Bruser and I, who wrote it and teach at Ryerson, continually ruminate about the need to update it and issue a new edition. It is not current law in some of the areas covered. It was published by the Canadian Bar Foundation, and we decided it should not continue to be available.
Senator Graham: Presumably, you are up to date in what you teach your students.
Mr. Rogers: Absolutely.
Senator Graham: How do you teach your students how to get the story without being sued or put in jail?
Mr. Rogers: I think the course outline is in the materials that I provided. We focus a lot on libel law. It is important to remember, although it has not been used against the media for several decades, that there is a criminal law of libel. The Criminal Code has sections that deal with defamation, but you are unlikely to get thrown in jail for libel. That is when you get sued.
You get thrown in jail because you break a court order or are otherwise in contempt of the court — if you refuse, for example, to disclose a confidential source that a court deems necessary for the proceedings before it. We talk a lot with the journalism students today about that particular difficulty — that is, making commitments of confidentiality to sources — because the law in the area is so unclear at present.
The Supreme Court of Canada had a case in which they might have ruled on it and decided against it. We have yet to have a real precedent established in that area as to where the line will be drawn. There is a lot that journalists can do to protect themselves in those situations if they think about it. Therefore, we spend a lot of time on that issue. At the end of the day, I hope we succeed in alerting them to areas of risk so they can get cogent legal advice on the issue when it hits them in the face.
Senator Graham: Do the libel laws in Canada today cause journalists and the media to avoid certain stories?
Mr. Rogers: Yes.
Senator Graham: Can you give us an example?
Mr. Rogers: When you have a limited set of resources in the newsroom and a story that is very difficult to tackle — and that at the end of the day over which you may well be or are likely to be sued, even if unjustifiably — you will make choices that favour the stories that present fewer problems in that respect. I think that it is a very subtle process.
If I asked any of my clients in any newsroom in Canada if there was a story they were not pursuing because of the libel laws, they would stoutly deny it. I know, on the other hand, it cannot help but affect where they will spend their resources. I cannot give you a specific example without running into problems.
The Chairman: Would it be reasonable to suppose that the threat of libel does not necessarily deter them in the pursuit of a story, but it will greatly affect the way in which they tell that story — how much of it they choose to tell?
Mr. Rogers: That is self-evidently true. I am involved on an almost daily basis in reviewing stories for publication. One thing that the media have come to appreciate is that the cost of having a lawyer review a story that may be problematic is dramatically less than the cost of litigation after the fact. In that process, my role as a lawyer is to get the story, or as much of that story as possible, into the paper. There will always be some aspect that, when we probe and ask questions — what do we have to prove this, will it stand up in court if we have to prove it — at that point at least, has to be left out of the story. Sometimes, it will only be pursued in a subsequent story, and maybe then will be publishable. However, sometimes there are certain stories that never make it, except maybe in Frank magazine.
Senator Graham: The Chair's supplementary prompted Mr. Rogers to say that, almost on a continuing basis, he is reviewing stories for publications, presumably to ensure that there is no libel attached. Would you care to share with us for which publications you do that?
Mr. Rogers: I act for quite a variety of publications, some owned by the Torstar group, some by Osprey, some by CanWest and some by what used to be Thomson and is now Bell Globemedia. I used to act for Hollinger — some of its publications when it existed — as well as other book publishers.
Senator Graham: Given the nature of the stories that appear in the newspapers today, I do not know when you get the time to teach. You have been pretty busy reviewing the stories that will be published.
Senator Day: I was reading the outline for your course, and following on with the metaphor that you used — cold winds from the north — in the presentation that you made in the U.S. a while back, I notice that one of your titles is ``libel chill.'' Are you carrying on with this metaphor, and can you describe what ``libel chill'' is?
Mr. Rogers: Libel chill is what Senator Fraser just spoke of, that is, are there stories that are not pursued or things that are not published that might otherwise be published but for the law of libel?
Obviously, the law of libel serves a real purpose. It prevents or punishes publication of defamatory matter that is wrong, that should not have been published. There is no doubt that the media and any publication can significantly harm the reputation of an individual. That is something that is always weighing on you when are you looking at a story. The fact is that you tend to err on the side of caution most of the time because of the way the law works. As I said, it is a strict liability tort. It puts the entire onus on you.
In the United States, the plaintiff has to prove falsity. Even a private individual suing the media has, at a minimum, to prove negligence; in other words, that there was some fault involved.
In Canada, that is presumed. The defence has to establish one of those defences I outlined. When you are looking at stories that might be published, you know the onus is on you. You may not choose to push the story or to publish certain aspects of information that you believe are true but that you fear would be difficult to prove.
Senator Day: The other area on which I would like to hear your comments is the impression I received from your presentation here that, with the U.S. situation and the Canadian situation being different — and we talked about the U.K. and Europe and the various legal systems — there is so much internationalism with respect to the media these days. How do we handle this and how do the media handle this? I am thinking of two or three instances that have helped me formulate the question.
One is the U.S. electronic and print media picking up stories with respect to court proceedings here and ignoring publication bans. Another one I am thinking of is, when I am standing in a line to get my groceries at the store, I see articles in some magazines that everyone knows are not true. You know the stories about media and television personalities and rock and roll stars doing strange things are not true. How do they get away with that? How do the companies that publish this in one country get away with it in the U.S., where, I think are you telling me, the freedom of the press is stronger than individual rights in certain instances? How does this all work out from a media point of view?
Mr. Rogers: There are a number of aspects to your question. I was the first Canadian lawyer to join what is now called the media law resource centre in the United States. It has members almost all over the world, certainly in major areas such as Europe, Britain, Canada and so on. I am participating in a seminar that will be taking place in London, England. I will be on a panel on libel law. They have a German, an American, a Canadian and two British participants. We recognize as lawyers, as do our clients, the increasingly international aspect of publishing, and of libel law in particular.
There is a recent case from Australia in connection with a Web site, or an electronic and print version, of a Dow Jones article published out of New York.
This is the current reality. We are hooked up through the Internet internationally and publications flow internationally.
I have been involved in several publishing projects in which I have worked with lawyers in the United States, England and Australia on books that have been published, to prepare them for libel purposes. Each of us has brought something different to bear in terms of who we are worried about and the kinds of proof or backup information we need in order to be satisfied that the material can be published in our countries.
That is going on and it is fascinating. How we control the use of the Internet in particular, and other publications, for example, in the United States, is a difficult issue. We struggled through it in the Bernardo case, which generated considerable interest south of the border, as is the current case against Mr. Picton in B.C. It is a real struggle because we do not have an impermeable border. It is becoming less and less so every day. I suspect we will have to put up with some material that will breach our laws. However, the publication ban, for example, on the preliminary hearing in the Picton case in B.C., is designed to protect the ultimate fair trial of the accused in front of a jury. How many jurors, potential jurors, will actually be affected by what may be available through a Web site south of the border? Are those the kind of jurors that would obey their oath, which is to have regard to nothing but the evidence before them at the trial?
I think that it is unlikely at this stage that the impact of that media on potential jurors in Canada will be significant. The method of choosing jurors can weed out those that will be problematic.
I go to conferences every couple of years in the United States. I was there on a panel after the Carol Burnett case, in which the National Inquirer lost for an allegation that Carol Burnett was stumbling drunk in a Washington restaurant, which was utterly untrue. The lawyer for the National Inquirer said they realized that they would be treated as news media and forced to obey the same laws as the usual news media, and therefore they should behave more like them. According to him, everything they publish now is definitely cleared and meets their laws of libel.
Their laws of libel are different from those in Canada. There is greater latitude given, in particular for material published about public figures and politicians and the like. There is a wider ambit for them to publish things that would not be published here. I do not know if it applies to all those publications at the checkout.
Senator Day: Maybe I have not seen them all yet.
Mr. Rogers: There are certainly some that, on the face of it, you cannot take seriously. The article, therefore, would not be regarded as defamatory, because it is only if there is an injury caused to someone's reputation that the law of defamation applies. Some of them are so ludicrous it is hard to take them seriously.
Senator Day: Is that a defence?
Mr. Rogers: It is a defence.
Senator Day: That no one in his right mind would believe it?
Mr. Rogers: That is a defence, or that it was done in jest or humour and would not be taken seriously on that basis. Those are both good defences.
Senator Day: Part of your answer concerned the Internet. Let me ask my last question in relation to the issue of where something is published when we look at the Internet. Has the law caught up with this?
Mr. Rogers: This is playing out now. Simply put, the traditional English common law holds that something is published wherever you can have access to it. While Dow Jones is in New York and is publishing its information in New York, someone sitting in Australia can read it. That is publication in Australia for purposes of English common law.
The United States has developed an approach that is a little complex but, essentially, the jurisdiction of publication is more normally the jurisdiction that legally has to deal with a tort claim. That may be a little difficult. There are a number of factors to examine. There have been a number of cases of people in Virginia, for example, who cannot sue there but have to sue in Connecticut or New York, where the publication originated, because the intention of the people publishing that material was not to publish in Virginia but rather to make it available to its readership and to people interested in those issues in Connecticut or New York.
They also have something called a ``single publication rule'' that has an impact. That is, the very first publication of an article triggers the limitation periods for both Internet and print publication. The Court of Appeal of Ontario has adopted an approach that says electronic publication can be part and parcel of print publication. The same rules of libel notice and limitation periods apply with respect to that electronic publication as to the print publication. The U.S. has gone a step further. That is, if it is first published electronically on May 5, the print edition comes out May 6 and the electronic version continues to be available, that May 5 date is the triggering point for the limitation periods that apply.
Limitation periods are designed to get a plaintiff to take steps immediately, or as soon as possible, to deal with the defamatory matter. The reality of defamation is injury to reputation. One of the key issues in any lawsuit is the steps the plaintiff has taken to mitigate or protect himself from that damage. Obviously, if you sit around and twiddle your thumbs while the thing is out there circulating, you are not taking the steps you should to protect your reputation.
The U.S. system is very much based on that kind of approach. It is not the approach we take yet.
Senator Spivak: What is the difference between Canada and the United States on qualified privilege? As I understand it, in Canada the qualified privilege only applies within the boundaries of Parliament. If you are speaking on radio, for example, it does not apply.
Mr. Rogers: There are two different issues here. You have an absolute privilege as a parliamentarian speaking within the Senate or the House of Commons or here.
Senator Spivak: I see what are you saying.
Mr. Rogers: You have an absolute privilege to make outrageous, defamatory statements and not be sued. The media have a qualified privilege to report on what takes place, for example, at this committee. The qualification is the malice issue that I spoke of earlier. There are two kinds of qualified privilege. One is generally called the ``fair report privilege.'' That is what I speak of when I apply it to coverage of Parliament, municipal councils, provincial legislatures, court proceedings and a whole host of administrative tribunals, royal commissions of inquiry and the like. All those are governed by report privilege, which means that the job of the media is to fairly and accurately report what goes on. You do not have to have an honest belief in its truth. In fact, when you are covering a murder trial, you may think that a witness is lying through his teeth, but you write down what that witness says as part of a fair and accurate report. The media reporting on it are like the eyes and ears of the public; whereas the broader common law qualified privilege is designed to encourage people to express their honest beliefs without fear of being sued for libel. It is a much broader defence.
The United States has adopted that defence with respect to public figures. In the United States, you can write a story about a public figure as long as it is a matter relating somehow to the public aspect of that person. You can publish that as long as you have taken certain steps to verify it.
You do not have to know it is true. The whole Watergate publication, with its use of confidential sources, Deep Throat and so on, would not have been possible in Canada. It was possible in the United States because, within the decade before, they had developed The New York Times v. Sullivan qualified privilege defence for political or public figures. That changed the ground rules. In Canada, in the same situation, we would have to prove what we published was true, and we could not. We could not rely on confidential sources at trial because they would not be able to be witnesses if we were to protect their confidentiality.
Senator Graham: You raised Watergate. I do not believe that could have been published in the U.K. either.
Mr. Rogers: No.
Senator Graham: Could the Canadian press carry a CP byline, or an AP byline, that the story did not originate with a reporter from the National Post, Globe and Mail, Toronto Star or wherever? Could they carry a syndicated news article from AP or CP on Watergate?
Mr. Rogers: The great thing about Watergate is that the potential plaintiffs were all American. So far, we have not seen a stream of people coming over the border suing under our laws here. In fact, we would do everything we could to send them back to the United States. Therefore, if are you not worried about being sued by an American plaintiff, yes, of course you could publish that in Canada.
There are occasions, though, when you realize that what is being published in the U.S. under that protection creates risks for publishers re-publishing it in Canada. Each and every publication by a publisher is a separate tort, a separate potential cause of action. Theoretically — and this has happened with politicians suing the media — they may name newspapers from The Vancouver Sun to the Chronicle-Herald as part of a CP-generated story that was carried across the country and that, in their view, was defamatory and false.
Senator Spivak: I am puzzled. I understand it is very difficult for a plaintiff to prove libel in this country, whereas you seem to be saying the opposite. In other words, people do not sue newspapers or whatever because it is very difficult to succeed.
Mr. Rogers: It is important to appreciate that the law of libel is very much skewed in favour of plaintiffs here. As I said, plaintiffs need only prove at trial that something defamatory has been published about them, not that it is false, not that there was any damage. That is it.
However, the realities of libel litigation, as long as you have a properly defended media, often make it unattractive for plaintiffs to pursue a case. I have no doubt about that. The decision in Hill v. Scientology that I discuss in that paper called ``Cold Winds From the North'' accepted a level of damages of $1.6 million, including punitive and aggravated damages, and rejected any cap being placed on damages being awarded to plaintiffs. Also, you were not permitted in jury cases to cite other cases to guide the jury in what kind of damages they should award. Both of those steps, immediately subsequent to Hill v. Scientology, were taken in the United Kingdom to put a stop on what had been a growing trend of increasing libel damages in that country. Here, we do not have that. There is no doubt that over the last decade, there have been some very significant awards.
It is becoming more attractive to plaintiffs who can potentially see that pot of gold at the end of the rainbow to take on libel litigation and endure the realities of any piece of litigation, which is never much fun.
The Chairman: I will ask you to shift to another element of your course outline if you would, and put to you a question that has come up in this committee's hearings.
To who does freedom of expression belong? To whom is the Charter giving it? Is it to the individual citizen, the individual journalist or the proprietor?
Mr. Rogers: Everyone, all of those.
The Chairman: All of the above. How does that then play out in ascending hierarchies?
Mr. Rogers: Freedom of expression has many different recognized roles and purposes. This plays right into what I said at the beginning, by the way, which is that we need in this country a greater focus and expenditure of resources on developing a debate on freedom-of-expression issues. They are taken for granted and are not given the kind of weight and importance they should be.
One of them is simply personal fulfillment, freedom to express yourself, whether you are an artist or otherwise. It is just a part of your being to be able to freely express whatever you want to express. That is at an individual level.
In social intercourse, you want to engage with others and express your beliefs without doing it through the media. That is another aspect of free expression we should not lose sight of because that must be protected as well.
There is obviously the whole issue of expression of beliefs. Separate protection exists in the Charter for freedom of association and of religious beliefs, but freedom of expression is part of those because it is pretty hard to have an association without being able to speak and publish about it, or to have a religion without being able to discuss it and, often, proclaim it to the world.
We tend to focus on the political, public affairs aspects of freedom of expression, and there is no doubt that they are at the core of what is protected under section 2(b) of the Charter. Section 2(b) protects freedom of expression, including freedom of the press and other media of communication.
It explicitly builds in the recognition that the press and media are part of that protected freedom. The courts have recognized that the media often are the only means by which citizens can learn of things like court proceedings, like Parliament. Theoretically, Parliament is open to anyone who wants to enter, subject to a few security concerns, as are courts. However, the reality is that not only is the space confined but also people are busy. People are busy working, looking after their families. They cannot be there. The media then become the eyes and the ears of the public in that respect. I believe that is not and should not be limited to being merely a conduit for whatever the public figures feel they want to say at that moment, but should also play a role — I think Professor Jamie Cameron spoke about a watchdog role — in testing other aspects of political and public institutions. That is where freedom of information laws become very important. The whole issue of access to that process and the information that is available becomes crucial.
It is a rather long-winded answer to your question, but I do not see that any of those need be inimical to the others. In fact, I do not see how individual citizens in a democracy can meaningfully discuss the role of their public institutions without being informed of what is going on. How can you discuss whether or not this fellow got the right sentence for some terrible crime if you do not know the evidence, if you do not know what was before the court and the judge in making that determination? Uninformed discussion is not helpful in a democracy. That information is essential and I think we have to recognize that more often than not, it will come through the media.
Senator Phalen: We are all aware of the struggles of the French and the Mahaffy families to protect the memories of their daughters, in which they had to resort to the courts. Do you believe that public policy changes are needed to protect victims' families or, conversely, do you believe the courts are restricting the rights of journalists?
Mr. Rogers: There have in fact been a number of measures adopted in the last five or six years that are intended to protect victims, even dead ones. The most recent example is the Youth Criminal Justice Act, which for the first time explicitly makes it clear that even deceased victims cannot be identified if they are youths. It is a strange piece of legislation, but if you are a victim of a crime committed by a youth, as opposed to an adult, then prima facie, you cannot be identified. If the victim is dead, the only way can you do it is to have the family consent to that happening.
That is an example that would not have applied in the Bernardo-Homolka case because they were not young offenders. They were adults. However, for young offenders, that law is now in place.
That is section 46 subsection 4.1 of the Criminal Code of Canada, which I believe became legislation in 1999. That section permits courts to make a discretionary order prohibiting identification of a victim. To date, I do not know of a case where it has been sought in respect of a deceased victim, but it has been used with respect to other kinds of victims, as well as witnesses.
You are automatically entitled — and this would apply in the Holmolka-Bernardo case — to an identification ban if you are a complainant in a sexual assault case. That is there for the asking, and if you ask for it — which is normally done right from the beginning by the Crown attorney — you have an anonymity order in place. That is also available for witnesses under 18 on a mandatory basis.
Otherwise, you have to meet a discretionary test that the court is developing. Personally, I have a great deal of concern about this aspect — this growing protection and use of anonymity orders — because I think it is very powerful, as a member of society, to be able to identify with and understand the victims of crimes, as well as witnesses in court. I think it is essential to know who is testifying and what they are saying, because who knows? It has happened here in Ottawa that somebody testified and, after reading it in the Ottawa Citizen, someone else knew that what this person was saying was wrong and went to the Crown. That man ended up being convicted of perjury. There is a useful role to be played with respect to witnesses and, I also think, with respect to victims — who may be witnesses — even deceased victims, in enabling us to understand what happened here and to relate to the horror of the crime that has been committed.
I have huge sympathy, obviously, for the French and Mahaffy families — for what they and their daughters went through. However, I am concerned that the desire to deal with that specific and unique case should not be allowed to turn the law in the direction of increasing anonymity in judicial proceedings generally.
Senator Phalen: As a point of information in another area, in the case of young offenders, you said that in limited circumstances, the law can be set aside?
Mr. Rogers: It is not that it can be set aside. It is that, in dealing with victims, for example, the parents of a young victim can consent to someone being identified. It is not that the law is set aside, it is that the law includes this option in its operation. For example, there was a recent shooting in a high school in Taber, Alberta, by a young offender. One of the victims was 17, so he is a youth, but he wanted to talk about what he went through and what it was like. He did so, not only on his own behalf, but with the consent and approval of his parents.
That was in breach of the then-existing law, which did not allow consent to be given in these circumstances to the young victim being identified. An Alberta court set aside that aspect of the law as unconstitutional and said it made sense that this person should be able to talk about what happened to him in a way that identifies him. That approach has been adopted in the present Youth Criminal Justice Act.
Senator Phalen: You say this automatic statutory ban can only be set aside in very limited circumstances, either when the police are seeking to apprehend a youth at large and believed to be dangerous —
Mr. Rogers: That is the Young Offenders Act. We did not have the Youth Criminal Justice Act when that paper was written. At that time, what I said applied to the victim of the Taber shooting. Even though he consented, he was in breach of the law — that led to a court case and it was viewed as unconstitutional. The new law creates many other problems, especially for media lawyers advising their clients, because it is very difficult to understand how it applies in some cases. However, it does remedy that issue, so that a victim can choose, either when he turns 18 or with his parents' consent, to be identified.
The Chairman: Thank you, Mr. Rogers. What is the date, the year, of your paper, ``Cold Winds from the North''?
Mr. Rogers: I wrote it originally in 1998 and I think it was revised somewhat for publication. I think that publication took place in April 1999. There certainly are a number of statements in it that are no longer accurate.
The Chairman: Witness the Young Offenders Act. Nevertheless, there is a lot in it that is very relevant. Thank you so much. We could indeed have kept you here all day.
Mr. Rogers: Thank you, it has been a pleasure. This is an area of law that I enjoy talking about.
The Chairman: Our next witness is Mr. Christopher Maule, a Distinguished Research Professor in the Department of Economics and the Norman Patterson School of International Affairs at Carleton University. He is also a consulting associate at Carleton's Centre for Trade, Policy and the Law.
Welcome to the Senate. We are grateful to you for coming, and I understand you have an opening statement.
Mr. Christopher Maule, Distinguished Research Professor, Department of Economics and Norman Paterson School of International Affairs, Carleton University, as an individual: Madam Chair, and honourable senators, thank you for inviting me to appear before you today. I did prepare a presentation, so if I do not get through it all in my allotted time, it is there for you to read.
I should indicate at the outset that I am retired from full-time teaching, and I carry on my own research in the economic aspects of cultural policy, particularly with respect to the trade aspects.
In preparing myself for this committee, aside from looking back at the first Senate report by Senator Davey on the mass media and reading some, if not all, of the transcripts of your hearings, it struck me that the issues that you are addressing would be informed by the book, When Old Technologies Were New: Thinking About Electric Communication in the Late Nineteenth Century, by Carolyn Marvin; and Elizabeth Eisenstein's piece, ``Some Conjectures about the Impact of Printing on Western Society and Thought: A Preliminary Report,'' in the Journal of Modern History.
The first points out that in the early stages of a new technology, no one predicts accurately how it will work out. This was true for electricity, the telephone and radio, and later on for television and the computer.
The second examines what did happen after the introduction of the printing press and traces those effects over the next 400 years. Currently, the production and distribution of content in digital formats is the technology affecting news and entertainment media — print, television, radio, film and music. The difference that I see between the issues that you are addressing in 2003 and the previous Senate report is technology. The technology has changed dramatically, and that has changed our understanding, even our definition, of what is included in the media, where ``the media'' must refer both to the content and to the mechanisms of carriage and distribution.
Media concentration can be examined in both economic and non-economic terms. In economic terms, the issue is the impact of concentration on prices, profitability and market share. In non-economic terms, it concerns media diversity. The first is measured and evaluated using financial and sales data. For the second, there are less precise indicators, and judgment plays a larger role.
In economic terms, the evidence indicates that daily newspaper operations are experiencing financial difficulty in Canada as well as in a number of other countries. Distribution overall and per household is declining, and profitability is low or non-existent. This suggests that competition or some other factors are causing these conditions and that this aspect of concentration is unlikely to be a problem.
The figures from Statistics Canada show that daily newspaper circulation, as a per cent of the number of households, was 101 per cent in 1950, 71 per cent in 1975 and 45 per cent in 2000.
In response to these conditions, newspaper and broadcast owners are restructuring their operations. Their options are to exit the industry, reorganize existing operations or diversify. All those have been considered or exercised. For example, Hollinger and Thomson sold out some or all of their publications.
Diversification can be into related or non-related lines of business. A logical direction in economic terms is to move into related lines, and thus we see media conglomerates being formed as they try to reduce costs and increase revenues. It is not easy to predict what will work. Canada's media conglomerates are experiencing financial difficulties, and the same thing is occurring with similar firms in the United States, where Mr. Turner reports to have lost all but $1 billion of the $14 billion he initially made in the AOL-Time Warner deal.
Regarding media diversity, another aspect of your concerns, digitization, the force currently bringing about change, creates opportunities for diversity of news, current affairs and entertainment. Its general effects are similar to its predecessors, the printing press, photography, telegraphy, film, radio, television, satellite, fax and VCR, all of which were introduced in a relative short period of time, making it difficult for entrepreneurs and government policy to adapt to the changes. They all increased competition in the particular sectors that were affected by the technology.
Here with us now, and the impact of which we have not fully seen, is the increased use of personal digital recorders, which is creating further competitive pressures as viewers who are both consumers and citizens are able to program their own viewing schedule. Digitization reduces the cost of production and distribution and empowers audiences to pick and pay — or not pay, as in the case of piracy — for what they want. Reduced content diversity is not, in my view, the problem. An overload of information may be. Signal theft and protection of intellectual property is an important public policy issue.
Market fragmentation also means that private firms have to adjust their business models, and we are seeing the adjustment take place on the consumers' side of the market, with their downloading of music and films, and it is reported that over 500,000 films are downloaded per day through the Internet. I would have thought book publishers would also be concerned about this development, but that does not seem to have happened yet.
Media diversity is increased by the response of traditional publishers and broadcasters establishing Web sites, as well as the Web sites of organizations and individuals. A check of the parliamentary Web site shows that 23 senators have their own Web sites. Senator LaPierre, a member of your committee, has one, and it at least adds to the diversity of Canadian cuisine with the material that is included there.
Of course, some sites have more hits than others, but I think an interesting development, and one site I use frequently — and I am sure there are others like it — is known as Arts News and Letters Daily, which has a gatekeeper and provides a selected synopsis of articles from world magazines, newspapers and commentators as well as links to many of them, all available without charge. For example, complete articles from the Spectator can be read for free on the Internet. You can spend the whole day reading material that is free, if you have the time. It is the 24 hours in the day that is really the constraint on receiving all this diversity.
To me, the evidence suggests increased media diversity from traditional and new sources and a willingness of individuals to search out this information, thereby providing competition to traditional news sources. While newspapers are experiencing declining circulation and profitability, more Canadians are connected to the Internet, have computers in their home and, increasingly, rent a high-speed connection. Forty per cent of households had Internet connections in 2000, estimated to be 60 per cent in 2005. At the moment, high-speed Internet connection is 5 per cent of households, estimated to be 35 per cent in 2005. Of the sites visited, the second most popular use of the Internet is for news sites.
Those without such facilities can use Internet terminals for free in public places such as libraries, or obtain access at low cost through Internet cafés. Even public telephones, which were established for reasons of accessibility, are not free, and the Internet provides more options than the plain old telephone system ever did.
The empowerment of Canadian viewers and readers in this way has caused them to be more demanding of the quality of news reporting from the traditional media, a demand that has not been met in all cases, in my view.
With respect to public broadcasting, I do not share the belief that many Canadians view the print and broadcast journalism as being highly credible, especially in the case of news and current affairs reporting. This was the case even prior to the ``twin towers'' revelation of dishonesty and plagiarism of a New York Times reporter and the admission by CNN that it suppressed certain stories.
In Canada, recent reporting by the CBC of the Iraq war and Mideast politics was not, in my view, balanced, nor was it in the case of the BBC. I found informed and balanced reporting came from the PBS Lehrer News Hour, co-founded by a Canadian. Especially harmful to the CBC has been a public affairs program like Counterspin that was at one time moderated by a person who not only had a definite view on complex political and social issues, but also made a point of promoting that view in the discussion while acting as moderator. If this represents an attempt at agenda setting activity by the public broadcaster, it successfully sabotages this effort.
One problem concerns the nature of the funding process. CBC Radio-Canada television is financed by government and advertising. Its radio counterpart, for which there is more public support, has no advertising. English language TV viewing share has fallen from 12 per cent in 1993 to less than 7 per cent in 2002, and French language from 20 per cent to 17 per cent. Removing news, current affairs and sports would leave the CBC with lower numbers.
Others have pointed out the contribution the specialty services now make to program formats traditionally supplied by the public broadcaster.
In contrast, public broadcasting in the U.K. has an audience share of over 40 per cent; Germany, almost 40 per cent; and France, around 45 per cent.
PBS in the U.S. has retained a three per cent market share and, more importantly, a constant flow of government funding measured in constant dollars since 1980. Those figures are taken from a report that is referenced in the notes.
In my view, public television would be better served by being funded solely by government. Dependency on audience ratings would be lessened. It could focus on the undersupplied segments of the market for news and entertainment and would likely gain the enhanced reputation that CBC radio has.
It might also be accompanied by the removal of content rules for public broadcasters, which in my view are currently ineffective and give rise to potential trade disputes.
I mentioned in my notes what some consider the golden days of public broadcasting. I was brought up with BBC radio. It had two services, the home and light programs, with the content controlled by Lord Reith from 1926 to 1938. An autocratic manager, fond of imposing his views, moral and other, on the listening public, he stated at one time that he was proud that no issues of public concern were part of BBC programming.
Even at that time, competition came from privately owned Radio Luxembourg, and then in the 1950s, pirate radio ships anchored in the North Sea, much to the consternation of the BBC, which tried to stop these transmissions — competition did enter even under the circumstances of the BBC.
I turn now to policy alternatives. You have addressed some of these issues. In the event the government decides to intervene in the interests of greater diversity, which I would not support — by that I mean I would not support the intervention; I have nothing against increased diversity — the options include breaking up existing firms, regulating them or encouraging new entry, domestic and foreign. The last will require the removal of the foreign ownership restrictions on newspapers exercised through the Income Tax Act on the deductibility of advertising for tax purposes.
In one sense, new foreign entry is already occurring with increased access by Canadians to foreign publications. Other witnesses have noted that more than 700,000 Canadians have registered to receive The New York Times over the Internet at no cost, a figure in excess of the circulation of any Canadian daily newspaper. A study of registration for other foreign on-line newspapers and magazines I think will provide relevant and interesting information.
Another indicator of diversity would be the number and circulation of community and ethnic newspapers. Volume 1 of the previous Senate report had a chapter on this subject. My casual research found over 130 ethnic newspapers in about 35 languages received by the National Library in 2003. Their circulation and advertising revenue is not reported, but should be available with some research. Interestingly, some may be split runs of foreign publications, and if so, ineligible for the tax deductibility by Canadian advertisers.
The issue of concentration in regional markets, such as Vancouver, if it is a problem, will be alleviated if existing news sources do not supply satisfactory coverage that reflects what the audience wants. An entry by new firms will be encouraged or consumers will migrate to alternative sources that are now available due to technology, and the existing firms will lose circulation and then advertising revenue.
Removing policies that discourage entry by foreign firms would provide increased competition. In a recent report of the House Industry Committee, that policy is being proposed with respect to ownership in telecommunications and broadcasting and, if I recall, satellite. It is anticipated that the Heritage Committee may well come up with a different recommendation.
I would favour relaxing those rules in the interests of attracting more capital to the sector. Failure to do so will make them increasingly irrelevant if audiences migrate to some of the other sources that are currently available, and which I have outlined, in terms of the changing technology.
The Chairman: Thank you. These are important issues.
In your discussion of concentration, you said that daily newspaper operations are experiencing financial difficulty; profitability is low or non-existent. Everyone knows about the enormous sums of money that have been lost, at least to date, by the National Post. There have been suggestions on occasion that The Globe and Mail is not in great financial health, although I do not know whether those are accurate or not.
This committee heard testimony from the former publisher of the Ottawa Citizen to the effect that local newspapers are extremely profitable. I wonder if you took that into account in your analysis.
Mr. Maule: I was dealing more with the national newspapers. Again, I think we know something about the National Post. We hear rumours with respect to The Globe and Mail. I was checking on Torstar for the profitability of their newspaper operations relative to others. In the current report, it appears to be quite good, but in some of the previous years it seems to me that overall, Torstar's profitability has mainly come from its non-newspaper, book publishing operations, and particularly the success it has had with Harlequin books.
You are correct that some of the local newspapers are more profitable in this regard. I would suspect that some of the neighbourhood newspapers are also. Judging by the neighbourhood I live in, they are getting fatter all the time, and not just with news stories but with advertising as well. The small and local newspapers like that do seem to being doing quite well. They are certainly the place where Canadian stories can be communicated to Canadians at a local level.
I would very much support further research into that segment of the daily newspaper market.
The Chairman: Just to clarify, when I asked about local newspapers, I was not talking about the small community papers. I was talking about papers like the Ottawa Citizen and The Vancouver Sun.
Honourable senators, my parochialism may be showing here, but you should know that this day, the Montreal Gazette is celebrating its 225th anniversary.
Senator Graham: Thank you to the witness. He too is proving very interesting. I do not know how we will ask all of our questions in the time that we have remaining.
You used the example of Torstar with regard to profitability. Would you agree that perhaps Torstar might have suffered a setback with the advent of the National Post, but that it has since rebounded from a profitability point of view?
Mr. Maule: I have not analyzed the circulation figures of the major daily newspapers in recent months, but I would think, as a sort of competitive response, that would be quite natural. When a new entrant comes in and takes away some of the readership, the incumbents in the market will then look at ways to restore what would be declining circulation, and therefore it would not be surprising that new management might go in, new editorial staff and so on, and try to win back some of the loss of support.
It indicates to me that in that particular market, because Torstar is local to the Toronto region, the competitive forces are at work and the circulation figures should reveal what is in fact happening there.
Senator Graham: I have to question you closely on one assertion you made. That is, that you were brought up with BBC radio, and you were recalling Lord Reith. Even I could not make the claim that I was able to listen to the BBC in the early 1930s. I am astonished. That is quite an achievement, if indeed you were referring to the BBC at that time, or was it just a reference to the way that His Lordship controlled the outlet?
Mr. Maule: I was referring to the fact that part of those years did overlap with my ability to switch a wireless receiver on or off at that particular time. However, the legacy of Lord Reith led to other rather strong personalities as directors general of the BBC, and that continued, of course, throughout the war and the early post-war period, when I was an avid listener, Senator Graham.
It is also interesting to remember that wartime news broadcasts of the BBC were essentially written by the Foreign Office, or certainly approved by the Foreign Office, who were controlling the type of information that would be available to the public. If the British public had really known how bad the situation was in 1942, up until the time of the North Africa campaign, they would have been severely demoralized, or more demoralized than they had been. Therefore, there was public broadcasting in a wartime period, but it was in fact controlled by the government of the day.
Senator Graham: I have to confess, Madam Chair, that I was a bit of a radio junky when I was growing up, and sometimes late in the evening I kept twirling the dial to see what strange and wonderful sounds I could get from other countries. I share your sentiments.
One witness — I was not here at the time, but the record shows — proposed a national public daily newspaper, sort of a print CBC. Do you have any comment on the economics of such a proposal or the desirability of having a national public daily newspaper, publicly financed?
Mr. Maule: Let me answer the second part first, about the economics or the business model that I think would be employed. It would depend upon advertising and circulation revenue, and if it were like other daily newspapers, that would be a 70/30 split, or something within that area. If that were not adequate to finance the operation of the newspaper, then it would require a subsidy from government. The business model, if that were the one chosen, would depend upon the circulation and therefore the number of people who would purchase this newspaper.
The shrinking audience share of CBC English-language television does not point to an optimistic economic future for such an operation unless the subsidy made up for any deficit on the revenues from the other side. The business model does not look promising, net of any subsidy that the government might provide.
On the general desirability of a publicly owned daily newspaper, to me it really smacks of more autocratic forms of government, some of which in fact have their own daily newspapers. I would expect that to be a model that one would find in — and I hate to name countries here — North Korea or Myanmar or somewhere like that.
Even in places with which I have some familiarity, such as Malaysia, the public daily newspaper is privately owned, but it is the mouthpiece for the government of the day. I do not support that proposal or recommendation, either for business model reasons, or for the way it would be viewed and might well be operated.
Senator Phalen: This question has been asked of other witnesses and we received different answers. You stated, under ``Public broadcasting,'' and I am quoting, ``I do not share the views that print and broadcast journalism is viewed by many Canadians as being highly credible...''
Would you see the education of journalists as the underlying cause of the problem?
Mr. Maule: I have read the testimony of people who are much more concerned with the education of journalists in universities. Having had some access to them in my former teaching career, I did find that they tended to be thin on history, on economics, which was my subject, on international affairs generally, and on the ability to express themselves in writing.
I think that people who go into the profession of journalism should not go directly to journalism schools, but should have a general education background in history, economics, politics, science, whatever it may be. Then, in order to develop their skills as a journalist, they should start off as an apprentice or work as an intern on a newspaper before graduating to fully paid journalist.
If I were developing a curriculum for journalism, which I have never done, that is the way I would go. There is certainly some room for improvement in the training of journalists.
Senator Phalen: Could I follow up on that? You say ``some improvement,'' but then why do you believe that it is not highly credible? What is the solution? What is the answer?
Mr. Maule: In that section, I am thinking of traditional print and broadcast journalism. The competition that is coming as a result of new technology will enforce or encourage better reporting and better interpretation and editorial writing. That will hopefully raise the level and credibility of journalism in the traditional media.
There are new competitive forces out there that may help to raise credibility above the level at which I think it is currently.
One of the interesting developments was the rise of the anti-globalization movement, starting with the negotiations on the Multilateral Agreement on Investment, then at the WTO at Seattle, and afterwards at any international meeting. These people used non-traditional media to inform and educate each other. They created more pressure on the traditional sources of the media, that is, print and broadcast, to improve their reporting on and interpretation of events. It is almost a sea change that is occurring at the present time as a result of the technology.
Therefore, I would look at any way to increase competition, which I think is already happening, that would help to restore some of the credibility. Some of the things that happened at The New York Times are just mind-boggling. They raise questions almost of corporate governance, of how the senior managers and editors of the newspaper deal internally with their employees, and what pressure there is on them to change that. I think that has done tremendous damage, outside of the United States, to the credibility of traditional newspapers.
To answer your question, my hope is that the experimental use that people are making of the new technology will introduce competition and raise the level of credibility of what I call the ``traditional'' print and broadcast journalism.
The Chairman: Even though The New York Times surely does not need my help, let me offer the alternative view that the reason the Jason Blair case, if that was his name, made such news was because it was a case of man biting dog. It was the exception rather than the rule.
Senator Spivak: I think your idea of a curriculum for journalists is excellent. I would hope that would be one of our recommendations, but it is not likely to happen. I want to challenge your view of whether that contributes to credibility. People intuitively know — and I agree with you about the Internet — that a newspaper is now less than an institution for education than for entertainment and business. The reason we have so much sensationalism and poor reporting is the priorities that the owners, who are usually titans, place on being profitable. They are not profitable anyway. Do you not think that is the real reason that they are not credible? As my colleague mentioned, all those stories in the tabloids that everyone knows are not true are published to sell newspapers — and they do.
Mr. Maule: If you are a newspaper owner, you have to be concerned about circulation. It is unfortunate that sensational and contrived events may attract readers, who in turn will attract advertisers. We are looking at that again in terms of the traditional newspapers. If that is the only place people can go —
Senator Spivak: Or television?
Mr. Maule: Or television, but that is not the only place that they appear to be going currently. We see that the circulation of daily newspapers as a proportion of households is declining. We know that average hours of television viewing are also on the decline. Therefore, the question to examine is where these people are going or what they are doing with their time. Is some of that time spent going to Web sites where they can be informed, or are they merely looking for more entertainment in a different medium?
To go back to my original point, I think this committee needs to look at the impact of technology on the media, the traditional boundaries of the media and ask if that is the way the media should be defined today. If it is not, then how have the borders changed and how is competition taking place between traditional and newer forms of the media?
Even in the traditional forms, all newspapers and broadcasters have Web sites that are competing with each other. As a footnote, that is an interesting development, because broadcasters are regulated on their over-the-air service, but not on their Web sites. Newspapers are not regulated in the same way as broadcasters, either for their print copy or for their Web sites.
Now you have competition taking place between a regulated and a non-regulated entity. We do not know what the hits on the Web sites are. We do know that a survey by Statistics Canada of the use made of the Internet found that the second most important use, after shopping, et cetera, is news and public affairs Web sites.
The Chairman: Professor Maule, I am not trying to cut you off here because what you are saying is fascinating, but I wanted to warn everyone that we only have 10 minutes left. We have a very patient senator who has been yearning to put a question to you.
Mr. Maule: Let me stop right there.
Senator Day: My colleagues are asking a lot of the questions that I had from your presentation, Professor Maule. I thank you for that. The way you started out with ``When old technologies were new,'' that publication that you referred to, and the effect of new technologies is fascinating. We see that in the United States now they are going through the debate, not unlike in Canada, of whether the old rules are necessary any longer and serve any purpose in terms of concentration in ownership and cross-ownership. That kind of debate is going on as we speak, and the House of Commons, to which you have referred, issued a report that talks about foreign ownership issues. Maybe those rules could be relaxed and diversity encouraged. That is what we are really seeking, integrity and diversity, and trying to determine how the public can be best served.
You commented on the BBC, and how in spite of all the rules to protect the public broadcaster in the U.K., competition did come in. Then I say, maybe we do not need any rules at all. Especially with all this new technology, maybe it should be a wide-open market. Then I look at the numbers and see that the BBC still has 40 per cent. Was that because of the stringent rules they had? Canada's public broadcaster only has seven per cent of the market.
There is another part to my question. I will put it all together and ask for your comment. I am like you, maybe a little more concerned than our chair about the New York Times situation, and I am wondering about the CNN revelation that they withheld stories in order to maintain their position in Baghdad, which was very important from a commercial point of view.
Is this not all symptomatic of what we have seen on the corporate governance side, with Enron, filtering down into other areas? If so, will competition really achieve what you say it will? Competition is driven by commercial realities. Much of this difficulty that we are seeing now is a result of commercial pressures. Can we regulate against this, or will we have to accept the fact that the media are not as pure as we had hoped, expected, and felt they were in the past?
Mr. Maule: Part of my career was teaching industrial organization and competition policy. I am very aware of corporate wrongdoing, if you like, in the competition sphere. I do not think what you see in the media is a unique situation. We have seen it in Enron, telecommunications and a number of areas where there are problems of corporate governance.
I think that some form of oversight, whether it is press councils or a broadcasting standards council, of which we have one in Canada, is probably one of the necessary adjuncts, as well as things like competition policy in order to provide a regulatory framework for the media; and I think there will have to be a regulatory framework for the Internet, which was a question raised by the previous witness.
There will not be, or should not be, in my view, the traditional sort of Canadian content rules for the Internet as we have in broadcasting. The CRTC has more or less said that that should not be the case. However, there will need to be standards of decency and upholding of social standards for material that is circulated and transmitted over the Internet. For the reasons you spoke of, that is very difficult to accomplish nationally. It will have to be done through some international cooperation, in the same way as we manage the routing of airlines so we do not have crashes; we have an international organization for that. There will have to be international standards on social decency, violence and pornography on the Internet, but it will have to be that type of control. Yes, there will have to be some sort of regulatory framework for the media, and deciding exactly what that will be is part of the challenge you may have to face.
On the first question, of why has the BBC been so successful relative to the CBC if we use audience shares as a measure, I think much of that has to do with the source of funding. People recognize that the BBC, the public broadcaster, was given a special mandate from the government to do certain things. As long as it did those certain things reasonably well, it would retain financial support from the government, which it gets on a particular type of funding basis. It was unfortunate that Canada chose a different route at the outset, of using private as well as public funding for the CBC, because then it had two bosses. It had the government on one hand and the commercial market on the other, and it never really knew how it would satisfy both of them.
I spent a year in Australia, and the Australian Broadcasting Corporation is funded solely by government. It has a lot more public support in Australia than CBC television has — and I make a distinction — in Canada. I believe that has to do with the funding mechanism.
The BBC also went into the commercial market through BBC International. It made a decision to actively sell its programs abroad. It does not only sell the programs, because there are commercials included in those particular programs. Therefore, it sneaked in a commercial route for funding and has been very entrepreneurial in selling its programs abroad. We see BBC news, but there is now also a BBC Canada. They have a regional edition of the BBC in Canada and elsewhere. It is the split-run model, but in this case, in broadcasting.
I hope that addresses two of your questions.
Senator Day: I thank you very much for your comments. We are just exploring ideas and you have given us a lot to think about. I appreciate your time.
The Chairman: I will sneak in a supplementary question in regard to the BBC and the CBC.
One thing I have been turning over in my mind is the difference in context between the two, and one thing that comes immediately to mind is that Canadians, from the beginning, had instant access to huge broadcasting enterprises located in a neighbour that spoke the same language that most of them spoke.
There was no such neighbour vying with the BBC for the attention of British audiences. Is that relevant, or do you think I should forget that particular element?
Mr. Maule: I would feed that into your analysis of the differences in how the BBC and the CBC evolved. However, I would also then want to question why and how the BBC decided to break out of its domestic market and go international, whereas the CBC always seemed to me to be defending itself and its operation within the domestic market. Although there was a time, you will recall, when Mr. Juneau was head of the CBC, that he made a strong effort to sell CBC programming via satellite; and some goes into the U.S. market.
I think it is a mistake to always think that the size of our market and the proximity to the U.S. is a detriment to development. In fact, if we look outwards and say that is a market in which we could sell a product in the same language, it is in fact an enormous benefit.
Let me footnote that by saying that if you look at what is happening in the entertainment media, at Alliance Atlantis and Lions Gate Films and so on, what are they doing? Increasingly, a larger proportion of their total revenue is coming from export earnings, and particularly from the U.S. They are outward-looking and saying, ``We cannot make money in the small Canadian market, but we can if we access the world English-speaking market and if we dub it for other language markets as well.''
We should look at proximity as being a potential benefit to Canada if we exploit it in the right way. Private enterprises are increasingly doing that.
The Chairman: Thank you very much, Professor Maule. These are enormously complex issues that you have raised and made us think about.
Senator Graham, I said 12 minutes ago that we had 10 minutes left. How quickly do you think you could put a question and how quickly does Professor Maule think he could respond?
Senator Graham: I am fascinated by what the professor said about the coverage of the Iraq war. You suggested that the reporting by the CBC on the Iraq war and Mideast politics is not balanced — or was it the BBC? You suggested that balanced and informed reporting came from the PBS Lehrer News Hour, which was co-founded by a famous Canadian who still spends his summers in Nova Scotia.
How would you rate and compare the coverage by CBC — I thought CBC did well under the circumstances, and I thought they were balanced — with that of ABC, CBS, NBC and CNN?
Mr. Maule: Madam Chair, I think I can exempt myself from answering that question because I did not watch all those channels. I am not a credible witness on that particular question, Senator Graham. I would have to spend all day watching the news; and even though I am retired, I do not do that.
Senator Graham: There is lots to criticize about the CBC, our public broadcast outlets, newspapers and so on, but I did feel that under the circumstances — and I tried as much as possible to watch the coverage, whether it was by CBS, ABC, NBC and CNN — the CBC did very well in providing balanced coverage.
The Chairman: Thank you very much. It has been a most thought-provoking session and we are grateful to you for taking the time to be here and to prepare, as you did, with great care.
Our next meeting will be on June 5, at 10:45 a.m. in room 160-S in the Centre Block.
[Translation]
Our witness will be Ms. Armande St-Jean, Professor of Literature and Communications at the University of Sherbrooke. She has recently produced a report written by the task force she was presiding. This taskforce had been set up by the government of Québec and was asked to reflect on the issues which we are working on. She should be a very interesting witness.
The committee adjourned.