Consent and Vulnerable Sources

There are no clear journalistic policies on what constitutes informed consent, especially when dealing with vulnerable sources. It’s a complex question. Wendy Norman complained that CBC Labrador Morning ran a feature and an interview with a woman who was too fragile to provide consent and that the content re-traumatized her. The interviewee requested the interview and news staff followed best practices in assessing whether to run the material or not. There was no violation of policy.

COMPLAINT

You are the Executive Director of the Mokami Status of Women Council. You were disturbed that the host of CBC News Labrador Morning interviewed Susie Schule, a woman who is associated with your agency, at a birthday party held in her honor at your premises.

You said that Ms. Schule was in a vulnerable state because her mother had died violently in a house fire in July. The party was to “focus on Susie’s birthday and the support she has from the community.” Instead the reporter interviewed her at some length about her mother’s death and how she felt about it. You also mentioned that the reporter, John Gaudi, had contacted Labrador Grenfell Health (LG Health) back in August to consult about doing an interview with Ms. Schule then. Mr. Gaudi was told that it would not be a good idea because of Ms. Schule’s fragile state. You said that personnel from the health authority contacted him again in October about the content of the interview before it aired and to express concern. You thought it wrong to air many of the details revealed in the interview.

Many things were disclosed that should not have been included in the story. The fact that they were disclosed by a vulnerable person who expressed concerns after she had time to reflect on the ramifications of having her words aired on radio should have led to the decision to leave those comments out.

You said that the interview has had a negative impact on the reputation of your organization. You added that some people were under the impression that it was members of your agency who invited the reporter to the birthday party and coerced Ms. Schule into granting an interview. You wanted that situation rectified:

It is very difficult to change public perception and I demand that you will post something on your FB [Facebook] site and mention on the radio that we didn’t support or condone airing of the details around her mother’s death in the interview.

MANAGEMENT RESPONSE

The host and producer of Labrador Morning, Matt McCann, replied to your complaint. He informed you that Ms. Schule had “repeatedly” contacted CBC to say she wanted to talk about her mother and the circumstances of her death. He agreed that the CBC reporter contacted LG Health after the first approach, and that the request was turned down. He told you that the reporter sought and received permission to come to the birthday party from Ms. Schule and from a representative of your agency. He pointed out that the reporter did not hide his presence, nor the fact that he was recording. He added that at least one member of your staff also participated in the interview. He emphasized all the reporter’s work was done in an open manner:

Susie also knew she was speaking with a journalist. She felt she wanted to talk about her experiences the night her mother died. It's my understanding she gathered everyone before she spoke about it and that she shared her feelings freely.

He said he understood that the airing of the interview put your organization in a difficult position and he regretted that was the case. However, he explained that the way the interview was conducted and the decision to do so was carefully considered. He told you the reporter “acted in good faith and in accordance with our journalistic policies at all times”:

At the CBC we are guided by a set of journalistic standards and principles which we adhere to in everything we do... One of our guiding principles is that Canadians have the right to express themselves; that is, to be able to articulate their concerns in their own words.

Susie is an adult with full agency to make her own decisions. While we appreciate that your organization supports her in many ways, we don’t feel it would be appropriate to deny her the right to speak her mind because someone else thinks she isn’t ready.

REVIEW

Your complaint touches on some difficult ethical issues for journalists. Interestingly, CBC Journalistic Standards and Practices do not have explicit policy dealing with vulnerable or marginalized people. There are policies, though, that certainly address the issue of ensuring that people who are interviewed do so with consent. CBC Journalistic Standards and Practices contains policy about interviewing children and respecting privacy. That is not to imply Ms. Schule is a child - she is not. As the story about her revealed, she is a 45 year-old woman who has Fetal Alcohol Spectrum Disorder. She lives in an assisted living facility, and receives support in that way. I cite the policy around children because one can make the parallels to vulnerable people whose condition might affect their judgment. The policy states:

The participation of children (15 and younger) and youth (16 or 17) in our programs and content entails special challenges. Children and youth do not necessarily have the experience to weigh the consequences of publication of their statements. They nevertheless enjoy freedom of expression and the right to information. Their realities and concerns cannot be fully reflected without being heard in our reporting.

Parents or those exercising parental authority are often the guardians of this balance and we generally respect their judgment in this regard. However, in some cases a parent can abuse his or her authority and fail to act in the best interest of the child or youth. There are also other circumstances where it may be appropriate to allow youths to exercise their good judgment about granting an interview or otherwise participating in our programming or content, for instance when no foreseeable inconvenience or detrimental consequences for them or their family could ensue.

We carefully assess the impacts according to the specifics of each situation. We respect the will of the child or youth and we put his or her interests foremost.

The policy on privacy clearly lays out the value of freedom of expression, publishing in the public interest against the right to privacy and dignity, especially in the face of pain and suffering:

We exercise our right of access to information and our freedom of expression within the context of individual rights. One of these is the right to privacy.

In situations involving personal suffering and pain, we balance the public’s right to know against individual human dignity.

We disclose information of a private nature only when the subject matter is of public interest.

In this case, in August Ms. Schule reached out to CBC reporters through Facebook, saying she wanted to talk about her mother and what had happened to her. This was only about a month after her mother had died in a house fire, one in which Ms. Schule was also present and discovered her mother’s unconscious body. At the time she contacted the reporter in August there was an arson investigation ongoing (charges have now been laid), and the reporter also consulted staff from Labrador Grenfell Health who are involved in Ms. Schule’s care. Mr. Gaudi was advised that Ms. Schule was still in a fragile state and that there was an ongoing police investigation, so he did not follow through with the interview at that time. Mr. Gaudi told me he has known Ms. Schule for five years and has interviewed her and her mother in the past.

Three months later, your agency organized a community birthday party for Ms. Schule. Mr. Gaudi asked her if he could attend, and also cleared it with an employee of your Council. As Mr. McCann explained to you, Mr. Gaudi was there, out in the open, and recorded the ongoing festivities as well as Ms. Schule’s public remarks - both about her pleasure at being with members of the community and some details of the morning of the fire. He also did an interview with Ms. Schule and her sister. One of your staff was also interviewed, emphasizing the communal support offered Ms. Schule and the understandable sadness she was feeling on the first birthday without a loved one. The resulting radio broadcast and the online article reflect all those aspects. You mentioned you thought it irresponsible to use Ms. Schule’s recounting of her mother’s violent death. In reading the piece, and listening to the segment aired on Labrador Morning, I did not hear an over-emphasis on the negative details, and the support of the community and the Mokami Women’s Council is apparent. This is how the piece was introduced:

It was an emotional 45th birthday party for Susie Schule.

The women's centre in Happy Valley-Goose Bay invited friends and family to celebrate the day with her.... after a tough few months for Susie.

In July, her mother, Regula Schule, died in a fire at her home in Happy Valley-Goose Bay.

At first, police called it suspicious.... then two months later.... Jonathan Henoche was charged with second degree murder.

Susie lives with Fetal Alcohol Spectrum Disorder.... and she hasn't spoken publicly since her mother's death until now.

Labrador Morning reporter John Gaudi was at the party.... to find out how she's coping.

The audio began with an upbeat Ms. Schule thanking staff for the cake they made, and telling them she loved it. It ended with another acknowledgement of the support she has been shown. Of the nine minutes the segment aired, about two are devoted to Ms. Schule’s recounting of her mother’s death. She does keep talking about how much she missed her. The piece is sensitively and appropriately put together, which brings us to the crux of the matter: was it appropriate to have run it at all? You stated to me on the phone and in your email to Mr. McCann that she regretted having done it. On the phone you mentioned that she mentioned it to one of the Women’s Council workers, although that same worker did not share that information with Mr. Gaudi in an email exchange. For his part, Mr. Gaudi acknowledged he was in touch with representatives of your organization and LG Health. They expressed concern that Ms. Schule was still fragile, and emphasized the need to focus on the community support and not the details of Regula Schule’s death.

It is my assessment that Mr. Gaudi operated in good faith, and did so with some sensitivity. He phoned Ms. Schule a few days before the piece was scheduled to let her know it would be aired. He sent her a link to the article on the website. At no point did she ask him to reconsider running it. Ms. Schule was treated with dignity and respect, and as Mr. McCann put it to you, Ms. Schule is an adult with full agency over what happens to her. She knew she was talking to a reporter, and she had asked to talk about her mother. It is unfortunate if it caused her distress, and if some in your community are blaming the Women’s Council, but it is uncalled for to question the integrity of the reporter and producer. They followed accepted process and used their best judgment, having some knowledge of Ms. Schule. I also note the stories were not produced until two weeks after the material was recorded at the birthday party. That was partly as a result of a breaking news story which diverted resources needed to prepare it, but it was also because the journalists felt they should take the time to think about how best to present the material.

This issue is always a difficult one for journalists. I started off mentioning that CBC does have guidelines about obtaining consent, but it has nothing that defines “informed consent.” There is no consensus about what constitutes informed consent in a journalistic context, as there is in medical and social sciences. It is a struggle for journalists - their driving consideration is freedom of expression, and a duty to the public interest. There is also a need to respect the choice an individual makes, and a duty to be certain an individual knows he or she will be part of a story, and be aware of the broad context. It would have been a different story if a reporter had asked Ms. Schule to speak at the time of her trauma, for example. You believe that it was made clear to the reporter that it would be detrimental to Ms. Schule to air the piece. The reporter’s understanding, and the evidence he provided me, indicated there was concern but certainly no explicit mention. And more to the point, Ms. Schule was aware ahead of time it would be aired. She knew the broad content of the piece and what would be in it, which is normal journalistic practice.

A few years ago I participated with a group of colleagues to prepare a discussion on this topic for the Canadian Association of Journalists (CAJ) entitled On the Record: Is it really consent without discussion of consequences? It does not supply definitive answers - but it does call on news organizations to consider whether there is an obligation to point out potential consequences. The tremendous difficulty is knowing which consequences; there are so many variables. It is a very grey zone to manage given the range of outcomes. They may all be positive: community support, the righting of a wrong - but there are other not so positive outcomes. My own thinking has evolved to an extent since publication of the CAJ discussion two years ago. The effect of social media, the sharing of information through Twitter and Facebook, amplifies the impact of any story. I suspect that was the case here. While there was no violation of CBC policy in this instance, and in fact there was a thoughtful approach to the material, it is something news management might want to think about. It might be useful to consider some internal guidelines when dealing with vulnerable subjects because of the impact of social media, and because the material is virtually infinitely present online.

Sincerely,

Esther Enkin
CBC Ombudsman