The complainant, Philip Wu, asked CBC not to use a particular photograph of him, but editors used it anyway. Is that okay?
You are the owner of Yellowknife Northern Lights Tour. Your company was featured prominently in a story published online on October 30th, 2018 by CBC North, headlined Tour Territory: Little to no consequences for illegal tour operators caught in N.W.T.
The story - the second of a two-part series - illustrated that many tour companies operate without being properly licenced in the Northwest Territories. It noted that your company was once an example of that trend, but that you applied for a licence in 2014 and have operated legally ever since.
The issue at play here is not the story itself - you described the series as “fantastic”. Instead, it was that CBC published a photograph of you, taken from social media. The picture showed you posing with another tour operator, and you did not want it used. You had told the reporter you did not want your face shown in the article and had provided her with several other photos relating to your company and its services.
You were further troubled that after you notified CBC about your concerns, it took two days before the photograph was changed, and even longer before it was removed from a version of the story published on the Yahoo website.
Mervin Brass, the Managing Editor for CBC North, replied to your concerns.
He said that CBC had every right to use the photograph in question under the “fair dealing” provisions of the Copyright Act of Canada, but agreed as a courtesy to remove it. He added that he went further and removed the picture entirely from CBC’s content management system so that it would not be used inadvertently in the future.
Both sides made reference to fair dealing, and that is a subject that has come up in this space before in a review by the previous CBC Ombudsman. Since then, CBC has developed internal guidance on the subject.
Mr. Brass repeated to me what he told you - that publishing this photo fit within that provision of the Copyright Act. I am not a lawyer and will not pronounce on whether this was an appropriate application of that Act. Rather, I considered the ethical questions in this particular dispute, including the meaning of journalistic independence, as well as what it means to provide fair and respectful treatment to the subject of a story.
Independence means that journalists use their own judgment to decide what details are relevant in a story. By necessity, this includes photographic depictions. I am sure you understand it would be inappropriate for you to have veto power over what words the reporter used to depict you in this story, and the same is true for what pictures CBC chose to use.
Ethically, CBC had no editorial obligation to agree to your request that the photo not be used. Given your prominence in the story, it’s reasonable that editors wanted to show your face in one of the photographs. This photo, in particular, was relevant because it reinforced something you mentioned in your interview - that you sometimes partner with local Indigenous tour operators. As editorial decisions go, it was entirely unremarkable.
On the other hand, CBC could have chosen on its own to agree to your request. That would also have been perfectly ethical, but I don’t see evidence that it did.
Reporter Priscilla Hwang provided me with various exchanges of messages between you regarding the photos. It was clear from reading them that you preferred the photo not be used, although it was not especially clear why that was the case. Ms. Hwang said she would check with her editor. As it turns out, the editor rejected that request, but no one advised you of that.
There should have been clearer communication on both sides. Best practice would have seen CBC circle back to tell you the outcome of its deliberations before publishing the story. That would show a fuller commitment to the concepts of fairness and respect. However, I do not see anything that I would consider a violation of journalistic standards.
As for what happened after the story was published, you are correct that it took two days from the moment of your complaint to the removal of the photograph. Mr. Brass and Ms. Hwang both told me that the delay was caused because the editor who had made the initial decision to run the photo was off work and unavailable. Once they discussed it with that editor, they made the decision to grant your request. You would have preferred quicker action, but it was not an excessive delay.
I do appreciate your frustration with how long it took to remove the picture from the version of the story that appeared on Yahoo. CBC has a business relationship with Yahoo that allows the publication of some CBC stories on their site. CBC Management should ensure that its protocols are up to date so that when it alters or removes content on its own site, the necessary information is shared with its business partners as soon as possible.