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prior to the commencement of a committee hearing. This system has much to commend it. It permits the press to take their photographs before a meeting but prevents the intrusion of photographers while a committee is conducting a hearing such as your Committee witnessed at the meeting of the Senate Foreign Relations Committee in Washington.

73. If the House were to allow the taking of still photographs in the Chamber, it would be essential to insist on the use of cameras which do not require a flash and your Committee understands that there are such cameras available on the market. If the House were to admit press photographers consideration would have to be given to the times at which such photographs would be permitted and the vantage points from which they could be taken. It would not, for example, be possible to permit photographers to roam at will through the Chamber in search of the most favourable vantage point. It would also be desirable to ensure that any photographs taken in the Chamber would be representative of the House at work and not simply designed to draw attention to a sparse attendance such as can be expected, for example, during Private Members' Hour on a Friday after

noon.

CONTROL OF THE BROADCASTS

74. If the House agrees to the broadcasting of its proceedings your Committee believes that it should maintain overall control over the broadcasts regardless of the option which is selected. Although your Committee has every confidence that the broadcasting media would exercise responsible judgment in the selection of material, it is felt that the editing should take place under the authority of the House and in accordance with conditions and guidelines laid down by the House. A broadcast record cannot be edited in the manner of a press report; it can be edited only by selection and cutting, and if the media were free to select the material without any sanction or restraint the risk of abuse would always be present. What is at stake is the dignity of Parliament as an institution. Your Committee has no thought of presenting Members of Parliament to the public in a rosier light than they deserve. Members must accept the consequences of their words and actions just like other citizens. But they are entitled to be protected from misrepresentation and manufactured ridicule and from the kind of affront which would reflect on Parliament as an institution.

75. The question of control of editorship must be considered in conjunction with the method by which the broadcasting operation would be conducted. It seems that there are three possible methods which could be employed. In the first place the House could take over the entire operation itself which would involve purchasing its own equipment, establishing a permanent installation in the building and recruiting its own staff of directors, editors, cameramen and technicians. Continuous live transmission of the complete proceedings of the House would be broadcast over special radio and television channels. If the House were to direct the entire operation in this way no real problems of editorship would arise unless private broadcasters were also given access to the audio-visual material to use and edit as they pleased.

76. The modus operandi described in the preceding paragraph would give rise to serious practical problems since it would call for special radio and television channels. Even if such channels could be made available they would be permanently occupied with the proceedings of the House of Commons and if the Senate were also to decide to broadcast its proceedings it would be necessary either to find additional special channels or to come to some arrangement whereby the two Houses shared the broadcasting time. Furthermore, if special channels were permanently occupied with the proceedings in the Chamber it might be difficult to make provision for the broadcasting of committee proceedings. Quite apart from these problems a continuous live transmission would not always bring the highlights of debate to the viewing public during prime viewing hours. 77. Your Committee therefore takes the view that if the House were to decide to direct its own operation it should limit itself to making a complete audiovisual record of the proceedings and providing the broadcasters with access to it to use as they saw fit subject to the conditions and guide-lines laid down by the House. If this option were selected the House would still employ its own staff and equipment but would not undertake the task of editorship for rebroadcasting purposes. It could, however, reserve to itself the right to oversee the editorship of the broadcasts.

78. The third option open to the House would be to decide against installing a system of its own and to leave the entire management of the broadcasting operation to the broadcasters themselves who would use their own staff and equipment. In this case the financial arrangements would have to be worked

out in agreement between the House and the broadcasters. The work of editorship would be the entire responsibility of the broadcasters but it would take place in accordance with the conditions and guide-lines laid down by the House which could maintain general oversight and control.

79. The machinery of supervisory control could be fundamentally similar whether the broadcasters recorded the material themselves or were given access to an electronic Hansard recorded and owned by the House. Two methods of control suggest themselves to your Committee.

80. The first method would be to vest direct control in Mr. Speaker who would make such arrangements as in his discretion he deemed necessary to ensure effective surveillance of the use made of the material. If the House were to maintain its own electronic Hansard he would control the access to the material and would have the right to take disciplinary action against broadcasters who abused their privileges. This action would presumably take the form of denial of access to the audio-visual material. If the House were to delegate the running of the operation to the broadcasters, Mr. Speaker would maintain a similar surveillance of their activities and would have the right to suspend a broadcaster's privileges or refuse him permission to initiate broadcasts. In short, Mr. Speaker would protect the rights of Members in any way which would seem to him to be necessary and would presumably deal with any question of privilege relating to the broadcasts in the same way as he deals now with other questions of privilege.

81. The second alternative would be to vest control in a committee of the House which could either be a committee specifically nominated for the purpose or an existing committee such as the Standing Committee on Procedure and Organization. As has already been mentioned above, this responsibility in Australia is discharged by a Joint Committee of both Houses and its powers and responsibilities are set out in the Parliamentary Proceedings Broadcasting Act of 1946. 82. If a committee of the House were to assume these responsibilities its terms of reference would presumably permit it to set down the general conditions and policy guide-lines under which the broadcasters would be permitted to operate, subject to the confirmation of the House. If the House owned the facilities the Committee might be given certain responsibilities in connection with the hiring of staff and the purchase of equipment. In these circumstances access to the electronic Hansard would be controlled by the committee and the use made of the audio-visual material would be required to conform to its conditions and guide-lines. If the broadcasters ran the operation themselves they would have to conform to similar conditions and guide-lines in the use they made of the material they recorded. The right to take disciplinary action where necessary could also fall within the competence of the committee, if the House deemed this to be desirable. In this case the committee would presumably be authorized to deal with any complaints by Members referred to it by Mr. Speaker. It would probably not be feasible, however, to involve the committee in the daily administration of the broadcasting operation.

83. In considering the guide-lines to be laid down for the control of broadcasting, reference might be made to section 116 of the United States Legislative Reorganization Act of 1970. This section lays down extensive ground rules for the broadcasting of congressional committee hearings. The Section provides, inter alia, that the broadcast coverage of committee hearings should be "in conformity with acceptable standards of dignity, propriety and decorum"; that their purpose shall be "for the education, enlightment and information of the general public"; that "the tapes may not be used for any partisan political purpose"; that not more than four television cameras operating from fixed positions shall be permitted in a hearing room; that the intensity of any additional lighting employed should be limited to what is strictly necessary; that flood-lights, spotlights and similar devices shall be prohibited; that not more than five press photographers shall be permitted to cover a hearing by still photography; and that the staff and equipment employed shall not be permitted to cause any kind of obstruction to the proceedings of the committee. The Section empowers the committee to decide whether nor not to admit the broadcasters and photographers and also prohibits commercial sponsorship.

84. A number of the witnesses who gave evidence before your Committee stressed that an expert commentator would be needed to explain points of procedure to the listening and viewing audience when parliamentary broadcasts were being transmitted. This is an important consideration which any system of control should take into account before guide-lines are finalized.

85. One witness referred in his evidence to the fact that the greater part of the proceedings of Parliament take place in the English language. The fact would

certainly have to be faced that French-speaking Canadians would receive much of the broadcasts through interpretation and it would therefore be important to ensure that the interpretation was of a very superior quality.

86. The prohibition of commercial sponsorship for which Section 116 of the United States Legislative Reorganization Act 1970 provides is consistent with Parliamentary dignity and decorum. It is however a question which might have to be given special consideration if the House were to enter into arrangements with private broadcasters. Sponsorship has a direct bearing on expenses and if broadcasters were obliged to pay fees or incur costs it might be neither fair nor practical to prohibit commercial sponsorship.

ASPECTS OF LAW AND PRIVILEGE

87. Your Committee has no doubt that a Member is protected by absolute privilege in respect of anything he says in Parliament. This protection is founded in the British North America Act (section 18) and in the Senate and House of Commons Act (sections 4, 5 and 6). Whether or not a Member is equally protected by absolute privilege when a speech made in Parliament is simultaneously broadcast by sound or television is arguable. While expert witnesses giving evidence before British parliamentary committees have confidently expressed the view that Members would continue to be protected. the Parliamentary Counsel has expressed the opinion that, in the Canadian context, there is some doubt in the

matter.

88. As has already been noted above, parliamentary broadcasting in Australia is governed by the Parliamentary Proceedings Broadcasting Act 1946. This Act extends protection to the broadcasters, but in the Australian view the protection enjoyed by Members themselves is founded in the Australian Constitution and the Bill of Rights of 1688. In 1945 the Parliamentary Standing Committee on Broadcasting was advised that if the whole of the proceedings were broadcast a qualified privilege would apply to the broadcasters. This qualified privilege could only be upset by proof of malice and it would be difficult to establish malice if the whole of the proceedings were broadcast. As Parliament had provided for the absolute protection of Hansard reports it was thought prudent to introduce legislation to provide the protection of absolute privilege to broadcasts of the proceedings.

89. Section 15 of the Australian Parliamentary Proceedings Broadcasting Act 1946, therefore, provides: "No action or proceeding, civil or criminal, shall lie against any person for broadcasting or rebroadcasting any portion of the proceedings of Parliament."

90. The wording of this section would appear to confer upon all broadcasters the same protection of absolute privilege which is enjoyed by a Member when speaking in Parliament. It is understood from information supplied to your Committee, however, that in practice the protection applies only to persons authorized to broadcast or rebroadcast. Your Committee understands that no problems have arisen which were not fully provided for under the legislation.

91. In contrast with Australia, legislation to regulate the broadcasting of parliamentary proceedings has never been introduced in New Zealand. The view taken in New Zealand was that a member was fully protected by absolute privilege in respect of any words spoken by him in Parliament whether they were broadcast or not and that no further statutory protection was necessary. The New Zealand Broadcasting Corporation takes the view that the broadcasts constitute an extension from the public galleries of the House of Representatives and that since they are continuous throughout normal sitting hours they therefore constitute a fair and accurate report of the proceedings. It should be noted however that the broadcasting company is Crown owned and not liable for its tortious acts. 92. In 1949 the Legislative Assembly Act of Saskatchewan was amended by the extension of the provision relating to immunities and privileges of Members. Section 34 of the Act now reads as follows:

341) No member of the Assembly shall be liable to any civil action or prosecution, arrest, imprisonment or damages by reason of any matter or thing brought by him by petition, bill, resolution, motion or otherwise or by reason of anything said by him before the Assembly.

The immunity provided by subsection 1) applies notwithstanding that words spoken by a member before the Assembly are broadcast, provided that the broadcasting takes place while the words are being so spoken.*

*The Legislative Assembly Act-Chapter 3-Revised Statutes of Saskatchewan 1955.

93. The Act thus protects the absolute privilege of Members but makes no provision for the protection of those who broadcast the proceedings. It is probably assumed that the qualified privilege which protects those who report the debates in the press extends also to the broadcasters. The lack of specific protection does not appear to have caused any problems during the 25 years that parliamentary broadcasting has been taking place.

94. In considering the protection afforded to Members, broadcasters and interpreters under the present law your Committee called for the views of the Law Clerk and Parliamentary Counsel, Mr. J. P. J. Maingot, who presented a considered legal opinion. A summary of his advice to the Committee is set out in Paragraphs 95 to 102 which follow.

95. The position in England in this matter is still under study. The Select Committee of the House in England which studied the question in 1966-67 7, reported that the privilege of freedom of speech would continue to protect any member from legal action in respect of what he said in debate in the House if the debate was broadcast and that broadcasting organizations would be able to rely on the legal defense of qualified privilege so that fair and faithful reports would be protected; partial reports where malice could be established against the organization would not be protected. The Committee concluded that if parliamentary broadcasting were permitted, it would be desirable to enact a safeguarding clause similar to the clause enacted in the Australian Act of 1946.

96. A Joint Committee was then established subsequently and it submitted an interim report December 1969 8. It concluded first of all that there should, in principle, be no difference in the law of defamation applicable to official reports of parliamentary proceedings whether those reports be printed or broadcast. It then considered whether the existing law of defamation required any amendment so as to give effect to this principle. The Joint Committee stated that whatever the press could do under the Parliamentary Papers Act of 1840, the broadcaster could also do, but that when it came to publication of debates by radio and television, the Act offered no protection to a broadcaster. If it were decided to permit "live" broadcasts, the 1840 Act in the opinion of the Joint Committee could and should be amended by enacting that "publication" be deemed to include broadcasting so that when the debate was broadcast by television it would be a "publication" for purposes of the law of defamation and also under the authority of the House. With respect to extracts or abstracts of the proceedings, the Defamation Act 1952 amended that part of the 1840 Act relating to extracts and abstracts by including "broadcasting" when that Act referred to printing. The Joint Committee concluded that if either House of Parliament broadcast an abstract or extract of its proceedings the broadcasting company could produce the relevant sound or video recording and if they demonstrated that it was published in good faith and without malice, the company would have a good defence to any person alleging that the extract or abstract defamed him.

97. The Joint Committee said that as the law stands the broadcasting companies would enjoy qualified privilege in respect of the live broadcasting of parliamentary proceedings and are therefore in the same position as the press in reporting the proceedings. The Joint Committee concluded by recommending that the 1840 Act by amended to include "broadcasting" in the expression "publication of reports", but that the initial recording of the proceedings be done by House employees who would enjoy absolute protection. When fed to the broadcasting agencies for transmission to the public the "rebroadcast" of the proceedings or extracts or abstracts therefrom would be subject to the qualified privilege at present available to the press.

98. The Parliamentary Counsel takes the view that, basic to the study of the legal consequences of broadcasting parliamentary proceedings, is a requirement to differentiate between the official publication of parliamentary proceedings by means of broadcasting and press and broadcast reporting of the proceedings which are officially published. The reporting of official parliamentary proceedings by press or broadcaster is not based on the privileges of Parliament but is based on public policy. This principle assumes that although the publication of the official reports may be to the disadvantage of the particular individual concerned, yet

First Report from the Select Committee on Broadcasting, etc. of Proceedings in the House of Commons, HC 146, 8 August. 1966 Minutes of Evidence.

s First Report of the Joint Committee on the Publication of Proceedings in Parliament, HL 26 and HC 48, 3 December, 1969.

it is of vast importance to the public that the proceedings of Parliament should be universally known, provided however that anyone reporting only part of the proceedings gives a fair report of what transpired. This applies to the reporting of official reports and before this legal qualified privilege attains to the reporting of part of an official publication or for that matter, before a legal absolute privilege attains to the reporting of an official publication in toto, it must be established that the publication is in law official.

99. The Canadian law of Parliament in the matter of official publication is the same as that of the British Parliament and both stem from the Parliamentary Papers Act of 1840. Sections 7, 8 and 9 of our Senate and House of Commons Act state that the "publication" by or under the authority of the Senate or House of Commons of any report, paper, votes or proceedings are absolutely privileged in toto and that anyone using extracts therefrom has a qualified privilege in the legal sense. However, "publication" in the context of the Act authorizes only printing, and a simple amendment could extend it to broadcasting. In the interim however, it is felt that if the House of Commons proceeded to broadcast without enabling legislation, a court in ruling on an alleged defamation which was broadcast, would be competent and compelled to fall back on the basic principle which lies behind parliamentary privilege: the question being, is the broadcasting of these proceedings necessary for the House to perform its function as a legislative body? The court might find that it is not necessary. This would apply equally to the whole of the proceedings being broadcast or an impartial extract of the broadcast. This is suggested because what is being affected by broadcasting is not simply an internal matter of the House of Commons but one which affects the rights of persons outside the House viz., those persons who may be defamed.

100. With regard to the constitutional question, section 18 of the British North America Act provides that Parliament has the authority to define its privileges, immunities and powers but not so as to confer any which exceed those at that time held and enjoyed by the British Houses of Parliament. Pursuant to section 18 of the British North America Act, section 4 of the Senate and House of Commons Act was enacted and it provides that each House and its members hold and enjoy the same privileges, immunities and powers as those held by the British Houses of Parliament in 1867 and that Parliament may define them further, with the proviso as found in section 18. Section 91 of the British North America Act, however, provides that Parliament may make laws in relation to all matters not coming within the classes of subjects assigned exclusively to the provincial legislatures. Therefore, Parliament may amend section 18 of the British North America Act to provide that its privileges may exceed those of the British Parliament.

101. The question of whether the privilege of freedom of speech enjoyed by members would extend to the occasions when speeches made in the House were published by means of broadcasting, and the concomitant effect on broadcasters, is not settled in England. It would therefore be necessary to amend section 18 of British North Americs Act to remove the present restriction whereby the privileges, immunities and powers of the Canadian Parliament may not by Act of Parliament exceed those held and enjoyed by the British Parliament. The right to legislate in matters of civil rights rests with the provincial legislatures and there is a danger of the civil rights of persons being jeopardized in the event defamatory words affecting a third party are uttered and broadcast. However, section 18 of the British North America Act is an express grant to Parliament giving it authority to deal with the immunities and privileges of Parliament and its members. It transcends the effect that in so doing the civil rights of individuals may be transgressed.

102. In leeslating that its proceedings may with impunity be published by means of broadcasting. Parliament would be defining its privileges as authorized by section 18 of the British North America Aet. That is to say, a member's immunity and freedom to speak so be sees fit, subject only to the rules of the House, would continue while is seed no being beard and or while he was being seen on television outside the Chamber. Parliament therefore would by statute be spelling out that each House may publich the speeches of its members by broadcasting them. The proves on the other hand would continue to legislate on whether the reporting of a debate is in law privileged but they could not include in any defnita fala de amatory satèmeni uttered during a speech which was broadcast from the Chatter vaze the reistes to how the proceedings of each Howe may be published ska a ni mkn the nnvileges of Parliament. 108 020 80&ræ æðaðree avalable to your Committee it is not therefore dear what protection would be atender exsting isws to Members of

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