CBC ombudsman: Hidden camera ethics

By Esther Enkin, CBC Ombudsman

By Esther Enkin, CBC Ombudsman

When CBC News Investigative team aired a two-part series about tax avoidance, they used the result of an undercover operation. They used an “anonymous investor” to find out what kind of advice was out there for people who wanted to avoid taxes. The test was to see how close to the legal line, or over, the advice might be. The complainant, Rod Morris, felt that the use of hidden cameras to approach a tax advisor was a violation of policy.

The policy talks about prior knowledge of illegal activity, breach of trust or anti-social behavior as some of the criteria for using a hidden camera. In this case, he pointed out, the team had no reason to believe the advisor in question was doing anything illegal. You can’t make the policy fit any situation. The use of hidden camera to test the practices of a service or industry that is under scrutiny and which research indicates is open to abuse, is a time honored and acceptable practice. I find this broadcast followed policy. But CBC News management might want to add some language to the policy that covers this very situation more explicitly.

COMPLAINT

Last October, CBC News The National ran a two-part series on the ways Canadian companies and individuals seek to avoid paying taxes in Canada by moving money offshore. You considered the use of a hidden camera interview of a Toronto tax lawyer featured in the October 7 broadcast to be unfair to the individual.

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The broadcast was centred on a private investigator who is also a restaurant owner. Working with CBC News, he approached various tax advisors in Canada and Barbados to test what kind of advice he would be given to avoid paying taxes on money earned in Canada. Canadian companies legitimately set up operations in Barbados to avoid higher tax rates on profits earned outside of Canada. The premise being tested in this story was that the same system was being used to avoid Canadian tax rates on profits made in Canada.

You believe that “the CBC has ignored its own published journalism standards in an investigative feature and injured a private citizen’s reputation.” You thought that the reporter’s explanation that the hidden camera was used to investigate a “secretive industry where the industry as a whole has come under scrutiny” was a violation of CBC’s policy on hidden cameras. You thought so because the technique was used without any specific knowledge of wrong doing or anti-social behavior as laid out in the policy. You point out there was no evidence that the lawyer first approached with a hidden camera had done anything illegal:

“One of the featured tax lawyers is guilty by association. He commits the crimes of hubris, lack of judgment and recommending a legitimate tax avoidance tool with an irresistible TV soundbite. The self-proclaimed devious Mr. Garbutt is the best piece of theatre in the whole televised investigation. Unfortunately he isn’t the random, secretive, law breaking tax counselor the revised hidden camera ethics policy and the investigative feature advertises.

The rationale for approaching the off shore tax consultants with hidden cameras fail at least 2/3 of CBC’s published ethics policy tests for a private place. There was no credible information about illegal activity and there was no attempt to acquire the information openly by the CBC.”

Furthermore, you believe that tax avoidance is not anti-social, so the use of the hidden camera technique fails by that criterion as well: “Counseling off-shore tax avoidance is not illegal or anti-social.”

You also raised some broader questions about investigative journalism and investigative journalism techniques. You pointed out that investigative journalism places a “large extra burden on ethical standards.” The very methods used in the course of investigative journalism risk crossing the ethical barriers of professional journalism, you said:

“The very term ‘hidden-camera journalism’ in TV news illustrates the paradox of what is meant to be, by example, a transparent and forthright journalistic process. The extra burden referred to is one of heightened vigilance and increased adherence to those ethical standards because of these challenges.”

Overall, you thought CBC News failed to meet its own standards and is arbitrary in the way it interprets the policy; the reporters and producers took existing policy and refashioned it to suit their own interests.

MANAGEMENT RESPONSE

Mark Harrison, Executive Producer of The National, responded to your concerns. He explained the factors journalists considered when applying the hidden camera policy. The three factors he cited were that the story must be of “significant public interest,” that the clandestine recordings in a report are central to the story and not there just for effect, and that a more open way to get the material is not available. He believed that the story met all three criteria. He explained that the broadcast, along with the first part of the series broadcast October 2, was of significant public interest because:

“We had information indicating that some Canadians were engaged in highly questionable financial transactions to avoid paying taxes. The tips were based on investigative reports about secretive offshore financial holdings we had broadcast and published earlier in the year.”

He believed the story used the material recorded in clandestine fashion appropriately:

“Hidden cameras were not used to enhance our TV storytelling by making minor elements of the report more engaging. Rather, the taped content dealt with the heart of the story — namely, advice on how to move money offshore to avoid paying taxes.”

And, finally, he also thought there was no other effective way to obtain the same result:

“I strongly disagree with your conclusion that we could have obtained the identical information by having a CBC reporter openly schedule interviews with tax experts and financial advisers. In our experience, such approaches generally result in far less candid responses to questions in stories like this. Furthermore, we do not serve our audience well if we rely solely on what amount to scripted or rehearsed answers in public interviews when investigating potentially questionable behaviour.”

He also explained that each of the people recorded by a hidden camera was given the opportunity to comment on what they had said. In the case of the tax lawyer you cite in your complaint, he pointed out the lawyer stood by his secretly recorded comments, but he regretted using the term “under-handed” in the discussion. Mr. Harrison added that “dubious or contestable financial advice intended to help wealthy citizens avoid paying taxes” meets the criterion of anti-social behavior, as laid out in CBC’s Journalistic Standards and Practices.

Mr. Harrison also addressed your concerns about the reporter’s explanation of how hidden cameras were used in this case. Her script said:

CBC's policy for hidden-camera journalism generally requires that we have credible information about wrongdoing before we film… However, when dealing with a secretive industry like this one when the industry as a whole has come under critical scrutiny, the practise is to permit testing in this way on a random basis.

Mr. Harrison said he disagreed that this was an unethical thing to do, and it was in fact a long- standing practice when investigating possible systemic problems in a given industry. He explained in stories like this one there is not an investigation of wrong doing by a particular individual, but it is an attempt to verify allegations of questionable practices in an industry by probing the practices of “random” individuals.

REVIEW

You question whether CBC followed its own hidden camera policy, and feel that it does not allow for random testing. You raise important issues about how the policies are written, and used in daily operations. Underlying it all are issues of fairness, a core value of CBC News.

To continue reading this column, please visit ombudsman.cbc.radio-canada.ca, where it was originally published.

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