The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Cable Bahamas’ legal challenge to a regulatory decision forbidding it to broadcast an advertisement that allegedly defamed the Prime Minister was this week dismissed by the Supreme Court.

Justice Indra Charles, in a December 6, 2021, ruling found that the Utilities Regulation and Competition Authority’s (URCA) decision to block the advertisement’s screening was “reasonable in all the circumstances” given that damage that may have been caused to Philip Davis QC and the Progressive Liberal Party (PLP).

Dismissing the BISX-listed communications provider’s Judicial Review bid, she concluded: “It cannot be said that undue potential defamation of the character of the complainants on the primary television provider in the jurisdiction does not rise to the standard of serious and irreparable damage.”

She found the defamatory risk was “a sufficient reason” for URCA to issue the interim Order blocking the advertisement’s screening, and rejected arguments by Cable Bahamas’ attorney, Khalil Parker, that the order was illegal because it did not state when it would end.

“URCA’s amendment to the interim Order only days after the initial one, to stipulate the period for which it would last, suggested that it (URCA) had not made the interim Order arbitrarily,” Justice Charles ruled.

“Additionally, in the context of general elections not having been announced at that time, three months was not, in my opinion, an unreasonably long time to have required URCA to complete the investigation.”

It is unclear whey Cable Bahamas has continued to pursue the Judicial Review action given that the general election was held almost three months ago, and thus the need to broadcast the offending advertisement has passed, although it may have been seeking legal clarification on the issues raised.

Justice Charles’ ruling disclosed that, ironically, the sage began when Political Communications Advertising (PCA), a company hired by the Free National Movement (FNM) to develop its campaign advertisements, complained to Cable Bahamas on July 9, 2021, over its failure to broadcast the offending segment.

Cable Bahamas said it had rejected the advertisement on the basis that it violated URCA’s Code of Conduct for Content Regulation but, one day later, notified the regulator of PCA’s complaints.

“By letter dated July 15, 2021, URCA received notification from Cable Bahamas of a code complaint filed by PCA,” Justice Charles wrote. “The PCA complaint alleged that Cable Bahamas was in breach of the Code by rejecting the advertisement based on Cable Bahamas’ concern that the content ‘bordered on defamation’.

“On July 20, 2021, URCA received a complaint in writing against Cable Bahamas on behalf of Mr Davis and the PLP alleging that it was in breach of Clause 6.8 of the Code by its broadcast of the ad, which they said defamed and slandered Mr Davis.

“Additionally, an addendum to the initial complaint of July 21, 2021, alleged that Cable Bahamas also breached Clause 6.6 of the Code when it broadcasted the ad in failing to identify at the beginning and at the end of the ad that it was a political ad and on whose behalf it was being broadcasted.”

In response, URCA issued its interim order directing Cable Bahamas to stop broadcasting the advertisement on the basis that it “may be in breach of the provisions of the Code and that there was a risk of serious and irreparable harm being caused”.

Mr Parker, for Cable Bahamas, argued that URCA lacked jurisdiction to issue the interim Order because it was not an “urgent” matter as required by the Communications Act. However, John Wilson QC, of McKinney, Bancroft & Hughes, asserted on URCA’s behalf that the issuance of such an order did not rely on the filing of a complaint - something Justice Charles agreed with.

She found URCA could issue interim Orders “of its own volition”, and that this was an appropriate case to do so because of “the risk of serious and irreparable harm” to the now-prime minister and his reputation.

Mr Parker also asserted that “fairness” required URCA to consult with Cable Bahamas before issuing the interim Order, but Justice Charles rejected this, saying: “It cannot be properly implied that there is a duty to consult the licensee or give notice prior to the making of the interim order because to do so would frustrate the purpose of the statute.

“It would also defeat the opportunity to remedy the serious irreparable harm which URCA foresees as likely and, indeed, it will render the statutory procedure impotent. In my considered opinion, the failure to consult Cable Bahamas did not amount to unfairness.”