Supreme Court rejects Cable Bahamas’ application for judicial review of Brave ads

Supreme Court rejects Cable Bahamas’ application for judicial review of Brave ads

NASSAU, BAHAMAS — The Supreme Court has dismissed Cable Bahamas’ (CBL) application for judicial review of the Utilities Regulation and Competition Authority’s (URCA) decision to prohibit the company from broadcasting certain advertisements on Philip Brave Davis, the now prime minister.

Supreme Court Justice Indra Charles handed down her ruling on Monday.

URCA, which is named as the respondent in the application, prohibited Cable Bahamas from airing certain ads in the lead-up to the general election because the ad may have breached the content code and “could have caused serious and irreparable harm”.

Cable Bahamas alleged that the URCA had no jurisdiction to issue the interim order; the interim order was open-ended in time, contrary to the Communications Act; there were several procedural irregularities that were contrary to the act and principles of natural justice and due process; and the interim order was unreasonable.

But the court ruled that the URCA has the jurisdiction to issue interim orders with or without being prompted by a complaint.

“What made the situation an urgent one to justify issuing the interim order was the risk that the intended advertisement could cause serious and irreparable damage,” the ruling read.

“As it was a case of urgency, URCA was not bound to follow all of the procedural guidelines set out in Clause 10.10 of the code.

“It followed that there was no obligation on URCA to limit the interim order in time.

“The threshold for determining whether to issue the interim order pursuant to section 96 of the Communications Act was whether there was risk of serious, irreparable harm in URCA’s opinion, so that there was no duty to consult CBL and one cannot be properly implied.

“The failure to consult CBL did not amount to unfairness.

“It was not unreasonable for URCA to have issued the interim order as the risk that the ad could cause serious and irreparable damage by defaming the complainants was a sufficient reason to issue the interim order.”

The judge ordered for Cable Bahamas to pay cost.

Cable Bahamas had sought an order to quash the interim order and declarations that purported exercise of its statutory power was without proper and due process; and declarations that URCA’s decision was unreasonable, arbitrary, oppressive, irrational, unreasonable and unlawful.

It also sought a declaration that URCA’s order was in bad faith and constituted an intentional and/or a malicious failure or refusal to perform its statutory duty.

Cable Bahamas further sought aggravated and exemplary damages and cost.

At the time Cable Bahamas aired certain advertisements, Davis was the leader of the opposition.

According to court documents, Political Communications Advertising (PCA) — a political communications company engaged by the Free National Movement (FNM) to create advertisements — lodged a complaint with Cable Bahamas concerning its failure to run an ad concerning Davis.

In a letter dated July 14, Cable Bahamas declined to broadcast the ad by reason that the “FNM’s proposed political advertisement originally presented violated the letter and spirit of the code”.

The following day, the URCA received notification from Cable Bahamas of a code complaint filed by PCA.

The PCA complaint alleged that CBL was in breach of the code by rejecting the advertisement based on Cable Bahamas’ concern that the content “bordered on defamation”.

A complaint was submitted in writing to URCA on July 20 on behalf of Davis against Cable Bahamas, alleging that it was in breach of the code by its broadcast of the ad.

The complaint said the ad defamed and slandered the then opposition leader.

The complaint was amended to add that Cable Bahamas was also in breach for failure to identify at the beginning of the advertisement that it was a political ad.

An interim order was issued on July 22 for Cable Bahamas to cease and desist broadcasting the ad until further notified in writing by the URCA.

The URCA also advised on the same day that an investigation had commenced into the matter.

Cable Bahamas appealed the decision to the Utilities Appeal Tribunal (UAT), which the Office of the Attorney General noted that although approval had been given for the appointment of members and officers of the UAT, they had not yet received their instruments of appointment.

The URCA noted that a registrar was in place and functioning for that purpose.

Cable Bahamas filed leave to apply for judicial review on August 4.

The authority advised on August 6 that the order would be limited to three months — until October 21.

Parliament was dissolved on August 19 and the general election was announced for September 16.

The judge said: “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.”

About Royston Jones Jr.

Royston Jones Jr. is a senior digital reporter and occasional TV news anchor at Eyewitness News. Since joining Eyewitness News as a digital reporter in 2018, he has done both digital and broadcast reporting, notably providing the electoral analysis for Eyewitness News’ inaugural election night coverage, “Decision Now 2021”.