This is the full text of the Broadcasting Commissioners' ruling on a televised speech delivered by Premier Jennifer Smith on February 21, 2002.

On the 6th March 2002, the Opposition Leader, The Honourable E. Grant Gibbons, JP, MP, wrote to the Broadcasting Commissioners with concerns pertaining to a pre-recorded address by the Premier, The Honourable Jennifer Smith JP, MP, which was aired on VSB and ZBM television channels on Thursday the 21st February 2002. A copy of the address by the Honourable Premier is attached to these findings.

The Opposition sought a ruling from the Commissioners as to whether the broadcast was a Government or political broadcast under The Political Broadcasting Directions 1980 ("the Broadcasting Directions") and, in this regard, they assert that the Honourable Premier inappropriately attacked the Honourable Mr. David Dodwell, JP, MP, for comments that she inaccurately attributed to him, and the broadcast occurred on the eve of the Opposition's budget reply. The Opposition says that both of these factors point to the broadcast being a political broadcast, as opposed to a Governmental broadcast. The Opposition also suggest that the Broadcasting Commissioners should seek and obtain answers to the following questions:

1. From the Government, who produced and paid for the production of the programme?

2. From the Broadcasting Undertakings, the basis upon which it was submitted to them for airing (and by whom) and the basis upon which they chose to air the programme?

3. From either the Government or the Broadcasting Undertakings, the charge(s) for airing the programme?

By letter dated 19th March 2002, the Broadcasting Commissioners invited the Honourable Premier to respond to the complaint. The Premier responded by letter dated 27th March 2002 and asserted that the broadcast fell within Section 3(3) of the Broadcasting Directions which states:

"Nothing in these directions shall, however, be deemed to prevent the Premier or a Member of Government broadcasting to the people of Bermuda in order to provide them with information or an explanation of events of prime national or international importance and seeking the cooperation of the public in connection with such events."

The Honourable Premier goes on to state that she was well within her right and the tenets of the Broadcasting Directions to have produced and published the Government's broadcast of 21st February 2002. In terms of the comment regarding Mr. Dodwell, the Honourable Premier states that like most right thinking Bermudians, she was truly astonished when the Opposition member (who speaks for tourism) chose to suggest in a public utterance that the events of 11th September 2001 did not contributed to a drop in our visitor and tourism revenue. The Honourable Premier states that she rightly defended the integrity of her Government against the "scurrilous" comment in her address to the nation.

In response to the three questions posed by the Opposition, the Premier informed the Commissioners that the programme was produced by Fresh Creations and paid for by Government and that the request for air time was submitted by Government Information Services. The Honourable Premier was unable to tell the Commissioners the basis upon which the Broadcasting Undertakings each chose to air the programme and suggested that that question be directed to the Broadcasting Undertakings. The question of what fees were charged by the Broadcasting Undertakings was not addressed.

The Premier concluded by stating that the broadcast was intended to be an appropriate punctuation to the excellent effort of the Finance Minister in putting his budget statement to the country. It was a way of saying to the Finance Minister, and country, in these challenging financial times "you have truly done well my good faithful servant and in the wake of September 11, 2001, I now call upon the country to unite behind your handy work to help this country recover from a cataclysmic event".

On the 19th March 2002, the Broadcasting Commissioners informed Government and the Opposition that they would convene a Special Meeting of the Commissioners for 12:30 pm on Thursday 28th March 2002. At that meeting, an application for an adjournment was made on the basis that the Commissioners and representatives of the Opposition had only just received the Honourable Premier's letter dated 28th March 2002 and had not had an opportunity to consider the contents. The Solicitor General, Mr. Wilhelm Bourne, also requested an adjournment on behalf of Government, as he had just been instructed in the matter. It was therefore agreed that the meeting would be postponed to the 2nd May 2002. At that meeting, the issue of whether the meeting should be in public or held in camera was considered. Submissions were made by the Government, the Opposition and by members of the media. The majority of the Broadcasting Commissioners ruled that the hearing should be held in camera. Their decision is dated the 2nd of May 2002.

The Commissioners reconvened on the 9th May 2002 to consider further preliminary arguments, including whether the Commissioners had jurisdiction to consider the subject matter of the complaint and whether Government, as opposed to the Broadcasting Undertakings, was an entity that the Commissioners had jurisdiction over. While Government and the Opposition took different positions in regard to these issues, they were in agreement that the Commissioners should ensure that the Broadcasting Undertakings are involved in the process of this complaint. It is clear under the Broadcasting Directions that the Commissioners have a duty and obligation to ensure that the Broadcasting Undertakings review Government broadcasts and political broadcasts, and make a determination on the following issues:

(i) Are the Broadcasting Directions applicable to the intended broadcast?

(ii) Is the intended broadcast a political broadcast or a Government broadcast?

(iii) Does the intended broadcast meet the requirements of the applicable provisions under the Broadcasting Directions in terms of broadcasting times, length of broadcast and content.

In some cases, the vetting of the broadcast by the Broadcasting Undertakings will be straight forward and without controversy. In other cases, it may be difficult for the Broadcasting Undertakings to make an assessment, but nonetheless, it is their duty to make these determinations and, if there still is any doubt in their minds, Section 15 of the Broadcasting Directions allows them to obtain the guidance of the Commissioners.

By letter dated 23d May 2002, the Broadcasting Commissioners asked representatives from each of the Broadcasting Undertakings to attend a meeting of the Commissioners on the 28th May 2002 and to address the following issues:

1. Was the broadcast submitted to their respective stations by Government Information Services ("GIS)" and, if so, what was the date the programme was submitted?

2. Did GIS make reference to the applicability or inapplicability of the Broadcasting Directions?

3. On what basis did each of the stations choose to air the programme and, in particular:

(a) Did the station have regard to the Broadcasting Directions?

(b) If they did, what provision did they determine applied to the broadcast?

(c) What were the reasons for the decision they made?

4. What factors were taken into account in determining the initial broadcasting time and the actual time of the broadcast?

5. Did the reference to a former Minister of Tourism in the Honourable Premier's Address have any bearing on the station's assessment as to what was the applicable provision under the Broadcasting Directions that applied to the broadcast and did the stations know to whom the Honourable Premier was making reference?

The Commissioners note that both the Broadcasting Undertakings were very cooperative in terms of addressing the issues raised by the Broadcasting Commissioners. Both Undertakings provided helpful responses and sent representatives to the meeting on the 28th May 2002, at which time they gave a full and candid account as to what extent each had reference to the applicable Broadcasting Directions and their duties thereunder.

DeFontes Broadcasting Company Ltd. (VSB) informed the Commissioners that the videotape of the programme was delivered to their station by the production that had recorded it, at 5:45 pm on the 21st February 2002.

A representative of GIS contacted the station and informed them that the Honourable Premier wished to make a broadcast to the public and wished to do so in a prominent time period. There were no written materials provided by GIS such as a typed copy of the intended Address. The broadcast had been invoiced and paid for by Government. GIS made no reference to the Broadcasting Directions.

The basis upon which DeFontes agreed to air the programme was that it was provided by Government, to be paid for by Government, and it purported to be a message from the Honourable Premier of significant importance. In retrospect, the station was of the view that the broadcast fell within Section 4 of the Broadcasting Directions, but they candidly admit that due to the late arrival of the tape, management of the station did not view the broadcast in advance of it being aired. The first time the programme was reviewed by management was when it was actually aired.

With regard to the actual time of the broadcast, the decision was taken prior to receipt of the tape. As the station was led to believe that the progamme was of significant importance to the public, the station wished to air it at the earliest possible time and, if possible, prior to their competition airing the broadcast. They aired the broadcast at 7:30 pm.

The station heard reference in the programme to a former Tourism Minister. They understood this to mean the former Tourism Minister under the former UBP Government, the Honourable Mr. David Dodwell JP, MP. The Commissioners were informed that the reference to the former Tourism Minister immediately raised the station's concern over the category under which the programme should have been aired. Candidly, they admit that it was too late to stop the broadcast, however, the Commissioners were informed that steps have now been taken to ensure that an opportunity exists in advance of air time to vet any proposed broadcast.

Bermuda Broadcasting Co Ltd's account takes a similar course to that of DeFontes. The broadcast tape was delivered to them by GIS and an assumption was made that if GIS was sending them an address from the honourable Premier, then the broadcast must not be a political broadcast, but rather a long-term impact broadcast. They received the tape one hour before air time and candidly stated to the Commissioners that they did not have adequate time to examine the broadcast and how it relates to the requirements under the Broadcasting Directions. ZBM and ZFB aired the broadcast at 7 p.m.

In terms of the reference to the former Tourism Minister, it was described as unfortunate. The station was also of the view that given the fact that the Honourable Premier's address was in reference to the 11th September atrocity, it ought to have been made closer to the events.

The station said that they had an expectation that GIS would vet the broadcast and determine the applicability of any of the provisions under the Broadcasting Directions. Both Broadcasting Undertakings thought it would be a sad day if they could not rely on GIS to screen Government broadcasts.

After meeting with the Broadcasting Undertakings, the Commissioners, by letter dated 18th June 2002, wrote to representatives of the Government and the Opposition and informed them of the Commissioner's decision on the jurisdiction argument raised by the Government. The Broadcasting Commissioners found that:

(they) were satisfied that the Commissioners have not asserted jurisdiction over Government, but have merely requested Government's cooperation in considering the enquiry field by the Opposition. As no member of the Government, including the Opposition, has been compelled to appear before the Commissioners, the issue of jurisdiction over them does not arise. We would comment that with respect to the provisions of the Act and the Directions, and read in their entirety, they do not give the Commissioners the powers to issue directions to entities who are not undertakings. We, therefore, do not envision a situation where Government or the Opposition could be compelled to do anything by virtue of a direction given by the Broadcasting Commissioners. With respect to the subject matter, the Commissioners are clearly of the view that they have jurisdiction over the subject matter of the enquiry as it falls squarely within the four corners of the legislative framework".

As part of the Commissioners' ongoing enquiries, they invited the Government and the Opposition, by letter dated 18th June 2002, to provide the Commission with the following information:

1. At the time of the broadcast, what was Government's factual basis for believing that "a former Minister of Tourism in this country and the operator of a premium resort property in Bermuda and in Nevis, publicly declared that September 11 did not contribute to the drop in Bermuda's visitors' count and in tourism revenue". When was the alleged statement made and is there any record of the statement which could be provided to the Commissioners?

2. From the Opposition, the Commissioners asked to receive any information as to whether or not the accepted that the former Minister of Tourism made the statements attributed to him in the Honourable Premier's Speech. In the previous letter, the Opposition had stated that the comments were inaccurately attributed to Mr. Dodwell.

On the 24th June 2002, the Honourable David Dodwell JP, MP, on behalf of the Opposition informed the Commission that he categorically denies ever making the remark which the Honourable Premier attributed to him. On the same day, the Honourable W Alex Scott, JP, MP, on behalf of Government, produced an excerpt from the Royal Gazette dated 15th February 2002, entitled "Don't blame US for Tourism Woes", wherein the article goes on to report:

"Shadow Tourism Minister, Mr. David Dodwell, slammed his opposite member for laying part of the blame for the Island's worst arrival figure in more than 20 years on September 11th.

Mr. Dodwell said the figures were bad before the terrorist attack and he claimed the PLP had still not produced a plan to turn the decline around. He also said he had doubts about figures from Bermuda Hotel Association which are predicting occupancy levels for February and April to be ahead of last year, with March being slightly behind."

In a later passage, Mr. Dodwell is quoted as saying "we should not be trying to put the blame on the US economy and on September 11 because the situation was bad before that".

It was from this article that the Honourable Premier derived her information that found its way into her Address.

The Broadcasting Commissioners carefully considered all of the submissions received from the Government, the Opposition and the Undertakings, and has determined the following:

1. The Broadcasting Undertakings were wrong the assume that the GIS had vetted the broadcast and had determined that it met the requirements of the Broadcasting Directions. There is no basis for the Broadcasting Undertakings to assume that the GIS is making such a determination and the Commissioners find that there is no legal duty or obligation on GIS to make such a determination. The duty and obligation rests squarely with the Broadcasting Undertakings and they must ensure that they carry out the necessary enquiries under the Broadcasting Directions before they decide to air the broadcast. Further, the Broadcasting Undertakings cannot blame GIS for the late submission of any proposed broadcast. It is for the Broadcasting Undertakings to inform GIS of deadlines for airing material which deadlines ought to build in sufficient time for the Broadcasting Undertakings to vet the material and, if necessary, obtain the guidance of the Commissioners.

2. The failure of the Broadcasting Undertakings to preview the Honourable Premier's Address to ensure that they had critically addressed their minds to the standards and requirements of the Broadcasting Directions is the primary finding of the Commissioners. Under the Broadcasting Directions the Broadcasting Undertakings are given the task of being the gatekeepers to ensure that broadcasting standards in the arena of government and political broadcasts are followed. They may not like that responsibility, they may think it is onerous but that is what is required of them under the legislation and as a condition of their licence. In this case, they left the gate unlocked and a broadcast that should have been vetted was allowed to to escape scrutiny.

The public has a right to know whether what they are watching is a broadcast by a political party or by the Government or by the Opposition. They have a right know that their tax dollars are being spent on a Government broadcast and not on a political party broadcast. The Broadcasting Directions established these rights, and provide rules and standards to make reasonably sure that the interests of the public are protected.

One Undertaking could not understand what the fuss was all about. This is what the fuss is about. The public relies upon and has entrusted the Broadcasting Undertaking to apply these safeguards.

3. The Commissioners recognise that in today's world, instantaneous broadcasts are becoming prevalent. There may be cases where Government desires to make a live broadcast where it is simply not possible for the Broadcasting Undertakings to vet the material in advance of air time. In such circumstances, Government and the GIS have a practical responsibility to ensure that they are aware of the Broadcasting Directions and are reasonably satisfied that the material is not going to cause the Broadcasting Undertakings to be in breach of the Broadcasting Directions. Obviously, if a history develops where the Broadcasting Undertakings find themselves in breach of the Broadcasting Directions, then conditions will have to be imposed which will prevent a recurrence. The Commissioners would further add that even in respect of a broadcast where there is a sufficient time line that allows the Undertakings to vet the material, there is still a practical incentive for GIS and Government, and the Opposition, to apply their understanding of the Broadcasting Directions to ensure that their intended broadcasts are not met with repeated opposition or delay.

4. The Commissioners went on to consider whether the Honourable Premier's Address met the requirements of the Broadcasting Directions or was exempted from the requirements as being information of events of prime national or international importance. Submissions were received from Government that the Address was non-political, but an Address to the nation to deal with the aftermath of the September 11th atrocity, the economic consequences to Bermuda and the steps that the Government was taking by way of the budge to help Bermuda through this difficult period in history. Government argued that the reference to the former Tourism Minister was fair comment for two reasons:

(i) The broadcast fell outside of the general provisions of the Broadcasting Directions pursuant to Section 3(3) which states that:

Nothing in these directions shall, however, be deemed to prevent the Premier or a Member of Government broadcasting to the people of Bermuda in order to provide them with information or an explanation of events of prime national or international importance and seeking the cooperation of the public in connection with such events:

Provided that the undertakings shall as a general rule offer broadcasting time to the Opposition Leader or a person designated by him as soon as practical after such a broadcast in order to enable him to address the people of Bermuda on the subject of the broadcast.

The position taken by Government is that while Section 4 of the Broadcasting Directions prohibits a favourable or unfavourable reference to a member of Parliament (i.e. the former Minister of Tourism), Section 3(3) creates an exemption and, therefore, the Honourable Premier's criticism of the former Minister is permitted.

(ii) The words attributed in the Royal Gazette to the former Minister of Tourism are so intertwined with the subject matter of the speech (i.e. September 11h and the impact on tourism) that the Honourable Premier had a duty to set the record straight and refute what the former Minister had said, lest the public be confused.

The Opposition argued that the words were never spoken by the former Minister and that the Honourable Premier's Address was not a Government broadcast, but a broadcast by a political party. They argued further that the speech, having regard to when it was made, could not and does not meet the requirements of Section 3(3). Any reference to the former Tourism Minister was wrong and contrary to the Broadcasting Directions. If Government can be held responsible for the breach under the Directions then that is what should happen. If, however, the Directions only impose obligations upon the Broadcasting Undertakings, then they must be held accountable.

The Commissioners gave careful consideration to the submissions made by the participants and concluded, with deference to the Honourable Premier, she cannot rely upon Section 3(3) as justification for criticising the Former Minister of Tourism. The events of September were shocking and there is no doubt that they ave had an impact on Bermuda's economy. However, the Commissioners cannot ignore the following facts which as a whole take the Premier's Address out of the four corners of Section 3(3) of the Broadcasting Directors:

(i) The Honourable Premier's Address was made some five months after September 11th and by that time the subject matter and its effect on the economy had been dissected, analysed and discussed extensively by Bermudians and indeed the world. While the 11th September 2001 atrocity is and will remain an historical event, of great importance and significance, it could not on the 21st February 2002, be fairly described as of prime importance where the public's cooperation was required in relation to those horrible events. The further one moves away in time from events, the more difficult it is to place reliance on Section 3(3). This will not necessarily be true in all instances as certain events can have a long-term impact which may require the public's ongoing and active cooperation (i.e. World War II).

(ii) Having regard to the sequence of events, the Address was a rallying call for the Minister of Finance budget but it was made after the budget had already been presented on the floor of the House. The Minister had already on the floor of the House explained to the public the importance of his budget and how it took into account the impact of September 11th on Bermuda's economy. Once the Minister of Finance had made his presentation to the House and effectively to the people, it is hard to accept that the Honourable Premier's follow up speech was concerning events of prime national importance. In order to achieve that hallmark, and putting to one side the amount of time that had elapsed since September 11th, one would have expected the speech to have preceded the presentation of the budget. It did not. Instead the speech was made the nigh before the Opposition Shadow Minister of Finance was formally due to reply to the budget. The Commissioners are of the view that the timing of the speech had more to do with what was happening on the House floor than with world events or a need to secure public support in relation to those events.

(iii) The criticism by the Honourable Premier of the Former Minister of Tourism occurred at the beginning of her Address and this fact again appears to the Commissioners to be inconsistent with a broadcast that is concerned with events of prime national importance. Typically addresses to the nation by the leader of a country encourage the people to embrace ideals and challenges that transcend partisan politics. Putting an Opposition member of the House at centre stage at the beginning of an address, criticising him and then concluding the speech by putting the Minister of Finance budget at centre stage and praising it and other Government initiatives, does not meet the standard which is embodied in Section 3(3) of the Broadcasting Directions.

(iv) The Commission accepts that the Royal Gazette on the 15th of February attributed comments to the former Minister of Tourism about September 11th and the extent to which the events of that solemn day can be used to rationalise or explain Bermuda's tourism woes. We can debate whether or not the Honourable Premier's characterisation of these comments was fair or taken out of context. That will serve no useful purpose. His comments to the extent that they were reported correctly do not constitute and are not so intertwined with a national event of such importance that he should personally feature in the Honourable Premier's Address. In the Commissioners' view there will be few situations where it is appropriate under Section 3(3) of the Broadcasting Directions to be critical of a member of Parliament. The Commissioners can see by way of hypothetical example only that if members of Parliament were engaged in some wrongdoing (i.e. corruption arising from their positions as members) that that could be a subject matter where their behaviour could be of national importance.

The Commissioners with the greatest of reluctance came to the conclusion that Section 3(3) did not apply to the Honourable Premier's Address, ever mindful that under Section 3(3) the Government should be given a wide and generous berth to decide that certain national or international events are of such importance that the public's cooperation is needed. It was the culmination of all four factors that led the Commissioners to reach the conclusion that they did. If the Commissioners are mistaken and Section 3(3) does apply to the Honourable Premier's Address as a whole, the Commissioners are still of the view that singling out a particular member of the House for criticism is contrary to the spirit and intent of the section. Section 4 which deals with Government broadcasts and Opposition replies specifically prohibits references to members of Parliament. This prohibition, which is repeated throughout Section 4 and enshrined in the definition of "political broadcast" under Section 2, is to keep the broadcast above the slings and arrows of politics. If a speech is elevated even higher and said to be of national importance, it can only be in the rarest of case that it is right to criticise a member of Parliament. In the opinion of the Commissioners this was not one of those instances.

Given the Honourable Premier's unfavourable reference to the Former Minister of Tourism and her favourable references to the Minister of Finance's budget, fiscal and economic policies, the broadcast does not meet the requirements of Section 4 of the Broadcasting Directions. Government did not present the broadcast as a political party broadcast and the broadcast was paid from public funds. The Commissioners find that there is no safe harbour provision under the Broadcasting Directions that protects the broadcast. The broadcast is in breach of the Section 4 requirements.

In light of the foregoing findings, had the Broadcasting Undertakings applied their minds to the Political Directions, they reasonably could have concluded that the Honourable Premier's Address did not meet the requirements of Section 3(3) and Section 4. What then? Do they stop the broadcast when the Honourable Premier of the Country says that she has something to say concerning events of national importance? Do they have the task and the responsibility of being the editors of what is aired? The Directions do seem to give them power to refuse to air a broadcast if they are satisfied that the intended broadcast does not meet the requirements of the Directions. The power, which must be exercised judiciously and with the public interest in mind, is, however, subject to their decisions being reviewed by the Commissioners. They also have the ability in cases where they are not sure to ask the Commissioners for direction. If the person wishing to broadcast a speech feels aggrieved by an Undertaking's decision, then they have the right to file a complaint with the Commissioners. In order for the system to operate efficiently and fairly, those people who are submitting material for broadcasting should ensure that they give the Undertakings sufficient time to consider and apply the Broadcasting Directions and, if need be, for the Commissioners to resolve any dispute or concern prior to the date scheduled for the broadcast. As previously stated, in the case where Government must act quickly and needs immediate access to the airwaves, then the practical burden falls on Government to ensure that they do not place the Undertakings in breach of the Broadcasting Directions. It may not be unreasonable for the Undertakings in those special circumstances to give the Government the benefit of the doubt that the broadcast is of national importance under Section 3(3) or is in compliance with Section 4, particularly where an assurance has been given by GIS that the Broadcasting Directions have been considered.

The Commissioners accept that people acting in good faith may not always reach the same conclusions when considering whether a particular broadcast falls within this section or that section of the Broadcasting Directions. No doubt there will be people that do not agree with the Commissioners' analysis of how the Directions apply to the Honourable Premier's Address. The point is that if Undertakings act in good faith and try their best to arrive at a sensible decision but err, the consequence will be that the Commissioners will review the decision and give the appropriate direction to correct the error. What cannot be permitted is a situation where the Undertakings do not address their minds to the legislative requirements. The Undertakings have given the Commissioners no cause for believing that they will not apply the Broadcasting Directions in the future, and each have indicated that they have put procedures in place to ensure compliance to Section 8(3) of the Broadcasting Commissioners Act 1953, the Undertakings are directed within twenty one (21) days to submit to the Commissioners their respective procedures for the vetting of material which is of a political nature, including submission deadlines, and notices or advisories to GIS. Prior to submitting this information to the Commissioners, the two Undertakings are encouraged to meet with the other for the purpose of arriving at uniform standards and procedures. Upon receipt of this information, the Commissioners shall then consider the adequacy of the procedures and give any further directions that may be required.

DATED this 26th day of August 2002

Timothy Z Marshall Chairman,

Laverne Furbert Commissioner

Cathy Stovell Commissioner