Swiss Air 111 documentary

Review from the Office of the Ombudsman | English Services

Summary

The complainant found a fifth estate documentary on the causes of the crash of Swiss Air 111 sensational, and unnecessarily painful for the victims' families. The review finds the journalistic purpose and tone more than met standards.

Complaint

On September 2, 1998, a Swiss Air MD 11, en route from New York to Geneva, plunged into St. Margaret's Bay, Nova Scotia. The pilot reported smoke from an unknown source and was diverting to Halifax airport when the plane went down. The crash killed all 215 passengers and 14 crew on board. The search and rescue, as well as the inquiry into the causes of the crash, were carried out by Canadian authorities because the crash occurred in Canadian waters.

After years of investigation the Transportation Safety Board issued a report in March of 2003. The Board describes its function on its web site: to investigate for the “purpose of advancing transportation safety. It is not the function of the Board to assign fault or determine civil or criminal liability.” The report identified what it considered the probable cause of the fire: the arcing of electrical wires which caused other materials on the plane to catch fire. It is a very exhaustive report, but not entirely conclusive. Under Findings as to Causes and Contributing Factors, it says “This arc was likely associated with the fire initiation event; however, it could not be determined whether this arced wire was the lead event.” It issued a list of recommendations that were widely adopted, chiefly having to do with the insulation materials used in aircraft to minimize the risk of the flammability.

In the course of its investigation, the TSB worked closely with the Royal Canadian Mounted Police to investigate the possibility that crime was involved in the downing of the aircraft. The TSB ruled that out in its report. “No evidence was discovered in the aircraft debris to suggest that criminal acts had contributed to the occurrence.”

On September 16, 2012 the fifth estate ran a documentary that challenged that finding. It raised the possibility that the fire was started by an incendiary device, and that the evidencethat pointed in that direction, while inconclusive, was dismissed without proper consideration. One of the forensic experts with the investigative team, a former member of the RCMP, presented evidence that the presence of magnesium on some recovered wires was never properly explained, and that it could mean some sort of incendiary device was the event that started the fire. He also said he was pressured into dropping that line of investigation and it was never fully pursued. The program went on to hypothesize, based on sources and documents, on why that happened. And it presented a case that it was a decision based on cost and jurisdiction. The TSB was working closely with many international agencies and the investigation was extremely costly. The program stated that had it shifted to a criminal investigation, the cost and onus would shift to the RCMP, and the decision makers did not want this to happen outside of the TSB's mandate.

In your [Chris McNamara] complaint, you felt that it was completely inappropriate to air this program, that its contentions were merely a conspiracy theory. And you pointed out that this would be particularly disturbing to the families of the victims. “The episode had the potential to completely rip apart any sense of closure that had been attained by the family and friends of the victims of Swissair 111, thirteen years after the air crash incident.” You clearly feel this very keenly and deeply, as you contacted the program even before it aired. You shared the fact that you knew one of the victims, and so this understandably had an impact on you. Linden MacIntyre, who presented the episode and is a senior CBC journalist, wrote you to try to alleviate your concerns, and invited you to write again after the program was aired. The situation is further complicated by the fact that information was leaked to the media before the broadcast, which overstated and misrepresented what was in the report.

In your thoughtful and detailed complaint you raised a series of questions. In summary, you wanted to know if this broadcast conformed to CBC's Journalistic Standards and Practices. You questioned the ethics of airing the documentary and wondered if it conformed to policy on Balance and Fairness among others.

MANAGEMENT RESPONSE

After some delay, David Studer, Director of Current Affairs and Investigative Programming, responded to your concerns.

He defended the journalism as well as the tone of the program. He also took issue with your characterization of the documentary as sensational. “The fifth estate is probing, challenging and prepared to take issue with conventional wisdom and assumptions. Sensational it is not. This edition was careful, methodical and disciplined.” He also stated, as is mentioned on air in the broadcast, those who could respond to the case put forward declined to participate in the program. He assured you the program had considered the impact on those whose lives had been touched by this tragedy.

Before considering the journalistic policy and how the program stacks up against it, there is one more unusual element in this complaint that should be addressed. In your complaint you cite a news release published on a Swiss TV website two days before the fifth estate broadcast, quoting the editor in chief of Swiss TV, Diego Yanez. It seemed he was disavowing the documentary, saying Swiss TV had declined to run it and further claimed it had been “co- researched” by the two broadcasters. I have spoken to Mr Yanez and he clarified for me what he was talking about. He was referring to the research his own team had, and a report they were working on. He had not seen the fifth estate documentary or read a script. Nor did his journalists have full access to all the information available to the fifth estate. The Swiss TV team did share information with the Canadian team, but there was no formal co-production agreement. As I mentioned earlier, there was some muddying of the waters because the story generated publicity before it aired, and before the information in the actual documentary was made public.

I spent considerable time with the programmers to try to understand why they chose to highlight the story of Tom Juby, the ex-Mountie who still has questions about what caused the fire on the Swiss Air flight. The time and attention that went in to just the decision to proceed with the story was exceptional, even by investigative journalism standards. One of the team was a Halifax-based reporter who had spent 10 years covering the Swiss Air crash, the investigation and the impact it had on the victims and the people who were involved in the rescue and recovery.

He tells me that when he first heard about Juby and his belief that there was an incendiary device he was highly dubious. He met with Juby many times over a period of months. He checked out aspects of his story in off-the-record conversations with fellow Mounties, other members of the team and even some of his superiors. They could find no loopholes in his story. He also provided some 16,000 pages of documents. There were other off-the-record sources that believe Juby had legitimate concerns about what he had found, and they also corroborated that his line of inquiry — that the presence of magnesium could indicate the presence of an incendiary device — was shut down. You cite a spokesperson from the Transportation Safety Board saying the magnesium was present because of the time the wires spent in sea water. Therefore you felt the program violated journalistic policy of accuracy. The researchers on the program tell me that in fact they saw evidence of tests that refute that. As is often the case, there are competing versions and explanations. The documentary raises questions based on facts. It is not absolute in its judgment, but builds a case based on evidence they discovered. That is appropriate due diligence.

Here is what the CBC's Standards and Practices has to say about Investigative Journalism:

Investigative journalism is a specific genre of reporting which can lead to conclusions and, in some cases, strong editorial judgments. A journalistic investigation is usually based on a premise but we do not broadcast an investigative report until we have ensured that the facts and evidence support the conclusions and judgments.

To achieve fairness, we diligently attempt to present the point of view of the person or institution being investigated.

The piece makes two main points: that the flight may have been sabotaged and that the investigation did not go far enough to prove it or rule it out. There was an allegation, corroborated by more than one source, that there was a conscious decision to drop that aspect of the inquiry. And the agencies and people involved in that decision are publicly accountable for that decision. While the possibility of criminal activity is a very serious one, and as you point out, quite upsetting, the questions of interference in an investigation also have a public interest. The programmers did try to have the people who could have shed light on those decisions appear in the broadcast. And in the absence of that, Linden MacIntyre fairly explained and presented the main reasoning and findings of the final TSB report. The fact he did so addresses your concerns about balance and fairness.

You questioned the ethics of making these allegations and concerns public. Ethical choices are about the competing guiding principles at play. One of the most basic journalistic principles is to find the truth and report it as completely as possible. There are competing principles that emphasize the need to minimize harm. But nowhere does it state there can be no impact. There is certainly no issue, as you raised, about questioning the integrity of the findings in the TSB report. The very nature of investigative journalism is to ask tough questions, especially of those accountable. It was not done capriciously, but was based on detailed research and analysis. You also legitimately raise the potential to cause pain to the families of the victims of the crash. Again, in weighing the harm and good of the broadcast, the decision was that the need to get this story aired outweighed the harm. But the program seemed to go out of its way to acknowledge and try to mitigate the impact. The fact that there are people who live with the pain was acknowledged in several ways: by interviewing and featuring the widow of the pilot throughout, by showing families at a memorial, and explicitly in Linden MacIntyre's closing script on camera in which he said: “We agonized about reviving questions that bereaved families and friends had hoped had been forever laid to rest. In the end we felt it was important to revisit this story because of a credible science-based claim that the Swiss Air 111 investigation was curtailed before it had properly assessed a criminal scenario that might explain that crash.” What he expressed is proper journalistic process and procedure.

You also felt the language was so potentially harmful, that the policy on language use should have been observed by providing a warning. The policy states:

To describe certain realities or report adequately on certain situations, it is sometimes necessary to use expressions or quotations that may be shocking to part of the audience. In these circumstances, we limit ourselves to what is necessary for understanding, we attribute the statements where applicable and we take care to present them in proper context.

We ensure that, taking into account the context in which the words are published, they are not likely to expose anyone to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, gender, sexual orientation, age or physical or mental disability. We refer to senior editorial management in case of doubt.

We respect the audience's degree of tolerance, with due regard for society's generally shared values.

When we find it necessary to use words that could shock part of the public, we give a clear audience advisory.

There was nothing unclear about what the program was going to deal with. Any use of advisory is a judgment call. In this case, I agree with the judgment that it was unnecessary.

I can understand why you, close to the event, by geography and by personal connection to a victim, would find it painful and question the need to re-open an old wound. It would be comforting if the program could have come to a definite conclusion. The decision to make public what the reporters and producers had learned, and the methods they used to corroborate and to seek other points of view and contradictory facts, fall well within CBC's Journalistic Standards and Practices.

Esther Enkin
CBC Ombudsman