The empty chair and the moratorium: broacasters’ duties of fairness – II
I enjoy political debate; and I particularly enjoy political debates on television between political party leaders. I will therefore be a happy spectator tomorrow night when TV3 host the first such leaders’ debate of the current election campaign. But, as thingsnow stand, Enda Kenny, the leader of Fine Gael, the party which is leading in all of the polls, will not participate. One of the consequences of his refusal to do is that he has made the broadcaster part of the story, and not simply the means by which the political story reaches us, the viewing public. (It’s not the only example of the broadcaster being the story this week: there was a spat between Newstalk and RTÉ; and there were calls for a deputy leaders’ debate and a women’s debate). As a general rule, it’s not a good thing when the broadcaster becomes part of the story; it means something has gone awry with the normal functioning of the political process. When that happens, people often reach for their lawyers. Last week, a leading member of Kenny’s party suggested that having the debate without Kenny (perhaps with an empty chair to symbolize his absence) would breach TV3’s statutory duty of impartiality. I’m surprised I haven’t heard more of this since, but it would not amaze me at all if someone attempts to make this canard fly again over the next few days.
Section 39(1)(b) of the Broadcasting Act, 2009 (also here), requires that broadcasters ensure that their treatment of current affairs “is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of … [their] own views”. Clearly, if TV3 had excluded Kenny from a debate featuring other leaders, they would be in breach of this duty (Wilson v IBA 1979 SLT 279; R v BCC, ex parte Owen  QB 1153; Lynch v BBC  6 NILB 1; Wilson v IBA (No 2) 1988 SLT 276; R v BBC, ex parte Referendum Party  EMLR 605; SNP v Scottish TV (Court of Session, Outer House; 15 April 1997); Boyle  Public Law 562; Munro (1995) 145 NLJ 518). Indeed, in such hypothetical circumstances, they may well be in breach of constitution (Coughlan v Broadcasting Complaints Commission IEHC 62 (24 April 1998); aff’d IESC 44 (26 January 2000);  3 IR 1 (HC, Carney J; SC); Kelly v Minister for the Environment IEHC 38 (16 May 2002);  IESC 73 (29 November 2002)). But TV3 have not excluded Kenny; instead, they have invited him to participate, and he has chosen not to. This is simply the latest in a long and ignominious tradition of politicians declining to face (running away from?) uncomfortable questions on inhospitable programmes from disagreeable interrogators. It is plain common sense that a decision of a broadcaster to go ahead with a programme after a politican or representative of a political viewpoint has declined the opportunity to participate should not, for that reason, infringe the duty of fairness and impartiality. Otherwise, that refusal would give the refusenik a veto to stymie the broadcast.
Moreover, those cases demonstrate that compliance with s39 is not a formal or mechanical matter; instead, the broadcaster must take a realistic approach to their attempts to achieve balance. Indeed, even section 39 recognises that formal or mechanical compliance with its terms is often difficult, since it goes on to stipulate that if it is impracticable to comply with the duty of fairness and impartiality in relation to a single broadcast, then “two or more related broadcasts may be considered as a whole”, provided that the broadcasts “are transmitted within a reasonable period of each other”. For example, a series of one-on-one interviews with leading politicians would plainly satisfy these conditions. So, even if there are concerns about Kenny’s absence from the debate on Tuesday night, TV3 could counter that their overall election coverage more than makes up for them.
In short, even if Enda Kenny declines an invitation to participate in a leaders’ debate on TV3, and TV3 nevertheless go ahead with the debate without him (perhaps with an empty chair, or worse), there would be no substance to any objection from Fine Gael that this is in breach of their statutory duties of fairness and impartiality.