Following the appointments made in October by the Minister for Communications to the Board of the Broadcasting Authority of Ireland, and the appointments made by the Minister in November to the BAI’s Contract Awards Committee and Compliance Committee, the Joint Oireachtas Committee on Communications, Energy and Natural Resources has now made its appointments to the Board. Joining Bob Collins (Chair), Paula Downey, Michelle McShortall, Dr. Maria Moloney, and John Waters are Mr Larry Bass, Mr Michael Moriarty, Professor Colum Kenny and Ms Siobhán Ní Ghadhra. At the same time, the Committee appointed the new RTÉ Board. The Committee’s appointments complete the new broadcasting regulatory architecture established under the new Broadcasting Act, 2009 (html | pdf). Go n-éirí leis an iarracht!
I promised in an earlier post that I would look again at Kevin Rafter’s recent report on Political Advertising: The Regulatory Position & the Public View (pdf), the research for which was funded under the Broadcasting Authority of Ireland’s Media Research Scheme.
In Ireland, political advertising is banned in the broadcast media, but there are no similar restrictions upon the non-broadcast media, such the press, billboards, and so on, though a system of party political broadcasts during election and referendum campaigns is intended to mitigate the harshness of the broadcast advertising ban.
This distinction between broadcast and print media is often justified by the particular power of the broadcast medium. However, a local ban takes little account of developments in broadcasting (cable, satellite and digital channels) and telecommunications (the internet, mobile devices), and radio and television have nothing like the reach and impact that they had even a generation ago.
The main justification for the broadcasting ban lies in the fear that signficant resources would unfairly distort the political marketplace in favour of larger parties and major candidates with deep pockets and against the interests of smaller parties and minor candidates lacking in similar resources. As Barrington J put it in the Supreme Court put it Murphy v IRTC [1999] 1 IR 26, the Oireachtas is entitled to consider that “in relation to matters of such sensitivity, rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals”. However, this concern is easy to overstate: as a reason for a restriction upon speech, it may justify regulations – even strict regulations – controlling political advertising, but it hardly supports an outright ban. It is unsurprising therefore that twocases in the European Court of Human Rights and another in the High Court of Australia have struck down such bans as incompatible with freedom of expression.
This is the background to Rafter’s report. He looks at political advertising regimes in many other jurisdictions, spaning a spectrum from the UK (whose regime is similar to ours in Ireland), through various intermediate positions in other European coutries (in increasing order of liberalisation: France, Germany, the Baltic states, the Scandanvian states) to the US (where, for free speech reasons, there is no regulation of political advertising, and only partial tolerance of campaign finance regulation). This is summarized in an interesting table (on p13) locating Ireland in a list of 29 countries.
Rafter then examines some of the controversial applications of the ban, including the banning of an advertisments by – an anti-abortion campaign group (a ban which the High Court upheld), the publishers of the autobiography of a controversial politician, a group promoting an anti-war concert, a national agency pressing for legislative change to benefit consumers, and a charity campaigning against gender inequality in third world. He concludes that the “implementation of the legislative ban on political advertising in Ireland has resulted in a lack of equality in the treatment of different groups” (p17 – query: does this raise constitutional equality concerns?). Moreover, comparing these examples with cases in which similar bans have been struck down, he confidently asserts “an increasing body of European Court case law … points to a fundamental problem with the blanket ban on political advertising in the context of the right to freedom of expression in Article 10 of the European Convention on Human Rights” (pp20-21). For what it’s worth, I entirely agree.
As part of the research, Rafter commissioned an opinion poll on the issue, and the results are a very important aspect of the Report. Almost half of respondents opposed changing the current regime; but there was a significant difference in attitude across age categories with younger people more strongly in favour of liberalisation; and people are more open to change if limitations on spending or on the broadcast period accompany any liberalisation. On the other hand, forty percent believed the status quo is an infringement on the freedom of expression of organisations covered by the ban; and there was strong support for the idea that the rules governing party political broadcasts should be determined by an independent body. This is a far from monolithic response, and demonstrates that the current inflexible regime is out of touch with public opinion.
For all of these reasons, Rafter proposes significant changes to the ban on political advertising (as well as to the party political broadcast system). His recommendations include:
Political parties and other groups should be given greater freedom to publicise their policies and agendas on television and radio. This change should be implemented in the context of providing non- political parties with access to political advertising opportunities while expanding the Party Political Broadcast system for registered political parties.
Broadcast advertising by interest groups other than political parties should be permitted outside election and referendum campaigns subject to defined rules …
The public will need reassurance that the system ensures those with access to resources do not disprortionately benefit under a new regime.
This should be done immediately, if not sooner; but I’m not going to hold my breath that this will happen any time soon. And the first Irish paid-for political advertisement is looking more remote by the day.
Morning in America (left) is the common name of a political adverisment used by Ronald Reagan in the 1984 US presidential election. Officially entitled Prouder, Stronger, Better, the optimistic tone of the advertisment made it one of the most effective political campaign advertisments ever made (and went hand in hand with another famous political advertisment critical of his opponent). It is an advertisment that comes to mind whenever I think about political advertising.
Following on from yesterday’s post, here are three quick updates on political advertising.
First, Kevin Rafter’s report for the BAI (pdf) has been picked up by the The Irish Film & Television Network. Second, there is a very good letter in today’s Irish Times on the issue:
Madam, – A proposal to alter the restrictions on political and religious advertising is long overdue (News, November 16th). The decision, some weeks ago, by RTÉ to ban a fundraising advertisement by the Shell to Sea campaign is an indication of the folly which underlies this ban. Defining what comes under the scope of a political campaign is a delicate but, ultimately, subjective judgement.
An oil company or car manufacturer advertising a “green” approach to business is a highly political act. But our current system views commercial interests as if they existed in a political vacuum.
The US system, where political advertising becomes a function of profits is, of course, wholly undesirable. But the current legislation creates an environment where advocates of the profit-first approach to building a society are given free rein over the airwaves while proponents of an alternative viewpoint are restricted.
Surely we can find a middle ground which accommodates legitimate commercial advertising, allows freedom of speech but doesn’t allow the airwaves to be taken over by political organisations. – Yours, etc,
EOIN MURRAY
Third, Rick Hasen has just posted an excellent discussion of US campaign finance/political advertising laws on SSRN:
… The potential for quid pro quo corruption of candidates appears to remain low, thanks to a series of laws imposing contribution limits. Sale of access to candidates, however, remains a feature of U.S. presidential elections even post-BCRA. From the standpoint of political equality, the transformation offers a mixed bag with somewhat offsetting effects. Thus, the collapse of the public financing system may have anti-egalitarian effects, but those effects are somewhat militated by the rise of micro-donors. The end of soft money and the rise of outside non-party political organizations in theory could lead to weakened political parties, but continued polarization of the electorate have kept parties thriving even under BCRA and the shifting constitutional ground rules of the U.S. Supreme Court.
Dr Kevin Rafter, Head of the Department of Film and Media, in the School of Creative Arts, at the Dun Laoghaire Institute of Art, Design and Technology has just written a fascinating report on Political Advertising: The regulatory Position and the Public View (pdf) for the Broadcasting Authority of Ireland (BAI). I’m glad to see this for at least two reasons.
First, it means that the BAI has hit the ground running. In October, the Minister announced five members of the Authority; according to section 13(7) of the Act, the quorum for meetings of the authority is five, so it has been operational since these five members were appointed by the Minister. However, the full membership is nine, and the other four members are being appointed by the Joint Oireachtas Committee on Communications, Energy and Natural Resources.
Second, the report has returned an important issue to public debate. The responses have been interesting. The BAI press release headline emphasised that the independent report confirms majority support for the retention of prohibitions on political advertising in Ireland, whilst the Irish Timesheadline emphasised that the report is a call to relax the ban on political ads for TV and radio, and RTÉ’s headline emphasises that the report points out that the ban on political adverts could be challenged. Writing in the Irish Times in advance of yesterday’s publication of the report, echoing MarshallMcLuhan in the headline, Rafter wrote:
… The restrictive nature of the political advertising regime in Ireland has led to ongoing controversy. … In an era of media convergence between the various strands of broadcasting – television, radio and the internet – it does seem timely to review the blanket ban on political advertising on television and radio. To do otherwise would be to be locked in a policy and technological time warp. …
The recommendations in the new study were formulated in the context of technological change, judicial development and public opinion. The objective should be to see managed policy change at a national level rather than waiting for the European Court to force a response or for internet developments to render the current regime obsolete. The recommendations envisage a revised regime in which there is greater similarity in the regulatory treatment of political advertising on different broadcast platforms and an acceptance that political advertising has a role to play in democratic discourse. …
This is a very welcome publication, and I will return to it in my next post. The BAI are to be commended for supporting the research that led to the report; and Rafter is to be commended for writing such a subtle, balanced and compelling assessment; now, to complete the trinity, let us up that the government can soon be commended for amending the legislation accordingly.
I suppose if I spent ages thinking about it, I could find a spurious thread linking three stories that caught my eye over the last few days, but in truth there is none, except that they update matters which I have already discussed on this blog. (Oh, all right then, they’re all about different aspects of freedom of expression: the first shows that copyright should not prevent academic discussion; the second shows that hecklers should not have a veto; and the third is about broadcasting regulation).
First, I had noted the proclivity of the estate of James Joyce to be vigorous in defence of its copyrights; but it lost a recent case and now has agreed to pay quite substantial costs as a consequence:
The James Joyce Estate has agreed to pay $240,000 (€164,000) in legal costs incurred by an American academic following a long-running copyright dispute between the two sides. The settlement brings to an end a legal saga that pre-dates the publication in 2003 of a controversial biography of Joyce’s daughter, Lucia, written by Stanford University academic Carol Shloss. …
The proposed visit of the controversial historian David Irving to the NUI, Galway Literary & Debating Society has been cancelled. In a statement the Lit & Deb said the cancellation was “due to security concerns and restrictions imposed by the university authorities”. …
The Broadcasting Act, 2009 (pdf) sets the regulatory framework for broadcasting services in Ireland. It consolidates all Irish broadcasting legislation into a single Act, and establishes a new Broadcasting Authority of Ireland (BAI, incorporating the functions of the current Broadcasting Commission and RTÉ Authority). According to Paul Cullen in today’s Irish Times, the BAI is to be established this week:
A new authority with powers to regulate all broadcasting, both commercial and RTÉ, is due to come into existence this week.
The Broadcasting Authority of Ireland (BAI) is expected to begin operations next Tuesday once the Cabinet approves five nominations to its board by Minister for Communications Eamon Ryan. The remaining four board members will be appointed by the Government on the nomination of the Joint Oireachtas Committee on Communications.
A little while ago, the Sunday Business Postreported that the Committee has decided to advertise those posts, so that it will be some time before they are appointed and that the Board will be only partially in place this week. Whether fully or partially established, there will be much for it to. For example, Cullen reports that
… One of the first tasks of the new authority will be to draw up new rules governing the advertising of junk foods on television, something which is specifically provided for in the new legislation. A new code to govern religious advertising is also in planning. …
Inevitably, however, not all of its proposed work has met with approval. For example, writing in yesterday’s Sunday Independent, Colum Kenny also noted that the BAI is expected to be established this week, but raises some alarm bells:
Curb on offensive material is only one of the tricky issues facing new watchdog, says Colum Kenny
THE new Broadcasting Authority of Ireland (BAI) has powers to fine broadcasters that “cause offence”. … The Broadcasting Act 2009 has introduced a duty on broadcasters to ensure that “anything which may reasonably be regarded as causing harm or offence” is not broadcast. …
The Department of Communications said last week that the new provision simply replaces former requirements relating to “taste and decency” and is in line with international practice. … Causing offence can be a constitutional right. It is also a good thing if it shakes people out of complacency about institutional hypocrisy or challenges personal misbehaviour. … Just how the BAI will interpret its duty to stop all broadcasters from causing harm or offence will emerge when complaints are made to it or to its new Broadcasting Compliance Committee. The existing BCI has been slow to intervene in the provision of content, allowing considerable freedom to broadcasters to do as they wish. …
Section 39(1) of the Act provides in part (with emphasis added):
Every broadcaster shall ensure that—
…
(d) anything which may reasonably be regarded as causing harm or offence, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by the broadcaster, and
(e) in programmes broadcast by the broadcaster, and in the means employed to make such programmes, the privacy of any individual is not unreasonably encroached upon.
Like Colum, I am also uncomfortable with elements that provision, but a similar offence clause in the UK survived challenge in R v BBC ex parte Pro Life Alliance[2004] 1 AC 185, [2003] UKHL 23 (10 April 2003), and I doubt that an Irish court would come to a different conclusion.
Following the appointments made in October by the Minister for Communications to the Board of the Broadcasting Authority of Ireland, and the appointments made by the Minister in November to the BAI’s Contract Awards Committee and Compliance Committee, the Joint Oireachtas Committee on Communications, Energy and Natural Resources has now made its appointments to the Board. Joining Bob Collins (Chair), Paula Downey, Michelle McShortall, Dr. Maria Moloney, and John Waters are Mr Larry Bass, Mr Michael Moriarty, Professor Colum Kenny and Ms Siobhán Ní Ghadhra. At the same time, the Committee appointed the new RTÉ Board. The Committee’s appointments complete the new broadcasting regulatory architecture established under the new Broadcasting Act, 2009 (html | pdf). Go n-éirí leis an iarracht! 
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