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 things now 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 [1985] QB 1153; Lynch v BBC [1983] 6 NILB 1; Wilson v IBA (No 2) 1988 SLT 276; R v BBC, ex parte Referendum Party [1997] EMLR 605; SNP v Scottish TV (Court of Session, Outer House; 15 April 1997); Boyle [1986] 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 [1998] IEHC 62 (24 April 1998); aff’d [2000] IESC 44 (26 January 2000); [2000] 3 IR 1 (HC, Carney J; SC); Kelly v Minister for the Environment [2002] IEHC 38 (16 May 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.

During the course of the next month or so, we are going to hear a lot about the duty of broadcasters to be balanced, fair, objective, and impartial, in current affairs matters. In fact, TV3 have twice now sought to determine exactly what that duty means. First, earlier this month, TV3 queried whether this duty requires a moratorium on political coverage the day prior to polling and on election day. Then, last Thursday night, on Tonight with Vincent Browne, Browne suggested that if Fine Gael leader Enda Kenny did not accept TV3’s invitation to participate in an election debate with other party leaders, TV3 would go ahead with the debate with an empty chair where Kenny should have been; and Browne simply rebuffed Fine Gael’s Alan Shatter’s objection that the empty chair would breach TV3’s duty of impartiality. Given how supine Irish broadcasters have been in the past about the scope and limitations of this duty, I’m delighted to see TV3 take such a robust interpretation, and I look forward to further examples during the general election. In the meantime, in this post, I want to look at the fairness issues raised by the moratorium; in a future post I will look at those raised by the empty chair.

The duty of impartiality at issue in these cases flows from section 39(1) of the Broadcasting Act, 2009 (also here), which requires that broadcasters ensure that

(a) all news broadcast by the broadcaster is reported and presented in an objective and impartial manner and without any expression of the broadcaster’s own views,

(b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of his or her own views, except that should it prove impracticable in relation to a single broadcast to apply this paragraph, two or more related broadcasts may be considered as a whole, if the broadcasts are transmitted within a reasonable period of each other, …

Moreover, section 42(2) of the Act (also here) requires that the BAI prepare a broadcasting code providing

(a) that all news broadcast by a broadcaster is reported and presented in an objective and impartial manner and without any expression of the broadcaster’s own views,

(b) that the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the broadcaster’s own views, …

The Broadcasting Authority of Ireland (BAI), reflecting the practice of its predecessor bodies, had taken the view that proper compliance with section 39 requires a moratorium on election coverage by the broadcast media during the final 24 hours before polling commences or while polling is underway, to allow voters a period for reflection in the final stages of an election campaign. Read the rest of this entry »

Dr Johnson defined gallimaufry as

1. A hoch-poch …
2. Any inconsistent or ridiculous medley. …

Here’s another hoch-poch, or hotch-potch (though, of course, not a hotchpot) of links relevant to the themes of this blog that have caught my eye over the last while. I’ll begin and end with some stories of censorship, and along the way I’ll mention open wifi, international perceptions of Ireland, typography, mobile phones, broadcasting, and the future of our universities.

First, as a supplement to my post on the Lady Chatterley’s Lover trials, Alan Travis in the Guardian argues that the failure of the Chatterley prosecution secured the liberty of literature in Britain over the past 50 years. By way of a similar supplement to my post on the decision of the European Court of Human Rights in Akdas v Turkey 41056/04 (15 February 2010) that a Turkish ban on Apollinaire’s Les Onze Mille Verges infringed Article 10 of the European Convention on Human Rights, the Guardian reports that Turkey is at it again: publisher Irfan Sanci is being prosecuted – under the same Turkish provisions that were found wanting in Akdas – for publishing a translation of another Apollinaire noverl, Les exploits d’un jeune Don Juan (The Exploits of a Young Don Juan). To add insult to this injury, the prosecution comes in the week before Sanci is to be bestowed with a special award by the Geneva-based International Publishers Association. Read the rest of this entry »

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!

Eisenhower for President via Youtube

As a companion piece to the Reagan advertisement in my last post, Eisenhower for President (left), built around the famous slogan “I like Ike”, is regarded as the first paid political television advertisement. I wonder what the first Irish one will be, and when?

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 two cases 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 via Youtube

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 Transformation of the Campaign Financing Regime for U.S. Presidential Elections

… 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.

Section 41(3) of the new Broadcasting Act, 2009 (pdf) provides:

A broadcaster shall not broadcast an advertisement which is directed towards a political end or which has any relation to an industrial dispute.

This sub-section (in conjunction with section 41(4), which contains a ban on religious advertising) re-enacts long-standing bans on political (and religious) advertising; though such a ban is unlikely to survive challenge in the European Court of Human Rights.

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 Times headline 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 Marshall McLuhan in the headline, Rafter wrote:

Medium is the political message

… 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:

Joyce estate settles copyright dispute with US academic

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. …

More: ABA Journal | Chronicle | Law.com | San Francisco Chronicle | Slashdot | Stanford CIS (who represented Shloss) esp here | Stanford University News (a long and informative article).

Second, I have long been of the view that hecklers should not be allowed to veto unpopular views, and none come more unpopular that holocaust-denier David Irving. Now comes news that NUI Galway’s Lit & Deb society have withdrawn their controversial invitation to Irving for security reasons:

David Irving address in NUIG cancelled due to ‘security concerns’

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”. …

Read the rest of this entry »