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.
A key part of the newly revised programme for government [scribd, see pp34-35] to end corporate donations to individual politicians and political parties could be open to constitutional challenge … [there is] “definitely a freedom of expression issue” about such a move and that it was “not straightforward”.
… however … the Supreme Court here has previously upheld restrictions on political advertising for reasons that “could sustain the validity” of a ban on donations to individual politicians and parties. … legislation attempting to regulate expenditure in US elections had been struck down by the US Supreme Court on freedom of expression grounds and that the European Court of Human Rights had also raisedquestions about such restrictions. Emphasising again the broadcast ban on political advertising, … [it is] “open question” as to whether the arguments made in the US on freedom of expression were “as strong in an Irish context” … [especially because] the Irish constitutional protection of freedom of expression was “not a particularly strong one”.
[On the other hand], speaking to the Sunday Tribune, environment minister and Green Party leader John Gormley [pictured top left] said he was confident the ban would be legally sound: … “If you have a situation as in the United States, where you have the best democracy money can buy, that is not conducive to a fairer, more equal society”.
I’m sorry I’m coming to this too late to attend the gig, but I’ve only just seen this piece by Lorna Siggins in today’s Irish Times (with added links):
RTÉ has denied that it has refused to broadcast an advertisement for a social event in Dublin tonight that includes a reference to the Mayo village of Rossport.
Justice and peace non-governmental organisation Afri said RTÉ is censoring its attempt to publicise the event, although it is willing to pay for the 20-second advertisement. An advert for the event was carried on the 98FM radio station yesterday.
Health and safety concerns about original plans by Shell EP Ireland for a high-pressure onshore pipeline led to the jailing of five men known as the Rossport Five for 94 days in 2005.
Over two months ago, RTÉ said it had “difficulties” with the wording of an advertisement for the Afri famine walk because of the reference to Rossport.
MidWest Radio had also declined to accept an advertisement for the famine walk from Afri, saying it had to consult the Broadcasting Commission of Ireland (BCI) on a reference to the Rossport Five. It said it informed the BCI of its decision, which it said the commission supported.
The commission said it gave no formal direction to MidWest. However, it had advised it – when the famine walk was already over – that its decision was a “reasonable interpretation” of the guidelines on political advertising under the 1988 Radio and Television Act [here and here].
RTÉ said that, as with the previous advertisement inquiry, it had asked Afri to clear it with the commission to ensure it complied with the 1988 Act’s guidelines on political advertising.
The advert promotes an Afri gig entitled That’s Gas… in the Sugar Club in Dublin. The wording refers to the title, venue and time, and lists Paula Meehan, Dermot Bolger, Jinx Lennon, members of Kila, Donal O’Kelly, Sorcha Fox, Pom Boyd, Gina Moxley, Vincent McGrath and Pat O’Donnell of Rossport as participants.
Afri described RTÉ’s decision as “a blatant attempt at censorship”. “This is another worrying insight into how our national broadcaster works and how large corporations can use their power to silence voices raised on behalf of justice and human rights,” Joe Murray of Afri said.
As this blog has noted in the past, Irish law doesindeedbanpoliticaladvertising; the current Broadcasting Bill does not purport to change this position; but it remains to be seen whether it can survive challenge in the European Court of Human Rights. In the meantime, there will be absurdly wide definitions of “political” by overly cautious broadcasters, and perfectly innocuous advertisments will continue to be unnecessarily banned.
Three stories from today’s Irish Times caught my eye. First, the good. The Press Council of Ireland and the Office of the Press Ombudsman launched their first annual report yesterday. The press industry undoubtedly did a good thing in establishing the Press Council and the Ombudsman, and yesterday’s report on the first year of operation shows the wisdom of that decision. The launch of the report is covered in the Home News section of the Irish Times, and welcomed in the lead editorial . From the report [with added links]:
AGGRIEVED READERS made over 370 complaints about newspapers and magazines last year during the Press Ombudsman’s first year of work, his annual report reveals. … Reviewing the performance of the Press Council of Ireland and the Office of the Press Ombudsman in their annual report published yesterday, council chairman Prof Tom Mitchell said the innovative and effective regulatory system offered significant benefits to the press and public. …
Moreover, speaking at the launch, the Minister for Justice, Dermot Ahern, said he hoped that the long-delayed Defamation Bill, 2006 would become law by the summer, an aspiration which Prof Mitchell greeted as “wonderful news”.
Second, the bad. Well, it’s no much that it’s bad as that it’s not enough. At present, Irish broadcasting law banspolitical advertising, and tightly regulates religious advertising. It was originally intended simply to restate this position in the Broadcasting Bill, 2006, but the Minister for Communications, Eamon Ryan, has announced that the restrictions on religious advertisements. This, too, is a good thing. But it is not enough of a good thing. The ban on political advertising should also have been revisited. And the failure to address this issue is a bad thing. From the report:
MINISTER FOR Communications Eamon Ryan will soften current restrictions on religious advertisements that are broadcast on television and radio. … “Advertising shouldn’t be used for promoting a particular religion or as an agent for recruitment. At the same time, I don’t want to completely restrict advertising that has a religious connotation.” …
Third, the ugly. And this is downright ugly. When the Defamation Bill, 2006 was introduced into the Seanad, it had an ugly twin, the Privacy Bill, 2006. However, as the Defamation Bill proceeded on its fitful way through the Oireachtas [Parliament], the Privacy Bill seemed to fade. Now, it is back with a bang. I do not for one moment doubt that Irish law on privacy is in need of reform, but I likewise do not think that the Privacy Bill as it was introduced in 2006 is the answer to that need. It was overly-restrictive on the meida, whilst ignoring almost every other aspect of privacy protection (eg, cctv, online privacy, genetic privacy, and so on). It now seems that the revived Bill will address some at least of those other issue, but the tone of the Minister’s comments yesterday suggest that the draconian media provisions will remain. And if they do, that would be an ugly thing. From the report:
MINISTER FOR Justice Dermot Ahern has revived plans to introduce laws to protect the privacy of individuals, citing a “worrying trend in media intrusion in order to get a good story”.
Yesterday, however, Mr Ahern announced he planned to inject fresh momentum into the Bill by updating its provisions to reflect recent legal and technological developments. … The violation of privacy was not the exclusive preserve of the media, he said, and many complaints over privacy now concerned actions by individual citizens against others. …
He made these comments at the launch of the Press Ombudsman’s annual report referred to above, and today’s Irish Independent’s report of the launch led with this aspect of his speech. This was where he made his comments on the prospects for the Defamation Bill’s eventual enactment (which I think is a good thing). But he said that he had “misgivings” about the defence of reasonable publication. And if these misgivings translate into the removal of the defence from the Bill, that would be a very ugly thing indeed.
Update (5 April 2009): Leave Press Council to do its work: in the Sunday Independent, Emer O’Kelly argues that the Government’s plan to amend the law on privacy will restrict freedom of enquiry, and it would be better if the Press Ombudsman and Press Council were to develop a body of decisions to cover the area.
The British Humanist Association (BHA) ran an entertaining advertising campaign on London buses lastyear, and it has just announced that it will run the campaign nationwide. The campaign is built around the slogan:
… The advertising watchdog has ruled that a controversial atheist ad campaign, which sparked the ire of Christian groups for proclaiming “There is probably no God”, did not break its code …
… The ASA Council concluded that the ad was an expression of the advertiser’s opinion and that the claims in it were not capable of objective substantiation. Although the ASA acknowledges that the content of the ad would be at odds with the beliefs of many, it concluded that it was unlikely to mislead or to cause serious or widespread offence.
The Christian Voice response is here. The best response I have found is on Nick Spencer’s Theos blog on the Telegraph website, returning to a fray he had joined when the advertisements were first posted on London buses.
[The ASA's decision] is terribly long-sighted and rather disappointing. Who would not have relished the sight of the ASA adjudicating on whether or not God probably exists? It could have been the Scopes Trial of the 21st century, calling the world’s leading philosophers, theologians, historians, artists, anthropologists, physicists, biologists, and psychologists to testify, not to mention the legion of ordinary men and women who claim to have had a spiritual experience or two.
The ASA offices in High Holborn would have turned into a media circus, as thousands of correspondents from every country on God’s (”Discuss.”) earth arrived to witness the judgment of this panel of sages. At last the issue would have been decided, probably.
Regular readers of this blog will know that section 20(4) of the Broadcasting Authority Act, 1960 (also here) and section 10(3) of the Radio and Television Act, 1988 (also here) as amended by section 65 of the Broadcasting Act, 2001 (also here) prohibit broadcast advertising in Ireland directed to any religious or political end (see here | here | here | here | here | here).
Edit: The remainder of this long post discusses the validity of such bans in the US, the ECHR, Ireland and the UK, by way of background three recent developments: debate about a failure to take a current legislative opportunity to amend the Irish legislation, another ban on an Irish religious advertisement, and an ECHR decision striking down a political advertising ban. Read the rest of this entry »
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