Tag: TV3

The empty chair and the moratorium: broacasters’ duties of fairness – II

The Rt. Hon. Tub of Lard MP facebook imageI 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); [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.

The empty chair and the moratorium: broacasters’ duties of fairness – I

Empty chair in BBC tv studio, via the BBC websiteDuring 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. (more…)

Do I hear drumbeats for privacy legislation?


And they’ll just put you in the spotlight
And hope that you’ll do alright
Or maybe not

Now why do you wanna go
and put starz in their eyes?
Why do you wanna go
and put starz in their eyes?

Just Jack, Starz in Their Eyes

Drumbeats for privacy protection in the face of press intrusion are most often raised by politicians and celebrities. The Economist recently reported that the age at which celebrities become famous is dropping, at the expense of ultimately shorter spells in the limelight. Just Jack’s astringent Starz in the Eyes (above) reflects on the often immense price of fleeting fame: one reason certainly is a hungry media pandering to the public’s interest in celebrities and their lifestyles. For example, much of the coverage of the aftermath of the death of Irish tv and radio personality Gerry Ryan concentrated on his drug taking during his career and in the lead-up to his sudden and untimely death.

Hot Press cover, 26 Jan 2011, featuring Brian O'Driscoll, via their siteReferring to this in a wide-ranging interview featured on the cover of the current issue of Hot Press magazine (cover, right), rugby star Brian O’Driscoll said:

I thought some of the coverage relating to his death was absolutely disgusting … I don’t feel as if the toxicology report should be made public knowledge. But that’s tabloid sensationalism for you.

He accepted that he and his wife, actress and writer Amy Huberman, are a celebrity couple with little control over what people say about them, and whilst he finds much of the attention “flattering”, he said that “maintaining a private life is very difficult” in the face of media persistence.

It would not surprise me if O’Driscoll’s is not the only call for privacy legislation in the wake of Ryan’s death, much as, this time last year, politicians sought to use TV3’s revalations of Brian Lenihan’s illness as a reason to suggest privacy legislation – notwithstanding the Broadcasting Authority of Ireland rejected (pdf) a number of complaints about TV3’s coverage. The loudest calls for privacy legislation came from the Seanad (an institution whose days may very well be numbered):

Senator Rónán Mullen: here: … [I] raise the media treatment of the Minister for Finance over the Christmas period. I ask the Leader for a debate at the earliest opportunity on the media and how they operate. I am not talking about a session in which everybody comes in and vents their own personal spleen, vendettas or gripes against journalism. There is already too much of politicians giving out about the media. We do not need a culture in which people constantly give out about the media. We need a culture in which people hold the media to account. We will do so by identifying that the libel laws alone are not sufficient to protect people, whether in private life or in public life from the depredations of the media. We need a more thorough analysis of how the media operate. While we need to consider that under the heading of privacy, we also need to consider issues like taste and decency, and fairness and balance. We can all outline occasions and instances where the media have been unfair. However, we live at a time when all institutions are coming under scrutiny and there is very little support for self-regulation. While I commend the work being done by the press council, that does not cover broadcast matters. There is no sense that the broadcasting regulatory authorities have any teeth at all. We clearly need to reconsider how we can hold the media to account in a way that does not impact unnecessarily or inappropriately on media freedom.

I say this with great sympathy to individual journalists who are caught up in a web of bad practice because of the pressure they face from their editors and media bosses. This is not targeted against any individual journalist or media practitioner. However, we definitely need a debate on how we can get the media to observe better standards. It was simply not acceptable to hear a series of journalists in recent weeks defend, as they had to do, bad practice. The most that some would say was that they would not have done it that way themselves, as if there were no objective standards which all should uphold. Clearly the timing of telling that story was a matter that should have been negotiated with the Minister’s family. The idea that anybody was done a favour by being given merely two days over Christmas is an insult to our intelligence.

Senators: Hear, hear.

Senator Rónán Mullen: I am asking seriously for a debate on the media in which we will not be hearing just rants about the media, but also constructive thoughts about how we can get the right balance between media freedom on the one hand and the right of all members of the public, including people in public life, to good standards on the other.

Senator Niall Ó Brolcháin: here: I also support the call for a debate on media very strongly, given the way things are going in this country in relation to politics, since I believe the media are unhelpful at the moment in that regard. It would be quite something to have a live debate on RTE television and radio from the Seanad, so that we might get our points across unedited. Quite often, the difficulty with media is that we are talking about spin and the segmenting of the things we actually say. It would be important to get matters before the public, live and directly, rather than having debates edited all the time.

These calls died out last year, and politicians now have other things on their plates at the moment, but the next government might be tempted to unpack the deeply flawed Privacy Bill, 2006. It is a temptation they must resist.

TV3 wants end to broadcast media blackout prior to election · TheJournal.ie

TV3 wants end to broadcast media blackout prior to election

Image: Gruenemann via Flickr

UPDATED 13.45

TV3 IS “DEMANDING” an end to the moratorium which forbids broadcast media from reporting most political coverage just prior to a general election. …

Currently, a 48-hour moratorium is applied to such reporting on the day prior to polling and on the day the country goes to the polls. … In a statement today, TV3 says … that “there is no legal requirement for the moratorium under Irish law” and that there is no provision in the Broadcast Act of 2009 for such a moratorium. TV3 also questions the legality of the moratorium in relation to the free speech guarantees set out in the Irish Constitution and the European Convention on Human Rights. …

The Broadcasting Authority of Ireland confirmed to TheJournal.ie that they have received the submission for TV3 and are giving it their “full consideration”. A spokesperson for the BAI said that the body is currently working on the final draft code for broadcasting during and in the run-up to the election. (This is the Draft Election Code, which can be viewed in full here) …

The moratorium flows from the BAI’s interpretation of s39 of the Broadcasting Act, 2009, rather than from the Act itself (following similar interpretations of earlier legislation by the BAI’s predecessor bodies). This particular practice has yet been challenged in the court, but since it is a restriction upon political speech, any case taken by TV3 should in principle have a good chance of success, though a strong interpretation of Murphy v IRTC [1999] 1 IR 12 (SC) may stymie them.

In any event, I would be grateful if anyone can point me towards the TV3 submission to the BAI, or even to the full text of TV3’s statement.

Cork privacy seminar discussed TV3’s Lenihan revelations

Press Council and Ombudsman logoToday’s Irish Times carries two interesting interlinked reports. The first is about yesterday’s Press Council seminar in Cork, the second is about TV3’s exposure of Brian Lenihan’s illness, which – unsurprisingly – was one of the issues discussed at the seminar.

First, yesterday’s seminar in Cork:

Media’s role vital to liberty, says Dunne

Freedom would mean less without a free media, entrepreneur Ben Dunne told a seminar organised in Cork yesterday by the Press Council of Ireland. … He condemned the broadcast of the Brian Lenihan story on TV3 on December 26th, saying that it “crossed a line it did not need to cross”. However, he added that TV3 was not the only offender in relation to breaches of privacy.

Another speaker, Data Protection Commissioner Billy Hawkes, told the seminar that the phenomenal development of the internet posed challenges to traditional ideas of privacy and data protection. …

Tightening privacy laws is a recipe for “non-accountability, secrecy and duplicity”, the seminar was told by Paul Drury, managing editor of the Irish Daily Mail, who added that he was wary of any proposal to legislate for heightened privacy.

Paul Drury will be very well aware that TV3’s revelations of Brian Lenihan’s illness could make privacy legislation more likely, even though the Minister himself seems remarkably phlegmatic about it:

Lenihan says he was rushed into telling children about cancer

Minister for Finance Brian Lenihan has told a local newspaper [the Community Voice newspaper in Blanchardstown] he was rushed into telling his children about his cancer diagnosis on St Stephen’s Day because TV3 had decided to run the story. …

Mr Lenihan said while he did not see what public interest was served between St Stephen’s Day and the new year by TV3 broadcasting the story, he did not intend to lose sleep over it.

Update: Three quick comments. First, thanks, Damien, in the comments below, for pointing me towards the Examiner report on the seminar Dunne slates TV3 for lack of fairness. Second, I couldn’t agree more with Noreen’s comment below that ” the notion that there is supposed to be some kind of journalistic obligation to keep politicians’ secrets is deeply unsettling. It’s in the nature of the media to report the news about public officials. If you’re a journalist, it’s called doing your job”. And, third, there is more about Brian Lenihan’s interview with the Community Voice in a story in today’s Irish Independent.

And so it continues

BAI logo, via BAI siteIn today’s Irish Times, Mary Minihan writes:

Complaints to BAI over TV3 cancer disclosure

The Broadcasting Authority of Ireland (BAI) has received 70 e-mails complaining about the TV3 news broadcast on St Stephen’s Day disclosing the cancer diagnosis of Minister for Finance Brian Lenihan. …

Meanwhile, Minster for Social and Family Affairs Mary Hanafin said she and her Government colleagues were “appalled” at the way the story was disclosed. …

And so it begins, with dreary predictability

Thumbnail of today's Irish Times front page, via Irish Times siteYou read it here first folks. Now, in today’s Irish Times, Michael Foley (School of Media, DIT) writes:

Lenihan broadcast could lead to privacy law rethink

ANALYSIS: TV3 had no more than a rumour about Brian Lenihan’s health, and no attributable source. …

Unlike journalists, politicians like rules, and the Minister for Justice has already warned he will revisit his privacy proposals if the media does not behave. The insensitive invasion of a popular politician’s privacy might be just the example he needs.

Expect to see lots of references to this piece as the clamour for privacy legislation begins to grow.

Update: have a look at John McGurk‘s thoughtful posts on the issue.

Will privacy legislation follow TV3’s disclosure of Brian Lenihan’s illness?

TV3 News logo, via TV3 websiteJoe Ryan wrote both an interesting comment on this morning’s post and a great post about the issue on his own blog. My reply to him became too long for a comment, so I’ve upgraded it to this post.

First, I should say that I worked with Brian Lenihan for a few years in TCD, and my thoughts and best wishes are with him and his family at this difficult time. It may be a cliché, but it’s nonetheless true for all that, and I hope he returns to rude good health as quickly as possible.

Second, as TJ McIntyre and Jason Walsh argue, Brian’s illness must be a prime example of a public interest in disclosure. On the other hand, Jim Tormey argues that it is a legitimate matter of public interest only when Brian finds or it appears obvious that he cannot do his job. This is a strong argument, and even some who are wary of overbearing privacy laws are discomfited by TV3’s insensitivity and lack of self-restraint. In the circumstances, I think that Brian showed great restraint in not seeking an injunction to prevent TV3’s broadcast, and I agree with Joe (and with Myles Duffy on The Crimson Observer) that, if Brian chooses to make an issue of it, the matter should go to the recently-fully-established Broadcasting Authority of Ireland (BAI). Compare the adjudications of the Press Ombudsman and Press Council upholding a complaint by Tony Gregory TD that a reporter for the Evening Herald confronting his brother at his home was an invasion of privacy justified neither by the complainant’s public position as a Dáil deputy, nor by the significance of the information being sought about his ongoing battle with cancer. (Ironically, the Herald now thinks that TV3 treated Brian and his family badly).

However, my point – indeed my worry – in my previous post, is not what he himself would do but what others might do ‘on his behalf’, and seek to resurrect the moribund (but flawed) Privacy Bill, 2006?

When he was Minister for Justice in January 2008 (amplifying something he had said two months earlier), Brian did not rule out introducing such a Bill, but instead gave the media 2 years to prove that it was not necessary. Last April, his successor as Minister for Justice, Dermot Ahern (rather controversially) said that he plans to revive the dormant Privacy Bill, citing a worrying trend in media intrusion to get a good story. We’re nearly at the end of Brian’s two year grace period, and TV3’s actions are being seen as another example of just such intrusive gutter journalism. As a consequence, I think it very likely that those who want privacy legislation are even now lining up to use it as an excuse to drum up support for it. It would be a great pity if the politicians were to legislate in haste, leaving the rest of us to repent at leisure. Let us first see if the BAI can resolve the issue; only then, with cooler heads, should we proceed to consider whether further legislative intervention is required. If that comes to pass, then TV3’s short-sighted decision to broadcast may have gained them some short-term beneift but in the long-run we will all be short-changed.