Category: Broadcasting Authority of Ireland

The BAI is conducting a review of its strategic objectives (including media pluralism and diversity)

BAI Strategy Statement CoverHot on the heels of the announcement of a review of the Defamation Act 2009 (also here) by the Department of Justice comes news of a consultation by the Broadcasting Authority of Ireland on its Strategy Statement for 2017–2019 (download pdf).

Sections 66(2)(i) and 137(2)(i) of the Broadcasting Act, 2009 (also here) require the BAI to have regard to “the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue amount of the communications media” in a specified area.

Against this background, and in the context of the recent debate about the constitutional issues facing the regulation of media ownership in Ireland, (especially where such regulation is directed to the promotion of pluralism and diversity), the BAI’s proposed Mission Statement provides that it is the aim of the BAI [emphasis added] –

I To regulate, foster and support broadcasting in the public interest;
II To promote a plurality of voices, viewpoints, outlets and sources in Irish media;
III To foster diverse and culturally relevant quality content for Irish audiences.

Moreover, one of the five proposed strategic themes is the promotion of diversity and plurality, with the following strategic objectives:

1 [To] Facilitate a mix of voices, opinions and sources of news and current affairs in audio-visual media which enhances democratic debate and active citizenship in Ireland.
2 [To] Increase the production and availability of culturally relevant audiovisual content for Irish audiences.
3 [To] Foster a media landscape that is representative of, and accessible to, the diversity of Irish society.

Reporting on the launch of the consultation, Laura Slattery in the Irish Times writes (with added links):

BAI chief executive Michael O’Keeffe said the authority also planned to re-examine the media ownership and control policy [pdf] in place since 2012. … The broadcasting regulator could yet become involved in the proposed Independent News & Media takeover of Celtic Media Group’s newspapers – if it is nominated to consider the plurality implications of the acquisition by Minister for Communications Denis Naughten, despite the fact that the deal involves two print groups.

A survey of industry participants [which will be available here in due course] indicated the BAI “is not particularly visible in leading the debate on plurality”, said Karen Hall, account director at research firm Ipsos MRBI.

Given that the recent Report on the Concentration of Media Ownership in Ireland (download pdfs here, here and here; blogged here) calls on the Irish government to tackle Denis O’Brien’s media control, it is interesting to note the BAI’s 2012 position on this issue in the context of their Ownership and Control Policy:

Mr. O’Brien’s company Communicorp controls, and/or has substantial interests in, six independent radio services in Ireland … Mr. O’Brien’s interests in Independent News and Media (“IN&M”) are [also] relevant to the Authority …

At its meeting on 23rd July 2012 the Authority determined that Mr. O’Brien does not control IN&M. Rather he has a substantial interest in the Company, as that term is defined in the Policy. In this regard, the Authority was not obliged to review Mr. O’Brien’s interests in the context of an undue amount of communications media.

Of course, this is only one question amongst many important issues in the consultation. Responses are requested by 12 noon on Thursday, 1st December 2016, by by email or by post to Draft Strategy, Broadcasting Authority of Ireland, 2–5 Warrington Place, Dublin 2.

Political broadcasting

BAI logoThe Broadcasting Authority of Ireland (BAI) is the body responsible for the regulation of broadcasting in Ireland, and two of its recent decisions raise the same question of whether a power provided to it by the Broadcasting Act, 2009 (also here) is consistent with the right to freedom of expression protected by the Irish Constitution and the European Convention on Human Rights.

The first relates to the moratorium on coverage of the referendum on the Treaty on Stability, Co-operation and Governance in the Economic and Monetary Union which came into effect from 2pm on Wednesday 30 May, the day before the referendum vote, and lasted until 10pm on Thursday 31 May, when polling stations closed. Pursuant to section 42(2) of the 2009 Act (also here), the BAI prepared a Code of Referenda and Election Coverage, on foot of which Irish broadcasters were unable to carry any content that related directly to referendum issues, including material pertaining to the merits or otherwise of the referendum and the related constitutional amendment proposed.

Turn off the Red Light logo, via their websiteThe second relates to the decision by the BAI that a radio advertisement against prostitution and sex trafficking by the Turn Off The Red Light campaign was “directed towards a political end” contrary to section 41(3) of the 2009 Act (also here). Turn Off The Red Light is a campaign to end prostitution and sex trafficking in Ireland. It is being run by an alliance of civil society organisations, including Barnardos, Dublin Rape Crisis Centre (DRRC), Focus Ireland, the Immigrant Council of Ireland, and Ruhama. Radio advertisements highlighting human rights abuses and sexual exploitation of women and children in Ireland are an important part of the campaign. However, to the extent that these advertisements called for an end to these abuses, the BAI held that they were political in nature, and could not be re-broadcast. As a consequence, the Turn Off The Red Light radio advertisement was re-edited to take account of the BAI’s decision.

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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…)

Gallimaufry

GallimaufryDr 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. (more…)

Last pieces of broadcasting jigsaw put into place

House of the Oireachtas image, via their siteFollowing 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!

The Regulation and Perception of Political Advertising

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 (here), 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.

Political advertising in the morning

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 (here) 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.