The 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.
The 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.
Both the BHA campaign and the Core Issues campaign were controversial, and cleared by the Advertising Standards Authorityupdate: notwithstanding earlier reports, it seems that the ASA did not adjudicate on the Core Issues campaign. But the opposition to the latter has been much greater, resulting in the Mayor’s decision to ban the adverts. I am very confused about this, as I can see no material difference between the three campaigns. All three are insulting or offensive to significant groups of the population, and all three should be assessed on the same standard. They should all be published, or all banned. For my own part, I think that the above slogan is horribly offensive, but I don’t think that offense is a sufficient standard to ban it or any of the other adverts. But if it is, it should be applied consistently. I forsee a judicial review of the mayor’s decision, either on the ground that it is unreasonable to act inconsistently, or that it was a disproportionate infringement on Core Issues’ free speech rights.
… There is no universally accepted definition of “hate speech” and state authorities always tread a fine line when censoring speech which, while offensive or distasteful does not obviously rise to the level of hate speech. … Typically what exactly amounts to “hatred” and what type of speech is likely to incite, promote or justify it will be fact-specific. The context of the speech, as well as the target audience will be important but not determinative. The European Court of Human Rights has dealt with the issue of hate speech on a number of occasions but only in February 2012 did it finally consider the question of sexual orientation hate speech. In Vejdeland and Others v Sweden [case no. 1813/07], the Court unanimously held that the applicants’ conviction for the dissemination of approximately 100 homophobic leaflets to students in a secondary school was not a violation of their article 10 rights. …
At its lowest, the Core Values advert does not sit comfortably with the ideals of tolerance and acceptance upon which modern society should be based. …. So was the Mayor justified in banning the advert? I am not convinced that he was. Although offensive and ill-informed, the European Court itself recognised in Vejdeland that this would not generally be enough to justify restricting freedom of expression. I would argue that there is a need to look behind the words to the intention: are they intended to degrade, discriminate, insult or incite hatred on the grounds of sexual orientation? Or are they merely a viewpoint which, however ignorant and distasteful, has a right to be expressed? …
Update 2 (24 April 2012): In Ireland, section 41(3) of the Broadcasting Act, 2009 (also here) provides
A broadcaster shall not broadcast an advertisement which is directed towards a political end …
In the UK, various provisions of the Communications Act, 2003 have a similar effect. I have discussed the compatibility of these provisions with Article 10 of the European Convention on Human Rights in several posts on this blog. In R (on the application of London Christian Radio) v Radio Advertising Clearance Centre EWHC 1043 (Admin) (20 April 2012), Silber J upheld the refusal of the respondent to permit the broadcast by the applicant of an advertisement concerning marginalisation of Christians in the workplace. The respondent considered that the advert was political and therefore prohibited by section 321 of the Communications Act, 2003; and Silber J held that the restriction was compatible with Article 10(2) of the European Convention. On the UK Human Rights blog Rosalind English has put the Core Values controversy into that context:
… The purpose of the ban on political advertising was to protect the public from the potential mischief of partial political advertising, and the views of the advertiser, as to whether an advertisement was political, were irrelevant. … Silber J considered the case of R (Animal Defenders International) v Secretary of State for Culture, Media and Sport  AC 1312,  UKHL 15 (12 March 2008) and concluded that even though that case is awaiting a ruling from the Grand Chamber in Strasbourg [on appeal from here, blogged here], he was bound by the House of Lords’ ruling that the prohibitions on political advertising contained in sections 319 and 321 of the 2003 Act were justified as being necessary in a democratic society and therefore compatible with Article 10. …
It is serendipitous and somehow telling that this ruling was handed down within weeks of Transport for London scrapping a series of advertisements promoted by a Christian organisation implying that therapy could change sexual orientation. … it serves to show that much of the deliberation about whether an advertisement goes beyond the prohibited borders of “political” promotion is confounded by the very mischief the legislation seeks to avoid: the content of the message itself.
… Most utterances work to advance some interests as defined by some agenda, at least in the very broad sense contained in … [section 321(2)(b) of the Communications Act, 2003]. Therefore all kinds of utterances should, strictly speaking, fall foul of its prohibition. The act of choosing which ones do and which ones don’t is concealed in this case, as it is in all the others, behind a smokescreen of higher arguments about democracy and public rights. … In consequence, this debate forces the question whether there is, in truth, any form of issue-driven speech that is not political, if “political” is so broadly defined as to cover anything has consequences. …
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. (more…)
It is a bad advert for Irish politics that RTÉ (Ireland’s national public broadcaster) has had to decline to broadcast a radio advertisement for the short film Defend The Pension from the Older & Bolder campaign (above, via Vimeo; see also here, via YouTube). Older & Bolder is an alliance of non-governmental organisations that champions the rights of all older people, and seeks to combat ageism. Defend The Pension is directed by award-winning director Ken Wardrop, who directed the wonderful His & Hers; and it shows a number of old age pensioners standing in the pouring rain explaining why the State pension is important to them and should not be cut.
A broadcaster shall not broadcast an advertisement which is directed towards a political end …
According to today’s Irish Times, Peter Feeney, Head of Broadcast Compliance at RTÉ, said that this section forbids all broadcasters from carrying advertisements towards political ends, and that RTÉ has no discretion in this matter. He also said that RTÉ’s copy clearance committee decided the advertisement breached the Act because it directed listeners to a video and website that sought to influence the Government in the formation of December’s budget.
Defend The Pension is powerful, poignant, and arresting; it is exactly the kind of thing that section 41(3) is designed to prevent; and, as Peter Feeney says, RTÉ has no choice in this. The predecessor of this section withstood constitutional challenge in Colgan v IRTC  2 IR 490,  1 ILRM 22,  IEHC 117 (20 July 1998), though whether it would survive a challenge in the European Court of Human Rights (ECHR) is questionable. More than that, however, this episode demonstrates just what a tawdry provision the political advertising ban actually is. It is what one would expect from a political establishment scared of criticism. It is not appropriate to a mature democracy. And it is shameful that a radio advertisement for Defend The Pension cannot be broadcast.
A broadcaster shall not broadcast an advertisement which is directed towards a political end or which has any relation to an industrial dispute.
Earlier this week, at the annual conference of the Independent Broadcasters of Ireland, the Chairman of the IBI and CEO of Today FM, Willie O’Reilly called for the repeal of this provision, saying that it was open to challenge in the European Courts. According to the IBI press release:
The ban on paid political advertising applies not just to political parties and election candidates but also to organizations, such as trade unions, promoting issues which are considered to be of a political nature.
There is arguably a strong legal case at European level against Ireland’s current ban in the context of freedom of expression as laid down in the European Convention of Human Rights. The current law is outmoded and inappropriate and it is questionable as to whether it is robust enough to withstand a legal challenge in the European Court.
The simple fact is that the internet has made the ban irrelevant. The Obama campaign was won online and all the party’s in the British election are committed to campaigning intensively online. It is ludicrous that a political party can advertise on a radio station’s website but cannot advertise on the radio itself. Moreover, we are seeing political parties in Ireland use the internet and sites such as you tube to upload professional video content that is to all intents and purposes political advertising. The arbitrary exclusion of some electronic media including radio, but not others, from paid political campaigning is nonsense and it is time for our laws to be brought up to date. …
I do not understand, and I do not accept, that it is fair, or reasonable, or right that either audiences or broadcasters should be excluded from paid political broadcasts. What is acceptable in newspapers, and what is available online, should be allowed to air on radio and on television in a free and functioning media. If the government refuses to look at this issue seriously we may be left with no option but to take a challenge to the courts ourselves.
At the end of last year, 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 wrote a fascinating report on Political Advertising: The regulatory Position and the Public View (here) for the Broadcasting Authority of Ireland (BAI) which I discussed here, here and here. According to the IBI press release, Rafter told the conference that the time had come to look again at the laws governing political broadcasting:
It is timely to examine whether political advertising should be allowed on television and radio, especially with the rise of these type of adverts on the web and also doubts about the legality of the current outright ban in Ireland.
I have long argued that this ban is questionable in the light of the decisions of the European Court of Human Rights. The point is most strongly emphasised by the decision of the Grand Chamber in Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2)32772/02,  ECHR 1025 (30 June 2009). In the first part of the case, (VgT (No 1)24699/94, (2002) 34 EHRR 159,  ECHR 412 (28 June 2001)) the Court had found that the prohibition of a political advertisement violated Article 10 of the Convention. Switzerland ultimately failed to remedy the situation, in particular because the Federal Court subsequently dismissed VgT‘s application to reopen the proceedings, so the matter returned to the Court. A Chamber (32772/02, 4 October 2007) held that this amounted to a further infringement of Article 10, and the case was referred to the Grand Chamber. In turn, the Grand Chamber (32772/02,  ECHR 1025 (30 June 2009)) held that the continuing failure to respect the earlier decision constituted a fresh violation of the Convention’s freedom of expression guarantee:
 The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or, as in this case, on debate of questions of public interest. … This applies all the more in the instant case, having regard to the Court’s judgment of 28 June 2001 [in VgT (No 1)]. Moreover, the television commercial concerned battery pig-farming. Accordingly, as it related to consumer health and to animal and environmental protection, it was undeniably in the public interest.
 The Court further notes that the television commercial was never broadcast, even after the Court’s judgment had found that the refusal to broadcast it infringed freedom of expression. However, prior restraints on publication entail such dangers that they call for the most careful scrutiny …
 Furthermore, the Court has already found, in its judgment of 28 June 2001 [in VgT (No 1)], that the interference in issue was not necessary in a democratic society, among other reasons because the authorities had not demonstrated in a relevant and sufficient manner why the grounds generally advanced in support of the prohibition of “political” advertising could serve to justify the interference in the particular circumstances of the case (see VgT (No 1) ). …
 … the public interest in dissemination of a publication does not necessarily decrease with the passing of time … Moreover, the Federal Court did not offer its own explanation of how the public debate on battery farming had changed or become less topical since 1994, when the commercial was initially meant to have been broadcast. Nor did it show that after the Court’s judgment of 28 June 2001 [in VgT (No 1)] the circumstances had changed to such an extent as to cast doubt on the validity of the grounds on which the Court had found a violation of Article 10. Lastly, the Court must also reject the argument that the applicant association had alternative options for broadcasting the commercial in issue, for example via private and regional channels, since that would require third parties, or the association itself, to assume a responsibility that falls to the national authorities alone: that of taking appropriate action on a judgment of the Court.
 Furthermore, the argument that the broadcasting of the commercial might be seen as unpleasant, in particular by consumers or meat traders and producers, cannot justify its continued prohibition. The Court reiterates in this connection that freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”.
 The Court notes, lastly, that the Contracting States are under a duty to organise their judicial systems in such a way that their courts can meet the requirements of the Convention … This principle also applies to the execution of the Court’s judgments. Accordingly, it is equally immaterial in this context to argue, as the Government did, that the Federal Court could not in any event have ordered that the commercial be broadcast following the Court’s judgment. The same is true of the argument that the applicant association should have instituted civil proceedings.
 Having regard to the foregoing, the Court considers that the Swiss authorities failed to comply with their positive obligation under Article 10 of the Convention in the instant case. There has therefore been a violation of that Article.
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  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 (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,
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.