Trócaire is the official overseas development agency of the Catholic Church in Ireland. It runs several campaigns challenging the root causes of poverty and injustice. And every year during Lent (BBC | wikipedia), to raise both much need funds and public consciousness about its work, it runs a Lenten campaign, distributing collection boxes through churches and so on to schools and homes in the hope that the boxes will be filled during Lent and their contents donated to Trócaire after Easter. The image on this year’s box is discussed here by Brian Greene); and the advertising campaign that goes with it focuses on gender inequality to promote equal rights for women and men around the world. You can view the television advertisment here. However, that advertising campaign is now getting Trócaire into hot water. Various newspapers report this morning (Irish Examiner | Irish Independent | Irish Times) that the Broadcasting Commission of Ireland (BCI) has banned these advertisments. The Trócraire website explains what has happened:

Independent radio station Today FM contacted the BCI (Broadcast Commission of Ireland which regulates advertising) about the radio ad on February 23 without alerting us.

The BCI ruled on March 5 that the ad contravenes section 10(3) of the Radio Television Act 1988 which states “No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.”

The core issue appears to be around an online petition that Trócaire is running as part of its Lenten campaign, asking people to sign a petition urging the Irish government to implement UN resolution 1325 [pdf] that relates to gender inequality and specifically the protection of women in times of conflict.

The BCI appears to believe that because our website address is in the ad we are directing people to take a political action. However, our website address is in the ad so that people can donate online or order a Trócaire box and this is specified in the wording.

Trócaire will be asking the BCI to reconsider its request that Today FM cease to broadcast the ad. We believe our advertising clearly expresses the case that we are merely asking the Irish public to donate to our most important fundraising campaign of the year.

As a consequence, the Irish Times reports that the “BCI yesterday instructed all commercial broadcasters, including Today FM and TV3, to cease broadcasting the Trócaire advert which is being run as part of its Lenten campaign. However, RTÉ has no plans to ‘pull’ the campaign”.

Section 10(3) of the Radio and Television Act, 1988, on which the BCI has relied here, provides that “No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute”. This applies to the independent sector (of which TV3 and Today fm are a part). According to the Irish Examiner, “last November, charity Barnardos also had one of its commercials lobbying for constitutional protection for children, pulled for the same reason”. A similar ban applies to RTÉ (s20(4) of the Broadcasting (Authority) Act, 1960), though it is policed by the RTÉ Authority rather than the BCI; and, according to the Irish Times

RTÉ’s view is that we define political ends quite tightly….We would feel this Trócaire advertisement is much more general in nature,” the spokesman said. “We also try to draw a distinction between national campaigns and international campaigns.

The ban on religious advertising (as slightly amended in 2001) has been controversial in the past, but it survived challenges in the Supreme Court (Murphy v Independent Radio and Television Commission [1999] 1 IR 12, [1998] 2 ILRM 360 (28 May 1998) (doc | pdf) (which also related to a Lenten campaign)) and the European Court of Human Rights (Murphy v Ireland 44179/98 [2003] ECHR 352 (10 July 2003)), and a government review decided not to amend it. The ban on political advertisingin this section has also survived challenge in the High Court (in Colgan v IRTC [1998] IEHC 117; [2000] 2 IR 490; [1999] 1 ILRM 22 (20 July 1998)), but a similar ban was subsequently successfully challenged in the European Court of Human Rights on foot of Article 10 of the European Convention of Human Rights (Vgt Verein Gegen Tierfabriken v Switzerland 24699/94 [2001] ECHR 412 (28 June 2001).

In both Murphy and Tierfabriken, the ECHR held that the advertising bans did infringe Article 10(1). However, infringements of Art 10(1) can be justified on the basis of Article 10(2), provided that the state has a sufficiently good reason for the ban (it must meet a ‘pressing social need’ as set out in Art 10(2)) and that the ban is ‘necessary’ to meet that reason (‘proporationate’ to that pressing social need).

In Tierfabriken, the Court held that because the advertising ban related to political speech, it would be difficult in principle for a State to justify the restriction on the basis of Article 10(2) (a State in such circumstances had a smaller ‘margin of appreciation’ in determining whether the ban was proportionate to the pressing social need) and, on the facts, Switzerland had failed to demonstrate that the political advertising ban was justifiable. On the other hand, in the subsequent decision in Murphy, the Court held that because the advertising ban related to religious and not political speech, a State in such circumstances has a much wider ‘margin of appreciation’ than in the case of political speech in determining whether the ban was proportionate, and, on the facts, Ireland succeeded in demonstrating that the religious advertising ban was justifiable. The reasoning in both cases, and in particular in Tierfabriken, was weak and opaque; but the outcome was reasonably clear: it is much harder to justify a political advertising ban than a religious advertising ban. It probably therefore called the correctness of Colgan into question.

However, a Divisional High Court in England has recently sustained the validity of the very similar political advertising ban in sections 319(2)(g) and 321(2) and (3) of the Communications Act 2003 (also here) (see R (on the application of Animal Defenders International) v Secretary of State for Culture Media & Sport [2006] EWHC 3069 (Admin) (04 December 2006; noted Basal Questions). The Court was (rightly) unimpressed by the thinness of the reasoning in Tierfabriken, but, in my view, overstated the margin of appreciation open to the State in seeking to justify such a restriction on political speech. Nevertheless, (subject to any appeal) the Animal Defenders International case provides strong support for Colgan, and for sustaining the validity of s10(3) of the 1988 Act in Ireland.

What all this means, of course, is that if the BCI does not reconsider its position, there would be little chance of any appeal by Trócaire succeeding in having s10(3) declared unconstitutional, though there must surely be some hope in that a Court would hold that the advertisments were not “political” in the sense banned by the section, not least because of the view that RTÉ seems to be taking of ahat is required of it by s20(4) of the 1960 Act (which, it bears repeating, is in the same terms as s10(3) of the 1988 Act upon which the BCI is relying).

Update (28 March 2007): Via MediaPal@LSE, I learn that the Times, discussing Why political ads could yet make it on to our TVs, points to the possibilities of using online video-sharing sites to subvert the UK’s ban on party political and social cause advertising on the broadcast media. Indeed, MediaPal points out:

Interestingly, after ADI uploaded its campaign videos (1,2,3) to YouTube in February, it quickly moved into the top 16 Most Viewed Directors’ videos on the website.

Indeed, as my follow-up post details, the same thing happened with the Trócaire ad here.