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. For example, the draft section 42 Broadcasting Code On Coverage of Elections published by the BAI specifically provided for it (pdf):

Radio and television broadcasters shall observe a moratorium on coverage of an election. The moratorium will operate for the entire day before the poll takes place and throughout the day of the poll itself until polling stations close.

Electioneering and/or references to election issues and/or references by any on-air personnel, (including guests) to the merits or otherwise of the election candidate(s) and their policies shall not be broadcast while the moratorium is in operation.

Indeed, the BAI has enforced the moratorium with greater zeal than the Broadcasting Commission of Ireland (BCI) used to do; the BAI insisted upon one n advance of the bye-election in Donegal South-West (pdf) on 25 November 2010, whereas the BCI took the view that the moratorium should not apply to bye-elections (see their decision in respect of the bye-elections in Meath and Kildare North on 11 March 2005).

TV3 objected to the moratorium in the consultation process on the draft Broadcasting Code, and in the Broadcasting Code on Election Coverage (pdf) published yesterday, the BAI amended the duration of the moratorium:

Radio and television broadcasters shall observe a moratorium on coverage of an election. The moratorium will operate from 2pm on the day before the poll takes place and throughout the day of the poll itself until polling stations close. [emphasis in original]

In a statement yesterday evening, TV3 said it welcomed the move, though it felt that the BAI “could have gone further” in allowing broadcasters to offer election coverage in the final hours of the campaign. The new rules, it said, “represents a move towards fairer election coverage across all media”. But a move is all that it is, and a small one at that. Moreover, it does not in fact meet the substantive objections raised last month by TV3. They argued that it is arbitrary and unreasonable, in that it only applies to Irish broadcast media, and not to print media, online media or foreign media available in Ireland, and that there is no direct basis for it in the 2009 Act. These considerations go to the power of the BAI to promulgate any moratorium at all, whether for the traditional full 48 hour period, or for the shorter period announced yesterday.

However, TV3’s objections go further: much more fundamentally, they argued that even if the BAI has the statutory power to introduce the moratorium, it was contrary to right to freedom of expression protected by the Irish Constitution and the European Convention on Human Rights. In my view, this last argument is a very strong one. However, it could be stymied by the decision of the Supreme Court in Murphy v Independent Radio and Television Commission [1999] 1 IR 12, [1998] 2 ILRM 360 (28 May 1998) (doc | pdf). Here, the Court upheld as constitutional the ban on religious advertising now to be found in section 41(4) of the 2009 Act (also here). Applying that decision, the High Court in Colgan v IRTC [2000] 2 IR 490, [1999] 1 ILRM 22, [1998] IEHC 117 (20 July 1998) upheld the homologous ban on political advertising now to be found in section 41(3) (and the House of Lords has also upheld a similar political advertising ban). The main justification for these advertising bans lies in the fear that significant 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, 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”. This reasoning was approved by the European Court of Human Rights in Murphy v Ireland 44179/98 (2003) 38 EHRR 212, [2003] ECHR 352 (10 July 2003) when it held that the Irish religious advertising ban was compatible with Article 10 of the European Convention on Human Rights. The BAI’s concern to ensure that there be a period for reflection in the final stages of an election campaign is similar to the concern in Murphy that competing views are not drowned out: they are both directed to ensuring as balanced an election and as considered a vote as practicable. If the BAI’s reflection rationale is accorded the same deference as the deep pockets rationale was afforded in Murphy, then TV3’s objection to the moratorium may very well get nowhere.

On the other hand, the deep pockets rationale in Murphy is too easy to overstate, it has not been approved by the ECHR in the context of political advertising (as opposed to religious advertising), and the analogy between it and the BAI’s reflection rationale is only superficially attractive. First, in its own terms, the deep pockets rationale is easy to overstate: as a reason for a restriction upon speech, it may justify regulations – even strict regulations – controlling advertising, but it hardly supports an outright ban, especially in the political arena. Second, the ECHR has never upheld a political advertising ban. Although it has upheld the Irish religious advertising ban, it has not been asked to consider the Irish political advertising ban; and, in every case in which it has been asked to consider such a ban, it has struck it down as incompatible with Article 10 (see VgT (No 1), TV Vest, VgT (No 2)). It takes very strong arguments to justify restrictions upon political speech, and the deep pockets rationale is insufficiently strong to justify restrictions upon political advertising. Third, whilst there is an analogy between the BAI’s reflection rationale and Murphy‘s deep pockets rationale, there is certainly not an identity between these rationales – indeed, it seems to me that the BAI’s reflection rationale is considerable weaker than Murphy‘s deep pockets rationale.

The BAI’s move seems to have diminished the chances of a legal challenge to the moratorium. However, we still do not know whether there will be televised leaders’ debates, and, if so, who will take part. If a party leader such as Enda Kenny declines to take part, expect to hear arguments similar to Shatter’s that to go ahead with an empty chair to symbolise the absent leader amounts to a breach of the relevant broadcaster’s obligations under s39. This too is a very interesting question, and I will return to it in a future post.