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.

Of course, the BAI is absolutely correct that this is a political issue. For example, the EU Commission has adopted a new EU Strategy towards the eradication of trafficking in human beings, and the Department of Justice has published a discussion document as part of a public consultation process on the future direction of legislation on prostitution. These developments were warmly welcomed at the recent Akidwa conference Migrant women need options, not exploitation. However, this all makes it more important, not less, that the Turn Off The Red Light ought to be able to participate fully in the development of policy at an EU and national level, and it is unfortunate – to say the least – that the 2009 Act requires the BAI to ensure that advertisements about such political issues are not broadcast.

I have raised doubts in the past about the compatibility of the moratorium (e.g. here and here) and of the political advertising ban (e.g. here, here, here, here, here, here, here, here, here, here and here) with the free speech guarantees in the Constitution (here and here) and the ECHR. There is plainly a restriction upon political speech in both cases, so the question to be addressed is whether that restriction is proportionate to a sufficiently strong justification.

A predecessor to section 41(3) was upheld by the High Court on the grounds that the Oireachtas was entitled to conclude that significant resources would unfairly distort the political marketplace in favour of larger parties, well-established interest groups and major candidates with deep pockets, and against the interests of smaller parties or interest groups and minor candidates lacking in similar resources (Colgan v IRTC [2000] 2 IR 490, [1999] 1 ILRM 22, [1998] IEHC 117 (20 July 1998)), and the House of Lords upheld a similar restriction on similar grounds (Animal Defenders International v Secretary of State For Culture, Media and Sport [2008] 1 AC 1312, [2008] UKHL 15 (12 March 2008)). On the other hand, both the High Court of Australia (Australian Capital Television v Commonwealth (1992) 177 CLR 106, [1992] HCA 45 (30 September 1992)) and the European Court of Human Rights (Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 1) 24699/94, (2002) 34 EHRR 159, [2001] ECHR 412 (28 June 2001); TV Vest As & Rogaland Pensjonistparti v Norway 21132/05, (2009) 48 EHRR 51, [2008] ECHR 1687 (11 December 2008); Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) 32772/02, [2009] ECHR 1025 (30 June 2009)) have held that this is not a terribly convincing justification and that, to the extent that it is a legitimate state interest, blanket advertising bans are a disproportionate means of achieving it.

Given this strong line of ECHR authority, it is unsurprising that Animal Defenders International have challenged the UK ban before the European Court of Human Rights. Their application was lodged with the Court on 11 September 2008. On 29 November 2011, the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber. The case was argued on 7 March 2012, and judgment is awaited. I expect the ECHR to hold that the UK’s blanket ban is incompatible with Article 10 of the European Convention on Human Rights. The deep pockets rationale is particularly weak: all of the challenges to political advertising bans have come from smaller parties or interest groups and minor candidates who wish to advertise their views. These are the views that blanket bans are meant to protect, and, in an Orwellian inversion, the bans protect these views by banning them! On the other hand, the views of the larger parties, well-established interest groups and major candidates with deep pockets are anyhow well known, and the ban does nothing to redress this imbalance. Quite the contrary: in a Kafkaesque twist, the bans promote the views of smaller parties or interest groups and minor candidates by banning them! The deep pockets rationale may very well justify some regulation of political advertising, but it certainly does not support a blanket ban. Other rationales are hardly better: there are no credible public order concerns here; and although minority views are not often favourably received by the majority, the democratic demands of pluralism, tolerance and broadmindedness require that minority views that offend, shock or disturb should not be banned simply for that reason.

Moreover, the Irish restrictions in 41(3) of the Broadcasting Act, 2009 are equally susceptible to a similar challenge, either in the ECHR, or before that, in the Irish Courts. After all, if the Irish Constitution places a premium on honest and fearless debate and trusts in the power of argument and debate and reasoned discussion (as Hogan J recently held in Doherty v The Referendum Commission [2012] IEHC 211 (06 June 2012)), and if the media’s right to communicate information without let or restraint is intrinsic to a free and democratic society (as Fennelly J put it in Mahon v Post Publications [2007] 3 IR 338, [2007] 2 ILRM 1, [2007] IESC 15 (29 March 2007)) it is impossible to see how either a wholesale moratorium on any such debate or discussion in the broadcast media before an election or referendum, or a blanket ban on an increasingly important means of participation in this debate and discussion, can be constitutional.

However, the inevitable demise of section 41(3) will come too late for the Turn off the Red Light campaign, which needs to be able to participate fully in the current Irish and EU debates concerning the law relating to trafficking and prostitution. Their re-edited radio advertisement is not a bad means of doing so. From their perspective, their earlier advertisement would have been better.