Protecting the sheep from the wolves - The need for political impartiality in the broadcast media.

Protecting the sheep from the wolves: The need for political impartiality in the broadcast media.

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Introduction

The term broadcasting originally referred to the practise of dispersing seed far and

wide, rather than only in rows. It is an apt analogy in light of the enormous spread of

broadcasting as a commercial force throughout the globe in the 20th century. As

Lewis and Cumper note “Despite the growth of the internet in recent years, the most

powerful medium of modern mass communication would appear to remain that of

broadcasting. It can be used to communicate messages to millions of people in

persuasive, seductive and effective ways.”1However, the growth of commercial

broadcasting has been curtailed with ever increasing governmental regulation and

this regulation has prevented the seeds broadcast by the media from up-rooting the

status quo encountered by the more traditional media forms.

Broadcasting has been regulated since its inception. Even though the first

commercial broadcasts began in the United States in the early 1920s, the regulation

of telecommunications in the United States (the first in the world) dates from 1910,

when Congress passed a law that required all U.S. passenger ships to have a radio.

Formal regulation arrived two years later the federal legislature adopted the Radio

Act of 1912, which required all radio transmitters and operators obtain a license from

the federal government.2 However, as more and more people became capable of

receiving the messages transmitted by the broadcast media near the end of the

1920s a reluctant Congress was forced to act once again. In 1927, Congress

adopted the Radio Act, a comprehensive set of rules aimed at creating order from

the problem caused by too many people trying to broadcast radio signals at the

same time. But this legislation for the first time focused on the content of radio

programs as well. This had been a long time coming given the fact that

“Broadcasting is an activity of enormous political and social significance. For many

people it constitutes their principal source of information and entertainment.

Politicians believe that elections are won and lost on the nation’s television sets.”3

1 Tom Lewis and Peter Cumper, “Balancing Freedom of Political Expression Against Equality of Political Opportunity: the Courts and the UK’s Broadcasting Ban on Political Advertising” [2009] Public Law 89. 2 Don Pember and Clay Calvert, Mass Media Law 2009/2010 Edition (16th edn, McGraw-Hill Higher Education 2008), at 584. 3 Eric Barendt, Broadcasting Law: A Comparative Study (Oxford University Press, USA 1995), at 1.


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In contrast, the regulation of the broadcast media in Ireland was not as clairvoyant.

Broadcasting remained in government control until 1960 when the Broadcasting

Authority Act was enacted. The Act established the new television service and

removed broadcasting from the direct control of Government for the first time with

RTE (or Radio Eireann as it was then known) being established by Section 3(1) of

the Broadcasting Authority Act, 1960. Its principal function was to establish and

maintain a national television and sound broadcasting service. Section 18 of the

Broadcasting Authority Act, 1960 imposed on RTE a duty of impartiality but

expressly permitted it to transmit political party broadcasts. This was the first express

recognition of what would prove to be a timeless association between politics and

the broadcast media in Ireland.

That politics and the broadcast media are intertwined is no great surprise given the

marriage of politics and the media generally. This is a marriage perpetuated by vows

of free speech, freedom of expression and freedom of the press on the one part, and

promises of accountability, access, coverage and reach on the other. With both sides

sacrificing a lot and gaining a little from each other, there is a constant tug of war for

the hearts and minds of the general populace. But sometimes the media concedes

too much freedom in light of political pressure and safeguards we thought were in

place seem to be more fragile than we were led to believe. As Quinn so aptly puts it,

“our concern for measures that inhibit speech is not therefore confined to one of

sympathy or outrage on behalf of the aggrieved party. Our concern extends to the

potential damage done to the system of political accountability so necessary to make

liberal-democratic political systems function effectively.”4 These concerns arise out of

an awareness both of the trust we place on the broadcast media to inform us, the

general public, of what we need to know and of the ease with which that trust can be

abused for political gain.

In this essay I hope to examine the mechanisms for maintaining political impartiality

in the broadcast media in three jurisdictions. I will seek to understand the rationales

behind the rules by looking at the historical development of the principle of political

4 Gerard Quinn “The Systems Maintenance Function of Constitutional Rights and the Case of Government Speech”, (1989) 7 I.L.T. 8 at 10.


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impartiality in broadcasting generally. Following on from this, the laws and

conventions which maintain the balance in each country will be analysed in practise.

While the majority of my analysis will focus on the regulation of broadcasting in

Ireland as regards political content, specifically in the areas of election and

referendum coverage, party political broadcasts and political advertising.

For the purposes of this essay the broadcast media is defined as any media outlet

which transmits a programme, some information or content using the

electromagnetic spectrum (analog) or digitally (over the air) via the medium of radio

or television. Given that terrestrial television signals in these jurisdictions were only

recently switched from being broadcast via analog to transmission digitally over the

air5 and in the interests of clarity overall, no differentiation between the two will be

made in this regard. Furthermore, Cable and Satellite television broadcasts are

excluded from this definition, as is online broadcasting. The term ‘broadcaster’ is

understood in the context of the definition provided in the Broadcasting Act 2009

(“the 2009 Act”), which is as follows: “Broadcaster means a person who supplies a

compilation of programme material for the purpose of its being transmitted, relayed

or distributed as a broadcasting service (whether that person transmits, relays or

distributes that material as such a service or not.)”6

Broadcasting Regulation

“The contribution of the media to political discourse is indispensable. It is…one of the

primary rationales for the constitutional guarantee of media freedom of expression”.7

Yet broadcasting in Ireland has always been subject to regulation.8 In contrast to the

Press, it is subject to both structural and content regulation. The most recent

manifestation of this content regulation is the Broadcasting Act 2009 which

consolidates a plethora of legislation.9

5 Germany in 2008, USA (high powered stations) in 2009, France in 2011, Ireland and the UK in 2012. 6 Broadcasting Act 2009, Section 2 (hereinafter “2009 Act”). 7 Eoin Carolan and Ailbhe O’Neill, Media Law in Ireland (Bloomsbury Professional 2010), at 87. 8 Patrick Twomey, “Freedom of Expression - Talking About ‘the Troubles’”, in Murphy and Twomey (eds.), Ireland's Evolving Constitution, 1937-97: Collected Essays (Oxford: Hart Publishing, 1998) at p.206., Richard Pine, 2RN and the Origins of Irish Radio, (Dublin: Four Courts Press, 2002). 9 Rónán Ó’Fathaigh, “Broadcasting Regulation in Ireland: Regulation Built on a False Premise” (2011) Hibernian Law Journal, 1, 41-60, at 40.


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The 2009 Act created the Broadcasting Authority of Ireland (“BAI”),10 which replaced

the Broadcasting Complaints Commission and the Broadcasting Commission of

Ireland. The BAI is tasked by section 26 of the 2009 Act with preparing strategy

statements for the provision and regulation of broadcasting services, preparing an

allocation plan for the frequency range, drawing up broadcasting codes and rules;

and preparing a scheme for a right of reply. Bearing all of this in mind, it is clear that

the broadcast media in Ireland are subject to an arguably overbearing regulatory

burden as regards content. As Ó’Fathaigh notes in relation to the statutory

requirement in relation to the proposed programming of a broadcaster in determining

whether a contract is awarded is “The most striking additional burdens… These

terms are content rules in another form.”11

However, content regulation is only effective when enforced and in this regard two

committees are established as part of the BAI,12 the Contract Awards Committee to

award broadcasting contracts to independent and commercial broadcasters13 and

the Compliance Committee to monitor compliance by broadcasters (both public and

private) with their contract conditions, broadcasting codes and rules. The

Compliance Committee also investigates complaints made regarding breaches of

any codes or rules.14 While the decisions of the Compliance Committee do not

constitute enforceable precedent legally, “the vast majority of complaints are

processed by the Compliance Committee and its approach is significant in

practice.”15

What is being enforced is the most controversial form of content regulation in this

jurisdiction, section 39 of the 2009 Act, which requires broadcasters to observe a

principle of impartiality. I will analyse this requirement as it relates to coverage of

news and current affairs, referenda, elections, party political broadcasts and

10 As established on the 1st of October 2009 under the Broadcasting Authority of Ireland (Establishment Day) Order 2009 (S.I. No. 389/2009) pursuant to s.6 of the Broadcasting Act 2009 (Hereinafter “BAI”). 11 2009 Act, Section 66(2). 12Ibid. 13 2009 Act, Section 27. 14 Ibid, Section 28(1) and (2). 15 Carolan and O’Neill, note 7, at 89.


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ministerial announcements. I will then proceed to discuss the prohibition on the

broadcasting of political advertising. But first it is important to establish to what extent

freedom of expression is protected under Irish law.

Freedom of Expression in Ireland

Freedom of Expression is guaranteed by the Article 40.6.1° of the Irish Constitution,

which provides as follows:

“1° The State guarantees liberty for the exercise of the following rights,

subject to public order and morality:

i. The right of the citizens to express freely their convictions and opinions. The

education of public opinion being, however, a matter of such grave import to

the common good, the State shall endeavour to ensure that organs of public

opinion, such as radio, the press, the cinema, while preserving their rightful

liberty of expression, including criticism of Government policy, shall not be

used to undermine public order or morality or the authority of the State.16

But why should media speech be protected? As Doyle observes while “one can

rationalise freedom of expression in terms of personal dignity and autonomy. To

preclude an individual from speaking her mind offends her dignity and restricts her

autonomy. However, freedom of expression also plays a more instrumental role in

supporting a democratic culture.”17 This supporting role is expanded upon by Boyle,

who states that “it is the role [of freedom of expression] in linking citizen to

representatives and ensuring accountability of administration and government on an

on-going basis, which justifies its special character. In this connection media are a

partner in the democratic process.”18

In contrast, Delaney and Carolan state, “Media speech is sometimes protected as a

derivative principle of the more general entitlement to freedom of expression…

16 Bunreacht na hÉireann, Art 40.6.1° 17 Oran Doyle Constitutional Law: Text, Cases and Materials (Clarus Press Ltd 2008), at 194. 18 Kevin Boyle, “Freedom of Expression and Democracy” in Liz Heffernan, James Kingston and Vincent Berger eds., Human Rights: A European Perspective: V. 3: 1991-93 (Blackrock : Round Hall Press in association with Irish Centre for European Law, 1994), at 217.


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[However] it is unclear whether the media ought to be able to rely upon the

autonomy justification of freedom of expression.”19 Instead the freedom of the media

should be justified on other grounds, as O’Neill explains: “The guarantee of freedom

of expression can be seen as one which is concerned with the self-fulfilment of the

individual – an autonomy-based value – as well as the preservation of a free flow of

ideas – a utility-based value. The former value justifies the protection of the speaker

as well as the audience. Where the latter is emphasised, the emphasis is usually on

the interests of the audience and the contribution of the speech to society as a

whole.”20 It is submitted that this is the correct interpretation of the rationale behind

the protection of freedom of expression and as such it is clear that the grounds for

justifying the freedom of the media are consequentialist rather than deontological, it

is protected for what it does rather, than for what it is.

Our Constitutional guarantee is further reinforced by Article 10 of the European

Convention on Human Rights (the “Convention”), as implemented by the European

Convention on Human Rights Act 2003 and the 2009 Lisbon Treaty which states:

“Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include

freedom to hold opinions and to receive and impart information and ideas

without interference by public authority and regardless of frontiers. This Article

shall not prevent States from requiring the licensing of broadcasting, television

or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and

responsibilities, may be subject to such formalities, conditions, restrictions or

penalties as are prescribed by law and are necessary in a democratic society,

in the interests of national security, territorial integrity or public safety, for the

prevention of disorder or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for preventing the disclosure of

19 Hilary Delany, Eoin Carolan and Cliodhna Murphy, The Right to Privacy: A Doctrinal and Comparative Analysis (Thomson Round Hall 2008) at 30-31. 20 Ailbhe O’Neill, The Constitutional Rights of Companies (2007, Thomson Round Hall), at 200.


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information received in confidence, or for maintaining the authority and

impartiality of the judiciary.”21

The European Court of Human Rights (the “ECtHR”), has stated many times that

freedom of expression is one of the essential foundations of a democratic society,22

while freedom of political debate is considered to be at the “very core of the concept

of democratic society which prevails throughout the Convention.”23 While it is clear

the freedom of expression of the media is very much protected under Irish law, the

approach of Clarke J in the case of Cogley v RTÉ24 would suggest that this

protection may be confined to coverage of matters of public importance or interest.

Support for this proposition can be found in the decisions in Hunter v Duckworth,25

Leech v Independent Newspapers (Ireland) Ltd26and Mahon v Keena.”27 In all of

these decisions, the extent of the law’s protection of media freedom was determined

in part by reference to the nature and content of the publication in question.”28 In light

of this it is submitted that any broadcast relating to politics on the radio or television

is always a matter of public importance or interest, given the impact and influence

such a broadcast has.

Coverage of News and Current Affairs

The broadcast media is required to observe a principle of impartiality when covering

news and current affairs in accordance with section 39 of the 2009 Act. The central

point of this section is that broadcasters must ensure that “all news broadcast by the

broadcaster is reported and presented in an objective and impartial manner and

21 European Convention on Human Rights (hereinafter the “Convention”) Article 10. 22 Handyside v United Kingdom (1976) 1 E.H.R.R. 737 ECtHR at 49; Castells v Spain (1992) 14 E.H.R.R. 445 ECtHR at 42; Kuliś v Poland (App. No.15601/02), judgment of March 18, 2008 ECtHR at 36; Incal v Turkey (2000) 29 E.H.R.R. 449 ECtHR at 46. 23 Lingens v Austria (1986) 8 E.H.R.R. 407 ECtHR at 42; Moscow Branch of the Salvation Army v Russia (2006) 44 E.H.R.R. 46 ECtHR at 60; A. Mowbray, “The Role of the European Court of Human Rights in the Promotion of Democracy” [1999] P.L. 703. 24 Cogley v RTÉ [2005] 4 I.R. 79. 25 Hunter v Duckworth [2003] IEHC 81. 26 Leech v Independent Newspapers (Ireland) Ltd [2007] IEHC 223. 27Mahon v Keena [2007] IEHC 348. 28 Delany, Carolan and Murphy, note 19, at 75.


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without any expression of the broadcaster’s own views.”29 But the 2009 Act goes

further than this and imposes a requirement 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 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.”30

News and current affairs content on Irish broadcast media is not only required to

comply with the 2009 Act but also with the BAl’s Code of Fairness, Objectivity and

Impartiality in News and Current Affairs, which was created pursuant to section 42 of

the 2009 Act. The Code has been in effect since the 1st July 2013 and has clarified

the requirements of political impartiality greatly. In setting out its guidance on the

principle of fairness, the BAI has indicated to broadcasters that it will be necessary

for them to consider the range of ways in which fairness is achieved, including

through the selection of contributors, the time allocated to a news and current affairs

issue, the scope of the debate, the structure of the programme or the role of the

presenter.31

Furthermore, the approach to covering issues, including those of public controversy

or current public debate, should be guided by ensuring equitable, proportionate

coverage. While there may be some instances where balance may be required, an

automatic requirement for balance is considered unnecessary and inappropriate by

the BAI. Indeed the BAI has consistently expressed the view that the application of

such an artificial balance can, in and of itself, amount to a lack of fairness in certain

circumstances and as such there is no requirement on broadcasters to allocate

29 2009 Act, Section 39 (1). 30 Ibid, Section 39 (2). 31 BAI Code of Fairness, Objectivity & Impartiality In News and Current Affairs (April 2013) at provision 2.


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airtime in such a context on any strictly mathematically proportional basis.32 Rather,

the requirement of political impartiality as specified by the 2009 Act and the BAI’s

regulations is for fairness in the treatment of a topic and this can be achieved by the

presenter or by contributions from other guests who may not have a stated position

in favour or against an issue being discussed but who, give voice to the views of

those who may oppose, or have difficulty with the issue in question.33

As there is no provision in the 2009 Act for appealing from decisions of the

Broadcasting Authority Compliance Committee,34 there is a real lack of case law in

the area. Judicial review remains an option for challenging the decisions of the

Compliance Committee but there are with no reported decisions regarding section 39

of the 2009 Act as it relates to coverage of news and current affairs. The opposite is

true for challenges in the Irish courts regarding the coverage of referenda, elections,

party political broadcasts and ministerial announcements through the medium of the

broadcast media.

Referendum Coverage

“The people interact with the organs of government in two ways. Through

referendums the people can amend the Constitution…However, the people more

regularly have their say indirectly, through their elected representatives.”35 When

people interact with the political process, then the broadcast media has a lot of

influence on this interaction. With regard to referenda, broadcasters, “have an

important role to play in educating and informing the public both of the content of

referenda proposals and of the merits and consequences of a ‘Yes’ or ‘No’ vote.”36

Television has a particularly important role, as is evident from the report by Murray

Consultants for the Referendum Commission after the recent Seanad and Court of

32 Reference 109/14–Martin v RTÉ Radio One (‘Lifeline’) Report of the Compliance Committee Meeting 17 December 2014, at 16. 33 Reference 107/14 –McIntyre v RTÉ Radio One (‘The Marian Finucane Show’) Report of the Compliance Committee Meeting 17 December 2014, at 7. 34 Carolan and O’Neill, note 7, at 90. 35 Doyle, note 17, at 405. 36 Carolan and O’Neill, note 7 at 91.


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Appeal referendum.37In this Behaviour and Attitudes survey, television was identified

as the most viewed source of information apart from the Referendum Commission

Guide, particularly the Referendum Commission television advertisement, which had

prompted recall of 82%. As Scott has noted, “in the survey carried out by the

European Commission after the second referendum on the Treaty of Lisbon38, it was

found that 65% of respondents mentioned television as the source of most of their

information about the referendum.”39

Broadcasters are also under an onerous obligation to provide airtime to the

Referendum Commission, as under the Referendum Act 1998 the Minister for

Communications, Energy and Natural Resources can direct the State’s broadcasters

to allocate broadcasting time to Referendum Commission broadcasts. Broadcasters

have been forced to give airtime to the Referendum Commission free of charge

since its establishment after the judgment of the Supreme Court in McKenna v an

Taoiseach (No 2).40 However, the significance of this case for the broadcast media

was that it gave support to the subsequent decision of Coughlan v Broadcasting

Complaints Commission.41

In Coughlan, the complainant had issue with the allocation of party political

broadcasts in the lead up to the 1995 divorce referendum. However, it is worth

noting that proceedings were brought two years after the divorce referendum was

held, with the High Court ruling delivered three years afterwards and the Supreme

Court ruling five years later The predecessor of section 39 of the 2009 Act, section

18 of the Broadcasting Act 1960 required RTÉ to present news and current affairs in

an impartial manner, but allowed for the broadcast of party political broadcasts,

which by their very nature, are anything but impartial.

37 Referendum Commission/Behaviours and Attitudes, Post Seanad & Court of Appeal Referendum Poll, http:// www.refcom.ie/en/past-referendums/abolition-of-seanad-%C3%A9ireann/report/post-seanad-and-court-of-appeal-research-report/post-seanad-and-court-of-appeal-research-report.pdf, accessed on 31 December, 2014. 38 European Commission, Lisbon Treaty Post Referendum Survey Ireland 2009 (October 2009), http://ec.europa.eu/public_opinion/flash/fl_284_en.pdf, accessed on 31 December, 2014. 39Maria Scott, “The House that the Supreme Court Built: The Rulings in Coughlan and McKenna, the Lisbon Treaty and the Constitutional Referendum in Ireland” (2010) Hibernian Law Journal, 1, 219-243, at 230. 40 McKenna v an Taoiseach (No 2) [1995] 2 IR 10. 41 Coughlan v Broadcasting Complaints Commission [2000] 3 IR 1.


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During the referendum campaign RTÉ allocated one party political broadcast each to

the parties seeking a “Yes” vote and also allowed a non-party group opposed to

divorce and one in favour of each to broadcast a programme in like form to a party

political broadcast. Dr Coughlan complained about the fact that 42.5 minutes of

broadcasting time was afforded to the “Yes” side and only 10 minutes to the “No”

side. After the Broadcasting Complaints Commission rejected Dr Coughlan’s initial

complaint, judicial review of the decision was sought on the basis of the decision in

McKenna (No.2).

The case arrived before the Supreme Court in the form of an appeal by the

Broadcasting Complaints Commission and RTÉ against the High Court decision of

Carney J to grant an order of certiorari quashing the decision to dismiss Dr

Coughlan’s complaints by the Commission. In addition the Broadcasting Complaints

Commission appealed against the Court’s declaration that the allocation of

uncontested broadcasting time to each side of the argument in the referendum had

been significantly unequal and thereby constitutionally unfair.

A majority of the Supreme Court concluded that RTÉ had acted unconstitutionally

and as Barrett notes, “The overall approach of Keane J [who delivered the judgment

of the Court] to equality between the two opposing sides in a referendum campaign

was clearly that it should be of a mathematical or '50-50' nature.”42 This was not a

satisfactory result and is one that does not maintain political impartiality in any shape

other than mathematically. The scales had not been weighted greatly to one side

and the allocations had been motivated by a desire by the State broadcaster to

recognise the role of political parties in the democratic process.

The decision has been met with fierce academic criticism and allegations that it has

in practice stopped politicians and political parties in a referendum campaign from

utilising the influence and access to the airwaves that they would normally enjoy as

elected officials. Proponents of this view argue that Coughlan has had the effect

42 Gavin Barrett, “Building a Swiss Chalet in an Irish Legal Landscape? Referendums on European Union Treaties in Ireland and the Impact of Supreme Court Jurisprudence” (2009) 5 European Constitutional Law Review 32, at 61.


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noted by Barrington J in his dissenting opinion: ““to play down, or neutralise, the role

of political leaders in favour of committed amateurs”.43 As Barrett notes, politicians

“find themselves given literally not one second more time on the airwaves than

unelected campaigners whose sole qualification before they are handed 50% of

airtime on both public and private broadcast media to put forward their views is that

they have uttered the word ‘no’. Put another way, influence formerly enjoyed by

elected politicians has been transferred directly to unelected pressure groups or

politicians with a tiny proportion of national electoral support.”44

After the Lisbon Treaty was rejected in the first referendum, the Broadcasting

Commission of Ireland issued updated guidelines in advance of the second

referendum45 The main principles of the 2009 Guidelines are that while there is an

obligation of fairness, objectivity and impartiality in the coverage of referenda, there

is no requirement on broadcasters to allocate airtime between groups who oppose

and support a referendum proposal on the basis of absolute equality. Also the

allocation of airtime is required to be fair to all interests and undertaken in a

transparent manner by editors46 and news coverage must be reported and presented

in an objective and impartial way and must not express the broadcaster’s own

views.47 Current affairs coverage is subject to the 2009 Guidelines and must also

ensure that each side of the debate is presented in the same programme or in

related programmes broadcast within a reasonable time of each other. Furthermore

where programmes involve audience participation, there is an obligation to ensure

that each side of the debate is fairly represented in the issues, questions or

comments raised in the programme. Care must also be taken to ensure that the

extracts show subsequently on other programmes also reflect fairness, objectivity

and impartiality.48 Finally, with regard to party political broadcasts there is no

43 Coughlan v Broadcasting Complaints Commission [2000] 3 IR 1 at 43. 44 Barrett, note 42, at 38. 45 Guidelines in Respect of Coverage of the Referendum on the Treaty of Lisbon and Related Constitutional Amendments 2009 (hereinafter “2009 Guidelines”). 46 Ibid, at paragraph 4. 47 Ibid, paragraph 5. 48 Ibid, paragraph 6.


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requirement to carry them, but if they are, equal airtime must be allocated to parties

for and against the referendum proposals.49

Scott says that the current position as regards referendum coverage is not ideal for

the reasons similar to those described by Barrington J in Coughlan, namely that “the

absolutely equal allocation of broadcasting time for party political broadcasts in the

context of referenda does not reflect the representation of the electorate.”50 In the

second Lisbon Referendum, only one party which met the criteria for making a party

political broadcast was advocating a No vote and the other four parties were in

favour of adopting the treaty. It is submitted that in practise the decision in Coughlan

has not impacted as greatly as was feared by academic commentators at the time of

the decision and that the 2009 Guidelines introduced by the Broadcasting

Commission did much to neutralise the possible effects those fears were motivated

by.

However, it is worth noting that the recent case of Doherty v the Referendum

Commission51 copper-fastens the Coughlan judgment and the principle of strict

equality between citizens in the conduct of Referenda. Here, Hogan J ruled against

the complainant who questioned the accuracy of statements made by the Chairman

of the Referendum Commission on the Fiscal Treaty. Stating that although: “it is

necessary implicit in this Constitution thus places a premium on honest and fearless

debate…The Constitution, therefore, calls, especially at a time of referendum, for

robust political debate from an informed public.”52 Hogan J concluded that the courts

must refrain from any involvement in the referendum process other than ensuring

that the institutions of the State adhered to the core constitutional principles of

popular sovereignty, freedom of speech and equality.53

Accordingly on the basis of this judgment, legislation of the type suggested by the

Joint Committee on the Constitution in April 200954, is incompatible with the

49 Ibid, paragraph 7. 50 Scott, note 39, at 231. 51 Doherty v the Referendum Commission [2012] IEHC 211. 52 Ibid, at 604. 53 Ibid, at 609. 54 First Interim Report 2009.


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jurisprudence of the Irish Courts. That report called for legislation that would inter alia

provide for broadcasters to avoid: “the quite unreal situation of more or less absolute

equality of time between supporters and opponents of the referendum” and

“Broadcasters would be entitled to have regard to a range of factors to inform their

own judgment about what constitutes fairness of treatment.. these factors could

include considerations such as the relative strengths and standing of political

parties….”55 As Regan suggests “the only justification for deviating from the rule of

strike equality may be that of absolute impossibility for broadcasters in finding

proponents of opposing views in a referendum.”56

One final thing to note with regard to referendum coverage in the broadcast media,

and before election coverage is discussed, is that the Broadcasting Authority

currently requires that Irish radio and television broadcasters must stop their

coverage of elections and referenda at 2pm on the day before the vote takes place.

This moratorium requirement was originally set out in Broadcasting Code on

Referenda and Election Coverage, but is now contained in guidelines and codes of

practice issued from time to time by the BAI.57 The moratorium means that

broadcasters cannot discuss the content of a referendum or the policies of different

political parties or election candidates from 2pm on the day before the vote until the

polling stations close on the day that the vote takes place. This restriction is intended

to ensure that voters are not confused or manipulated by false, incomplete or

misleading information in the final hours before voting or during voting. It only applies

to Irish broadcasters and does not apply to newspapers or websites.

Election Coverage, Party Political Broadcasts and Ministerial Announcements

It is clear than that the broadcast media are heavily regulated in their referendum

coverage in an attempt to maintain political impartiality. That broadcasting has a

huge impact on public opinion is undoubted in this regard. The same is true for the

role played by the broadcast media at election time, when candidates attempt to

sway public opinion in their favour over the radio or on televisions screens. Whether

55 Ibid, at 81. 56 Eugen Regan, “Policing the Conduct of Referenda; Recent Case Law” (2013) The Bar Review 1, 4-7, at 6. 57 BAI Code of Fairness, Objectivity & Impartiality In News and Current Affairs (April 2013) at provision 27.


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this influence is sought through party political broadcasts, debates, speeches or

even a ministerial announcement, how better to win the hearts and minds of the

general population, than by being beamed directly into millions of homes?

Section 18(2) of the Broadcasting Act 1960 (which contained the old provisions as to

impartiality and objectivity) provided that “nothing in this section shall prevent the

authority from transmitting party political broadcasts.”58 This section has now been

amended by the 2009 Act59 which introduces a fair allocation of time requirement in

the context of party political broadcasts. The old general provision regarding the

making of ministerial announcements has been omitted from the 2009 Act and were

considered in the case of McCann v An Taoiseach.60 In this case, the Taoiseach was

held to be allowed to direct the allocation of broadcasting time under section 31 of

the Broadcasting Act 1960 to make a ministerial announcement regarding the

forthcoming referendum on the Treaty of the European Union. Carney J expressly

recognised that this announcement would be partisan but saw no constitutional

difficulty with this and further, saw no constitutional necessity for a right to reply.

However, as Carolan and O’Neill note “the decision in this case, in so far as it relates

to a ministerial announcement advocating votes in favour of a referendum, is at odds

with the decision of the Supreme Court in Coughlan.”61 Furthermore it is noteworthy

that this decision of the High Court was not even mentioned in that case nor was it

mentioned in McKenna (No 2).

Section 31 of the Broadcasting Act 1960, as amended by section 16 of the

Broadcasting (Amendment) Act 1976 also gave the Minister for Communications the

power to prohibit broadcasting “where the Minister is of the opinion that the

broadcasting of a particular matter or any matter of a particular class would be likely

to promote, or incite to, crime or would tend to undermine the authority of the

State.”62 This authority was used solely to prohibit the making of election broadcasts

on behalf of Sinn Féín, the broadcasting of interviews with spokesmen for the party,

58 Section 18(2)(b) of the Broadcasting Act 1960. 59 Section 39(2) of the Broadcasting Act 2009. 60 McCann v An Taoiseach [1994] 2 IR 1. 61 Carolan and O’Neill, note 7, at 99. 62 Section 31 of the Broadcasting Act 1960, as amended by section 16 of the Broadcasting (Amendment) Act 1976.


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broadcasts made by or on behalf of or inviting support for the organisation and

broadcasts by persons representing the organisation because of that Sinn Féin’s ties

to and support of the Provisional IRA.63 The intended effect of the section 31 orders

was to “deny airtime to the IRA and other organisations banned in the State and in

Northern Ireland, to deprive them of the oxegen of publicity and the air legitimacy

that it was believed appearing on the broadcast media would accord them.”64

The practical effects of the ban are evident from the case of Brandon Book

Publishers Ltd v RTÉ65 about Gerry Adams’ book and the promotional advertisement

he recorded for radio broadcast. However, in January 1994 the Irish government

decided not to renew the order implementing section 31, with the first televised party

political broadcast on behalf of Sinn Féin transmitted a few months later.

Furthermore the section was repealed by the Broadcasting Act 2001 and as

McGonagle notes “Section 31 was gradually relegated to the status of a memory and

the political process was allowed to continue undeterred.”66

The next time that party political broadcasts were addressed by the Courts was the

case of Madigan v RTÉ.67 Here an independent candidate for the European

Parliament was worried that the way in which RTÉ broadcast a number of

programmes in relation to the election would not be fair on independents. The

applicant sought judicial review of RTÉ policy regarding the way in which

independent candidates were featured in its election programming. RTÉ had stated

that its policy generally was to “take account of the support gained by the various

parties at the last election”, but the applicant said that this was incorrect as the

statutory requirement of impartiality dealt with the present not the past. While Kinlen

J conceded that it would be unacceptable if RTÉ was to determine coverage based

on the last election alone, he found in favour of RTÉ on the basis that the RTÉ policy

had also taken into account the personalities, politics and backgrounds of

independent candidates and the different views they held on political issues. He

63 Carolan and O’Neill, note 7, at 108-109. 64 Maria McGonagle, Media Law, 2nd edn (Dublin: Thomson Round Hall, 2003) at 344. 65 Brandon Book Publishers Ltd v RTÉ [1993] ILRM 806. 66 McGonagle, note 64, at 351. 67 Madigan v RTÉ [1994] 2 ILRM 472.


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accepted that the requirement to treat candidates fairly did not mean that there had

to be total equality of treatment for all and that RTÉ were entitled to have a fluid

policy in matters such as this.

The most recent case involving party political broadcasts and election coverage is

the case of Green Party v. Radio Telefis Eireann,68which involved the amount of air

time given to parties based on their number of TDs. The Green Party argued that the

Progressive Democrats had been given air time in the past even though they were

smaller than themselves. They also argued that their right to equality before the law

under Article 40.1 was breached by relying on Madigan. Carroll J, in the High Court,

noted that the Green Party was entitled to rely on Article 40.1 in accordance with

Coughlan, but had a problem with the equality guarantee argument as it would be

the same as saying that political parties should be treated equally just because they

had an equal stature.

In considering whether this amounted to constitutional unfairness, the equality

guarantee argument was rejected through another application of Coughlan: “This

situation is not comparable to a referendum. It refers to the allocation of time to a live

broadcast of a party political conference.”69 The judge than went on to say that the

decision of RTÉ was not one “which plainly and unambiguously flies in the face of

fundamental reason and common sense,”70applying the relatively conservative, anti-

interfering reasonable approach developed in State (Keegan) v Stardust

Compensation Tribunal71 and O’Keefe v An Bord Pleanála..72 Carroll J said that RTÉ

could of course round up the figures and count the MEPs for example if they wanted

but the decision not to do so was not illogical and was not untenable. Furthermore

there was no bias. However, this decision can be criticised as there was very little

discussion of free speech, rather than arguing freedom of expression, the Green

Party very much focused on the equality aspect and if they had done the former it

68 Green Party v. Radio Telefis Eireann [2003] 1 I.R. 558. 69 Ibid, at 566. 70Ibid. 71 State (Keegan) v Stardust Compensation Tribunal [1986] IR 642. 72 O’Keefe v An Bord Pleanála [1993] 1 IR 39.


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would have resulted in a far different outcome as it would bring it into the sphere of

public education.

Political Advertising

But perhaps the area where the broadcast media in Ireland are most subject to

regulation is in the area of political advertising. Under section 41 of the Broadcasting

Act there is an absolute prohibition on political advertising, with this section stating “a

broadcaster shall not broadcast an advertisement directed towards a political end or

which has any relation to an industrial dispute.” This ban has been in place for a long

time and is justified on a number of grounds. First, it is argued that it would be

impossible for independent bodies to adjudicate disputes arising from such

advertsiments73 but this is not that compelling as courts adjudicate on more difficult

disputes all the time. Another justification for the ban is that it protects the sheep

from the wolves by prohibiting a possibly discriminatory practise, as there is a belief

that wealthier more established parties and candidates could buy more advertising

and gain the benefits thereof. The Irish courts have refused to say the ban is

unconstitutional on free speech grounds and the European Court of Human Rights

said that it might be a breach of Article 10 of the European Convention on Human

Rights in the case of 74 but then resiled from that position.,

However, before analysing the need for the prohibition on political advertisements so

as to ensure political impartiality, it is important to examine how political advertising

is defined. As McGonagle notes, “it would appear that it is not confined to election

campaigns, or indeed to political parties or candidates, but may encompass other

wider public interest issues” for example abortion or divorce. The question of what

constitutes political advertising arose in the case of Colgan v. IRTC75. The IRTC

were the regulatory body for broadcasting before the Broadcasting Authority was set

up, while the applicant was a member of the pro-life organisation Youth Defence,

who had paid for a 30 second radio advertisement to be made raising awareness

about abortion. The advertisement began with a muffled heartbeat and then a

73 Carolan and O’Neill, note 7, at 113. 74 McGonagle note 64, at 290. 75 Colgan v. IRTC [2000] 2 I.R. 490


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subsequent voiceover stated, among other things, that “her heart has been beating

since she was 18 years old at 8 weeks she’s perfectly formed” The listener was then

asked “Have you any conception what abortion is about?” The IRTC banned the

advertisement saying it was a political advertising banned under section 10(3) of the

Radio and Television 1988. The applicant sought to quash the legislation and the

decision for being unconstitutional and made a number of arguments: First, the

legislation did not apply to the advertisement as Youth Defence argued that they

were not advocating a positon on abortion but just providing information on abortion.

Secondly, the applicant argued that a ban on this type of advertising restricted on

freedom of expression and as such a strict approach should be taken. The best way

to do this being to read the reference to political ends as referring specifically to party

political objectives or agenda. Thirdly, the applicant relied heavily on Article 40.3

protecting the right to life of the unborn, while the final argument put forward was that

the regulator had looked at the background to the applicant’s organization and where

the advertisement had come from rather than just looking at the advertisement itself.

In the High Court, O’Sullivan J first refused to take the very strict reading of the

section as applying just to party political broadcasts and said there was specific

reference to such advertisements having a political end in the legislation. As such

the judge was of the belief that the Oireachtas must have intended a broader notion

of a political ends than that put forward by the applicant. He then turned to think

about the concept of an ad aimed towards a political aim, here dissuading women

from having abortions or members of the public to take a pro-life stance. O’Sullivan J

then proceeded to outline how he felt that an advertisement would have a political

end if it sought to further the ends of a particular policy, change or alter a law, or

decisions of public bodies or counteracting such decisions and could also include

those seeking to dissuade decisions of other countries decisions.76 In this case

O’Sullivan J stated that the supposed main prupose of the advertisement to dissauge

young Irish mothers from going abroad for abortions was not the only purpose or end

involved and that “a listener, who can clearly be other than a young Irish mother,

might well be induced by this advertisement to offer support to Project Truth, a Youth

76 Ibid, at 507.


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Defence project.”77 The judge further noted that one of the objectives of the

organization was having a referendum to change the law and were associated in the

public mind of having this political objective. By the time this case arose there had

been a number of constitutional amendments to the law on abortion such as in

relation to the right to travel abroad to have an abortion. It was decided that this was

not unconstitutional and also that information relating to abortion was available under

the constitution.

Furthermore, O’Sullivan J held that the IRTC could take account of the nature of the

person or body that procured or sponsored the ad, outlining how you have to be

aware of this context and that the issues relating to abortion are deeply divisive in

Ireland capable of stirring up strong emotions on both sides. He explained how the

arguments for and against changing the law are not easily forgotten and that the

issue of changing the law is on the political agenda always, even if there is not a

specific referendum, not least because the Supreme Court tself had said legislation

was required. He said such a powerful argument which is directly against abortion,

made by a group who is clearly identified with advocating a change in the law is

inextricably bound up with achieving such a change in a law. So the context, the

group who made it and the ad itself meant the broadcaster was correct in coming to

the view that the ad was directed at achieving a political end under the legislation

and was therefore correct.

He then went on to consider whether the legislation was constitutional. The

prohibition on religious advertising had been considered by the Supreme Court in

Murphy v. IRTC78. Here Barrington J said that all three of the types of ads banned

related to matters which had proved to be deeply divisive in Irish society in the past:

“the Oireachtas was entitled to take the view, that citizens of the country would not

want such ads being broadcast into their homes, and that such ads might lead to

relate, the Oireachtas might also have thought that on such divisive issues rich men

should not be allowed buy advertising to the detriment of their poorer rivals.”79It was

77 Ibid 78 Murphy v. IRTC [1999] 1 I.R. 12. 79 Ibid, at 22.


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indicated that this also applied to political advertising so O’Sullivan J said he was

bound by this decision and that the Supreme Court had intended to treat both

categories the same. He also pointed out that the Supreme Court in Murphy had said

that the interference with speech occasioned by the ban was minimalist and that the

correct approach when deciding whether the infringement of a constitutional right

impinges on that right as little as possible is “to refrain from condemning a wider

infringement such as a blanket ban notwithstanding that a more selective alternative

is admittedly available, if a rational explanation for the wider infringement is available

to the Court.”80

This approach is different to the approach taken by the ECtHR. In Murphy v

Ireland81the Court said the blanket ban was justified in Ireland due to the extent to

which religion had been divisive in Ireland, however in subsequent cases the ECtHR

said that the ban on political and religious advertising are distinct, with political

advertising bans in other jurisdictions not found to be justified. Four of these cases,

where the Strasbourg Court took a very dim view of the ban on political advertising,

are considered below.

In VgT Verein Gegen Tierfabriken v. Switzerland82 a case was taken against

Switzerland after the Swiss commercial television company refused to broadcast an

advertisement critical of battery farming of pigs. The advertisement featured a scene

of the terrible conditions at the farms taken by a Swiss animal rights group opposed

to the battery farming of pigs and concluded with a message to eat less meat for the

sake of the your health, animals and the environment. The Court’s determination

centred on the particular aim of the prohibition on political advertising, that aim being

to “Protect public opinion from the pressures of powerful financial groups and from

undue commercial influence and to provide a certain equality of opportunity among

different forces in society, to ensure editorial independence from powerful sponsors

and support the press.”83 While he Court said this was a legitimate aim, the found

there was breach of Article 10 because the ban was disproportionate due to the fact

80 Colgan v. IRTC [2000] 2 I.R. 490, at 512. 81 Murphy v Ireland (2004) 38 EHRR 13. 82 VgT Verein Gegen Tierfabriken v. Switzerland (“Tierfabriken I”) (2002) 34 EHRR 4. 83 Ibid, at 72.


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it was an interference with political expression i.e. interference with a political issue

such as the condition in which animals are reared. The Court said that once you are

in the realm of political speech the margin of appreciation that a member state has is

less broad and greater scrutiny is applied. They then turned to a proportionality

examination and said that the maintenance of plurality in the political field was

particularly important in the broadcasting context, emphasising the impact of

broadcasting, particularly television due to its immediacy. The Court noted that the

Swiss authorities had not argued that this the animal rights group was a financially

powerful one with a lot of influence. The opposite was true and the animal rights

group who had done a lot of fundraising to afford the advertisment in the first place.

As such this was exact opposite of the kind of exploitation the ban was aimed at in

the first place. They also noted that the group had limited ways of reaching the public

and television broadcasting was therefore the best method given their particular

circumstances.

Subsequent to this judgement VgT applied to the Swiss Federal Court to have the

ban on its advertisement lifted and when the Swiss authorities again declined. The

Grand Chamber found there to be a further breach of art.10 in VgT Verein gegen

Tierfabriken v. Switzerland (No. 2)84 and that there existed a positive obligation on

the Swiss authorities to allow the broadcasting of the advertisement.

However, in between the two Tierfabriken cases, another advertisement of a

allegedly political nature came before the ECtHR in TV Vest As & Rogaland

Pensjonistparti v. Norway85. After TV Vest broadcast an advertisement for the

Pensioner’s Party without first obtaining permission around the time of the 2003

Norwegian local and regional elections. The advertisement in question gave some

information about the party before calling on people to vote for it in the upcoming

elections. The regulatory body in Norway had warned the broadcaster that they

might be fined if they went ahead and broadcast the advertisement but this warning

was ignored on the basis that TV Vest saw it to be a a restriction of freedom of

84 VgT Verein gegen Tierfabriken v. Switzerland (No. 2) Application no. 32772/02, Grand Chamber 30 June 2009 (“Tierfabriken II”). 85 TV Vest As & Rogaland Pensjonistparti v. Norway (2009) 48 EHRR 51.


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expression. After TV Vest got fined 35,000 kroner they brought unsuccessful

proceedings to the Municipal and Supreme Court, before eventually challenging the

fine before the ECtHR. The First Chamber first noted that the Norwegian ban on

political advertising was a permanent and absolute one with the same aim as the

Swiss ban had had. Similarly the ECtHR again said that this was the only way the

party could get its agenda out to the public due to its size as a minority party. The

Court said that the blanket prohibition without any discretion at all breached the

proportionality element under Article 10. In conclusion, as McCormick states,

“[Here] there was not a reasonable relationship of proportionality between the

legitimate aim pursued by the prohibition and the means deployed to achieve

that aim. The restriction which the prohibition and the levying of the fine

imposed on the applicant's exercise of their freedom of expression could not

therefore be regarded as having been necessary in a democratic society

notwithstanding the margin of appreciation available to the national

authorities. Accordingly, there had been a violation of art.10.”86

The most recent case where the ECtHR addressed the issue of political advertising

in relation to Article 10 of the ECHR is Animal Defenders International v UK.87 This

was a case taken by a group which had the aims of ending or suppressing testing on

animals and Animal Defenders international sought to lobby for a change in law and

policy on the use of animals in that way. However, this was not the first time that an

advertisement of a political nature ahd been disputed before the UK Courts as in the

case of R. v. Radio Authority ex parte Bull and Another,88 an Amnesty advertisement

publicising the plight of people suffering in the civil war in Rwanda and Burundi was

prohibited from being broadcast. The Divisional Court at first instance had held that

Amnesty was a body with objects wholly or mostly of a political nature and this was

upheld by the Court of Appeal. But this was before Article 10 ECHR was enacted

into English Law under the Human Rights Act and as such the legal context of

Animal Defenders International was far different.

86 Nicola McCormick “Right to Freedom of Political Expression - Prohibition on Political Advertising on Television” (2009) Entertainment Law Review 20(5), 190-192, at 192. 87 Animal Defenders International [2008] UKHL 15; [2008] 1 A.C. 1312; [2008] E.M.L.R. 8. 88 R. v. Radio Authority ex parte Bull and Another [1997] 3 WLR 1094.


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The group had a number of different campaigns such as “my mate’s a primate” and

there was no doubt that this had a political aim. The question for the Court therefore

was if the ban was necessary in a democratic society and this is where the House of

Lords departed from the ECtHR. Bingham J emphasised the role of freedom of

expression in society, but he went on to say that there should be level playing field in

debates and there wouldn’t be if political parties or organisations can buy airtime in

proportion to their resources. Baroness Hale’s judgment also mentioned the elephant

in the committee room, which was a term of endearment for the position in the

United States where political advertising is treated solely as a free speech issue and

also to the “dominance of advertising, not only in elections but also in the formation

of political opinion, in the United States of America.”89. In fact in the United States “In

recent presidential campaigns it has become apparent that the most significant part

of a candidate’s expenditure goes to produce and buy airtime for television

commercials”90 Baroness Hale stated that the right balance was between two equally

important aspects of democracy: free speech and voter equality.

As noted by Carolan and O’Neill, “One of the reasons for the dominance to which

Baroness Hale reffered is the insistence of the United State Supreme Court that the

First Amendment covers restriction on the volume of speech so that limitations on

expenditure on political advertising are characterised as violating freedom of

expression.”91 Baroness Hale was referring to the line of jurisprudence which began

following the United States Supreme Court decision in 1976 in Buckley v. Valeo.92 in

which the court first adopted, in the context of the Federal Election Campaign Act of

1971, the dichotomy between expenditure limits and contribution limits. In Buckley,

the Court upheld a $1,000 per election limit on individual contributions and reasoned

that contribution limits are permissible in order to prevent “corruption and the

appearance of corruption.”93 The Court in Buckley, however, held that this same

89 Ibid, at para 49. 90 Lynda Lee Kaid, Christina Holtz-Bacha (eds), Political Advertising in Western Democracies: Parties & Candidates on Television, (California: Sage Publications, 1995), at 1. 91 Carolan and O’Neill, note 7, at 126. 92 Buckley v. Valeo 424 U.S. 1 (1976). 93 Subsequent to Buckley, the court also upheld a $1,075 limit on contributions to candidates for Missouri state auditor in Nixon v Shrink Missouri Government PAC, 528 U.S. 377 (2000).


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interest was not sufficient to justify limits on expenditures by candidates and, instead,

reasoned that expenditure caps are not permissible because they “necessarily

reduce the quantity of expression by restricting the number of issues discussed, the

depth of their exploration, and the size of the audience reached.”94

Following the decision of the House of Lords, there was fierce academic criticism.

Knight described the decision as unfortunate and said it was time to ‘stop monkeying

around with free speech:

“Without a convincing jurisprudential underpinning the law begins to appear

without foundation. None of the theories of free speech clearly supports the

blanket ban of the Communications Act 2003. Indeed, all militate against it.

The way to deal with one person in an argument shouting too loud is not to

cancel the argument altogether. Procedural limits on speech have always

been accepted, but a procedural limitation taken to an extreme becomes

substantively unfair. A blanket ban is not the proportionate method of dealing

with the problem of unfair speech competition. The European Court of Human

Rights refused to accept it in VGT, the Government acknowledged the

possibility by declining to issue a s.19 declaration, and the various theories of

free speech do not support it.95

Thus, when the applicant in Animal Defenders submitted its application to the

European Court96, it seemed probable that a violation was forthcoming given the

holdings in VgT and TV Vest, and the House of Lords’ seemingly misplaced

preference for Murphy over VgT. Indeed, there were no questions from any of the 17

judges at the hearing held in March 2012. However, as the months dragged on, this

suggested there was unease within the Court about following VgT and TV Vest, and

this unease ultimately resulted in a 9-8 vote for no violation.

The majority opinion begins not with a discussion of VgT, Murphy, or TV Vest, but

instead begins with the Court setting down a new controlling doctrine for analysing

94 Pember and Calvert, note 2, at 122. 95 C.J.S. Knight, “Monkeying around with Free Speech” [2008] Law Quarterly Review 557, at 561. 96 Animal Defenders v. UK (Application no. 48876/08).


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the ban: it categorised the ban at issue as a “general measure”. According to the

Court, “general measures” are rules which apply to pre-defined situations regardless

of the individual facts of each case even if this might result in individual hard cases.”

The Court then laid down a three-step test to determine the proportionality of a

“general measure,” where the Court must assess (a) the “quality” of the

parliamentary and judicial review of the necessity of the measure; (b) the legislative

choices underlying the general measure, and (c) any risk of abuse if a general

measure is relaxed.

Framing the question for analysis as one involving “general measures” allowed the

Court to reject the applicant’s submission that the central question was whether less

restrictive rules could have been adopted, but rather the “core issue” was whether in

adopting the general measure and striking the balance it did, the legislature “acted

within its margin of appreciation.” Thus, in one fell swoop, the Animal Defenders

majority brought a widened margin of appreciation right into the mix, which had been

absent in both VgT and TV Vest. The Court concluded that the reasons for the ban

were “relevant and sufficient,” and there was therefore no violation of Article 10.

These cases make it fairly clear that the Strasbourg court feel that although a blanket

ban is not generally in accordance with Article 10, there is a suggestion that maybe a

more carefully crafted ban or one which leaves a discretion in certain cases might

not fall foul of it. Nevertheless it is clear that Ireland is not the only country where the

broadcast media is subject to regulation to ensure political impartiality.

Conclusion

It is no exaggeration that the broadcast media in Ireland are subject to an enormous

amount of content regulation. However, this regulation is justifiable on the grounds

that it not only protects the sheep from the wolves, but also that it maintains a high

standard of political fairness in mediums which carry a huge degree of influence.

While Daly notes that “Irish democracy has long waited for its final cornerstone, free

speech, to be built. It is unfortunate, then, that this cornerstone is being constructed

by marginalising the very instrument, Bunreacht na hÉireann, on which our


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democratic State is founded,”97 it is submitted that the constitutional guarantee of

freedom of expression of the media has been eroded in order to maintain the political

impartiality necessary for the functioning of a democratic society. After all, the

broadcast media are very influential and must be shepherded accordingly.

97 Tom Daly, “Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1°(I) of the Constitution” (2009) D.U.L.J. 1, 228-262, at 262.

Protecting the sheep from the wolves - The need for political impartiality in the broadcast media.

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