Brandon Book Publishers Ltd v Raidió Teilifís Éireann

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Carney
• Judgment Date: 16 July 1993
• Neutral Citation: 1993 WJSC-HC 3052
• Date: 16 July 1993
• Docket Number: Record No. 266JR/92

1993 WJSC-HC 3052

THE HIGH COURT

Record No. 266JR/92

BRANDON BOOK PUBLISHERS LTD v. RTE

JUDICIAL REVIEW

IN THE MATTER OF ARTICLE 40.6.1(i) OF THE CONSTITUTION

AND IN THE MATTER OF THE BROADCASTING AUTHORITY ACT 1960

(SECTION 31) ORDER 1990 (S.I. No. 11 of 1990)

AS EXTENDED BY THE BROADCASTING AUTHORITY ACT 1960(SECTION

31) ORDER 1991 (S.I. No. 6 of 1991)

AND THE BROADCASTING AUTHORITY ACT 1960(SECTION 31) ORDER

1992 (S.I. No. 4 of 1992)

BETWEEN

BRANDON BOOK PUBLISHERS LIMITED

APPLICANT

AND

RADIO TELEFIS EIREANN

RESPONDENT

Citations:

CONSTITUTION ART 40.6.1(i)

BROADCASTING AUTHORITY ACT 1960 (SECTION 31) ORDER 1990 SI 11/1990

BROADCASTING AUTHORITY ACT 1960 (S31) ORDER 1991 SI 6/1991

BROADCASTING AUTHORITY ACT 1960 (S31) ORDER 1992 SI 4/1992

LYNCH, STATE V COONEY & AG 1982 IR 337

O'TOOLE V RTE UNREP SUPREME 30.3.93 1993/5/1277

BROADCASTING ACT 1960 S31(1)

BROADCASTING AUTHORITY (AMDT) ACT 1976 S16

BROADCASTING ACT 1960 S31(1A)

BROADCASTING ACT 1960 S31(1B)

RADIO & TELEVISION ACT 1988 S12

BROADCASTING ACT 1960 S18

O'TOOLE V RTE UNREP O'HANLON 31.7.92 1992/12/3997

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

BROADCASTING ACT 1960 S18(1)

BROADCASTING ACT 1960 S31

Synopsis:

CONSTITUTION

Personal rights

Speech - Freedom - Curtailment - Validity - Challenge - National broadcasting authority - Advertisement - Acceptance - Refusal - Advertisement consisting of author's announcement of the publication of his book - Author being president of Sinn Fein party - Judicial review of refusal not granted - Broadcasting Auhority Act, 1960, ss.18, 31 - (1992/266 JR - Carney J. - 16/7/93) G7:G7

|Brandon Book Publishers Ltd. v. Radio Telefis Eireann|

JUDICIAL REVIEW

Remedy

Scope - Tribunal - Decision - Permission - Refusal - Publication of book - Author's radio advertisement announcing publication - National broadcasting authority's refusal to broadcast advertisement - Author being president of Sinn Fein party - Court's refusal to review decision - (1992/266 JR - Carney J. - 16/7/93)

|Brandon Book Publishers Ltd. v. Radio Telefis Eireann|

TRIBUNAL

Decision

Review - Application - Refusal - Book - Publication - Author's radio advertisement announcing publication - National broadcasting authority's refusal to broadcast advertisement - Author being president of Sinn Fein party - Court's refusal to review decision - (1992/266 JR - Carney J. - 16/7/93)

|Brandon Book Publishers Ltd. v. Radio Telefis Eireann|

1 Judgment of Mr. Justice Carneydelivered the 16th day of July 1993.

2 The Applicant is a book publishing Company and says that it was established in 1982 with a view to publishing new literary authors and books that offer radical or sociallycritical perspectives. On August 3rd, 1992 the Applicants published a collection of 19 short stories by Gerry Adams entitled "The Street and Other Stories". Gerry Adams previously had published books entitled "Falls Memories", "The Politics of Irish Freedom" and "Cage Eleven".

3 Gerry Adams is President of Sinn Fein, a registered political party. In 1982 Sinn Fein through its member Sean Lynch, a candidate in the Longford-Westmeath constituency, at the General Election litigated to protect its projected party political broadcasts on radio and television. These proceedings are reported under the title The State (at the prosecution of Sean Lynch) v. Patrick Cooney and the AttorneyGeneral in 1982 IR at page 337.

4 In the course of these proceedings the following was put inevidence:-

5 (1) An extract from the issue of the 5th November, 1981, of An Phoblacht which is a newspaper published by Sinn Fein. The extract (which appears under the headline "By Ballot and Bullet") is in the following terms:-

"As it was aptly put at the Sinn Fein ard fheis: "Who here really believes we can win the war through the ballot box? But will anyone here object if, with a ballot paper in this hand, and an Armalite in this hand, we take power in Ireland"."

6 (2) A report in The Irish Times (14th December, 1971) of a statement by one Ruari O'Bradaigh, the President of the Sinn Fein party, in the following terms:-

"The fight in the North was in grave danger of leaving the 26 counties far behind. We must show them that we want to disestablish both States, North and South."

7 (3) An extract from a staff report emanating from the Provisional I.R.A. and prepared before 1977. It was produced at the trial of Seamus Twomey in a Special Criminal Court in 1977 and is in the followingterms:-

"Sinn Fein should come under army organizers at all levels. Sinn Fein should employ full time organizers in big republican areas. Sinn Fein should be radicalized (under army direction) and should agitate around social and economic issues which attack the welfare of the people. SF should be directed to infiltrate other organizations to win support for and sympathy to the movement ..."

8 (4) The fact that of the eight candidates nominated by the party for the recent general election three had been convicted of being members of the I.R.A., one had been convicted of the unlawful possession of firearms and one was awaiting trial charged with such offence.

9 (5) The fact that the officer board of the party, comprising eight persons, included two who had been convicted of I.R.A. membership, one who had been convicted of attempting to import arms, and one who had been convicted of causing explosions.

10 O'Higgins C.J. having recited these matters said at page 366:-

"None of these matters have been controverted or put in issue by the prosecutor. This was not due to oversight or lack of opportunity. On the contrary, it was expressly stated on his behalf that he did not wish to controvert any of these matters."

11 It was held by the Supreme Court that the evidence adduced by the Minister was uncontroverted and that it fully justified his opinion that a broadcast made on behalf of or inviting support for Sinn Fein or a broadcast by a person purporting to represent that organization would have been likely to promote, or incite to, crime or would have tended to undermine the authority of the State. The Supreme Court, accordingly, held that the Minister's Order directing the Broadcasting Authority to refrain from broadcasting any matter whether being a party political broadcast or not made by or on behalf of or inviting support for Sinn Fein had not been ultra vires Section 31 subsection (1) of the Act of1960.

12 The statutory provisions material to this case are set out in the Judgment of the present Chief Justice delivered the 30th day of March 1993 in Laurence O'Toole v. Radio Telefis Eireann (unreported) as follows:-

"Section 31(1) of the Broadcasting Act 1960, inserted by way of amendment in substitution for the original subsection (1) of Section 31 by Section 16 of the Broadcasting Authority (Amendment) Act 1976reads as follows:-"

(1) Where the Minister is of the opinion that the broadcasting of a particular matter or any matterof a particular class would be likely to promote, or incite to, crime or would tend to undermine the authority of the State, he may by Order direct the Authority to refrain from broadcasting the matter or any matter of the particular class, and the Authority shall comply with theOrder.

13 The Minister in question at the time was the Minister for Communications (the relevant Minister at the present time is the Minister for Arts, Culture and the Gaeltacht).

14 It is provided by subsection (1A) of Section 31 of the Act of 1960, as inserted by Section 16, that an Order made under subsection (1) should remain in force for a year and could be extended by an Order made by the Minister or by a resolution passed by both Houses of the Oireachtas. It is provided by subsection (IB) of Section 31, inserted as aforesaid, that every Order made by the Minister under this Section shall be laid before each House of the Oireachtas, with the usual provision for annulment by resolution of the Houses of the Oireachtas. By virtue of Section 12 of the Radio and Television Act 1988, every direction given to RTE pursuant to Section 31(1) of the Broadcasting Authority Act 1960by the Minister in force shall apply to a sound broadcasting service provided pursuant to a sound broadcasting contract under that Act.

15 The relevant statutory Rule and Order is S.I. No. 11 of 1990, which remained in force until the 19th January 1991 but was continued in operation for a further year, to the 19th January 1992, by S.I. No. 6 of 1991. This Order has been further continued in operation since that date and is still in operation.

16 The relevant provisions of that Order are as follows:

17 2 "2. Radio Telefis Eireann is hereby directed to refrain from broadcasting any matter which is

18 (1) an interview, or report of an interview, with a spokesman or with spokesmen for any one or more of the following organisations

19 .....

20 (b) the organisation styling itself Sinn Fein

21 (c) the organisation styling itself Republican Sinn Fein

22 (2) a broadcast, whether purporting to be a political party broadcast or not, made by, or on behalf of, or advocating, offering or inviting support for, the organisation styling itself Sinn Fein or the organisation styling itself Republican Sinn Fein

23 (3) a broadcast by any person or persons representing, or purporting to represent, the organisation styling itself Sinn Fein or the organisation styling itself Republican Sinn Fein."

24 Section 18 of the Act of 1960, as amended by the Act of 1976, provides at subsection (1) as follows:

25 2 "(1) Subject to subsection (1A) of this Section it shall be the duty of the Authority to ensure that:-

26 (a) all news broadcast by it is reported and presented in an objective and impartial manner and without any expression of the authority's own views,

27 (b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public...