Broadcasting regulation in Ireland: regulation built on a false premise

Date01 January 2011
AuthorRónán Ó Fathaigh
Broadcasting Regulation in Ireland:
Regulation Built on a False Premise
This article argues that the extent to which the broadcast media is subject
to regulation today is unjustifiable and inconsistent with freedom of
expression. Part I describes this regulation; while Part II puts forward a
constitutional and theoretical argument for the deregulation of broadcasting
in Ireland.
Broadcasting Regulation in Ireland
Broadcasting in Ireland has always been subject to regulation.1In 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. This form of regulation is the
most questionable, and is the subject of this article. However, we must first
distinguish content regulation from structural regulation.
Structural Regulation
Structural regulation is the imposition of a licensing system to regulate radio
and television frequencies and infrastructure. The Commission for
Communications Regulation2is the body which grants broadcast licences.3
1P. 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. See generally, R. Pine, 2RN and the Origins of Irish
Radio, (Dublin: Four Cour ts Press, 2002) and M. McGonagle, Media Law, 2nd edn
(Dublin: Thomson Round Hall, 2003) at para.3.5 et seq.
2Established under s.6 of the Communica tion Regulation Act 2002; replacing the
Office of the Director of Telecommunications Regulation (established under the
Telecommunications (Miscellaneous Provisions) Act 1996)
3 Broadcasting Act 2009, s.59(1): “The Authority shall not a uthorise a broadcasting
contractor to operate a broadcasting transmitter and provide a broad casting service
under a br oadcasting contract unl ess and until the Communications Regulator has
granted under this subs. to the Authority a licence (“broadcasting licence”) under s.5
of the [Wireless Telegraphy Act 1926, as amended] in r espect o f the sound or
television broadcasting transmitter to which the contract relates.”
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It is generally accepted that there is a technological necessity to impose
structural regulation on broadcasters to ensure orderly use of the airwaves
and prevent interference with emergency frequencies.4This article does not
challenge this type of regulation: it challenges any regulation over and above
this type of regulation.
Content Regulation
The Broadcasting Act 2009 imposes a huge amount of content regulation on
broadcasters. These rules represent a prima facie infringement of broad -
casters’ freedom to decide what to broadcast; these rules being as follows:
impartiality and objectivity: all news broadcast by any broadcasters must
be reported and presented in an objective and impartial manner5;
no editorialising on news: all news broadcast must be without any
expression of the broadcaster’s own views6;
fairness: 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 manner7;
no editorialising on current affairs: there must be no expression of
broadcasters’ own views in relation to current affairs, matters of public
controversy and matters subject to current public debate8;
harm or offence: anything which may reasonably be regarded as causing
harm or offence, must not be broadcast9;
incitement: anything which may reasonably regarded as being likely to
promote, or to incite to, crime or as tending to undermine the authority
of the State, must not be broadcast10;
privacy: in programmes, and in the means employed to make such
programmes, the privacy of any individual must not unreasonably be
encroached upon11;
party political broadcasts: in the allocation of time for party political
broadcasts, broadcasters must not give an unfair preference to any
political party;12
4Groppera Radio AG v Switzer land, App. No. 10890/84 , Judgment of 28 March
1990, at para.61
5Broadcasting Act 2009, s.39(1)(a)
6Ibid s.39(1)(a)
7Ibid s.39(1)(b)
8Ibid s.39(1)(b)
9Ibid s.39(1)(d)
10 Ibid s.39(1)(d)
11 Ibid s.39(1)(e)
12 Ibid s.39(2)
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