Broadcasting regulation in Ireland: regulation built on a false premise

• Date: 01 January 2011
• Author: Rónán Ó Fathaigh

Broadcasting Regulation in Ireland:

Regulation Built on a False Premise

RÓNÁN Ó FATHAIGH

Introduction

This article argues that the extent to which the broadcast media is subject

to regulation todayis 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 Courts 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 Communication Regulation Act 2002; replacing the

Office of the Director of Telecommunications Regulation (established under the

Telecommunications (Miscellaneous Provisions) Act 1996)

3Broadcasting Act 2009, s.59(1): “The Authority shall not authorise a broadcasting

contractor to operate a broadcasting transmitter and provide a broadcasting service

under a broadcasting contract unless 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 respect of 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 Switzerland, 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)

10Ibid s.39(1)(d)

11Ibid s.39(1)(e)

12Ibid s.39(2)

42RÓNÁNÓFATHAIGH

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