Colgan v IRTC

JurisdictionIreland
CourtHigh Court
JudgeO’Sullivan J.
Judgment Date01 January 1999
Neutral Citation[1998] IEHC 117
Date01 January 1999
Docket Number[1996 No. 320 J.R.]
COLGAN v. INDEPENDENT RADIO TELEVISION COMMISSION
JUDICIAL REVIEW

BETWEEN

MAURICE COLGAN
APPLICANT

AND

INDEPENDENT RADIO AND TELEVISION COMMISSION AND IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

[1998] IEHC 117

No. 320 JR/1996

THE HIGH COURT

Synopsis

- [2000] 2 IR 490 - [1999] 1 ILRM 22

The decision of the first respondent to prevent licensed broadcasters from broadcasting an advertisement submitted by the anti-abortion group "Youth Defence" is reviewable as it involves the exercise of a statutory discretion which could be grounded on an erroneous view of the law. The phrase political end incorporates having a change in government policy as an objective and in determining whether an advertisement had a political end the first respondent was entitled to take into account general background information in relation to the advertisement and the advertiser. The advertisement in the present case was closely bound up with the political objectives of the advertiser and therefore had a political end and the Oireachtas was entitled to take the view that such advertisements should not be permitted and legislate accordingly.

Citations:

RADIO & TELEVISION ACT 1988 S10(3)

RADIO & TELEVISION ACT 1988 S9

RADIO & TELEVISION ACT 1988 S9(2)

CONSTITUTION ART 40.6.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.3

R V PENTONVILLE PRISON EX-PARTE CHENG 1973 AC 931

MURPHY V INDEPENDENT RADIO & TELEVISION COMMISSION 1997 2 ILRM 467

R V RADIO AUTHORITY EX-PARTE BULL 1995 3 WLR 572

MCGOVERN V AG 1982 CH 321

RADIO & TELEVISION ACT 1988 S9(1)(v)

RADIO & TELEVISION ACT 1988 S10(6)

EAST DONEGAL CO-OP V AG 1970 IR 317

1

JUDGMENT of O’Sullivan J. delivered on the 20th day of July 1998.

2

The Applicant is a member of an organisation called “Youth Defence”, an unincorporated body with the purpose, he says, “of educating the Irish people about the evils of abortion”. In or about the month of June 1996 Youth Defence began to organise an information project entitled “Project Truth”, which involved, among other things, devising a 30 second radio slot for broadcast.

3

In these proceedings the Applicant seeks to quash a decision of the first Respondent made under Section 10(3) of the Radio and Television Act, 1988, prohibiting several licensed broadcasters from broadcasting an advertisement submitted by Youth Defence relating to abortion which they were otherwise prepared to broadcast at the Applicant's request.

4

The Applicant claims, in the alternative, that if Section 10(3) of the Act of 1988 authorises the prohibition of the advertisement, then it is an unconstitutional infringement on the Applicant's freedom of expression.

BACKGROUND
5

As part of “project truth” Youth Defence devised the following advertisement to be broadcast by a number of licensed radio broadcasters.

6

“Project Truth

7

30 second radio

8

Concept 2

9

SEX (Sound effects)

10

Muffled tiny heartbeat on echo.

11

ANNCR : (Announcer)

12

Her heart has been beating since she was 18 days old.

13

At 8 weeks she's perfectly formed.

14

She sucks her thumb.

15

And she already has 20 milk-teeth buds.

SEX:
16

Heartbeat stops.

ANNCR:
17

In another 2 weeks she would have had fingernails.

18

She might have grown up to be a doctor… a scientist… a mother…

19

But now nobody will ever know.

20

Have you any conception what abortion is all about?

21

This message sponsored by Project Truth, a Youth Defence Project.”

22

A copy of the above advertisement was faxed to a number of local radio stations during the first week in August, 1996 by the Applicant and a number of these agreed to broadcast the advertisement including Galway Bay FM, Radio Limerick 95 FM, Cork 96 FM, Tipp FM, Clare FM, and Tipperary Mid-west. Appropriate fees were transmitted by cheque together with the broadcast cassette tape. The advertisements were due to be broadcast over the two week period beginning on the 12th August, 1996.

23

On the 7th August, 1996 the Applicant received a phone call from Margaret Jennings from Mid and Northwest Radio informing him that the decision to broadcast had been rescinded as a result of a letter received from the first Respondent.

24

This letter, dated the 7th August, 1996 includes the following paragraphs:-

25

“As the advertisement in question takes a position on the issue of abortion, it is clearly in breach of Section 10.3 of the Act which states ‘no advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.’

26

The advertisement therefore should not be broadcast on independent radio stations. This letter is being sent to all stations.”

STATUTORY CONTEXT
27

The regulation of private broadcasting is achieved under the Radio and Television Act, 1988which sets up a framework for licensing private broadcasters and also establishes an independent radio and television commission namely the second Respondent. Authorised broadcasters hold a licence from the Minister for Communications and enter into a contract with the first Respondent in relation to the service they provide.

28

Section 9 of the 1988 Act deals with news and current affairs broadcasts and requires a minimum of broadcasting time to be devoted to these matters which must be treated objectively, impartially and fairly. The first Respondent may draw up a code of practice which must then be complied with by every sound broadcasting contractor.

29

Section 10 dealing with advertisements is in the following terms:-

30

2 “ 10.(1) Programmes broadcast in a sound broadcasting service provided pursuant to any sound broadcasting contract may include advertisements inserted therein.

31

(2) The commission shall draw up, from time to time as it thinks proper, a code governing standards and practice in advertising and every sound broadcasting contractor shall comply with (he code in respect of advertisements broadcast by it.

32

(3) No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.

33

(4) The total daily times for broadcasting advertisements in a sound broadcasting service provided pursuant to a sound broadcasting contract shall not exceed a maximum of 15% of the total daily broadcasting time and the maximum time to be given to advertisements in any hour shall not exceed a maximum often minutes.

34

(5) In this section, references to advertisements shall be construed as including references to advertising matter contained in sponsored programmes, that is to say, in programmes supplied for advertising purposes by or on behalf of an advertiser.

35

(6) It shall be the duty of the Commission to ensure that sound broadcasting contractors comply with the requirements of sub-sections (2), (3) and (4).”

36

The word “political” is not defined in the Act. The phrase “political party” occurs in Section 9(2) as follows:-

37

“9. - (2) Nothing in subsection (l)(a) or (l)(b) shall prevent a sound broadcasting contractor from transmitting political party broadcasts: Provided that a sound broadcasting contractor shall not, in the allocation of time for such broadcasts, give an unfair preference to any political party”

THESE PROCEEDINGS
38

By Order dated the 4th November, 1996 Geoghegan J. gave the Applicant leave to apply for an Order of Certiorari quashing the said decision of the first named Respondent or alternatively, for declarations that Section 10(3) of the Radio and Television Act, 1988is invalid having regard to Article 40.6.1; Article 40.3.1; or Article 40.3.3 of the Constitution.

39

At the commencement of the hearing of this action Counsel for the Applicant sought leave to expand the grounds upon which the validity of the first Respondent's decision could be challenged to include a claim that the decision demonstrates as a matter of fact that the first Respondent its servants or agents was biased against the Applicant's organisation and/or took into consideration irrelevant matters and matters which were ultra vires when it made the said decision.

40

This application was opposed by both Respondents who claimed that they were not ready to deal with the application and that it expanded the scope of the proceedings as theretofore pleaded. In the exercise of my discretion I refused leave to the Applicant to expand the proceedings and the case went ahead in accordance with the order of Geoghegan J. of the 4th November, 1996.

ORAL EVIDENCE
41

The Applicant was cross-examined on his Affidavit by Mr Coughlan on behalf of the first Respondent. I propose in this judgment merely to refer to some of the salient features of his evidence without attempting a comprehensive summary. A partial transcript of evidence is available.

42

The Applicant said he was a committee member of Youth Defence which is a single issue organisation against abortion. It exists to inform the public concerning issues in relation to abortion and exists to ensure that the country continues to protect the unborn child. Mr Colgan said of Youth Defence Our purpose is to inform the public about the horror of abortion.” They had lobbied politicians in the past to come and state that they wished to enshrine a protected right for the unborn child. They sought a referendum and it was a Youth Defence policy to have a referendum and if such came into being it would have a position in relation to that referendum. They considered that Michael Noonan when Minister for Health had a policy of legalising abortion and lobbied against him. The previous Government was trying to push abortion onto the country. It was Government policy to railroad abortion into the country. When asked whether it was Youth Defence policy to change that policy, the Applicant replied “No.” Their policy was to inform...

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