Coughlan v Broadcasting Complaints Commission

• Jurisdiction: Ireland
• Court: High Court
• Judge: Carney J.
• Judgment Date: 24 April 1998
• Neutral Citation: [1998] IEHC 62
• Date: 24 April 1998

[1998] IEHC 62

THE HIGH COURT

No. 209 J.R./1997

COUGHLAN v. BROADCASTING COMPLAINTS COMMISSION & RTE

JUDICIAL REVIEW

IN THE MATTER OF THE BROADCASTING AUTHORITY ACTS

BETWEEN

ANTHONY COUGHLAN

APPLICANT

AND

THE BROADCASTING COMPLAINTS COMMISSION AND RADIO TELEFIS EIREANN

RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

Citations:

BROADCASTING AUTHORITY ACT 1960 S18

BRANDON BOOK PUBLISHERS LTD V RADIO TELEFIS EIREANN 1993 ILRM 806

CONSTITUTION ART 46.2

MCKENNA V AN TAOISEACH (NO 2) 1995 IR 19, 1996 1 ILRM 81

BROADCASTING AUTHORITY ACT 1960 S17(b)

Synopsis

- [2000] 3 IR 1

1 Judgment delivered the 24th day of April, 1998 by Carney J.

2 The Applicant is a senior lecturer in social policy in Trinity College, Dublin, and has always taken an active interest in the political process. At one stage he was secretary of the campaign for Fair Referenda, a body now disbanded, and currently is involved with the National Platform which engages in public controversy in relation to European Union matters.

3 In the course of the 1995 Referendum on Divorce, Radio Telefis Eireann permitted the political parties, all of whom were committed to a YES vote position in that Referendum, to have party political broadcasts transmitted during the Referendum campaign. R.T.E. also permitted one non-party group in favour of divorce and one non-party group opposed to divorce to transmit programmes similar in form to party political broadcasts.

4 The Applicant complained to the Broadcasting Complaints Commission that R.T.E. had infringed Section 18 of the Broadcasting Act, 1960as amended by the Broadcasting Authority (Amendment) Act, 1976.Mr. Coughlan's complaint was furnished as was required by statute for comment by R.T.E. and R.T.E. made their comment in reply.

5 A considerable period of time elapsed and then the Broadcasting Complaints Commission indicated that they had doubts whether they had jurisdiction to deal with the complaint on statutory grounds. Mr. Coughlan insisted that they had and this position was eventually accepted. The Broadcasting Complaints Commission then procedurally went back to square one and asked R.T.E. for its comments on the complaint, ignoring that this part of the procedure had long since been completed. R.T.E. again made a response and some time later a decision was given by the Broadcasting Complaints Commission rejecting Mr. Coughlan's complaint. The Broadcasting Complaints Commission's rejection of the Applicant's complaint is in the following terms:-

" RE: COMPLAINT MADE BY MR. ANTHONY COUGHLAN"

6 SUMMARY OF COMPLAINT: REGARDING "UNCONTESTED PARTY POLITICAL BROADCASTS DURING THE DIVORCE REFERENDUM" AIRED ON R.T.E. ON, (SIC).

7 Mr. Coughlan complained about R.T.E.'s policy of allocating uncontested radio and television broadcasts to the Oireachtas political parties in the course of the divorce referendum, and constitutional referenda in general.

8 Mr. Coughlan stated that the R.T.E. Authority's statutory obligations - under Section 17 of the 1960Broadcasting Act as amended by Section 13 of the Broadcasting Authority (Amendment) Act, 1976- charge it with the duty, inter alia, to “uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression”. Mr. Coughlan contended that, in the context of a constitutional referendum, the obligation requires R.T.E.. to refrain from exercising the permissive power which the Authority possesses under Section 18(2) of the Broadcasting Act to transmit uncontested broadcasts on behalf of political parties. Mr. Coughlan requested the Broadcasting Complaints Commission to uphold that contention and to charge R.T.E. to base its policy upon it in future referenda.

9 Mr. Coughlan further stated that it is clear that R.T.E. is under no statutory obligation to give the political parties uncontested broadcasting facilities in referenda. Referendas are occasions on which the political parties play quite a different role in the political process from what they do in candidate elections. In constitutional referenda it is the citizens themselves who are legislating directly. The choice is always a straight one between a YES or NO to a particular referendum proposition. Mr. Coughlan also stated that R.T.E. is well aware that every political party has members and supporters who support both sides on any such proposition. To accord an uncontested political broadcast facility to a political party, therefore, is practically and in effect to leave it to the leadership of that party to decide the content of the broadcast message. Such content rarely if ever reflects the divided views of the party's members and supporters, and usually constitutes a partisan presentation of the referendum issue in question. In a constitutional referendum context where most or all of the political parties and their leaderships are lined up on one side, this unnecessary and gratuitous practise by R.T.E. has, or can have, the effect of using the State radio and television to make a one-sided, unbalanced presentation of the referendum issue, which in turn impinges directly and adversely on the rights of citizens to equality and fairness in the referendum process.

10 Mr. Coughlan also stated that the Authority's policy in the divorce referendum had the effect of permitting a total of 42.5 minutes of uncontested broadcasting time to the YES side and 10 minutes to the No's on dates 17th to 24th November.

11 Mr. Coughlan requested the Broadcasting Complaints Commission to uphold the principle that R.T.E.'s obligations under the Broadcasting Act point to it either permitting no uncontested broadcasts at all in referenda, so confining coverage of the issues to current affairs programmes, where the views of the political parties can be quite adequately covered, or else to allocate uncontested broadcast facilities on a 50/50 basis to both YES and NO sides, divided between non-party groups and political parties, whether inside or outside the Oireachtas.

12 Mr. Coughlan further requested the Commission to find that R.T.E.'s policy of gratuitously granting uncontested broadcast facilities to political parties in referenda, has the objective effect of using the State broadcasting system to confer a significant advantage on one side or another in those referendum contests where there is considerable imbalance between political party or political party leadership support for each side, and where this imbalance bears no close relation to the division of opinion and votes among the electorate and citizens who are engaged in the legislative process. Mr. Coughlan also requested the Commission to find that for R.T.E. to confer such an advantage on one side in this way is unfair and undemocratic in a constitutional referendum context.

13 Mr. Coughlan suggested that the facility of an uncontested broadcast at peak viewing or listening time, which is when these broadcasts usually occur, and occurred during the divorce referendum, is a powerful means for enabling those making such broadcasts to get their message to listeners or viewers.

14 Mr. Coughlan also complained about R.T.E.'s unscheduled second transmission of a broadcast by the Right to Re-marry Group a few days before the referendum - specifically on Sunday November 19th - without the according of a counterbalancing repeat facility to the other side, violated also the principles of fairness, impartiality and objectivity of treatment of current affairs and matters of public controversy that R.T.E. is obliged to uphold. Granting a repeat broadcast to the NO side in order to counterbalance the repeat broadcast given to the Yeses, would seem an obvious thing to do in the circumstances. It would have cancelled out the imbalance arising from the second transmission for the YES side. Mr. Coughlan complained that the failure to accord such a counterbalancing broadcast amounted to a further breach by R.T.E. of its obligations under Section 18.l.b of the Broadcasting Authority Act.

15 Mr. Coughlan would also like the Commission to note that Morning Ireland on Wednesday, 14th November, carried a series of key passages in support of one side in the referendum from a recorded speech in Tullamore by the Taoiseach, Mr. Bruton. This amounted in effect to an uncontested radio broadcast in support of one side in the referendum.

STATION'S RESPONSE

16 R.T.E. in its response stated that it recognised the particular character of constitutional Referenda. R.T.E. further stated that it allocated equal time to the presentation of the augments in favour of and against the issue to be determined by the People, once the relevant Bill was passed by the Dail and Seanad. That policy informed R.T.E.'s approach to the 1995 Divorce Referendum.

17 Over the years, R.T.E. has allocated political party broadcasts to qualifying parties in Dail Eireann in relation to most referenda. These broadcasts were allocated without regard to the views likely to be expressed therein by the parties. It is in the nature of the political party broadcast that its contents are determined by the political party concerned. R.T.E. has no role in relation to the content of such broadcasts and never has had any such role. The precise allocation of time for political party broadcasts is based on well established guidelines.

18 Political party broadcasts are transmitted in accordance with Section 18(2) of the Broadcasting Authority Act, 1960.Section 18(1) of the Broadcasting Authority Act (as Amended), as it relates to objectivity, impartiality and fairness does not apply to such political party broadcasts. Consequently these broadcasts have to be left out of account in any evaluation of R.T.E.'s discharge of its statutory obligations in the matter of the 1995 Divorce Referendum.

19 The matter of political party broadcasts...