Coughlan v Broadcasting Complaints Commission

• Jurisdiction: Ireland
• Judge: Hamilton C.J.,Denham J.,Barrington J.,Keane J.,Barron J.
• Judgment Date: 26 January 2000
• Docket Number: [1997 No. 209 J.R.; S.C. No. 142 and 148 of 1998],142 & 148/98
• Court: Supreme Court
• Date: 26 January 2000

THE SUPREME COURT

HAMILTON C.J.

DENHAM J.

BARRINGTON J.

KEANE J.

BARRON J.

142 & 148/98

IN THE MATTER OF THE BROADCASTING AUTHORITY ACTS

Between:

ANTHONY COUGHLAN

Applicant/Respondent

and

THE BROADCASTING COMPLAINTS COMMISSION AND RADIO TELEFÍS ÉIREANN

Respondents/Appellants

and

THE ATTORNEY GENERAL

Notice Party

Abstract:

Constitutional law - Judicial review - Media and broadcasting - Certiorari - Statutory interpretation - Whether declaration that RTE acted unlawfully should have been granted - Whether transmission of political broadcasts advocating "yes" vote unconstitutional - Broadcasting Authority Act, 1960 (No 10) - Broadcasting Authority Act, 1976 (No 37).

The applicant had made a complaint to the Broadcasting Complaints Commission ("the BCC") regarding the coverage given by RTE to the divorce referendum. The complaint related to the transmission of party political broadcasts by RTE. Most of these broadcasts advocated a "yes" vote in the referendum while a handful advocated a "no" vote. The applicant's complaint was dismissed by the BCC who considered that RTE had not breached its statutory obligations as set out in section 18 of the Broadcasting Authority Act, 1960. The applicant initiated judicial review proceedings who claimed that the BCC had misinterpreted the legislation and misdirected itself in law. Mr. Justice Carney upheld the argument of the applicant and made an order issued on 24/04/1998 quashing the decision of the BCC. Both the BCC and RTE appealed against the judgment.

Held by the Supreme Court (Hamilton CJ, Denham J, Keane J and Barron J delivering judgments; Barrington J dissenting) in dismissing the appeal. Chief Justice Hamilton held that RTE was under no obligation, statutory or otherwise, to transmit political party broadcasts. In deciding to transmit political party broadcasts RTE must have regard to fair procedures and exercise its power in a constitutional power. The allocation of ten party political broadcasts, to be shared between five political parties, did not hold the balance equally between those who supported the referendum and those who opposed it. Mrs. Justice Denham held that the referendum process was a different process to that of an election and the presentation of the issue to the public was different to the presentation in an election. If all political parties were either in favour or against a referendum then party political broadcasts became prima facie unfair and unequal. Mr. Justice Keane held that the allotment by RTE of forty minutes of uncontested broadcasting time to parties in favour of a "yes" vote as against ten minutes to the "no" vote gave an advantage to the "yes" vote. The High Court judge was correct in holding that the allocation of uncontested broadcasting time in this case was legally impermissible. Mr. Justice Barron held that the actions of RTE were in breach of its obligations under section 18(1) of the Broadcasting Authority Act, 1960. Mr. Justice Barrington delivered a dissenting judgment in which the learned judge stated that there was, in principle, no constitutional inequality or unfairness and no breach of democratic values in allowing political leaders access to the airwaves at referendum time related to their social function as political leaders of the people.

1 Judgment of the Chief Justice handed down on the 26th day of January, 2000

2 These are appeals brought by The Broadcasting Complaints Commission (hereinafter referred to as 'the B CC') and Radio Telefís Éireann (hereinafter referred to as "RTE"), against the judgment delivered by Mr. Justice Carney on the 24th day of April, 1998 and the order made in pursuance thereof on the same date whereby the Court did grant an order of certiorariquashing the decision of the BCC made on the 19th day of March, 1997 50 far as it dismissed the complaints of Mr. Anthony Coughlan (the Applicant /Respondent herein) and did declare that in relation to the Divorce Referendum of 1995 the allocation of uncontested broadcasting time to each side of the argument was significantly unequal and thereby constitutionally unfair.

3 The said order was granted on an application for judicial review brought by Mr. Anthony Coughlan (hereinafter referred to as 'the Applicant') who had been granted leave to apply therefor, in accordance with the provisions of Order 84 Rule 20 of the Rules of the Superior Courts, by order of the High Court made on the 17th day of June, 1997.

4 As appears from the said order the Applicant sought a number of orders and declarations but the only relevant order made by the High Court on the 24th day of April, 1998 was that set forth herein. No order was made by the

5 High Court in respect of the other reliefs sought and there is no appeal from the failure of the trial judge to make any other orders.

6 Background to Application

7 In 1995, a proposal for an amendment of the Constitution was initiated in Dáil Éireann as a Bill and was passed by both Houses of the Oireachtas in accordance with the provisions of Article 46, s. 2 of the Constitution.

8 Article 46, s. 2 required that the Bill be submitted to the decision of the People in accordance with law for the time being in force relating to the Referendum.

9 The proposed amendment to the Constitution which provided for the dissolution of marriage in the circumstances outlined therein led to considerable controversy with strong campaigns in favour of a 'Yes'vote and equally strong campaigns in favour of a 'No'vote.

10 These issues raised thereby led to extensive coverage in and by the media, including RTE.

11 There is no complaint by the Applicant with regard to the general coverage of the campaign by RTE in its news and current affairs which he accepts was monitored by RTE and approximately equal air time was given to the proponents of "Yes" and "No" votes and this coverage, to which no exception is taken represented 98% of the time expended by RTE on the coverage of the Referendum campaign.

12 During the course of the campaign, however, RTE transmitted ten political party broadcasts aggregating 30 minutes which all favoured a 'Yes' vote; two uncontested broadcasts from ad hoc campaign groups advocating a 'yes' vote aggregating 10 minutes and two uncontested broadcasts from ad hoc campaign groups advocating a 'no' vote aggregating 10 minutes. In addition, it transmitted in error one repeat broadcast made by an ad hoccampaign group of 2.5minutes.

13 Ignoring the broadcast made in error, the uncontested broadcasts in favour of a 'Yes'vote transmitted by RTE aggregated forty minutes and the uncontested broadcasts transmitted by RTE in favour of a 'No'vote aggregated ten minutes.

14 The total uncontested broadcasts transmitted during the Divorce Referendum campaign comprised somewhat in excess of 2% of the total coverage of the Divorce Referendum campaign.

15 On the 30th January, 1996, the Applicant made a complaint to the first named Respondent/Appellant, the BCC, in relation to the transmission by RTE of political party broadcasts during the Divorce Referendum campaign and in relation to the single re-transmission made in error by RTE.

16 The BCC considered the complaint to it by Mr. Coughlan under Section 1 8B( 1 )(b) of the Broadcasting Authority Act, 1960 as amended by the Broadcasting Authority ( Amendment) Act, 1976.

17 On the 19th March, 1997, the BCC made its decision on Mr. Coughlan's complaint in the following terms:

18 "Decision of the Commission:

19 Section 18 of the Broadcasting Authority Act 1960 as amended describes the manner in which RTE is required to report upon current affairs and matters of public importance. Section 18 of the 1960 Act has been amended by Section 3 of the Broadcasting

20 Authority ( Amendment) Act 1976, and so far as relevant reads as follows:

21 (1) Subject to Sub-Section (la) of this section, it shall be the duty of the Authority to ensure that:

• (a) All news broadcast by it is reported and presented in an objective manner and without any expression of the Authority 's own views.

• (b) The broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the Authority 's own views

  In her decision in the Anti-Divorce Campaign [case] entitled Patrick Kenny . v. Radio Telefís Éireann,delivered November 2 0th, 1995, Ms. Justice Laffoy stated that Sub-Section 2 of the Section

  18 of the Broadcasting Authority Act, 1960 states that "Nothing in this section shall prevent the Authority from transmitting political party broadcasts ". It is the opinion of the Commission that RTE did not breach its statutory obligations in broadcasting the

  various Party Political broadcasts. Section 18(2) allows RTE to broadcast party political broadcasts in the context of the referenda.

  The Commission dismiss this part of Mr. Coghlan's complaint. However, in broadcasting the second transmission of a broadcast by the Right to Remarry group (which was not a party political broadcast) on the 19th November RTE did breach its statutory obligations. They failed to counterbalance this broadcast by either giving a repeal facility to the opposing side or in some other way address the imbalance. The Commission uphold this part of the Complaint."

22 Being aggrieved by that portion of the decision of the BCC which dismissed the substantial complaint made by him, the Applicant applied for, and by order of the High Court made on the 17th June, 1997, was granted leave to seek by way of judicial review the reliefs set on the order of the High Court made on that date on the grounds set forth at (e) in the Statement of Grounds dated the 16th day of June, 1997.

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