Kivlehan v Raidió Teilifís Éireann

CourtHigh Court
JudgeMs. Justice Baker
Judgment Date15 February 2016
Neutral Citation[2016] IEHC 88
Docket Number[2016 No. 78 JR],[2016 No. 78 J.R.]
Date15 February 2016

[2016] IEHC 88



Baker J.

[2016 No. 78 J.R.]


Representation of the People – Information & Broadcasting – The Broadcasting Act, 2009 – Constitutional law – Proportionality – Right to receive information

Facts: Following the decision of the respondent, a public service broadcaster not to invite the leader of a political party to participate in a live television debate, the applicant being a member of that party had filed the present application seeking a declaration that the criteria adopted by the respondent in inviting selected leaders of the major political parties for participating in that debate was contrary to constitutional fairness and breach of statutory rights under The Broadcasting Act, 2009. The applicant alleged that the absence of representation of the leader from the applicant's party would be prejudicial to the interests of the party as the approach adopted by the respondent had the capability of affecting the outcome of the forthcoming elections.

Ms. Justice Baker refused to grant the desired relief to the applicant. The Court held that the requirement by the respondent that there should be some level of current Dail representation of the political party for being able to participate in a live television debate was fair and reasonable. The Court opined that the decision of the respondent was proportionate to the aim it wanted to achieve, which was to present an informative and educational debate while upholding the principles of objectivity and impartiality. The Court held that the broadcasters were given liberty to devise methods to provide open, fair and transparent information to all the interested parties. The Court observed that the broadcasters were entrusted the responsibility to produce an informative as well as interesting content so that it could attract viewership and therefore, the adoption of certain criteria to provide brief, educative and meaningful content was in line with the principles of freedom of expression enshrined in the Constitution, specifically, the right to receive information.

JUDGMENT of Ms. Justice Baker delivered on the 15th day of February, 2016

The broadcasting and print media play a vital role in political debate leading up to an election, and the role of the media in that context is central to the democratic process. It acts as a platform by which those running for election may inform the electorate of their policies, and also plays a direct role in covering candidates, parties and political issues in the form of news programmes, current affairs commentary, and debates between candidates and their representatives.


Radió Teilifís Éireann (‘RTE’) is a public service broadcaster and it is mandated by statute to inform and educate the public in matters of news and current affairs, and in doing so to present and report in an objective and impartial manner and without expression of the broadcaster's own views. All broadcasters in the State are so mandated but the particular role of RTE as a public service broadcaster is identified in s. 114 of the Broadcasting Act, 2009 which expressly mandates that the station shall uphold the democratic values enshrined in the Constitution. It is the democratic right of the electorate to elect the Oireachtas, and the right of freedom of expression which imports a right to receive information and views, which forms the backdrop of these proceedings.


The applicant is a member of the Green Party/An Comhaontas Glas (hereinafter, ‘The Green Party’) and a trustee and member of the executive committee of that party. He formerly served as a Green Party local government representative. He is a candidate in the February, 2016 general election. He has standing as a citizen, a member of the Green Party, and as a candidate for that party to bring these proceedings.


These proceedings arise out of the decision made by RTE not to invite the leader of the Green Party to participate in a live television debate intended to be broadcast this evening between the leaders of seven political parties contesting the general election.


The applicant seeks a declaration that criteria operated by RTE, and in particular the requirement that a party have at least three TDs in the outgoing Dail, before the leader of that party be invited to participate in the leaders debates is contrary to constitutional fairness, infringes the right of the applicant as a citizen enshrined under Article 5 and/or Article 40.1 and/or 40.3 and/or 40.6.1 of the Constitution, and in breach of its statutory obligations in ss. 39, 42 and 114 of the Broadcasting Act, 2009.


The application for judicial review was brought by way of a so-called ‘telescoped hearing’ and the respondent has filed a notice of opposition and was represented at the hearing.

The live TV debates since 1982

The 2016, general election is due to be held on the 26th February, 2016. In anticipation of an election RTE has been considering the means by which it will deliver news and current affairs coverage of the campaign. It has in place an Election and Referendum Steering Group, a standing group which fixes policies and criteria with regard to radio and T.V. coverage. The Steering Group commenced active consideration of the nature and extent of coverage in respect of the 2016 General Election in January, 2015, and part of its consideration was the extent to which criteria and policies applied by RTE during the general election of 2011 required to be modified in the light of what is described as a changing political landscape.


RTE broadcasts a number of categories of television and radio programmes during the election, including news and current affairs programmes and party political broadcasts. No complaint is made by the applicant with regard to the criteria and principles which guide the respondent in its overall election coverage.


Since 1982, RTE has broadcast a live TV debate between the leaders of the political parties. Between 1982 and 1992, the debates were between the leaders of the outgoing governments and the leaders of the opposition, and in those ten years the leaders of Fianna Fáil and Fine Gael were the two featured leaders in the relevant debates. However the increased fragmentation of political parties and the fact that government was, or could be, made up of a coalition or group of parties had the effect that from 1992, RTE scheduled two live TV debates between party leaders, in 1997 one between the leaders of Fine Gael and Fianna Fáil, and the second between Labour and the Progressive Democrats, and in 2007, one six-way TV leader debate, and two two-way debates were broadcast. The leader of the Green Party participated in the larger format debate.


During the general election of 2011 the respondent scheduled two live TV debates between the leaders, the first being a five-way debate and the second a three-way debate. The leader of the Green Party participated in the debate with Fine Gael, Fianna Fáil, Labour and Sinn Féin.


It is proposed for the purposes of the Election in February, 2016 that two live leaders debates will be held, one with seven participating leaders, and the other with four.


As is apparent there is no fixed format for the leaders debate, and the format and number of parties participating in the debates has varied from one election to the other, as have the number of debates broadcast.


The two television debates which are to be held for the purposes as part of the coverage of the February 2016 election are one debate which will feature the leaders of the four largest political parties, Fine Gael, Fianna Fail, the Labour Party and Sinn Fein and another debate with the leaders of those four parties plus the leaders of the Anti-Austerity Alliance/People Before Profit, the Social Democrats and Renua.


The applicant argues that the leaders debate is of considerable influence. His evidence points to considerable viewer interest in the debates, and in 2011 the leaders debate was the fourth most watched programme on Irish TV, and attracted 964,000 viewers, or 1.4 million if one considers persons who watched some or all of the debate. It is less clear what, if any, impact performance in the debate has on electoral choice, and no Green Party candidates were elected to the outgoing Dail notwithstanding participation by the leader of the Party in the live debate in 2011. The applicant argues that the leaders debate is sui generis because of its audience reach, and media coverage of the political issues engaged in the campaign.


The applicant argues that given the high profile and importance of the leaders debate, the impression would be given to the electorate that should Eamonn Ryan, the leader of the Green Party not be permitted to participate in one of the debates, that the public could form a perception that the Green Party is not a political party of any importance or any weight as a national party.

The criteria for participation in the debate

In a letter of 15th January, 2016, RTE set out the criteria it applies to participation in the leaders debate as follows:-

a. A party whose leader will be entitled to participate in the debate must have at least three sitting members of the outgoing Dáil;

b. The party must be a registered Dáil party;

c. The party must be standing candidates in the general election of 2016.


It is the first of these three criteria that is argued by the applicant as being in breach of the statutory obligations of the respondent as a public broadcaster. It is argued that the criteria are discriminatory, insufficiently objective, impartial, unfair and inclusive to satisfy the statutory obligation on RTE, or the Constitutional recognition of the democratic principles.

Arguments as to relevant factors

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