Madigan v Raidió Teilifís Éireann

• Jurisdiction: Ireland
• Judge: Mr. Justice Kinlen
• Judgment Date: 31 May 1994
• Neutral Citation: 1994 WJSC-HC 3460
• Court: High Court
• Docket Number: No. 185 J.R./1994
• Date: 31 May 1994

1994 WJSC-HC 3460

THE HIGH COURT

No. 185 J.R./1994

MADIGAN v. RTE

BETWEEN

PADDY MADIGAN

APPLICANT

AND

RADIO TELEFIS EIREANN

RESPONDENT

Citations:

BROADCASTING AUTHORITY ACT 1960 S18

BROADCASTING AUTHORITY ACT 1960 S18(1)

BROADCASTING AUTHORITY (AMDT) ACT 1976 S3

BROADCASTING AUTHORITY ACT 1960 S18(2)

LYNCH, STATE V COONEY 1982 IR 337

MCCANN V RTE UNREP CARNEY 5.10.92 1993/8/2413

CUSSEN V BRENNAN 1981 IR 181

DOYLE V AN TAOISEACH 1986 ILRM 693

LOFTUS V AG 1979 IR 342

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

GARDA REPRESENTATIVE ASSOCIATION V IRELAND 1994 ILRM 81

MCKENNA V AN TAOISEACH UNREP COSTELLO 8.6.92 1992/8/2310

MCCANN V AN TAOISEACH UNREP CARNEY 5.10.92 1993/8/2413

BRANDON PUBLISHERS V RTE 1993 ILRM 26

SUPPERSTONE & GOUDIE ON JUDICIAL REVIEW 1992 110

PICTUREHOUSES LTD V WEDNESBURY CORPORATION 1948 1 KB 223

CHIEF CONSTABLE OF NORTH WALES POLICE, EX PARTE MS V EVANS 1982 1 WLR 1115

Synopsis:

BROADCASTS

Broadcasting authority

Duties - Elections - Candidates - Candidatures - Promotion - Opportunities - Equal treatment not required - (1994/185 JR - Kinlen J. - 31/5/94)

|Madigan v. Radio Telef!s ireann|

ELECTIONS

European community

Parliament - Candidate - Candidature - Promotion - National broadcasting services - Access - National broadcasting authority - Whether authority gave candidate reasonable opportunity to promote his candidature - Broadcasting Authority Act, 1960, s. 18 - Broadcasting Authority (Amendment) Act, 1976, s. 3 - (1994/185 JR - Kinlen J. - 31/5/94)

|Madigan v. Radio Telefis Eireann|

1 Judgment of Mr. Justice Kinlendelivered the31st day of May 1994.

2 The Applicant is a solicitor and a councillor. He is an independent candidate in the forthcoming European Parliament Elections for the constituency of County and City of Dublin. He applied ex-parte on the 26th May 1994 for leave to apply for Orders of Declaration, Injunction and Mandamus by way of judicial review. The relevant law is laid down initially in Section 18 of the Broadcasting Authority Act, 1960.

3 Subsection (1) of that section is replaced by the substitution of sections set out in Section 3 of the Broadcasting Authority (Amendment) Act, 1976. The relevant portion of the substituted subsection reads as follows:-

4 2 "(1) Subject to subsection (1)(A) of this section, it shall be the duty of the authority to ensure that:-

5 (a) All news broadcasts by it is reported and presented in an objective and impartial manner and without any expression of theauthority's own views.

6 (b) 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 manner and without any expression of the authority's own views."

7 It is this subparagraph (b) with which the Court is concerned. Mr. O'Driscoll argues that it contains three essential features. Firstly, it must be fair to all interests concerned. Secondly, it must be objective. Thirdly, it must be impartial. Section 18 subsection (2) of the 1960 Actreads:-

"(2) Nothing in this section shall prevent the authority from transmitting political party broadcasts."

8 In his Affidavit the Applicant says he is not a member of any registered political party in the State and that he is contesting the election as an independent candidate. He says that the Respondent its servants or agents broadcast numerous and various programmes everyday which cover current affairs, matters of public debate and recently special ones that contain many items and features in relation to the forthcoming election. Several of the broadcasts have included the presence in the studios of nominated candidatesin the constituency of Dublin. These include Morning Ireland, Radio Telefis Eireann News, Questions and Answers, Cursai, The Late Late Show, Prime Time, Farrell and the Pat Kenny Radio Show. The candidates for the constituency of Dublin who have appeared on these programmes are Ms. Olive Braiden, Ms. Mary Banotti, Mr. Pat Rabbitte, Ms. Orla Guerin, Mr. Stephen O'Byrnes, Ms. Bernie Malone, Mr. John Stafford and Mr. Jim Mitchell. He says he was invited to attend in the audience for one of these programmes entitled "Prime Time" which was broadcast on RTE on the night of the 25th May, 1994. The format of the programme had four candidates for the Dublin constituency seated at a table at the front of the studio who answered questions put to them by members of the audience. These candidates were Ms. Braiden, Ms.Banotti, Ms. Guerin and Mr. Rabbitte. The broadcast of the show was mainly taken up with these people's answers. He says that he was broadcast answering one of the questions raised by a member of the audience but was given an opportunity to speak that lasted no more than two minutes in total. He says that the coverage of the four candidates mentioned was substantially greater. He says that there are a number of candidates (he names 13 including himself) who did not contest the previous elections. He claims that some of these candidates are gaining the benefit of far more exposure and coverage and debate from the Respondent then has been available to himself. He also says in his Affidavit that the Respondent has not applied its policy of relying on the results of the previous election in a fair and proper and impartial manner as it has been made available to some of the current candidates who did not contest thepreviouselection. Broadcast time greatly in excess of that time was promised to be made available to him. He sent a letter dated the 23rd of May, 1994 to the Director General of Radio Telefis Eireann requesting information as to the policy of RTE in relation to air time, candidates and independents in particular. By letter of the 24th of May, 1994 Mr. Tony Fahy, Secretary of the Elections Steering Group replied on behalf of the Director General, Chairman of the Elections Steering Group. The letter states, inter alia:-

"You raised a question about RTE's coverage of the independent candidate in the forthcoming European Election and referred to your own situation. The broad policy stance adopted by RTE in its approach to coverage of the European Elections since the 1980's is to take account of the support gained by the various political parties at the last election. We are, of course, also aware of and take into consideration independent candidates who stand in these elections and allow for their inclusion in the schedule of programmes over the course of the campaign."

9 In your own case I believe that you have been invited to participate from the audience in the Prime Time Election '94 debate tomorrow evening, Wednesday the 25th of May. Further exposure will be afforded on television in the Dublin constituency profile programme to be transmitted on RTE 1 on Tuesday the 7th of June.

10 As I am anxious to get this reply to you as soon as possible I have not been able at short notice to ascertain the precise plans of our radio colleagues but I can assure you that they will follow the broad policy principles outlined above."

11 That was the broad statement of policy that was available to the Applicant when he made his application. This letter is further expanded in paragraph 4 of the Affidavit of the said Mr. Tony Fahy. Itreads:-

"To assist RTE in ensuring that its broadcasts are fair to all concerned a practice has been adopted when determining the allocation of political party broadcast time to registered political parties. On examining the electoral results for the last preceding general election or the last European election whichever is the most recent and to determine the extent of support that each political party had after that election. The Steering Group also consults these results when it is considering in a general way the structure of panels of participants in television and radio programmes, while at the same time being aware of the necessity and duty to afford coverage to smaller parties and independent candidates. From time to time significant changes can take place since the most recent general election and all such matters are taken intoaccount."

12 Mr. O'Driscoll has argued very forcibly that thesection deals with the present time, therefore, it is wrong of RTE to use the last election. It was wrong to look at the results in the past. Parties change, candidates change, situations change, views change.

13 The results of the last election is an irrelevant consideration and is extraneous and subjective. They should abolish this broad policy. The Court asked him what exactly he wanted. It stated that he wanted an Order to strike down the broad policy of RTE as contrary to Section 18 of the 1960 Act as amended. Both...