O'Toole v Rte
| Jurisdiction | Ireland |
| Judge | O'Hanlon J., |
| Judgment Date | 31 July 1992 |
| Neutral Citation | 1992 WJSC-HC 3997 |
| Docket Number | Record No. 123JR/1991 |
| Court | High Court |
| Date | 31 July 1992 |
BETWEEN
AND
1992 WJSC-HC 3997
THE HIGH COURT
By Order of Mr. Justice Carney made the 15th May, 1991, the Applicant was given leave to apply for Judicial Review for the purpose of seeking certain Declaratory Orders against Radio Telefis Eireann declaring that -
1. The provisions of the Broadcasting Authority Act, 1960(Section 31) Orders 1990 and 1991 did not and do not forbid the broadcast of any material emanatory from or spoken by a peson solely on the grounds that he is a member of the Sinn Fein party.
2. Any Order, circular, rule or direction of the Respondent which direct that the authority will not broadcast any interview with or material emanatory from or spoken by a peson who is a member of the Sinn Fein party (and soley on the basis of that person's membership of the Sinn Fein party) is ultra vires the Broadcasting Authority Act 1960(Section 31) Orders 1990 and 1991 and in breach of the Broadcasting Acts 1961 and 1976.
3. The decision of the Respondent not to broadcast interviews recorded by them with the Applicant in July and August 1990 solely because the Applicant was a member of the Sinn Fein party and that any such broadcast would infringe the law was bad in law, erroneous, based on a misconstruction of the law and null and void.
The Applicant acknowledges that he is and has at all material times been a member of the Sinn Fein party. In his Affidavit grounding the present application he states that in June, 1991, he was an employee at the Gateaux Factory in Finglas when a strike occurred.
The Applicant at that time was a member of the National Executive of the Bakery Union, and was designated Chairman of the Strike Committee by his fellow-workers. The dispute attracted considerable media attention and he was interviewed on six occasions by employees of Radio Telefis Eireann in his capacity as a Gateaux worker and Chairman and Spokesman of the Strike Committee.
One such interview was broadcast on or about the 4th or 11th August, 1990, but none of the other interviews with the Applicant was broadcast. On enquiry from Radio Telefis Eireann personnel he was informed that the decision not to use any of the other interviews was based on the fact that he was a member of Sinn Fein. He communicated with Mr. Joseph Mulholland, then Head of News, about the matter and received a reply dated 7th November, 1990, which read as follows -
I refer to your letter dated October 30th, 1990, in which you raise the question about an interview which was done with you and not broadcast. As you are probably aware the Broadcasting Authority Act 1960(Section 31) Order 1990 was given by the Minister for Communications on the 11th January, 1990 and is to remain in force until the 19th January, 1991. RTE is explicitly obliged to comply with this Order, does so and will continue to do so whilst it is in force. It follows, therefore, that any person who is a member of Sinn Fein or any other organisation included in the current Order will not be permitted to broadcast on any RTE programme service during the term of such Order.
I trust that this clarifies the matter which you raised in your letter.
In a further letter from Mr. Mulholland dated the 6th December, 1990, it was stated that the interview with the Applicant which had, in fact, been broadcast in the month of August, 1990, would not have been broadcast had it been known to RTE at the time of the Applicant's association with the organisation referred to in the said Order.
The Statutory Instrument referred to in Mr. Mulholland's letters was S.I. No. 11 of 1990 made by the Minister for Communications in exercise of powers conferred by Section 31(1) (inserted by Section 16 of the Broadcasting Authority (Amendment) Act, 1976) of the Broadcasting Authority Act, 1960. It was to remain in force until the 19th January, 1991, but was continued in operation for a further year to the 19th January, 1992, by S.I. No. 6 of 1991, and has been further continued in operation since that date.
The relevant provisions of the new Section 31(1) of the Broadcasting Authority Act, 1960, (as inserted by Section 16 of the amending Act of 1976) read as follows:
"(1) Where the Minister is of the opinion that the broadcasting of a particular matter or any matter of a particular class would be likely to promote, or incite to, crime or would tend to undermine the authority of the State, he may by order direct the Authority to refrain from broadcasting the matter or any matter of the particular class, and the Authority shall comply with the order."
The relevant provisions of the 1990 Order made under that section read as follows:
"2. Radio Telefis Eireann is hereby directed to refrain from broadcasting any matter which is"
(1) an interview or report of an interview, with a spokesman or with spokesmen for any one or more of the following organisations, namely,
(a) ................
(2) a broadcast, whether purporting to be a political party broadcast or not, made by, or on behalf of, or advocating, offering or inviting support for the organisation styling itself Sinn Fein or the organisation styling itself Republican Sinn Fein.
(3) a broadcast by any person or persons representing, or purporting to represent, the organisation styling itself Sinn Fein or the organisation styling itself Republican Sinn Fein."
The provisions of Section 31 of the Broadcasting Authority Act, 1960, as amended by Section 16 of the Broadcasting Authority (Amendment) Act, 1976, with particular reference to broadcasts on the part of members of Sinn Fein, were considered in great detail in the case of The State (Lynch) v. Cooney, (1982) IR 337 and the Applicant's claim to relief in the present case must be considered in the light of the Judgments delivered by the Supreme Court in that case.
No member of the public has an automatic right to be heard on radio or television and a general power has to be left in the hands of the Broadcasting Authority to regulate programmes and determine the content thereof, and those responsible for the day-to-day running of the service must also be allowed scope to carry out their functions in a professional manner and to the best of their ability.
Neither the Broadcasting Authority nor the staff employed by them, however, are completely free agents in the matter. Having regard to the dominant position occupied by the Broadcasting Authority in providing a national television and sound broadcasting service, its powers are circumscribed in certain respects by the provisions of the Broadcasting Authority Acts and also the provisions of the Constitution, with particular reference to Article 40.6.1 (i).
An example of the constraints imposed on the Authority as to the content of programmes is found in Section 18(1) of the Principal Act of 1960 as amended by Section 3 of the amending Act of 1976 which substitutes three new subsections for Section 18(1), and which imposes a duty on the Authority to ensure that, subject to subsection (1A) of that section -
(a) all news broadcast by it is reported and presented in an objective and...
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