Coughlan v. Broadcasting Complaints Commission [1998] IEHC 62; [2000] 3 IR 1 (24th April, 1998)

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1. 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.

2. 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.

3. The Applicant complained to the Broadcasting Complaints Commission that R.T.E. had infringed Section 18 of the Broadcasting Act, 1960 as 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.

4. 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:-

Mr. Coughlan stated that the R.T.E. Authority's statutory obligations - under Section 17 of the 1960 Broadcasting 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.

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.

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.

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.

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.

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 18.1.b of the Broadcasting Authority Act.

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.

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.

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.

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.

The matter of political party broadcasts was before the High Court just prior to the Referendum and in her judgment, Judge Laffoy stated that R.T.E., having regard to its other statutory obligations, was entitled to allocate time for political party broadcasts at the time of the Referendum without being required to have regard to the content of the views expressed in such broadcasts. R.T.E. had allocated equal airtime to the campaign groups on each side of the issue and, in her opinion, the plaintiff in the case had not established a cause of action under this heading of its complaint against R.T.E..

Regarding the allocation of broadcasts to groups other than political parties, R.T.E. decided to allocate such broadcasts taking account of its 1983 precedent and given that a substantial element of the campaign, on both sides of the argument, was being carried on by non-political grouping. Whether or not such a facility might have been accorded in 1987 and 1992 is a separate issue and does not relate to the question of the coverage of the 1995 Referendum.

The second issue was the unscheduled repeat transmission of a referendum broadcast on behalf of the Right to Re-marry Group. This second transmission was absolutely inadvertent and entirely accidental. To have attempted to take account of this incident by repeating a broadcast from the other side would have been to compound the problem. Most viewers will have recognised this for what it is - a simple error. R.T.E. rejected any suggestion, that this repeat broadcast was a deliberate act.

R.T.E. further stated that the referendum coverage was the subject of continuing review and attention through the agency of the Referendum Steering Group specifically established for that purpose. R.T.E. also stated that they allocated equal air time to the two campaign groups on the Pro-side and two campaign groups on the Anti-side of the referendum issue. R.T.E. was satisfied that it cannot reasonably be construed that its broadcasts represented any breach of its statutory obligations under the Broadcasting Authority Acts.

Section 18 of the Broadcasting Authority Act 1960 as amended describes the manner in which R.T.E. 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 Authority (Amendment) Act 1976, and so far as relevant reads as follows:-

(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 entitled Patrick Kenny -v- Radio Telefis Eireann , delivered November 20th, 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 R.T.E. did not breach its statutory obligations in broadcasting the various party political broadcasts. Section 18(2) allows R.T.E. to broadcast party political broadcasts in the context of the referenda.

However, in broadcasting the second transmission of a broadcast by the Right to Re-Marry group (which was not a party political broadcast) on the 19th November, R.T.E. did breach it's statutory obligations. They failed to counterbalance this broadcast by either giving a repeat facility to the opposing side or in some other way address the imbalance. The Commission uphold this part of the Complaint."

5. Mr. Coughlan seeks to have the decision of the Broadcasting Complaints Commission quashed on the basis that it wholly misapplied the relevant law in holding that there was no breach by R.T.E. of the provisions of the Broadcasting Acts where the breach alleged was an imbalance in Referendum coverage consequential upon allowing political parties to have party political broadcasts.

6. Mr. Coughlan seeks to have the Commission's decision quashed on two grounds. Firstly, he says that the Commission misinterpreted the statute and misdirected itself in law and thereby deprived itself of jurisdiction to adjudicate on Mr. Coughlan's complaint. Secondly, Mr. Coughlan complains of procedural irregularities under which he was given the run-around. If Mr. Coughlan succeeds on his first ground it does not seem to me that his second needs to be considered.

7. In the 1995 Divorce Referendum, five political parties were afforded party political broadcasts, being given two broadcasts each. Two groups supporting the amendment were given broadcasts as were two groups opposing the amendment. The effect of this was that 42.5 minutes of broadcasting time was accorded to the YES side of the argument as against 10 minutes for the NO side. Through an error R.T.E. accidentally rebroadcast a YES broadcast giving that side an extra 2.5 minutes which is included in the figure of 42.5 minutes hereinbefore given. Mr. Coughlan's complaint in respect of this incident was upheld by the Broadcasting Complaints Commission but his substantive complaint of imbalance was rejected. In these proceedings the rebroadcasting incident is accepted as an accident and nothing turns on it.

8. Referenda always have two sides, one contending for a YES vote and one contending for a NO vote. It is accepted by the parties that R.T.E. is free in relation to any referendum to choose not to broadcast any Party Political broadcasts or uncontested referendum broadcasts. It appears to be accepted by the parties that notwithstanding the fact that Section 18 (2) of the Broadcasting Authority Act, 1960 refers only to " Party Political Broadcasts " similar uncontested partisan broadcast facilities may be afforded to non party groups. It also appears to be accepted by Mr. Coughlan that providing there is equality as between the YES and NO sides broadcasts by political parties may form part of the equation.

9. In relation to the affording of such broadcasts and broadcast time Mr. Coughlan contends that the starting point must be affording equality to each side of the argument namely those contending for a YES vote and those contending for a NO vote. Mr. Coughlan does not contend for absolute equality. He does not say that the time afforded to each side must be equal to the second or to the fraction thereof. In this case, of course, the disparity is clear being 42.5 minutes verses 10 minutes. He also accepts that television broadcasting might properly count for more than radio broadcasting and that a prime time slot might properly count for more than a slot at a time when viewing figures are lower. In relation to matters of this kind I would refer to my judgment in Brandon Book Publishers Limited -v- Radio Telefis Eireann 1993 I.L.R.M. page 806, the tenor of which was that in relation to broadcasting decisions, R.T.E. has greater expertise than the High Court and should not be lightly interfered with.

10. Mr. Coughlan accepts that these grounds for disparity may arise but says the starting point should be equality. He also accepts that other unforeseen constitutional countervailing forces might arise. No such countervailing forces are present in the instant case.

11. Mr. Coughlan challenges the role afforded by R.T.E. to the political parties in relation to referendum uncontested partisan broadcasts. In Constitutional Referenda the citizens are legislating directly. Giving a primacy to the political parties in relation to partisan uncontested broadcasts is appropriate to candidate elections where the candidates are being elected in a party interest in a representative capacity but is inappropriate Mr. Coughlan contends were the citizen is legislating directly.

"Every proposal of an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the People in accordance with the law for the time being in force relating to the Referendum."

"It was the People who, in the words of the Preamble to the Constitution, adopted, enacted and gave to themselves, the Constitution, and under the terms of the said Constitution, it is the prerogative of the People to amend any provision thereof by way of variation addition or repeal in the manner provided by Article 46 of the Constitution.

Article 46 of the Constitution provided for the initiation in Dáil Éireann of every proposal for an amendment of the Constitution and for its submission, after it has been passed by both Houses of the Oireachtas, to the decision of the People 'in accordance with the law for the time being in force in relation to the Referendum.'

13. So far as the instant case is concerned the political parties are in the same position as the Government in that they are not assigned by either the Constitution or the Laws for the time being in force any role in the submission of the proposal for the decision of the People.

Having regarding to the importance of the Constitution as the fundamental law of the State and the crucial role of the People in the adoption and enactment thereof, any amendment thereof must be in accordance with the constitutional process and no interference with that process can be permitted because, as stated by Walsh J. in Crotty -v- An Taoiseach, 1987 IR 713, 'it is the People themselves who are the guardians of the Constitution.'

As the guardians of the Constitution and in taking a direct role in government either by amending the Constitution or by refusing to amend, the People, by virtue of the democratic nature of the State enshrined in the Constitution, are entitled to be permitted to reach their decision free from unauthorised interference by any of the organs of State that they, the People, have created by the enactment of the Constitution.

The constitutional process to be followed in the amendment of the Constitution involves not only compliance with the provisions of Articles 46 and 47 of the Constitution and the terms of the Referendum Act, 1994, but also that regard be had for the constitutional rights of the citizens and the adoption of fair procedures.

The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a 'YES' vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State".

15. R.T.E., as the National Broadcasting Service, is subject to the Constitution and also to Section 17(b) of the Broadcasting Authority Act, 1960 as amended which requires it to uphold the democratic values enshrined in the Constitution. In my view a package of uncontested or partisan broadcasts by the National Broadcasting Service weighted on one side of the argument is an interference with the referendum process of a kind contemplated by Hamilton C.J. as undemocratic and is a constitutionally unfair procedure.

"Has the executive observed fair procedures in submitting the amendment to the decision of the People? In my view it has not. The Government has not held the scales equally between those who support and those who oppose the amendment. It has thrown its weight behind those who support it. The Government's intention, as indicated very clearly in a letter dated the 20th October, 1995, written on the direction of the Minister for Equality and Law Reform to a public relations firm engaged by the Department, is to spend a sum of over £400,000 in inserting advertisements in the national press and having leaflets printed, the object of which is to advocate a 'YES' vote. If this plan were implemented it would give a very considerable advantage to those who support the amendment as against those who oppose it. The Government would be acting unfairly in the manner in which it was submitting the amendment to the decision of the People".

This recognises the equality of citizens. It also requires the organs of government in the execution of their powers to have due regard to the right of equality. The citizen has the right to be treated equally. This includes the concept that in the democratic process, including referenda, neither side of an issue will be favoured, treated unequally, by the government.

While there is no barrier created by the Government to People voting 'NO' in the upcoming referendum, that does not take into account the importance of media and communications in society today. To fund one side of a campaign in a referendum so as to enable media coverage and communications to promote a specific outcome, is to treat unequally those who believe to the contrary whether they be a majority or a minority. For the Government to fund one side of a campaign is to treat unequally those citizens who hold the opposite view. It is irrelevant what view the Government takes. To fund one side in a national referendum campaign, even if only to partially so fund, is to breach the spirit of equality."

21. I am satisfied that R.T.E.'s said approach has resulted in inequality amounting to unconstitutional unfairness which would not have arisen had their starting point been to afford equality to each side of the argument to which there could only be a YES and NO answer.

22. I will grant the Applicant a declaration 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. For the reasons already mentioned in relation to my reference to my judgment in the Brandon Books case, I want my judgment to be as narrowly based as possible. I will therefore not give any further relief against R.T.E.

23. Leaving aside the accidental repeat broadcast which is no longer in issue the Broadcasting Complaints Commission accepted R.T.E.'s submissions to them and thereby fell into legal error which went beyond error within jurisdiction. In basing their adjudication on a fundamental misapplication of the Constitution and the laws they thereby exceeded their jurisdiction. The Applicant is entitled to an Order of Certiorari quashing their adjudication. Mr. McDowell, S.C. has indicated that he does not seek to have the matter remitted to the Broadcasting Complaints Commission in the parlance of the District Court to enter continuances. There will be no further Order.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Coughlan v. Broadcasting Complaints Commission [1998] IEHC 62; [2000] 3 IR 1 (24th April, 1998) URL: http://www.bailii.org/ie/cases/IEHC/1998/62.html Cite as: [1998] IEHC 62, [2000] 3 IR 1

High Court of Ireland Decisions

Coughlan v. Broadcasting Complaints Commission [1998] IEHC 62; [2000] 3 IR 1 (24th April, 1998)