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Coughlan v. Broadcasting Complaints Commission [1998] IEHC 62; [2000] 3 IR 1 (24th April, 1998)
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[2000] 3 IR 1,
[1998] IEHC 62
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Coughlan v. Broadcasting Complaints Commission [1998] IEHC 62; [2000] 3 IR 1 (24th April, 1998)
THE
HIGH COURT
JUDICIAL
REVIEW
No.
1997 209 J.R.
IN
THE MATTER OF THE BROADCASTING AUTHORITY ACTS
BETWEEN
ANTHONY
COUGHLAN
APPLICANT
AND
THE
BROADCASTING COMPLAINTS COMMISSION AND
RADIO
TELEFIS EIREANN
RESPONDENTS
AND
THE
ATTORNEY GENERAL
NOTICE
PARTY
Judgment
delivered the 24th day of April, 1998 by Carney J.
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:-
"RE: COMPLAINT
MADE BY MR. ANTHONY COUGHLAN
SUMMARY
OF COMPLAINT: REGARDING "UNCONTESTED PARTY POLITICAL BROADCASTS DURING THE
DIVORCE REFERENDUM" AIRED ON R.T.E. ON,
(SIC)
.
Mr.
Coughlan complained about R.T.E.'s policy of allocating uncontested radio and
television broadcasts to the Oireachtas political parties in the course of the
divorce referendum, and constitutional referenda in general.
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 also stated that the Authority's policy in the divorce referendum had
the effect of permitting a total of 42.5 minutes of uncontested broadcasting
time to the YES side and 10 minutes to the No's on dates 17th to 24th November.
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.
STATION'S
RESPONSE
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..
It
is also relevant to note that political party broadcasts represented somewhat
in excess of 2% of the total amount of time dedicated to coverage of the issues
involved in the Referendum.
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.
DECISION
OF THE COMMISSION
'(1) Subject
to Sub-Section (1a) 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 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.
The
Commission dismiss this part of Mr. Coughlan's complaint.
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.
Article
46
s.2 of the Constitution of Ireland, 1937, provides:-
"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."
12. The
referendum process was considered in the light of the provisions of the
Constitution in
McKenna
-v- An Taoiseach
(No.2) 1995 I.R. page 10. At page 37 Hamilton C.J. said:-
"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.'
This
is the constitutional process by which the Constitution may be amended and
neither the Constitution nor the law for the time being in force in relation to
the referendum gives to the Government any role in the submission of the
proposal for the decision of the People".
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.
14. At
page 41, Hamilton C.J. went on to say:-
"The
constitutional process for the amendment of the Constitution has been set forth
in detail earlier in this judgment as being governed by the provisions of
Articles 46 and 47 of the Constitution and the terms of the Referendum Act, 1994.
As
stated by McCarthy J. in
Crotty
-v- An Taoiseach
,
1987 IR 713, the People in having a referendum 'are taking a direct role in
government either by amending the Constitution or refusing to amend it.'
The
role of the People in amending the Constitution cannot be over-emphasised. It
is solely their prerogative to amend any provision thereof by way of variation,
addition or repeal or to refuse to amend. The decision is theirs and theirs
alone.
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
Bill containing the proposal to amend the Constitution was initiated in
Dáil Éireann, passed by both Houses of the Oireachtas and then
submitted for the decision of the People.
Once
the Bill has been submitted for the decision of the People, the People were and
are entitled to reach their decision in a free and democratic manner.
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.
16. Blayney
J. dealt with the holding of the scales unequally and the throwing of weight
behind one side of the argument. At page 50 he said:-
"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".
17. The
imbalance in time allocated to each side of the argument in the instant case
must lead to the conclusion that the scales were not held equally and that
R.T.E.'s weight was thrown behind one side of the argument.
18. Denham
J. said at page 52:-
"Right
of Equality
'All
citizens shall, as human persons, be held equal before the law.'
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."
19. The
principle enunciated by Denham J. applies equally to partisan broadcasting in
respect of which no charge is made.
20. From
the Affidavit of Mr. Tony Fahy filed on behalf of R.T.E. I am satisfied:-
(a) that
R.T.E. did not appreciate sufficiently that constitutional referenda involve
direct legislation by the People outside the normal representative political
process;
(b) that
R.T.E. did not sufficiently appreciate that from the stand point of the
Constitution and the laws, political parties are not de jure involved in the
referendum process;
(c) that
notwithstanding the foregoing R.T.E.'s guidelines in relation to uncontested
partisan referendum broadcasts refer to them as "party political broadcasts";
and
(d) that
R.T.E.'s starting point in relation to the allocation of such broadcasts is and
always has been the political parties.
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.
© 1998 Irish High Court