High Court of Ireland Decisions

1. The Applicant is a member of an organisation called "Youth Defence", an unincorporated body with the purpose, he says, "of educating the Irish people about the evils of abortion". In or about the month of June 1996 Youth Defence began to organise an information project entitled "project truth", which involved, among other things, devising a 30 second radio slot for broadcast.

2. In these proceedings the Applicant seeks to quash a decision of the first Respondent made under Section 10(3) of the Radio and Television Act, 1988, prohibiting several licensed broadcasters from broadcasting an advertisement submitted by Youth Defence relating to abortion which they were otherwise prepared to broadcast at the Applicant's request.

3. The Applicant claims, in the alternative, that if Section 10(3) of the Act of 1988 authorises the prohibition of the advertisement, then it is an unconstitutional infringement on the Applicant's freedom of expression.

4. As part of "project truth" Youth Defence devised the following advertisement to be broadcast by a number of licensed radio broadcasters.

5. A copy of the above advertisement was faxed to a number of local radio stations during the first week in August, 1996 by the Applicant and a number of these agreed to broadcast the advertisement including Galway Bay FM, Radio Limerick 95 FM, Cork 96 FM, Tipp FM, Clare FM, and Tipperary Mid-west. Appropriate fees were transmitted by cheque together with the broadcast cassette tape. The advertisements were due to be broadcast over the two week period beginning on the 12th August, 1996.

6. On the 7th August, 1996 the Applicant received a phone call from Margaret Jennings from Mid and Northwest Radio informing him that the decision to broadcast had been rescinded as a result of a letter received from the first Respondent.

7. This letter, dated the 7th August, 1996 includes the following paragraphs:-

8. The regulation of private broadcasting is achieved under the Radio and Television Act, 1988 which sets up a framework for licensing private broadcasters and also establishes an independent radio and television commission namely the second Respondent. Authorised broadcasters hold a licence from the Minister for Communications and enter into a contract with the first Respondent in relation to the service they provide.

9. The word "political" is not defined in the Act. The phrase "political party" occurs in Section 9(2) as follows:-

10. By Order dated the 4th November, 1996 Geoghegan J. gave the Applicant leave to apply for an Order of Certiorari quashing the said decision of the first named Respondent or alternatively, for declarations that Section 10(3) of the Radio and Television Act, 1988 is invalid having regard to Article 40.6.1; Article 40.3.1; or Article 40.3.3 of the Constitution.

11. At the commencement of the hearing of this action Counsel for the Applicant sought leave to expand the grounds upon which the validity of the first Respondent's decision could be challenged to include a claim that the decision demonstrates as a matter of fact that the first Respondent its servants or agents was biased against the Applicant's organisation and/or took into consideration irrelevant matters and matters which were ultra vires when it made the said decision.

12. This application was opposed by both Respondents who claimed that they were not ready to deal with the application and that it expanded the scope of the proceedings as theretofore pleaded. In the exercise of my discretion I refused leave to the Applicant to expand the proceedings and the case went ahead in accordance with the order of Geoghegan J. of the 4th November, 1996.

13. The Applicant was cross-examined on his Affidavit by Mr Coughlan on behalf of the first Respondent. I propose in this judgment merely to refer to some of the salient features of his evidence without attempting a comprehensive summary. A partial transcript of evidence is available.

14. The Applicant said he was a committee member of Youth Defence which is a single issue organisation against abortion. It exists to inform the public concerning issues in relation to abortion and exists to ensure that the country continues to protect the unborn child. Mr Colgan said of Youth Defence "Our purpose is to inform the public about the horror of abortion." They had lobbied politicians in the past to come and state that they wished to enshrine a protected right for the unborn child. They sought a referendum and it was a Youth Defence policy to have a referendum and if such came into being it would have a position in relation to that referendum. They considered that Michael Noonan when Minister for Health had a policy of legalising abortion and lobbied against him. The previous Government was trying to push abortion onto the country. It was Government policy to railroad abortion into the country. When asked whether it was Youth Defence policy to change that policy, the Applicant replied "No." Their policy was to inform the public and protect it against the pro-abortion groups. He did not believe this was an attempt to influence Government policy. The Applicant repeated on a number of occasions that the sole aim of Youth Defence was to educate the people in relation to the horror of abortion. The advertisements were to be broadcast because Irish women have a legal right to go to England for abortion. The advertisements were to persuade such women not to go to England. The advertisement was not seeking to bring about a referendum: it was seeking to persuade young women not to go to England. He accepted that unfortunately the law needed to be changed.

15. Mr Brian Mullane, Principal Officer in the Department of Arts, Culture and the Gaeltacht was cross-examined on his Affidavit. In his Affidavit he had emphasised the power of broadcast advertising and the consequent need to regulate it. Broadcast advertising directed towards a political end enabled an advertiser to purchase unchallenged views on an issue without critical assessment or a requirement for impartiality which, if allowed, would confer the balance of advantage upon the political movement with the largest marketing budget. He was challenged in cross-examination on his means of knowledge in relation to his Affidavit and his position in general was that the contents of his Affidavit came from his own general background information.

16. Mr Michael O'Keeffe, Chief Executive of the first Respondent was cross-examined on his Affidavit. He was the individual of the first Respondent who took the impugned decision. He did not contact Mr Colgan. He took into account his general knowledge about "Youth Defence" itself derived from the media over the years. He said that a paid advertisement on independent local radio is an inappropriate medium for the discussion and debate of abortion issues as this would enable certain groupings or individuals with sufficient resources to broadcast their message to the public without any challenge or editing as to its content or frequency. He would impose no restrictions in relation to editorial coverage on the issue of abortion or of any campaign run by "Youth Defence" or any other organisation. He would equally disallow an advertisement which was in favour of advocating abortion on similar grounds to those invoked in the present case. He did not contact Mr Colgan because it was not the practice of the Respondent to contact advertisers. Their relationship was with the contractual broadcaster. He did not discuss the matter with the Chairman of the first Respondent, Niall Stokes, before making the decision although he mentioned it to him afterwards. The decision was his and his alone. He knew from the media that Youth Defence had a political objective namely encouraging a new referendum on abortion. Abortion had been an issue in the country for the previous fifteen years and was still a political issue.

17. The following are the main submissions made by Dr Michael Forde, Counsel for the Applicant.

18. Care should be taken not to give the phrase "political end" such a wide meaning as would exclude advertisements from Trocaire, in relation to drink driving, poverty in the Third World, anti-smoking, road safety, fresh water and so on. The presumption of constitutionality requires that this phrase be given a narrow construction and in this instance that means that "political end" means "party political end".

19. Counsel submitted that there was not sufficient evidence in the present case that the purpose of this particular advertisement was to change Government policy or induce the Government to change its policy. Similar meanings derived from trade union or charities cases do not produce definitions which would entitle the first Respondent to characterise the Applicant's advertisement as "political".

20. The following were the main points made by John Coughlan S.C. and Emily Egan B.L. on behalf of the first Respondent.

21. The following are the main points made by John Rogers S.C. and Colm Ó hOisín B.L. on behalf of the second and third Respondents:-

22. The following points were made in reply to the foregoing:-

23. This concept was expressed more elaborately by Slade J. summarising his conclusions in McGovern -v- Attorney General [1982] CH 321 at 340 as follows:-

24. In the absence of a statutory definition of "political end", I consider that an advertisement has a political end within the meaning of Section 10(3) if it is directed towards furthering the interests of a particular political party or towards procuring changes in the laws of this country or, I would add, countering suggested changes in those laws, or towards procuring changes in the laws of a foreign country or countering suggested changes in those laws or procuring a reversal of Government policy or of particular decisions of Governmental authorities in this country or, I would add, countering suggested reversals thereof or procuring a reversal of Governmental policy or of particular decisions of Governmental authorities in a foreign country or countering suggested reversals thereof.

25. I exclude confining the phrase to "party political end", as contended for by Counsel for the Applicant because this concept appears in Section 9(2) of the same Act (which uses the phrase "political party broadcast") and it would seem, therefore, reasonable to assign a different and broader meaning to the phrase "political end" when used by the legislature in the next section of the Act.

26. Equally, I am not persuaded that the intention was to capture the very wide category of advertisements that would be captured if the phrase were to include the notion of "public affairs generally". My reasoning is the same as before: in Section 9(1)(v) the phrases "public controversy" and "current public debate" are used. Presumably if this or a closely analogous meaning was intended in Section 10(3) some such similar phrase would have been used also in this sub-section. It was not. I must assign a significantly different meaning to the significantly different language used and it is for this reason that I consider that the meaning contended for by the first Respondent is the correct meaning.

27. In the first place I would think it was legitimate for the first Respondent to take into account the general background information in relation to the advertisement and the advertiser derived from the media and general information in the public domain. I do not think that this is a breach of the hearsay rule or any other rule of evidence or indulging in speculation. On the contrary I consider that the first Respondent is entitled to acquire and exercise expertise in the area of broadcasting and to bring expert knowledge to bear on carrying out its duty under Section 10(6) of the 1988 Act.

28. In this context I would refer to the observations of the then Chief Justice, Finlay C.J. in O'Keeffe -v- An Bord Pleanala & Others [1992] ILRM 237, at page 262 where he alluded to the fact that the planning authorities and the Board "... are expected to have special skill, competence and experience in planning questions". In referring to this allusion I should make it clear that I do not consider that the decision of the first Respondent in the present instance is the same kind of decision as a planning decision. I make the reference merely to indicate that in my view the first Respondent is expected to have and exercise expertise and in carrying out its statutory functions is entitled to deploy its general knowledge derived from the media and its observation of public affairs generally in a way analogous to the deployment by planning authorities of their general information within their own area of expertise. This is no more a breach of the hearsay rule, for example, than it is for an expert witness to refer to learned articles or the opinion of colleagues or for An Bord Pleanala to take account of general information in its area of expertise. In my view, therefore, Mr O'Keeffe who was the deciding officer in this case was entitled to bring his own general expert information and background knowledge to bear on his decision in this case.

29. Again I consider that the identity of the advertiser in the present case was relevant material of which the first Respondent was obliged to take account. That arises because the text of the advertisement itself specifies that the message was sponsored by Project Truth, a Youth Defence project. This was part of the information comprising the advertisement and to refuse to take account of it would have been to ignore part of the information and part of the impact.

30. The Applicant submits that the object or "end" of this advertisement was simply to communicate information, to persuade listeners that abortion should be treated seriously and if any action was to be taken by the listener, typically a young mother, she was to decide not to go abroad for an abortion. The advertisement goes no further than this: its object was to dissuade young mothers from having abortions. It did not have an object or "end" of promoting or resisting political change in the sense identified. Counsel for the Applicant adds a further dimension to this submission: he says that the rules of constitutional interpretation require a narrow interpretation where this is reasonably available rather than a broader one. The right of free speech is a guaranteed right and the broader the interpretation assigned to the phrase "political end" the greater the infringement of his clients constitutional right of free speech.

31. Even if there is indeed a constitutionally protected right to broadcast an advertisement, I am not able to agree with this submission. In my view it is only in cases of doubt that an interpretation favouring the validity of an Act must be given. This seems to arise from the observations of Walsh J. in East Donegal Co-operative Limited -v- Attorney General [1970] IR 317 where he says at page 341:-

32. If I am correct, a Court is compelled to adopt the interpretation which most favours the validity of a statute only if there is a doubt about the constitutional validity of another meaning. In the present case there are, in my view, good reasons for not favouring the meaning "party political end" contended for by the Applicant. On the other hand, clearly, this is more likely to be constitutionally sound from the point of view of curtailment of the guaranteed right of free speech than the wider meaning which I have concluded is the correct one. But I do not think that I am compelled to reject the otherwise correct meaning simply because it is more invasive of the Applicant's guaranteed right of free speech and because a less intrusive meaning is available. I am compelled to do this, as I understand it, only if there is a doubt about the otherwise correct meaning. If indeed such a doubt were to be established in light of constitutional arguments then of course the interpretation favouring the validity of the Act must be the correct one. As will be seen from the second part of this judgment, however, I do not think that such a doubt does in fact exist.

33. Turning to Youth Defence itself and Project Truth, I accept that it was an objective of Youth Defence to have the law on abortion in Ireland changed. It was their object to have a referendum. Mr Colgan accepted as much in evidence. He says, however, that the advertisement itself is simply an anti-abortion advertisement and is not directed to procuring a referendum or changing the law. This distinction was also made forcibly by his Counsel. I think, however, that it is unreal to separate the advertisement from the immediate and public background of the advertiser in this case. I do not think the distinction made in argument that perhaps the advertisement might be said to have a political end if there were an actual referendum campaign going on at the time of the advertisement but that this cannot apply where no such campaign is going on is a valid distinction in the particular circumstances of the present case. The issues connected with the several constitutional amendments dealing with abortion have been rightly described as deeply divisive of our people and are capable of stirring up powerfully felt emotions on either side. These emotions and, the arguments on either side, not to mention the individuals or entities connected with them, are not easily forgotten and the issue of changing the law or adapting it remains a live issue on the political agenda not least because the Supreme Court has indicated that such a change must be brought about. In this context a powerful advertisement clearly directed against the evil of abortion and proclaiming itself to be sponsored by a group itself clearly identified with a campaign for a new referendum and a change in the law is itself inextricably bound up with this project of bringing about a change in our law. I have to conclude, therefore, that the first Respondent was correct in coming to the view that the advertisement in this case was directed towards a political end within the meaning of the relevant statutory provision as I have defined it.

34. I would comment further on the contention of the Applicant that the purpose of the advertisement was to dissuade primarily young Irish mothers from going abroad for abortions. This may well have been one of the purposes or results of the advertisement. I do not think, however, that it is the only purpose or "end" of the advertisement. Clearly the advertisement has a powerful message. It is strongly against abortion. I think a listener, who can clearly be other than a young Irish mother, might well be induced by this advertisement to offer support to Project Truth, a Youth Defence project.

35. I note what was said by Lord Wolfe in the Court of Appeal in Regina -v- Radio Authority ex parte Bull (Loc. Cit.) where he said:-

36. In my view the advertisement in the present case is so closely bound up with the political objectives of Youth Defence that it would be unrealistic and artificial to shut one's eyes to these objectives and construe the advertisement out of context and severed from its background.

37. Accordingly, I must hold that the advertisement did have a political end and that the first Respondent was correct in prohibiting it.

38. The objective of excluding paid advertisements being broadcast into homes in these sensitive and divisive areas and of giving advantage to rich men which is an objective in the interest of the common good must, therefore, be balanced against the restriction on the freedom of the citizen, both privately and publicly, to express his or her convictions and opinions. In the present case the Applicant's Counsel relies primarily on Article 40.6.1 which, as is stated in the Supreme Court judgment in Murphy "... is concerned with the public activities of the citizen in a democratic society." (Page 22).

39. In order to assess whether the limitation on the Applicant's right of free communication and on his right to freedom of expression is justified the question to be addressed is whether the limitation imposed upon these constitutional rights is proportionate to the purpose identified above which the Oireachtas wished to achieve in the interest of the common good.

40. I consider that I am bound to accept that the purpose of the Oireachtas in enacting Section 10(3) was as stated by the Supreme Court in Murphy and identified in the earlier part of this judgment.

41. In delivering the judgment of the Supreme Court in Murphy Barrington J. adopted with approval the description by Costello P. of the principle of proportionality in Heaney -v- Ireland [1994]2 ILRM 420 as follows:-

42. The judgment of the Supreme Court continued:-

43. Dr Forde on behalf of the Applicant in the present case submitted that religious advertisements can be distinguished from political advertisements because religious advertisements are more sensitive than political advertisements. He said that experience has shown that political advertisements have been published for decades in this country without causing the problems apprehended in the judgment of the Supreme Court in Murphy. On the other hand religious advertisements such as were under consideration in Murphy were a new phenomenon and particularly in light of the experience in Northern Ireland could be described as "super sensitive". In these circumstances the present case can be distinguished from Murphy and this court is, accordingly, free to hold that the failure of the Oireachtas to enact a more selective administrative system (whereby inoffensive political advertisements would be permitted and only those excluded which would be likely to cause offence) means that the legislation in the case of political advertisements involves an unnecessarily intrusive infringement of the Applicant's right to express freely his convictions and opinions which accordingly offends against the principle of proportionality. Furthermore, Dr Forde submitted that in light of the positive guarantee afforded to the right to life of the unborn in Article 40(3)(3) of the Constitution, an advertisement with the political end of vindicating such a right must itself be exempted from any general exclusion even if such general exclusion were compatible with the Constitution.

44. Against this Counsel for the Respondents submit that the judgment of the Supreme Court in Murphy makes no distinction in terms of degrees of sensitivity as between religious advertisements and political advertisements. On the contrary at page 17 of the judgment of Barrington J. it is stated that

45. Later on in the judgment it is clear that the view taken by the Supreme Court is that the infringement of the right to broadcast a religious advertisement was minimalist and appeared to impair that right as little as possible.

46. In light of these submissions I must consider what constitutes the ratio decidendi of the judgment of the Supreme Court in Murphy. In my view there is no rational distinction in this judgment in terms of degrees of sensitivity as between religious and political advertisements. It is clear that the Supreme Court dealt with these two categories of advertisement and those relating to industrial disputes as each of them being concerned with matters which have proved divisive and which were potentially offensive. It made no distinction between these categories in terms of degrees of divisiveness or sensitivity.

47. Equally I consider that I am bound by the view taken by the Supreme Court in Murphy that the intrusion in that case was minimalist.

48. Furthermore, it is clear that an argument was made in Murphy by Counsel for the Applicant that there was a failure to achieve appropriate proportionality because it would have been possible for the Oireachtas to have established a more selective adminstrative system whereby inoffensive religious advertisements would have been permitted and only religious advertisements likely to cause offence banned rather than imposing a blanket ban on religious advertising. Barrington J. in his judgment in dealing with that argument commented "no doubt this is true" . However, he went on to hold that the ban on religious advertising contained in Section 10(3) did appear to impair the various constitutional rights "as little as possible" and referred to the fact that the Oireachtas may well have decided that it would have been inappropriate to involve agents of the State in deciding which advertisements in this sensitive area would be likely to cause offence and which not.

49. It appears that the correct approach for this Court when considering whether the infringement of a constitutionally protected right impairs that right as little as possible is to refrain from condemning a wider infringement such as a blanket ban notwithstanding that a more selective alternative is admittedly available, if a rational explanation for the wider infringement is available to the court. This appears from the judgment of Barrington J. in Murphy where he says "... it is not for this court to interfere simply because it might have made a different decision". Some degree of judicial restraint, appears appropriate, therefore, when the court in the context of applying the proportionality test, is considering whether a statutory infringement of a constitutional right does or does not "impair the right as little as possible" . If a rational explanation for the wider infringement is available, the Court will not condemn it for failing to impair the right as little as possible. This appears to me to be the Ratio of the Supreme Court judgment in Murphy. This judicial restraint may itself be an application of the presumption of constitutionality in favour of the statutory provision attacked.

50. If I am correct in the foregoing analysis of the Supreme Court judgment in Muphy it follows that I am not free to accede to the submissions of Dr Forde seeking to distinguish political advertisements from religious advertisements in terms of their sensitivity.

51. A further point is made by Dr Forde to the effect that the protection afforded by Article 40(3)(3) to the unborn is in a special category by reason of being picked out for special treatment in this sub-article and that, accordingly, even if the blanket ban on political advertisements is compatible with the Constitution, a ban which excludes advertisements which vindicate the right to life of the unborn is an exception and that the impugned provision is repugnant to the Constitution for failing to make an exception in favour of such advertisements.

52. The language of Article 40(3)(3) is in similar terms to the language of Article 40(3)(1). The latter sub-article was under consideration in Murphy which, as I say, binds me in the present case. I think the distinction sought to be made in relation to the special constitutional treatment of the right to life of the unborn is an erroneous one having regard to the similar language of the respective sub-articles referred to and I must therefore reject this submission also.

53. In these circumstances I decline to make a declaration that Section 10(3) of the Radio and Television Act, 1988 is repugnant to the Constitution on any of the grounds claimed.

54. Accordingly, the Applicant's claim must be dismissed.