Political impartiality in broadcast media

Protecting the sheep from the wolves: The need for political
impartiality in the broadcast media.
1
Introduction
The term broadcasting originally referred to the practise of dispersing seed far and
wide, rather than only in rows. It is an apt analogy in light of the enormous spread of
broadcasting as a commercial force throughout the globe in the 20th century. As
Lewis and Cumper note “Despite the growth of the internet in recent years, the most
powerful medium of modern mass communication would appear to remain that of
broadcasting. It can be used to communicate messages to millions of people in
persuasive, seductive and effective ways.”1However, the growth of commercial
broadcasting has been curtailed with ever increasing governmental regulation and
this regulation has prevented the seeds broadcast by the media from up-rooting the
status quo encountered by the more traditional media forms.
Broadcasting has been regulated since its inception. Even though the first
commercial broadcasts began in the United States in the early 1920s, the regulation
of telecommunications in the United States (the first in the world) dates from 1910,
when Congress passed a law that required all U.S. passenger ships to have a radio.
Formal regulation arrived two years later the federal legislature adopted the Radio
Act of 1912, which required all radio transmitters and operators obtain a license from
the federal government.2 However, as more and more people became capable of
receiving the messages transmitted by the broadcast media near the end of the
1920s a reluctant Congress was forced to act once again. In 1927, Congress
adopted the Radio Act, a comprehensive set of rules aimed at creating order from
the problem caused by too many people trying to broadcast radio signals at the
same time. But this legislation for the first time focused on the content of radio
programs as well. This had been a long time coming given the fact that
“Broadcasting is an activity of enormous political and social significance. For many
people it constitutes their principal source of information and entertainment.
Politicians believe that elections are won and lost on the nation’s television sets.”3
1
Tom Lewis and Peter Cumper, “Balancing Freedom of Political Expression Against Equality of Political
Opportunity: the Courts and the UK’s Broadcasting Ban on Political Advertising” [2009] Public Law 89.
2
Don Pember and Clay Calvert, Mass Media Law 2009/2010 Edition (16th edn, McGraw-Hill Higher Education
2008), at 584.
3
Eric Barendt, Broadcasting Law: A Comparative Study (Oxford University Press, USA 1995), at 1.

2
In contrast, the regulation of the broadcast media in Ireland was not as clairvoyant.
Broadcasting remained in government control until 1960 when the Broadcasting
Authority Act was enacted. The Act established the new television service and
removed broadcasting from the direct control of Government for the first time with
RTE (or Radio Eireann as it was then known) being established by Section 3(1) of
the Broadcasting Authority Act, 1960. Its principal function was to establish and
maintain a national television and sound broadcasting service. Section 18 of the
Broadcasting Authority Act, 1960 imposed on RTE a duty of impartiality but
expressly permitted it to transmit political party broadcasts. This was the first express
recognition of what would prove to be a timeless association between politics and
the broadcast media in Ireland.
That politics and the broadcast media are intertwined is no great surprise given the
marriage of politics and the media generally. This is a marriage perpetuated by vows
of free speech, freedom of expression and freedom of the press on the one part, and
promises of accountability, access, coverage and reach on the other. With both sides
sacrificing a lot and gaining a little from each other, there is a constant tug of war for
the hearts and minds of the general populace. But sometimes the media concedes
too much freedom in light of political pressure and safeguards we thought were in
place seem to be more fragile than we were led to believe. As Quinn so aptly puts it,
“our concern for measures that inhibit speech is not therefore confined to one of
sympathy or outrage on behalf of the aggrieved party. Our concern extends to the
potential damage done to the system of political accountability so necessary to make
liberal-democratic political systems function effectively.”4 These concerns arise out of
an awareness both of the trust we place on the broadcast media to inform us, the
general public, of what we need to know and of the ease with which that trust can be
abused for political gain.
In this essay I hope to examine the mechanisms for maintaining political impartiality
in the broadcast media in three jurisdictions. I will seek to understand the rationales
behind the rules by looking at the historical development of the principle of political
4
Gerard Quinn “The Systems Maintenance Function of Constitutional Rights and the Case of Government
Speech”, (1989) 7 I.L.T. 8 at 10.

3
impartiality in broadcasting generally. Following on from this, the laws and
conventions which maintain the balance in each country will be analysed in practise.
While the majority of my analysis will focus on the regulation of broadcasting in
Ireland as regards political content, specifically in the areas of election and
referendum coverage, party political broadcasts and political advertising.
For the purposes of this essay the broadcast media is defined as any media outlet
which transmits a programme, some information or content using the
electromagnetic spectrum (analog) or digitally (over the air) via the medium of radio
or television. Given that terrestrial television signals in these jurisdictions were only
recently switched from being broadcast via analog to transmission digitally over the
air5 and in the interests of clarity overall, no differentiation between the two will be
made in this regard. Furthermore, Cable and Satellite television broadcasts are
excluded from this definition, as is online broadcasting. The term ‘broadcaster’ is
understood in the context of the definition provided in the Broadcasting Act 2009
(“the 2009 Act”), which is as follows: “Broadcaster means a person who supplies a
compilation of programme material for the purpose of its being transmitted, relayed
or distributed as a broadcasting service (whether that person transmits, relays or
distributes that material as such a service or not.)”6
Broadcasting Regulation
“The contribution of the media to political discourse is indispensable. It is…one of the
primary rationales for the constitutional guarantee of media freedom of expression”.7
Yet broadcasting in Ireland has always been subject to regulation.8 In contrast to the
Press, it is subject to both structural and content regulation. The most recent
manifestation of this content regulation is the Broadcasting Act 2009 which
consolidates a plethora of legislation.9
5
Germany in 2008, USA (high powered stations) in 2009, France in 2011, Ireland and the UK in 2012.
6
Broadcasting Act 2009, Section 2 (hereinafter “2009 Act”).
7
Eoin Carolan and Ailbhe O’Neill, Media Law in Ireland (Bloomsbury Professional 2010), at 87.
8
Patrick Twomey, “Freedom of Expression - Talking About ‘the Troubles’”, in Murphy and Twomey (eds.),
Ireland's Evolving Constitution, 1937-97: Collected Essays (Oxford: Hart Publishing, 1998) at p.206., Richard Pine,
2RN and the Origins of Irish Radio, (Dublin: Four Courts Press, 2002).
9
Rónán Ó’Fathaigh, “Broadcasting Regulation in Ireland: Regulation Built on a False Premise” (2011) Hibernian
Law Journal, 1, 41-60, at 40.

4
The 2009 Act created the Broadcasting Authority of Ireland (“BAI”),10 which replaced
the Broadcasting Complaints Commission and the Broadcasting Commission of
Ireland. The BAI is tasked by section 26 of the 2009 Act with preparing strategy
statements for the provision and regulation of broadcasting services, preparing an
allocation plan for the frequency range, drawing up broadcasting codes and rules;
and preparing a scheme for a right of reply. Bearing all of this in mind, it is clear that
the broadcast media in Ireland are subject to an arguably overbearing regulatory
burden as regards content. As Ó’Fathaigh notes in relation to the statutory
requirement in relation to the proposed programming of a broadcaster in determining
whether a contract is awarded is “The most striking additional burdens… These
terms are content rules in another form.”11
However, content regulation is only effective when enforced and in this regard two
committees are established as part of the BAI,12 the Contract Awards Committee to
award broadcasting contracts to independent and commercial broadcasters13 and
the Compliance Committee to monitor compliance by broadcasters (both public and
private) with their contract conditions, broadcasting codes and rules. The
Compliance Committee also investigates complaints made regarding breaches of
any codes or rules.14 While the decisions of the Compliance Committee do not
constitute enforceable precedent legally, “the vast majority of complaints are
processed by the Compliance Committee and its approach is significant in
practice.”15
What is being enforced is the most controversial form of content regulation in this
jurisdiction, section 39 of the 2009 Act, which requires broadcasters to observe a
principle of impartiality. I will analyse this requirement as it relates to coverage of
news and current affairs, referenda, elections, party political broadcasts and
10
As established on the 1st
of October 2009 under the Broadcasting Authority of Ireland (Establishment Day)
Order 2009 (S.I. No. 389/2009) pursuant to s.6 of the Broadcasting Act 2009 (Hereinafter “BAI”).
11
2009 Act, Section 66(2).
12
Ibid.
13
2009 Act, Section 27.
14
Ibid, Section 28(1) and (2).
15
Carolan and O’Neill, note 7, at 89.

5
ministerial announcements. I will then proceed to discuss the prohibition on the
broadcasting of political advertising. But first it is important to establish to what extent
freedom of expression is protected under Irish law.
Freedom of Expression in Ireland
Freedom of Expression is guaranteed by the Article 40.6.1° of the Irish Constitution,
which provides as follows:
“1° The State guarantees liberty for the exercise of the following rights,
subject to public order and morality:
i. The right of the citizens to express freely their convictions and opinions. The
education of public opinion being, however, a matter of such grave import to
the common good, the State shall endeavour to ensure that organs of public
opinion, such as radio, the press, the cinema, while preserving their rightful
liberty of expression, including criticism of Government policy, shall not be
used to undermine public order or morality or the authority of the State.16
But why should media speech be protected? As Doyle observes while “one can
rationalise freedom of expression in terms of personal dignity and autonomy. To
preclude an individual from speaking her mind offends her dignity and restricts her
autonomy. However, freedom of expression also plays a more instrumental role in
supporting a democratic culture.”17 This supporting role is expanded upon by Boyle,
who states that “it is the role [of freedom of expression] in linking citizen to
representatives and ensuring accountability of administration and government on an
on-going basis, which justifies its special character. In this connection media are a
partner in the democratic process.”18
In contrast, Delaney and Carolan state, “Media speech is sometimes protected as a
derivative principle of the more general entitlement to freedom of expression…
16
Bunreacht na hÉireann, Art 40.6.1°
17
Oran Doyle Constitutional Law: Text, Cases and Materials (Clarus Press Ltd 2008), at 194.
18
Kevin Boyle, “Freedom of Expression and Democracy” in Liz Heffernan, James Kingston and Vincent Berger
eds., Human Rights: A European Perspective: V. 3: 1991-93 (Blackrock : Round Hall Press in association with Irish
Centre for European Law, 1994), at 217.

6
[However] it is unclear whether the media ought to be able to rely upon the
autonomy justification of freedom of expression.”19 Instead the freedom of the media
should be justified on other grounds, as O’Neill explains: “The guarantee of freedom
of expression can be seen as one which is concerned with the self-fulfilment of the
individual – an autonomy-based value – as well as the preservation of a free flow of
ideas – a utility-based value. The former value justifies the protection of the speaker
as well as the audience. Where the latter is emphasised, the emphasis is usually on
the interests of the audience and the contribution of the speech to society as a
whole.”20 It is submitted that this is the correct interpretation of the rationale behind
the protection of freedom of expression and as such it is clear that the grounds for
justifying the freedom of the media are consequentialist rather than deontological, it
is protected for what it does rather, than for what it is.
Our Constitutional guarantee is further reinforced by Article 10 of the European
Convention on Human Rights (the “Convention”), as implemented by the European
Convention on Human Rights Act 2003 and the 2009 Lisbon Treaty which states:
“Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This Article
shall not prevent States from requiring the licensing of broadcasting, television
or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of
19
Hilary Delany, Eoin Carolan and Cliodhna Murphy, The Right to Privacy: A Doctrinal and Comparative Analysis
(Thomson Round Hall 2008) at 30-31.
20
Ailbhe O’Neill, The Constitutional Rights of Companies (2007, Thomson Round Hall), at 200.

7
information received in confidence, or for maintaining the authority and
impartiality of the judiciary.”21
The European Court of Human Rights (the “ECtHR”), has stated many times that
freedom of expression is one of the essential foundations of a democratic society,22
while freedom of political debate is considered to be at the “very core of the concept
of democratic society which prevails throughout the Convention.”23 While it is clear
the freedom of expression of the media is very much protected under Irish law, the
approach of Clarke J in the case of Cogley v RTÉ24 would suggest that this
protection may be confined to coverage of matters of public importance or interest.
Support for this proposition can be found in the decisions in Hunter v Duckworth,25
Leech v Independent Newspapers (Ireland) Ltd26and Mahon v Keena.”27 In all of
these decisions, the extent of the law’s protection of media freedom was determined
in part by reference to the nature and content of the publication in question.”28 In light
of this it is submitted that any broadcast relating to politics on the radio or television
is always a matter of public importance or interest, given the impact and influence
such a broadcast has.
Coverage of News and Current Affairs
The broadcast media is required to observe a principle of impartiality when covering
news and current affairs in accordance with section 39 of the 2009 Act. The central
point of this section is that broadcasters must ensure that “all news broadcast by the
broadcaster is reported and presented in an objective and impartial manner and
21
European Convention on Human Rights (hereinafter the “Convention”) Article 10.
22
Handyside v United Kingdom (1976) 1 E.H.R.R. 737 ECtHR at 49; Castells v Spain (1992) 14 E.H.R.R. 445 ECtHR
at 42; Kuliś v Poland (App. No.15601/02), judgment of March 18, 2008 ECtHR at 36; Incal v Turkey (2000) 29
E.H.R.R. 449 ECtHR at 46.
23
Lingens v Austria (1986) 8 E.H.R.R. 407 ECtHR at 42; Moscow Branch of the Salvation Army v Russia (2006) 44
E.H.R.R. 46 ECtHR at 60; A. Mowbray, “The Role of the European Court of Human Rights in the Promotion of
Democracy” [1999] P.L. 703.
24
Cogley v RTÉ [2005] 4 I.R. 79.
25
Hunter v Duckworth [2003] IEHC 81.
26
Leech v Independent Newspapers (Ireland) Ltd [2007] IEHC 223.
27
Mahon v Keena [2007] IEHC 348.
28
Delany, Carolan and Murphy, note 19, at 75.

8
without any expression of the broadcaster’s own views.”29 But the 2009 Act goes
further than this and imposes a requirement that
“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 his or her own views,
except that should it prove impracticable in relation to a single broadcast to
apply this paragraph, two or more related broadcasts may be considered as a
whole, if the broadcasts are transmitted within a reasonable period of each
other.”30
News and current affairs content on Irish broadcast media is not only required to
comply with the 2009 Act but also with the BAl’s Code of Fairness, Objectivity and
Impartiality in News and Current Affairs, which was created pursuant to section 42 of
the 2009 Act. The Code has been in effect since the 1st July 2013 and has clarified
the requirements of political impartiality greatly. In setting out its guidance on the
principle of fairness, the BAI has indicated to broadcasters that it will be necessary
for them to consider the range of ways in which fairness is achieved, including
through the selection of contributors, the time allocated to a news and current affairs
issue, the scope of the debate, the structure of the programme or the role of the
presenter.31
Furthermore, the approach to covering issues, including those of public controversy
or current public debate, should be guided by ensuring equitable, proportionate
coverage. While there may be some instances where balance may be required, an
automatic requirement for balance is considered unnecessary and inappropriate by
the BAI. Indeed the BAI has consistently expressed the view that the application of
such an artificial balance can, in and of itself, amount to a lack of fairness in certain
circumstances and as such there is no requirement on broadcasters to allocate
29
2009 Act, Section 39 (1).
30
Ibid, Section 39 (2).
31
BAI Code of Fairness, Objectivity & Impartiality In News and Current Affairs (April 2013) at provision 2.

9
airtime in such a context on any strictly mathematically proportional basis.32 Rather,
the requirement of political impartiality as specified by the 2009 Act and the BAI’s
regulations is for fairness in the treatment of a topic and this can be achieved by the
presenter or by contributions from other guests who may not have a stated position
in favour or against an issue being discussed but who, give voice to the views of
those who may oppose, or have difficulty with the issue in question.33
As there is no provision in the 2009 Act for appealing from decisions of the
Broadcasting Authority Compliance Committee,34 there is a real lack of case law in
the area. Judicial review remains an option for challenging the decisions of the
Compliance Committee but there are with no reported decisions regarding section 39
of the 2009 Act as it relates to coverage of news and current affairs. The opposite is
true for challenges in the Irish courts regarding the coverage of referenda, elections,
party political broadcasts and ministerial announcements through the medium of the
broadcast media.
Referendum Coverage
“The people interact with the organs of government in two ways. Through
referendums the people can amend the Constitution…However, the people more
regularly have their say indirectly, through their elected representatives.”35 When
people interact with the political process, then the broadcast media has a lot of
influence on this interaction. With regard to referenda, broadcasters, “have an
important role to play in educating and informing the public both of the content of
referenda proposals and of the merits and consequences of a ‘Yes’ or ‘No’ vote.”36
Television has a particularly important role, as is evident from the report by Murray
Consultants for the Referendum Commission after the recent Seanad and Court of
32
Reference 109/14–Martin v RTÉ Radio One (‘Lifeline’) Report of the Compliance Committee Meeting 17
December 2014, at 16.
33
Reference 107/14 –McIntyre v RTÉ Radio One (‘The Marian Finucane Show’) Report of the Compliance
Committee Meeting 17 December 2014, at 7.
34
35
Doyle, note 17, at 405.
36
Carolan and O’Neill, note 7 at 91.

10
Appeal referendum.37In this Behaviour and Attitudes survey, television was identified
as the most viewed source of information apart from the Referendum Commission
Guide, particularly the Referendum Commission television advertisement, which had
prompted recall of 82%. As Scott has noted, “in the survey carried out by the
European Commission after the second referendum on the Treaty of Lisbon38, it was
found that 65% of respondents mentioned television as the source of most of their
information about the referendum.”39
Broadcasters are also under an onerous obligation to provide airtime to the
Referendum Commission, as under the Referendum Act 1998 the Minister for
Communications, Energy and Natural Resources can direct the State’s broadcasters
to allocate broadcasting time to Referendum Commission broadcasts. Broadcasters
have been forced to give airtime to the Referendum Commission free of charge
since its establishment after the judgment of the Supreme Court in McKenna v an
Taoiseach (No 2).40 However, the significance of this case for the broadcast media
was that it gave support to the subsequent decision of Coughlan v Broadcasting
Complaints Commission.41
In Coughlan, the complainant had issue with the allocation of party political
broadcasts in the lead up to the 1995 divorce referendum. However, it is worth
noting that proceedings were brought two years after the divorce referendum was
held, with the High Court ruling delivered three years afterwards and the Supreme
Court ruling five years later The predecessor of section 39 of the 2009 Act, section
18 of the Broadcasting Act 1960 required RTÉ to present news and current affairs in
an impartial manner, but allowed for the broadcast of party political broadcasts,
which by their very nature, are anything but impartial.
37
Referendum Commission/Behaviours and Attitudes, Post Seanad & Court of Appeal Referendum Poll, http://
www.refcom.ie/en/past-referendums/abolition-of-seanad-%C3%A9ireann/report/post-seanad-and-court-of-
appeal-research-report/post-seanad-and-court-of-appeal-research-report.pdf, accessed on 31 December, 2014.
38
European Commission, Lisbon Treaty Post Referendum Survey Ireland 2009 (October 2009),
http://ec.europa.eu/public_opinion/flash/fl_284_en.pdf, accessed on 31 December, 2014.
39
Maria Scott, “The House that the Supreme Court Built: The Rulings in Coughlan and McKenna, the Lisbon Treaty
and the Constitutional Referendum in Ireland” (2010) Hibernian Law Journal, 1, 219-243, at 230.
40
McKenna v an Taoiseach (No 2) [1995] 2 IR 10.
41
Coughlan v Broadcasting Complaints Commission [2000] 3 IR 1.

11
During the referendum campaign RTÉ allocated one party political broadcast each to
the parties seeking a “Yes” vote and also allowed a non-party group opposed to
divorce and one in favour of each to broadcast a programme in like form to a party
political broadcast. Dr Coughlan complained about the fact that 42.5 minutes of
broadcasting time was afforded to the “Yes” side and only 10 minutes to the “No”
side. After the Broadcasting Complaints Commission rejected Dr Coughlan’s initial
complaint, judicial review of the decision was sought on the basis of the decision in
McKenna (No.2).
The case arrived before the Supreme Court in the form of an appeal by the
Broadcasting Complaints Commission and RTÉ against the High Court decision of
Carney J to grant an order of certiorari quashing the decision to dismiss Dr
Coughlan’s complaints by the Commission. In addition the Broadcasting Complaints
Commission appealed against the Court’s declaration that the allocation of
uncontested broadcasting time to each side of the argument in the referendum had
been significantly unequal and thereby constitutionally unfair.
A majority of the Supreme Court concluded that RTÉ had acted unconstitutionally
and as Barrett notes, “The overall approach of Keane J [who delivered the judgment
of the Court] to equality between the two opposing sides in a referendum campaign
was clearly that it should be of a mathematical or '50-50' nature.”42 This was not a
satisfactory result and is one that does not maintain political impartiality in any shape
other than mathematically. The scales had not been weighted greatly to one side
and the allocations had been motivated by a desire by the State broadcaster to
recognise the role of political parties in the democratic process.
The decision has been met with fierce academic criticism and allegations that it has
in practice stopped politicians and political parties in a referendum campaign from
utilising the influence and access to the airwaves that they would normally enjoy as
elected officials. Proponents of this view argue that Coughlan has had the effect
42
Gavin Barrett, “Building a Swiss Chalet in an Irish Legal Landscape? Referendums on European Union Treaties
in Ireland and the Impact of Supreme Court Jurisprudence” (2009) 5 European Constitutional Law Review 32, at
61.

12
noted by Barrington J in his dissenting opinion: ““to play down, or neutralise, the role
of political leaders in favour of committed amateurs”.43 As Barrett notes, politicians
“find themselves given literally not one second more time on the airwaves than
unelected campaigners whose sole qualification before they are handed 50% of
airtime on both public and private broadcast media to put forward their views is that
they have uttered the word ‘no’. Put another way, influence formerly enjoyed by
elected politicians has been transferred directly to unelected pressure groups or
politicians with a tiny proportion of national electoral support.”44
After the Lisbon Treaty was rejected in the first referendum, the Broadcasting
Commission of Ireland issued updated guidelines in advance of the second
referendum45 The main principles of the 2009 Guidelines are that while there is an
obligation of fairness, objectivity and impartiality in the coverage of referenda, there
is no requirement on broadcasters to allocate airtime between groups who oppose
and support a referendum proposal on the basis of absolute equality. Also the
allocation of airtime is required to be fair to all interests and undertaken in a
transparent manner by editors46 and news coverage must be reported and presented
in an objective and impartial way and must not express the broadcaster’s own
views.47 Current affairs coverage is subject to the 2009 Guidelines and must also
ensure that each side of the debate is presented in the same programme or in
related programmes broadcast within a reasonable time of each other. Furthermore
where programmes involve audience participation, there is an obligation to ensure
that each side of the debate is fairly represented in the issues, questions or
comments raised in the programme. Care must also be taken to ensure that the
extracts show subsequently on other programmes also reflect fairness, objectivity
and impartiality.48 Finally, with regard to party political broadcasts there is no
43
Coughlan v Broadcasting Complaints Commission [2000] 3 IR 1 at 43.
44
Barrett, note 42, at 38.
45
Guidelines in Respect of Coverage of the Referendum on the Treaty of Lisbon and Related Constitutional
Amendments 2009 (hereinafter “2009 Guidelines”).
46
Ibid, at paragraph 4.
47
Ibid, paragraph 5.
48
Ibid, paragraph 6.

13
requirement to carry them, but if they are, equal airtime must be allocated to parties
for and against the referendum proposals.49
Scott says that the current position as regards referendum coverage is not ideal for
the reasons similar to those described by Barrington J in Coughlan, namely that “the
absolutely equal allocation of broadcasting time for party political broadcasts in the
context of referenda does not reflect the representation of the electorate.”50 In the
second Lisbon Referendum, only one party which met the criteria for making a party
political broadcast was advocating a No vote and the other four parties were in
favour of adopting the treaty. It is submitted that in practise the decision in Coughlan
has not impacted as greatly as was feared by academic commentators at the time of
the decision and that the 2009 Guidelines introduced by the Broadcasting
Commission did much to neutralise the possible effects those fears were motivated
by.
However, it is worth noting that the recent case of Doherty v the Referendum
Commission51 copper-fastens the Coughlan judgment and the principle of strict
equality between citizens in the conduct of Referenda. Here, Hogan J ruled against
the complainant who questioned the accuracy of statements made by the Chairman
of the Referendum Commission on the Fiscal Treaty. Stating that although: “it is
necessary implicit in this Constitution thus places a premium on honest and fearless
debate…The Constitution, therefore, calls, especially at a time of referendum, for
robust political debate from an informed public.”52 Hogan J concluded that the courts
must refrain from any involvement in the referendum process other than ensuring
that the institutions of the State adhered to the core constitutional principles of
popular sovereignty, freedom of speech and equality.53
Accordingly on the basis of this judgment, legislation of the type suggested by the
Joint Committee on the Constitution in April 200954, is incompatible with the
49
Ibid, paragraph 7.
50
Scott, note 39, at 231.
51
Doherty v the Referendum Commission [2012] IEHC 211.
52
Ibid, at 604.
53
Ibid, at 609.
54
First Interim Report 2009.

14
jurisprudence of the Irish Courts. That report called for legislation that would inter alia
provide for broadcasters to avoid: “the quite unreal situation of more or less absolute
equality of time between supporters and opponents of the referendum” and
“Broadcasters would be entitled to have regard to a range of factors to inform their
own judgment about what constitutes fairness of treatment.. these factors could
include considerations such as the relative strengths and standing of political
parties….”55 As Regan suggests “the only justification for deviating from the rule of
strike equality may be that of absolute impossibility for broadcasters in finding
proponents of opposing views in a referendum.”56
One final thing to note with regard to referendum coverage in the broadcast media,
and before election coverage is discussed, is that the Broadcasting Authority
currently requires that Irish radio and television broadcasters must stop their
coverage of elections and referenda at 2pm on the day before the vote takes place.
This moratorium requirement was originally set out in Broadcasting Code on
Referenda and Election Coverage, but is now contained in guidelines and codes of
practice issued from time to time by the BAI.57 The moratorium means that
broadcasters cannot discuss the content of a referendum or the policies of different
political parties or election candidates from 2pm on the day before the vote until the
polling stations close on the day that the vote takes place. This restriction is intended
to ensure that voters are not confused or manipulated by false, incomplete or
misleading information in the final hours before voting or during voting. It only applies
to Irish broadcasters and does not apply to newspapers or websites.
Election Coverage, Party Political Broadcasts and Ministerial Announcements
It is clear than that the broadcast media are heavily regulated in their referendum
coverage in an attempt to maintain political impartiality. That broadcasting has a
huge impact on public opinion is undoubted in this regard. The same is true for the
role played by the broadcast media at election time, when candidates attempt to
sway public opinion in their favour over the radio or on televisions screens. Whether
55
Ibid, at 81.
56
Eugen Regan, “Policing the Conduct of Referenda; Recent Case Law” (2013) The Bar Review 1, 4-7, at 6.
57
BAI Code of Fairness, Objectivity & Impartiality In News and Current Affairs (April 2013) at provision 27.

15
this influence is sought through party political broadcasts, debates, speeches or
even a ministerial announcement, how better to win the hearts and minds of the
general population, than by being beamed directly into millions of homes?
Section 18(2) of the Broadcasting Act 1960 (which contained the old provisions as to
impartiality and objectivity) provided that “nothing in this section shall prevent the
authority from transmitting party political broadcasts.”58 This section has now been
amended by the 2009 Act59 which introduces a fair allocation of time requirement in
the context of party political broadcasts. The old general provision regarding the
making of ministerial announcements has been omitted from the 2009 Act and were
considered in the case of McCann v An Taoiseach.60 In this case, the Taoiseach was
held to be allowed to direct the allocation of broadcasting time under section 31 of
the Broadcasting Act 1960 to make a ministerial announcement regarding the
forthcoming referendum on the Treaty of the European Union. Carney J expressly
recognised that this announcement would be partisan but saw no constitutional
difficulty with this and further, saw no constitutional necessity for a right to reply.
However, as Carolan and O’Neill note “the decision in this case, in so far as it relates
to a ministerial announcement advocating votes in favour of a referendum, is at odds
with the decision of the Supreme Court in Coughlan.”61 Furthermore it is noteworthy
that this decision of the High Court was not even mentioned in that case nor was it
mentioned in McKenna (No 2).
Section 31 of the Broadcasting Act 1960, as amended by section 16 of the
Broadcasting (Amendment) Act 1976 also gave the Minister for Communications the
power to prohibit broadcasting “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.”62 This authority was used solely to prohibit the making of election broadcasts
on behalf of Sinn Féín, the broadcasting of interviews with spokesmen for the party,
58
Section 18(2)(b) of the Broadcasting Act 1960.
59
Section 39(2) of the Broadcasting Act 2009.
60
McCann v An Taoiseach [1994] 2 IR 1.
61
62
Section 31 of the Broadcasting Act 1960, as amended by section 16 of the Broadcasting (Amendment) Act
1976.

16
broadcasts made by or on behalf of or inviting support for the organisation and
broadcasts by persons representing the organisation because of that Sinn Féin’s ties
to and support of the Provisional IRA.63 The intended effect of the section 31 orders
was to “deny airtime to the IRA and other organisations banned in the State and in
Northern Ireland, to deprive them of the oxegen of publicity and the air legitimacy
that it was believed appearing on the broadcast media would accord them.”64
The practical effects of the ban are evident from the case of Brandon Book
Publishers Ltd v RTÉ65 about Gerry Adams’ book and the promotional advertisement
he recorded for radio broadcast. However, in January 1994 the Irish government
decided not to renew the order implementing section 31, with the first televised party
political broadcast on behalf of Sinn Féin transmitted a few months later.
Furthermore the section was repealed by the Broadcasting Act 2001 and as
McGonagle notes “Section 31 was gradually relegated to the status of a memory and
the political process was allowed to continue undeterred.”66
The next time that party political broadcasts were addressed by the Courts was the
case of Madigan v RTÉ.67 Here an independent candidate for the European
Parliament was worried that the way in which RTÉ broadcast a number of
programmes in relation to the election would not be fair on independents. The
applicant sought judicial review of RTÉ policy regarding the way in which
independent candidates were featured in its election programming. RTÉ had stated
that its policy generally was to “take account of the support gained by the various
parties at the last election”, but the applicant said that this was incorrect as the
statutory requirement of impartiality dealt with the present not the past. While Kinlen
J conceded that it would be unacceptable if RTÉ was to determine coverage based
on the last election alone, he found in favour of RTÉ on the basis that the RTÉ policy
had also taken into account the personalities, politics and backgrounds of
independent candidates and the different views they held on political issues. He
63
Carolan and O’Neill, note 7, at 108-109.
64
Maria McGonagle, Media Law, 2nd edn (Dublin: Thomson Round Hall, 2003) at 344.
65
Brandon Book Publishers Ltd v RTÉ [1993] ILRM 806.
66
McGonagle, note 64, at 351.
67
Madigan v RTÉ [1994] 2 ILRM 472.

17
accepted that the requirement to treat candidates fairly did not mean that there had
to be total equality of treatment for all and that RTÉ were entitled to have a fluid
policy in matters such as this.
The most recent case involving party political broadcasts and election coverage is
the case of Green Party v. Radio Telefis Eireann,68which involved the amount of air
time given to parties based on their number of TDs. The Green Party argued that the
Progressive Democrats had been given air time in the past even though they were
smaller than themselves. They also argued that their right to equality before the law
under Article 40.1 was breached by relying on Madigan. Carroll J, in the High Court,
noted that the Green Party was entitled to rely on Article 40.1 in accordance with
Coughlan, but had a problem with the equality guarantee argument as it would be
the same as saying that political parties should be treated equally just because they
had an equal stature.
In considering whether this amounted to constitutional unfairness, the equality
guarantee argument was rejected through another application of Coughlan: “This
situation is not comparable to a referendum. It refers to the allocation of time to a live
broadcast of a party political conference.”69 The judge than went on to say that the
decision of RTÉ was not one “which plainly and unambiguously flies in the face of
fundamental reason and common sense,”70applying the relatively conservative, anti-
interfering reasonable approach developed in State (Keegan) v Stardust
Compensation Tribunal71 and O’Keefe v An Bord Pleanála..72 Carroll J said that RTÉ
could of course round up the figures and count the MEPs for example if they wanted
but the decision not to do so was not illogical and was not untenable. Furthermore
there was no bias. However, this decision can be criticised as there was very little
discussion of free speech, rather than arguing freedom of expression, the Green
Party very much focused on the equality aspect and if they had done the former it
68
Green Party v. Radio Telefis Eireann [2003] 1 I.R. 558.
69
Ibid, at 566.
70
Ibid.
71
State (Keegan) v Stardust Compensation Tribunal [1986] IR 642.
72
O’Keefe v An Bord Pleanála [1993] 1 IR 39.

18
would have resulted in a far different outcome as it would bring it into the sphere of
public education.
Political Advertising
But perhaps the area where the broadcast media in Ireland are most subject to
regulation is in the area of political advertising. Under section 41 of the Broadcasting
Act there is an absolute prohibition on political advertising, with this section stating “a
broadcaster shall not broadcast an advertisement directed towards a political end or
which has any relation to an industrial dispute.” This ban has been in place for a long
time and is justified on a number of grounds. First, it is argued that it would be
impossible for independent bodies to adjudicate disputes arising from such
advertsiments73 but this is not that compelling as courts adjudicate on more difficult
disputes all the time. Another justification for the ban is that it protects the sheep
from the wolves by prohibiting a possibly discriminatory practise, as there is a belief
that wealthier more established parties and candidates could buy more advertising
and gain the benefits thereof. The Irish courts have refused to say the ban is
unconstitutional on free speech grounds and the European Court of Human Rights
said that it might be a breach of Article 10 of the European Convention on Human
Rights in the case of 74 but then resiled from that position.,
However, before analysing the need for the prohibition on political advertisements so
as to ensure political impartiality, it is important to examine how political advertising
is defined. As McGonagle notes, “it would appear that it is not confined to election
campaigns, or indeed to political parties or candidates, but may encompass other
wider public interest issues” for example abortion or divorce. The question of what
constitutes political advertising arose in the case of Colgan v. IRTC75. The IRTC
were the regulatory body for broadcasting before the Broadcasting Authority was set
up, while the applicant was a member of the pro-life organisation Youth Defence,
who had paid for a 30 second radio advertisement to be made raising awareness
about abortion. The advertisement began with a muffled heartbeat and then a
73
74
McGonagle note 64, at 290.
75
Colgan v. IRTC [2000] 2 I.R. 490

19
subsequent voiceover stated, among other things, that “her heart has been beating
since she was 18 years old at 8 weeks she’s perfectly formed” The listener was then
asked “Have you any conception what abortion is about?” The IRTC banned the
advertisement saying it was a political advertising banned under section 10(3) of the
Radio and Television 1988. The applicant sought to quash the legislation and the
decision for being unconstitutional and made a number of arguments: First, the
legislation did not apply to the advertisement as Youth Defence argued that they
were not advocating a positon on abortion but just providing information on abortion.
Secondly, the applicant argued that a ban on this type of advertising restricted on
freedom of expression and as such a strict approach should be taken. The best way
to do this being to read the reference to political ends as referring specifically to party
political objectives or agenda. Thirdly, the applicant relied heavily on Article 40.3
protecting the right to life of the unborn, while the final argument put forward was that
the regulator had looked at the background to the applicant’s organization and where
the advertisement had come from rather than just looking at the advertisement itself.
In the High Court, O’Sullivan J first refused to take the very strict reading of the
section as applying just to party political broadcasts and said there was specific
reference to such advertisements having a political end in the legislation. As such
the judge was of the belief that the Oireachtas must have intended a broader notion
of a political ends than that put forward by the applicant. He then turned to think
about the concept of an ad aimed towards a political aim, here dissuading women
from having abortions or members of the public to take a pro-life stance. O’Sullivan J
then proceeded to outline how he felt that an advertisement would have a political
end if it sought to further the ends of a particular policy, change or alter a law, or
decisions of public bodies or counteracting such decisions and could also include
those seeking to dissuade decisions of other countries decisions.76 In this case
O’Sullivan J stated that the supposed main prupose of the advertisement to dissauge
young Irish mothers from going abroad for abortions was not the only purpose or end
involved and that “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
76
Ibid, at 507.

20
Defence project.”77 The judge further noted that one of the objectives of the
organization was having a referendum to change the law and were associated in the
public mind of having this political objective. By the time this case arose there had
been a number of constitutional amendments to the law on abortion such as in
relation to the right to travel abroad to have an abortion. It was decided that this was
not unconstitutional and also that information relating to abortion was available under
the constitution.
Furthermore, O’Sullivan J held that the IRTC could take account of the nature of the
person or body that procured or sponsored the ad, outlining how you have to be
aware of this context and that the issues relating to abortion are deeply divisive in
Ireland capable of stirring up strong emotions on both sides. He explained how the
arguments for and against changing the law are not easily forgotten and that the
issue of changing the law is on the political agenda always, even if there is not a
specific referendum, not least because the Supreme Court tself had said legislation
was required. He said such a powerful argument which is directly against abortion,
made by a group who is clearly identified with advocating a change in the law is
inextricably bound up with achieving such a change in a law. So the context, the
group who made it and the ad itself meant the broadcaster was correct in coming to
the view that the ad was directed at achieving a political end under the legislation
and was therefore correct.
He then went on to consider whether the legislation was constitutional. The
prohibition on religious advertising had been considered by the Supreme Court in
Murphy v. IRTC78. Here Barrington J said that all three of the types of ads banned
related to matters which had proved to be deeply divisive in Irish society in the past:
“the Oireachtas was entitled to take the view, that citizens of the country would not
want such ads being broadcast into their homes, and that such ads might lead to
relate, the Oireachtas might also have thought that on such divisive issues rich men
should not be allowed buy advertising to the detriment of their poorer rivals.”79It was
77
Ibid
78
Murphy v. IRTC [1999] 1 I.R. 12.
79
Ibid, at 22.

21
indicated that this also applied to political advertising so O’Sullivan J said he was
bound by this decision and that the Supreme Court had intended to treat both
categories the same. He also pointed out that the Supreme Court in Murphy had said
that the interference with speech occasioned by the ban was minimalist and that the
correct approach when deciding whether the infringement of a constitutional right
impinges on 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.”80
This approach is different to the approach taken by the ECtHR. In Murphy v
Ireland81the Court said the blanket ban was justified in Ireland due to the extent to
which religion had been divisive in Ireland, however in subsequent cases the ECtHR
said that the ban on political and religious advertising are distinct, with political
advertising bans in other jurisdictions not found to be justified. Four of these cases,
where the Strasbourg Court took a very dim view of the ban on political advertising,
are considered below.
In VgT Verein Gegen Tierfabriken v. Switzerland82 a case was taken against
Switzerland after the Swiss commercial television company refused to broadcast an
advertisement critical of battery farming of pigs. The advertisement featured a scene
of the terrible conditions at the farms taken by a Swiss animal rights group opposed
to the battery farming of pigs and concluded with a message to eat less meat for the
sake of the your health, animals and the environment. The Court’s determination
centred on the particular aim of the prohibition on political advertising, that aim being
to “Protect public opinion from the pressures of powerful financial groups and from
undue commercial influence and to provide a certain equality of opportunity among
different forces in society, to ensure editorial independence from powerful sponsors
and support the press.”83 While he Court said this was a legitimate aim, the found
there was breach of Article 10 because the ban was disproportionate due to the fact
80
Colgan v. IRTC [2000] 2 I.R. 490, at 512.
81
Murphy v Ireland (2004) 38 EHRR 13.
82
VgT Verein Gegen Tierfabriken v. Switzerland (“Tierfabriken I”)(2002) 34 EHRR 4.
83
Ibid, at 72.

22
it was an interference with political expression i.e. interference with a political issue
such as the condition in which animals are reared. The Court said that once you are
in the realm of political speech the margin of appreciation that a member state has is
less broad and greater scrutiny is applied. They then turned to a proportionality
examination and said that the maintenance of plurality in the political field was
particularly important in the broadcasting context, emphasising the impact of
broadcasting, particularly television due to its immediacy. The Court noted that the
Swiss authorities had not argued that this the animal rights group was a financially
powerful one with a lot of influence. The opposite was true and the animal rights
group who had done a lot of fundraising to afford the advertisment in the first place.
As such this was exact opposite of the kind of exploitation the ban was aimed at in
the first place. They also noted that the group had limited ways of reaching the public
and television broadcasting was therefore the best method given their particular
circumstances.
Subsequent to this judgement VgT applied to the Swiss Federal Court to have the
ban on its advertisement lifted and when the Swiss authorities again declined. The
Grand Chamber found there to be a further breach of art.10 in VgT Verein gegen
Tierfabriken v. Switzerland (No. 2)84 and that there existed a positive obligation on
the Swiss authorities to allow the broadcasting of the advertisement.
However, in between the two Tierfabriken cases, another advertisement of a
allegedly political nature came before the ECtHR in TV Vest As & Rogaland
Pensjonistparti v. Norway85. After TV Vest broadcast an advertisement for the
Pensioner’s Party without first obtaining permission around the time of the 2003
Norwegian local and regional elections. The advertisement in question gave some
information about the party before calling on people to vote for it in the upcoming
elections. The regulatory body in Norway had warned the broadcaster that they
might be fined if they went ahead and broadcast the advertisement but this warning
was ignored on the basis that TV Vest saw it to be a a restriction of freedom of
84
VgT Verein gegen Tierfabriken v. Switzerland (No. 2) Application no. 32772/02, Grand Chamber 30 June 2009
(“Tierfabriken II”).
85
TV Vest As & Rogaland Pensjonistparti v. Norway (2009) 48 EHRR 51.

23
expression. After TV Vest got fined 35,000 kroner they brought unsuccessful
proceedings to the Municipal and Supreme Court, before eventually challenging the
fine before the ECtHR. The First Chamber first noted that the Norwegian ban on
political advertising was a permanent and absolute one with the same aim as the
Swiss ban had had. Similarly the ECtHR again said that this was the only way the
party could get its agenda out to the public due to its size as a minority party. The
Court said that the blanket prohibition without any discretion at all breached the
proportionality element under Article 10. In conclusion, as McCormick states,
“[Here] there was not a reasonable relationship of proportionality between the
legitimate aim pursued by the prohibition and the means deployed to achieve
that aim. The restriction which the prohibition and the levying of the fine
imposed on the applicant's exercise of their freedom of expression could not
therefore be regarded as having been necessary in a democratic society
notwithstanding the margin of appreciation available to the national
authorities. Accordingly, there had been a violation of art.10.”86
The most recent case where the ECtHR addressed the issue of political advertising
in relation to Article 10 of the ECHR is Animal Defenders International v UK.87 This
was a case taken by a group which had the aims of ending or suppressing testing on
animals and Animal Defenders international sought to lobby for a change in law and
policy on the use of animals in that way. However, this was not the first time that an
advertisement of a political nature ahd been disputed before the UK Courts as in the
case of R. v. Radio Authority ex parte Bull and Another,88 an Amnesty advertisement
publicising the plight of people suffering in the civil war in Rwanda and Burundi was
prohibited from being broadcast. The Divisional Court at first instance had held that
Amnesty was a body with objects wholly or mostly of a political nature and this was
upheld by the Court of Appeal. But this was before Article 10 ECHR was enacted
into English Law under the Human Rights Act and as such the legal context of
Animal Defenders International was far different.
86
Nicola McCormick “Right to Freedom of Political Expression - Prohibition on Political Advertising on Television”
(2009) Entertainment Law Review 20(5), 190-192, at 192.
87
Animal Defenders International [2008] UKHL 15; [2008] 1 A.C. 1312; [2008] E.M.L.R. 8.
88
R. v. Radio Authority ex parte Bull and Another [1997] 3 WLR 1094.

24
The group had a number of different campaigns such as “my mate’s a primate” and
there was no doubt that this had a political aim. The question for the Court therefore
was if the ban was necessary in a democratic society and this is where the House of
Lords departed from the ECtHR. Bingham J emphasised the role of freedom of
expression in society, but he went on to say that there should be level playing field in
debates and there wouldn’t be if political parties or organisations can buy airtime in
proportion to their resources. Baroness Hale’s judgment also mentioned the elephant
in the committee room, which was a term of endearment for the position in the
United States where political advertising is treated solely as a free speech issue and
also to the “dominance of advertising, not only in elections but also in the formation
of political opinion, in the United States of America.”89. In fact in the United States “In
recent presidential campaigns it has become apparent that the most significant part
of a candidate’s expenditure goes to produce and buy airtime for television
commercials”90 Baroness Hale stated that the right balance was between two equally
important aspects of democracy: free speech and voter equality.
As noted by Carolan and O’Neill, “One of the reasons for the dominance to which
Baroness Hale reffered is the insistence of the United State Supreme Court that the
First Amendment covers restriction on the volume of speech so that limitations on
expenditure on political advertising are characterised as violating freedom of
expression.”91 Baroness Hale was referring to the line of jurisprudence which began
following the United States Supreme Court decision in 1976 in Buckley v. Valeo.92 in
which the court first adopted, in the context of the Federal Election Campaign Act of
1971, the dichotomy between expenditure limits and contribution limits. In Buckley,
the Court upheld a $1,000 per election limit on individual contributions and reasoned
that contribution limits are permissible in order to prevent “corruption and the
appearance of corruption.”93 The Court in Buckley, however, held that this same
89
Ibid, at para 49.
90
Lynda Lee Kaid, Christina Holtz-Bacha (eds), Political Advertising in Western Democracies: Parties & Candidates
on Television, (California: Sage Publications, 1995), at 1.
91
92
Buckley v. Valeo 424 U.S. 1 (1976).
93
Subsequent to Buckley, the court also upheld a $1,075 limit on contributions to candidates for Missouri state
auditor in Nixon v Shrink Missouri Government PAC, 528 U.S. 377 (2000).

25
interest was not sufficient to justify limits on expenditures by candidates and, instead,
reasoned that expenditure caps are not permissible because they “necessarily
reduce the quantity of expression by restricting the number of issues discussed, the
depth of their exploration, and the size of the audience reached.”94
Following the decision of the House of Lords, there was fierce academic criticism.
Knight described the decision as unfortunate and said it was time to ‘stop monkeying
around with free speech:
“Without a convincing jurisprudential underpinning the law begins to appear
without foundation. None of the theories of free speech clearly supports the
blanket ban of the Communications Act 2003. Indeed, all militate against it.
The way to deal with one person in an argument shouting too loud is not to
cancel the argument altogether. Procedural limits on speech have always
been accepted, but a procedural limitation taken to an extreme becomes
substantively unfair. A blanket ban is not the proportionate method of dealing
with the problem of unfair speech competition. The European Court of Human
Rights refused to accept it in VGT, the Government acknowledged the
possibility by declining to issue a s.19 declaration, and the various theories of
free speech do not support it.95
Thus, when the applicant in Animal Defenders submitted its application to the
European Court96, it seemed probable that a violation was forthcoming given the
holdings in VgT and TV Vest, and the House of Lords’ seemingly misplaced
preference for Murphy over VgT. Indeed, there were no questions from any of the 17
judges at the hearing held in March 2012. However, as the months dragged on, this
suggested there was unease within the Court about following VgT and TV Vest, and
this unease ultimately resulted in a 9-8 vote for no violation.
The majority opinion begins not with a discussion of VgT, Murphy, or TV Vest, but
instead begins with the Court setting down a new controlling doctrine for analysing
94
Pember and Calvert, note 2, at 122.
95
C.J.S. Knight, “Monkeying around with Free Speech” [2008] Law Quarterly Review 557, at 561.
96
Animal Defenders v. UK (Application no. 48876/08).

26
the ban: it categorised the ban at issue as a “general measure”. According to the
Court, “general measures” are rules which apply to pre-defined situations regardless
of the individual facts of each case even if this might result in individual hard cases.”
The Court then laid down a three-step test to determine the proportionality of a
“general measure,” where the Court must assess (a) the “quality” of the
parliamentary and judicial review of the necessity of the measure; (b) the legislative
choices underlying the general measure, and (c) any risk of abuse if a general
measure is relaxed.
Framing the question for analysis as one involving “general measures” allowed the
Court to reject the applicant’s submission that the central question was whether less
restrictive rules could have been adopted, but rather the “core issue” was whether in
adopting the general measure and striking the balance it did, the legislature “acted
within its margin of appreciation.” Thus, in one fell swoop, the Animal Defenders
majority brought a widened margin of appreciation right into the mix, which had been
absent in both VgT and TV Vest. The Court concluded that the reasons for the ban
were “relevant and sufficient,” and there was therefore no violation of Article 10.
These cases make it fairly clear that the Strasbourg court feel that although a blanket
ban is not generally in accordance with Article 10, there is a suggestion that maybe a
more carefully crafted ban or one which leaves a discretion in certain cases might
not fall foul of it. Nevertheless it is clear that Ireland is not the only country where the
broadcast media is subject to regulation to ensure political impartiality.
Conclusion
It is no exaggeration that the broadcast media in Ireland are subject to an enormous
amount of content regulation. However, this regulation is justifiable on the grounds
that it not only protects the sheep from the wolves, but also that it maintains a high
standard of political fairness in mediums which carry a huge degree of influence.
While Daly notes that “Irish democracy has long waited for its final cornerstone, free
speech, to be built. It is unfortunate, then, that this cornerstone is being constructed
by marginalising the very instrument, Bunreacht na hÉireann, on which our

27
democratic State is founded,”97 it is submitted that the constitutional guarantee of
freedom of expression of the media has been eroded in order to maintain the political
impartiality necessary for the functioning of a democratic society. After all, the
broadcast media are very influential and must be shepherded accordingly.
97
Tom Daly, “Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1°(I) of the
Constitution” (2009) D.U.L.J. 1, 228-262, at 262.

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