Eighth Amendment: Reporting restrictions on media coverage of referenda in Ireland

By Darryl Broderick and Ciara Ní Longaigh
12 March, 2018

In light of the fast approaching referendum on the 8^th Amendment to the Irish Constitution, it is important to note Irish reporting restrictions on media coverage of referenda. While the Irish legislature has historically been reluctant to interfere with the freedom of the press, the reporting restrictions surrounding radio and television broadcasting remain robust. The broadcasting regulations have developed and been tailored to societal changes over the years while the regulation of both online and print media coverage of referenda has remained virtually non-existent.

Broadcasting

TV and radio broadcasting is governed by the Broadcasting Act 2009 (the “2009 Act”) which sets out clear restrictions in relation to political advertising in the lead up to a referendum. Section 41 (3) of the 2009 Act states that ‘a broadcaster shall not broadcast an advertisement directed towards a political end or which has any relation to an industrial dispute’. The underlying justification for such a restriction on the freedom of expression was summarised by Barrington J in the decision of Murphy v IRTC^[1]whereby he stated that ‘in relation to matters of such sensitivity, rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals’. It is widely accepted that removal of such a restriction would give an unfair advantage to those who could afford to pay for broadcasts to further their political agenda.

While a clear definition of ‘political end’ is not provided in the 2009 Act, the Broadcasting Authority of Ireland (the “BAI”) have stated that all advertisements of a political nature are prohibited. In the absence of an express definition, the BAI has published Guidance Notes for the “BAI General Commercial Communications Code” which refer to the interpretation adopted by the High Court in Colgan v IRTC^[2]. In that case the court was of the view that the definition of ‘political end’ should encompass advertisements directed towards:

• furthering the interests of a particular political party;
• procuring changes in the laws of this country, or countering suggested changes in those laws;
• procuring changes in the laws of a foreign country or countering suggested changes in those laws;
• procuring a reversal of government policy or of particular decisions of governmental authorities in this country or countering suggested reversals thereof; or
• procuring a reversal of governmental policy or of particular decisions of governmental authorities in foreign countries or countering suggested reversals thereof.

Given the scope of such a definition, it is likely that any advertisement intending to persuade the electorate to vote in a particular way in the upcoming referendum would contravene the restriction. The BAI has also published “Guidelines in Respect of Coverage of Referenda” which reiterate the fact that broadcasters must be mindful of the restriction and ensure that an advertisement does not include material which may promote a particular ‘political end’.

Despite the above, the restriction is not absolute. Section 3 (1) of the Referendum Act 1998 provides that one of the key functions of the Referendum Commission is to prepare statements which provide the public with a general explanation of the content of an upcoming referendum. To facilitate this, advertisements commissioned by the Referendum Commission will not fall under the ambit of the section 41 (3) prohibition as outlined above.

Online and Social Media Advertising

Very little guidance has been issued to date in Ireland in terms of the policing of online and social media advertising. Given the unprecedented growth in social media platforms and the documented effect of online media sources on young voters, the lack of guidance in this area is regrettable. The Online Advertising and Social Media (Transparency) Bill 2017 (the “2017 Bill”) which is currently being debated in the Dáil, aims to compel any online advertisers to state who published and paid for the relevant advertisement as well as disclosing the target audience. It also attempts to make it a crime to use fake social media accounts to influence political debates and campaigns. The 2017 Bill also gives powers to the Minister to decide what further information will have to be provided in an article. This aspect of the 2017 Bill has been heavily criticised for passing over excessive powers to the minister of the day. While it remains to be seen whether the 2017 Bill will progress further, clarification in a currently unregulated area would be a welcome development.

Print Media

Print media remains outside the scope of political reporting restrictions in Ireland. Advertisements in newspapers do not come within the ambit of the BAI and the Advertising Standards Authority of Ireland (the “ASAI”) has issued a notice on its website stating that it will not deal with any specific complaints relating to the upcoming Referendum on the 8^th Amendment unless the advertisement specifically contains a commercial element. The ASAI have not issued guidelines around advertising on issues of a political nature and the ASAI code sets out at section 2.3 (f) that “marketing communications whose principal purpose is to express the advertiser’s position on a political…matter or on an issue of public interest or concern” fall outside the ASAI’s remit.

Section 6 of the Referendum Act 1994 (the “1994 Act”) provides that section 140 (1) of the Electoral Act 1992 should apply to referenda and the section reads as follows;

‘every notice, bill, poster or similar document having reference to a referendum or distributed for the purpose of furthering a particular result shall bear upon its face the name and address of the printer and of the publisher thereof’.

While there has been no judicial commentary on the definition of “notice” in this context, guidance published by the Department of Environment indicates that billboards are considered to be commercial advertising and not covered by the rules governing election or referendum postering. In this regard, it may be reasonable to assume that comparable “notices” in newspapers would also fall outside the scope of the 1994 Act.

UK Position

Given the recent experiences surrounding the Brexit referendum in the UK, the UK legislature has endeavoured to reform the area of political advertising. Similar to its Irish equivalent, the UK Electoral Commission does not currently deal with advertisements of a political nature. The Elections and Referendums (Advertising) Bill 2017 proposes to amend the Political Parties, Elections and Referendums Act 2000 and provides that the Electoral Commission will keep a record of relevant advertisements which are published. Section 143B of the bill provides that an advertiser of referendum material must send a copy of the advertisement along with details of distribution and targeting to the Electoral Commission within 24 hours of the advertisement being published. The Electoral Commission will then be under an obligation to make this information public. The bill is currently being debated and is at the second stage of the House of Lords. The progression of the bill should be followed in earnest as analogous reform in Ireland may bring more transparency and authenticity to political debates.

Conclusion

While the BAI have provided stringent referendum related guidelines for the television and radio industry, the publication of online and print media content remains largely unregulated. Reform of the area, certainly as regards online coverage, is long overdue. As the influence of online media sources on the political playing field has come to the fore globally in recent years, it is more important than ever that the integrity of the referenda process in Ireland is maintained

For more information on the content of this Insight contact:
Darryl Broderick, Partner, darryl.broderick@rdj.ie, +353 21 4802767