Fergus Finlay, Chief Executive of Barnardos analyses recent Broadcasting Complaints Commission’s decisions.
“Do you have views on the Groceries Order which affects the price of your shopping basket? The Department of Enterprise, Trade and Employment wants to hear what consumers think about the Order before 31 July. The National Consumer Agency believes consumers should make their voices heard. To learn more go to Irishconsumer.ie or call 01 6073015.â€
That is the text of a TV and radio ad run by the Interim National Consumer Agency, a body that was set up by the Government (on foot of an independent report) with a specific mandate to ensure, for the first time, that the interests of consumers are brought to the forefront of national and local decision making in Ireland.
The advertisement seems pretty harmless, doesn’t it? You could imagine an ad like that generating a few hits on the web-site, a few phone calls, maybe even one or two expressions of concern about the Groceries Order. That would have been roughly what the people who wrote the ad had in mind - increase public awareness a bit, spread information, maybe encourage debate. But no. Apparently that ad was a political one. It has been outlawed, declared to be illegal. Censored, in other words, or banned, whichever you like.
RGDATA (an organisation that represents the grocery industry and was involved in a campaign to retain the Groceries Order) objected to the ad, and complained to the Broadcasting Complaints Commission. They said the ad was inaccurate and unfair and unbalanced. That’s fine, as far as I’m concerned. Everyone has the right to complain and to have their complaint heard. That’s freedom of expression too.
And the Broadcasting Complaints Commission upheld the complaint. But not on the grounds of inaccuracy, unfairness, lack of balance, or anything like that. They didn’t even find the ad in bad taste (which would have been hard, I grant you). No, instead, they issued this finding:
“The Commission was of the opinion that this advertisement infringed the advertising regulations and in particular… (Section 20 of the Broadcasting Act, which) prohibits RTE from accepting ‘any advertisement which is directed towards any religious or political end or has any relation to an industrial dispute.’
The Commission was of the view that a consultation process concerning an Irish statute is a political one. Through this advertisement, the National Consumer Agency was promoting its position on the Grocery Order. The Agency was encouraging listeners to respond to a consultation process … and thereby, endeavouring to influence a political decision making process. Therefore, the Commission was of the opinion that this advertisement was directed towards a political end. Such advertisements are prohibited.â€
(I’ve shortened the finding for reasons of time, though I haven’t taken it out of context. You can find the full decision on the Commission’s website. As an immediate response to the BCC decision in this case, RTE has decided it can no longer allow any ads to be broadcast that have that sort of “political contentâ€. An RTE spokesperson is quoted in the newspapers as saying that the BCC’s “stricter interpretation†of the law meant it was no longer in a position to air advertisements for public meetings at which “political issues†would be discussed.
What is the “political content†we’re talking about? One ad that had to be withdrawn was for a conference in Kildare organised by the human rights groups Afri and Frontline. The ad said there would be “eyewitness accounts [at the conference] from the Niger Delta and Rossport, Darfur, Iraq and Shannon Airportâ€.
Around the same time, RTE apparently ordered the Broadcasting Act of 2001.
Three additional facts are important. First, the Broadcasting Complaints Commission reacts to complaints - and it must deal with any complaint it receives according to its lights. And secondly, there is no appeal against a ruling of the Commission. No matter how profound the implications of any of its decisions, that is the end of the matter. As a result, and thirdly, both RTE and local radio have now found themselves in the position where they now feel they must reject ads in advance that could fall foul of the complaints system if (a) they were broadcast and (b) there was a complaint.
The BCC made its decision because it took the view that a consultation process about a piece of existing law was a political activity, forbidden by the Broadcasting Acts. In reaching its determination, the Commission quoted a High Court definition of political activity, from a case known as Colgan Vs IRTC; ‘.. .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 law of this country or, I would add, countering suggested changes in those laws……’.
As you can see, this is a pretty wide definition. All of us, I think, can readily understand the need to regulate advertising that is concerned with furthering the interests of a political party. Experience in other democracies would certainly indicate that the development of party political advertising has resulted in political parties and individuals with a lot of resources being able to manipulate the airwaves to their own ends.
But activity aimed at changing the law, conducted openly and transparently, is surely the essence of democratic activity. There may be a need to place some financial limits around such activity, in order to prevent distortion of the democratic process, but the outright banning of an advertisement because it seeks to raise awareness of public policy issues is not just foolish, it is dangerous.
Fergus Finlay, 2006
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