Eighth Amendment: Reporting Restrictions On Media Coverage Of Referenda In Ireland

In light of the fast approaching referendum on the 8th 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 IRTC1whereby 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 IRTC2. 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...