Summary of complaint:

Mr Coughlan complained about RTE's policy of allocating uncontested radio and television broadcasts to the Oireachtas political parties in the course of the divorce referendum, and constitutional referenda in general.

Mr Coughlan stated that the RTE Authority's statutory obligations - under Section 17 of the 1960 Broadcasting Act as amended by section 13 of the Broadcasting Authority (Amendment) Act 1976 - charge it with the duty, inter alia, to "uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression". Mr Coughlan contended that, in the context of a constitutional referendum, the obligation requires RTE to refrain from exercising the permissive power which the Authority possesses under Section 18(2) of the Broadcasting Act to transmit uncontested broadcasts on behalf of political parties. Mr Coughlan requested the Broadcasting Complaints Commission to uphold that contention and to charge RTE to base its policy upon it in future referenda.

Mr Coughlan further stated that it is clear that RTE is under no statutory obligation to give the political parties uncontested broadcasting facilities in referenda. Referenda are occasions on which the political parties play quite a different role in the political process from what they do in candidate elections. In constitutional referenda it is the citizens themselves who are legislating directly. The choice is always a straight one between a Yes or No to a particular referendum proposition. Mr Coughlan also stated that RTE is well aware that every political party has members and supporters who support both sides on any such proposition. To accord an uncontested political broadcast facility to a political party, therefore, is practically and in effect to leave it to the leadership of that party to decide the content of the broadcast message. Such content rarely if ever reflects the divided views of the party's members and supporters, and usually constitutes a partisan presentation of the referendum issue in question. In a constitutional referendum context where most or all of the political parties and their leaderships are lined up on one side, this unnecessary and gratuitous practise by RTE has, or can have, the effect of using the State radio and television to make a one-sided, unbalanced presentation of the referendum issue, which in turn impinges directly and adversely on the rights of citizens to equality and fairness in the referendum process.

Mr Coughlan also stated that the Authority's policy in the divorce referendum had the effect of permitting a total of 42.5 minutes of uncontested broadcasting time to the Yes side and 10 minutes to the No's on dates 17th to 24th November.

Mr Coughlan requested the Broadcasting Complaints Commission to uphold the principle that RTE's obligations under the Broadcasting Act point to it either permitting no uncontested broadcasts at all in referenda, so confining coverage of the issues to current affairs programmes, where the views of the political parties can be quite adequately covered, or else to allocate uncontested broadcast facilities on a 50/50 basis to both Yes and No sides, divided between non-party groups and political parties, whether inside or outside the Oireachtas.

Mr Coughlan further requested the Commission to find that RTE's policy of gratuitously granting uncontested broadcast facilities to political parties in referenda, has the objective effect of using the State broadcasting system to confer a significant advantage on one side or another in those referendum contests where there is considerable imbalance between political party or political party leadership support for each side, and where this imbalance bears no close relation to the division of opinion and votes among the electorate and citizens who are engaged in the legislative process. Mr Coughlan also requested the Commission to find that for RTE to confer such an advantage on one side in this way is unfair and undemocratic in a constitutional referendum context.

Mr Coughlan suggested that the facility of an uncontested broadcast at peak viewing or listening time, which is when these broadcasts usually occur, and occurred during the divorce referendum, is a powerful means for enabling those making such broadcasts to get their message to listeners or viewers.

Mr Coughlan also complained about RTE's unscheduled second transmission of a broadcast by the Right to Re-marry Group a few days before the referendum - specifically on Sunday November l9th - without the according of a counterbalancing repeat facility to the other side, violated also the principles of fairness, impartiality and objectivity of treatment of current affairs and matters of public controversy that RTE is obliged to uphold. Granting a repeat broadcast to the No side in order to counterbalance the repeat broadcast given to the Yeses, would seem an obvious thing to do in the circumstances. It would have cancelled out the imbalance arising from the second transmission for the Yes side. Mr Coughlan complained that the failure to accord such a counterbalancing broadcast amounted to a further breach by RTE of its obligations under Section 18.1.b of the Broadcasting Authority Act.

Mr Coughlan would also like the Commission to note that Morning Ireland on Wednesday 14th November carried a series of key passages in support of one side in the referendum from a recorded speech in Tullamore by the Taoiseach Mr Bruton. This amounted in effect to an uncontested radio broadcast in support of one side in the referendum.

Stations Response:

RTE in its response stated that it recognised the particular character of Constitutional Referenda. RTE further stated that it allocated equal time to the presentation of the arguments in favour of and against the issue to be determined by the people, once the relevant Bill was passed by the Dail and Seanad. That policy informed RTE's approach to the 1995 Divorce Referendum.

Over the years, RTE has allocated political party broadcasts to qualifying parties in Dáil Éireann in relation to most referenda. These broadcasts were allocated without regard to the views likely to be expressed therein by the parties. It is in the nature of the political party broadcast that its contents are determined by the political party concerned. RTE has no role in relation to the content of such broadcasts and never has had any such role. The precise allocation of time for political party broadcasts is based on well established guidelines.

Political party broadcasts are transmitted in accordance with Section 18(2) of the Broadcasting Authority Act 1960. Section 18(1) of the Broadcasting Authority Act (as Amended), as it relates to objectivity, impartiality and fairness does not apply to such political party broadcasts. Consequently these broadcasts have to be left out of account in any evaluation of RTE's discharge of its statutory obligations in the matter of the 1995 Divorce Referendum.

The matter of political party broadcasts was before the High Court just prior to the Referendum and in her judgement, Judge Laffoy stated that RTE, having regard to its other statutory obligations, was entitled to allocate time for political party broadcasts at the time of the Referendum without being required to have regard to the content of the views expressed in such broadcasts. RTE had allocated equal airtime to the campaigning groups on each side of the issue and, in her opinion, the plaintiff in the case had not established a cause of action under this heading of its complaint against RTE.

It is also relevant to note that political party broadcasts represented somewhat in excess of 2% of the total amount of time dedicated to coverage of the issues involved in the Referendum.

Regarding the allocation of broadcasts to groups other than political parties, RTE decided to allocate such broadcasts taking account of its 1983 precedent, and given that a substantial element of the campaign, on both sides of the argument, was being carried on by non-political groupings. Whether or not such a facility might have been accorded in 1987 and 1992 is a separate issue and doesn't relate to the question of the coverage of the 1995 Referendum.

The second issue was the unscheduled repeat transmission of a referendum broadcast on behalf of the Right to Re-marry Group. This second transmission was absolutely inadvertent and entirely accidental. To have attempted to take account of this incident by repeating a broadcast from the other side would have been to compound the problem. Most viewers will have recognised this for what it was - a simple error. RTE rejected any suggestion, that this repeat broadcast was a deliberate act.

RTE further stated that the referendum coverage was the subject of continuing review and attention through the agency of the Referendum Steering Group specifically established for that purpose. RTE also stated that they allocated equal air time to the two campaign groups on the Pro- side and two campaign groups on the Anti-side of the referendum issue. RTE was satisfied that it cannot reasonably be construed that its broadcasts represented any breach of its statutory obligations under the Broadcasting Authority Acts.

Decision of the Commission:

Section 18 of the Broadcasting Authority Act 1960 as amended describes the manner in which RTE is required to report upon current affairs and matters of public importance. Section 18 of the 1960 Act has been amended by Section 3 of the Broadcasting Authority (Amendment) Act 1976, and so far as relevant reads as follows:

"(1) Subject to Sub-Section (1 a) of this Section, it shall be the duty of the Authority to ensure that:

(a) all news broadcast by it is reported and presented in an objective manner and without any expression of the Authority's own views.

(b) The broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current 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 the Authority's own views"

In her decision in the Anti-Divorce Campaign entitled Patrick Kenny v Radio Telefis Eireann, delivered November 20th 1995, Ms Justice Laffoy stated that Sub-Section 2 of the Section 18 of the Broadcasting Authority Act 1960 states that "Nothing in this section shall prevent the Authority from transmitting political party broadcasts". It is the opinion of the Commission that RTE did not breach its statutory obligations in broadcasting the various Party Political broadcasts. Section 18(2) allows RTE to broadcast party political broadcasts in the context of the referenda.

The Commission dismissed this part of Mr Coughlan's complaint.

However in broadcasting the second transmission of a broadcast by the Right to Re-Marry" group (which was not a party political broadcast) on the 19th November RTE did breach it's statutory obligations. They failed to counterbalance this broadcast by either giving a repeat facility to the opposing side or in some other way address the imbalance. The Commission upheld this part of the Complaint.