We do not specifically address the Coughlan case in our submission but, clearly, it has exercised the minds of this committee.
The BCC is complaint driven. In other words, we have no monitoring role. We receive a complaint from a complainant, which must be in writing and which must be made within a certain time of the broadcast about which a complaint is made. Under current legislation, that is a 30-day period. Thereafter, the broadcaster is given a period within which to respond and the response is then given to the complainant. If he or she accepts the response, it is deemed to be a resolved complaint and it does not go before the board. While decisions are published, other complaints are resolved and do not go to the board for consideration.
In the assessment of a complaint, the commission must consider it on its own merits and, in this regard, it is important for the commission in its work to look into many contextual factors. How does the complaint arise? What is the nature of the complaint? What type of programme is involved? Who are the participants in the programme? Is it a matter of public interest? Has a fair right of reply been provided? Has a fair representation of opposing views been expressed? It should also be borne in mind that the broadcaster decides who should appear on the broadcast and that is a fundamental right. It is up to the broadcaster to decide who will appear. It is important in the commission's assessment of a complaint to consider whether, in the overall contest of the broadcast, the subject matter has been treated fairly. I will return to this later.
While we have a general code of advertising now, previously various Acts dealt with advertising. The concept of advertising not being directed towards any religious or political end or not having any relation to an industrial dispute is not new, as it goes back to the Broadcasting Act 1960 when RTE and the RTE Authority were formed. Subsequently, when independent broadcasters were licensed in the mid-1980s, the concept made its way into the legislation covering them. This provision is nothing new.
I refer to the legislative provisions. Page 2 of the submission refers to section 24 of the Broadcasting Act 2001. The thrust of this section is synopsised in the second paragraph. We state:
These provisions require all licensed broadcasters to ensure that (a) all news broadcast by them is reported and presented in an objective and impartial manner and without any expression of the broadcaster's own views [that specifically relates to news] and (b) 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 the broadcaster's own view. Provided 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.
Page 3 refers to adjudication of complaints — fairness, impartiality and objectivity. In the context of the constitutional referendum process, the current board of the BCC has adjudicated on complaints concerning the Lisbon treaty. We have reproduced at the back of the submission the details and outcomes of the complaints. Members will observe that one main argument relating to the complaints was that the "Yes" side received more favourable coverage than the "No" side. Of the 21 complaints referred to in the appendix, 20 alleged a bias in favour of the "Yes" campaign. All the complaints were considered. The main function of the BCC was to consider whether the subject matter had been treated fairly, which included considering whether views and opinions were sufficiently challenged and-or whether a sufficiently even handed discussion on all the main issues was facilitated. All the complaints assessed by the board were rejected. A total of 17 complaints went to the board while four were resolved before they came to the board.
I refer to an issue addressed to the committee, which is the question of the allocation of time by the commission in the context of a complaint about fairness, impartiality and objectivity. The committee has requested that the commission provides information on decisions made in 2007 concerning complaints against advertisements placed by European Commission representation in Ireland. I am conscious in making the submission of the nature of the due process the BCC undertakes and its independent role in decision-making. However, we are also willing to assist the committee in its understanding of our decisions.
In its decision, the commission considered the nature of the entity, which was the European Union, and the members concluded the EU was capable of having a political dimension or to be a political ideal. The commission also acknowledged in its decision that it was beneficial that a citizen would be aware of his or her rights and it was conscious of the fact that any decision it made on the complaints would not have the effect of impeding or restricting the dissemination of information on the rights of EU citizens. The commission also had to be cognisant of the fact that legislation prohibits advertisements aimed towards a political end.
The commission was of the opinion in regard to these decisions that the EU is capable of being considered a political ideal and that, therefore, advertisements directed in favour of or promoting such an ideal are capable of being considered political. However, an informational advertisement not directed in favour of or promoting such an ideal might not be considered political, thus, in the opinion of the commission, advertisements promoting the benefits of EU membership were capable of being directed towards a political end within the meaning of the advertising legislation and the prohibition on advertising of certain matter and, therefore, considering the text of the each of the nine advertisements, the commission had to determine whether, in its opinion, the content was informational or promotional in nature. An important High Court decision in 1988 dealt specifically with this topic. The commission had to be cognisant of the decision of Mr. Justice Philip O'Sullivan in the case of Colgan v. IRTC. Members will have seen the outcome of the various complaints in this regard. The BCI introduced a new advertising code in April 2007 but it reiterates the provision on advertisements in place before the introduction of the code.
I will make some general observations on impartiality and objectivity in current affairs. It is important to underline that the commission must have regard to the fair treatment of the subject matter. Sometimes people complain that "A" or "B" was not treated fairly, but the commission is primarily concerned that the subject matter is treated fairly. Both sides of a controversial issue or a matter of public importance must be given a fair hearing by the broadcaster. In the context of the Lisbon treaty referendum, the commission had to consider whether the major factual issues and opinions concerning the treaty were treated in an objective and fair manner, which included being fair to all interests concerned. The public was being asked to vote "Yes" or "No". Therefore, any coverage had to ensure both sides of the debate were treated in an impartial and fair manner and afforded sufficient opportunity to express views and opinions. This does not require that all main views be reflected in a single broadcast. The broadcaster must ensure a wide range of significant views are facilitated during the relevant period.
On the advertising codes, the commission must determine if an advertisement has a political end. If it does, the commission has no alternative but to apply the law and determine it to be in breach of the legislation which prohibits such an advertisement. While paragraphs (a) and (e) of section 24(2) apply to two programming formats, in arriving at its determinations the commission has to consider whethere there is a common thread and aim to ensure the democratic process is facilitated and supported. The right to vote in a referendum on the Lisbon or any other treaty is a constitutional right for all citizens. Therefore, one would expect both sides of the debate to be heard.
The decision in the case of Coughlan v. BCC concerned non-contentious debates in the presentation of almost a party political broadcast. The Supreme Court decision is clear in the application of principles to such a broadcast. Members of the committee will have considered that decision. It is important to remember that it concerned broadcasts in the context of a referendum, the special significance the Supreme Court afforded to the referendum process and the involvement of the people in it. On this occasion, because there were no such broadcasts we did not have to adjudicate on any issue under that heading.
