The Broadcasting Act 2009 provides for the establishment of the Broadcasting Authority of Ireland (BAI) as the independent regulator responsible for the oversight of compliance in relation to broadcast content in the State. One of the objectives of the Authority, set out in Section 25(b) is to ensure “that the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression, are upheld”. Section 39 of the 2009 Act provides for the duties of broadcasters and includes duties, for example, in relation to objectivity and impartiality in news and current affairs. In the discharge of its functions, the BAI is required, under Section 42, to draw up Broadcasting Codes on the standards and practice to be observed by Broadcasters and for compliance matters. In the context of these statutory provisions, the BAI has recently developed Guidelines in Respect of Coverage of Referenda, to be read in conjunction with the Code of Fairness, Objectivity and Impartiality in News and Current Affairs.
It is incumbent upon the BAI and all broadcasters in the State, to ensure that they adhere to these Guidelines, as well as to the spirit and letter of the relevant judicial rulings in this area. The basis for the practice whereby broadcasters feel constrained to give 50% of airtime to both sides of a referendum campaign derives from an interpretation of the Supreme Court ruling in the case of Coughlan v. The Broadcasting Complaints Commission and RTÉ, rather than in any legislative provision or guidance from the Authority. I have no plans, therefore, to amend the existing legislation in this area. However, as I have said elsewhere, I would invite the BAI and the public service and commercial broadcasters to consider what further refinements can be made to the Guidelines in Respect of Coverage of Referenda, while respecting the strictures of the Supreme Court judgment.