Of Constitutions and Cookery Shows

Dr Conor O’Mahony

Anyone who follows political debate in Ireland, and referendum campaigns in particular, will be familiar with the idea of ͞balance͟. It is a deceptively simple concept: each side of a particular
debate should get a fair crack of the whip, lest the unsuspected voter be manipulated by unseen interests. The quest for ͞balance͟ manifests itself in a number of ways, several of which have been given legal form.

Foreign donors to campaign groups have been presented as a particular bogeyman recently; but this past weekend it emerged that they may have some unexpected competition from cookery shows. The Sunday Independent reported that Minister Katherine Zappone has had a scheduled appearance on TV3’s ͞The Restaurant͟ cancelled for fear that the show might be aired during the proposed referendum on the repeal of the Eighth Amendment (which Minister Zappone supports).

The Broadcasting Act 2009 requires that every broadcaster shall ensure that ͞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 manner͟.

This requirement applies at all times, but the general public tend to become most aware of it when a referendum is called. This is due to the Coughlan judgment of 2000, in which it was held that RTE’s
treatment of the Yes and No campaigns in the 1996 Divorce referendum failed to achieve balance and gave rise to unconstitutional unfairness.

The matter complained of in the Coughlan decision was the allocation of airtime for uncontested partisan broadcasts. Every major political party was given a slot, in addition to which the Yes and No campaigns were given 10 minutes each. However, since all political parties were advocating a Yes vote, the Yes side got 40 minutes of uncontested airtime, whereas the No campaign only got 10 minutes.

Few people could argue that this was fair or proper, given the scale of the imbalance and the nature of uncontested partisan broadcasts. However, the impact of the decision has filtered into every single news item or discussion that touches in any way on a referendum campaign. Frequently, it is implemented as a blunt instrument, where stopwatches are used to ensure that each side gets an equal amount of time to present their case.

This can create a highly artificial atmosphere. Readers might remember the debate on the Late Late Show during the Marriage referendum in 2015. In a mostly well-executed format, two campaigners on either side did short individual interviews before engaging in a set-piece debate. By the time Ryan Tubridy was bringing proceedings to a close, no one on the Yes side could have claimed that they had not been given a fair hearing.

Nevertheless, Tubridy’s producer interrupted him in the middle of his summation, instructing him to inform viewers that the Yes campaign had been given slightly less time overall and had a few more seconds to make their case. This was both unnecessary and of little use to anyone at that late point.

It is a stilted way to conduct any debate. Broadcasters are so busy trying to regulate time that it can be difficult to interrogate or challenge arguments; moreover, they may be reluctant to do so lest they be seen to be advocating on either side. It is largely left to opposing campaigners to challenge each other, giving rise to ͞Punch and Judy͟ style debates that many viewers find off-putting and unhelpful.

The obsession with the stopwatch approach has reduced the Coughlan decision to what RTE did wrong in the specific case, rather than focusing on the underlying principles that are set out in the Broadcasting Act (which requires that broadcasters are ͞fair to all interests concerned͟ and says nothing about equal time). An extreme imbalance of uncontested time in that particular case was translated in its implementation into a rigid and almost unworkable requirement of identical time allocation even in a contested setting.

But while an exclusive focus on the stopwatch is not desirable, the idea that the Coughlan decision even remotely precludes the appearance of prominent individuals who have declared support for one side or another on broadcasts that are entirely disconnected from the referendum is just plain daft. What next? If an intercounty GAA player becomes active in a campaign (as several did during the marriage referendum), can broadcasters not screen matches they are playing in?

It seems likely that TV3’s decision in this instance was an aberration. But even so, it is indicative of the state of fear that surrounds the coverage of referendum campaigns, particularly on divisive
moral issues like abortion. The legal straitjacket imposed on the broadcast media seems increasingly anomalous given the absence of corresponding regulation of print and digital media.

The Citizen’s Assembly will debate in January whether there is a better way to do business in the regulation of referendum campaigns. We should listen very carefully to what they have to say.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork.

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