Political Advertising: A Footnote

After the fuss on Trócaire’s ad (see Eoin’s detailed discussions and hundreds of links: 1 | 2), this month’s batch of decisions from the Broadcasting Complaints Commission (BCC) brings some interesting news. Fairly inevitably, in my view, the ‘Europe Direct’ radio ads were found to have been in violation of the infamous s 10(3) of the Radio and Television Act 1988 (as incorporated in the advertising code policed by the BCC under the 2001 Broadcasting Act). The complaints were made by Patricia McKenna and Anthony Coughlan – both with a long-standing interest in this area (McKenna is a Green MEP and campaigned against every European treaty; she also was the person behind the McKenna case on public funding of referendum campaigns; Coughlan is an old reliable of European campaigns and also went all the way to the Supreme Court regarding party political broadcasts and referendum campaigns – the poor BCC was the other party in that case! (Coughlan v BCC).

A key case behind the Trócaire controversy was Colgan v IRTC (‘pro-life’ advocacy on a radio ad); and lo and behold, the BCC opens its weighing up of the submissions with

In assessing this complaint the Commission has paid particular regard to the decision of the High Court in Colgan v. I.R.T.C. [2000] 2 I.R. 490.

and thus we know where this is going.

The Commission tries to draw a line between political and non-political:

The Commission is of the opinion that the EU can be considered a political ideal and therefore, advertisements directed in favour of, or promoting, such ideal may be considered to be political. However, informational advertisements not directed in favour of, or promoting, such ideal, may be considered not to be political.

(Any thoughts on how this framework would affect Trócaire’s original ad?) In any event, even with the ‘informational’ opt-out, it’s still a far-reaching principle.

Applying that framework, the BCC finds that three of the ads (in a series of nine) were OK (‘Team Europe’ speakers available, protections under environmental law and food safety standards), but the other six weren’t (€55 bn received by Ireland, Euro means value for money, EU aid to other countries, Erasmus student exchange, etc). And included in the six we find the radio ad that I heard first, and spat out my tea over:

“Did you know that telephone calls and airfares cost less now than they did 15 years ago? European Union legislation has created more competitive markets and forced down the prices of airfares and telephone calls.”

Apart from the appalling understanding of legal and economic theory, this was hardly ever going to survive scrutiny under s 10. The case of the Commission wasn’t helped by Commissioner McCreevy having said that the campaign would “show the benefits of EU membership”.

In fact, I think the Commission played this one fairly badly from start to finish. The original tender states that the project was for

the broadcast of a series of radio advertisements in all licensed local radio stations to highlight the Europe Direct information facilities

whereas clearly, the final text of the ads went much further than that, and tried to throw in some ear-catching advocacy on the wonders of the EU as a lead-in to ‘highlighting’ the information facilities.

So, six months (!) after the complaints, and five months after the campaign finishes, we find out that the ads shouldn’t have been broadcast. And one might ask – what’s the point of that? The same tender document indicates that the Commission paid €360,000 for this particular run (the tender was just for Ireland, although other projects existed across Europe). The ad agency made its money. The radio stations sold their time. The Commission got its message across without any interruption or interference.

If the content was so harmful as to be a violation of the requirements of s 10, what is the remedy? Surely both Commissions (Broadcasting Complaints and European!) have some explaining to do, given the thousands of listeners who have now heard this powerful but illegal message? I have many, many problems with section 10 (not to mention with the communications strategy of the EU) but this sort of situation makes a laugh of the legislation. A once-off campaign is run, and six months later it’s decided that the campaign was in violation of the law. And the justification for the law is the protection of the sensibilitites of the listeners.

Tell me this: if the statements of the Europe Direct project were so objectionable, should we assume that the State has failed in its duty to protect its citizens from the horrors of political advertising?

Between this, and Trócaire, and the various fusses over political advertising, and Michael D’s suggested amendment, my question is simple. Is it not time to scrap s 10(3) and to come up with something that actually works, with clear definitions of ‘political’ in the legislation and some measure of predictability for the listener, broadcaster and advertiser alike?

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5 thoughts on “Political Advertising: A Footnote

  1. While I’m no fan of s.10(3), I’m delighted with the use the complainants have made of it. It’s inherently objectionable that the
    State (or EU) should take our money and spend it for the purpose of telling us how to think on contested matters of public policy – a point established in the context of referendums by Patricia McKenna. It’s all the more objectionable that the Commission appeared to consider itself above the restrictions on political speech which apply to Irish citizens and organisations.

    Having said that, I’d still prefer to see s.10(3) repealed in its entirety. As I said on Eoin’s blog, it has the effect of protecting incumbents and insiders: http://www.cearta.ie/2007/03/trocaire-revise-ads-in-face-of-bci-ban#comment-1471

  2. Thanks for the comment, TJ. I agree with you that the European Commission or indeed the State shouldn’t be acting in this way. I’ve had this debate/argument with EU staff on a number of occasions, and they normally draw a line between ‘general’ EU advocacy and ‘referendum-specific’ advocacy. To me, though, the problem is the spending, not the context.

    Having said that, though, I think that McKenna et al are being a little misleading in their reaction to the BCC decision. For example, she is quoted in today’s Irish Times as follows (from the “In Brief” section:

    Broadcasting Complaints Commission rulings against radio advertisements from the European Commission in Ireland have been welcomed as “a victory for equality and democracy” by former MEP Patricia McKenna of the Green Party, writes Deaglán de Bréadún.

    In a series of rulings, the commission upheld submissions from Ms McKenna and leading Eurosceptic campaigner Anthony Coughlan, about the content of “Europe Direct” information advertisements organised by the European Commission Representation in Ireland.

    The commission ruled that six of the nine ads “advocated and promoted EU membership and therefore, were directed towards a political end. Such advertising is prohibited.”

    Ms McKenna said: “If the European Commission was allowed to do that, it could use huge amounts of its unlimited resources to influence voters in a future referendum on the EU constitution.”

    .

    As she well knows, the BCC does not have jurisdiction over Commission spending, and simply needs to shift its spending to non-broadcast in order to continue. If the problem is the spending of unlimited resources, then that should be sought. This BCC decision is about the definition of political advertising, not about the European Commission or ‘equality and democracy’.

    PS: Eoin argues in a new post (here) that this case further highlights the problems with s 10(2) and the Murphy case.

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