Behind the BCI’s Trócaire decision

Six weeks after the statutory deadline had passed, I received a response to a Freedom of Information request I made to the Broadcasting Commission of Ireland regarding the March decision to ban the original version of Trócaire’s gender equality advertisement from independent radio and TV. (To get up to date, you should look at Eoin’s two posts (1, 2) that contain full links to contemporary news coverage, blogging, legal precedents, etc). Given the recent BCC decision on the “Europe Direct” advertising (which I wrote about here) and the BCI decision on the Irish Autism Association campaign (which Eoin wrote about here), it is absolutely clear that the issue of political advertising (and the interpretation of the relevant provisions of the broadcasting laws) will not go away.

I requested correspondence (incoming and outgoing, email/letters/notes of phone calls/etc) regarding the advertisements, and meetings of any minutes where the matter was discussed. I received hundreds of pages – most of which are complaints sent by members of the public – 99% of which were critical of the decision. (One delightful writer, “a 43 year old man” did congratulate the Commission, as “this shameless promotion of sexist ideas is sickening”. Quite.) The complaints are very useful to the researcher (and if you’re doing work in this area, let me know if you would like a copy), but in this post I’m concentrating on some interesting points I’ve gathered from my reading of the BCI’s statements, in particular those emails/notes that add detail to material that is already in the public domain.

First, I set out the chronology of the decision – confirming what did emerge during the furore, that the BCI received no complaints after the advertisement went on air (radio and TV), and that it was only the broadcaster that raised the issue. I’ve omitted the various pleasantries from this exchange of emails.

Today FM, 26 February: sends an MP3 of the ad with this text: “I’m just a little concerned that it may be in breach of BCI Guidelines.”

BCI, 26 February: “I’ll hopefully be able to get back to you tomorrow on this. When is it scheduled to run?”

Today FM, 26 February: “This is on air at the moment but it only came to our attention yesterday. It is on TV as well.”

BCI, 5 March: “I write further to your email of last week concerning the advertisement for Trocaire submitted by Today FM for the Commission’s consideration. Following detailed consideration of the content of the advertisement, the aims and objectives of the organisation placing the advertisement and the details of the specific campaign being promoted (http://www.lent.ie/takeaction/index.php), it is the Commission’s initial view that the advertisement is contrary to Section 10(3) of the Radio and Television Act, 1988, which prohibits advertising directed towards a political end.

In reaching this view, the Commission has taken into consideration that element of the campaign which encourages members of the public to participate in the campaign for gender equality by signing a petition lobbying the Irish government to enact UN Resolution 1325. As you are aware, in addition to advertisements for political parties, advertisements which are directed towards procuring or opposing changes to legislation and/or changes to government policies and/or changes to the policies of governmental authorities, are deemed to be towards a political end and hence contrary to Section 10(3) of the 1988 Act.

At this point, the Commission requests that Today FM cease broadcast of this notice pending a final decision. Furthermore, the Commission invites the views of Today FM and/or its client regarding this matter. Submissions should be in writing only and should outline any reasons as to why Today FM and/or its client believe that the advertisement is not contrary to Section 10(3) of the 1988 Act.

Finally, I would be grateful if you could provide me with the details of the agency handling the advertisement.

Modified versions of the 5th March email made their way into the various statements that followed.

I was surprised not to receive further documentation on how the decision was reached; apparently my request was ‘granted in full’, and my request included ‘meetings of any minutes where this matter was discussed’ – leading to three possible conclusions: no meetings took place, no minutes were taken (or were destroyed), or information was withheld. What do you think?

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I did receive a copy of a letter from the Chair of the BCI to the Director of Trócaire. It sets out the issues in a little more detail. While most of the issues are also dealt with in the BCI’s press release, there is a little more detail on the question of the link between the advertisement and the website:

The advertisement in question directs members of the public to a website “www.trocaire.org”. You have submitted that the direction to the website is only so that people can make an online donation or order a Trócaire box. However, when the public access “www.trocaire.org” in order to “donate” or “order a Trocaire box” in connection with the Lenten campaign, one is brought to a web page in which the individual is exhorted to “sign our petition”.

I have to say I don’t get that. Given that the permitted version of the ad still included the web address (but with “Support Trócaire” rather than “Support Trócaire’s Lenten campaign”), it’s a rather strained interpretation of the website’s contents and functions.

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The BCI received one particular complaint that highlights some important issues. After responding with the standard statement, the correspondent wrote back, saying: “I am dismayed by your response. What about the issues I raised? Does this incredible interpretation by the BCI of section 10(3) now prohibit any broadcast advertisement that calls for action on societal change? Violence against women, climate change, drink driving??????????.” and “Please respond my question about what precedent is this current prohibition setting.” This provoked a further response (one of the very few that went beyond simple restatement of existing positions) and I set it out below.

Contrary to some coverage of the Commission’s recent decision, there is no blanket prohibition on advertisements promoting gender equality, or for that matter climate change, violence against women, drink driving etc., once such advertisements are not directed towards a ‘political end’ i.e. once they are not advertisements for political parties or advertisements which are directed towards procuring or opposing changes to legislation and/or changes to government policies and/or changes to the policies of governmental authorities. Indeed, there is a range of advertisements for climate change (power of one campaign), violence against women (adverts by women’s aid), among others, which relate to social problems and with which the Commission has no issue.

The Commission’s decision in relation to any advertisement is specific to the contents of the advertisement in question. In this respect, having considered the specific Trocaire advertisement, it is the Commission’s preliminary view that the content of Trocaire’s advertisement was towards a ‘political end’.

The Commission has not made a final determination and in any eventuality, this determination, whatever the outcome, relates only to the advertisement under consideration. Any other advertisements submitted to the Commission will be considered in themselves.

Two issues are very striking.

1. A total refusal to accept any concept of precedent. Given that we’re dealing with the interpretation of a statute on a sensitive issue that touches freedom of expression and access to the airwaves (not to mention the Murphy/Colgan considerations of the public interest), I’m not sure that looking at every single advertisement in isolation is necessarily a good way to vindicate the various rights involved.

2. The second is that we finally start to get an idea of what is OK and what isn’t, complete with some examples. We’re still dealing with the fallout of Colgan but I think it is easier to critique it after reading this defence. If anything, this does confirm the difficulty that (setting aside political parties for a moment), campaigns to ‘change’ public behaviour are OK, but campaigns to ‘change’ (or to oppose change in) Government behaviour are not. You can advertise to encourage men not to hit women but you cannot do it if you suggest that it should be illegal (or more illegal!). Frankly, I find that a highly bizarre interpretation of ‘towards a political end’, and it also departs from the rationale of religious- or industrial dispute-related advertisements, where at least you don’t have this odd division between what is essentially two types of political end. In summary, it’s OK for the government to use broadcast advertising to change our minds but it’s not OK for ‘us’ to use broadcast advertising to change the government’s mind (or indeed the minds of others about the government)! I think this is an important theoretical point that deserves further consideration.

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More on this later or tomorrow.

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