IRELAND

Expert assessments: Sanctions

In addition, the reference above overstates the powers of the BAI with regards to imposing sanctions by failing to mention the role of the High Court. The BAI may propose sanctions to the High Court for a finding that there has been a breach by a broadcaster, but it may not itself make such a finding or impose sanctions unless a broadcaster requests that the BAI deal with the matter itself.132 Only in such cases does the BAI have the power to directly fine a broadcaster. It is also important to note that the BAI’s regulatory and sanctioning powers apply to broadcast media and it has no functions with regard to either print or online press, which are supervised by the self-regulatory Press Council according to codes of professional ethics and regulations recognised by the Defamation Act of 2009.133

As noted, the statement above appears to confuse two separate statutory powers. The BAI has the power to impose levies on broadcasters for the purpose of financing its operations.134 This levy is subject to later annulment by resolution of either house of the Oireachtas (Parliament).135 However, this levy is based on income, applies to broadcasters generally and does not constitute a penalty on an individual broadcaster.

The Broadcasting Act 2009 defines the circumstances in which the BAI may impose financial sanctions on an individual broadcaster—which is a separate power from the imposition of fees for broadcasters described above.136 Fines of up to EUR 250,000 may be assessed for failure to cooperate with an investigation by the BAI or for breaches to programming obligations or content-related provisions in the Broadcasting Act 2009 and in the set of broadcasting codes which further elaborate rules for broadcasters.137 Although there is a wide range of requirements with which broadcasters are required to comply, it should be noted that only a “serious or repeated failure by a broadcaster to comply with a requirement” will amount to a breach which could warrant sanctions.138 These regulations include prohibitions on certain types of advertising relating to political ends, trade disputes, and religion,139 as well as obligations to present news in an “objective and impartial” manner, and restrictions on content which may cause “harm and offense,” or which is “likely to promote, or incite to, crime or as tending to undermine the authority of the State.”140 The Code of Programme Standards establishes a range of additional content regulations for editorial and commercial content.141 For example, according to these codes “[f]actual programming shall only emphasise age, colour, gender, national or ethnic origin, disability, race, religion or sexual orientation when such references are justified in the context of the programme or in the public interest.”142

The amount of possible fines for breaches to these regulations is subject to the factors set out in Section 56 of the Broadcasting Act 2009, which details a series of elements the BAI should weigh in deciding the appropriate level of sanctions. These include the need to ensure that any financial sanction imposed is appropriate and proportionate and will act to ensure future compliance, and the seriousness of the breach. The default position is that the BAI may propose sanctions and may apply to the High Court for a finding but BAI may not itself make such a finding or impose sanctions.143 However, a broadcaster may make a request in writing that the BAI deal with the matter itself.144 Only in such a case does the BAI have the power to fine a broadcaster. In practice, most broadcasters are likely to consent to the BAI dealing with these matters, both to reduce the possible costs of a High Court action and to safeguard their ongoing working relationship with the BAI.

This author is not aware of any situation in which either the BAI or the High Court has imposed a this sanction on a broadcaster. This is in part because the BAI is such a new institution (having been established by the Broadcasting Act 2009). However, it also reflects a deliberate enforcement strategy by the BAI in which the use of financial penalties is only considered once other softer tactics have failed. While a relatively new authority, the BAI’s powers to impose sanctions on broadcasters do not appear to be a significant threat to press freedom in Ireland. In particular, the requirement that broadcasters consent before a matter is dealt with by the BAI rather than by the High Court operates as a “check” against possible overreaching by the BAI. Moreover, appeals to the High Court suspend the BAI’s decisions, and under the Constitution, appeals against the decisions of the High Court are also permitted.

It is worth pointing out, however, that although there is little criticism of the procedure used to enforce Irish broadcasting law this should not be understood to mean that there is no criticism of the substance of that law. A number of aspects of the law have been criticised as being too restrictive – for example, the prohibition on political, religious and trade dispute advertising has long been the subject of some controversy and even litigation.145 Similarly, the power to fine broadcasters that “cause offence” has been the subject of strong criticism.146 These complaints, however, essentially relate to the substance of the rules enacted by the Oireachtas (Parliament) rather than the manner in which those rules are applied via the BAI.

129 “Criticism 1,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at:http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/criticisms-and-answers-formulated-on-the-subject-of-the-proposed-media-act-examined-in-a-european-context 130 See Broadcasting Authority of Ireland (BAI) at: http://www.bai.ie/. 131 See Broadcasting Act 2009, Part 5, Chapter 2, and specifically Section 54(4)(c), official text available at Irish Statute Book legislative database at: http://www.irishstatutebook.ie/2009/en/act/pub/0018/print.html#part5-chap2. 132 Broadcasting Act 2009, Part 5, Chapter 2, official text available at: http://www.irishstatutebook.ie/2009/en/act/pub/0018/print.html#part5-chap2. 133 The online press is not regulated by the BAI except insofar as provided by the Irish regulations related to the EU Audiovisual Media Services Directive. See SI 258 of 2010, The European Communities (Audiovisual Media Services) Regulations 2010, available at http://www.dcenr.gov.ie/NR/rdonlyres/88659371-2873-4851-BCDE-6C03F7B6E19E/0/SI258of2010.pdf. The Press Council is recognised by No. 163/2010, the Defamation Act 2009 (Press Council) Order 2010, http://www.irishstatutebook.ie/2010/en/si/0163.html. 134 Broadcasting Act 2009, Section 33: “For the purpose of meeting expenses properly incurred by the Authority, the Contract Awards Committee and the Compliance Committee in the performance of their functions, the Authority shall make an order imposing a levy on public service broadcasters and broadcasting contractors.” Available at: http://www.irishstatutebook.ie/2009/en/act/pub/0018/sec0033.html. 135 Broadcasting Act 2009, Section 33(7), available at: http://www.irishstatutebook.ie/2009/en/act/pub/0018/sec0033.html; The current operation of this levy is described in BAI’s Guide to the BAI Levy (April 2010), available at: http://www.bai.ie/pdfs/final_levy_brochure.pdf. 136 Broadcasting Act 2009, Part 5, Chapter 2, available at: http://www.irishstatutebook.ie/2009/en/act/pub/0018/sec0052.html#part5-chap2. 137 A “breach” is defined in Section 52 of Broadcasting Act 2009 to mean “a serious or repeated failure by a broadcaster to comply with a requirement referred to in section 53 (1).” Section 53(1) in turn refers to the following requirements: ‘Section 39(1), 40(1), (2) or (3), 41(2), (3) or (4), 106(3) or 127(6) or a broadcasting code or rule.’” Available at: http://www.irishstatutebook.ie/2009/en/act/pub/0018/sec0052.html. 138 Broadcasting Act 2009, Section 52, available at: http://www.irishstatutebook.ie/2009/en/act/pub/0018/sec0052.html. 139 Broadcasting Act 2009, Section 41, available at: http://www.irishstatutebook.ie/2009/en/act/pub/0018/sec0041.html. 140 Broadcasting Act 2009, Section 39, available at: http://www.irishstatutebook.ie/2009/en/act/pub/0018/sec0039.html. 141 Sections 42 and 43 of the Broadcasting Act 2009 require the BAI to draw up broadcasting codes and broadcasting rules which will elaborate on the above requirements and will also introduce additional requirements (such as the control of advertising to children). The current codes and rules are available at: http://www.bai.ie/publications_codestandards.html. 142 Code of Programme Standards, Section 3.5.3. This document was produced by the Broadcasting Commission of Ireland – the predecessor of the Broadcasting Authority of Ireland – but remains in effect. 143 Broadcasting Act of 2009, Sections 54 and 55, available at http://www.irishstatutebook.ie/2009/en/act/pub/0018/sec0054.html and http://www.irishstatutebook.ie/2009/en/act/pub/0018/sec0055.html. 144 Broadcasting Act of 2009, Section 54(4), available at http://www.irishstatutebook.ie/2009/en/act/pub/0018/sec0054.html. 145 See for example Kevin Rafter, “Hear no evil – see no evil: political advertising in Ireland,” (2011) 11(2) Journal of Political Affairs, p. 93; Murphy v Ireland 44179/98 (2003) 38 EHRR 212, [2003] ECHR 352 (10 July 2003), http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699084&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649; Colgan v IRTC [2000] 2 IR 490, [1999] 1 ILRM 22, [1998] IEHC 117 (20 July 1998), http://www.bailii.org/ie/cases/IEHC/1998/117.html. 146 See Colum Kenny, “Offence clause may chill broadcasters,” Irish Independent 27 September 2009, available at http://www.independent.ie/opinion/analysis/offence-clause-may-chill-broadcasters-1897811.html