Last week the Broadcasting Authority of Ireland (BAI) released its latest batch of decisions [1] relating to complaints made against broadcasters. Very often the complaints allege that a particular broadcast failed the test of objectivity and impartiality. The BAI upheld none of the five complaints it investigated. Two of the complaints related to RTE’s Ray D’Arcy Show: one of these objected to how the broadcaster in question handled an item on the topic of gay marriage, while the other objected to how he handled an item on abortion. The BAI’s rationale for dismissing the complaints is deeply flawed and merits criticism.
Under s. 39 of the Broadcasting Act 2009, broadcasters are required to present news and current affairs items in an objective and impartial manner without any expression of the broadcaster’s own views. Under s. 42 of the Act, the BAI is required to prepare a code governing broadcasting standards and practices. This code is to provide for the duties outlined under s. 39 of the Act. The BAI has fulfilled its obligations in this regard: its “Code of Fairness Impartiality and Objectivity in News and Current Affairs” enumerates 29 rules broadcasters are expected to abide by.
This blog will examine the first complaint alluded to above (the next will deal with the second).
The first complaint took issue with the Ray D’Arcy show of May 25th last. That show focused on the results to the marriage referendum. The complainant alleged, and RTE accepted, that Ray D’Arcy repeatedly expressed his own views on the referendum result throughout the broadcast. Yet the BAI rejected the complaint.
One of its reasons for doing so was that although the subject under discussion was a news and current affairs item, it was, the BAI claimed, no longer a matter of “public controversy or debate” at the time of the broadcast. The BAI’s argument entails that once a referendum (and why not an Act of the Oireachtas?) passes, there is no public debate to be had on the issue in question and broadcasters can be as partial and subjective as they want when dealing with the topic. But surely a matter can remain relevant for public debate even after one perspective on it has been endorsed in law.
However, by this logic it would have been perfectly acceptable for broadcasters, following the passage of the 1983 pro-life referendum, to be nakedly and unashamedly pro-life because the debate was now “over”, especially in view of the two to one margin in favour of the pro-life amendment (versus a roughly three to two margin in favour of the marriage amendment).
The next reason offered by the BAI for rejecting the complaint strains credulity even further. In the BAI’s own words,
“The Committee noted that the presenter gave his opinion on the outcome of the Marriage Referendum and while the BAI’s regulations prohibit the articulation by a presenter of a partisan position, they do not prohibit a presenter, when dealing with a current affairs issue, from giving opinions.”
Here, the BAI misrepresents both the Broadcasting Act and its own Code. The Act does not make mention of “partisan position”. Instead it prohibits the expression of the broadcaster’s “views”. An “opinion” certainly is a “view”. And while the BAI Code does mention “partisan position” the term is used to qualify the meaning of “views”. To wit, the BAI Code states: “a presenter and/or a reporter on a current affairs programme shall not express his or her own views … such that a partisan position is advocated”. In other words, while views may perhaps be allowed partisan views endorsing a particular position certainly aren’t. Mr. D’Arcy’s views certainly were partisan: he clearly and repeatedly expressed support for one view on what the Constitution ought to mean over another, in a context where almost 40% of those who voted took the opposite view.
How does the BAI justify mangling the express meaning of both its own Code and the Broadcasting Act? It claims that preventing presenters from giving opinions on current affairs would “likely impact on audience enjoyment and engagement.” No evidence is provided to substantiate this assertion. But that’s not the point. Even if there was evidence to show that audiences are entertained by broadcasters breaking the law and ignoring professional standards, this would not release them from their statutory and professional obligations.
It is curious how the BAI presents its case. Logically, either of its arguments, if sound, would have sufficed to dismiss the complaint. So why submit two? Is the BAI unsure of its own rationales?
The next blog deals with another item on RTE’s Ray D’Arcy show, this time on the topic of abortion.