The well-worn phrase “it’s all over bar the shouting” couldn’t be more apt with regard to the Referendum which repealed the eighth amendment to the constitution (article 40.3.3). The referendum is all over, the shouting has begun and it is going to continue for some time. So far the shouting has been confined to a small number of very conservative Catholics on the one hand and people whose fury at the Catholic Church knows no bounds on the other.
These relatively small numbers will grow. When clinics to provide abortion eventually open they will be picketed by conservatives and the pickets in turn will probably be picketed by left-wing groups. This has been the experience in the United States but at least in Ireland we can be reasonably confident that neither side will be armed.
It is important that Ireland studies the American experience not only in order to learn from it but also because there is little doubt that US activists were involved in the referendum, largely on the NO side, but possibly in smaller numbers in supporting the winners. That the US is ultra-sensitive to foreigners intervening in its own electoral events added a touch of irony and paradox to the procedure.
The decisions by Facebook to ban advertising from outside Ireland and by Google to ban all advertising highlighted the total absence of regulation not only of social media in general but also of the online activities of mainline broadcast media.
Here’s an example of what is possible in a referendum or general election. The Broadcasting Authority of Ireland lays down the guidelines for election and referendum coverage and these include a moratorium on broadcasts from 2.00pm onwards on the day before the vote. So let’s take the case of a fictitious broadcaster called Radio Populism or RP for short. Its talk show is drawing a large listenership as 2.00pm approaches. One of the speakers says he is about to reveal some devastating information concerning corruption and bribery by his opponents. Just as he starts to make his statement the clock strikes 2.00pm.
If the broadcast continues then RP will be in breach of the guidelines and get itself into trouble with the BAI. The presenter, however, makes an announcement saying that the discussion will be brought to an end on air but will continue as a podcast on the station’s website. RP, therefore, will move from the highly-regulated sphere of traditional broadcasting to the unregulated territory of the internet.
Once that switch from one medium to another has been made the moratorium will not be broken because the BAI has no authority over internet podcasts and the only things that can deflect the speaker from accusing his opponents of bribery and corruption are the Courts of Justice and the law of the land in the form of the Defamation Act of 2009. The year 2009 was a busy one for legislation for it also saw the arrival of the Broadcasting Act under which the BAI was set up and the regulation of broadcasting in Ireland was brought up to date. Since then there has been an exponential growth in internet media, social and otherwise. What was up-to-date in 2009 is now outdated to almost prehistoric levels in 2018.
One thing that has happened according to successive surveys is that a large majority o the younger cohort of the population listens to radio and watches TV over the internet rather than by traditional broadcast means. In our hypothetical case above while older listeners might have made a dash from radio to laptop to stay with the programme their younger fellow citizens would probably have used the unregulated internet to access the broadcast from the start. In years to come, therefore, the BAI could find itself with nothing to regulate.
There are a number of options. The Act could be allowed to stagnate and we could be off on a Limbaugh-dance to US style Shock-Jock podcast radio where the concept of balance and impartiality of any sort would simply not apply. There are plenty of people with right-wing views who would welcome such a situation and who have enough money to exploit its political and social advantages. On the other hand a new Broadcasting Act could be introduced in an attempt to bring broadcasting regulation particularly in the area of coverage of the democratic process into line with today’s reality.
The first necessity in any new legislation should be a re-organisation of the BAI itself. It is staffed by a highly professional group of public servants whose expertise made an extremely positive impression on me during my membership of the Authority’s board. Apart from the most publicised activity of dealing with complaints against broadcasters the BAI gives financial assistance to broadcasters under its Sound and Vision scheme and this has led to the production of very-high-standard programming especially from smaller independent companies with limited funds of their own.
But the set-up imposed on the BAI by the 2009 Act has led to a highly-complicated situation which has been described, with reasonable accuracy, from within as a “three-headed monster”. The three heads are as follows:
1) The Authority which is essentially the board of directors of the BAI and set the strategic direction of the organisation.
2) The Contract Awards Statutory Committee that does exactly what it says on the tin. It awards licence contracts to broadcasters.
3) The Compliance Committee is another statutory body and it monitors broadcasters for compliance with broadcasting regulations such as impartiality. It also investigates complaints against broadcasters and publishes its decisions. But it’s even more complicated than that.
As might be expected in any public or private company, decisions of the Contract Awards Committee are put to the board of the Authority for ratification. The Authority is, after all, the board of directors. The Compliance Committee’s decisions, on the other hand, are not ratified by the board. In effect therefore the Compliance Committee is an independent body with some membership links to the Authority itself (it includes two Authority members and two members of the full-time staff). So when you read that the Authority has upheld a complaint against a well-known broadcaster on RTE it is not the Authority but the Compliance Committee that has made the decision. A far more straightforward and effective system is undoubtedly needed.
A new Broadcasting Act would deal particularly with impartiality during the course of referendums and elections. There were those on the YES side in the recent referendum who were not keen on the concept of balance. One person put it bluntly to me that the “Iona institute got too much publicity” because of the impartiality regulations. It would also have to deal with the thorny matter of internet and social media regulation.
In my view while this attitude is understandable in the heat of what has been a very tense and emotional campaign it could, if applied to any new legislation, lead to a very dangerous situation in which those with the most money would get the most publicity. I have no problem with lack of balance on an ordinary day- to-day basis but elections and referendums are a different matter.
Broadcasters’ podcasts should surely come under the same regulation as traditional broadcasts but Social media is a different matter. Freedom of expression on Facebook, Twitter and elsewhere is unregulated and should remain so. Advertising however presents a major problem. In the 2016 election that produced Donald Trump as President of the United States it has been discovered that a Russian Troll Farm bought thousands of dollars of political advertising without being identified for what it actually was. Do we want a similar situation here with Conservative Evangelical Christians from the Deep South of the USA attempting to influence Irish votes through the internet just as some of them did on the ground during the referendum campaign? Do we want, on the other hand, wealthy foreign liberal organisations doing it? At the very least we should know precisely where this advertising is coming from.