112
CHAPTER V: Public Service Broadcasting in the Republic of Ireland (1988 - 2004)
Ireland (Eire) has 4 million inhabitants, it has been a member of the European
Union (respectively EEC) since 1972. According to 2002 census data (published by the
Central Statistics Office, www.cso.ie) ca 225,000 non-Irish residents live in Ireland (the
majority (ca 134,000) of them come from E U countries; there are also about 20,000 Africans
and 22,000 Asians living in Ireland). Ireland has two official languages, Irish and English, a
Parliament (Oireachtas) with two chambers: the House of Representatives (Dail Eireann) and
the Senate (Seanad Eireann).
There are certain historical developments that need to be kept in mind throughout the
argument as they had a significant impact on media legislation, I alert to these in the sections
dealing with specific legislature and historical periods.1
Most of these events are related to
Northern Ireland and the clashes between Unionists and Nationalists (Protestants and
Catholics) in that part of the island. Without doing any justice to the complex historical
developments that led to the partition of Ireland let me just very briefly outline how the
independent Republic of Ireland came into being. The co-existence of Irish and English on the
island has a long history and it has been problematic for a number of centuries when
following a civil war the so-called Anglo-Irish Treaty was signed in 1921 and on its basis
Ireland was partitioned. Twenty-six counties in the southern part of the island
(overwhelmingly Catholic) became the Irish Free State which was given the status of
dominion (similar to that of Canada) and the remaining six northern counties became the state
of Northern Ireland with an inbuilt Protestant majority and part of the United Kingdom.
Eventually, the twenty-six counties of the Irish Free State became an independent republic in
1949 and left the (British) Commonwealth of Nations.
Another important issue to be kept in mind throughout is the status of the Irish
language. In the Republic of Ireland Irish is the first official language (there have been efforts
to make it an official language within the European Union as well) and it is a Celtic language,
approximately 2000 years old. It belongs among Goidelic languages (together with Scots
Gaelic and Manx; the other group of Celtic languages being Brythonic with Welsh, Cornish
and Breton), "as early as the year 1000 the two subgroups, although sharing many general
features, had diverged considerably, and the relationship between them is only apparent when
1
There are a number of sources that can act as a starting point for learning more about the history of Ireland. A
succinct outline of the most recent history of the Irish conflict can be found at http://www.bbc.co.uk/historv/
war/troubles/.
113
they are subjected to a historical-comparative study. A thousand years later, there is no
question of any degree of mutual intelligibility between e.g. Irish and Welsh" (Doyle, 2001:
10). Despite its ancient origins and due to the significant influence of English in Ireland
(which had a much higher status) combined with the effects of the famine2
by 1891 only 14%
of the population reported to speak Irish. A number of efforts were made to revert this trend,
the first among them the foundation of the Gaelic League in 1893. Yet, as Doyle points out,
"even at the most generous estimate, there are not more than 10,000 native speakers left, most
of them over the age of forty" (ibid.: 11). As I demonstrate later politicians were put under
significant pressure to recognize the importance of Irish language in broadcasting and
eventually an Irish language public service television channel was established.
The case of Irish public service media is usually not dealt with in much detail thus I
consider it important to provide a brief account of the most important dates linked with its
developments. Irish public service radio (Radio Eireann) was established in 1926, followed by
television in 1961.3
Until 1960 when the Radio Eireann Authority was established,
broadcasting was under direct government control. Due to overspill from Northern Ireland
(the six northern provinces of the island which form part of the United Kingdom) UK
television channels (public service as well as privately owned) have been available
throughout. In 1996 the Irish language public service television channel TG4 was established.
The most recent development in the sphere of broadcasting was the government's
unsuccessful bid for digital terrestrial television licences in 2001.
It also applies in the Irish case that the legislative process and the policies related to
public service broadcasting are often linked with the efforts of not only concrete political
parties but indeed specific politicians and also, specifically in the Irish case, the Catholic
Church and senior figures in the Church. The scope of the dissertation does not make it
possible to deal with these influences in any depth, however, in cases where these influences
(or the impact of other interest groups) are evident I highlight these. Similarly as in the cases
of the Czech Republic and Slovakia the legislative process can be followed on the basis of
minutes and other records available at both houses of the Irish Parliament (Oireachtas).4
" Between the years 1845 and 1850 a failure of potato crop led to an estimated one million deaths from starvation
and disease and a massive wave of immigration (particularly to the US and Britain). As a consequence the Irish
population of eight million was reduced to about five million.
3
Corcoran (2004: 98) points out that the decision to establish a television service financed by a licence fee was
reached in 1959 and was preceded by nine years of debates about the funding structure and it was widely
expected that the television service would be privatised and financed entirely from advertising revenue.
4
The Parliament has a Joint Committee on Communications, Marine and Natural Resources
(http://www.oireachtas.ie/viewdoc.asp?fn=/documem and the
114
In order to be able to understand the significance of Irish media legislation passed in
the last 15 years it is actually useful to go further back in past and first deal with the
Broadcasting Authority Act 1960 which established Radio Eireann Authority (further
Authority) as a body corporate appointed by the government (the government had the power
to appoint/dismiss a member of the Authority). The Authority was to establish and maintain a
national television and sound broadcasting service, its general duty was to "bear constantly in
mind the national aims of restoring the Irish language and preserving and developing the
national culture" (section 17), the more concrete duties were stipulated in section 16 and these
included those linked with the establishment of the service and its running (such as acquiring,
installing and operating the apparatus, distribution of programmes, production and purchase
of programmes, entry into contracts and international organisations etc.) and the Authority
also had duties in the field of personnel, these included the appointment of director general
and officers and servants of the Authority. The broadcasting service established by the
Authority should concentrate on maintaining national culture, providing impartial information
and should not include any religious or political advertising. Members of the Authority were
to serve for up to five years (the government would decide on the exact period of service,
indeed up until 1985 the period an Authority spent in office was three years), were to be paid
remuneration out of funds available to it, however, the amount was to be set by the
government, members' expenses were to be paid also out of the Authority's funds and that to
the extent considered reasonable by the Authority.
The broadcasting service was to be funded from a licence fee5
and income from
advertising. The amount of total daily broadcasting time devoted to advertising was to be
decided by the Authority but was subject to the approval of the relevant minister. Importantly,
the Act left the Authority open to censorship by the government, section 31(1) of the Act
stipulated that "the Minister may direct the Authority in writing to refrain from broadcasting
any particular matter or matter of any particular class, and the Authority shall comply with it."
The minister responsible for the passage of the act Michael Hilliard argued that it merely
replicated the powers given to the British Postmaster-General under the equivalent UK
legislation, he also suggested that a situation may occur when it is necessary "to prevent the
House of Representatives (Dail Eireann) has a Select Committee on Communications, Marine and Natural
Resources (http:/MTVw.oireachtas.ie/viewdoc.asp?fn=/documents/Comnuttees29thDail/ Comm Mar Nat Res
Select.htm).
5
Please note that in the Republic of Ireland there are no separate licence fees for television and radio.
115
broadcast of morally objectionable programmes" (as quoted in Horgan, 2004: 21), a month
later though he disclosed his reasons.
A situation can develop here, as it can develop in any country, that when an Authority
broadcasts a certain class of programme or a certain item, they may not be in a
position to have the information that would be at the disposal of the Government in
regard to the implications that the broadcast would have in respect of our relations
with other countries or a crisis at home. Therefore, it is incumbent upon the Minister,
acting for the public in the public interest, to have this authority (as quoted in ibid.).6
It needs to be mentioned here that there is no reference in the Act to sanctions in case a
government issued directive under section 31 was breached. The relations with other countries
could allude to Northern Ireland (respectively the UK) where discrimination against the
Catholic minority in housing and employment (linked with gerrymandering to secure political
power) led to increasing tensions. Another factor that played its role was the border campaign
conducted by the outlawed Irish Republican Army7
between 1956 and 1962, it was an armed
campaign against the British Army and the Royal Ulster Constabulary (the British-established
police force for Northern Ireland, in existence between 1922 and 2001) in Northern Ireland.
The Act thus effectively set up a broadcasting service "under a semi-state body rather
than under direct government control" (Horgan, 2004: 22). Radio Eireann Authority launched
television broadcasting in 1961. In terms of the relationship between the government and the
Authority Corcoran makes the following point:
There is no doubt that the Government found it extremely difficult to come to terms
with the new radio and television organisation that they had created. One of the
reasons for this is that the blueprint for RTE neglected to provide any formal channel
6
In this respect Horgan (2004: 60) points out that any minister would be more than reluctant to use Section 31 as
s/he would face a media and public outcry. Rather, the government would tend to use more subtle and indirect
ways of achieving their objectives in broadcasting. "In this context, and paradoxically, Section 31 - which had
widely been seen at the time it was passed as a threat to broadcasting freedom - was at this particular time
actually a form of protection for the station. It allowed broadcasters to reject inappropriate pressure by pointing
out to government that there was a statutory method of getting their way - should they choose to exercise it. The
broadcasters knew that if a directive was issued under the Act they would have no option but to obey it - but
they also knew that the government was unwilling, for obvious political reasons, to take this particular course of
action in any but the most serious circumstances."
7
Originally the Irish Republican Army (IRA) was organized by Michael Collins following the Easter Rising of
1916 against British rule and its main aim was to achieve independence for Ireland. In order to achieve its
objective IRA was involved in bombings, raids and street battles on both sides of the border following the
partition of Ireland. However, by the time of the foundation of the Republic of Ireland it was much weakened
and indeed by 1949 it was outlawed and turned into a secret organization. My brief historical overview is in no
way comprehensive and it is not intended to be such. However, I have to point out that apart from republican
paramilitary organizations (the most prominent among them evidently being IRA) there were also three major
loyalist paramilitary groups active in Northern Ireland: Ulster Freedom Fighters/Ulster Defence Association,
Ulster Volunteer Force and Loyalist Volunteer Force.
116
through which the Ministers could communicate with the broadcasting organisation
when important national issues were at stake. So boundaries between Government and
RTE had to be established pragmatically, by experimentation and within the political
culture of the time, each side testing its power and gauging possible reactions (2004:
58).
However, the situation in which the service was set up was not complicated only politically
(as suggested above) but also in terms of competition from other television channels. At the
time the service was set up, the broadcasting services provided by the British Broadcasting
Corporation in neighbouring Northern Ireland were already available to about 40% of the
population and the impact of UK-based television channels became even stronger with the
inauguration of Ulster Television8
on 31 October 1959, among the various broadcasters a
fight for audiences as well as advertisers raged.9
During the 1960s and 1970s the^4c/ was amended twice, in 1966 and 1976. The
Broadcasting Authority Act 1966 changed the name of the authority to Radio Telefis Eireann
(RTE or Authority). In the same year the Taoiseach (Prime Minister) Sean Lemass made a
statement on the government's broadcasting policy which made it clear that the government
did not believe it was legitimate to make RTE completely independent.
Radio Telefis Eireann was set up by legislation as an instrument of public policy and
as such is responsible to the Government. The Government have overall responsibility
for its conduct and especially the obligation to ensure that its programmes do not
offend against the public interest or conflict with national policy as defined in
legislation. To this extent the Government reject the view that Radio Telefis Eireann
should be, either generally or in regards of its current affairs programmes, completely
independent of Government supervision (as quoted in Horgan, 2004: 41).
The end of the 1960s marks an emerging difficult period for broadcasters (and
journalists in general for that matter) based in the Republic of Ireland as well as in Britain in
respect of reporting events from Northern Ireland where the civil rights movement10
became
UTV forms part of the ITV Network - a U K commercial national network that began broadcasting in 1955.
9
In this respect it is important to point out that as RTE built its position in the advertising market it in some
cases faced cold treatment by newspapers as it threatened their position in the advertising market. In relation to
government interference with the content of broadcasts Horgan demonstrates that "although they were critical of
Government, the newspapers editorially were less resolute in their defence of RTE than might have been
expected. This may have been partly related to the growing sense of rivalry between the media, the invasion of
the advertising market by RTE, and by the fact that most of the broadcasters now in the firing line were not
journalists - in the sense that they were not members of the NUJ [National Union of Journalists]" (2004: 101).
1 0
The Northern Ireland Civil Rights Association was formed in January 1967 as a reaction to discrimination
against Catholics. The Association made five demands: one man one vote in council elections; an end to
gerrymandering in respect of electoral boundaries; prevention of discrimination by public authorities and
117
prominent in the autumn of 1968 and a subject of major controversy when the Northern Irish
government banned civil rights marches (claiming the Northern Ireland Civil Rights
Association was a front for the Irish Republican Army) and forcefully dispersed them. In
October 1968 and in January 1969 civil rights marches were either dispersed by the Royal
Ulster Constabulary or attacked which deepened tensions between Protestants and Catholics
and by the summer of 1969 Catholic homes were being burnt and Catholics were attacked on
the streets of Belfast. At approximately the same time the Irish Republican Army split into
two wings, the Official IRA (advocated a united Ireland but did not support terrorist activities)
and the Provisional IRA (viewed terrorism as a legitimate means of achieving unification).
In September 1971 RTE prepared a current affairs programme11
in which members of
the IRA were to be interviewed, however, on 1 October 1971 the Irish government issued a
directive under section 31 which prevented the RTE from broadcasting the programme, this
intervention was to have long-terms effects as it very vaguely directed the Authority "to
refrain from broadcasting any matter of the following class, i.e. any matter that could be
calculated to promote the aims or activities of any organisation which engages in, promotes,
encourages or advocates the attaining of any particular objective by violent means" (as quoted
in Horgan, 2004: 99). The directive was renewed annually and was in place until 1994,
understandably it had a huge impact on freedom of broadcasting and on RTE as such. Initially
RTE's reaction was "despite the protests and the anxiety about future coverage ... that the
directive was, in essence, manageable, although its application to a range of programmes
inevitably raised problems" (Horgan, 2004: 103). Horgan goes on to point out that
understandably at the managerial level there was a lot of watchfulness (even edginess) which
related not solely to programmes about Northern Ireland and the situation was to get even
worse as "the shooting of 13 [in total 14 as another wounded civilian died later] civilians
taking part in the civil rights march in Deny on 30 January 1972,12
however, inaugurated a
effective handling of complaints; fair allocation of public housing and the repeal of Special Powers Act and the
disbanding of B Specials (Protestant dominated auxiliary police force). The Association emerged at a period that
appeared to be more favourable for the reconciliation of Protestants and Catholics (respectively Unionists and
Republicans) during the so-called O'Neill era (the period between 1963 and 1969 when Terence O'Neill was
Prime Minister of Northern Ireland). At the time the Irish Taoiseach (Prime Minister) was invited to Northern
Ireland and O'Neill made an unprecedented visit to a Catholic convent school and shook the hand of a nun.
1 1
For a more detailed account of the handling of Northern Ireland at this period by RTE's current affairs
programmes see Horgan, 2004: Chapters 3 and 4 (with the telling titles: "The North erupts" and "Censors and
sackings").
1 2
The events of so-called Bloody Sunday when British troops opened fire and killed 14 civilians taking part in a
civil rights march. The then U K Prime Minister Edward Heath announced an inquiry into the events of the day
and Lord Widgery who led the inquiry concluded that the soldiers were first fired on and no deaths would have
occurred had there not been an illegal march in the first place. There were a number of problems with Lord
Widgery's report, perhaps most importantly there was no conclusive evidence suggesting that the dead or
118
period of dramatically increased tension" (ibid.: 106), indeed this tense period culminated in
the dismissal of the Authority13
for a breach of the directive under section 31 in November
1972.
The Broadcasting Authority Act 1976 brought some significant changes. On the one
hand, it stipulated that a member of the Authority could be removed only if resolutions calling
for his/her removal were passed by both houses of the Parliament (Oireachtas) thus
weakening the power of the government of the day over the Authority. More importantly,
however, the Act continued to empower the relevant minister to order the Authority to refrain
from broadcasting any matter that "may reasonably be regarded as being likely to promote, or
incite to, crime or as tending to undermine the authority of the State" (section 16).14
The
minister had to lay any such order before each House of the Oireachtas after making it and in
case either House passed a resolution annulling the order, it was annulled without prejudice to
its validity prior to the annulment. However, as Horgan points out "despite the continuing
campaign by the NUJ [National Union of Journalists] on Section 31, and despite Dr O'Brien's
change in the law to allow any directive to be debated in the Oireachtas under certain
circumstances, no directive was challenged for a very considerable period" (2004: 143).
Among the Authority's duties the Act also listed the provision of a broadcasting service that
furthers the understanding of other cultures, in particular those of the member states of EEC.
The Act also set up the Broadcasting Complaints Commission (BCC) which was to
have at least three members and was to be appointed by the government for a maximum of
five years, members' remuneration and allowances were decided by the relevant minister.
Such individuals who were nominated to either House of the Oireachtas or the European
wounded had been shot while handling a firearm. In 1997 the Irish government submitted a substantial dossier of
evidence to the U K to back demands for a new Bloody Sunday inquiry. In 1998 Tony Blair announced an
independent judicial inquiry into Bloody Sunday, it was to be headed by the British Law Lord, Lord Saville of
Newdigate, and two judges from Commonwealth countries. The findings of the inquiry are to be made public. At
the time of writing (Spring 2005) the Bloody Sunday Inquiry has not yet concluded, for more detail see
http://www.bloody-sunday-inquiry.org.uk. Bloody Sunday has played a significant part in artistic imagination as
it was rendered in fiction (Brian Friel's Freedom of the City), music (U2's Bloody Sunday) as well as film
{Bloody Sunday written and directed by Paul Greengrass).
1 3
"Jack Lynch [then Prime Minister of the Republic of Ireland] later told the story that when he met Ted Heath
[then Prime Minister of the United Kingdom] soon after this [the sacking of the entire Authority], the British
Prime Minister was most impressed with Lynch's strength of will in dismissing a public body that numbered
among its members the widow of a former President (Bean Ui Chellaigh). It would, he thought, be like firing the
BBC governors while the Queen Mother was still a member" (Corcoran, 2004: 61).
1 4
1 omit the context in which the Act was passed, suffice it to say that the situation in Northern Ireland did not
improve at all, indeed IRA extended its terrorist campaign to Great Britain in 1972 (21 people were killed in the
bombing of a Birmingham pub in 1974, in 1979 IRA assassinated Louis Mountbatten, 1st First Earl Mountbatten
of Burma, Last Viceroy of India, in 1984 IRA planted a bomb at the Conservative Party conference in Brighton
with the aim of assassinating Prime Minister Margaret Thatcher). In 1974 the British government passed the
Prevention of Terrorism Act which outlawed IRA.
119
Parliament (or were members thereof) could not become members of BCC and neither could
its members be servants or officers of the Authority. BCC was set up to make decisions on
complaints related to broadcasts (at the time the only broadcaster was RTE), it was to inform
the authority of its decisions, in turn the Authority had to acknowledge acceptance of the
decision and the decision was subsequently published (by BCC or the Authority). The
Broadcasting Complaints Commission was not empowered to award to any party costs or
expenses.
The directive under section 31 preventing the RTE from broadcasting any programmes
that promoted organizations using violent means for achieving their goals remained in power
during the 1970s and 1980s and it brought with itself a number of protests, "the National
Union of Journalists began to organize a campaign against Section 31 which would last for
twenty-four fruitless years, and was generally marked by a protest outside the Dail [chamber
of the Parliament] when the directive was renewed in January each year after 1975 " (Horgan,
2004: 122), resignation of some members of RTE staff as well as industrial action (e.g. a 24hour
strike in August 1985 which involved RTE journalists). The position of journalists
working in Northern Ireland was particularly difficult, "they had to prepare reports for
broadcast in an area in which the entire population had access to transmissions from BBC and
ITV which, although cautious, were not subject to the same restrictions until 1988 [when
similar restrictions were introduced in a notice under clause 13(4) of the BBC Licence and
Agreement and section 29(3) of the Broadcasting Act 1981]15
" (Horgan, 2004: 174).
The Radio and Television Act 1988 set up the Independent Radio and Television
Commission (IRTC) in the form of a body corporate which was to award licences and oversee
the independent broadcasting sector (the Commission was to authorize the sound/television
programme service contractor to operate based on a licence issued by the relevant minister).
Members of the Commission were to be appointed/removed by the government. The Act
enabled to set up one private television programme service provider and sound broadcasting
1 5
In an article for the Irish Times Michael Foley describes the practices used by broadcasters in order to comply
with these restrictions in Britain. "The British ban prevented the words of terrorists or known sympathisers being
broadcast. Initially sub titles were used but, more recently, broadcasters favoured using actors' voices
synchronised with the interviewee's lips. The ban differed from the operation of the Irish broadcasting ban under
Section 31. Members of Sinn Fein and other organisations could be heard speaking on personal matters. The
British ban also lifted during elections. The ban included within its remit those who might give verbal support to
banned organisations but were not actual members. When the president of Sinn Fein, Mr Gerry Adams, was
interviewed on Radio Ulster's Inside Politics programme, his voice was heard as he recounted how his house
was attacked bud the second half of the interview was dubbed, when he answered political questions" ("Dubbing
SF [Sinn Fein] voices becomes the stuff of history" Irish Times 17 September 1994, accessed from
http://homepages.strath.ac.uk/~his04105/news/IrishTimes-94.html).
120
service providers (including a national one). Among the duties of the broadcasting contractor
were the following: provide objective and impartial news and current affairs programming,
refrain from broadcasting anything offending against good taste/decency or anything that
would promote crime and not to breach the privacy of individuals in an unreasonable manner.
The contractor was not prevented from broadcasting political party broadcasts but in such
case unfair preference should not be given to any political party. In terms of advertising the
contractor was bound to comply with codes governing standards and practices drawn up by
the Commission, the Act set a limit on advertising in the case of a sound broadcasting service
- maximum of 15 % of total daily broadcasting time. The Act includes a stipulation which is
not of a general nature: the Commission may specify the period during which the contract is
in force. It is in the power of the Commission to terminate a contract in case the contractor
provided false/misleading information or seriously (respectively repeatedly) breached his
obligations under the contract or the Act. Every broadcasting contract is open to inspection by
members of the public at the Commission's registered office.
The Commission was to have 7 to 10 members with a period in office not exceeding
five years, "a person shall not be appointed to be a member of the Commission unless he has
had experience of, or shown capacity in, media or commercial affairs, radio communications
engineering, trade union affairs, administration or social, cultural, educational or community
activities" (section 21(5)). In case a member had an interest in a company/concern with which
the Commission proposed to enter into contract or in any contract that the Commission
proposed to make the member was to notify the Commission and refrain from any
deliberation on the subject. Individuals nominated to either House of the Oireachtas or the
European Parliament (or members thereof) could not be members of the Commission. The
Commission was to submit its account for audit on a yearly basis and also produce an annual
report for the relevant minister which s/he subsequently laid before each House of the
Oireachtas.
In 1989 IRTC awarded licences for private local radio broadcasting, until then the
only legal radio broadcaster was RTE, yet there were numerous pirate radio stations operating
in the country.16
In April 1989 a private national television licence was awarded to TV3
1 6
Truetzschler points out in this respect: "Unlicensed or pirate radio stations have always existed in Ireland since
the start-up of radio broadcasting in Ireland. This was particularly the case in the period 1960-1988 prior to the
legalisation of private local radio. But even in 2002 the listener/radio enthusiast will find on any day of the year
50 or 60 pirate radio stations operating in different parts of the Republic. Pirate radios seem to be run by
disenchanted license applicants for legal radio stations and others who are of the opinion that radio in Ireland
offers no real choice other than popular music stations and only one or two 'proper' radio station, i.e. stations
like RTE Radio One, catering for all groups in society. Furthermore, the state does not seem to be too bothered to
121
which became the first domestic private television channel, nonetheless, it started
broadcasting almost 10 years later in September 1998 (at the award of a licence there is no
time limit on the setting up of the service).
The Broadcasting Act 1990 introduced limits on advertising broadcast by public
service broadcasters, they were allowed a maximum of 7.5% of the total daily transmission
time. Previously, as I already suggested, it was the Authority that made decisions on
advertising limits that had to be approved by the relevant minister. On the surface and
officially the cap on advertising was to enable competition for advertising in the field of
media (in terms of media competition Ireland is in a specific situation due to overspill from
the United Kingdom as well as the dumping of U K newspapers). Since then it has, however,
become clear that corruption was involved and the limit was repealed by the Broadcasting
Authority Act 1993. Section 4 of the Act enables the minister to "draw up and ... amend, from
time to time as he thinks proper, codes governing standards, practices and prohibitions in
advertising, sponsorship or other forms of commercial promotion in broadcasting services and
the Authority, every sound broadcasting contractor and the television programme contractor
shall comply with every such code in relation to its broadcasting services". The same act
bound the Authority to create a so-called independent television programme account which
would be used for the commissioning and making of independent television programmes. The
Act set the annual amounts that the Authority was to pay into the account (starting with the
sum of £ 5 million in 1994) by 1999 when it was to reach 20 % of the television programme
expenditure in the preceding year. Farrel Corcoran (who acted as Chairman of the Authority
between 1995 and 2000) points out two consequences of this stipulation for RTE. On the one
hand, it inevitably led to the "downsizing" of RTE as a production organization and also to
long-term arguments with Film Makers Ireland - the independent sector's professional
organization - on how to interpret the clause.
If taken at face value, it meant that instead of reaching a stable plateau in 1999 when
the formula reached the full 20 percent, RTE would find itself on a moving escalator,
paying out ever larger amounts to the independent producers. This was because the
base on which the 20 percent was calculated would continue to be subject to the
rampant inflation in the global television programme market that was manifest in the
spirally cost of acquiring programme and sports rights (2004: 104).
shut down the pirates unless their radio transmissions interfere with those of the emergency services or those of
legal broadcasters."
122
Apart from directly broadcasting-related legislation other important legislation in the
1990s included the passing of the Competition Act of 1991which established a Competition
Authority17
as well as the passing of the Freedom of Information Act in 1997.
A significant event in respect of broadcasting occurred on 19 January 1994 when the
government allowed the directive under section 31 to lapse. This, however, did not indicate a
major move towards securing freedom of broadcasting, as John Horgan argues:
The original directive had been imposed at a time of acute political sensitivity, and
had been intended largely to ease the task of the politicians (as the politicians
themselves defined that task) in controlling a difficult political situation. Its abolition
at this point was not due in any way to a sudden access of respect for freedom of
expression on the part of the successors of those who had imposed it in 1971. ... It
was due primarily to the fact that the Taoiseach [Prime Minister], Albert Reynolds,
believed - correctly as it turned out - that it would be an important confidencebuilding
measure in the wary and tentative approach to a new IRA ceasefire.18
The
British ban on interviews with Sinn Fein1 9
or IRA members or supporters, which had
been imposed in 1988, was lifted shortly afterwards by a somewhat annoyed Mrs
Thatcher, who felt that she had no alternative in the circumstances (2004: 202).
Another major event (in 1996) was that RTE was granted an increase in the licence fee, in fact
the first increase in a decade (the Authority has to apply to the government for an increase in
the licence fee, there is no system of indexing thus far).
Major changes in broadcasting were introduced in the Broadcasting Act 2001. Some
of the major issues involve provisions related to digital broadcasting and the establishment of
Teilifis na Gaeilge. In the following I briefly summarize the major provisions of the Act. It
establishes a transmission company which is to transmit analogue and digital broadcast
television services, RTE's transmission network is to be sold to the transmission company, in
1 7
The work of the Competition Authority in the sphere of media concentration has been heavily criticized. For
example, the Competition Authority investigated the concentration of the Irish newspaper market and despite the
concentration of ownership it concluded that there was sufficient editorial diversity thus media pluralism was not
threatened.
1 8
On 15 December 1993 the British and Irish Prime Ministers (John Major and Albert Reynolds) signed a
declaration according to which Sinn Fein (the political wing of IRA) could join the discussion on the future of
Northern Ireland if IRA denounced violence. Similarly, democratic loyalist parties would also be able to take
part if the paramilitary groups to which they were linked stopped violent activities. IRA declared an
unconditional ceasefire on 31 August 1994 following 25 years of fighting, loyalist paramilitary organizations
shortly followed with their own declaration of a ceasefire. The peace process eventually resulted in the signing
of the Good Friday Agreement of 10 April 1998 which was backed by referenda in the Republic of Ireland as
well as Northern Ireland and enabled the setting up of the Northern Ireland Assembly. Things did not go
smoothly though and the Assembly was suspended in late 2003. New hopes regarding a power-sharing
agreement arose in late 2004, however, at the time of writing (Spring 2005) no progress has been made.
1 9
The political wing of IRA. In Irish Sinn Fein means "we ourselves", it is an Irish Republican party founded in
1905 with its main objective to end British rule in Ireland.
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return for which it would receive 28 per cent of the shares of the transmission company. A
multiplex company is also established by the Act and it stipulates that the Authority will get
one multiplex, Teilifis na Gaeilge one half of one multiplex and the television programme
service contractor another one half of one multiplex. The Act changes the name of
Independent Radio and Television Commission to the Broadcasting Commission of Ireland
(BCI) and empowers it to enter into digital content contracts. In relation to community
broadcasting the Act binds the BCI to use a number of procedures to ensure that the
community's needs regarding broadcasting are fulfilled (it can carry out an assessment of the
needs of the community in respect of broadcasting, should establish procedures that enable
members of local communities to make submissions to the Commission in respect of which
contracts should be entered into, it is bound to conduct surveys etc.). Also, the BCI is
required to draw up codes of standards which apply to public as well as private broadcasters
in the areas of general advertising, taste and decency, access rules (for people with visual and
hearing difficulties) and children's advertising.
The Act further states that the national television and sound broadcasting service
provided by the Authority is of public service character, it is to "continue to be a free-to-air
service and be made available, in so far as it is reasonably practicable, to the whole
community on the island of Ireland and the Authority shall have all such powers as are
necessary for or incidental to that purpose" (section 28(1)). Section 28 further defines the type
of programming required from the Authority,
comprehensive range of programmes in the Irish and English languages that reflect the
cultural diversity of the whole island of Ireland and include, both on television and
radio ... programmes that entertain, inform and educate, provide coverage of sporting,
religious and cultural activities and cater for the expectations of the community
generally as well as members of the community with special or minority interests and
which, in every case, respect human dignity (section 28(2)).
Another obligation is to provide news and current affairs programmes and facilitate
contemporary cultural expression and promote innovation and experimentation in
broadcasting. Further, the Act increases the amount that the Authority has to spend on
programmes commissioned from independent producers. Another set of changes brought by
the Act relates to the Broadcasting Complaints Commission (BCC). "Traditionally the
commission [BCC] had no full-time staff and its powers were quite limited in that it could
only enforce the right to reply as set out in the relevant broadcasting laws" (Truetzschler).
According to the Broadcasting Act 2001 BCC investigates complaints and adjudicates about a
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claim, its decision must be published by the broadcaster (BCC has no power to award costs or
expenses). BCC has 7 to 9 members serving for a maximum of 5 years (remuneration and
allowances to be decided by the relevant minister), individuals who are nominated to either
House of the Oireachtas or the European Parliament cannot be members of BCC and neither
can those who are members of either House of the Oireachtas or the European Parliament or
the Authority or the Broadcasting Commission of Ireland or Teilifis na Gaeilge. The^4c/
establishes a new broadcasting authority Teilifis na Gaeilge which is to establish and maintain
a public television broadcasting service primarily in the Irish language. The Act also repeals
Section 31 of the Broadcasting Authority Act 1960 which enabled government censorship.
There is another aspect of interventions in public service broadcasting that is
mentioned by Corcoran, namely the influence of the Catholic Church. Corcoran observes that
while in the 1960s Catholic Church officials made attempts at exercising some degree of
control over broadcasting (he mentions the case of the archbishop naming three individuals
working at RTE who he felt had subversive influence to the then Taoiseach Lemass in 1962),
in the 1990s the power of the Catholic Church has decreased to such an extent that there were
no attempts at interfering with broadcasts in connection with a case of a paedophile priest in
the late 1990s (2004:73).
The foundation of the Irish language public service channel TG4 (originally TnaG)
deserves attention. Its launch was preceded by lobbying (indeed there were also elements of
civil disobedience, for details see Chapter 7 in Corcoran 2004). As I already mentioned
attempts at reviving and maintaining the Irish language date back to the 19th
century and the
demand for Irish language broadcasting was particularly strong in the Western parts of Ireland
(so-called Gaeltacht region) which has the largest share of Irish speakers. There were
a number of available options related to the presence of the Irish language in broadcasting, in
the end it was arguably the most expensive way that was chosen - the founding of a separate
and independent Irish language channel. Its launch was helped also by a turn in thinking
about minority languages at the supranational European level, that is at the European Union
and the Council of Europe with initiatives such as the Charter for Regional or Minority
Languages etc. The maintenance of linguistic diversity thus served as a justification for the
establishing of TG4 (for language rights and their relation to media and diversity see Chapter
II p. 17). Obviously, the launch of a new public service television channel involved a series of
financial as well as programming issues. In terms of programming the Broadcasting Act 2001
bound RTE to produce 365 hours of Irish-language programming for the new channel
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annually (TG4 would get the programmes for free). In terms of financing the government was
somewhat reluctant to provide the money needed out of the state budget thus in the end in
July 1996 it announced an increase in the licence fee by £ 8 thus bringing it to
£ 70 (just a reminder that this was the annual fee for both public service radio and television).
It is not surprising that most of the money gained from the increase went to paying for TG4.
The Broadcasting (Funding) Act 2003 establishes a broadcasting funding scheme. It
binds the Broadcasting Commission of Ireland to prepare a scheme/s for the granting of funds
to support specific types of programmes (on Irish culture, heritage and experience). The
financial resources available for the scheme are an equivalent to 5% of net revenue form
television licence fees and the scheme is to run for three years initially. In August 2004 BCI
launched a public consultation process on the draft funding scheme. In the end of January
2005 it appointed a scheme director for the broadcasting (funding) scheme.
As is clear from the above Irish public service broadcasting has been financed mainly
from licence fee and advertising revenue. Irish public service broadcasters find themselves in
a particularly competitive environment (due to overspill from the UK). The maximum amount
of daily broadcasting time devoted to advertising is decided by the Authority subject to
approval by the relevant minister20
yet as the case of the Broadcasting Act 1990 (which
introduced a cap on advertising) demonstrates undue interference can occur in this respect.
Approximately half of the Authority's income comes from licence fee (television licence fee)
which is not indexed and in order to secure its increase, the Authority has to apply to the
government. In November 2003 RTE made an application for an increase and received an
increase of €2, with effect from January 2004. The licence fee (of €152 per annum) is to be
paid by every household or business or institution, which has a television set. In terms of
organizational structure RTE is subject to the nine member RTE Authority. The executive
board headed by the director general is responsible for the day-to-day running of RTE.
In November 2002 RTE initiated the establishment of the Audience Council that would act as
an advisory body with 22 members representing the public. The Council was set up in late
" In the Republic of Ireland there are two main forms of advertising regulation: government regulation and selfregulation
by the industry itself. As I have already pointed out the Broadcasting Act of 1990 led to the
development of a code of standards (by the relevant minister before the Broadcasting Act 2001 came to force and
since then by the Broadcasting Council of Ireland) which currently governs broadcast advertising. The Office of
the Director of Consumer Affairs can take legal action against businesses who advertise false or misleading
products and services. The Broadcasting Complaints Commission deals with complaints received about material
broadcast, both programmes and advertising, on licensed television and radio stations in Ireland (see p. 10 of the
current chapter). The advertising industry itself is also self-regulatory (see also www.bci.ie).
126
2003 in order to bring the Authority closer to the public. The council acts as an advisory
group to the RTE Authority, it has 22 members and a life span of four years.
Importantly, a more formal link between the Authority and the Council is established as the
chairperson of the Authority's Programme Sub-Committee will be an ex-officio ordinary
member of the Council. The Audience Council interacts with the general public (via
dedicated access type programming on Radio 1, public meetings, web pages, annual reports
etc.), it communicates with the Authority (via the ex-officio member) and also with the
director general as s/he attends at least one meeting of the Council annually and can make
him/herself available as required. The members of the Council participate on a voluntary
basis, they only have their expenses reimbursed.
Currently, in Ireland there are three national public service television channels: RTE 1,
RTE 2 and TG4. There are also four public service radio channels (one of them in the Irish
language). One commercial national radio channel - Today F M - operates in the country and
over 50 regional, local, community etc. radio stations. As I have already mentioned overspill
from the United Kingdom is a major factor and it involves channels such as BBC, UTV, C4,
E4 Sky News etc. In respect of the launch of digital terrestrial television, the above discussed
Broadcasting Act 2001 made provisions for it, the Irish government invited applications for
multiplex licences in 2001. The only applicant has since withdrawn. In 2002 the Office of the
Director of Telecommunication Regulation (ODTR) was replaced by the Commission for
Communications Regulations (ComReg) and the current situation is unclear. In relation to
Ireland and the introduction of digital television it must be born in mind that
with 51 per cent of Irish households subscribing to cable television at the end of 2000,
Ireland had the fourth highest penetration of cable TV in the list of the ten Western
European countries with the highest percentages of households subscribing to cable
TV. The figure for Ireland is surpassed only by those of The Netherlands, Belgium and
Switzerland. About 70 per cent of Irish television homes are in "multi-channel" areas,
i.e. ones which can receive British television signals either off-air or via cable or via
MMDS (multipoint microwave distribution system). Cable television homes can
receive the three Irish television [channels], four British channels (Channel 5 is not
available on most Irish cable television systems) and about 12 satellite television
stations. Aside from becoming subscribers to cable television, viewers in Ireland can
also become subscribers to the digital services of Sky Television. ... At the end of 2001
there were 194,000 subscribers to Sky Digital. ... Subscribers to Sky Digital have a
choice of up to more than 100 broadcast television channels as well as a choice of
subscription channels and pay per view films (Truetzschler).
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Similarly as in the previous chapter the following section considers three overarching
themes:
1. What links does the legislation envisage between public service broadcasting and
democracy?
2. What material resources do legislative measures allocate to public service broadcasting?
3. How do legislative measures propose to ensure the independence of public service
broadcasting from both the market and the state?
And also two other related questions: What regulatory justifications and what regulatory
mechanisms can we identify in the legislation?
What links does the legislation envisage between public service broadcasting and
democracy?
In the case of the Republic of Ireland a starting point for a discussion on the link between
public service broadcasting and democracy is without doubt the fact that ever since the
foundation of public service broadcasting Section 31 provided a means of intervening in and
censoring broadcasting. The scope of the chapter made it impossible to discuss in detail the
impact of the section on broadcasting, suffice it to say that an infringement of broadcasting
freedom can hardly be considered supportive of the critical role of the media. As I already
suggested in Chapter II when dealing with broadcasting regulation in general the regulation of
content raises questions surrounding the justification of such an intervention when, on the one
hand, there arises a need to protect certain interests (e.g. human rights) but on the other such
an intervention is itself an infringement of a fundamental right or freedom. It also needs to be
stressed here that the section raises a number of questions related to effective regulation - its
vague definition made it difficult to comply with it and even more importantly, the nonexistence
of legally stipulated sanctions related to a breach of the section put the broadcaster
(and the Authority) in a complicated and vulnerable position. It is important to remember that
the section was left to lapse only in 1994.
From the very beginning the Irish public service broadcaster (later on broadcasters)
was seen as an instrument of public policy and as such it was not intended to be completely
independent of the government. Under these circumstances it probably comes as no surprise
that the first time a regulatory document stipulates what embodies public service broadcasting
dates from as late as 2001 (the remit includes objective news and current affairs and service to
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the whole island of Ireland21
for more detail see p. ???). Further, in Irish legislation related to
public service broadcasting there is no reference to the creation of a shared discursive space of
a political nature.
Irish legislation on public service broadcasting stipulates that the service should cater
for the needs of diverse groups, minorities, religious groups etc. Importantly cultural diversity
and indeed linguistic diversity and language rights played a key role in the establishment of
the Irish language public service television channel TG4. In respect of diversity I consider it
important that the relevant legislation has specific provisions in relation to local (community)
broadcasting that attempt to ensure that the needs of communities are served by public service
broadcasters.
In respect of "public supervision" over public service broadcasting there are a number
of stipulations which might actually strike one as being somewhat "loosely defined". In this
respect it is enough to think about the power of the relevant minister to appoint the
chairman/chairwoman of the Authority, the lack of stipulations and mechanisms related to
nominations for membership (and the selection of members), the relevant minister's control
over remuneration or indeed the fact that the period in office is not strictly given but rather
stipulated in terms of an upper limit. Many of these mechanisms and stipulations are
determined by political culture, nonetheless, they do not appear to best guarantee the
supervision over public interest in broadcasting. Legal stipulations that are currently in force
are clear about possible clashes of interest and stipulate conditions of membership (as well as
restrictions on it).
Importantly, RTE set up an audience council with the aim of bringing the public
service radio and television broadcasters closer to the public. Nonetheless, judging by the
information on the Council's web pages it lags behind what it promised to achieve, one finds
hardly any information about its activities on the Internet. The audience council could indeed
represent one of the possible ways in which to increase the accountability of the public service
broadcaster to its public yet in the case of the Republic of Ireland public service broadcasting
appears to be accountable first and foremost to parliamentary representatives.
2 1
This part of the remit was not complicated only by Section 31 which restricted reporting on Northern Ireland
and the activities of paramilitary groups but also by the lack of technical equipment that would make
broadcasting over the whole territory of Northern Ireland available.
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What material resources do legislative measures allocate to public service
broadcasting?
In the Republic of Ireland public service broadcasting is financed from a licence fee and
income from advertising (there are limits set on the amount of daily broadcasting time that
can used for advertising). The licence fee is not indexed (although there was an unsuccessful
attempt to convince the relevant minister of the importance of this measure) and the public
service broadcaster must apply to the government for an increase in the licence fee. I have
already argued that such an application does not have to be successful and in some cases even
a successful application actually does not serve as a continuous increase in the broadcaster's
income but rather as a solution to a momentary situation (such as the increase in the licence
fee at the time of the launching of the Irish language channel TG4 to de facto finance the
launch). I have already argued that this arrangement leaves public service broadcasters
vulnerable to inflation and to some extent also to the will of advertisers (importantly the case
of the Broadcasting Act 1990 demonstrates that advertising limits can easily be changed thus
leaving the broadcaster with holes to fill).
Without any doubt, as Corcoran (2004) clearly shows, the fact that public service
broadcasters must discuss their financial decisions (e.g. investment, bidding for licences etc.)
with government representatives/civil servants puts them into a competitive disadvantage
compared with privately owned broadcasters. Irish legislation on public service broadcasting
is surprisingly lacking in provisions preventing media concentration. It, however, appears to
be much less surprising that economic characteristics of public service broadcasting are not
particularly stressed in regulation.
How do legislative measures ensure the independence of public service broadcasting
from both the market and the state?
In this respect we could again turn to Section 31 and financial independence as well. As
I already argued Section 31 provided a channel for the government to censor the public
service broadcaster yet I must stress that it was only used in relation to prohibiting the
appearance of paramilitary organizations in broadcasts (thus in fact in a rather limited way yet
its rather loose wording made matters terribly complicated as I already pointed out).
The political independence of members of supervisory and regulatory bodies is
ensured by stipulations that prevent members of either house of the Oireachtas (or the
European Parliament) to serve, for example, on the Authority. It can be argued that the
restriction should be wider, including, e.g. also political parties. Members of supervisory and
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regulatory bodies must also alert to any possible conflict of interests in the course of their
work. There are also subtler and less direct ways of interfering in broadcasting, yet, Corcoran
(2004) points out that he did not encounter such attempts (nor similar attempts made by
representatives of the Catholic Church) while he acted as chairman of the Authority. Without
doubt a major government intervention in public service broadcasting was enabled by the
Broadcasting Act 1990 which reduced the limit on advertising. This act actually demonstrates
that pressure on politicians (in a better case resulting from lobbying in a worse one from
corruption) from players on the market can be truly threatening to public service broadcasting.
I have already suggested in the previous chapter that public service broadcasters could
be subjected to a regular review that would assess their remit, financing etc. and would
guarantee their continued existence and financing for a certain period of time. Public service
broadcasters everywhere in the world find themselves under increased competition, yet the
case of the Republic of Ireland is a complex one - RTE finds itself in direct competition with
arguably the best public service broadcaster in the world (BBC) as well as privately owned
broadcasters (free-to-air as well as subscribed to; terrestrial, cable as well as digital).
In the Republic of Ireland private broadcasters are not bound by legislation to devote
a percentage of their broadcasting to public service programming.
What regulatory justifications and what regulatory mechanisms can we identify in the
legislation?
The Republic of Ireland has a dual regulatory regime (i.e. there are separate regulatory and
supervisory bodies for public service and private broadcasting). In terms of technological
convergence most legislation relates to digitalization, there has not been much discussion on
the merging of regulatory authorities, for example.
Regulatory justifications include effective communication, public service and
diversity, in relation to public service broadcasting there are, however, no references to
economic benefits (e.g. relating to the very basic economic nature of broadcasting - it being
a public good as well as a merit good and arguably having significant positive externalities).
Public service broadcasters are essentially self-regulated and prevalent regulatory
measures are of the structure and behaviour type (regulation of content is more limited) which
is in line with latest developments in broadcasting regulation as identified in Chapter II.
The following and at the same time concluding chapter provides a comparison among
the analyzed case studies and considers "lessons" to be learnt from them.