Monday 25 March 2019

Offence clause may chill broadcasters

Curb on offensive material is only one of the tricky issues facing new watchdog, says Colum Kenny

Colum Kenny

THE new Broadcasting Authority of Ireland (bai) has powers to fine broadcasters that "cause offence". The authority is expected to be established next week.

The Broadcasting Act 2009 has introduced a duty on broadcasters to ensure that "anything which may reasonably be regarded as causing harm or offence" is not broadcast. The Broadcasting Authority, which replaces the former Broadcasting Commission of Ireland (BCI), has powers over RTE, TV3 and privately owned radio stations.

The Department of Communications said last week that the new provision simply replaces former requirements relating to "taste and decency" and is in line with international practice. But the reference to penalties for "causing offence" comes hot on the heels of the Government's controversial new blasphemy provision and may have a chilling effect on some broadcasters.

Causing offence can be a constitutional right. It is also a good thing if it shakes people out of complacency about institutional hypocrisy or challenges personal misbehaviour. Ireland still has strict defamation laws, and a Privacy Bill before the Oireachtas may result in legislation that further inhibits frank comment.

The BAI is just one of three related bodies that the Government is appointing in the radio and television sphere. Where before there was just the BCI and the Broadcasting Complaints Commission, now there will be three chairpersons named by government to run the BAI, its new Broadcasting Compliance Committee and its Contracts Award Committee.

In the case of the BAI, five members will be directly appointed by the Government. But four others will only be appointed by the Government weeks later, after receiving non-binding nominations from an Oireachtas committee. It is unclear whether the Oireachtas committee will invite applications for its nominations, or simply decide these on the basis of party horse-trading.

In the case of the BAI's new Broadcasting Compliance Committee and its Contracts Award Committee, four members of each (including the chairperson) will be appointed directly by the Government while the other four in each case will be two staff and two members of the BAI appointed by the BAI itself.

The new BAI has many powers, including the policing of all broadcasters by means of various regulatory codes and fines, the rapid creation of a late framework for Irish digital terrestrial television (DTT), and the monitoring of RTE's relationship with independent producers.

RTE has long been the largest, if not the only, show in town for many independent TV producers. They are disappointed that the Broadcasting Act 2009 does not compel the station to devote greater resources to their business.

The private owners of local radio stations are also sceptical about RTE's dominant role in respect of new digital radio services. Last Friday, the BCI launched a research report on "competing options, public expectations" in respect to that medium. Given the recession and drop in advertising revenue, few private radio stations can afford to launch extra services.

Yet RTE's dominant position in the market, due partly to its receipt of the TV licence fee, has allowed it to put together a package of digital radio services that in turn strengthens its dominance.

There is an added bonus for RTE in launching those digital stations now. Unlike most local radio stations, which are obliged to devote 20 per cent of their time to news and current affairs, all RTE's radio services are deemed by the new Act to be just one service for such purposes. So RTE can reshape 2FM, for example, by claiming that RTE caters elsewhere to young people or to those who want current affairs.

This apparent inequity in Irish broadcasting policy had encouraged the BCI to take a relaxed view of what actually constitutes news and current affairs on privately owned radio.

Some requirements in the new Broadcasting Act are watered down by qualifications. For example, a section that starts by obliging the Government to ensure that those appointed to the BAI actually have some experience of, or capacity in, media affairs, goes on to allow the appointment of people who, instead, have experience only of the arts or business or trade union affairs, among other exceptions.

And a section that introduces at last into Irish law a longstanding EU law that TV broadcasters give a right of reply to citizens whose interests (and in particular their reputation and good name) have been damaged by an assertion of incorrect facts in a programme, lists no fewer than 19 reasons why any request for a right of reply may be rejected.

Also evident in the wording of the bill is a certain suspicion of the community radio sector which has lingered since legal competition to RTE was first allowed in 1988. Community radio was immediately deemed a third tier while commercial local radio was given a head start.

The fear that undesirable elements might somehow get control of the airwaves at community level and unduly influence people is reflected in a stringent condition in the new Broadcasting Act that the BAI may grant a contract to run such a station only to people who are "representative of, and accountable to, the community concerned".

It is as if community radio is too close to the bone -- that its success in hitting local nails on the head might cause offence and divert advertising revenue away from safer corporate interests that control most local and regional stations.

Just how the BAI will interpret its duty to stop all broadcasters from causing harm or offence will emerge when complaints are made to it or to its new Broadcasting Compliance Committee. The existing BCI has been slow to intervene in the provision of content, allowing considerable freedom to broadcasters to do as they wish. If the new BAI is established next week as expected, it will fall to that new body to determine whether or not TV3 is currently in breach of regulations under a European directive that bans the sponsorship of current affairs programmes on television.

In its first two weeks on air, Tonight with Vincent Browne, sponsored by Bank of Scotland, dealt for the most part with a range of economic, social and political issues.

The outgoing Broadcasting Commission of Ireland did not rush to consider this problem, instead waiting for TV3 to send it copies of the programmes.

After 11 years as chairman of the BCI, when he had expected to be there for just five, retiring chairman Conor Maguire has had to deal with more than his fair share of contentious, regulatory and legal matters.

Vincent Browne may be the first problem for his successor at the new Broadcasting Authority of Ireland.

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