School of Law, National University of Ireland, Galway
The Broadcasting Authority of Ireland (BAI) on 13 September 2011 published an updated BAI Broadcasting Code on Referenda and Election Coverage (Election Code). The updated Election Code sets out rules with which all Irish broadcasters must comply when covering all relevant elections and polls (Referenda; General, Presidential, European and Local elections; Senate elections and By-elections) held in Ireland.
The Broadcasting Act 2009 s.42 provides that the BAI shall prepare, and from time to time as occasion requires, revise codes governing standards and practice to be observed by broadcasters. The updated Election Code reflects existing practice and codes established by the BAI (see IRIS 2011-5/26) with a number of revisions relating specifically to the forthcoming Referenda and Presidential election, which will take place on 27 October 2011.
The updated Election Code was introduced following a short consultation process. While the general prohibition on political advertising is retained (see IRIS 2004-8/23), the updated code reflects the requirements set out in the Referendum Act 1998 (as amended) and s.41(6) of the Broadcasting Act 2009, by confirming that advertisements broadcast at the request of the Referendum Commission are not covered by the prohibition on political advertising.
With respect to party political broadcasts, the updated Election Code provides that, in relation to referenda, broadcasters must ensure that the total time allocated amounts to equal airtime being afforded to both sides of the debate. Party political broadcasts made in support of candidates for a Presidential Election should be taken into account when assessing whether the totality of broadcasts is fair to all interests concerned. While there is no obligation on broadcasters to allocate uncontested airtime to Presidential candidates during a Presidential Election, the updated Election Code requires a broadcaster who chooses to do so to ensure that all candidates are treated equitably and that the broadcast treatment is fair to all interests concerned.
The moratorium period on coverage by broadcasters of an election remains unchanged and runs from 2 p.m. on the day before the poll takes place and throughout the day of the poll itself until polling stations close (see IRIS 2011-5/26). The updated Election Code expressly confirms the application of the moratorium to Referenda coverage. In their guidance notes the BAI acknowledge the difficulties involved for programme makers in striking a balance between requirements to keep the public informed and ensuring that programming does not breach the moratorium. However the guidance confirms that the moratorium on election coverage in the run-up to the poll extends to all areas of programming including newspaper reviews, coverage of opinion polls and information announcements.