Are YouTube political videos subject to Irish regulation?

Following the controversy over the banning of this Lent’s Trocaire ad as ‘political’ by the BCI, (See, Eoin O’Dell, E. McGarr, VoteTube for details) I thought I’d republish this essay from the McGarr Solicitors site. The short answer is no, by the way.
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The question has been raised as to whether political videos available for view on sites such as YouTube are governed by the same regulations as pertain to the familiar broadcast media.

A good starting point to examine this question would be to investigate what are the sources of the regulation which currently apply to broadcasters in Ireland in relation to political messages.

Section 18 of the Broadcasting Authority Act 1960, as amended by section 3 of the broadcasting Authority (Amendment) Act 1976 reads

18.—(1) Subject to subsection (1A) of this section, it shall be the duty of the Authority to ensure that—

( a ) all news broadcast by it is reported and presented in an objective and impartial manner and without any expression of the Authority’s own views,

( b ) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the Authority’s own views,

( c ) any matter, whether written, aural or visual, and which relates to news or current affairs, including matters which are either of public controversy or the subject of current public debate, which pursuant to section 16 of this Act is published, distributed or sold by the Authority is presented by it in an objective and impartial manner.

Paragraph (b) of this subsection, in so far as it requires the Authority not to express its own views, shall not apply to any broadcast in so far as the broadcast relates to any proposal, being a proposal concerning policy as regards broadcasting, which is of public controversy or the subject of current public debate and which is being considered by the Government or the Minister.

Should it prove impracticable in a single programme to apply paragraph (b) of this subsection, two or more related broadcasts may be considered as a whole; provided that the broadcasts are transmitted within a reasonable period.

(1A) The Authority is hereby prohibited from including in any of its broadcasts or in any matter referred to in paragraph (c) of subsection (1) of this section anything which may reasonably be regarded as being likely to promote, or incite to, crime or as tending to undermine the authority of the State.

(1B) The Authority shall not, in its programmes and in the means employed to make such programmes, unreasonably encroach on the privacy of an individual.

(2) Nothing in this section shall prevent the Authority from transmitting political party broadcasts.

This provision regulates RTE’s broadcasting of political messages on radio and television. A similar provision exists for the independent sector licensed by the Broadcasting Commission of Ireland (formerly the IRTC). See Section 9 of the Radio and Television Act 1988, for an example.

The judgement of the Chief Justice, Mr Justice Hamilton in Coughlan -v- The Broadcasting Complaints Committee and Radio Telefis Eireann elaborated on the meaning of these regulations.

“3. Political parties have no right, whether under the statute or under the Constitution, to be afforded the opportunity by RTE to make political party broadcasts. It is purely a matter for the discretion of RTE as to whether or not they will transmit such broadcasts.

4. In reaching the decision to transmit such broadcasts, RTE is obliged to, in the context of a referendum, to hold the scales equally between those who support and those who oppose the amendment. “

So, in brief, if you’re RTE or an independent broadcaster licensed by the BCI you have the discretion to run a party political broadcast, but if you do run them you have to be fair to all the interests involved.

However YouTube is neither regulated by the BCI, or by the Broadcasting Acts. So these regulations do not apply. Such regulation would be inappropriate, even if it were possible. YouTube clips are not broadcast, in the traditional sense- they are delivered on demand. The Supreme Court, in Roy Murphy -v- IRTC and the Attorney General implicitly acknowledged that a uniform set of regulations for different media was not required- and not necessarily desirable under European Human Rights caselaw.

After this tour we can see that the regulations which constrain and control political speech and debate on the Radio and Television regulated by Irish legislation do not apply to video clips from sites such as YouTube.

The information contained in this post is not intended as and does not constitute legal or other professional advice. Its posting is not intended to create a Solicitor – Client relationship. While care has been taken in the preparation of the information, no responsibility is accepted for its contents and readers are advised to seek legal advice from their solicitor. McGarr Solicitors make no warranty regarding the accuracy or completeness of the information contained in, or accessible from, this posting.