knowledge | 11 February 2020 |

Is the Election Moratorium on Broadcasters Fit for Purpose in a Digital Age?

The Broadcasting Act 2009 imposes certain standards on broadcasters which do not apply to those who supply online content. This disparity comes into sharp focus around election time.

Ireland held a general election last Saturday. Radio and television broadcasters were required to observe a moratorium on coverage of the general election from 2pm on Friday until polling stations closed at 10pm the following day. This moratorium allows voters a period of calm in the immediate run up to voting, free from the assault of election coverage via their radio or television.

The moratorium is set out in the Broadcasting Authority of Ireland’s Code of Fairness, Objectivity and Impartiality in News and Current Affairs which requires broadcasters to comply with its Guidelines in respect of coverage of elections, and provides:

“Electioneering and/or references to issues linked to the General Election and/or references by any on-air personnel, including guests, to the merits or otherwise of an election candidate(s) and/or their policies shall not be broadcast while the moratorium is in operation.”

The Guidelines apply to broadcasters within the jurisdiction. While they do not apply to other services commonly received in the state but licensed in Britain, Northern Ireland or in other jurisdictions, the BAI encourages broadcasters outside the jurisdiction whose services are receivable in the Republic of Ireland and who cover Irish news, to be mindful of the Guidelines when deciding on their approach to coverage of general elections, and in practice they generally do so. The Guidelines do not apply in any respect to print content, online print or online audio-visual content.

In addition, the Broadcasting Act 2009 requires broadcasters to ensure that all news broadcast is reported and presented in an objective and impartial manner, without any expression of the broadcaster’s own views. The Act also requires that the treatment of current affairs programming, including matters which are either of public controversy or the subject of public debate, is fair to all interests concerned and presented in an objective and impartial manner.

Turning now to social media. During the moratorium period while broadcasters were silent, social media was flooded with political commentary and canvassing. In this digital age, it appears that the traditional moratorium has the potential to result in undue prominence being given to material circulating on social media in the hours before and during an election. 

Social media commentators and influencers, who were a prominent feature in the recent election campaign, can publish personal opinions and observations without restriction in the hours leading up to and including election day. This commentary may be uninformed. In the meantime, experienced journalists cannot broadcast professional and expert commentary. It is difficult to see how the public interest is served by this discrepancy.

In circumstances where there is no reality to extending the moratorium to social media, there are compelling arguments for scrapping the moratorium altogether, a move which would emphasise the value of informed, impartial broadcast journalism to a functioning democracy.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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