YOU COULD ALMOST be forgiven for not realising that there’s a second referendum taking place this Friday.

While the proposed abolition of the Seanad has merrily hogged much of the debate time on Ireland’s current affairs programmes over the past few weeks, the referendum on introducing a brand new court to Ireland’s staid courts system has slipped quietly under the radar with minimal discussion.

It’s not hard to see why there’s been a discrepancy in coverage: there’s a lot of vocal people who feel passionately about the issue on either side when it comes to the abolition of the upper house of the Oireachtas, and a lot of time and money has been spent on high-profile campaigns. It’s more difficult with the proposed introduction of a new Court of Appeal, which feels more like housekeeping than anything else. Polls have repeatedly shown that the new court is likely to pass by a large majority, and unlike with the Seanad, there has been no organised campaign against the proposal.

However the courts referendum also highlights a problem which has at times tied the hands of broadcasters in the past when it comes to referendums which seem almost cut and dried.

Ireland’s broadcasting watchdog is tasked with the role of ensuring that radio and television current affairs shows give fair and balanced coverage to both sides in elections and referendums. On issues like the Seanad, where there’s a clear pro- and anti- campaign, this is straightforward. The issue has become more difficult when it comes to the courts referendum and the recent children’s referendum, when a huge array of political and civil bodies found themselves on one side and a tiny number of campaigning individuals against the proposed changes.

Since a Supreme Court judgment in 2000 stemming from the 1995 divorce referendum, there has been an onus on broadcasters to ensure coverage is balanced, with the Broadcasting Authority of Ireland (BAI) tasked with producing the code of guidelines to let broadcasters know what they can and can’t do during referendums and elections.

RTE’s Prime Time programme tweeted this photograph during the 2011 presidential election to show the timers used to monitor the amount of speaking time each candidate got during the presidential debate. (Photo: @RTE_PrimeTime/Twitter)

The BAI released its set of guidelines for the upcoming two referendums last month, in which it made clear its position on something that was often assumed in previous votes: the importance of airtime.

The BAI was clear: “Aside from the allocation of airtime provided for party political broadcasts, there is no automatic requirement to allocate an absolute equality of airtime to opposing views during coverage of a referendum,” the guidelines say. [PDF].

Instead, what matters is how the broadcaster chooses to be balanced:  ”The allocation of airtime must be equitable and fair to all interests and undertaken in a transparent manner,” says the BAI.

The BAI’s clear stance on airtime is especially interesting because there there has often been an assumption in previous votes that fairness has automatically been equated with parity of minutes on air.

Instead, the onus is very much placed on broadcasters to understand what the definition of fairness is, with the BAI noting:

Broadcasters should note that allocation of airtime is not the only measure of fairness. It will be necessary for a broadcaster to consider the range of ways in which fairness is achieved and to ensure that active consideration is given to ensuring its achievement whether through the selection of contributors, the scope of the debate, the structure of the programme, the make-up of audiences, the role of the presenter or through other suitable means.

Broadcasters should also note that a referendum debate is a dynamic discussion and the approach taken to airtime and to coverage in general is likely to evolve over the duration of a campaign.

So in practice, it is a qualitative issue rather than a quantitative one – which goes some way towards explaining why there has been less coverage of the courts referendum than the Seanad one, but also means that the so-called “50-50″ requirement of airtime doesn’t come into play this time.

The Coughlan judgment

(Photocall Ireland)

The roots of Ireland’s usual balanced approach to all major votes stems from a Supreme Court ruling after the 1995 divorce referendum.

A complainant went to the Broadcasting Complaints Commission (as the BAI was known in its previous incarnation) to argue that RTE had given more coverage to the Yes side of the divorce campaign than to the No side.

The case was initially dismissed by the BCC which found that RTE had not breached its statutory obligations to be impartial and objective. However the complaint escalated and was brought before the courts. After a lengthy journey through the courts, the High Court agreed with the complainant, as did the Supreme Court after a further appeal.

Interestingly, the Supreme Court judge involved in the Coughlan vs BCC and RTE case said in his ruling that 98 per cent of RTE’s coverage had been balanced and the case itself was concerned with a mere 2 per cent of output.

The interpretation of the judgement has been understood to mean that there has to be strict balance on television and radio programmes in how they cover both sides of a referendum campaign (the rules don’t apply to print or online media, however). A broadcaster cannot give their own views on the issue.

In practice, this has sometimes been interpreted by broadcasters to mean that both sides have equal access to the airwaves – something which has been criticised in the past (and which the BAI has clarified is not necessarily the case).  Fine Gael’s chairman Charlie Flanagan described the 50-50 requirement as “nonsense” in the run-up to the children’s rights referendum last year and compared it to a “pair of handcuffs” on the Government.

It was not the first time the ruling was debated either. During the second referendum on the Lisbon treaty in 2009, the then-CEO of Today FM Willie O’Reilly – who is now commercial director at RTÉ summed up the point for a lot of independent broadcasters:

Genuine balance and effective scrutiny is not ensured by simply giving equal air time. It is arguably a weakness of broadcasting in the last campaign that some claims were not challenged more.

At the same time however, the ruling allows groups which may not have a lot of money to be equally represented alongside political parties and other well-funded organisations, providing an alternative opinion.

UCD law lecturer Dr Gavin Barrett has noted that the ruling has deprived politicians and a political parties “of the kind of influence and access to the airwaves that they would normally enjoy by virtue of their elected position”.

Having come through some of its biggest tests – including the fiscal treaty referendum and the children’s rights referendum – the requirement for balance has seen off its biggest moments when it was most likely to be challenged. While the situation may evolve, depending on BAI guidelines, Ireland’s situation remains clear: fairness and impartiality – but that doesn’t have to necessarily mean equal air time.

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