Brendan Smith (Cavan-Monaghan, Fianna Fail)
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To ask the Minister for Communications, Energy and Natural Resources if he will introduce amending legislation to the Broadcasting Act insofar as it relates to balance on broadcasting during referendum campaigns; his views on whether he believes that balance in broadcasting should be more reflective of the balance of opinion generally; and if he will make a statement on the matter. [43686/12]

Pat Rabbitte (Dublin South West, Labour)
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The Broadcasting Act 2009 provides for the establishment of the Broadcasting Authority of Ireland, BAI, as the independent regulator responsible for the oversight of compliance in relation to broadcast content in the State. One of the objectives of the authority, set out in section 25(b), is to ensure “that the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression, are upheld,”.

Section 39 of the 2009 Act provides for the duties of broadcasters and includes, for example, duties relating to objectivity and impartiality in news and current affairs. In the discharge of its functions, the BAI is required, under section 42, to draw up broadcasting codes on the standards and practice to be observed by broadcasters and for compliance matters.

In the context of these statutory provisions, the BAI has developed a broadcasting code on referenda and election coverage, which was published in September last year. This code sets out the rules that Irish broadcasters must comply with when covering any election, or referendum held in the State. The aim of the code is to ensure that broadcasters’ coverage of all elections and referenda is fair, objective and impartial. Coverage should be undertaken without any expression of a broadcaster’s own views on an election or referendum or on election parties or candidates. The code also contains specific provisions that relate to party political broadcasts and moratoria on coverage of referenda and-or elections. It also restates the prohibition on broadcasters airing political advertising.

In view of the forthcoming referendum, the BAI has recently taken the opportunity to remind broadcasters of their obligations. Broadcasters must ensure, for example, that coverage of the referendum is fair and equitable to all interests. The BAI has also highlighted the need for broadcasters to put in place transparent mechanisms for ensuring that coverage in the run-up to the referendum and on the day that citizens cast their vote is fair, objective and impartial. It is incumbent upon the BAI and all broadcasters in the State, to ensure that they adhere to the code on referenda and election coverage, as well as to the spirit and letter of the relevant judicial rulings in this area. I have no plans to amend the existing legislation in the area as suggested by the Deputy.

Barry Cowen (Laois-Offaly, Fianna Fail)
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I do not believe the original question sought the Minister's opinion on whether he would amend the legislation to cater for the forthcoming referendum. It was tabled because it would be interesting to get the views of the Minister who is responsible for this area on the legislation as it stands. We are facing into a campaign on a referendum to enshrine children's rights in the Constitution. My party is in favour of it, as are the Minister's party, Fine Gael, and Sinn Féin. It seems there is an overwhelming consensus in favour of the proposed amendment. It is almost as if professional contrarians are the only people who intend to vote "No". Is the Minister concerned that the need for balance might lead to minimal media coverage of the referendum campaign? Does he consider it possible that broadcasters might decide to limit their coverage of it, rather than providing a platform for certain people? Does he agree that the broadcasting balance rules mean that some people see the campaign for a "No" vote as a media opportunity? When elected representatives participate in referendum debates, everyone knows their agenda and their credentials. If unelected people suddenly emerge as part of the "No" campaign, they might not be obliged to declare their interests. I am looking for the Minister's perspective on the legislation as it stands, especially considering the situation we find ourselves in now. Given that the vast majority of Deputies support the proposed amendment to the Constitution, does the Minister consider that the media will limit its coverage of the campaign in order to comply with the Act as it stands?

Pat Rabbitte (Dublin South West, Labour)
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I have heard the fear expressed that the children's referendum will not get the ventilation, scrutiny, debate and promotion it deserves because the apparent support of everybody in this House for the proposed amendment will make it difficult for broadcasters to implement the 50-50 rule as they have traditionally done. I hope that will not be the case. If I told Deputy Cowen, who is trying to probe my views, that I was minded to dictate to the national broadcaster how it should cover referendums or national elections, he would tease me out at some considerable length to get it on the record.

Barry Cowen (Laois-Offaly, Fianna Fail)
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Surely the Minister can express an opinion on how he might interpret it, or how it should be interpreted.

Pat Rabbitte (Dublin South West, Labour)
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The Coughlan judgment has been interpreted by the broadcasters as meaning 50-50 coverage of certain matters, such as referendums. If the overwhelming majority of the people, as demonstrated by their representation among the membership of this House, are in favour of a particular amendment, I agree that it seems difficult to know how the 50% on the other side can be comprised. I have seen legal commentary to the effect that this is a self-imposed limitation on the part of the broadcasters, given that the judgment does not say there should be 50-50 coverage. I suppose that in interpreting it that way, the broadcasters erred on the side of impartiality and wished to be seen to be fair. In one of the legal commentaries I read, I noted Dr. Gavin Barrett's thoughts on Deputy Cowen's point about the circumstances that can be created:

In practice, the '50-50' rule creates a perverse political incentive to oppose Constitutional amendments on European treaties. A politician who supports such an amendment will normally find him- or herself occupying a crowded field of experienced politicians jostling for the maximum of 50% of the airtime guaranteed to the 'yes' side. A politician who opposes the amendment occupies a much less crowded space populated by much less experienced political actors. For the 'no' side, the 50% operates more as a minimum guarantee.

Peter Mathews (Dublin South, Fine Gael)
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We have used up the time allotted for Question Time.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Does that mean we will not reach my Question No. 9?

Peter Mathews (Dublin South, Fine Gael)
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The time limit for the day's debate has expired.