The Supreme Court has upheld a High Court judgement that RTÉ acted unfairly in the allocation of free and unchallenged airtime to the 'Yes' and 'No' sides of the debate in the 1995 Divorce Referendum. The High Court action was taken by Trinity College lecturer Anthony Coughlan. He challenged RTÉ's treatment of the referendum and the decision of the Broadcasting Complaints Commission to dismiss his complaints.
In the run up to the Divorce Referendum, RTÉ permitted the five largest political parties to make party political broadcasts. All were committed to a 'Yes' vote. In addition, groups supporting and opposing the amendment were given air time to make similar broadcasts. This resulted in 40 minutes of broadcasting time being given to the 'Yes' side and 10 minutes to the 'No' side. It was this imbalance in the allocation of this uncontested broadcast time that Anthony Coughlan challenged. He had no complaint against RTÉ's general coverage of the divorce issue in its news and current affairs programmes.
In the High Court, Mr Justice Carney found that RTÉ's failure to allocate equal time for these uncontested broadcasts to both sides of the argument had resulted in inequality amounting to unconstitutional unfairness. RTÉ appealed his decision. Today the Supreme Court agreed with Mr Justice Carney by a 4-1 majority. The Chief Justice said that in deciding to transmit these broadcasts RTE is obliged, in the context of a referendum, to hold the scales equally between those who support the referendum and those who oppose it.
Mr Justice Keane acknowledged RTÉ's difficulties and said that the present State of the law leaves the organisation in the position that they cannot safely transmit party political broadcasts during the course of referendum campaigns. In his dissenting judgement, Mr Justice Barrington said that there is no constitutional inequality or unfairness in allowing political leaders access to the airwaves at referendum time on conditions dissimilar to those granted to private citizens but related to their social function as political leaders of the people.
Mr Coughlan welcomed today's decision, but RTÉ's Director of Public Affairs, Kevin Healy, said that today's judgement raises serious questions as to how referenda broadcasts would be covered in future.