The BAI, Mooney and the struggle to control the Internet

A few weeks ago the Broadcasting Authority of Ireland issued a decision in response to a complaint by Mr. Dónal O’Sullivan-Latchford on behalf of the Family and Media Association. He had complained about an episode of the Mooney Show on RTE Radio One which had featured a discussion with a gay man about his life and relationships, together with a member of GLEN who explained the current legal choices for gay people in relationships.

The complainant claims that same-sex marriage is supposed to be the matter of debate in an upcoming referendum.

The whole show was, as you’d expect of the Mooney show, not exactly trying to take the Paxman-interrogation approach. It was people talking about their own lives.

Well, the upshot was the BAI upheld the complaint on the grounds of a lack of ‘balance’.

discussion of same-sex marriage constituted current affairs content on an issue that was of current public debate and controversy. While agreeing that a referendum campaign is not currently underway, as a matter of current affairs, the general requirements for fairness, objectivity and impartiality in current affairs set down in the Broadcasting Act and the BAI’s code on news and current affairs were applicable.

This is, as you will have realised yourself by now, an absurd decision. It creates a brand new category of restricted discussions, separate and in addition to the already existing pre-referenda campaign broadcasting limitations. Now, just having a conversation about your life can be inherently controversial- if you’re gay, or presumably, have had an abortion, are 17 and want the vote, or have had first hand experience of anything that is an ‘issue of current public debate’.

The BAI decision hasn’t exactly been seen as its finest hour.

Ireland’s answer to The Onion, Waterford Whispers News reacted with the headline “Gay Couples Not Allowed Appear On Radio Without A Bigot, Rules BAI“.

Even the NUJ were stung into objecting to the impossible position its members were being forced into, complaining that the BAI

effectively seeks to ensure that discussions take place in an adversarial environment, with programme makers forced to find alternative spokespersons to preserve the concept of “balance” normally associated with electoral and referendum coverage.

So it was welcome news that BAI member, and NUJ member, Prof Colum Kenny of DCU’s journalism school has engaged with the critics and issued a defence of the BAI’s Mooney Show decision. Welcome, because it acknowledges that regulators- and particularly regulators tasked with protecting freedom of expression above all other rights- should be part of the conversation about their decisions.

Unfortunately, it’s not a very persuasive defence. You can read it in full here. You can also listen to an audio discussion from the Irish Times (not regulated by the BAI) between Prof. Kenny and the NUJ’s Seamus Dooley on the same lines.

Primarily, Prof. Kenny wants to deny that this Mooney decision is a new departure. If it isn’t new, it isn’t news you see and then everyone has to stop talking about it by the rules of media. He goes so far as to claim that the law the BAI were applying has been the same for fifty years, which is quite a feat, given the Broadcasting Act only dates from 2009.

In fact, assuming that alternative views are voiced, any member of the NUJ involved in broadcasting should know that this has been required ever since RTE was founded more than half a century ago. Guidelines that RTE and other broadcasters issue to their employees have long cited that law (most recently enshrined in S.39 of the Broadcasting Act 2009).

The thing is, if we look at Section 39, which the Professor explicitly cites as the law the BAI were applying, it doesn’t accord with the BAI’s insistance on having somebody in the corner, blowing raspberries over tales of personal happiness. S39 doesn’t require that every show become a sterile, falsely equivalent debate.

(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 his or her own views, except that should it prove impracticable in relation to a single broadcast to apply this paragraph, two or more related broadcasts may be considered as a whole, if the broadcasts are transmitted within a reasonable period of each other,

So if, let’s say, three gay men were discussing civil partnerships with one talking about their lives it might be “impractical” to shoehorn in a dissenting voice. S39 doesn’t need it to be done. But the BAI, apparently, does. In fact, they subsequently circulated a memo to all their regulated broadcasters emphasising that marriage equality was an inherently controversial topic.

Prof. Kenny also complains, more than once, that the NUJ didn’t withdraw their statement when he asked them to. We’ll come back to that in a minute. But for the time being, let’s just think about the implications of an academic and broadcasting regulator who wishes people would unsay things he doesn’t agree with.

Of course, the regular reader of this blog (and even using the singular is probably a bit optimistic) will know calling on S39 of the Broadcasting Act for your moral support is a pretty desperate place to find yourself. This is the same section that treats “causing offence” on the airwaves as being as dangerous as “undermining the authority of the state”.

However, all of this is really a proxy for the big struggle to come. The Irish Times podcast ends with both the NUJ’s Seamus Dooley and Prof Kenny agreeing that somebody must regulate the internet so that it can be brought into line.

This is the next big fight. If the Internet is to be regulated, is it to be by the BAI? Or is it to be by the Irish Press Council? RTE is regulated by the BAI, but they don’t regulate RTE’s internet output. The Journal, which is an internet only publication, voted to join the press council. The Irish Press Ombudsman has previously asserted a right to regulate the Internet activities of its members (See Journal Media Limited and the Irish Daily Mirror, which ended up deciding on a complaint about a tweet). This Mooney show decision is unlikely to have aided the BAI’s argument that its remit should be extended to the digital world.

However the Press Council, which relies on a principles-based code of conduct, has a glaring regulatory gap. Complaints can only be lodged by a person directly effected by a story. So, if you open your broadsheet and read a completely fictitious tale about a terrible thing that (never) happened to a (non-existent) person it is completely immune from the Press Council’s regulatory oversight because nobody was directly effected. Hardly the sort of thing to bring trustworthy reporting to the internet.

All of which is to long-windedly agree with Hugh Linehan’s tweet. All media regulation in Ireland is suffering from a crisis of legitimacy, arising from their respective flawed legal foundations. Without a broadly based acceptance of their legitimacy, the proposal to give any of the existing regulation bodies power over the internet- or to apply any of the existing manifestly flawed rules to the country’s only (spectacularly) diverse media platform- should continue to go nowhere.

Beyond all that is the question of whether seeking to control, suppress and restrict discussion of people’s lives has really served Ireland well over the Professor’s fifty years of regulation. It’s telling this is such a radical suggestions that you only really encounter it on the unregulated internet but perhaps, just maybe, we could try letting the audience decide where they want to put their trust. Perhaps, if only in this obscure corner of the media landscape, we could let people actually have that ‘current debate’ that S39 finds so worrying and be glad that there is somewhere that the expression of our ‘own views’ isn’t a forbidden activity.

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