It's sad but not all that odd that the Broadcasting Commission of Ireland has chosen to ban an advert associated with this year's Lenten campaign from Trocaire. They have apparently deemed that it breaches the ban on advertising directed towards a political ends, as set out in the Radio and Television Act 1988.

The law, at times, is a bonkers. I very seriously doubt that campaigning for gender equality is what most right-minded people would have in mind when they think about the ban on political advertising. It's certainly not what the people making the laws thought. They had a narrow view of what political might mean. When the prohibition was first place in the Broadcasting Authority Act, in 1960, the Minister for Posts and Telegraphs (as was) gave the following rationale to the Seanad:

a national service should not be used in any way to further the interests of one Party as against another. It may be urged by many people outside, and by people here in this House, that there should be freedom for each Party to advertise. That is all right as far as it goes, but when the matter is examined closely, one finds there are poor Parties entitled to representation in this country who would not be in a position to pay for an advertisement on television.

There are two things to note here. First, 'political' was certainly conceived of as meaning 'party political.' Second, the clause was designed to prevent wealthy parties furthering their interests against poor parties.

When the 1988 Bill was going through the committee stage, the same understanding was expressed by the Minister for Communications (and subsequent jailbird), Ray Burke. The prohibition on political advertising was extended to commercial broadcasters because

it would not seem to be in the public interest or in the interest of democracy, that political ends should be sold across broadcast media.

In general, this clause was not the subject of much discussion, seemingly because everyone had an idea of what it meant (the major discussion in 1988 was fear over the Murdochification of Irish media).

To the best of my (very limited) knowledge, case law around this has focused on religious advertising, culminating in Murphy v. the IRTC (not the BCI), a case that ended up in the European Court of Human Rights as Murphy v Ireland. Murphy, a pastor, was banned from proselytising through radio ads. The Government, whose position the ECHR accepted, argued that, since Murphy could work in myriad other ways apart from advertising, they were not restricting his expression sufficiently to warrant a breach of his rights. In other words, it was only a little breach which meant it was no breach.

On political advertising, there was (I learned via an Irish Council on Civil Liberties document (pdf)) a case involving an anti-abortion ad by Youth Defence (Project Truth) but I haven't been able to track it down so can't say how the reasoning was transposed from Murphy to this case. What the ICCL note mentions is that, unlike Murphy, Youth Defence didn't suggest that there was a problem with the ban per se. They said that their ad, not being party-political, wasn't political at all.

Which is why this case would be interesting to see. Presumably it is the source of the ban on Trocaire's ad: that the courts have decided political means more than party-political (and this has guided the BCI). Of course, courts are not in the business of interpreting Dáil debates, so it's only by way of casual interest that their very wide conception of political compared to that expressed during the drafting of the law is noteworthy.

The sad thing is that, if Trocaire had stuck to informing us that gender inequality is a problem, then they wouldn't have been engaged in political advertising. Since they went some way towards saying that, you know, the killing and mutilating of girls ought to be stopped - hardly a controversial viewpoint - they can't show the ad.

Such are the vagaries of general law: no Trocaire ads, but no Youth Defence ads either.

Anyway, in the spirit of Simon McGarr's non-binding recommendations, here's the ad. It is, in my opinion, one of the most powerful campaign ads I've seen.

Hat-tip: Damien Mulley

Update: There's a much more intelligent post on all this, including a more informed legal analysis, over on cearta.ie.