Thomas Jefferson, 1793

On February 7, 1991, the Law Lords issued a judgment upholding the Broadcasting Ban. On August 6, ARTICLE 19 and the National Union of Journalists joined with six journalists and one member of the public in filing an application challenging the Law Lords judgment with the European Commission of Human Rights in Strasbourg.

Prospects for the success of the challenge to the British Ban were dealt a blow by the European Commission's ruling that a challenge to the Irish Broadcasting Ban had so little merit that it was not even admissible. Generally, if an application concerns an issue of significant public policy, the Commission will judge the application admissible and then issue a separate ruling on the merits. If the Commission rules on the merits, the case may be referred to the European Court of Human Rights for its judgment. By rejecting the challenge to the Irish Ban, the Commission utterly precluded review by the European Court.

International law experts were surprised by the Commission's ruling. They expected that, at the least, the Commission would have considered the full merits of the challenge. Some view the Commission's refusal to do so as based in part on political considerations.

This view is supported by the Commission's overlooking of certain precedent which would have required closer scrutiny of the Government's justifications for the Ban. The Commission decided that the relevant question before it was whether the Irish Government had "convincing reasons for assuming the existence of a pressing social need for imposing the impugned restrictions on the applicants". Once the Commission concluded that the Government had convincing reasons -- namely to counter terrorist violence -- it effectively dispensed with the crucial inquiry as to whether the restrictions were necessary and effective to counter such violence.

The Commission's failure to accord appropriate weight to the fundamental right to freedom of expression is exemplified by its characterization of the Irish ban as merely causing the applicant journalists and broadcasters "inconvenience in the exercise of their professional duties". A finding of "mere inconvenience" is troubling and particularly difficult to understand in light of the Commission's preliminary conclusion that:

The Irish and British Bans are far more than mere inconveniences; surveys conducted by research institutes document that they have deprived the people of Ireland and the UK of a great deal of information concerning the situation in Northern Ireland. Furthermore, they greatly undermine the principle of editorial independence and grant the governments power to decide what people may and may not hear.

For these reasons, ARTICLE 19 condemns the Ban as a violation not only of the journalists' right to impart information but also, and as significantly, of the right of people in Ireland and the UK to be informed.

Despite the European Commission's negative ruling on the Irish Ban, ARTICLE 19, the NUJ and others are committed to challenging the British Broadcasting Ban for several reasons.

First, challenging the British Ban makes clear that we continue to think that the Ban violates European law in addition to constituting bad policy. The fact that the Commission has upheld the Irish Ban does not alter our analysis of what European and international law requires. We are pursuing the case in hopes that we may make our arguments to the European Court, which is a more authoritative body than the Commission.

Second, the British Ban, while narrower than the Irish Ban in some ways, is broader in at least one important way; namely, the British Ban prohibits statements by members of proscribed groups whenever made, even if part of historical footage. The British Ban's overreaching constitutes a significant ground on which it may be distinguished from the Irish Ban.

Third, there is an additional argument to make in challenging the British Ban; namely, that the British journalists whose rights were violated had no effective means by which to seek relief in the British courts. It is true that they were able to seek judicial review of the Home Secretary's Directive, but the only question the courts addressed was whether the Directive "is so unreasonable that no reasonable Home Secretary could decide to issue it". In other words, the only way the journalists could have obtained relief would have been to establish that the Home Secretary had "taken leave of his senses". Article 13 of the European Convention on Human Rights, however, requires governments to provide "remedies whereby an individual's claim of a breach of a Convention right or freedom, at least in substance, may be determined and redressed should the claim be established." (Commission Report in Silver Case, 11 October 1980.)

ARTICLE 19 and others believe that judicial review, which permits the examination of executive action merely by reference to the sanity of the decision maker and not to the substance of the action does not comply with the European Convention.

The Broadcasting Ban was introduced on October 19, 1988 by Government directives announced by the then-Home Secretary Douglas Hurd. The Ban prevents the voice transmissions of interviews with members and supporters of 13 named organizations, including Sinn Fein, which has 60 councillors and one MP, and the loyalist paramilitary Ulster Defence Association, both legal organizations. The Ban was imposed under Section 29 of the 1981 Broadcasting Act and under the BBC's Licencing Agreement. In January 1991 the Ban was extended to cover satellite television broadcasts from the UK.

Article 10(1) of the European Convention on Human Rights provides:

Article 10(2) allows limitations to this right but only if they are shown to be "necessary" in a democratic society to safeguard one of several narrowly defined societal interests including national security and public order. ARTICLE 19 believes that the Ban is not necessary to protect, and certainly has not proved effective in protecting, any societal interest recognized by article 10. This argument was made to the Law Lords but rejected on the ground that the European Convention is not enforceable in British courts. The Strasbourg case thus could be important for the additional reason that, if the applicants are successful, the European Court could make statements about the status of the European Convention in British law.

ARTICLE 19 condemns the Ban as a violation of the right of broadcasters to impart information as guaranteed by the European Convention. The Ban transfers editorial control from broadcasters to the Government and introduces prior censorship of the content of radio and TV broadcasts.

An important function of broadcasters is to communicate to the public incidents and shades of opinion so that the public may decide for themselves on the political issues of the day. It should not be the role of government to determine the content of broadcasting. If a broadcast, subsequent to airing, is found to violate the law, then those responsible for the broadcast are subject to the ordinary law and may be fined and, if multiple violations are committed, their licence may even be suspended. This process is far less intrusive on fundamental rights than the often arbitrary exercise of prior restraint. Prior to the issuance of the Ban there was not a single broadcaster who was reprimanded let alone investigated for airing a programme deemed to lend credence to terrorism.

The Broadcasting Ban has had a significant impact on the information which the public is able to receive about the situation in Northern Ireland. According to the Glasgow University Media Monitoring Group, in the year following the Ban, interviews with members of Sinn Fein declined by 63 per cent. In August 1989, Channel 4 transmitted the prize-winning film Creggan, first broadcast in 1980, with voices replaced by subtitles in four sections. Other documentaries, such as the American-made Death of a Terrorist have never been shown on British television. These examples are merely illustrative.

The Ban is not limited to topical aspects of the problem in Northern Ireland; historical material is not exempt. A children's history series, Understanding Northern Ireland, was censored because of statements by Ireland's first Prime Minister, Eamonn de Valera, and Sean McBride, one-time IRA chief and a Nobel Peace Prize recipient. Because of the Ban, Channel 4 refused to air the film, Mother Ireland, which includes an interview with Mairead Farrell, the woman shot dead by the SAS in Gibralter, because of the Ban.

Popular music has also been a victim of the Ban. Streets of Sorrow by the Pogues was banned by the IBA because it expressed sympathy for the Birmingham Six. London's LBC independent radio station refused to play a Dubliners recording in November 1988 of the famous ballad Kelly the Boy from Killane, first sung in 1798!

Some broadcasters have been able to circumvent the worst effects of the Ban by using techniques such as subtitles and voice-overs to replace proscribed voices. Sinn Fein leader and MP Gerry Adams has been interviewd on Granada TV with such skillful synchronization of an actor's voice with his lip movements that an unwitting observer would have believed that Mr. Adams was speaking directly to camera had it not been for the occasional disclaimer.

In May the Media Show interviewed Sinn Fein member Jim McAllister who played a Sinn Fein official in Ken Loach's film Hidden Agenda. Mr. McAllister, clearly identified as a member of Sinn Fein, spoke about the film's portrayal of the effects of British policies in Northern Ireland. IBA lawyers advised that the interview did not breach the Ban because Mr. McAllister was interviewed in his role as an actor and not as a Sinn Fein member.

In October the BBC Nine O'Clock News carried an interview with Gerry Adams about the killing by British Army paratroopers of two joyriders who were his constituents. BBC lawyers maintained that Mr. Adams was, in this context, speaking as a representative of his constituency rather than as a Sinn Fein representative. ITN on the other hand interpreted the Ban differently: it viewed Mr. Adams as a Sinn Fein leader and accordingly muted his voice in an interview on the same subject.

The use of voice-overs and sub-titles is often not possible, for example, in the case of news programmes, live programmes or broadcasting by smaller companies, when time and/or resources are in short supply. Likewise, ambiguities in the Ban result in speakers being dropped or excluded altogether.

ARTICLE 19 is concerned that, while a few broadcasters have taken risks in broadcasting material that complies with the letter though perhaps not the spirit of the Ban, the Ban remains a significant deterrent to the free flow of information and a disincentive to balanced reporting because of the ambiguities inherent in it and the implementation difficulties it imposes on broadcasters.