Gavan Reilly: Broadcasters hamstrung by outdated rules on referendums

Though nobody can quibble with their fundamental role in the democratic process, referendums can be crude instruments at the best of times. There are very few questions which are purely binary, especially in politics. Most topics have shades of grey that a referendum cannot accommodate, forcing people into black-or-white positions.

Look at Scotland for example: holding a referendum on independence only served to harden the positions of soft nationalists, and support for independence is consistently higher now than it was in the years before the vote.

In Ireland, though, they’re especially symbolic. The State wouldn’t exist without its Constitution, and the Constitution can’t be amended without a referendum, so when an amendment is put to us, we’re really being given the chance to redefine ourselves, and to say something about who we are.

There may be no doubting their importance in our society, but there is good reason to doubt whether the current rules on how broadcasters can cover them are fit for purpose.

Start with the allocation of airtime. The guidelines from Coimisiún na Meán do not explicitly mandate a precise 50-50 allocation of airtime, but still require broadcasters’ approaches to be “equitable to all interests and undertaken in a transparent manner” — which, in practice, necessitates something close to a stopwatch approach. Those with vested interests on either side will inevitably only be satisfied with equality of airtime.

Moreover, in an environment where campaigns are increasingly polarised, even discussing and critiquing an argument from one side or another — as the guidelines suggest we can — is liable to be seen as favouring that side.

Merely reporting the Electoral Commission had contradicted Catherine Martin’s interpretation of the “women in the home” clause or sought to fact-check the claims on Sharon Keogan’s posters, would doubtless prompt a demand for tit-for-tat retaliation from the victimised side.

And ironically, when the vast majority of TDs favoured a Yes vote in both ballots, there were fewer chances to mention it. Giving straight-bat coverage to the launches of each party would simply result in imbalanced coverage: unless each report included an express criticism of the arguments laid out, they would amount to a cavalcade of Yes material.

But a reporter would be visibly compromised if it fell to them to relay the counterpoints on a bulletin so unless someone from the shallow pool of No-supporting politicians is available on the same day, a report on a Yes launch simply doesn’t get aired. It’s hardly any wonder the public felt so uninformed about the issues at play.​

The shortcomings were illustrated when preparing for last week’s episode of The Group Chat, the televised news podcast I co-host on Virgin Media One. Our audience was, understandably, asking us to sound things out — to rationalise argument X, or adjudicate on claim Y.

One recurring inquiry asked us to explain why carers and people with disabilities had such difficulty with the care amendment, something which was a clear harbinger of the mounting No vote. But it was a question we simply couldn’t address.

How could I paraphrase the concerns they had, about a perceived State abdication of responsibility and the framing of family as carers whether they liked it or not, without being seen as advancing those arguments and not merely relaying them?

Even if I self-rebutted, pointing out that the wording wouldn’t be justiciable or place a ceiling on the State’s actions, I’d be perceived as either giving weight to the arguments or devoting disproportionate airtime to the perceptions of one camp over another.

These referendums were the first to take place since the establishment of Coimisiún na Meán as the successor to the Broadcasting Authority of Ireland.

While the latter’s remit was solely on content over the airwaves, the former is responsible for the wider panoply of media, from broadcasting to streaming services and the conduct of social networks themselves.

Yet, one of the older broadcasting anachronisms has survived the reform. The spirit of the pre-polling moratorium is to give the public a chance to reflect on the arguments of the previous weeks away from the din of the airwaves, and to minimise the prospect of one side or another throwing a last-minute curveball without adequate time for scrutiny or rebuttal.

It hardly needs pointing out that the internet has rendered that idea redundant.

In fact, the moratorium arguably leaves the electorate less informed. Last Thursday, The Ditch published what purported to be a copy of the Attorney General’s legal advice on Friday’s referendums — publishing the story at 2:13pm, a few minutes after the moratorium took effect.

The advice suggested ambiguity about whether the word “strive” in the Care Referendum would create obligations for the Government.

That was a salient piece of information, and ought to have been worthy of sharing on broadcast news bulletins to help voters make up their minds.

The moratorium leaves voters more vulnerable to late misinformation. Remember the viral voice note in March 2020, with an authoritative sounding (but ultimately nonsensical) Defence Forces member warning about a “status red emergency” being declared at “zero eight hundred hours”? Being widely shared didn’t make it true.

The Electoral Commission last month encouraged people to treat every day as if it were April Fool’s Day and to scrutinise the information they come across. It already has a role as a neutral fact-checker and, in future, is set to have the power to issue takedown notices for online claims it deems false.

Yet while that law is uncommenced, and while we are warned of organised disinformation campaigns — possibly waged by state actors — there is every possibility of a sensationalist video being unleashed at 2pm on the day before polling, skewing reality and swinging the votes of people who cannot access responsible media to check its truth.

How do we square this proactive approach on the part of the electoral regulator, with a broadcast sector that would be forbidden from telling them such a video was nonsense?

We cannot change that for previous campaigns, but we should insist upon it for future ones. Debate and discussion go on when broadcasters cannot. The moratorium should go.​

Gavan Reilly is political ­correspondent at Virgin Media News, writing in a personal capacity