8
MURPHY v. IRELAND JUDGMENT
approached with great care if we are not to create considerable and perhaps
insurmountable difficulties for the [IRTC] as suggested in the Bill. ...
The Bill appears to have as its intention that the [IRTC] should have the scope to
determine whether a political or religious newspaper or journal is bona fide. Where the
journal or newspaper is bona fide, advertisements promoting the sale, for a cover
charge of such publications, will not be prohibited under section 10(3) of the 1988
Act, provided the advertisement is directed to the promotion of the newspaper and is
not sectarian or directed towards a political end. If the Bill were to be enacted, the
[IRTC] would have a number of decisions to make. ... whether a particular religious
journal or newspaper is bona fide ... [and] ... whether the advertisement promotes the
publication and is not sectarian or directed towards a political end.
I am satisfied that the provisions in the proposed legislation would place the [IRTC]
in the position of having to make a value judgment in distinguishing between
publications. In order to come to a decision as to whether a particular publication is a
bona fide political or religious journal, the [IRTC] would have to assess the goals of
any particular publication and possibly the goals of the religious or political
organisation itself. Furthermore, the [ITRTC] would have to make an additional value
judgment in determining what is or is not sectarian. The Bill provides no guidelines or
parameters within which the [IRTC] can make these difficult and sensitive judgments.
There is no provision for an appeals mechanism even though the Bill would give the
[IRTC] the power to discriminate between one newspaper and another without
providing any detailed grounds for doing so. As I indicated earlier, the High Court and
Supreme Court judgments indicated the practical and administrative difficulties that
would have to be overcome if a selective ban on the type of advertisements covered by
section 10(3) of the 1988 Act was to be introduced. The Bill does not provide any
means for dealing with the concerns expressed in these judgments. It would be
foolhardy to progress without ensuring that we are not making matters worse.
Turning to the policy rather than the detail proposed in the Bill, it is legitimate to
consider whether a more selective ban on advertising directed towards a religious end
might be developed. However, to make the ban selective, the means selected would
have to ensure that any system provided for assessing the suitability of advertisements
would be applied within the limits of the Constitution and in a constitutional manner.
At the very least, the rights contained in Article 44 of the Constitution would have to
be respected and fair proceedings for those aggrieved would have to be provided.
Making the ban selective could also be seen as a curtailment of the right to free speech
and expression provided by Article 40.6.1 of the Constitution. It might be a wiser
course to consider providing the [IRTC] with powers to ban a particular advertisement
in relation to religious material if it considers that the advertisement in question
offends public order or morality rather than possibly discriminating between different
publications.
However, it is clear that advertising directed towards a religious end is a very
special category of advertising. Advertising is to some extent regulated in most
countries. Television advertising in particular is regulated throughout the European
Union through, at a minimum, the Television without Frontiers Directive. That
directive recognises the importance which individual member states attach to the
regulation of broadcast advertising in that it provides that a member state may impose
stricter regulation on broadcasters operating under its jurisdiction than is provided for
in the directive.
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