Exclusion of Greens was not unfair, says court

RTÉ’s criteria were ‘sufficiently reasonable and impartial’

A High Court judge said yesterday the criteria used by RTÉ to exclude Green Party leader Eamon Ryan from the televised party leaders’ debate was not unfair or irrational or disproportionate.

The legal challenge was dismissed hours before the debate went on air. It featured seven leaders from Fianna Fáil, Fine Gael, Labour, Sinn Féin, People Before Profit, the Social Democrats, and Renua.

In judicial review proceedings by Green Party trustee Tom Kivlehan, it was argued the broadcaster’s criterion stipulating only parties with three TDs in the outgoing Dáil could be invited to participate was unfair, undemocratic, and unconstitutional and in breach of RTÉ’s legal obligations a public service broadcaster.

RTÉ maintained that its criteria were objective, fair, transparent, and applicable to all parties. The Greens effectively wanted the broadcaster to apply “subjective” criteria for leaders’ debates that would favour the Greens over other parties, RTÉ argued.

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In her judgement on the two-day hearing, Ms Justice Marie Baker ruled RTÉ’s choice of criteria can be judicially reviewed and said “fundamental and core democratic ideals”, including the right to freedom of expression, were raised.

RTÉ’s criteria, she found, were “sufficiently reasonable and impartial”, not unfair or irrational, and proportionate to the needs of the political debate and the public’s right to be informed and educated in an engaging live programme.

Eamon Ryan was in court for the judgment. When counsel for RTÉ indicated afterwards it would seek its costs, the judge said the costs issue involved significant considerations.

RTÉ had accepted the criteria adopted for this election were “not perfect” but the court accepted some editorial choice had to be made and some threshold requirements for participation in leaders’ debates had to be set, especially when 15 parties were fielding candidates.

The viewer’s interest in an engaging programme, plus the importance of current Dáil representation as an index of political thinking and the spectrum of opinions, were all factors to be weighed, she said.

The court was not an expert in broadcasting and the role of RTÉ as expert, given “singular and unique recognition” in the Constitution, must be respected by the court. The court could not be asked to fix programming criteria in which it has no expertise, she said.

Her main difficulty with Mr Kivlehan’s arguments were that many of the considerations the Greens urged should be taken into account by RTÉ would favour the party over other possible participants in the TV debate, she said.

It was claimed the refusal to invite Mr Ryan marked a failure to consider the strength and historical and international importance of Green Party policies, she said. Those factors were “overly subjective” and if RTÉ adopted them as criteria, that could lead to arguments of partiality and subjectivity.

The requirement broadcasters act fairly and impartially cannot involve the broadcaster in considering the value, whether national or international, of the particular policy any party espouses, she said.

While the Greens had argued the fact they are fielding 41 candidates was relevant to their participation, RTÉ had suggested the number of candidates did not itself indicate a party’s strength or national reach, she noted.

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