After watching Trócaire's Lenten advertising campaign on gender equality on YouTube about a hundred times, I began to wonder about things completely unrelated to my original attempt to discover why it had been subject to a ban, which was upheld yesterday, writes Breda O'Brien.
I wondered what digital trickery was used to produce an image of at least 50 babies lying calmly side-by-side. I wondered whether the cloth nappies were a reflection of the fact that people in the developing world cannot afford disposables, or a subliminal message to save the planet from even more non-biodegradable litter. I wondered whether maternity hospitals really use pink wristbands to identify girls, and whether or not that is a good idea.
These random speculations were as good a use of my time as any other, because the key to why the Broadcasting Commission of Ireland (BCI) decided to ban this advertisement is found not in the ad itself, but in an entirely different one. You can't watch it on YouTube because it is a radio advertisement, but here's a transcript.
Sound effect: Muffled heartbeat on echo. Announcer: Her heart has been beating since she was 18 days old. At eight weeks she's perfectly formed. She sucks her thumb. And she already has 20 milk-teeth buds.
Sound effect: Heartbeat stops. Announcer: In another two weeks she would have had fingernails. She might have grown up to be a doctor, scientist, a mother. But now nobody will ever know. Have you any conception what abortion is about?
In 1998, the High Court ruled that the IRTC (the BCI in its previous incarnation) was correct to ban local radio stations from broadcasting this 30-second advertisement sponsored by Project Truth, an offshoot of Youth Defence. The Irish Times reported that Mr Justice O'Sullivan had said that the advertisement was closely bound to the political objectives of Youth Defence. It would be unrealistic "to shut one's eyes to these objectives and construe the advertisement out of context and severed from its background".
Given that this powerful advertisement against the evils of abortion was produced by a group so closely associated with a campaign for a new referendum on abortion, he declared that it could not be construed as anything except something directed to a political end.
Section 10(3) of the Radio and Television Act 1988, directs that "no advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute". The High Court judgment decided that "an advertisement has a political end within the meaning of Section (10)(3) if it is directed towards furthering the interests of a particular political party or towards procuring changes in the law of this country or, I would add, countering suggested changes in those laws".
In effect, in deciding whether or not to allow an advertisement to be broadcast, the BCI now has to take into account not only the advertising campaign, but the agency sponsoring it. There might have been much understandable indignation over the Trócaire ban, and it is a live question as to why RTÉ, subject to the same legislation, came to a different decision.
However, there is no doubt that the High Court judgment provides a rationale for the ban given that Trócaire on its website has a petition calling for a UN resolution to improve the lot of women to be imple- mented within a year. Since the High Court judgment, the definition of "political" is extraordinarily broad. In my view, it is so broad as to endanger democracy.
Of course, the BCI's decision yesterday afternoon to uphold its ban despite Trócaire's appeal is vital to the agency. It is its major campaign of the year.
However, the issue is far wider. It is vital for the health of civil society that even the preliminary ban should spark widespread debate.
As Fergus Finlay has pointed out, it is part of a creeping trend that saw, among others, an instruction that an invitation by the National Consumer Agency to make submissions regarding the Groceries Order should not be broadcast. The consumer agency was encouraging listeners to respond to a consultation process which would influence a political decision-making process, so it had to go. This casts doubt on the legality of any advocacy group running radio or television advertisements. Yet how can a vibrant democracy justify banning a tool such as advertising from advocacy groups that is available to every business enterprise?
Michael D Higgins declared this week that it was never the intention that legislation would be interpreted in this way.
He suggested an amendment to the Broadcasting (Amendment) Bill 2006 on Committee Stage that would clarify that "political" referred to political parties, groups, candidates and elections.
However, that only deals with one part of Section 10 (3). The alert reader will have noted the other two provisions - advertising directed to a religious end, or concerning an industrial dispute. Dermot Ahern reviewed the ban on religious advertising and in 2004 decided to leave it exactly as it is.
Given that the BCI has to take into account not only the advertising campaign but also the sponsoring agency, even a cursory glance at the website will reveal that Trócaire is an agency of the Catholic Bishops, that Lent is part of the Christian liturgical year, that Trócaire does not only urge us to improve the lot of girls and women, but also suggests that we pray.
If the "religious end" part of the legislation were to be interpreted as strictly as the "political end", Trócaire could never advertise again. Ironic that, given that Trócaire does not fund any missionary initiatives, but only development projects.
Pluralism and tolerance are difficult disciplines. There are many who disagree with the ban on Trócaire's campaign who would have been delighted by the ban on the anti-abortion advertisement. I am none too enamoured of some of Youth Defence's other tactics myself. However, in a real democracy, we cannot have it both ways.
If the creeping trend continues, everyone from St Vincent de Paul to lone parent groups could be barred from radio and television advertising, because they all want to influence policy and law-making. Are we so fragile, the Irish viewers and listeners, that we need this level of protection?