Section 31(10) of the Act provides that the publisher of a newspaper, magazine or other periodical publication shall not publish any advertisement or notice in relation to the Dáil general election purporting to promote or oppose, directly or indirectly, the interests of a political party or a candidate at the election, unless requested to do so by one of the following people:
the national agent of a political party, or a person authorised in writing by such agent.
a candidate at the election, a candidate's election agent or a person authorised in writing by such candidate or agent.
an "other person" who produces to the publisher a certificate from the Standards Commission confirming that the person has complied with section 31(7) of the Act (see Chapter 5).
It is an offence under section 43(4) of the Act for the publisher of a newspaper, magazine or other periodical publication to fail to comply with the requirements of section 31(10).
On 2 May 2007 the Standards Commission wrote to the editors and advertising managers of over 120 national and local newspapers and other informing them of the provisions of section 31(10) of the Act and requesting them to bring this provision to the attention of any person in their organisation who has responsibility for publication of advertisements or public notices.
The Standards Commission monitored newspaper advertising at the election and as a result of this became aware of the following advertisements which appeared to have been accepted in contravention of section 31(10) of the Act:
1 Advertisements in The Kerryman newspaper in support of Tom Sheahan (Fine Gael candidate).
Five advertisements were placed, four from brothers of the candidate and one from a local councillor. The advertisements were deemed to be connected to the Mr. Sheahan's candidacy. His election agent subsequently authorised and accounted for the advertisements on her Election Expenses Statement. On that basis the Standards Commission decided that no further action would be taken with regard to the possible contravention of section 31(10) of the Act by The Kerryman.
2(a) Advertisements in the Roscommon Champion newspaper in support of Denis Naughten TD.
Five advertisements from Fine Gael Councillors Gerry Garvey, John Naughten, Dominick Connolly, Ollie Moore and Charlie Hopkins supporting Deputy Naughten's candidacy were published during the election period. The Roscommon Champion confirmed to the Standards Commission that four of the advertisements each cost less than €126.97. As these advertisements constituted "minor expenses" as defined in Part 2(g) of the Schedule to the Act and as such are not regarded as election expenses under the Act the persons placing the advertisements would not have had to comply with section 31(7) of the Act (see Chapter 5 above) and as such would not have been able to produce a certificate of compliance to the newspaper. The Standards Commission considered, therefore, that it would not be possible to take any further action in relation to the possible contravention of section 31(10) of the Act by The Roscommon Champion.
2(b) Advertisements placed by Roscommon Hospital Action Committee (RHAC) in Roscommon Champion in support of candidacy of John Kelly (Non Party)
As stated in Chapter 5, RHAC did not comply with section 31(7) of the Act. Mr. Kelly's election agent, however, subsequently accounted for the advertisements as an election expense and included RHAC as an authorised person on his Election Expenses Statement. In view of the fact that the advertisements were subsequently authorised the Standards Commission did not take any further with regard to the possible contravention of section 31(10) of the Act by the Roscommon Champion.
3 Advertisement by Mr. Declan Waugh in the Irish Times and the Irish Examiner.
As stated in Chapter 5, Mr. Waugh did not comply with section 31(7) of the Act. While the Standards Commission was of the opinion that the advertisements could be regarded as indirectly promoting the election of "green" candidates and could, therefore, be regarded as contravening section 31(10) of the Act, it also recognised that the advertisements did not specifically refer to any particular party or candidate and were sufficiently ambiguous for it to decline to refer the matter to the Gardaí for a prosecution of an offence under section 43(4) of the Act.
4 Advertisement by Kildare Town Chamber of Commerce (KTCC) in Leinster Leader newspaper.
As stated in Chapter 5, KTCC did not comply with section 31(7) of the Act. While the Standards Commission was of the opinion that the advertisement could be regarded as indirectly promoting candidates from Kildare Town and could, therefore, be regarded as contravening section 31(10) of the Act, it also recognised that the advertisements did not specifically refer to any particular party or candidate and were sufficiently ambiguous for it to decline to refer the matter to the Gardaí for a prosecution of an offence under section 43(4) of the Act. In forming this opinion the Standards Commission had regard to the organisation's claims that the purpose of the advertisement was to encourage people to use their vote and was not intended to influence the outcome of the election.
5 Advertisement by Keep Ireland Open (KIO) in The Irish Times and The Irish Independent newspapers.
As stated in Chapter 5, KIO did not comply with section 31(7) of the Act. While the Standards Commission considered that this advertisement sought to influence the outcome of the election and as such constituted an election expense for which KIO should have complied with section 31(7) of the Act it decided that the advertisement did not sufficiently oppose the interests of FF, FG and the PDs to warrant a referral of the matter to the Gardaí for a prosecution of an offence under section 43(4) of the Act.
6 Advertisement by Galway for Life in The Tuam Herald.
As stated in Chapter 5, Galway for Life did not comply with section 31(7) of the Act. While the Standards Commission was of the opinion that the advertisement sought to influence the outcome of the election and as such constituted an election expense for which Galway for Life should have complied with section 31(7) of the Act, it took the view that the advertisements did not specifically refer to any particular party or candidate and were sufficiently ambiguous for it to decline to refer the matter to the Gardaí for a prosecution of an offence under section 43(4) of the Act. In forming this opinion the Standards Commission had regard to the organisation's claims that it did not support any particular candidate or party during the election but was merely urging a pro-life vote.
The fifth advertisement which was placed by Councillor John Naughten exceeded €126.97. This is regarded as an election expense which is deemed to be connected to Deputy Naughten's campaign. The newspaper informed the Standards Commission that it received verbal authorisation from an employee of Deputy Naughten to publish this advertisement. The national agent of Fine Gael subsequently authorised and accounted for the advertisement on his Election Expenses Statement.
The Standards Commission wrote to the newspapers concerned in relation to the above advertisements and in most cases received good co-operation and assurances from the newspapers concerned that there was not a deliberate attempt to contravene section 31(10) of the Act. However, despite a number of reminders, the Standards Commission received no reply or co-operation from either the Irish Independent or The Kerryman.
When informing each of the above newspapers that it would not be taking any further action in terms of a referral of the matter to the Gardaí, the Standards Commission recommended that procedures should be put in place to ensure that the provisions of section 31(10) of the Act are strictly complied with in future. It also recommended that as part of those procedures the advice of the Standards Commission should be sought if there is a doubt as to whether the content of an advertisement might be regarded as contravening the provisions of section 31(10).
The Standards Commission has encountered a difficulty in supervising these provisions of the Act insofar as the provisions of section 31(10) refer to advertisements which directly or indirectly promote or oppose candidates or political parties while the provisions of section 31(7) refer to incurring election expenses which includes seeking to influence the outcome of an election. Therefore, while an advertisement may seek to influence the outcome of an election, it may not necessarily promote or oppose a particular candidate or party, or may be sufficiently ambiguous for a newspaper to justify accepting the advertisement and use this in a defence to any prosecution of an offence under section 43(4) of the Act. The Standards Commission considers, therefore, that some consistency might be brought to this part of the Act by including the term "seeking to influence the outcome of an election" as part of the provisions of section 31(10) of the Act.