RTÉ and Green Party trustee Tom Kivlehan must each pay their own costs of his failed challenge to the broadcaster's exclusion of Green Party leader Eamon Ryan from a televised party leaders' debate during the general election, a High Court judge has ruled.
The case raised important issues relating to the "singular and unique" role of the media under the Constitution in educating and informing the public in the democratic process, Ms Justice Marie Baker said.
The case arose after Eamon Ryan was not invited to participate in a debate, broadcast on RTÉ One on February 15th, because the Green Party did not meet a requirement set by RTÉ for participation in such debates of having three TDs in the outgoing Dáil.
Just hours before the debate was broadcast, Ms Justice Baker rejected Mr Kivlehan’s challenge to RTÉ’s failure to add Mr Ryan alongside seven other party leaders. There was nothing unfair, irrational or disproportionate about the three TDs criterion, she held.
Both RTÉ and Mr Kivlehan then sought their legal costs against the other and the judge gave her costs ruling on Thursday.
Ms Justice Baker said, while Mr Kivhelan had lost his case, it did raise a point of "novel and constitutional" importance concerning the democratic process.
‘Singular and unique’
That concerned the interplay between, on one side, RTÉ’s editorial choices and its criteria for inclusion in TV party leaders’ debates and, on the other side, the Constitutional provision recognising the “singular and unique” role of the media in educating and informing the public in the democratic process.
If this case was just about the three TDs criteria, a decision on costs would be “straightforward”, the judge said. The court had accepted the criteria were suitable and appropriate and they had also been fully identified to the Green Party in correspondence from RTÉ before the legal action.
However, a factor that weighed in considering liability for costs was Article 40.6.1 of the Constitution, little explored in previous cases, which describes the media as an organ of public opinion and identifies the education of public opinion is in the common good.
The constitutional provision did impose a positive obligation on a public service broadcaster to produce programmes to inform and educate, she said. Implicit in her judgment on this case was a conclusion as to the “degree of singularity” that public service and other media have in the education of the public and the democratic process.
This point was of novel and constitutional importance and, while she had decided it in favour of RTÉ, that was also of benefit to the public, media and wider democratic process. It also benefited Mr Kivlehan as a member of a political party, she added.
As this case seemed to engage such questions for the first time, the appropriate thing to do was make no order for costs, meaning each side pay their own, she ruled.
The judge added it would be unfair to give Mr Kivlehan some portion of his costs against RTÉ. He took this case as a trustee and member of the Green Party and as a general election candidate, she said. She did not consider he brought it as a citizen other than in his capacity as a trustee.
