RTE has urged the Supreme Court to "consider carefully" the consequences of upholding a High Court decision that the station's allocation of time for uncontested broadcasts to the Yes and No sides in the 1995 divorce referendum resulted in "inequality amounting to constitutional unfairness".
In the 1995 divorce campaign, RTE allocated 42.5 minutes uncontested broadcasting time to the Yes side and 10 minutes to the No side.
A Trinity College Dublin law lecturer, Mr Anthony Coughlan, complained about this to the Broadcasting Complaints Commission and when the BCC failed to uphold his complaint, he pursued the matter to the High Court which ruled in his favour.
The BCC and RTE, supported by the Attorney General, have appealed the decision to the Supreme Court. The three-day appeal concluded yesterday and judgment was reserved.
During the hearing, counsel for the State, Mr Eoghan Fitzsimons SC, said the High Court's application of the Supreme Court decision in the McKenna case - preventing the Government from using public funds to promote one side in a referendum - had created an impossible position for RTE, the Referendum Commission and the Government.
Mr Donal O'Donnell SC, for Mr Coughlan, E did not arise from the High Court decision. He said there was no question of excluding political parties from the airwaves in referendums. The issue related to achieving approximate, not mathematical, equality in relation to uncontested broadcast time.
Yesterday Ms Mary Finlay SC, for RTE, said it would not be possible to confine to a referendum a possible Supreme Court decision upholding the High Court's judgment. Such a finding would have implications for RTE's general election coverage and create a situation where all candidates could argue an entitlement to equal air time.
Mr Justice Barron told counsel she was dealing with issues of editorial judgment and discretion which were not issues in the appeal. What the court was dealing with was whether there was a misapplication and misconstruction of Section 18 of the Broadcasting Acts.
