“resulted in it being promotional for the First and Deputy First Ministers and their respective political parties.”

As the News Letter reports, the UK’s communications regulator Ofcom has ruled that an OFMDFM radio advert – part of a £20,000 advertising campaign, in February 2010, promoting the Hillsborough Castle Agreement – was “political advertising” in breach of the Communications Act 2003.  The ruling upheld a complaint made about the advertisement by the leader of the TUV, Jim Allister.

It’s worth taking the time to read the details of the ruling provided by Ofcom in their broadcast bulletin [pdf file]

Conclusion on “public service nature”

In light of these factors and taking account of all the submissions made by OFMDFM and the radio broadcasters, it appeared to Ofcom that the positive endorsements of the Agreement that featured in the advertisement had the purpose of encouraging listeners to consider the Agreement and OFMDFM in a positive light, and to support it. As such, Ofcom concluded that the overall purpose of the advertisement, and the manner in which it was imparted, was not to inform and educate the public by means of imparting information or advice that was in the public interest. Ofcom therefore found that the advertisement was not of a public service nature and did not fall within the exception set out in section 321(7) of the Act. [added emphasis]

More damning is the ruling on the contravention of section 321(3)(g) of the Act.

Section 321(3)(g)

Ofcom next considered whether the advertisement had been directed towards promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends, in contravention of section 321(3)(g) of the Act.

Ofcom assessed the content of the advertisement and, again, considered the press conference at Hillsborough Castle on 5 February 2010 (the day that the Agreement was announced), from which the clips included in the advertisement of the First Minister, Peter Robinson, and Deputy First Minister, Martin McGuinness, talking about the Agreement had been taken.

Ofcom noted OFMDFM‟s argument that “given that the work from the Hillsborough Castle Agreement will impact on OFMDFM, it was appropriate for the Department to take this forward and to advertise where the public can find copies of the Agreement. The development of the campaign followed from the recognition at the Executive for community consultation to be undertaken and for OFMDFM to take the lead”. Ofcom also noted that OFMDFM did not consider that this constituted “promoting the interests of a party or other group of persons”, adding that “the interests that the advertisement sought to promote were not the interests of a party or other political group but rather the general public interest in ensuring that all members of the public who took an interest in current issues should have access to the Agreement.”

As previously stated, OFMDFM is a department of the Northern Ireland administration, and is therefore permitted within the Act to advertise, so long as the advertisement is of a public service nature.

However, in Ofcom‟s view, the advertisement gave significant prominence to the First Minister and the Deputy First Minister, by featuring these two elected politicians as representatives of their respective political parties – Peter Robinson MLA, the First Minister and leader of the Democratic Unionist Party (DUP) and Martin McGuinness MP MLA, the Deputy First Minister and member of Sinn Féin. The advertisement not only featured these politicians but conveyed their support for, and promotion of, the Agreement, by explaining why it was good for the future of Northern Ireland.

Ofcom considers that the advertisement promoted the Agreement through its favourable tone and positive portrayal. This resulted in it being directed towards influencing public opinion on the Agreement, the political process related to it, and its implementation. The advertisement therefore sought to promote an outcome that was aligned with the political interests of the First and Deputy First Ministers.

It is also clear from elements of the press conference that key aspects of the Agreement reflected specific policy positions or objectives held by the First and Deputy First Ministers and that gaining support for the Agreement was itself core to securing their political positions. For example, Peter Robinson had stated that:

…..Central to my party‟s position on policing and justice devolution is the support from the Assembly parties. I have consistently said that this is an essential factor and a parallel indicator of community confidence. With the necessary community confidence and the faithful implementation of this Agreement we will move to agree the devolution of policing and justice on 9th March“.

Ofcom therefore concluded that the advertisement gave prominence to two elected politicians holding the positions of First Minister and Deputy First Minister. This prominence, when coupled with the overall favourable tone and positive portrayal of the Agreement in the advertisement, resulted in it being promotional for the First and Deputy First Ministers and their respective political parties. The advertisement was therefore directed towards promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends, in contravention of section 321(3)(g) of the Act, and in breach of Section 2 Rule 15b (Political, Industrial and Public Controversy) of the Advertising Code. [added emphasis]

And OFMDFM’s response?  From the News Letter report

In a brief statement last night, OFMDFM insisted that the advert was part of a consultation process which had been “vindicated” as almost 16,000 people had viewed the agreement document on its website.

It said that it would “carefully consider Ofcom’s decision” and added: “There was a clear public interest in giving people an opportunity to read the agreement and make up their own minds.”

Not that they think they’re above the law…