Catherine Martin (Dublin Rathdown, Green Party) | Oireachtas source

I move amendment No. 59:

In page 50, line 32, after “or” to insert “undue”.

During the Seanad debates on Committee and Report Stages on the Bill, a number of Senators indicated that they considered the provision that prohibits broadcasters and providers of video-on-demand services making available programmes which may reasonably be considered to cause “harm or offence” as being potentially contrary to the principles of freedom of expression. I committed to examining the matter. Having examined and considered the matter, I am proposing amendment No. 59 to qualify the standard applied to broadcasters and providers of video-on-demand services from “offence” to one of “undue offence”. This will align the language in the Bill with the standard of “harm or undue offence” to material applied by the Broadcasting Authority of Ireland through its code of programme standards, ensuring that the statutory provisions align with the practical implementation of the prohibition.

In qualifying the term "offence" the amendment recognises what the BAI recognises in practice, which is that there is no guarantee that programme material will be free from offence, given that the definition of "offence" varies from person to person. However, the amendment will still guard audiences against undue offence which shall continue to be enforced by coimisiún na meán through media service codes.

In this context I also note that the Bill contains numerous safeguards in respect of fundamental rights, not least that one of the primary functions of coimisiún na meán is to uphold the democratic values in the Constitution, including freedom of expression. However, it must be stated that the right to freedom of expression is not absolute and, like all other rights, is subject to balancing the law to ensure that the rights of others, for example the right to safety and security, are not unduly infringed. This principle of rights balancing is recognised in Irish law, EU law and the jurisprudence of the European Court of Human Rights. I am confident that this Bill sits comfortably within those traditions.

Amendment No. 65 is a consequential amendment to amendment No. 59.