Pat Rabbitte (Dublin South West, Labour) | Oireachtas source

I am conscious in dealing with this issue that this Friday legislative slot was set aside to allow Deputies, particularly Opposition Deputies, to advance Bills that could otherwise only be taken during Private Member's business or not at all. This reform was intended to facilitate Deputies who have a particular interest or reform in mind and who require a fair wind to translate it into law. Private Member's Bills have been adopted in the past but they have been too few and invariably they have been of some substance. This one-section Bill is scarcely what was envisaged when the change to Dáil procedure was made. There was no need to cause the House to assemble this morning to make a point that might have been raised in several other routine ways. Rather than dismiss it as a stunt, I will give the Deputy the benefit of the doubt. Perhaps he did not expect to be selected or did not have time to produce a considered Bill.

The Bill derives from a remark of mine published in The Irish Timesduring the so-called Pantigate affair when I said that, in the context of a wider revision of the Broadcasting Act, I was considering an amendment that would require broadcasters to avoid causing “undue offence”. At the moment, Section 39 of the Act requires every broadcaster to ensure that nothing is broadcast that may reasonably be regarded as “causing harm or offence”. I said, in the wake of the programme in question, that the more objectively ascertainable test would be to impose a requirement not to cause “harm or undue offence”. This comment appears to have been whimsically latched onto by the Deputy, who now, in this hurried one-section Bill, proposes simply to excise the term “offence”. Legislating from the hip for a passing headline is not appropriate in a complex area, nor would it improve the quality of public debate. A more nuanced approach is required if broadcasting standards are to be maintained and if we are to prevent broadcasters from seeking controversy in the pursuit of ratings.

The Bill proposes the reinstallation of section 39(1)(d) of the Broadcasting Act 2009, minus the two words "or offence". The Deputy proposes this amendment in the full knowledge that a full refurbishment of the 2009 Act is under way. Put simply, the totality of this Bill is the excision of the two words "or offence". What would happen if colleagues in the House generally started to trawl through statutes based on something they heard over their corn flakes on "What it says in the papers", resolving to excise two words they do not like and call that proposal a Bill, and defending this legislative ingenuity on the basis of whatever argument is popular at the time?

I would rather take the Deputy's initiative this morning as an indication that he wants to debate the issue, and I am happy to engage on that basis. I am not happy, however, to be associated with any move that would seek to debase broadcasting standards in this country to what we see in, for example, the United States. I do not want to turn the national broadcaster or any other broadcaster into a version of "The Jerry Springer Show". Freedom of speech and of expression - and, equally, the right to be heard - are central tenets of Article 19 of the United Nations Universal Declaration of Human Rights. They are correctly regarded as being central to the proper functioning of civil society, but they cannot be taken for granted. It matters little whether the subject is developmental issues in sub-Saharan Africa, trade issues in Asia or gay equality in Europe - unless the media can report without fear or favour then the public good is undermined. The right and ability of media to do so must be preserved. After all, to quote the Secretary General of the United Nations, "When it is safe to speak, the whole world benefits."

There is, however, a delicate balance to be struck between ensuring the constitutional rights of the individual to freedom of speech and freedom of access to information are maintained, while at the same time safeguarding individuals and groups in society from abuse. In introducing this Bill, the Deputy referred to Article 10 of the European Convention on Human Rights, which deals with freedom of expression. While it is strictly true to say, as the Deputy did, that there is no reference to "offence" in that article, it does, at 10.2, impose limitations on the basis that the right to freedom of expression carries duties and responsibilities, one of which is the protection of the reputation or rights of others. Similarly, our constitutional guarantee, in Article 40.6.1°, of the right to express convictions and opinions freely, and, under Article 40.3°, to communicate convictions, opinions and feelings, is also limited. The State is obliged, under Article 40.3.2°, to protect citizens, as best it may, from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. The proposed amendment to the current provisions does not take account of this obligation.

The controversy surrounding RTE's "The Saturday Night Show" brought issues of gay rights, homophobia, freedom of expression and the obligations of our public service broadcaster to the fore. The handling of and reactions to the broadcast have been subject to commentary, criticism and query. While I have not remained silent on my views on homophobia and the use of "homophobe" as a label, I sought to avoid intruding into or ascribing motivation to the RTE decision in respect of the contemplated litigation. Deputies will be familiar with the statement at the time from the managing director of RTE television. The broadcaster's explanation is that it had expert advice available to it which cautioned that it did not have a case to defend. As a result, it made the decision it made. It is true that RTE is the public service broadcaster, but it is also true that it has commercial obligations under section 108 of the Broadcasting Act 2009. The broadcaster made a commercial decision, as it frequently does, in the face of contemplated defamation actions.

Mr. Killane declared in his statement that RTE had not "engaged in censorship, but ha[d] rather fallen foul of Ireland's defamation laws." It is important to note that the Bill before us today would change nothing in respect of the situation in which RTE found itself. The broadcaster would still be subject to the same six legal actions under defamation law and would be forced to consider the same decisions. I said recently that I hope people who hold themselves out as commentators on or contributors to public debate fully appreciate that such debate can be robust, heated, personal and sometimes even hostile. Politicians are expected to function in such an environment as normal. That said, I understand from RTE's appearance before the joint committee at the end of March that there are four or five Members of the Oireachtas who are either in the process of taking legal action or are threatening legal action against RTE in this area. The broadcaster is operating in a difficult and complex environment, having strict and restrictive legal responsibilities under current defamation law. It must continue to present a wide range of views and allow forthright debate while operating within these boundaries.

The Broadcasting Act 2009 provided for the establishment of the Broadcasting Authority of Ireland, BAI, as the independent regulator responsible for the oversight of compliance in regard to broadcast content in the State. The numerous broadcasting complaints arising from "The Saturday Night Show" will be addressed by the compliance committee of the BAI in due course. One of the objectives of the authority, as set out in section 25(1)(b) of the 2009 Act, is to ensure that "the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression, are upheld". Section 39 of the Act provides for the duties of broadcasters, including, for example, in regard to objectivity and impartiality in news and current affairs. It would be a matter of serious concern if recourse to our defamation laws were to have a chilling effect on public debate, particularly in the lead-in to the referendum on marriage equality.

In the context of that forthcoming ballot, the BAI has developed and published guidelines in respect of the coverage of referendums. These set out the rules with which Irish broadcasters must comply when covering any referendum held in the State. The aim of the guidelines is to ensure broadcasters' coverage of all elections and referendums is fair, objective and impartial. In covering the forthcoming referendum, broadcasters must ensure, for example, that coverage of the referendum is fair and equitable to all interests. The BAI has previously highlighted the need for broadcasters to put in place transparent mechanisms for ensuring, in the run-up to the referendum and on the day citizens cast their vote, that coverage is fair, objective and impartial. It is incumbent upon the BAI and all broadcasters in the State to ensure they adhere to the guidelines on referendums and election coverage, as well as to the spirit and letter of the relevant judicial rulings in this area.

The right of reply scheme published by the BAI provides for the broadcast of a right of reply statement to facilitate the correction of incorrect information that has been broadcast and which has resulted in a person's honour or reputation being impugned. The scheme details the process for exercising a right of reply and the manner in which the public can utilise the process. The BAI has developed the scheme further to the requirements of the current legislation, the intention being to provide an opportunity for a person to exercise his or her right to the correction of incorrect information without recourse to legal proceedings which may prove time-consuming and costly. A request for a right of reply is made to the broadcaster, and all broadcasters are required to include on their website a copy of the scheme and information about the contact person to whom requests for a right of reply may be made. Decisions by a broadcaster to refuse such requests can be reviewed by the BAI's compliance committee.

A right of reply is about the correction of incorrect facts or information. However, the scheme does not provide for the broadcast of an alternative or contrary opinion. In other words, a person who is not satisfied with the manner in which a broadcaster has relayed information about him or her has a right of reply, but it will not be granted unless the information broadcast was factually incorrect such that the person's honour or reputation has been impugned. This was not deemed an option in RTE's response to the allegations made against it in the recent controversy.

RTE is an independent public service broadcaster and produces some 40 hours of live news and current affairs every week. While mistakes have been made, with which we are all familiar, RTE is committed to this publicly funded content. I am confident the recent controversy has done nothing to make the company resile from its public service obligations under the existing provisions of the Broadcasting Act. RTE is obliged to be responsive to the interests and concerns of the whole community, reflect the varied elements that make up the culture of the Irish people and uphold the democratic values enshrined in the Constitution, especially, as I have mentioned, those relating rightfully to liberty of expression.

Ultimately, we rely on our broadcasters to provide a forum for matters of public debate and, indeed, controversy and to ensure that, when these take place, the necessary level playing field is provided for all concerned.

RTÉ has a crucial role in the conduct of public debate and I believe it remains fully committed to ensuring the full and free exchange of information and opinion on all matters of legitimate public interest. However, RTÉ will not be a lone platform for debate in the forthcoming referendum. We need to remember that information will be presented and opinions exchanged across all media. It is important that we have a free, diverse media – not beholden to a single sector, to large commercial concerns or to a single political party. The media plays a central and critical role in conveying information, parsing outcomes and passing judgment. Because of that, the nature and character of media also matters. Its ability to speak truth to power and to challenge authority is one of those slender columns that sustain democracy. If that capacity is reduced in any way, then we are all the poorer for it. If media is fettered, either by the interests of owners, by fear of authority or by the simple fact of groupthink, then our democracy is worse off.

We can conceive of or construct media in a number of different ways, as a sector of the economy, as a means of communication, as a means of entertainment – but it is also something much more fundamental; it is central to the freedoms that we hold as core values in our democracy: the freedom to speak, to be heard, and to hear. When I spoke previously on this issue, I wondered whether in the medium and longer term, in terms of public discourse on such a fundamentally important issue as marriage equality, we will have been damaged by the recent controversy. As I stated then, it seems to me that this far out from the referendum, it may be no harm at all that these issues have been ventilated now.

In initiating the amendment, the Deputy stated to the House that he does not believe people should be censored for saying offensive things and, consequently, the Bill proposes to get rid of the reference to "offence". I believe a more nuanced approach is required if broadcasting standards are to be maintained and we are to avoid stations or broadcasters seeking controversy merely in the pursuit of ratings.

At present, section 39 requires every broadcaster to ensure that nothing is broadcast that may reasonably be regarded as causing offence. As I have stated in the House, this seems to me to be an unfeasibly rigorous approach. We all know how easy it is for some people to be offended – even where offence was neither intended nor objectively ascertainable. However, to suggest that we should grant impunity to the deliberate giving of offence irrespective of the circumstances is to invite a further coarsening of public debate.

I will shortly propose miscellaneous amendments to the Act. Among them, as I announced in the Dáil recently, I am considering an amendment that would require broadcasters to avoid causing undue offence. That seems to be more objective and more in tune with the realities of public debate and the Constitution.

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