Stephen Donnelly (Wicklow, Independent) | Oireachtas source

I move: "That the Bill be now read a Second Time."

The distinguished programme is the programme that breaches the consensus of a society and shows the audience the world in a different light. At the root of every good programme is conflict because you cannot have a consensus-shattering moment without conflict. All distinguished programmes cause offence to somebody who wants to cling to a shibboleth, or a sacred cow, or a position that is no longer borne out by the facts.

These are the words of the late Mr. Jack Dowling who worked as a producer at RTE until 1969. Penned years ago, they go right to the heart of this debate. I thank the Ceann Comhairle for choosing the Broadcasting (Amendment) Bill for debate this morning. In particular, I thank the Minister for his time in preparing for the debate on it and my fellow Deputies for their time, consideration and contributions. In preparing the Bill we interviewed a wide number of people involved in broadcasting, from presenters and contributors to editors and senior managers. I thank all of them for their time, expertise and contributions.

Strong democracies live or die by free speech. Our ability to debate openly allows society to regard itself, tackle its shortcomings, recognise its strengths, improve and withstand crises. Full and frank debate across all media is not commendable or nice to have; it is an essential ingredient in our ability to grow and evolve together. When we hobble such debate, we end up with groupthink, the marginalisation of dissenting voices and a failure to recognise when our social and political norms have become stale and outdated. The importance of open debate is something we recognise in the Oireachtas where we have created a legal bubble for ourselves, the ability to speak under privilege and free from the fear of legal proceedings being taken against us if we need to speak truth to power or about wrongdoing by rich or powerful individuals or organisations.

Of course, freedom of speech must go hand in hand with responsibility. If any of us, through our words, seeks to damage another based on false evidence, we can be held to account through the defamation laws. If any of us seeks to incite hatred, we can be held to account through the Prohibition of Incitement to Hatred Act 1989. These laws seek to balance the need for and right to freedom of speech with the obligations that go with such freedoms. This is a difficult task and, inevitably, legislation may contain errors where the balance is tipped too far in one direction or the other. The Bill seeks to rectify one such error. The Broadcasting Act 2009 lays out the responsibilities of television and radio broadcasters. Section 39(1) reads:

(1) Every broadcaster shall ensure that--...(d) anything which may reasonably be regarded as causing harm or offence, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by the broadcaster, and...

The problem is the inclusion of the word "offence". Under the Act, broadcasters are legally obliged to ensure nothing is broadcast that may reasonably be regarded as causing offence. The Bill is simple. It is just one line and has nothing to do with the defamation laws or most of the Broadcasting Act. It removes the word "offence" from section 39.

Why go to so much trouble to remove one word? Why spend so much time and effort researching, interviewing people, drafting the Bill and seeking to have it debated in the House? Why ask for the time of the Minister and my fellow Deputies? Including the word "offence" is contrary to the ideals of free speech and undermines free speech every single day in the broadcast media. George Orwell famously stated: "If liberty means anything, it means the right to tell people what they do not want to hear." This is a quote every Deputy might regard with wry appreciation.

Closer to home, President Michael D. Higgins told the International Federation of Journalists last June: "... it is critical that journalists can and must be allowed to speak the truth without fear or sanction; and that citizens must be allowed to evaluate and weigh an array of accurate and impartially provided evidence, and come to independent conclusions of their own." How are broadcasters expected to be able to speak the truth if they are not allowed to cause offence? How in this non-offensive world can broadcasters and journalists speak truth to power?

One journalist we interviewed pointed out that journalists, including broadcasters, had an obligation to hold institutions and persons of power to account. Invariably, the holders of power at some stage come to regard the imposition of accountability on them as offensive. Therefore, it seems that journalists may not just be offensive to some people at some stages, but that it is obligatory on them to be so.

Otherwise, they are probably not doing their job. We would all agree that we have far too many examples in Ireland of those in authority and the organisations they work for not being held to account because people were afraid to speak out.

Imagine asking broadcasters to shine a light on wrongdoing, abuse and special interests without causing anyone offence. It would be impossible. Yet that is exactly what section 39 of the Broadcasting Act requires them to do. Imagine a world in which we are not allowed cause offence to anybody. One person's reasonable comment is another person's reasonable offence, and so every person's reasonable comment may be censored for fear of reasonable offence. If the law were fully enforced, the Minister, myself and many other Deputies in this House would find ourselves in the broadcast media a lot less often.

It is entirely legitimate to be offended by what people say. In what many regard as his finest contribution to Dáil Éireann, the Taoiseach said "The rape and torture of children were down-played or managed to uphold the primacy of the institution, its power, standing and reputation." I have no doubt that these words caused very great offence to some people. As the law stands, therefore, the Taoiseach's speech should not have been broadcast. It is entirely legitimate for people to have been offended by what the Taoiseach said, but it is entirely illegitimate to censor the Taoiseach because of that offence.

The argument for removing the word "offence" is not just academic. It is true that the Taoiseach's speech was broadcast, but we have heard directly from broadcasters that the inclusion of the word "offence" in the Broadcasting Act is actively restricting free speech in Ireland every day. Here is how one broadcaster explained it:

The offensive test has two ill effects. Firstly, it limits the degree to which broadcasters can examine contentious topics and secondly, it breeds homogeny amongst broadcasters. The Panti-gate example illustrates how many broadcasters could only offer stunted coverage of an issue of major public debate.

Some broadcasters pointed out that not only does the inclusion of the word "offence" allow people to shut down debate they are uncomfortable with; it also allows a tiny number of people to shut down debate for the whole population, across a wide range of issues. As has been argued, one person's truth is always going to be offensive to somebody.

Part of the problem is that the onus is put on the broadcaster in the Act. There is already a legal onus on contributors to avoid defaming people, which is right and proper, but the Broadcasting Act puts responsibility on the broadcaster not just to avoid defamation, but to restrict contributors from saying anything that anyone may reasonably take offence at. One correspondent we spoke to said that if a person believes what he or she says to be the truth and if his or her experience rings true to a situation, then it is up to that person to prove it; it is not necessarily up to the broadcaster, in that instance, to moderate the debate. Yet the law requires it.

Another part of the problem is that "offence" or "reasonable offence" is entirely subjective. It cannot be measured or tested for, so it cannot be rebutted. It was pointed out in various interviews that offence, by its nature, is subjective and that there is no barometer to determine what is offensive to society at large and what is not. Another commentator argued that we cannot legislate for what is offensive. He said: "What is giving offence? One man's offence is another man's reasonable comment. It is nonsense".

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