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

It would be a matter of serious concern if recourse to our defamation laws was to have a chilling effect on public debate on the issue of marriage equality in the lead-in to the referendum. While the defamation laws are outside my remit, the Broadcasting Act is not. At present, section 39 requires every broadcaster to ensure that nothing is broadcast that may reasonably be regarded as causing offence. I repeat my view that 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 not intended and is not objectively ascertainable. I will shortly be proposing miscellaneous amendments to the Act. Among them, as I announced in the Dáil recently, I am now considering an amendment that would require broadcasters to avoid causing undue offence. That seems to me to be more objective and more in tune with the realities of public debate. I am not sure I agree with Senator Zappone that the difference is minor but we can talk about that when the legislation is published. If memory serves me, the term used by the Press Council of Ireland and Office of the Press Ombudsman is "grave offence". I do not know whether that goes closer to meeting the objective here.

In the specific context of referendum campaigns, Senators no doubt are aware that the Broadcasting Act 2009 requires the Broadcasting Authority of Ireland, BAI, as the independent regulator responsible for compliance in respect of broadcast content to draw up broadcasting codes on the standards and practice to be observed by broadcasters. The BAI has accordingly published a broadcasting code on referenda and election coverage. This code sets out the rules with which broadcasters must comply when covering any election or referendum. The aim of the code is to ensure that broadcasters' coverage of elections and referendums is fair, objective and impartial. Coverage should be undertaken without any expression of a broadcaster's own views on an election or referendum or on parties or candidates. 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 that coverage in the run up to the referendum and on the day that citizens cast their vote is fair, objective and impartial. It is incumbent upon the BAI and all broadcasters in the State to ensure that they adhere to the code on referenda and election coverage, as well as to the spirit and letter of the relevant judicial rulings in this area.

I know that many people think the broadcasters' hands are tied by the Supreme Court decision in Coughlan v. Broadcasting Complaints Commission, given in 2000. The immediate effect of that decision was to get rid of party political broadcasts during referendums. Perhaps most Senators would say this is no great loss. A knock-on effect, however, seems to have been the "stopwatch" phenomenon when it comes to measuring news and current affairs output in order to comply with a supposed "50-50" rule. Senators may recall Dr. Gavin Barrett of UCD writing back in 2009 that the application of the Coughlan ruling had the effect of politicians and parties in a referendum finding themselves given literally not one second more time on the airwaves than unelected campaigners whose sole qualification before being handed 50% of air time on both public and private broadcast media is that they have uttered the word "No". He wrote that,
put another way, influence formerly enjoyed by elected politicians has been transferred directly to unelected pressure groups or politicians with a tiny proportion of national electoral support. The result of the application of this case law and, almost as crucially, the failure to provide an appropriate legislative reaction to it, has been, to borrow the words of Barrington J. in his powerful dissenting opinion in the Coughlan case, to play down or neutralise the role of political leaders in favour of committed amateurs.