Seanad debates

Monday, 11 July 2022

Online Safety and Media Regulation Bill 2022: Report Stage

 

10:00 am

Photo of Vincent P MartinVincent P Martin (Green Party) | Oireachtas source

I see some merit in the Labour Party's amendment No. 82. I note that it makes reference to section 46N, which relates to the rules that apply in these instances. This is an important area and one in which I have a particular interest.

We all know we live in a constitutional democracy and there are statutory obligations as well as constitutional obligations. However, all signposts and roads lead in the one direction, that the broadcaster's overriding obligation is one of fairness, objectivity and impartiality. That is an imposition and it is not for bargaining. That is imposed on all broadcasters.

I believe it is appropriate that individuals and all political parties do not meddle in the editorial coverage of, for example, a general election. This should rest solely with the broadcaster, once it is done in a fair and seen to be fair way in the relevant applicable media service provider. It has to be transparent. However, this does not mean that it is immune from assessment. We live in a democracy and, at times, we have had tensions between the different separations of powers in the past. As this monumental legislative measure goes through the Houses, I assume it will also be tested over the years and will be helped in its interpretation by a new set jurisprudence. Jurisprudence in the past was not afraid to stand up for fairness, much as we are reluctant to do so because in a democracy we must give the broadcaster a wide berth and wide discretion. However, broadcasters must uphold the democratic values enshrined in the Constitution. There is no mention of the Constitution in this Bill. There never is in legislation because there is a presumption of constitutionality. In the back of everyone's mind are the people who ultimately decide, in the form of Bunreacht na hÉireann.

The democratic values enshrined in the Constitution and which are applicable in this and other sections include the right to equal treatment in the political process. I accept the right to equal treatment is not an absolute right. It may be restricted, but only restricted once it is done in a fair, impartial and objectively justifiable way. The McKenna v. An Taoiseach (No. 2) case concerned the extent to which the allocation by the Dáil of £500,000 to the Government was to be used for a publicity campaign to promote a "Yes" vote in a referendum. That was deemed to represent an unlawful expenditure of public funds to promote one side of the argument.

The late Chief Justice, Mr. Liam Hamilton, had regard, and we as legislators should have regard, and it is nice that we can say that we listen to the people across the River Liffey, to the equality which is fundamental in the democratic nature of the State. However, the Chief Justice had particular regard to the unique role of referenda in the democratic process. This goes to the heart of what my Labour Party colleagues want in a fair way. It is covered in the legislation, but one can never go far enough in these matters. We should not leave it to the Constitution but tie it down as much as possible in statute law. The Chief Justice said:

The role of the People in amending the Constitution cannot be overemphasized. It is solely their prerogative to amend any provision thereof by way of variation, addition or repeal or to refuse to amend. The decision is theirs and theirs alone. Having regard to the importance of the Constitution as the fundamental law of the State and the crucial role of the People in the adoption and enactment thereof, any amendment thereof must be in accordance with the constitutional process and no interference with that process can be permitted because, as stated by Walsh J. in Crotty v. An Taoiseachit is the people themselves who are the guardians of the Constitution".

Protected under the rubric of personal rights in the Constitution, and mirrored in this statutory provision we are hoping to enact, is the freedom to hold and communicate political opinion. That is at the heart of this module in this very substantive legislative measure. Article 40.6.1° guarantees freedom of expression and association. There have been a number of cases concerned with fairness of political broadcasting by reason of the inclusion of some political players and not others. I commend all those in the past on doing that. It was RTÉ then, but broadcasters and applicable relevant service providers are more widespread now. People and broadcasters should never be afraid to take interpretations, and I commend the long list of people who were plaintiffs in the past. Sometimes they were not victorious, for example, the Kivlehan v. RTÉ case in 2016. Ms Justice Marie Baker in the High Court ruled against the plaintiff, but did not order costs. She said he engaged at the high-level aspects of the Constitution. The political players and who are included is very important and I believe that is the motivation behind the Labour Party Senators' concerns.

The circumstances in each of the cases that have come before the courts have been very different, but the underpinning reason of the court in each of these cases has been the question of whether the court was considering the exercise of broadcasting discretion in a manner which trespassed constitutionally on other people's rights if the discretion went too far and could not be justified. Thus in the famous Coughlan case, the court was moved to conclude that the constitutional principles of equality and fairness applicable to broadcasting were breached in that instance, when the coverage given preferred one side over the other. Although in that case the court was concerned with a referendum, it is clear from the reasoning of the court both in Coughlan and the earlier case of McKenna that its conclusions apply equally where there is an unequal approach which prefers one party over another in a general election. Interestingly, in the Coughlan v. the Broadcasting Complaints Commission case, the late Mr. Justice Paul Carney said that the respondent, as a national broadcasting service, is subject to the Constitution and to statute which require it to uphold the democratic values enshrined in the Constitution and a constitutionally fair procedure.

I will conclude by referring to an interesting extract that was published in Judge Gerard Hogan's book, The Origins of the Irish Constitution, 1928-1941. The more things change, the more things remain the same. He reproduced in his tome, which is a very respected book, a transcript of a radio broadcast by Éamon de Valera in April 1937. It is now preserved in the National Archives of Ireland under the Department of the Taoiseach. It is filed safely there.It expresses the principles underpinning the Constitution clearly and cogently. Éamon de Valera said:

The Constitution is frankly based on the democratic principle. That principle runs right through the draft Constitution published today. By the votes of the people the President of the State will be chosen, by them the House of Representatives will be elected, and on the nomination of that House the responsible Government will be appointed. By the people only, through the Referendum, can the National Constitution be amended. The sovereignty resides in the people as their inalienable and indefeasible right. [De Valera added that] Every elector who casts his [or her] vote in favour of the adoption of this Constitution will in effect be subscribing his name to the proposition that in this country the people and the people alone are the masters.

I say to all the broadcasters that they are the servants. The people are the masters. The public representatives here today are the servants. We enjoy the operation of the presumption of the constitutionality of the statute law, but if it ever crosses, trespasses or entrenches onto constitutional grounds, we live in a vibrant democracy and people may exercise their right in the future. In time to come, we might see this in the decades of jurisprudence that will follow this very substantive and highly significant legislation. I commend the Labour Party Senators on being so forensic in this particular amendment, which goes to the heart of what is fair. Sometimes, we cannot make it fair in one go, but the Act allows for broadcasters to have a number of broadcasts to make it fair and to level the pitch again. I will leave it at that for now. Thank you for your indulgence, a Leas-Chathaoirligh.

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