That leave be granted to introduce a Bill entitled an Act to amend the Broadcasting Act 2009 to remove any mention of the subjective term “offence” from the duties of broadcasters.
I am delighted to introduce the Broadcasting (Amendment) Bill 2014. This year, the scandal known as Pantigate erupted, kicked off by comments made by Rory O'Neill on "The Saturday Night Show" and it was escalated by the response of those branded homophobes, who consequently threatened RTE with litigation. RTE capitulated and paid over €85,000 to six individuals. Maybe RTE should or should not have paid out but it did so because of a serious flaw in existing legislation. The managing director of RTE wrote in a letter to staff:
Having regard for broadcasting compliance issues, the seriousness of the legal complaints, and the decision by the complainants not to accept RTÉ’s proposed remedies, we decided that a settlement was the most prudent course of action. Senior counsel was consulted and confirmed that the legal position was far from clear.
The Bill aims to clarify one item of the puzzle at the heart of the episode we dealt with, that is, the removal of the term "offence" from section 39 of the Broadcasting Act. As legislators, we have a duty to show the LGBT community and society at large that free speech is something the Oireachtas respects and values and something we can and will protect. The existing Act requires broadcasters to not broadcast "anything which may reasonably be regarded as causing harm or offence". This Bill removes the phrase "or offence". I do not believe that people should be censored for saying offensive things whether or not the offence is reasonably taken. Determining what may be considered offensive by anyone in society is a pretty hefty obligation to put on our broadcasters and is especially difficult when it comes to live broadcast. Every Member is familiar with the fact that, regardless of the topic, there is always someone who will take offence. Legislation that mollycoddles those who take offence, gags free speech, harms public debate and makes uncomfortable truths invisible truths. The Act as it stands will undoubtedly cause broadcasters to err on the side of caution and they have already started to do so since RTE paid out. If we do not make a change quickly, free speech will begin to suffer. It probably already has and we will let litigious bullies shut down conversations they do not like.
The Bill proposes removing the reference to offence so that section 39(1)(d) reads "anything which may reasonably be regarded as causing harm, 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". We have heard in the press that the Minister for Communications, Energy and Natural Resources, Deputy Rabbitte, is thinking about changing the phrase "harm or offence" to "harm or reasonable offence". Any qualification of the term offence still hamstrings our broadcasters and stifles free speech in the country. It is also potentially troublesome in respect of European law. Article 12 of the Charter of Fundamental Rights of the European Union makes no reference to offence. Article 10 of European Convention on Human Rights, dealing with freedom of expression, makes no reference to offence. The RTE statement on respecting diversity is at odds with any reference to the word offence in the legislation:
As Ireland evolves into a more multicultural and ethnically diverse nation it is important that RTÉ reflects these changes. But equally programme-makers must be sensitive to areas of public opinion that are absent from public discourse because of the reticence of some people to express their views.
The current legislation asks RTE not to broadcast anything that might cause offence but, at the same time, to represent minority views that we do not often hear and that may, for whatever reason, cause some people offence. I look forward to seeing what the Minister brings forward and I hope to be able to support his proposals. However, the legislative process takes time. If the Government introduces this Bill, which just removes two words from the Broadcasting Act, maybe as a stop gap to what the Minister will do, it will immediately fix one of the biggest flaws in the legislation.
It would send out a message to minority groups, those who would like to suppress minority groups and everyone in the country that Dáil Éireann and Ireland value free speech. I hope the Government will examine this. It represents a very small change that could lead to a fundamental change through sending a signal to our broadcasters that they do not have to hide from litigious bullies.