JOINT COMMITTEE ON COMMUNICATIONS, NATURAL RESOURCES AND AGRICULTURE debate

Report on Investigation Pursuant to Section 53 of Broadcasting Act 2009: Discussion with BAI and RTE

Chairman

The purpose of today's meeting is to consider the report on the investigation of the programme "Prime Time Investigates - Mission to Prey" which was broadcast on 23 May 2011. We will hear first from the Broadcasting Authority of Ireland on the policy implications of the report. We will also hear from RTE on the procedures and structures being put in place to ensure such editorial and managerial failures are not repeated. Appearing before the committee from the Broadcasting Authority of Ireland are the CEO, Mr. Michael O'Keeffe, and the chairperson, Mr. Bob Collins, and both will make opening statements followed by questions and answers. As is normal I will call members from Fianna Fáil, Sinn Féin, the Independent members and the Government parties and I will limit their opening comments to five minutes because of time constraints. We have the room until 3 p.m. and I ask committee members to work with me on this. We have clear references to discuss the policy implications of the inquiry.

Before we commence, I remind witnesses that they are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that where possible, they should not criticise or make charges against any persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that members should not comment on, criticise nor make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

Mr. Michael O’Keeffe

I thank the Chairman. We will separate our presentation into two parts. I will go through the process from the start of the investigation to its completion and Mr. Collins will go through the statement of findings we issued.

I will briefly refer to the provisions in sections 53 to 57 of the Broadcasting Act. The process involved a number of stages and the bodies involved had various responsibilities. It is important to make this point to give committee members context. Section 53 outlines the investigation process which is undertaken by the compliance committee which appoints the investigating officer. Section 54 deals with the report, its findings and recommendations and the procedures relating to the outcome of the investigation. This comprises two elements as the compliance committee makes findings and recommendations which are passed to the Broadcasting Authority for implementation. Sections 55 and 56 deal with the statement of findings and any matters to be taken into account in determining a financial sanction. The detail of these are found in the Act.

I will briefly outline the stages of the process and I am happy to answer any questions afterwards. The first stage was the investigation process itself, which was done under section 53. At a meeting of the compliance committee on 29 November the issue of whether the programme warranted investigation was considered and it was decided that it did. On or about 8 December, an investigating officer was appointed, namely, Anna Carragher, the former controller of BBC Northern Ireland. She was given specific terms of appointment with regard to the programme, the issues the committee wished her to consider in her report and how she was to undertake the investigation. These are set out in pages 8 to 12 of the report and I do not propose to go through them here. However, if members have questions on them I am very happy to address them. These were set out at the beginning of the process in December and have been outlined in her report.

She undertook her work from her appointment on 8 December until the end of February and she completed her report on 29 February. Her work involved writing to RTE as the broadcaster and to individual programme makers and inviting separate submissions, but the latter chose not to do so. Clarification and elaboration meetings were held with RTE and the individual programme makers during the course of a number of weeks in January. In that period, there was additional correspondence between the investigating officer and the broadcaster. Once this process was completed, she began the drafting of her report. This occurred from approximately the middle of February onwards. She completed her report and submitted it, including her views and recommendations and the executive summary, to RTE and the programme makers at the end of February. The report went directly to them because of a requirement under the Act to the effect that, if there are adverse findings, which was the case in this instance, a report should go to the broadcaster before going to the compliance committee.

All of the material was referred to the compliance committee. This included her report and the responses thereto of RTE and the programme makers. The committee considered this material at a meeting on 13 March. Under section 54 of the Act, the compliance committee must make a determination on whether there was a breach. It decided that there had been a serious breach. Under the Act, the committee must refer such a matter to the authority, which was done on 20 March. It passed from the compliance committee having a role at that point to the authority taking on a role from there on. The authority was obliged to issue a notification to RTE, which occurred on 5 April. At that point, the authority also decided to give a copy of the Carragher report to RTE and the individual programme makers.

I will pause for a second, as a couple of options were then possible for the broadcaster. It could have decided to take the matter to the courts. Under the Act, the authority cannot proceed with the matter unless it is requested by the broadcaster to do so. Otherwise, the matter must go to court. Had RTE not requested the authority to deal with the matter, the latter would have needed to make an application to the court to take the matter forward. This is the procedure outlined in the Act.

On 19 April and under section 55(2), RTE asked the authority to deal with the matter through a written submission. The Act allowed for an oral hearing, but RTE did not choose that manner. RTE made a submission to the authority for consideration. This was received on 1 May. The authority also received written submissions from four of the five programme makers identified in the report. The programme maker who did not make a submission was Mr. Ed Mulhall, who had retired from RTE prior to that date.

On 3 May, the authority met and was required to make a determination on the matter having considered all of the relevant matters, including those set out in subsections 56(a) to (s), inclusive, namely, the matters that are relevant to the determination of a financial sanction. At the meeting, the determination made was that RTE had seriously breached the relevant sections of the Act. A statement of findings was agreed and was to be issued to RTE. A decision was also made on the appropriate sanction. As the committee is probably aware, the notification was sent to RTE on 4 May. The authority put a statement of its findings on the website and published it. The authority also published the investigating officer’s report.

I have given a quick run through of the process that was undertaken. I will answer members' questions later, but I will first hand over to our chairperson to take the committee through the contents of the statement of findings.

Mr. Bob Collins

As Mr. O'Keeffe has stated, this is a complex process and we will try to avoid as much detail of the complexity as possible. The authority first considered this matter when it received the report from the compliance committee and was obliged to accept the committee's recommendation and issue a notification to RTE. The indicative financial sanction, if any, to be imposed was within its own determination. At that stage, the authority considered the issues and the seriousness of the breaches that were found in the investigative report and accepted by RTE. It identified to RTE the level of financial sanction that it believed appropriate to impose. When the final stage of these proceedings was reached, the authority was obliged to consider the content of the investigating officer's report, the responses from RTE and individuals and all of the 19 specific elements contained in the statute in terms of the determination of financial sanctions.

Having recited the statutory context in which the issues arose, the statement of findings issued by the authority noted in particular the responses received from RTE. It also noted the comments made by the individuals concerned. The authority's first action in its determination was to make clear that these findings were directed at the broadcaster and were not and should not be understood to be findings in respect of a sanction imposed on or a statement of culpability of the individuals involved in the making of the programme. The authority has no such power and had no such intention.

The authority formally found that the broadcast of the programme represented a breach of subsections 39(1)(b) and (e) of the 2009 Act, was not fair to Fr. Kevin Reynolds and had been made in the face of denials by him and in circumstances in which he had offered several times to undertake a paternity test. That Fr. Reynolds was an ordained Roman Catholic priest in active ministry was a consideration in terms of the broadcast’s impact on his reputation.

The authority formally found that the means employed to make the programme, including secret filming and the doorstep interview, unreasonably encroached upon Fr. Reynolds's privacy, which was a breach of subsection 39(1)(e). It found that there was a significant failure of editorial and managerial control within RTE, which failed to foresee and control the possibility of such a breach occurring and failed to recognise the grave injustice that could be done to Fr. Reynolds by the broadcast. This constituted a breach of subsection 39(1)(b).

The findings noted that RTE accepted that the broadcast of the material had been seriously defamatory of Fr. Reynolds and had given rise to breaches of the statute. One of the considerations that the entire process is required by the statute to consider is whether the broadcaster co-operated with the investigation. The investigating officer found that there was co-operation from RTE and the authority found that to be the case as well. However, it expressed its regret that RTE had not chosen to waive its claim to privilege in respect of the solicitor-client relationship between itself and its in-house legal staff, which might have offered a greater understanding of the extent to which legal advice was available and the role played in RTE's decision to transmit the programme. It is important to note that RTE was entitled to claim that privilege and the decision not to waive the privilege did not constitute a failure to co-operate with the investigation. Nevertheless, it did not preclude the authority from expressing its regret that having been asked for all the information, RTE did not choose to waive client privilege in this instance.

The authority found that the procedures followed in the course of the investigation were appropriate and reflected the statutory obligations on the authority as set out in legislation, as well as the requirements of natural justice. The authority accepted that RTE had acknowledged its error and steps had been taken to prevent further breaches. It noted also as an important consideration outlined in the statute that there had been no financial or other gain to RTE in the transmission or as a consequence of the breach that had been made. The authority noted in its findings its regret that information regarding the process had entered into the public domain but it was satisfied, following careful consideration, that there was no prejudice to anybody concerned in the investigation or determination on that account.

The authority then turned to the question of the financial sanction, and it is important to note two elements in the authority's statement of findings in this respect. The authority was careful to stress that nothing in its findings should in the slightest way be construed as representing a deterrent for RTE or any other broadcaster in respect of a continuing commitment to investigative journalism. On the contrary, it was to emphasise for audiences the importance which the authority attached to the observance of the highest standards in policy and practice in respect of current affairs and act as a reassurance that the audience's confidence in the expectation of such high standards, especially from a publicly funded broadcaster, would be respected and quickly restored. The authority is acutely conscious of the significant role that investigative journalism can play in Ireland's broadcasting environment and of the important role and significant public potential it has. It also noted the past commendable performance of RTE in that respect.

Having taken all those considerations into account and having had regard to the determination that the authority had made of the seriousness of the breaches of section 39, the authority formally determined there should be a sanction and it should be set, having taken account of all of the elements in section 56, at €200,000. That was formally communicated to RTE. As members no doubt know, financial sanctions imposed as a consequence of such an investigation are payable by the broadcaster concerned to the Broadcasting Authority of Ireland for onward passage to the Minister for Finance to be used for the benefits of the Exchequer.

Like the chief executive, I am happy to answer any questions from members but I believe it better to open the discussion at this stage and limit any further comment in this presentation stage.

Chairman

We will proceed with questions and comments. I ask that members try to limit their contributions to five minutes as we have a fairly full schedule, with representatives of RTE coming here afterwards.

Deputy Éamon Ó Cuív

I will try to respect the time limit. I congratulate the investigating officer, Ms Anna Carragher, and the Broadcasting Authority of Ireland, BAI, for a comprehensive, clear and concise report. It is very damning of RTE, and in an interesting sentence it mentions systemic failure, indicating "some of these factors were misjudgments by individuals while others are more systemic". My belief is that this is the core of the problem we must address. There is a tendency at times to play the man rather than the ball and in this case it is important to consider the total import of this report and issues relating to training, decision making and advice.

Investigative journalism is of great importance, and we all accept that in an open, democratic society we need good investigative journalism. It must be fair, factual and objective, and this report highlights very significant failures in that regard and with the programme in question. I concur with the comments of Mr. Bob Collins, the chairman of the BAI, relating to keeping the highest standards.

I will focus on a number of issues. RTE has refused, according to the BAI, to give any indication to the legal advice. We can later ask representatives of RTE why they are claiming privilege here but they could at least have indicated what happened at the meeting of Friday, 20 May 2011, when the final decision was taken to transmit the programme, and where representatives from the legal department were present. Mr. Ed Mulhall stated that he took the decision but it is clear that it was a unanimous decision of the production and editorial team to make the broadcast. We are entitled to know if the legal representatives advised against the broadcast, and if they did, a serious issue arises where RTE executives seem to have ignored legal advice. If the legal team did not advise against going ahead with the broadcast, many questions would be raised about the legal advice and information given. One of the issues in the report is that the solicitor for Fr. Reynolds was dealing with the programme maker all the time, who was passing on information; this was instead of the solicitor dealing with the legal affairs section, which should have happened once the legal issues were flagged.

There is also the question of how much this costs the taxpayer, as that amount is unknown. I will ask the representatives of RTE how much this and similar successful cases have cost the taxpayer this and every year. Having read the report, I believe we must have an independent review on the preparation, editing and balance of all current affairs programmes on RTE radio and television. There should be a random selection of current affairs material from both radio and television from the previous year - there would be limitations in going through every programme - and the process in making those programmes should be examined to consider how the topics were chosen, the editorial policy and notes and records where serious allegations are made. We should also examine the selection of participants and commentators, as well as the use of tweets and texts. We need to find out the following. RTE is trusted in Irish society and we give it, as taxpayers who pay the licence fee, an enormous amount of money every year. Serious questions have been raised by the report. The problem is much wider than just one blip or one programme that was badly made. We need a thorough investigation into the whole system of making programmes not to inhibit RTE from making programmes but to ensure, as the delegation has pointed out, that when it makes programmes them in future it adheres to proper training and operational standards and is given proper legal advice when sought. I would be interested to know whether the BAI agree that such an investigation takes place. Go raibh míle maith agat.

Deputy Martin Ferris

Go raibh maith agat, a Chathaoirligh. I thank Mr. Collins and Mr. O'Keeffe for their report today. Investigative programmes are important in the public interest. There is a tendency to close things down as a consequence of what happened but that should not be the case. I welcome the fact that credible investigative reports will continue. It is a fantastic service for a democracy and needs to continue.

What happened to Fr. Reynolds was an absolute and utter disgrace. The man's whole life was played out on a programme based on a lie and no other words can describe what happened. There was a blatant misrepresentation of his personal rights, his rights as a Catholic priest and his human rights. He was portrayed before the nation as being responsible for fathering a child without any evidence. It is more disturbing that he had twice offered to undergo a paternity test and notification of same was given by his solicitor. I cannot understand that despite all of the checks and balances in RTE nobody shouted "Stop". Nobody expressed a concern for the rights of Fr. Reynolds, his family and members of the ministry where he officiated. A very good report was carried out after the event, which is commendable, but it is inexcusable that it reached that stage. There is no justification or explanation of how this was allowed to happen. Was the contact by his solicitor forwarded to RTE's legal department? Was it aware of it? Was it aware that Fr. Reynolds had offered to take paternity tests? Was it aware that he had been secretly filmed? Was it aware that he had been door stepped as a result of an accusation for which there was no evidence? Are other cases being examined by an investigating officer?

I am certain that RTE has received numerous complaints over the years about certain programmes where a person's character has been undermined and, in many cases, destroyed. During the recent presidential election one of the candidates was accused of being a murderer without any evidence and that night the entire nation watched that programme. Fr. Reynolds has been compensated financially for what happened to him but no financial settlement will ever compensate him or be adequate for the pain and suffering he, his family and friends had to endure during that period. I welcome everything that is happening but I hope that RTE's investigating officers will ensure that checks and balances are adhered to thus ensuring that nobody has to endure what Fr. Reynolds and other people have endured as a consequence of unfounded claims made on the public airwaves.

Are more cases pending? Are more investigations pending? Have complaints been made recently? Last night, I watched the RTE news report of Mr. Seán Gallagher stating that he had contacted the broadcaster yet he was, in his own words, shabbily treated by it. He went on to state that tweets were not verified by programme makers yet they were used to direct blame at a person contesting the election and at the person accused in the tweet. I hope we will have an open and frank debate on the matter. I also hope that we, as a people, have learned to protect the right of the individual and the rights of the public. They are not exclusive and must be protected.

Deputy Mattie McGrath

I apologise for being late, something cropped up and I could not attend any earlier.

I welcome the fact that we have this report. I will not go into the report in detail but the producer's guideline is almost 100 pages long and it is ridiculous to expect anybody to work from a handbook of that size. It is much too vast and long. I can state categorically that I know of other cases involving businesses, including one company from my own county, which was followed all over Europe and not in a professional manner. The programme which was broadcast tried to make ribbons of the company and its profession and I hope that it is also under investigation. It was very disconcerting and unsatisfactory but I will not mention names here today. This is not the first incident by any means. It was the gospel according to RTE. People watch such programmes, the information sinks in and people believe it.

Fr. Reynolds had offered, through his solicitor, to undergo paternity tests yet it was not enough for RTE. RTE should at least have given him the courtesy of doing that. That was outrageous and the programme is the worst type of programming I have ever witnessed. There were earlier instances leading up to this. The more RTE gets away with it the more it does it. It is like anything, they push the boat out. The 95-page producer's guideline must have been left in the bin. As I have said, it is too vague and lengthy. There should be clear ethical standards that every journalist must abide by and be mindful of. As a result of competition from the tabloids RTE wants to make programmes more salacious and outrageous for viewers and to get the headlines. It was downright disgraceful. I know there was an investigation carried out and the journalist concerned has resigned but there is no accountability and nobody up the line has taken responsibility. We all heard that the Minister for Communications, Energy and Natural Resources, Deputy Rabbitte, was going to have a showdown at 8 a.m. and that the board was going to be sacked. Instead, Tom Savage stated that it was an illusion of the media because he knows that he can get away with it. That is where we are. RTE has got away with so much, is getting away with so much. This is endemic across the public service where nobody can be sacked. Lives and businesses are being destroyed that no money can replace. This is not the first incident and I doubt that it will be the last.

Deputy John O’Mahony

I thank the witness for the presentations. We could talk about so many issues here but I shall confine myself to the time allocated and allow some of my colleagues to cover other matters.

My first question is for Mr. O'Keeffe and Mr. Collins. Are they happy that they have got to the bottom of this affair? Everyone acknowledges in the country, and farther afield, that a grave injustice was done to Fr. Kevin Reynolds. The problem here is that once the ordinary members of the public became aware of the fact that Fr. Reynolds had offered to undergo a paternity test, they did not require any investigations or legal teams to be involved. People are still asking why that offer was not accepted. That has not gone away and that is probably the reason RTE has such a big challenge in regaining the trust it had among the public.

The submission RTE made in response to the report states that no request was made to interview the legal affairs people in RTE. As others have said at this meeting, the legal advice within RTE is still causing a cloud or obstacle to knowing if we have got to the bottom of this affair. What was the legal advice? Is the witness happy that he has got to the bottom of the matter without knowing what the legal advice was to the programme makers? RTE states that legal affairs was involved at all appropriate stages in the decision making process. In that sentence it appears to suggest that it was their advice. That is my interpretation. Is that the witness's interpretation?

I have another general question. Obviously, Fr. Reynolds is the main victim. Is the witness happy that he is the only victim? Mr. Collins said: "The authority's first action in its determination was to make clear that these findings were directed at the broadcaster and were not and should not be understood to be findings in respect of a sanction imposed on or a statement of culpability of the individuals involved in the making of the programme." That was not its role. Could there be victims within RTE? Are some people within RTE carrying the can for the mistakes of others? We must not lose sight of victims in that situation as well. Is the witness happy that RTE and other broadcasters have proper procedures in place to deal with the changing world of social media, such as texting, tweeting and so forth? Other members of the committee will also deal with that aspect.

I will ask the representatives of RTE about this later, but the title "Prime Time Investigates" has been stood down. In my opinion that is meaningless. Obviously it is important to have investigative journalism but it is also important that it does not turn into tabloid journalism of the worst kind, which is what happened. With regard to some of the charges that were laid against the programme makers, it was said by some of the programme makers afterwards that they were not put to them when they were interviewed. Is there a sense that they were not given proper justice in that case?

Chairman

I will call Deputy Michael McNamara next and then revert to Mr. Collins and Mr. O'Keeffe for a response.

Deputy Michael McNamara

The Broadcasting Authority of Ireland's statement says that at its meeting on 29 November 2011 the compliance committee concluded that there were circumstances in respect of the programme suggesting it was appropriate to investigate and report an apparent breach. I assume those circumstances were the defamation proceedings and the pay out of a large sum of money.

Mr. Michael O’Keeffe

I can elaborate on that.

Deputy Michael McNamara

It is open to anybody to take defamation proceedings in respect of allegations made, even the allegations mentioned by Deputy Ferris. If somebody alleges one is a murderer, one can take defamation proceedings and vindicate one's good name. However, there is no procedure in law to defend or vindicate the good name of somebody who has died. Allegations were made in respect of people who are alive and further defamation proceedings were issued which are now sub judice. However, there were also allegations made in “Prime Time Investigates - Mission to Prey” in respect of people who are dead, in particular, Fr. Dillon. As he is dead no defamation proceedings can be initiated to vindicate his good name. It appears that RTE or any broadcaster is free to say whatever it wishes in respect of somebody who is dead, as little can be done to vindicate that person’s good name. Do the chairperson and chief executive officer consider the law adequate with regard to vindicating the good name of persons who are deceased and not in a position to do so themselves?

Mr. Bob Collins

I will begin, although the questions posed by Deputy McNamara and some others might be more appropriately answered by the chief executive. I will deal with a number of the questions asked and perhaps link them.

I will take the question about legal advice first. The reason the authority, in its statement of findings, made particular reference to this issue is principally that the law requires that the authority has regard to the duration of the breach. It was clear to the authority that the breach of the obligation to fairness and privacy in respect of Fr. Kevin Reynolds did not end with the ending of the transmission of the programme. The breach endured, in effect, until such time as the formal public apology was made. In that context, the issue of the legal advice became relevant, because it touched upon not only the matter that had been broadcast and how it was broadcast but also upon the way in which the broadcaster had dealt with the legal proceedings that followed, which were a contributory element in the duration of the breach. The duration of the breach was one of the elements, as well as the seriousness, that prompted the authority to set the financial sanction at that high level.

It is entirely possible to envisage a circumstance, to refer back to a point made by Deputy Ó Cuív, where legal advice can be given to a broadcaster that might discourage the transmission of a programme and the broadcaster transmits the programme in that knowledge. That is not necessarily and of itself inappropriate. It is important also to state in this context that the statute confers formal independence on broadcasters under section 98.

RTE was asked by the investigating officer to make available all information it had. It did that with the exception of the material in respect of which it claimed privilege. It was entitled to claim the privilege. The authority's position is that it was a matter of regret that it did not choose to waive the privilege in that instance. It would have assisted in knowing the nature of the advice that was given. Ultimately, however, irrespective of the advice that was given, it is the broadcaster that takes the decision to publish or not to publish. That is why we said in the findings, and I said earlier in my presentation, the focus of the findings was very specifically the broadcaster.

Deputy O'Mahony asked a number of questions, including whether we are happy that we have got to the bottom of this affair in the context of not knowing the nature of the legal advice that was given. In some respects, it does not make a difference to the Broadcasting Authority of Ireland what the nature of the legal advice was, because what was transmitted is the material issue in terms of the breach of section 39 of the statute with regard to the fairness of what was broadcast. The investigation conducted on behalf of the BAI has been thorough and comprehensive and had access to sufficient information to indicate the issues involved in the making of the programme and to form the judgment that was embedded in the report of the investigating officer. In that sense, I am happy that we have fully dealt with this matter.

There is a clear distinction between the role of the BAI and the role of individual broadcasters. Many of the questions that have been raised would be more appropriately addressed to RTE or any other broadcaster in such a circumstance than to the BAI. We are not the broadcasters and do not constitute their editorial boards. We cannot interpose ourselves between them and their editorial decisions. Section 98 confers an independence on RTE in respect of the securing of its objectives, including its editorial arrangements.

We specifically did not make any finding of culpability for any individual. That is not our power, function or intention. Our concern was that the arrangements within RTE for which the broadcaster has responsibility were such as permitted this to happen. It is a matter for RTE to determine issues such as culpability for its own staff, all of whom were acting as agents for RTE when they were engaged in the making of this programme.

The suggestion from Deputy Ó Cuív that there be an independent review of all current affairs programmes on a random sample basis is beyond the statutory capacity of the authority. There are three ways the authority can engage. The first is if someone makes a complaint within the statutory 30 day limit. That complaint can be investigated and considered and a decision made on it. The second is by introducing an investigation where, in the opinion of the compliance committee, which acts separately from the authority in this respect, an apparent breach has taken place. The third mechanism in the legislation is the right of reply scheme, whereby someone who believes his honour has been impugned by the transmission of inaccurate facts can seek to have that inaccuracy corrected. The BAI has a role in circumstances where a broadcaster is unwilling for inappropriate reasons to accede to that. There is no facility available to the BAI to engage in a more widespread retrospective consideration or investigation of any programme broadcast by any broadcaster. I am not sure it would be an appropriate power to grant to the BAI anyway and I am not certain if it will cast additional light on the systematic issues or broader policy issues that have been raised by the report in this instance.

It is important to reiterate the statements the BAI has made on a number of occasions about the importance of investigative journalism and news and current affairs generally in all broadcasting. The BAI is strongly of the view, and has set out clearly in its formal statements, that all broadcasting in Ireland serves a public purpose, whether it is public broadcasting, commercial broadcasting or community broadcasting. There is a clear significance in a democratic society for the presence of strong independent broadcasters operating within the law. The nature of the programming it can produce can be powerful instruments in this society. Clearly, the BAI shares the concerns of others and the concerns expressed by RTE itself that the issues that arose in this programme would diminish the confidence or trust the audience has in such programming. The BAI would be apprehensive that nothing should diminish the enthusiasm for broadcasters to engage with this kind of programming because of its importance and significance.

Many of the issues raised would be more appropriately responded to by RTE but Mr. Michael O'Keeffe might pick up on some of the very specific elements raised by Deputies.

Mr. Michael O’Keeffe

I want to come back to the issues raised by Deputy O'Mahony on the individuals. We have captured the gist of the submissions by the individual programme makers within the statement of findings we issued. Clearly they were not happy with some of the findings of the investigating officer, and they made that clear to us in their submissions.

Going back to how the process evolved, when we established the process in December, we received letters from the individual programme makers in which they requested permission to make comments on the investigation and we granted them permission to do that, indicating they should do so by 6 January, the same date we had asked RTE to make submissions. None of the individuals chose to do that; they did not make any separate submissions. They did, however, make inputs in the overall RTE submission about their roles. The purpose of the interviews by the investigating officer, as was clearly set out in the letter sent to them, was to clarify certain matters in the broader submission RTE had provided. That was the context of the investigating officer's interviews.

Once our report was completed, we invited further comment from RTE and the individual programme makers as to its substance and they disagreed with certain elements. These were referred to the investigating officer to see if she would make any change to her report on the basis of what they were saying and she came back to the compliance committee and said she would not change it, that it did not change the substance of what she had to say. The submissions were also considered by both the authority and the compliance committee when they came to make their determinations. Again, no change was made. They were taken into consideration when all of the consideration was made at each different stage.

A separate issue was raised around the Brother Dillon case by Deputy McNamara. The Dillon family corresponded with the compliance committee around the time the investigation was announced in early December. The committee gave consideration to the request. At the meeting on 13 December, it gave detailed consideration to the request. It decided it could not proceed to include it in the investigation, giving three reasons for that decision. First, the Act requires an apparent breach before the investigation can be undertaken and the committee's view was that there was no apparent breach evident in what they had submitted to us that would warrant an investigation. Second, no complaint was made about the original broadcast. I know it is the subject of further correspondence since then but at the time there was no indication of any complaint to the broadcaster and I can verify there was no complaint to the compliance committee on foot of the original broadcast.

Third, the committee looked at the request from the family to make a finding of fact, which it felt was outside the scope of what it could do. As members know, there has been further correspondence subsequently. The family have corresponded with the secretariat of the compliance committee and the committee is engaged in correspondence with them. That would have been the decision at that point. I would emphasise that very careful consideration was given to the matter at the December meeting, where the issue was raised on foot of that correspondence. That is where things stand at present with that case.

In response to Deputy Ó Cuív, who asked about the review of procedures, RTE engaged Professor Horgan to look at its procedures. RTE made the BAI aware in its submissions to us, that it engaged Mr. Stephen Whittle, the former head of the Broadcasting Standards Commission in the UK to look at its procedures. He is involved in a complete review of the journalistic guidelines. It is more appropriate that RTE, the broadcaster would elaborate on the actions it has taken. We are aware that RTE has taken action on foot of what happened on this occasion.

Chairman

Does Mr. Collins wish to add to this?

Mr. Bob Collins

Yes. If I may I will respond briefly to Deputy McNamara's point. It was not just a correction order that prompted the authority to engage with this or the compliance committee to take its decision. The authority was about to deal with this issue but felt it could not until such time as the court proceedings had been concluded because of its own response to the issues and the public's response to the issues that had become apparent.

On the question of whether the law is adequate to deal with reputation, especially issues of the reputation of people who have died, by its nature, defamation proceedings can apply only to the reputation of living persons who engage in the process. The fact that somebody is dead does not exempt broadcasters from an obligation to him or her. It is clear that defamation proceedings cannot be initiated against broadcasters in that case but that does not mean the deceased are fair game. There is a statutory obligation on broadcasters to ensure fairness, objectivity and impartiality. The spirit that prompted the inclusion of fairness, objectivity and impartiality as a statutory obligation in legislation of 50 years ago is still alive. People have memories of recently deceased persons and their reputations are still a matter of interest. These considerations are embraced by the legislation. I cannot envisage a set of circumstances in which it would be appropriate or practical to extend to the deceased entitlements or rights that reside only in the living.

Chairman

Deputy Michael Healy-Rae wishes to speak. The practice is that committee members speak first. As a number of committee members have offered, I will call them in the order they indicated, first, Deputy Noel Harrington and Senator John Whelan with Deputy Tom Barry and Senators Brian Ó Domhnaill and Paschal Mooney to follow in that order.

Deputy Noel Harrington

I welcome Mr. Collins and Mr. O'Keeffe for attending and thank them for their comprehensive statements and reports of the investigation.

I have a number of questions based on the involvement of the Broadcasting Authority of Ireland in the issue. Mr. Collins has outlined the role of the compliance committee and how the investigation began. Does the compliance committee hold regular weekly or monthly meetings? There was a media firestorm behind this programme. Would it not have been a natural way of raising it as an item for the compliance committee to deal with? It was mentioned at a very early stage that RTE, the broadcaster intended to deal with this through the BAI, even though it had a legal recourse to do it. RTE has gone through the process and the determinations are there. The BAI made a determination on the financial sanction to be applied to the broadcaster. Is there further provision under the Act for a sanction other than a financial sanction to be imposed?

As part of his statement, Mr. O'Keeffe mentioned that the broadcaster chose not to waive its legal-client right. That is curious. Was RTE asked formally to do so? If RTE was asked, did it choose to refuse? I find the wording a little curious and I ask Mr. O'Keeffe to clarify if RTE was formally asked to waive that right.

The individual submission came in after the deadline for the request of submissions and Mr. O'Keeffe said the individual submissions came in as part of an overall RTE submission. Is that public? Can it be published? Will Mr. O'Keeffe state the reasons that it cannot be published as part of the report?

Does the Broadcasting Authority of Ireland scrutinise broadcasters? Has it examined broadcasters on their compliance systems to date? Does the BAI have a plan on the future code of conduct, particularly focusing on examples such as social media and texts and how they are dealt with when part of a live broadcast? Will guidelines be published?

It is also fair to note in light of the Fr. Reynolds case, that people might piggyback on the case for obvious political reasons. It is important to note that Fr. Reynolds has accepted the outcome and does not wish for further recriminations on anybody. That has been forgotten and it should be made public that he wishes to move on.

Senator John Whelan

I wish to address my questions to the members of the Broadcasting Authority of Ireland. Following the Minister, Deputy Pat Rabbitte's meeting with the board last week, does the BAI consider that section 53, which was used for the first time to conduct this investigation, is adequate and sufficient or should it be reviewed and amended in order to protect the rights of the citizen? While I accept Mr. Collins's contention that the report was thorough, it was far from comprehensive. The remit and the terms of reference were far too narrow. I do not understand why the entire programme was not assessed. In so far as one aspect of the programme was found to contain a defamation of major significance, how can we have confidence in the other segments? It beggars belief that the BAI hemmed itself in. It could have taken a broader approach to the case. It failed to consider serious and systematic failures in RTE.

I believe RTE was very obstructive up to the point that it was brought screaming and kicking to the table, when it had no other option but to be co-operative. It is implausible in the extreme - when the newspapers were reporting it and the dogs in the street were barking it - that the RTE board contends that it did not know anything about it until September, four months later. That is a glaring omission that should have been addressed in the report.

Many more questions have not been answered. I wish to raise the question of legal advice and the failure of RTE to wave its legal privilege. There is the impression, wrongly I believe, that the individual reporter in question, was on a solo run and handled the legal correspondence themselves, which is not the case. Why did the legal affairs department in RTE not take charge of the situation and assume responsibility for it? Why has it gone into hiding? I reiterate the Deputy's previous question, is there a formal request from the BAI or the investigator, on their behalf, to waive legal privilege and, if not, why? Therein lies the kernel of the problem. It would not have happened in the smallest country newspaper or in, say, the Ballymagash Gazette that a journalist, of his or her volition, would have to deal with a high-powered legal company working on behalf of Fr. Reynolds, Fair & Murtagh, and the undue added responsibility of directly handling the correspondence, instead of the legal affairs department in RTE, which I presume is a formidable and expensive operation. Why did it not take charge of the case in the first instance?

Deputy Tom Barry

I thank the witnesses for appearing before the committee and making their presentations. Is this the only case? How many more such cases are there? I deal in an industry where if one takes a sample of grain and finds a wild oat, one can be certain there are 100 behind that sample. Nothing ever happens on its own, or rarely. It appears that RTE had a story to tell. It was not balanced and it was seeking the worst case scenario. In the media in general, we are getting a dumbing down of news. The media has been on a power surge since the presidential election.

Chairman

Somebody's telephone is on. I have repeatedly asked that people turn off all mobile telephones.

Deputy Tom Barry

That prospective candidates were asked, during the presidential campaign, whether they would clean toilets was mad. Fr. Reynolds gave a denial but he was in a position where he could prove absolutely that he was not the father of that particular child. That is not always possible. The witnesses have identified editorial and managerial control failures. It appears that facts are being ignored. It is not a failure, it is simply that RTE is ignoring the facts that come before it. Its modus operandi is that it is easier to give an apology than to seek permission.

The nub of the issue is our total lack of knowledge of the legal advice. How can we have confidence in whatever is stated now given that we will get a delayed account or a sterilised spin? Do these people realise the damage they have done? When the story was being compiled perhaps it was viewed as another church-bashing exercise, an easy target. In this respect I agree that RTE has betrayed public confidence. If the procedures were not in place for traditional media, certainly they will not be in place for the new media, which is changing on a monthly basis, including media tweets and so on.

Investigative journalism is at a crossroads. As the shoe is on the other foot for those who have stepped out of line, they will be first, rightly so, to seek justice and fair treatment. We are dancing around the issue without full knowledge of the legal advice or otherwise. How can we draw conclusions when we do not know the key aspect? That those concerned should claim privilege, even though they are entitled to it, is disgraceful behaviour. I hope it was communicated to them in a forthright manner that this should have been opened up for all to see. Some €200,000 of taxpayers' money has been put into a fine but there is no point in that until we understand what happened. The BAI should be given the powers to dig down further and if legal privilege is put in the way, perhaps it needs to be taken aside because the public good is being threatened and that is not good enough. This whole debacle will not go away until the full truth has been arrived at and we are not yet at that position.

Senator Brian Ó Domhnaill

I wish to make a few short points. The BAI report, page 12, outlines that there was very little written documentation on the allegations in the Fr. Reynolds affair and the whole issue of missionary priests which was under consideration in Africa. Was it unusual or commonplace for such a documentary by any television company that they would belittle written documentation apart from a single hand-written sheet containing the names and the dates, dating from the research trip in January 2011? In regard to another issue the report, page 12, points out that the its author, Anna Carragher, whom I commend on the work she has undertaken, outlined that she was provided with documentation relating to further investigations which were carried out in Kenya between May and September 2011. Who carried out those investigations? Am I right to assume those investigations were carried out by RTE? Will the witnesses agree that it is odd or peculiar that such investigations would have been carried out after the documentary was aired to the public in Ireland?

In regard to the BAI report and the work undertaken, I agree with Senator Whelan that Deputy Ó Cuív's suggestion that a widening of the Act would be required to give additional powers to the BAI in order that it could look at other programmes that are a cause of public concern. A point made in the report concerns the group think mentality on the part of programme teams and the mentality in respect of the team in "Prime Time Investigates" was quite satisfied that the facts were correct and verifiable even when they rejected the offer of the paternity test made by Fr. Reynolds on the basis that their facts were "correct". The group think mentality is not unique to "Prime Time Investigates", it affects other programmes, not exclusively in RTE, but certainly in RTE.

What are the views of the witnesses as to whether the problem of group think programming is limited to "Prime Time" or extends to other programmes? To give an example, in the "Prime Time" programme, mentioned by Deputy Martin Ferris, prior to the presidential election, apparently a stitch-up was done on Seán Gallagher, who was a candidate. We know that the information used was incorrect and very damaging. The consensus of the group think mentality allows programmes to shape the attitude of the programme and clearly the audience will interpret that on a skewed basis. Is that an issue that needs to be addressed, perhaps not exclusively by the BAI but by the Department and the Government? The legislation may need to be examined to give either additional powers to the BAI or a section within the Department to carry out investigations of programmes, not exclusively "Prime Time" or "Prime Time Investigates" but any other programme that comes under the spotlight for similar reasons.

Deputy Martin Heydon

I thank the witnesses for appearing before the committee. I express my sympathy to Fr. Reynolds for what he had to go through, as alluded to by my colleagues. I appreciate the important role investigative journalism plays in society. The State would be done a great disservice if this incident prevented future investigative programmes being made or if journalists were afraid to make such programmes.

The work of this committee today is straightforward, as is the work of the BAI in compiling its report. It is not a witch hunt and it is not being done in order to drive the boot into any organisation. It is being done in order to ensure that what happened in this case will never happen again. It is no harm to point out that is our real focus. I am conscious it was mentioned earlier that some of the questions being asked were more suited to RTE than the BAI, but I want to focus on the role of the BAI. Is it the view that the role of the broadcasting authority is to investigate matters after they happen? How much of the role involves ensuring situations like this do not occur or policing situations and keeping an eye on the checks and balances not just of RTE, but of all broadcasters? The Oireachtas sets up independent authorities that are free from political influence so that we can be sure the checks and balances are in place and are being looked after. In that regard, what are the witnesses' views on the authority's role?

A number of members have referred to issues surrounding social media and the use of tweets, in particular with regard to the presidential debate. The way social media have developed means these happen in real time and this brings massive challenges. We had a situation - it was mentioned earlier and has been much discussed - where one candidate, Seán Gallagher, was referred to in a tweet that was read out on the programme. It was unfounded, yet it was delivered as a matter of fact. My view is that while the tweet was very damaging, his reaction to it was equally damaging to his campaign. That said, what is the BAI's view of the use of forms of social media that operate in real time? The use of text messages is also an issue and what is the view on their use not just for RTE, but for all radio and television programmes where text messages are read out, without names ascribed to them? What steps are being taken to ensure that mistakes that have been made in the past do not happen again?

Senator Paschal Mooney

First, I declare an interest in that most of my broadcasting career has been spent within RTE. This has been in a freelance capacity and I am not currently employed in any programme area. I am unashamedly a strong supporter of public service broadcasting and I believe the existence of the BAI, irrespective of the matter under discussion, is a bulwark in support of the concept of public service broadcasting. However, I know its remit is much wider and applies to the private sector as well.

I am heartened by the conclusions in the submission the authority made to us with regard to financial sanctions. It made the point that the findings could not in the slightest way be construed as representing a deterrent for this or any other broadcaster in respect of a continuing engagement with investigative journalism. I believe it is vital that the freedom of the press be upheld in this regard and I would like to think that the BAI will be a bulwark against any attacks on the concept of a free press and investigative media. Picking up on points made earlier, does the authority believe the current legislation ensures that the authority's role can be effective? Is the legislation adequate to ensure the BAI's oversight role in this regard and against the challenges facing the public service sector?

I have a specific question relating to the word that has emerged from all of this. There is always a word or phrase that arises in controversial areas and in this instance the word is "group-think". I submit that the group-think culture is not confined to the news and current affairs division of RTE. I am interested in the authority's opinion on that. In the context of the obligations placed on RTE as the State broadcaster, the BAI cites in its submission the context in which RTE operates. In fact, what initiated this particular investigation was a part of the requirements under section 39(1) of the Act, in particular the requirement that every broadcaster shall ensure, in the context of the treatment of current affairs, that broadcast matter is presented in an objective and impartial manner, without any expression of his or her own views. Few people here would not be able to point to some instance where that requirement has been breached, particularly in the political arena. I do not confine this comment to RTE, but as we are talking about RTE, it is where the focus lies today.

I appreciate that nobody can put his or her own personal views under the table when he or she goes into a broadcasting studio, especially in the heat of controversial matters. However, as I am sure the witnesses would agree, there is an onus and extra responsibility on those who are "on air" to ensure that they are not only impartial and not only complying with this section, but that they are seen to be so. There is an onus to ensure that the public has confidence in that individual and in the programme makers to ensure they are impartial. It is for that reason I have referred to group-think. There would be a view outside of RTE and in the part of the country from which I come, rural Ireland, that RTE does not always live up to those standards and that there is group-think when it comes to the type of programming it will present. There is group-think when it comes to the attitudes that are globally referred to as a "Dublin 4 culture".

This is evidenced by the fact that the independent radio sector not only hit the ground running when it started in the early 1990s, but has now consolidated itself to such a degree in certain parts of the country, as Mr. O'Keeffe would be aware from his regular contact with it that it is now not only outshining RTE, but attracting a higher listener audience. There is no longer even a competitive element, because these listeners do not even listen to RTE. I believe this is a serious and grave issue for what is supposed to be and what RTE would stoutly defend as its role as a national broadcaster. What importance did the BAI attach to group-think in its deliberations? What sort of approach did it take in its deliberations to this or what analysis did it have of the group-think culture which led to the decision to broadcast of the programme on Fr. Reynolds? Those who have criticised the group-think culture with regard to this programme have accused the people involved of being anti-clerical and taking a prejudicial view of the Catholic Church and of a cleric and of then making up the numbers. In other words, it is the old cliche of putting up the headline and then writing the story to fit it.

I am curious to know what sort of discussions and deliberations went on around the decision within RTE and whether the BAI feels the current legislation is adequate to address the issue. I am also curious to know whether the BAI has an opinion on whether this is a matter of concern not just in the narrow context of this particular debate, but in the context of the wider remit RTE has under the Act to be seen to be impartial and objective and to be a station for all the people.

Deputy Michael Healy-Rae

I welcome Mr. O'Keeffe and Mr. Collins and thank them for coming here today. Back over the years, RTE has been trusted enormously - perhaps too much. It set and led the agenda for a modern Ireland, assisted greatly by great people and characters who were national broadcasters. People like Charles Mitchell were held in such high regard they were like gods in rural Ireland. We now find ourselves in a situation where this trust has been shattered. However, I would like to hope that some good can come from this. RTE lost the run of itself, but this goes beyond RTE. Many journalists, particularly in the recent past, have taken upon themselves the notion that they can say, print and do what they like and that there will be no comeback to that. I hope that from now on journalists will be clinically sure that what they print, write and show on television and that whatever perception they put out about a person will be truthful and that they can stand over it.

I wish to return to something Deputy Ferris mentioned earlier - the idea that in the middle of an election a person can be accused of being a murderer. To think that any person could justify that is outrageous. How long will it be before this committee or some other committee will be discussing the Seán Gallagher versus RTE case? I refer to Twitter, which is spontaneous interaction. More stringent control will be required in the future because otherwise RTE and journalists will be running the country. This is neither fair nor right. We have seen how people were treated and it is blatantly wrong. Other speakers have made the point that coverage of the presidential campaign was outrageous.

To return to the Fr. Reynolds case, I want to know what will be done in the future to ensure that individuals will be held responsible for their actions and for their work. It is a nonsense to be talking about a report even though I am pleased the report was done and compensation has been paid. Fr. Reynolds did not want compensation; he and everyone, including politicians, people in the priesthood and ordinary people, want to be treated for what they are. If people are going about their work in a genuine way, they do not want to be ridiculed for doing so nor do they want to be pilloried. Fr. Reynolds wanted to carry on with his life and be left alone. No compensation, reports or Oireachtas committees can give him back his character in a proper way. It is awful what he and his extended family had to endure. It is disgraceful to think that individuals sat inside in a room, produced this programme and saw fit to air it. How far away are we from what is happening in England where individuals are being held responsible? Like everything, when something happens in America or in England, it takes a certain time for it to happen here. I know it will rightly come here that when journalists tell lies, print lies and produce lies they will be held accountable themselves rather than hide behind their employers. I look forward to that day when we will have fairer journalism and we will not have a lot of the blackguarding that has gone on in the past. I would like to hear how far away we are from that day when individuals will be held accountable for their own actions. Perhaps that might change the outlook of some people towards their jobs. People cannot lose the run of themselves and treat people as cannon fodder, playing with people's lives in whatever way they like. That is wrong, it is not fair and it is not right. At the end of the day we all have to remember we are discussing a respectable individual.

Chairman

We are all well aware of that, Deputy. I will ask Mr. Collins and Mr. O'Keeffe to respond.

Mr. Bob Collins

I will be brief but it may not be possible in the short time available to answer everything but we can submit subsequent responses if that is appropriate.

A number of issues have been raised. One relates to the general suitability of the Broadcasting Act 2009. This Act has been in effect for a little more than two and a half years and the world has changed significantly in that period. It is very early days to make a comprehensive judgment on the efficacy of legislation that has been on the Statute Book and in operation for this short period.

One clear issue requires to be considered, which is the extent to which a whole range of media experiences is beyond the reach of any regulatory framework within the State. The regulation relating to broadcasting, defined as it is by the law, excludes a whole range of activities which are now part of everyday life and commonplace experience. This issue requires attention and I know it is receiving some attention.

On the question of the social media, I am, regrettably, old enough to remember when there were discussions about the appropriateness of taking telephone calls live on air because of the extent to which it might distort the nature of the output. Some of the underlying principles do not change, however, and some of the fundamental responsibilities are the same on broadcasters now as they were then. The challenge is much greater because the nature of social media is different. The broadcasting of unconfirmed material which happens to be a tweet rather than somebody shouting at a street corner is an issue that needs to be looked at carefully. How that can be regulated in a statutory term, in a structural term, without putting an albatross around the neck of any programme maker is a challenge that has not been addressed anywhere but it certainly needs to be examined. The BAI, entirely coincidentally with the entire section 53 investigation, has issued a draft code in respect of fairness in current affairs programming. This addresses many of the issues that have been raised here, including the expression of personal views, the appropriateness of undisclosed filming, doorstep interviews, etc. Extensive responses from the public will be considered by the authority at a very early meeting. This is an important piece of work which touches on some of the issues that have been raised around the table. One does not wish to have programmes made in an austere, clinical and sterile environment where there cannot be any provocation or any free exchange of views by elected representatives or otherwise. However, there are clear issues in terms of the responsibilities on people who present a report on current affairs programmes and we have reflected that very significantly in the published draft code.

I do not wish to engage in a psycho-social analysis of the notion of group-think but to the extent that it means the unchallenged perception of what may be taken within a group as being true, without exposing that to the rigour of establishing that it is true, it is absolutely dangerous. It is the antithesis of any approach to formal current affairs programming, to the presentation of news, both of which require as an absolute foundation, that they are built on facts and not on assumptions and that they are open to the receipt of evidence which runs counter to what might have been the starting point. To the extent that this was found to be a failing by the investigator in respect of this particular item on the Fr. Kevin Reynolds programme, then that is a very serious matter for the broadcaster. However, the report does not state - I do not think we should immediately conclude or that members of the committee should immediately conclude - that because this finding was made in this particular instance, that it is therefore endemic and systematic in every piece of work that this or any other broadcaster does.

The issue was raised as to whether section 53 is adequate for its purpose. This is the first time this investigative power has been used. It is a powerful statutory provision and it has been revelatory in respect of this item. The director general of RTE has indicated that he learned things he did not know as a result of this investigation. It will have drawn the attention of this and every other broadcaster to the realities and the pitfalls that exist. There is an implicit complexity when one considers the architecture of the BAI as it is at the moment, with the authority and the compliance committee operating at a statutory distance. These are issues we will need to think about and may wish to discuss with the Minister and we are happy to discuss them with this committee at some stage in the future.

I do not immediately see a weakness in section 53 in the context of the protection of the rights of individuals. In this instance, the section was a potent device in terms of making the public fully aware of the complexity of the responsibilities of broadcasters, of some of the issues that arise in the making of programmes and of the matters in respect of which considerable care must be taken in the making of programmes. What occurred in this case would have given audiences an insight into the way programmes are and should be made.

It could only be the case that in this instance, whether in considering complaints or in investigating matters, the BAI had to act after the fact. It would be counter to the independence provisions to which I referred earlier and it would create real difficulty if the BAI were to interpose itself into the process in advance of the transmission of programmes. On the two publicly-funded broadcasters, namely, RTE and TG4, statute provides for the ways in which their boards are appointed. The latter have responsibility for oversight in respect of all of the activities of those two organisations. To interpose the BAI in respect of individual programmes prior to transmission would be inappropriate and, probably, unproductive. One of the key things for which we have responsibility under the law is the provision of codes which govern the way in which programmes, commercial messages, advertisements or whatever are made. As already stated, the code of fairness has particular relevance in this respect. The biblical text which guides us to a certain extent in respect of this matter is that which states "Sufficient unto the day is the evil thereof".

Mr. Michael O’Keeffe

I wish to comment on one aspect of the legal issues involved, a matter which was raised by a number of members. It is clearly set out on pages 30 and 31 of the report that from 11 May through to the programme being broadcast - effectively, the two-week period - legal affairs was completely involved. It was not the case that the individual reporter did it on her own. The position in this regard is clearly set out in the two pages to which I refer. There is a dispute, which again is identified in the report, as to the letter that was received on 23 May, the date on which the programme was broadcast. In the period before that, it is clear from the report that the legal affairs team was involved.

Also on page 30 of the report, Anna Carragher states: "It can be expected that the Legal Affairs team outlined the risks of proceeding in the light of the offer of a paternity test". While the investigating officer was not provided with the specific legal advice, she was given a very detailed account of the proceedings that took place and of the role that the legal affairs team took. She followed up with the legal affairs team by asking its members a range of additional questions before formulating her report. It is important to clarify the point that the investigating officer was satisfied with the detail she received in terms of formulating her report. This is set out very clearly in those two particular pages. I wish to place that on the record.

Mr. Bob Collins

I hope we can come back agus go mbeidh lá eile ag an bPaorach ar seo because many issues have to be teased out. It is my firm belief the Minister should institute an independent review of all radio and television current affairs programmes on a random basis because the tweet case involved "The Frontline" and "Today with Pat Kenny" the following day, which added insult to injury in that case. We need to take a random selection of programmes over a year and examine how they were made. That should be done on a systematic basis to ensure we get to the bottom of what is going on. That should include, inter alia, choice of topics, editorial policy, method of selection of participants in programmes and panels of commentators, the use of tweets and texts, editing of interviews, the issue of balance and fair play, and the personal interests of presenters and producers. We need to do that in detail because a great deal of public money is going into RTE. As RTE is so powerful, we must be sure we have got to the bottom of the scale of the problem. I recognise what the Chairman said about steps taken but one cannot know the steps one must take until one fully investigates the problem. The first thing we must do is determine the scale and the nature of the problem and, if further steps have to be taken over and above what the Chairman has said, they should be taken.

Deputy Martin Ferris

The damage done to credible investigative journalism has been huge as a result of the fall-out from the Fr. Reynolds defamation. It has betrayed the trust placed by the people in RTE and in the people who make the decisions in RTE. There is nothing any of us can say in any way to undo the terrible wrong done to Fr. Reynolds. The best testimony to our efforts to address the wrong will be that nothing like it will ever happen again. This is what we must strive for.

I have believed for quite some time that some investigative journalism has been tabloid journalism. It has been a case of who can be more sensational. Perhaps the modus operandi associated with ratings, etc., is a contributing factor. I do not know but it certainly has not helped to prevent some of the outrageous comments made by so-called investigative journalists.

The BAI report states RTE fully co-operated with the investigation. I do not accept that. If RTE had fully co-operated with the investigation, why did it not choose to waive the claim to privilege? The excuse being used pertains to the solicitor-client arrangement. Who is the client? Is it RTE? The client is the public, including everyone present. RTE has no right whatsoever to claim or deny privilege on behalf of the public, although it may have a right to claim privilege on behalf of the individual. It is mind-boggling that an organisation owned, supported and financed by the public in most instances hides behind privilege. Until such time as it waives its right to privilege and makes available what the BAI requested, this will be a farce. RTE will not be able to restore its credibility or the trust and faith the public had in the organisation while it hides behind privilege.

Questioning people on their doorsteps is trial by media. If a person cannot give the right answer at that point or has not had sufficient time to gather his thoughts, guilt is effectively established by innuendo. The practice has occurred increasingly without any legal protection for the person being doorstepped. A journalist can walk up to one in the street and question one. There is no protection for the individual.

Deputy Ó Cuív referred to the financial implications and costs. His was a very important question. I have another question, however; what is the cost to the credibility of investigative journalism? The programme in question has done considerable damage but I argue quite strongly that there were other very damaging programmes in that they did not establish legally the truth behind allegations about individuals. The delegates know what I am referring to as the issue was brought up when the BAI made its presentation.

The report states there was a significant failure of editorial and managerial controls within RTE that failed to anticipate breaches. Can the delegates assure me that the mechanisms put in place to address the failures of the past will work?

We claimed legal privilege. We have two outstanding cases in regard to the same programme. We answered questions from the investigator. None of this is a criticism of the investigator, but the investigator did not call legal affairs for interview. Several of the people called for interview - and I have read the full transcripts - made it known that they were under no illusions about the risks involved and the advice from legal affairs. They were not pursued on this afterwards in terms of the questions.

After we made our submission the investigator asserted her rights under the Act for additional information. None of that involved waiving legal privilege. After the interviews there was another assertion of that right for more information. We had extensive correspondence with the investigator and the external legal team and again there was no mention of waiving legal privilege.

If one looks at the investigator's report, there are only two references in terms of RTE and waiving legal privilege, and they are factual. One is to say that RTE maintained its right to legal privilege. There was no comment on it. The other reference in the report, which is worth quoting - it is on page 30 - in terms of the legal advice was that: "Comprehensive responses to these requests, including clarification from Eamonn Kennedy, our head of legal affairs, on legal correspondence received and generated by RTE were provided by the broadcaster in a timely manner."

From our point of view, if we had known that this was a serious issue, if we had felt that the investigator was being hampered, and if we had been asked in those circumstances to look at legal privilege, we would have. We were unaware of that until we saw the final statement of findings which came out of the BAI board meeting.

As regards Deputy Ó Cuív's point about whether the legal team was at the meeting on the Friday "Yes", but legal affairs do not tell broadcasters whether or not they can put a programme out, because if they did we would not put out an awful lot of what we do. The role of legal affairs is to tell one what the risks are, not to tell one whether to broadcast or not. As we made clear in our submission to the BAI, no one involved in the programme was under any illusions about the risks involved. Several of the people acknowledged that themselves.

As regards other issues, the Deputy asked if the director general was warned of that advice around the paternity test. No. We have revisited the programming guidelines. What I do not want is that the director general gets called into every decision and becomes the stop-gap for pushing things upwards. On serious legal issues, however, we need to close a loophole where the director general needs to be told that there is a serious legal issue around. We have put that in the guidelines.

As regards the Deputy's comment on systemic and groupthink, the comment on systemic, in my mind, from the investigator was that we had systems failures in RTE. We admitted that in our response. Our guidelines were ambiguous. I have just highlighted some of the issues. Our guidelines on door-stepping, secret filming and all of that were ambiguous. Those, for me, were the systems failures and we have corrected them.

The investigator did not talk to other journalists or producers, so I do not believe that she necessarily meant that the quality of investigation applied here was systemic, because she did not talk to anyone outside the team.

Are there other issues for RTE? Yes. Do we think now that we have changed the guidelines we are home and dry and everything is going to run completely smoothly for us, and we have nothing else to do? No. We have a lot of serious questions to ask ourselves and to continue asking ourselves. This programme has been a massive shock to the system for everyone in RTE and we are not going to stop asking ourselves those questions. When we get through dealing with all of the immediate issues - with the report and the fallout from it - in many ways that is when the real work will begin. Do I believe that RTE journalists across the board apply the kind of standards that were highlighted in this report? No, I do not. I am very proud of this organisation, despite this.

Deputy Éamon Ó Cuív

Would Mr. Curran agree, as I suggested, that we should get a random sample of a broad range of programmes investigated independently, to establish once and for all if his assertion is true or not? This is of major importance.

Chairman

The Deputy has asked that question.

Deputy Éamon Ó Cuív

Yes, but he has not answered it.

Chairman

To be fair to the gentleman, he has not completed his response to the questions.

Mr. Noel Curran

I have the list of questions.

Chairman

Please continue, Mr. Curran.

Mr. Noel Curran

As regards the Deputy's question about oversight on RTE, the board has launched its own process around this. We now have an independent regulator under the last Act, that has investigated two very high profile programmes and ruled against us. The idea that RTE is beyond regulation has been completely blown out of the water in the last number of months, particularly with what has happened with "Frontline" and "Prime Time Investigates". I believe we are a very regulated broadcaster as we should be as a broadcaster that receives public funding.

Some other issues were raised by Deputy Ferris, including door-stepping. We acknowledge the damage done to investigative journalism. Conversely, I believe that out of this our investigative journalism will improve over time. It probably does not feel like that now but we will all learn lessons from this. We are not pulling back from investigative journalism. We are a public service broadcaster and are publicly funded. We need to be doing types of programming that nobody else is doing. Very few people in western Europe, never mind in Ireland, do the type of quality 52-minute investigative documentaries that we do. We are not pulling back from that. It has been damaged short term, but people are going to learn from this. I do not say that glibly, but people will learn from this and I do believe that our standards will improve.

Mr. Tom Savage

Can I respond to Deputy Ferris's question, if I may? One year before this programme was initiated, the editorial sub-committee of the board, which has a particular focus on trying to anticipate where editorial risk, as distinct from financial risk, is, had a detailed meeting with the head of news and current affairs and the executive producer within "Prime Time Investigates". It got assurances that on the issue of secret filming and door-stepping, all the guidelines, which were in place at the time and which were very good, were being continually observed. We were given that reassurance. Beyond that, a board with the responsibility for governance cannot go straight out into programmes and check that it is being done. However, a year in advance we were told that was actually in place and working, and it was not.

Mr. Noel Curran

Deputy Ferris mentioned specifics, such as door-stepping and secret filming, and we have tightened up the guidelines in that regard. Over 500 editorial staff in RTE have already gone through that process. In fact, it puts greater responsibility on managers to monitor instances where that happens. As regards the Deputy's point, it must also be said that if we did not have secret filming we would not have had the Leas Cross documentary. Nor would we have had the recent documentary on trafficking, or the home care documentary - all of which, absolutely and fundamentally, had a huge public purpose. Investigative journalism is not always totally clean-cut. Sometimes one does need to invade people's privacy to do an investigative documentary. However, one has to weigh up the public good, consider it properly, reflect on it and get it challenged by people within one's department and programme. The idea that we would move away from that altogether means one does not do investigative programming. We will apply different standards-----

Deputy Martin Ferris

What happens to secret filming footage that has been carried out on people but no programme has resulted?

Mr. Noel Curran

Deputy Ann Phelan

No, we will have to come back to it.

Chairman

My alternative is we convene a meeting at our normal time next Tuesday, if Mr. Curran and Mr. Savage are available. We did not have any matter for that slot. Regrettably, time pressures on meeting rooms on a Wednesday are pretty onerous. Is that agreeable to RTE?

Mr. Noel Curran

Yes.

Chairman

I have to conclude. I apologise to everyone that we did not get to conclude our business.

Will members please be quiet? I have shown respect for members' time all afternoon. They could at least wait for me to conclude the business of the meeting. It is not too much to ask.

This is ongoing work and is important. We are not being flippant with it. Members have respected the time allowed. We must take the evidence given to us, deal with the substantial matter as a duty to the public and to restore the public's confidence in investigative journalism in our national broadcaster. We must also ensure the interaction between the Broadcasting Authority of Ireland, broadcasters, the Department, the Minister and us as public representatives is robust enough to ensure a tsunami does not occur with the reputation of investigative journalism again. Next Tuesday, we will reconvene to continue this business.

I thank Mr. Curran, Mr. Savage and their colleagues for attending the meeting. It is a matter which I am sure they, like the rest of us, would rather have never happened. We must all have good faith that we are trying to get a conclusion to the matter and that no other committee has this same discussion in the future.

The joint committee adjourned at 2.45 p.m. until 9.30 a.m. on Thursday, 17 May 2012.

JOINT COMMITTEE ON COMMUNICATIONS, NATURAL RESOURCES AND AGRICULTURE debate - Wednesday, 16 May 2012

Report on Investigation Pursuant to Section 53 of Broadcasting Act 2009: Discussion with BAI and RTE

Mr. Michael O’Keeffe

Mr. Bob Collins

Mr. Michael O’Keeffe

Mr. Bob Collins

Mr. Michael O’Keeffe

Mr. Bob Collins

Mr. Bob Collins

Mr. Michael O’Keeffe

Mr. Bob Collins

Mr. Tom Savage

Mr. Tom Savage

Mr. Noel Curran

Mr. Noel Curran

Mr. Noel Curran

Mr. Tom Savage

Mr. Noel Curran

Mr. Noel Curran

Mr. Noel Curran

Mr. Noel Curran

Mr. Tom Savage

Mr. Noel Curran

JOINT COMMITTEE ON COMMUNICATIONS, NATURAL RESOURCES AND AGRICULTURE debate -
Wednesday, 16 May 2012