That is not agreed because it needs to be more carefully considered. I can well imagine a panel discussion or interview where someone says something defamatory and the words are out before the interviewer can stop the defamation. I remember in particular a defamation by the late Nell McCafferty about my then colleague, former Deputy Mary Harney. Nell McCafferty, on live radio, made a grossly defamatory accusation which had no substance to it at all. I can well imagine circumstances like that and there should be some protection for an interviewer who simply did not see it coming and had no reason above the ordinary, if I may use that phrase, to suspect that inviting Nell McCafferty onto the airwaves would cause such a calamity to take place.
There is a wider issue that Members of the House should consider. There are what appear to be live programmes, such as with the kind of format of "The Frontline", with 50 people sitting in seats who are not just ordinary Joes and Josephines Soap but, rather, have been selected because they are strongly opinionated on the topic of the programme. If one of them makes an absolutely untrue allegation against anyone else, not just politicians, but anyone in public or private life, is the Minister saying that nothing can be done about it, in effect?
The programme "The Frontline" that used to be broadcast on RTÉ television and, before that, "Questions and Answers" had such audiences where the people were selected by reference to their political opinions or their involvement in the topics that were likely to be discussed on the programme. First, should you encourage the media to broadcast those programmes absolutely live, in circumstances where you cannot actually stop somebody saying something? If you are going to involve and Joe and Josephine Soaps from different issues and backgrounds and invite them to come to your studio, should it be a matter of effective indifference to you as a broadcaster whether you broadcast that live, delay it by an hour, pre-record it or whatever, with a view to ensuring this kind of thing does not happen? This is a broader philosophical question. Is it a good idea to have one of these audience participation programmes on matters of public controversy where there are very strongly held opinions and untested participants - if I may use that phrase about them - who are activists, to use the terrible phrase we use today? Is it right that the broadcaster is effectively given immunity when it would be so easy just to tell them to come out to Montrose at 9.30 p.m. for the programme to be recorded and it will go out at 10.30 p.m. or whatever? That is a question that is not really addressed in this section. We are left with a situation where a broadcaster is now to be offered a defence, which the broadcaster would simply not have if the programme was pre-recorded. That is the problem I have with this.
The criteria that the Minister's proposed defence depends upon are that, in subsection (2):
(2) The court shall, in determining for the purposes of subsection (1) whether a broadcaster of a live programme took reasonable and prudent precautions... [having] regard to such matters as the court considers relevant, including the following:
(a) the level of effective control over the relevant person that could reasonably be expected of the broadcaster in those circumstances, including—
(i) the nature of the location from which the live programme was broadcast,
(ii) the nature of the live programme, and
(iii) whether the relevant person was a contributor, or a person other than a contributor, to the live programme;
(b) the overall measures employed by the broadcaster to ensure the taking of reasonable and prudent precautions and risk management in the conception, design and planning of live programmes ...
The question I am asking is whether it has to be live at all. Is that fairly fundamental question considered here? There is a reference to "including editorial policies and risk assessment". What is the risk assessment, if you put 50 people onto an audience participation programme on an issue of topicality and high emotion? These are not all just political issues. They can be issues where terrible things have happened to individuals or where the State or hospitals have failed to keep patients alive, or have allowed them to die due to alleged negligence or something like that. If those kinds of topics are discussed, as they frequently are, and if members of the audience are free to say that they think all of this is the responsibility of a particular person, who should be ashamed of themselves, and if that then gets out there, the problem I have is whether, going on to paragraphs (b), (c) and (d), any duty is cast on the broadcaster by this to reject or contradict a grossly defamatory allegation about somebody?
Is it good enough to say that is just an opinion, or must the compère of the programme say, “You have just said that, but it is grossly defamatory and RTÉ totally distances itself from what you have just said, and there is no proof of what you have just said." Is that kind of contradiction implicit in the Minister's so-called defence? If the defamatory statement is obvious to the people involved in the editorial control, that is one thing, but there can be grossly defamatory things said that are not immediately understood by the majority of people watching to be grossly defamatory. If you say a particular person did a particular thing, it may only be afterwards that it becomes apparent that it was untrue and that it is grossly defamatory of that person's reputation.
I would like to see this defence balanced up not merely by the matter as referred to in paragraphs (a) to (e), inclusive, but also by a duty cast on a broadcaster where it is reasonably aware that there is a risk that a serious defamation has taken place to alert the audience to that fact, rather than simply to let the matter go by and let the person's reputation be damaged without redress. The yahoo in the audience who blurts out something grossly defamatory is not going to be a mark for damages or to be in a position to make any restitution in damages to the person he or she has defamed. The broadcaster, by the same token, will have broadcast a very interesting, highly controversial programme that the viewers were on the edge of their seats listening to and found to be most revealing in relation to a defamatory remark that was made, assuming it to be true.
Is this too pro-broadcaster in the form it is in? I say that in the context of the amendment we tabled, which was to deal with the delayed broadcast of programmes. However, it seems to me that one of the criteria that should be adopted, if we are going to confer this on audience participation programmes, is the very simple question of whether it should have been a live programme to start with, rather than asking, in the context of a live programme, what the risk-avoidance policies actually were. If I was out in RTÉ, I would be delighted with this, I have to say. I ask myself who selected or vetted the audience. In case people are naive about the audience vetting process, many years ago, when John Bowman was the chair of "Questions and Answers", I was sitting beside him on the panel and he was going through his papers.
I have great respect for John Bowman and I thought that programme was well run. However, I saw an interesting chart that had the seats with different colour codes, almost like the results of an electronic vote in the Seanad. The political interests of the different people were set out in front of him in yellow, green, blue, red and all the rest so that he knew that, if someone put up their hand to intervene, whether it was a supporter or opponent of the Government or the like. I always thought the notion that people at home had that this audience was just people interested in public affairs who were chosen out of a lottery was very naive indeed.
