Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Friday, 11 Apr 2014

Vol. 837 No. 4

Broadcasting (Amendment) Bill 2014: Second Stage [Private Members]

I move: "That the Bill be now read a Second Time."

The distinguished programme is the programme that breaches the consensus of a society and shows the audience the world in a different light. At the root of every good programme is conflict because you cannot have a consensus-shattering moment without conflict. All distinguished programmes cause offence to somebody who wants to cling to a shibboleth, or a sacred cow, or a position that is no longer borne out by the facts.

These are the words of the late Mr. Jack Dowling who worked as a producer at RTE until 1969. Penned years ago, they go right to the heart of this debate. I thank the Ceann Comhairle for choosing the Broadcasting (Amendment) Bill for debate this morning. In particular, I thank the Minister for his time in preparing for the debate on it and my fellow Deputies for their time, consideration and contributions. In preparing the Bill we interviewed a wide number of people involved in broadcasting, from presenters and contributors to editors and senior managers. I thank all of them for their time, expertise and contributions.

Strong democracies live or die by free speech. Our ability to debate openly allows society to regard itself, tackle its shortcomings, recognise its strengths, improve and withstand crises. Full and frank debate across all media is not commendable or nice to have; it is an essential ingredient in our ability to grow and evolve together. When we hobble such debate, we end up with groupthink, the marginalisation of dissenting voices and a failure to recognise when our social and political norms have become stale and outdated. The importance of open debate is something we recognise in the Oireachtas where we have created a legal bubble for ourselves, the ability to speak under privilege and free from the fear of legal proceedings being taken against us if we need to speak truth to power or about wrongdoing by rich or powerful individuals or organisations.

Of course, freedom of speech must go hand in hand with responsibility. If any of us, through our words, seeks to damage another based on false evidence, we can be held to account through the defamation laws. If any of us seeks to incite hatred, we can be held to account through the Prohibition of Incitement to Hatred Act 1989. These laws seek to balance the need for and right to freedom of speech with the obligations that go with such freedoms. This is a difficult task and, inevitably, legislation may contain errors where the balance is tipped too far in one direction or the other. The Bill seeks to rectify one such error. The Broadcasting Act 2009 lays out the responsibilities of television and radio broadcasters. Section 39(1) reads:

(1) Every broadcaster shall ensure that--

...(d) anything which may reasonably be regarded as causing harm or offence, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by the broadcaster, and...

The problem is the inclusion of the word "offence". Under the Act, broadcasters are legally obliged to ensure nothing is broadcast that may reasonably be regarded as causing offence. The Bill is simple. It is just one line and has nothing to do with the defamation laws or most of the Broadcasting Act. It removes the word "offence" from section 39.

Why go to so much trouble to remove one word? Why spend so much time and effort researching, interviewing people, drafting the Bill and seeking to have it debated in the House? Why ask for the time of the Minister and my fellow Deputies? Including the word "offence" is contrary to the ideals of free speech and undermines free speech every single day in the broadcast media. George Orwell famously stated: "If liberty means anything, it means the right to tell people what they do not want to hear." This is a quote every Deputy might regard with wry appreciation.

Closer to home, President Michael D. Higgins told the International Federation of Journalists last June: "... it is critical that journalists can and must be allowed to speak the truth without fear or sanction; and that citizens must be allowed to evaluate and weigh an array of accurate and impartially provided evidence, and come to independent conclusions of their own." How are broadcasters expected to be able to speak the truth if they are not allowed to cause offence? How in this non-offensive world can broadcasters and journalists speak truth to power?

One journalist we interviewed pointed out that journalists, including broadcasters, had an obligation to hold institutions and persons of power to account. Invariably, the holders of power at some stage come to regard the imposition of accountability on them as offensive. Therefore, it seems that journalists may not just be offensive to some people at some stages, but that it is obligatory on them to be so.

Otherwise, they are probably not doing their job. We would all agree that we have far too many examples in Ireland of those in authority and the organisations they work for not being held to account because people were afraid to speak out.

Imagine asking broadcasters to shine a light on wrongdoing, abuse and special interests without causing anyone offence. It would be impossible. Yet that is exactly what section 39 of the Broadcasting Act requires them to do. Imagine a world in which we are not allowed cause offence to anybody. One person's reasonable comment is another person's reasonable offence, and so every person's reasonable comment may be censored for fear of reasonable offence. If the law were fully enforced, the Minister, myself and many other Deputies in this House would find ourselves in the broadcast media a lot less often.

It is entirely legitimate to be offended by what people say. In what many regard as his finest contribution to Dáil Éireann, the Taoiseach said "The rape and torture of children were down-played or managed to uphold the primacy of the institution, its power, standing and reputation." I have no doubt that these words caused very great offence to some people. As the law stands, therefore, the Taoiseach's speech should not have been broadcast. It is entirely legitimate for people to have been offended by what the Taoiseach said, but it is entirely illegitimate to censor the Taoiseach because of that offence.

The argument for removing the word "offence" is not just academic. It is true that the Taoiseach's speech was broadcast, but we have heard directly from broadcasters that the inclusion of the word "offence" in the Broadcasting Act is actively restricting free speech in Ireland every day. Here is how one broadcaster explained it:

The offensive test has two ill effects. Firstly, it limits the degree to which broadcasters can examine contentious topics and secondly, it breeds homogeny amongst broadcasters. The Panti-gate example illustrates how many broadcasters could only offer stunted coverage of an issue of major public debate.

Some broadcasters pointed out that not only does the inclusion of the word "offence" allow people to shut down debate they are uncomfortable with; it also allows a tiny number of people to shut down debate for the whole population, across a wide range of issues. As has been argued, one person's truth is always going to be offensive to somebody.

Part of the problem is that the onus is put on the broadcaster in the Act. There is already a legal onus on contributors to avoid defaming people, which is right and proper, but the Broadcasting Act puts responsibility on the broadcaster not just to avoid defamation, but to restrict contributors from saying anything that anyone may reasonably take offence at. One correspondent we spoke to said that if a person believes what he or she says to be the truth and if his or her experience rings true to a situation, then it is up to that person to prove it; it is not necessarily up to the broadcaster, in that instance, to moderate the debate. Yet the law requires it.

Another part of the problem is that "offence" or "reasonable offence" is entirely subjective. It cannot be measured or tested for, so it cannot be rebutted. It was pointed out in various interviews that offence, by its nature, is subjective and that there is no barometer to determine what is offensive to society at large and what is not. Another commentator argued that we cannot legislate for what is offensive. He said: "What is giving offence? One man's offence is another man's reasonable comment. It is nonsense".

What about one woman's offence?

That was a direct quote.

Whom is the Deputy quoting?

If we cannot, under normal conditions, define, measure or test for offence, then it is preposterous to legally mandate broadcasters to filter it out, particularly in the world of live broadcasting. They cannot do it. So what do they do? They err on the side of caution. They make editorial decisions to stay away from certain topics and certain people and in so doing, they badly damage freedom of speech in Ireland. Here is how one journalist described the situation today, due to the inclusion of the word "offence":

There is a pathological fear of causing offence in large media organisations now more so than ever. Everyone has the right to their truth and their story, as long as they are not lying about it or not setting out with some kind of agenda to attack somebody else. People are afraid to tell their stories any more. It is a much poorer society if you have a situation where people from minorities, people who are in some way damaged or compromised or on the margins are not allowed to tell their stories.

What is the solution? This is why the effort was spent in getting this Bill before the House this morning - because of that one little word, "offence". It has fostered a culture of fear and caution in our national media that must not be allowed to exist. Our broadcasters must be able to ask the hard questions and to probe the difficult issues, whether people are offended by those questions or not.

This is a simple Bill. It does not seek to update every component of freedom of speech in Ireland; nor does it seek to update the defamation laws or any other parts of the Broadcasting Act. It aims to do one thing, namely, to reduce the culture of fear and caution that broadcasters are telling us exists every day in every newsroom, and in so doing, to radically improve freedom of speech in our country. One broadcaster summed up the objective of this Bill as follows:

The reason offence should be removed from the Act is that it cannot be defined by legislation. Libel can only be decided in court. One person's offence is another person's fair comment. To have this in legislation means broadcasters are simply shackled by guidelines over what they can and cannot do. If I do not know what it means, how can I do my job properly? What is terrible is that legislators seem to be differentiating between radio, television and newspapers. That is extraordinary because of the pass over of people. Eamon Dunphy writes and speaks. Matt Cooper writes and speaks. If we attempt to shut down critical media in the supposed pursuit of democracy, we make a mistake which will come back to haunt future generations.

Another broadcaster hoped this Bill would pass for the following reason:

It would make our jobs easier and it would make for a richer democracy. Right now we are forced to self-censor. The media are left to decide what is offensive and what is not offensive. The referendum next year is going to be stunted for fear of offending people.

In accepting this Bill, the Minister, the Cabinet and the Oireachtas can send out a powerful message that freedom of speech is highly valued in Ireland, that broadcasters have an obligation to probe, question and speak truth to power, that the obligation sometimes results in people being offended, and that that is okay. I commend this Bill to the House.

I am conscious in dealing with this issue that this Friday legislative slot was set aside to allow Deputies, particularly Opposition Deputies, to advance Bills that could otherwise only be taken during Private Member's business or not at all. This reform was intended to facilitate Deputies who have a particular interest or reform in mind and who require a fair wind to translate it into law. Private Members' Bills have been adopted in the past but they have been too few and invariably they have been of some substance. This one-section Bill is scarcely what was envisaged when the change to Dáil procedure was made. There was no need to cause the House to assemble this morning to make a point that might have been raised in several other routine ways. Rather than dismiss it as a stunt, I will give the Deputy the benefit of the doubt. Perhaps he did not expect to be selected or did not have time to produce a considered Bill.

The Bill derives from a remark of mine published in The Irish Times during the so-called Pantigate affair when I said that, in the context of a wider revision of the Broadcasting Act, I was considering an amendment that would require broadcasters to avoid causing “undue offence”. At the moment, Section 39 of the Act requires every broadcaster to ensure that nothing is broadcast that may reasonably be regarded as “causing harm or offence”. I said, in the wake of the programme in question, that the more objectively ascertainable test would be to impose a requirement not to cause “harm or undue offence”. This comment appears to have been whimsically latched onto by the Deputy, who now, in this hurried one-section Bill, proposes simply to excise the term “offence”. Legislating from the hip for a passing headline is not appropriate in a complex area, nor would it improve the quality of public debate. A more nuanced approach is required if broadcasting standards are to be maintained and if we are to prevent broadcasters from seeking controversy in the pursuit of ratings.

The Bill proposes the reinstallation of section 39(1)(d) of the Broadcasting Act 2009, minus the two words "or offence". The Deputy proposes this amendment in the full knowledge that a full refurbishment of the 2009 Act is under way. Put simply, the totality of this Bill is the excision of the two words "or offence". What would happen if colleagues in the House generally started to trawl through statutes based on something they heard over their cornflakes on "What it says in the papers", resolving to excise two words they do not like and call that proposal a Bill, and defending this legislative ingenuity on the basis of whatever argument is popular at the time?

I would rather take the Deputy's initiative this morning as an indication that he wants to debate the issue, and I am happy to engage on that basis. I am not happy, however, to be associated with any move that would seek to debase broadcasting standards in this country to what we see in, for example, the United States. I do not want to turn the national broadcaster or any other broadcaster into a version of "The Jerry Springer Show". Freedom of speech and of expression - and, equally, the right to be heard - are central tenets of Article 19 of the United Nations Universal Declaration of Human Rights. They are correctly regarded as being central to the proper functioning of civil society, but they cannot be taken for granted. It matters little whether the subject is developmental issues in sub-Saharan Africa, trade issues in Asia or gay equality in Europe - unless the media can report without fear or favour then the public good is undermined. The right and ability of media to do so must be preserved. After all, to quote the Secretary General of the United Nations, "When it is safe to speak, the whole world benefits."

There is, however, a delicate balance to be struck between ensuring the constitutional rights of the individual to freedom of speech and freedom of access to information are maintained, while at the same time safeguarding individuals and groups in society from abuse. In introducing this Bill, the Deputy referred to Article 10 of the European Convention on Human Rights, which deals with freedom of expression. While it is strictly true to say, as the Deputy did, that there is no reference to "offence" in that article, it does, at 10.2, impose limitations on the basis that the right to freedom of expression carries duties and responsibilities, one of which is the protection of the reputation or rights of others. Similarly, our constitutional guarantee, in Article 40.6.1°, of the right to express convictions and opinions freely and, under Article 40.3°, to communicate convictions, opinions and feelings, is also limited. The State is obliged, under Article 40.3.2°, to protect citizens, as best it may, from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. The proposed amendment to the current provisions does not take account of this obligation.

The controversy surrounding RTE's "The Saturday Night Show" brought issues of gay rights, homophobia, freedom of expression and the obligations of our public service broadcaster to the fore. The handling of and reactions to the broadcast have been subject to commentary, criticism and query. While I have not remained silent on my views on homophobia and the use of "homophobe" as a label, I sought to avoid intruding into or ascribing motivation to the RTE decision in respect of the contemplated litigation. Deputies will be familiar with the statement at the time from the managing director of RTE television. The broadcaster's explanation is that it had expert advice available to it which cautioned that it did not have a case to defend. As a result, it made the decision it made. It is true that RTE is the public service broadcaster, but it is also true that it has commercial obligations under section 108 of the Broadcasting Act 2009. The broadcaster made a commercial decision, as it frequently does, in the face of contemplated defamation actions.

Mr. Killane declared in his statement that RTE had not "engaged in censorship, but ha[d] rather fallen foul of Ireland's defamation laws." It is important to note that the Bill before us today would change nothing in respect of the situation in which RTE found itself. The broadcaster would still be subject to the same six legal actions under defamation law and would be forced to consider the same decisions. I said recently that I hope people who hold themselves out as commentators on or contributors to public debate fully appreciate that such debate can be robust, heated, personal and sometimes even hostile. Politicians are expected to function in such an environment as normal. That said, I understand from RTE's appearance before the joint committee at the end of March that there are four or five Members of the Oireachtas who are either in the process of taking legal action or are threatening legal action against RTE in this area. The broadcaster is operating in a difficult and complex environment, having strict and restrictive legal responsibilities under current defamation law. It must continue to present a wide range of views and allow forthright debate while operating within these boundaries.

The Broadcasting Act 2009 provided for the establishment of the Broadcasting Authority of Ireland, BAI, as the independent regulator responsible for the oversight of compliance in regard to broadcast content in the State. The numerous broadcasting complaints arising from "The Saturday Night Show" will be addressed by the compliance committee of the BAI in due course. One of the objectives of the authority, as set out in section 25(1)(b) of the 2009 Act, is to ensure that "the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression, are upheld". Section 39 of the Act provides for the duties of broadcasters, including, for example, in regard to objectivity and impartiality in news and current affairs. It would be a matter of serious concern if recourse to our defamation laws were to have a chilling effect on public debate, particularly in the lead-in to the referendum on marriage equality.

In the context of that forthcoming ballot, the BAI has developed and published guidelines in respect of the coverage of referendums. These set out the rules with which Irish broadcasters must comply when covering any referendum held in the State. The aim of the guidelines is to ensure broadcasters' coverage of all elections and referendums is fair, objective and impartial. In covering the forthcoming referendum, broadcasters must ensure, for example, that coverage of the referendum is fair and equitable to all interests. The BAI has previously highlighted the need for broadcasters to put in place transparent mechanisms for ensuring, in the run-up to the referendum and on the day citizens cast their vote, that coverage is fair, objective and impartial. It is incumbent upon the BAI and all broadcasters in the State to ensure they adhere to the guidelines on referendums and election coverage, as well as to the spirit and letter of the relevant judicial rulings in this area.

The right of reply scheme published by the BAI provides for the broadcast of a right of reply statement to facilitate the correction of incorrect information that has been broadcast and which has resulted in a person's honour or reputation being impugned. The scheme details the process for exercising a right of reply and the manner in which the public can utilise the process. The BAI has developed the scheme further to the requirements of the current legislation, the intention being to provide an opportunity for a person to exercise his or her right to the correction of incorrect information without recourse to legal proceedings which may prove time-consuming and costly. A request for a right of reply is made to the broadcaster, and all broadcasters are required to include on their website a copy of the scheme and information about the contact person to whom requests for a right of reply may be made. Decisions by a broadcaster to refuse such requests can be reviewed by the BAI's compliance committee. A right of reply is about the correction of incorrect facts or information. However, the scheme does not provide for the broadcast of an alternative or contrary opinion. In other words, a person who is not satisfied with the manner in which a broadcaster has relayed information about him or her has a right of reply, but it will not be granted unless the information broadcast was factually incorrect such that the person's honour or reputation has been impugned. This was not deemed an option in RTE's response to the allegations made against it in the recent controversy.

RTE is an independent public service broadcaster and produces some 40 hours of live news and current affairs every week. While mistakes have been made, with which we are all familiar, RTE is committed to this publicly funded content. I am confident the recent controversy has done nothing to make the company resile from its public service obligations under the existing provisions of the Broadcasting Act. RTE is obliged to be responsive to the interests and concerns of the whole community, reflect the varied elements that make up the culture of the Irish people and uphold the democratic values enshrined in the Constitution, especially, as I have mentioned, those relating rightfully to liberty of expression.

Ultimately, we rely on our broadcasters to provide a forum for matters of public debate and, indeed, controversy and to ensure that, when these take place, the necessary level playing field is provided for all concerned.

RTE has a crucial role in the conduct of public debate and I believe it remains fully committed to ensuring the full and free exchange of information and opinion on all matters of legitimate public interest. However, RTE will not be a lone platform for debate in the forthcoming referendum. We need to remember that information will be presented and opinions exchanged across all media. It is important that we have a free, diverse media – not beholden to a single sector, to large commercial concerns or to a single political party. The media plays a central and critical role in conveying information, parsing outcomes and passing judgment. Because of that, the nature and character of media also matters. Its ability to speak truth to power and to challenge authority is one of those slender columns that sustain democracy. If that capacity is reduced in any way, then we are all the poorer for it. If media is fettered, either by the interests of owners, by fear of authority or by the simple fact of groupthink, then our democracy is worse off.

We can conceive of or construct media in a number of different ways, as a sector of the economy, as a means of communication, as a means of entertainment – but it is also something much more fundamental; it is central to the freedoms that we hold as core values in our democracy: the freedom to speak, to be heard, and to hear. When I spoke previously on this issue, I wondered whether in the medium and longer term, in terms of public discourse on such a fundamentally important issue as marriage equality, we will have been damaged by the recent controversy. As I stated then, it seems to me that this far out from the referendum, it may be no harm at all that these issues have been ventilated now.

In initiating the amendment, the Deputy stated to the House that he does not believe people should be censored for saying offensive things and, consequently, the Bill proposes to get rid of the reference to "offence". I believe a more nuanced approach is required if broadcasting standards are to be maintained and we are to avoid stations or broadcasters seeking controversy merely in the pursuit of ratings.

At present, section 39 requires every broadcaster to ensure that nothing is broadcast that may reasonably be regarded as causing offence. As I have stated in the House, this seems to me to be an unfeasibly rigorous approach. We all know how easy it is for some people to be offended – even where offence was neither intended nor objectively ascertainable. However, to suggest that we should grant impunity to the deliberate giving of offence irrespective of the circumstances is to invite a further coarsening of public debate.

I will shortly propose miscellaneous amendments to the Act. Among them, as I announced in the Dáil recently, I am considering an amendment that would require broadcasters to avoid causing undue offence. That seems to be more objective and more in tune with the realities of public debate and the Constitution.

I did not think I would be called first. I was somewhat surprised by the Minister's attitude in dealing with Deputy Donnelly's Bill. I found him to be somewhat arrogant and flippant as to the intentions, which to be honest was uncalled for. I do not take offence on Deputy Donnelly's behalf or anything like that but we must recognise that it is very worthy that we would have a discussion on the role of the media in Ireland. I very much appreciate the intent in Deputy Donnelly’s Bill because we have a substantial problem. In my opinion, the Fr. Reynolds debacle with RTE set a tone in many ways of self-censorship since that time in terms of the print and broadcast media, an overwhelming chunk of which is privately owned by one substantially wealthy individual. We have a situation in Ireland where on the one hand the days of investigative journalism are long dead, yet on the other the media seem to be able to print any sort of rubbish about the private lives of citizens which is really of no public concern to anybody. We have not got the balance right in this country and we need to monitor it. We could learn a lot from France. The French are well known as great advocates of free speech and liberty yet there are incredibly strict privacy laws and controls over the media. It is appropriate that would happen and that we would have a balance. We have not achieved that in Ireland. I do not say Deputy Donnelly’s Bill achieves that but the topic is worthy of further discussion.

The background to the Bill is the Pantigate scandal and the decision of RTE to award substantial sums of money due to the alleged offence caused by Rory O’Neill describing individuals from the Iona Institute as homophobes. The reason there was a reaction to that and it caused a stir is that, to my mind, most reasonable people recognised that the remarks were not offensive but were an accurate reflection of the views of those individuals. For me to respond to the poisonous bile written by Brenda Power this week in the Daily Mail in relation to stereotyping and derogatory racist comments about the Traveller and Roma communities and to refer to her as a racist and homophobe might be considered offensive by her but the reality is that it is an accurate reflection of the views of that woman. We need to have a balance.

One must ask whether the problem is the law or the self-censorship of RTE. I believe it is the latter and that if RTE had taken a challenge in the courts I do not think the people claiming the offence would have won their court action. Most reasonable people would take such a view also. The reason RTE responded is that it was bending the knee to those with deep pockets, which is all too prevalent in the media and it is something we must examine. Six or seven months ago I was asked to participate in a BBC 4 radio programme on Bono. The BBC is broadcasting the programme this week. The reason it has taken so long is that in the past seven months the BBC has been subjected to enormous pressure from Bono’s legal representatives, to the point that RTE would not even hand over footage of an interview Bono had done with it to the BBC, which normally would be done, due to the fear of litigation and tight control by U2 and Bono in monitoring what opinions went out about them. A similar approach was evident with the penalty points saga where we were aware that media outlets were pressurised by members of the Judiciary who feared they would be named in the print media as having had their penalty points cancelled, and information was not put in the public domain as a result.

We have mentioned in this House many times previously the tragic case of Sarah Bland who was sexually abused by her father. Sarah and her mother presented detailed criminal complaints to the Garda about the handling of their case by their solicitor at the time - now the Minister for Justice and Equality, Deputy Shatter. Again, articles have been written about the case but no one will print them. In the background to much of what appears in the media there are threats and fear of litigation. That is both good and bad. In essence, what it means is that there are very wealthy individuals in society who try to block important information getting into the public domain. This links back as well to the control and ownership of the media.

That said, I am in favour of free speech but I agree it is not an absolute right and it must be balanced with other rights. That goes without saying. The right to free speech is not the right to hate speech nor the right to say whatever one likes regardless of the consequences. Actions do have consequences and what people say can set a tone. I do not believe that pulling a cheap stunt in order for a person to promote him- or herself by writing or saying something offensive is tolerable in a democratic society.

I wish to use one example in that regard which to me is a very serious one. It relates to the case of Colin Fulton and the Sunday World. He is a member of the Progressive Unionist Party, a legally recognised and registered political party. On that basis, I believe he deserves to express his opinion and the views of his community without demonisation.

The Sunday World ran a series of articles which featured claims that Mr. Fulton was involved in thefts from occupied houses, punishment attacks on teenagers, attacks on women, participation in illegal drinking clubs, the sale of drugs, and prominent involvement in the Ulster Volunteer Force. Despite the serious criminal allegations made by the Sunday World, he has actually never been convicted of anything. He only once appeared in court and was proven beyond any doubt whatsoever to be innocent of those charges.

Subsequent to the publication of those articles, Mr. Fulton has had information warning of serious threats to his life, five of them since the article I mentioned was published. Justice Watch Ireland and others believe that this publication and the judge's citing of the media's press freedom have breached Mr. Fulton's right to life as enshrined in article 2, his right to privacy in article 8 and his right to expression in article 10. We need to have balance in that regard. Investigative journalism is important but what is printed should be substantiated with hard facts to back it up. It should be recognised that putting out opinion and information like that is highly prejudicial, as was the information in that reprehensible article in the Irish Daily Mail earlier this week.

I welcome the fact that we are discussing this Bill because it is appropriate. Irish people are concerned about this matter and I am glad to hear that the Minister will be bringing a more comprehensive proposal before the House in the near future. That is great because we do need it. In some ways, the media in this country are totally out of control, given some of the rubbish they are printing with impunity. On the other hand, the media have absolutely failed the citizens of this State in not calling the Government to account, not conducting any serious investigation, and standing back at the slightest threat from wealthy people with deep pockets. That is not in the interests of citizens in this State.

In recent months we have seen how section 39 of the Broadcasting Act has been exploited by individuals and organisations seeking to further their own agendas and define the terms of the upcoming public debate on marriage equality. As the barrister Mr. Brian Barrington pointed out at the time of the Pantigate scandal, by its censorship of Mr. Rory O'Neill RTE has undermined confidence in its impartiality and has also made clear that it will not facilitate a free and fair debate. We found ourselves in the bizarre situation where members of the LGBT community were essentially being told they could not name homophobia when they see it, and that it was more offensive to call someone a homophobe than to experience homophobia itself.

Under the international covenant on civil and political rights, everyone has both a right to hold opinions without interference and the right to freedom of expression. Yet RTE denied these rights to Rory O'Neill when it apologised for his comments, censored them and financially compensated the people who claimed to find his views offensive. It is clear that a debate about this whole issue is good and positive. On those grounds, I welcome Deputy Donnelly's Bill.

On the other hand, we must also consider those who would use free speech to express opinions based on prejudice and intolerance. The democratic right to protect such views must not be portrayed as censorship. Earlier this week, a disgraceful column about the Traveller community was published in the Irish Daily Mail. The article was rightly condemned by the Traveller organisation Pavee Point for using strong hate speech and stereotypes. The Equality Authority described it as shameful and stated that it was not only untrue but was designed to be demeaning, hurtful and risk incitement.

In response, the paper's group editor publicly defended the piece on the grounds of free speech, stating "We will continue to fight alone, if we have to, for the right of citizens to debate all matters of public policy without state censorship". That beggars belief coming from such a periodical. The author of the piece took to the national airwaves to claim that her critics were closing down debate and that she was the real victim of this controversy. It could easily be argued that Joe Duffy's "Liveline" show caused offence to the Traveller community. It could probably also be accused of causing harm in how it gave a platform for such racist views to be aired.

There is a strange - or maybe we should say intentional - misconception that to criticise someone's views, especially when they have been given a public platform to express them, is to be an opponent of free speech. It is important to note that those who cry "censorship" are more often than not the people who hold positions of power. Ms Brenda Power has the platform of a national newspaper in which to express, as Pavee Point put it, inherently racist views.

Members of the Travelling community are rarely given such a platform to defend themselves or to write about the damage that racist speech does, yet Ms Power is the one who claims to be targeted when her opinions are criticised for contributing to the extremely serious level of discrimination against Travellers. We also saw this narrative play out in the Pantigate scandal, as the individuals who were so offended by Rory O'Neill's comments frequently used their positions of power in the national media to express discriminatory views about the LGBT community.

The Deputy is not going to correct that by excising the word "offence" in the broadcasting legislation. That would be a mistake.

I did not say that I would. I am saying that the Bill is welcome because we need to discuss this whole area. In the opening part of his speech, I found the Minister was very derogatory towards the Deputy's Bill. I thought it was over the top.

Another prominent misconception is that the right to freedom of expression somehow carries with it an entitlement to a platform. In this regard, some Members may remember the occasion a couple of years ago when a university society in Dublin extended a speaking invitation to Nick Griffin of the British National Party. The invitation was withdrawn after democratic protests by students, staff and anti-racist campaigners. They were then accused of censorship. The right to freedom of expression does not mean that we must tolerate racism, sexism, homophobia or any other type of discrimination.

Another big subject we should examine concerns who is shaping the news. There is little doubt. For example, we know that Independent News and Media got a bailout of about €138 million from the banks. Over €50 million of this fell on the Irish taxpayer. If one searches the Internet to see what the newspapers or RTE said about this, it is bordering on impossible to find out the information. That is because people are afraid of the power and money of Mr. Denis O'Brien. He is worth billions and has incredible power to shape the news. I am surprised the Minister has not dealt with the fact that his control and influence to shape the news is too great for the health of our media. I do not think it is healthy that power and money have such an ability to shape the news. I would have thought that the Minister would agree on that aspect.

Very good research was done by a Trinity College student who examined three years of news coverage of austerity. Only 3% of the coverage stated that austerity was a bad idea for the Irish people, as well as being too harsh and unfair. Only 3% took that position, which is a frightening figure. It is something we need to be worried about, because a healthy, objective media could mean an awful lot for improving how we do things in this country.

The present situation leaves a lot to be desired. Aside from being vulnerable to the wrath of the Government of the day, the national broadcaster is also rather dependent on the commercial and big business sector for advertisement revenue. That is understandable. However, there have been times when the broadcaster should have shown a little more independence. Given that it is a State broadcaster, I would prefer to see a stronger streak of independence and objectivity.

Fianna Fáil is happy to support the Bill, which will remove the term "offence" from section 39 of the Broadcasting Act 2009. We believe this change will promote the right of freedom of speech while ensuring that anything which may reasonably be regarded as causing harm, likely to promote or incite crime or attempting to undermine the authority of the State is not broadcast by the broadcaster. The existing Act requires broadcasters to prevent the broadcast of anything which may reasonably be regarded as causing harm or offence. The Bill removes the phrase "or offence". Fianna Fáil agrees with this approach and does not believe that people should be censored for saying offensive things regardless of whether offence is reasonably taken. Determining what may be considered offensive by anyone is a remarkably difficult task. What I or anyone else may consider offensive may not be perfectly compatible with other people's thoughts or opinions. In anyone's opinion what constitutes offence or reasonable offence is entirely subjective.

The Minister rightly confirmed earlier during his speech that, as politicians, we operate in a world where frank and open debate is essential. In his opening remarks the Minister was singularly arrogant and dismissive of this legislation. Then again - I hope I do not cause the Minister any offence - that is a trademark of how he operates.

He is a sensitive soul.

Is it not fantastic that Deputy Troy thinks he can say that kind of thing? If I express my honest conviction about a Bill I am deemed arrogant. I do not accept that for a minute.

The Minister should talk to people. I was speaking in respect of the Bill this morning and many other matters in which the Minister operates.

Why did Deputy Troy not excise the word during the past 14 years?

I was not here for the past 14 years, although that may have escaped the Minister's attention.

I am unsure whether the House was any the weaker for it.

The people of Longford-Westmeath are happy to have me here as a representative. They voted me in at a time when many of my party members were not voted in. In my humble opinion I believe that says something for my ability and what I have done for the people of that area, and I trust the Minister can see that as well.

The point I am making is that in a democracy it is important that we can have an open and frank debate. There are times when people say things, whether intentionally or unintentionally, which can cause offence to another party. Deputy Donnelly stated earlier - I concur with his view - that offence is rather subjective in nature. It is important that we have the opportunity for this debate in the Dáil today. The reason the Government introduced Friday sittings was to ensure that Opposition Deputies, whether Independents or those from a party, would have an opportunity for debate on legislation that might not necessarily come from the Government.

Let us be frank about the debate before the House today. What we have seen with the use of the current legislation and the use of the word "offence" was not what was originally foreseen. The battle lines are being drawn before the marriage equality referendum and a full and free debate is being systematically undermined by the immediate recourse of one side to the courts to censor the other. This is not good for debate or for our democracy. I imagine the Minister will concur that a strong democracy is built on freedom of speech. A lively and frank conversation with Rory O'Neill, the man behind the performer Panti Bliss, on "The Saturday Night Show" was swiftly countered with legal action against RTE, although RTE offered a series of remedies to meet the concerns of the individuals involved, including the right of reply. That is very important. People with an alternative view had the opportunity to come on the show and explain their alternative view. I acknowledge openly that they were entitled to their alternative view. Anyway, after these offers were rejected by the people involved, the national broadcaster took legal advice and settled to avoid a long drawn-out legal battle which it was doomed to ultimately lose. There has been much discussion about the rights and wrongs of RTE management deciding to bring a swift and relatively inexpensive end to the legal dispute, but the debate should not simply be about RTE. There are far bigger issues at stake, including freedom of expression and the value system of the country. We accept that this is the spirit in which the Bill has been introduced.

The legal action, I and my party argue, was not about defamation but about firing a shot across the bows of the Iona Institute's opponents in the upcoming referendum debate and restricting future discussion on the topic. The stalwarts of the institute were shaping the ground for future battles. They had no interest in taking up the right of reply to O'Neill's views or engaging in discussion on the issues. Instead, the institute engaged legal professionals and adopted an aggressive stance to send a clear message to any opponents that discussions would be limited to the mahogany benches of the Four Courts.

The provision to be deleted by this Bill in essence casts a cold wind on those willing to use freedom of expression to debate in a dispassionate manner things which they believe to be right. As a republican who firmly believes in the non-negotiable principle of equality, I am altogether unapologetic about my support for marriage equality. I fully acknowledge that people on either side of the debate feel passionately about the issue. I acknowledge, accept and respect that there are people on the other side who, similarly, have strong convictions and views. However, we believe debate should be open in a republic and not limited to one side rushing to their lawyers at the slightest offence. That does not make for a good democracy.

It goes without saying that passions will occasionally spill over the line of acceptable and constructive debate. We must view this in a mature way and in this light the Iona Institute cannot claim to be above name-calling. More sensitive and thin-skinned Members of the Oireachtas might have taken offence at being called "consensus monkeys" or "bonkers", and Members were referred to as such in certain articles. In reality, this is about the cut and thrust of debate in our country, and that is what democracy is about. It would be deeply unfortunate and immensely damaging to our capacity to deliberate on sensitive issues if debate is stifled by litigious elements.

As science evolves and society changes, we will be increasingly faced with complex issues that test our sense of self and offer no easy answers. Across a broad remit of areas, of which lesbian, gay, bisexual and transgender rights is only one part, we face pressing questions that cut to the heart of our value system. Any democracy should deal with these challenges through an open and fair discussion that is not darkened by the shadow of intimidation. If debates are smothered under an avalanche of lawsuits before they begin, our ability to reach a common consensus will steadily be eroded. Instead, we will slip into a ceaseless culture war fought between embittered sides in the trenches of the Four Courts, where deep pockets will decide the course of public debate.

Intolerance driven by trenchant ideologies rather than by empathy will become the hallmark of an increasingly sterile national conversation. I think we are better than that. I believe we are more than capable of having a mature discussion on issues that challenge all of us, of reflecting on the debate and then casting our ballots accordingly. Having this discussion will demand some level of patience, personal restraint and mutual respect, and it should not be chilled by fear of a solicitor's letter floating through the letter-box. Democratic debate cannot be held hostage by rampant litigation.

In my view we have already made immense progress in previously sensitive areas. Ireland has made leaps and bounds in advancing genuine equality for the LGBT community over the past two decades. From the decriminalisation of homosexuality to the enshrinement of anti-discriminatory laws in the Equality Act, this country has made significant strides forward, of which we can collectively be proud. For these reasons, Fianna Fáil will be supporting this Bill introduced by Deputy Stephen Donnelly, on which I commend him. Its purpose and aims are those that we in Fianna Fáil, the republican party, can and will support. I hope the Minister does not take offence.

I call the Minister to reply. I apologise; I must first call Deputy McGrath. I hope he will not take offence.

Of course not. Unlike the Minister, I am not the sensitive type.

I welcome the Bill and this debate. I commend Deputy Stephen Donnelly on his introduction of this legislation and I thank him for raising this important issue. I note that the Minister is here this morning to contribute to the debate, even though from his introductory remarks it seems he is having a bad hair day. I do not know whether it was the queen's pheasants in London or something else that upset him, but he is not in great humour. I would be a smoked cod and chips man myself.

This debate is about freedom of speech, the right to express an opinion and the ending of censorship. Any society or state that does not protect the rights of its citizens to express their views or opinions is not an inclusive or democratic society or state. Minority groups must be protected and they must be allowed to defend themselves by expressing their views without threats, intimidation or legal challenge. We need to ensure our broadcasters are not forced to shy away from difficult social issues. We politicians know there is nothing wrong with honest, good and robust debate and we often get it in the neck at times. As I say to my friends, "If you cannot take it, look for another day job." Politics is not for the precious types and neither is working in the media. We all need to wake up to that reality.

Deputy Donnelly's Bill proposes to amend the Broadcasting Act 2009 to remove any mention of the subjective term “offence” from the duties of broadcasters:

Section 39(1)(d) of the Broadcasting Act 2009 is amended by substituting the following for paragraph (d):

(d) anything which may reasonably be regarded as causing harm, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by the broadcaster,”.

At all times hard questions need to be asked, and views should always be challenged. Only then can we live in a healthier society. Recent events have shown us how true this is.

The Bill removes any mention of "offence" from the duties of broadcasters as listed in the Broadcasting Act 2009. Currently, broadcasters are duty bound to ensure no material is broadcast that can be reasonably regarded as causing harm or offence or as being likely to promote or incite to crime or as intending to undermine the authority of the State. From the point of view of broadcasting, giving offence has been elevated to the same level as undermining the State's authority. As a result, the broadcasting complaints process is a happy hunting ground for people who are determined to take offence regardless of whether a remark has been broadcast as offensive. As a result, our broadcasters often shy away from difficult social issues.

This Bill does not deal with the issue of defamation, although many broadcasters are calling for changes following the Pantigate issue. I use this opportunity to commend Rory O'Neill on his forthright and honest interview on RTE. He was dead right to challenge the prejudice against gay people in Irish society and his interview made an important contribution to the debate on equality. That interview and his speech in the Abbey Theatre should be shown in every second level school in the State as part of social and personal education and development. He was perfectly right to defend gay people and to challenge those who regularly attack the gay community in this country through newspaper columns. I remember well the event of 20 years ago when a young gay person was kicked to death in Fairview Park in my constituency. I remember the hatred and the prejudice. We have moved on since then, but other people have not moved on and we need to challenge those people. I commend Rory O'Neill on doing so.

It is important to listen to the views of the broadcasters. I commend Deputy Stephen Donnelly on the research he has carried out on this issue. He has obtained the views of many broadcasters. His research has shown that 100% of broadcasters are aware of the current duties of broadcasters - I was delighted with that statistic. A total of 80% of broadcasters favour change to the duties of broadcasters as set out in the legislation while 60% favour a change in the defamation laws.

The Minister, Deputy Rabbitte, has indicated that he may address the issue by changing the term from "offence" to "reasonable offence" or "undue offence". Any qualification of the term "offence", however, retains the troublesome subjective element in the legislation. Any potential solution would include changing the term "harm or offence" in section 39. That the current legislation is potentially at odds with European law has been ignored. Article 12 of the Charter of Fundamental Rights of the European Union makes no reference to "offence". Article 10 of the European Convention on Human Rights, which deals with freedom of expression, makes no reference to "offence". I accept the point that we need a balanced debate on this issue. As some colleagues have argued, the right to free speech is not a right to engage in hate speech.

Deputy Stephen Donnelly's Bill is part of that debate. The Minister talked about a more nuanced approach. We need a balanced debate. However, we do not mean a debate similar to the "The Jerry Springer Show". I refer to what the Minister for Justice and Equality, Deputy Shatter, said about Deputy Mick Wallace on "Prime Time", which was an appalling statement for a Minister for justice to make on the national television station. In any other country, he would probably have been gone the following morning.

We have walked away from the censorship that was in place in the period before the Good Friday Agreement. When I visit the North and talk to Northern Nationalists they often say that the implementation of section 31 of the Broadcasting Authority Act 1960 delayed the peace process and prevented people from participating in inclusive negotiations. I wonder if many more lives could have been saved.

The right of freedom of speech does not equate to a right to incitement to hatred. Racism, sectarianism and some of the views expressed about Travellers are not acceptable and should be challenged at all times. I note in this morning's media that a number of Fine Gael candidates are using the Traveller issue to help get themselves elected in the local elections. Their anti-Traveller views are known and they are stoking up the issue. Some colleagues referred to the French model for dealing with the issue of privacy. I welcome this debate, which is part of a process to create a modern, inclusive, democratic country in which all views are listened to and in which diversity and difference are enjoyed and celebrated.

We have seen evidence of this in the past week during the President's State visit to England and his meetings with the queen. We must respect different views and cultures, while also retaining our own rights. I stand by the rights of citizens in our democratic Republic. I also stand by the right of citizens to express their views. This matter lies at the core of Deputy Donnelly's legislation. I welcome his contribution to the debate and I strongly support his Bill.

That was a typically high note on which to conclude the debate. Deputy McGrath went around the kitchen and past the dresser and I thought he was going to finish by standing by the Republic.

I did not want to steal someone else's lines.

The Deputy appears to have some kind of obsession with the queen. If he had made contact with me in time, I might well have intervened in order to obtain an invitation for him.

Much of the debate centred around the Rory O'Neill affair. The House has had the opportunity to debate that matter on a number of occasions. I have put my views on the record on those occasions and I have also written articles on the question of homophobia and its treatment in the media. I do not propose to rehearse what has been said in this regard. However, I do propose to reassert what I said earlier about the Bill. I am greatly amused by Opposition colleagues who think that the word "offence" ought to be excised from our legislation in this area but who cannot remember that I drew a distinction between my convictions regarding the unsuitability of the Bill and the fact that I stated that if Deputy Donnelly wanted to initiate a debate on the issue, I would welcome that and would be happy to engage. It seems to be popular these days to make allegations about arrogance when people do not like the argument being put forward.

Those people must have learned from the Minister. He was quite a dab hand at doing so when in opposition.

I would rather have convictions and be accused of being arrogant than being like Cathy Barry's dog and trying to bring both sides of the road with me, as the Deputy and his party, Fianna Fáil, seem intent on doing. I have been in this House for many years and it certainly comes as news to me that Fianna Fáil has wanted to excise the term "offence" from the broadcasting legislation for some time. There does not appear to be anything it is not prepared to do in its populist approach to politics.

There is a saying to the effect that one learns something new every day. However, the Minister does not seem to want to learn anything. He does not like to take anyone else's opinion on board. That was evident from the debate on wind farms.

The Deputy should desist. The Minister only has two minutes remaining in which to conclude his reply.

The key issue here relates to the question of freedom of expression and to whether there is, as Deputy Clare Daly stated, an absolute right to that freedom and to freedom of speech. I agree with her that there is not an absolute right to either. She is correct and Deputy Finian McGrath is wrong. If we were to completely remove any objective and reasonable test of what comprises an offence, it would lead to the development of American-style standards here. Of course it is true that one person can be more easily offended than another or that someone can take offence when there is nothing of substance about which to be offended. The latter comes down to what is personal and subjective.

The man on the Clapham omnibus is a reasonable test to apply. If the term "offence" were to be excised completely, we would go down the Jerry Springer route. There are all kinds of opt-out channels which one can view on any given evening, the content of the programmes on which bear out what I am saying. That does not enhance the quality of public debate in this country, nor does it do anything - in terms of the argument in respect of the matter under discussion - to confuse the defamation laws with those relating to broadcasting. Any litigation which is contemplated is grounded in the defamation laws, not in the broadcasting legislation. As Deputy Donnelly is aware - he asked me about the matter and I informed him of what is happening - I am reviewing the legislation on broadcasting and I will introduce a Bill in due course. However, that is not the same as stating that I intend to change the law on defamation. It is a matter for the Minister for Justice and Equality to change that law. The laws on broadcasting and defamation are two entirely different things.

I cannot comment on the article in the Daily Mail to which reference has been made. This is the first I have heard about the article, which I did not see it. The reality is that we have a duty to protect the rights not just of individuals but also of groups and minorities. This must be pitted in the delicate balance between the right to freedom of expression and the duty on any Government, regardless of its hue, to protect - under the Constitution - the rights of individuals, groups and minorities in our society. That is the balance which we must strive to achieve.

I will not revisit the argument which states that if RTE had withstood the litigation with which it had been threatened and gone to court, it would have won. None of us can say that RTE would have won. I accept that it might perhaps have won but nobody can say so for sure. RTE has stated that the legal advice it received indicated that it did not have a case to defend and that in light of its commercial responsibilities, it was of the view that it would have cost it a great deal financially if the matter went to court two or three years from now.

I welcome this debate. That is different to saying that I agree with the Bill, which I believe to be entirely inappropriate. Some of the contributors to the debate essentially agree with my views. They do not like my personality but they agree with my views. Those to whom I refer do not support the Bill either but they wanted the issues involved ventilated. Deputy Donnelly has facilitated that and I am glad to have been in a position to respond.

Before calling Deputy Donnelly, I wish to state that I am not up to speed in respect of every interview that has been given or article that has been written. Members have absolute privilege and, while I have no desire to close down any part of the debate, they also have a responsibility not to name or identify any person where the reference might be perceived as casting an adverse reflection on the good name of that individual. People who are named in this Chamber are defenceless in the face of any remarks made about them.

In his opening comments, the Minister dismissed the Bill because it does not contain enough words.

I did not say anything of the kind.

The Minister is known to enjoy words. Perhaps he believes that the more words he uses, the wiser he seems. Perhaps he also believes that legislation is only worthy of his consideration and that of Parliament if it contains lots of words. I accept that his views may not be listened to at Cabinet. The Welfare of Greyhounds Act 2011 was debated day after day in the Dáil, whereas legislation containing more words - for example, successive Finance and Social Welfare Bills - have been guillotined and the House denied the opportunity to debate them. The Cabinet may not agree that the more words it contains, the more worthy is a Bill of debate in the Parliament.

This is a ludicrous argument.

For all of his words, the Minister almost completely avoided commenting on the content of the Bill.

He referred to defamation and European law. He avoided the content of the Bill, which is extremely surprising in view of the fact that it is so specific and contains so few words.

The Minister may believe the Bill to be beneath him as a result of the fact that it contains so few words. However, the broadcasters do not believe this to be the case. It is for them that the Bills seeks to cater. One such broadcaster is on record as stating - in the context of the inclusion of the word "offence" in the Broadcasting Act - that many of the interest and lobby groups on all sides in various debates now know it is worth complaining to RTE and threatening to go to the Broadcasting Authority of Ireland about offence caused.

The intention is simply to influence future coverage. Complaints often relate to matters of public debate, including euthanasia, abortion, social welfare, Travellers, gay marriage and surrogacy. I worry that these complaints have a chilling effect.

Editors and producers sometimes avoid items precisely because they are afraid of potential complaints about offence caused. There is a great deal of work in answering these complaints and even a fear that a number of complaints implies to management that one has done something wrong. Producers and researchers who already work under tough and tight conditions will self-edit in the upcoming debates on same-sex marriage to choose items and guests who will not be risky, as it is not worth the fight or hassle. It is not just an issue in the culture wars; it is more widespread. Each extreme in a debate is trying to exclude the other side and control how RTE covers stories. The risk is that in giving in to this we will lose fresh, unheard and unique voices. Instead, we will hear again and again from the same tired, tried and tested contributors who have been briefed, rehearsed and sanitised.

The Minister may believe the few words in the Bill to be beneath parliamentary debate, but they are the words of broadcasters. The word "offence" is stifling freedom of speech and causing a chilling effect across the country.

The Deputy should not be ridiculous.

It does not matter if the Minister believes the claim to be ridiculous. I have direct testimony from broadcasters that this is happening. This morning the House has been presented with evidence directly from broadcasters of how damaging it is for freedom of information in Ireland that they cannot broadcast material at which some may reasonably take offence.

That is ridiculous.

I take it from the Minister's bombast that he will order Government Deputies to vote against the Bill on Tuesday. In so doing, he will make it perfectly clear where he, the Labour Party and the Government stand on seizing an opportunity in the House to improve freedom of speech.

Question put.

In accordance with Standing Order 117A(4), the division is postponed until immediately after the Order of Business on Tuesday, 15 April 2014.