Motion re: free speech, homophobia and the public service role of the State broadcaster, Seanad Éireann
18th February 2014
First, I want to thank the Senators for raising this issue and I welcome the opportunity to discuss it in this House.
The controversy surrounding the RTÉ’s Saturday Night Show has brought the issues of gay rights, homophobia, freedom of expression and the obligations of our public service broadcaster to the fore. Handling of, and reactions to, that broadcast have been subject to commentary, criticism and query. I have spoken about the issue a number of times over the past few weeks.
I said that, personally, I would not use the term ‘homophobe’ to describe those who disagree with me on issues of gay equality in general or gay marriage in particular. I have said that I thought it was on the one hand too loaded a term but on the other to imprecise in its meaning to be used to categorise all those who hold contrary views on a matter for legitimate public debate.
Issues like this are informed by deep-felt religious, moral and social considerations – but also, unfortunately, sometimes only by prejudice. Opinion will undoubtedly be divided. The best we can hope is that people debate the matter calmly, in good faith and with respect for opposing viewpoints. But it is of no assistance at all if we lump together our opponents – all those who will vote No in next year’s referendum – by borrowing from the lexicon of liberal intolerance.
I have also said that people who hold themselves out as commentators on, or contributors to, public debate must appreciate that debate can be robust, heated, personal and sometimes even hostile. We politicians are expected to function in such an environment as normal.
Freedom of speech and of expression – and equally the right to be heard – are central tenets of the United Nations Universal Declaration of Human Rights. They are central to the proper functioning of civil society and they cannot be taken for granted. Unless the media can report without fear or favour, then the public good is undermined. The right and ability of media to do this must be proactively asserted and maintained. To quote the UN Secretary General: “When it is safe to speak, the whole world benefits”.
As we all know, RTÉ is an independent public service broadcaster. It is obliged to be responsive to the interests and concerns of the whole community, to reflect the varied elements that make up the culture of the Irish people and to uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression.
However, RTÉ will not be the lone platform for debate in the forthcoming referendum. We need to remember that information will be presented and opinions exchanged across all media.
As the debate over the last few weeks indicates, media matters. As citizens, as voters, as representatives, we need a free, diverse media – not beholden to a single sector of society, to large commercial concerns or to a single political party. Whether we chose to admit it or not, for both politicians and those we serve, media play a central and critical role in conveying information, parsing outcomes and passing judgement. They create the written and recorded account of what happens. In a very practical sense, they create the reality within which we exist and act.
Because of this, the nature and character of media matters too. 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. That proposition stands, irrespective of what any member of this House may think of the focus of sections of today’s media.
The development of a free and pluralistic media – both in terms of the technology and the legal and economic frameworks – has proceeded stepwise with the development of democracy. In simple terms, it is impossible to conceive of a modern democracy without a free and diverse press – the two are intrinsically linked.
At EU level, both individual Member States and the EU institutions have long had constructive involvement in media at a number of different levels. One of the instruments that remains available, and which retains immense value, is the fact that each Member State can still support, due to the space made in EU law, its own national public service broadcaster. This is thanks in no small part to Protocol 29 of the EU treaties, which recognises that each Member State’s public service broadcaster aims to meet the democratic, social and cultural needs of the society in which it operates and which also speaks of the need to preserve media pluralism.
My conviction that public service broadcasting is a public good is not in the slightest undermined by the seeming inability of our own public service broadcaster to drag itself out of the rut of negativity that has so absorbed it since the economic crash.
While I have not been silent on my views on homophobia and the use of “homophobe” as a label, I have sought to avoid intruding into or ascribing motivation to the RTÉ decision in respect of settling contemplated litigation. Senators will likely have read the recent statement from the managing director of RTÉ Television.
The RTÉ explanation is that it had expert advice available to it that cautioned that it did not have a case to defend. As a result, it made the decision it made. It is true that RTÉ is the public service broadcaster, but it is also true that it is a commercial company and it made a commercial decision, as it does frequently, in the face of contemplated defamation actions.
In his commentary of RTÉ’s handling of events, Mr Killane stated that RTÉ had explored all possible legal redress mechanisms, including the possibility of a Right of Reply.
The BAI’s Right of Reply Scheme provides for the broadcast of a Right of Reply Statement that facilitates the correction of incorrect information which has been broadcast and which has resulted in a person’s honour or reputation being impugned.
It is an opportunity for a person to correct incorrect information without recourse to legal proceedings.
All broadcasters are required to include on their website a copy of the Scheme and contact information. Decisions by a broadcaster to refuse such requests can be reviewed by the BAI’s Compliance Committee.
However, a Right of Reply is about the correction of incorrect facts or information. The Scheme does not provide for the broadcast of alternative or contrary opinions. In other words, a person may not be satisfied with the manner in which a broadcaster has relayed information about him or her, but a Right of Reply will not be granted unless the facts or information are factually incorrect. This was not therefore deemed an option for RTÉ on this occasion.
Noteworthy in his statement, Mr Killane offered that RTE had: “not engaged in censorship, but has rather fallen foul of Ireland’s defamation laws.” It would be a matter of serious concern if recourse to our defamation laws was to have a chilling effect on public debate on the issue of marriage equality, in the lead-in to the referendum.
While the defamation laws are outside my remit, the Broadcasting Act is not. At present, section 39 requires every broadcaster to ensure that nothing is broadcast that may reasonably be regarded as causing offence. I repeat my view that 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 not intended and is not objectively ascertainable.
I will shortly be proposing miscellaneous amendments to the Act. Among them, as I announced in the Dáil recently, I am now considering an amendment that would require broadcasters to avoid causing undue offence. That seems to me to be more objective and more in tune with the realities of public debate.
In the specific context of referendum campaigns, Senators no doubt are aware that the Broadcasting Act 2009 requires the BAI, as the independent regulator responsible for compliance in relation to broadcast content, to draw up Broadcasting Codes on the standards and practice to be observed by broadcasters.
The BAI has accordingly published a Broadcasting Code on Referenda and Election Coverage. This Code sets out the rules with which broadcasters must comply when covering any election or referendum.
The aim of the Code is to ensure that broadcasters’ coverage of elections and referendums is fair, objective and impartial. Coverage should be undertaken without any expression of a broadcaster’s own views on an election or referendum or on parties or candidates.
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 that coverage, in the run up to the referendum and on the day that citizens cast their vote, is fair, objective and impartial.
It is incumbent upon
the BAI and all broadcasters in the State, to ensure that they adhere to the Code on Referenda and Election Coverage, as well as to the spirit and letter of the relevant judicial rulings in this area.
I know that many people think the broadcasters’ hands are tied by the Supreme Court decision in Coughlan v. Broadcasting Complaints Commission, given in 2000. The immediate effect of that decision was to get rid of party political broadcasts during referendums – perhaps no great loss. A knock-on effect, however, seems to have been the ‘stopwatch’ phenomenon, when it comes to measuring news and current affairs output, in order to comply with a supposed ‘50-50’ rule.
Senators may recall Dr Gavin Barrett of UCD writing back in 2009 that the application of the Coughlan ruling had the effect of politicians and parties in a referendum finding themselves given literally not one second more time on the airwaves than unelected campaigners whose sole qualification, before being handed 50% of airtime on both public and private broadcast media, is that they have uttered the word ‘No’.
“Put another way”, he wrote, “influence formerly enjoyed by elected politicians has been transferred directly to unelected pressure groups or politicians with a tiny proportion of national electoral support. The result of the application of this case-law … has been to play down, or neutralise, the role of political leaders in favour of committed amateurs.”
It is argued that, taken together with the McKenna (No. 2) judgment, this case ensures that the entity which arguably has the most democratic legitimacy claim to exercise persuasive force – the elected Government – is largely prevented from doing so, and effectively emasculated in its leadership role.
But to deal with the Coughlan case specifically, that ruling was directed only at ‘uncontested broadcasts’ (including party political broadcasts), since no complaint was made in relation to news and current affairs coverage. In practice, however, the effect of Coughlan seems to have been to create a situation in which broadcasters feel constrained to give 50% of airtime to both sides of a referendum campaign.
If this has happened, it is not because of the BAI or its Codes. The current edition makes it clear that –
“there is no automatic requirement to allocate an absolute equality of airtime to opposing views during coverage of a referendum. However, the allocation of airtime must be equitable and fair to all interests and undertaken in a transparent manner. Broadcasters should note that allocation of airtime is not the only measure of fairness. It will be necessary for a broadcaster to consider the range of ways in which fairness is achieved and to ensure that active consideration is given to ensuring its achievement whether through the selection of contributors, the scope of the debate, the structure of the programme, the make-up of audiences, the role of the presenter or through other suitable means. Broadcasters should also note that a referendum debate is a dynamic discussion and the approach taken to airtime and to coverage in general is likely to evolve over the duration of a campaign.”
Nonetheless, it seems that 50-50 is still the default provision. We all recollect how artificial it was to seek to allocate equal time on the airwaves to those arguing against the Good Friday Agreement, the children’s’ rights amendment or the establishment of a court of appeal. I would invite the BAI, and the public service and commercial broadcasters who are bound by its Codes, to consider what further refinements can be made to the Referendum Code, whilst respecting the strictures of the Supreme Court judgment.
It may be that, so far as political parties are concerned, the ‘50-50’ rule creates a perverse political incentive to oppose constitutional amendments, given the almost guaranteed access to the airwaves that will follow. However, when it comes to a small and unrepresentative interest group, I am not sure that the same considerations would apply. If the same handful of individuals are seen and heard on every news and current affairs programme in the run-up to the vote, it may simply serve to demonstrate just how small and unrepresentative a group they really are.
Finally, I wondered aloud in the Dáil last week 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.
RTÉ 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.
I stand by my position that I draw a distinction between my intruding in the management of any particular litigation file and my insisting that RTÉ in no way resiles from its obligation to discharge its public service duties under the Broadcasting Act. That is the critical factor as we prepare to put the building blocks in place for the ultimate referendum.
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.