Defamation (Amendment) Bill 2024: Committee Stage (Resumed) Seanad Éireann — 2025-11-12 ============================================================ Michael McDowell (IND), National University of Ireland Let us be clear about this. We live in the real world, and the Minister and I have both been involved in defamation cases. To say that somebody can get a correction order against a man of straw, a teenager who has blurted out something on a live broadcast, is illusory. The cost of doing so would be massive and there would be nobody to pay for it, not even the broadcaster. It is not the case that the person who blurts out the remark is always a mark for damages or for any other form of redress, including correction orders and the like. Second, I wonder whether RTÉ has ever been sued for what somebody in the audience actually said. There was a recent case in respect of an Irish journalist on BBC Northern Ireland who made remarks about the murder of a woman in County Offaly. The broadcaster was found liable for the remarks that were made by the journalist about the motivation of a friend of the murder victim. I presume the remarks were made in a live broadcast but I do not know. However, I must ask whether we are dealing here with something RTÉ and the other broadcasters, such as Virgin Media, are afraid will happen. Alternatively, are we dealing with something that is actually happening, whereby broadcasters have been clobbered on a number of occasions, representing a problem for them in that they were the innocent victims of defamation claims they had to settle? There is a difference. The reason I ask the question is this: if what the Minister is doing is because there is a problem, let us hear about it. The great phrase used in this debate is “stakeholders”. Let us hear what the stakeholders have actually said that justifies this amendment. Perhaps they have had to pay out €50,000, €350,000 or €1 million over the years because of comments made in circumstances in which they could not control them, particularly where there were audience participation programmes. Alternatively, is it the case that the absence of this defence worries editors and producers, making them conscious of the fact that they cannot have a certain person on because of their belief that he or she is a complete lunatic and nobody knows what he or she will say? Is having to sort out who they actually invite, and work out whether he or she is likely to land them in the soup in a defamation case, a worry that constrains their behaviour already? If they are saying they do not want to worry as much in the future about these kinds of issues before they broadcast live material, is it a good idea to throw them a defence to the effect that a broadcaster should be immune because it is important that a people be able to utter their opinions and express their points of view without anybody wondering whether they will do so lawfully or unlawfully? That is the first point I want to make. If we live in a world where this defence avails the broadcaster, bearing in mind what is happening on social media where there is a free-for-all based on anonymity, and if we extend the free-for-all to an anonymous person participating in a demonstration of the kind referred to by Senator Craughwell, are we not giving with one hand what we hope to be taking away with another, which is the very harmful and corrosive capacity for people to impugn other people's reputations without any serious redress? That is the case at the moment in respect of Internet service providers, who can say "None of my business" no matter what kind of defamation I put out for public consumption. I fully appreciate that the drafters of this amendment have, in subsection (2), sought to introduce some level of balance in terms of criteria that the court should have regard to in deciding whether or not to afford the defence. However, we must remember that somebody who is badly defamed in a live broadcast is effectively defenceless if it should transpire that there was or was not adequate controls. You cannot really vindicate your reputation unless, before you start, you establish in your own mind that RTÉ, Virgin Media or some independent radio broadcaster probably did have some protocol document that was supposed to govern the manner in which these kinds of interviews take place. If I were invited on "The Pat Kenny Show" to discuss something, I know that I would be a mark for a defamation so I would be well-behaved. If I were not, he knows that inviting me on the station is a mark for defamation if, within the totality of the content of the programme, he allows somebody to get away with defaming me. There is no obligation in the criteria the Minister has set out to intervene, where reasonable, say that an accusation is a gross slur on X or Y, invite the relevant person to retract it and disassociate the broadcasting company from what has been said. There does not seem to be an obligation to do that. I do not think this defence, which in principle I see the fairness of, is adequately balanced to defend the good name of the citizen. I would say this to the Minister. When it suits, we hear attempts of the Office of the Attorney General to persuade the Department of justice that the introduction of a serious harm clause could have constitutional implications. We hear that when it suits. Where is the Office of the Attorney General's advice on this to the effect that there is no obligation on a live programme to correct an outrageous slur? Where is it? It may be that the Press Council of Ireland or the broadcasting complaints commission, or whatever it is that operates now, would require at some later date, having had a solicitor's letter and the like, some kind of correction to be broadcast by the broadcaster, as if that ever works to undo the damage that is done on the night when interested people have tuned in to see a particular topic covered and the behaviour of particular people subjected to public scrutiny. This needs to be revisited between now and Report Stage. It is too stakeholder-focused and gives the impression the law is being changed because they would love to have that law. When it came to whether there should be a seriousness test to protect anyone, we have the Attorney General’s office raising its eyebrows and cautioning the Department of justice, apparently, that any seriousness test could raise constitutional issues, but a blanket defence against the broadcast of some yahoo shouting something in the course of a demonstration going down O’Connell Street is regarded as unremarkable. There has to be further balance. --- Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted. Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2025-11-12/debate/main Retrieved: 2026-08-14T04:54:18+00:00 Sitting date: 2025-11-12