Defamation (Amendment) Bill 2024: Committee Stage (Resumed)
Seanad Éireann — 2025-11-12
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Rónán Mullen (IND), National University of Ireland

I am worried that, like the proposed amendment to section 11 which we discussed previously, this live broadcast defence is another very strong pro-media measure. It seems, notwithstanding the subclauses contained in the proposed amendment, that it takes us from one extreme to another and removes a necessary protection and issue that broadcasters, journalists and presenters should have in the back of their minds, that is, if someone is defamed by a third party, that can have serious consequences for them as a broadcaster and not just for the person making the defamatory statement.
It seems that where the rubber hits the road on this one - where the risk is at its greatest - is where you are talking about a live broadcast with a live audience. There are undoubtedly destructive forces in our society. I refer to people who will watch their chance just to get in defamatory statements. If they are people without particular means, this amendment gives some comfort to them. It gives leeway to straw men, straw women or - for want of a better phrase - straw persons to make defamatory statements because a significant load is being taken off the minds of the broadcasters here.
It strikes me as strange that the Minister mentioned, for example, the possibility of the correction order. Would any consideration have been given to the idea that the costs of a correction order, where it might be necessary to be made, would perhaps be borne by the broadcaster? Even if you remove actual liability, as this amendment seeks to do, should all burdens be removed from their shoulders, save the checks and balances or save the issues for the court to consider here in determining whether the broadcaster took "reasonable and prudent precautions"? Why not ensure that there is some possibility of financial discomfort on a broadcaster where this should happen? Surely it has some responsibility in the situation. It is a great privilege to be running an organisation that broadcasts ideas to the public and it seems to me that with that great privilege must go great responsibilities. I urge that some consideration would be given to at least burdening them with costs in certain circumstances where somebody has been victimised by, for example, a defamatory statement made in the context of a live broadcast with a live audience.
I was thinking recently about the current fiasco going on in the BBC and the way that President Trump was treated by a "Panorama" documentary where, basically, two statements - I think an hour apart - were spliced so as to give a certain impression. It does not matter here what you think of Trump; what matters is whether public service broadcasters or, indeed, any broadcasters are interested in keeping their own standards regardless of who they are dealing with. You had what appeared to be a deliberate splicing of two sections of a broadcast to link the call to people to go to Capitol Hill with the language of "fight, fight" and, of course, a failure to include another statement that was made that called for people to act peacefully. I am no apologist for Donald Trump here, but it is useful for us to think about how bias can operate, even in a very reputable broadcaster. It is useful for us to think about why and when it might operate as well. You can have a greater risk of bias and you can have a greater risk of a lowering of journalistic standards when the person who is at the receiving end of the defamatory comment is already a hate figure. I would dare to say that we saw this in Ireland with RTÉ at the time of the Fr. Kevin Reynolds affair on "Prime Time". I was close to that story because it was my own parish priest who was involved. He was a lucky man because he had the means of disproving the false allegation and he survived in his ministry as a result. The point was raised at the time by myself and others that it seemed likely that part of the reason RTÉ dropped its standards in that particular case was that it was dealing with the church and the church was in a bad state in terms of public opinion around abuse issues for reasons we all understand and know about. I say all of this because, if you think about it, there are circumstances of high controversy in Irish life that come to be discussed in public debates sometimes, and on live audiences.
I will give the example of victims of abuse, for whom everybody feels enormous sympathy and who deserve a great degree of respect and leeway in what they say. When there is a live public debate about a very contentious issue - let us take the terrible issue of abuse as an example - it is very easy for people who have already suffered enough themselves to go from making general comments about an institution that, in their recollection, mistreated them to actually naming particular individuals. This has happened. On occasion, it is later found out that the particular individual was not working in the institution in question at the time and so on and so forth. Even when something very injurious to a person's reputation could get uttered there - something very unfair and very defamatory - the fact would be that the person who made the statement in the context of a live audience would already be somebody who would be very much to be sympathised with. We would all have a degree of understanding that the language they might use might not be the language of a lawyer in a courtroom.
I would argue that this is exactly the type of circumstance where something could be said that is extremely defamatory, but you would not necessarily want to think of the person who made the utterance as the person you would charge legally. I suggest that the broadcaster would have an enormous responsibility in that situation. What is that responsibility? The responsibility I would expect from a broadcaster is this: if you are presenting a programme and if somebody on that programme, say in a live audience, says something defamatory about me, I would expect you to fight for my reputation as much as you would for your own reputation if they had made the defamatory statement directly to your face in the context of a live broadcast. That is what people are entitled to expect, and I think that is what Senator McDowell is talking about. I do not want to put words into his mouth. Where is the obligation in the Bill for the broadcaster, presenter or debate moderator to roll up their sleeves, to get in and nip it in the bud, to stop it, to push back against it, to tell the audience member that they cannot say that because, first, the person is not here to defend themselves, second, the statement may or may not be true, and third, the statement is potentially defamatory, and to call on listeners or viewers to disregard that statement in the same way a judge in a courtroom would direct information away from a jury's attention? That is the kind of heavy standard that I would expect to be laid on a broadcaster, regardless of whatever defence you create here.
Even on that point, is it not relevant to consider here, among the issues that the amendment proposes to be considered, whether in the context of a defamatory statement the person against whom it was made was present in the studio and in a position to defend themselves? That would not be the only issue. Just because you are in the studio does not mean there should not be any consequences if something defamatory is said about you, but it makes a difference. I would argue that this is the type of issue that should be in here among the issues for the court to consider. Was the person against whom the defamatory statement was made present to defend themselves to any degree? That, to me, is a very relevant factor in determining whether the broadcaster was taking "reasonable and prudent precautions".
I do not mind an adjustment of this issue for the sake of the free flow of debate in our society, but I am worried the Minister is going to an extreme here by removing all burdens, especially the possibility of financial burdens, from the shoulders of broadcast media in the context that something very wrong and damaging to a person's reputation could be done. I call on the Minister to look at adjusting the issues to be considered here to include the possibility of some kind of cost burden, where, for example, a correction order would be made, to include consideration of whether a person was present to defend themselves. That kind of issue needs to be looked at.

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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