Defamation (Amendment) Bill 2024: Committee Stage (Resumed) Seanad Éireann — 2025-11-12 ============================================================ Michael McDowell (IND), National University of Ireland To follow on from what Senator Mullen said, I would be impressed by this section if among the criteria set out in subsection (2) for a court to have regard to was the response of the broadcaster during the programme and after the programme to the defamation which has taken place. When one thinks about it, if something dreadful is said on an audience participation programme at 10 o'clock on a Monday evening, why should RTÉ or Virgin Media, if they want to avail of this defence, not have to convey to a court that as soon as was reasonable they sought to correct the defamatory statement or sought, first, to disassociate themselves from it and, second, if it was something which they could safely correct, that they should do so. There is a subtle difference between those two. If, in the course of a programme, somebody says live on air, "X raped me when I was a child" - some member of the audience who is worried about sexual offences and there is a debate about sexual offences and they say they were raped by X when they were a child - it cannot be said that is defamatory or untrue. We would get into trouble with the victim, who would say, "Excuse me, are you accusing me of lying? In addition, I am a victim and now you are adding double victimhood to me by portraying me as a liar." That can be an issue. On the other hand, disassociation or pointing out that the person defamed is not here in a position to defend themselves, that these remarks should not be blurted out and that it is wrong to avail of this particular broadcast opportunity to throw out an allegation of that kind, those kinds of responses are perfectly open to the producer and presenter of those kinds of programmes. I have seen it done on many occasions. I know that sometimes when I am speaking carefully on radio and television a highly over-cautious interviewer says, "Well, you are only saying that blah, blah, blah", and I realise the interviewer is cutting across me even to contradict me as I am speaking. That is sometimes the case with highly cautious people when they are confronted with what they consider to be a controversial statement. Sometimes it is annoying to be interrupted halfway through a sentence, if one is contributing to a programme, by that kind of interruption which is unjustified. I ask the Minister to indicate whether he would be open, on Report Stage, to considering some provision among the criteria set out in section 2 about the response of the broadcaster, the reasonable response within a reasonable time to an apparently defamatory remark or a remark that might appear to be defamatory. There should be another clause or two, a subparagraph (f) or (g), attached to subsection (2) to balance it out, at the very least. There is another thing Senator Mullen referred to. RTÉ sometimes likes to have a "Prime Time" programme where it exposes some scandal and then brings in an audience to react to its own programme. That is a tinder, if I may use that phrase about it, which is extremely dangerous. Here is an audience that has been shown something and is told to react to it. That is where the duty to be careful is maximised. Where somebody has not been careful and has made a statement about the documentary they have seen which even the producers of the documentary would never dream of making, this kind of blanket defence should be qualified. That would balance it up a bit and put some pressure on broadcasters when something happens to respond to it in a way which defends the good name of people who appear to be defamed by remarks made live. I am interested to know whether the Minister will expand the number of conditions for the invocation of this defence. It should be more balanced than it is. There is a tendency here to be all one way. We had it with the amendment of section 26. It was all one way with no balance; all the balances put in in 2009 were swept away by the Minister's proposed amendment to the law. This is another one where there is no balance. It may be that the present Government thinks it will curry favour with the media by giving one concession after another, being simplistic in favour of the media and never saying "Hold it, there could be a problem with this". I am just saying - and I contribute to the media myself - that they are not grateful for anything you do for them. Any politician in this House, in the other House or in Government Buildings who considers he or she will get brownie points for all this is deluding him or herself very much. I have said enough about this but I do not think it is balanced. It is too simplistic. The Minister has got rid of juries, in his own mind. He has not got the Bill passed yet but he presumes he will succeed in doing that. Any question that these criteria are too complicated to be followed by a High Court or Circuit Court judge should not be given much weight. If a judge looking at all of this has to answer whether the criteria set out in subsection(2) of the proposed new section 27A have been met, he or she is quite capable of saying whether the response at the time was reasonable, having regard to what had just transpired live. This section needs a few changes, one of which is consideration of whether, having regard to the need for free discussion on matters of controversy, there was any necessity for a programme to be live. I do not see there is a necessity in many cases for programmes to be live. It is not as if the audiences for RTÉ programmes, whether "Questions and Answers", "The Frontline" or whatever else, like going out there at 10 p.m. They would be just as happy to be there at 7.30 p.m. Whose convenience are we serving? By the way, the contributors to the programme - myself included - would much prefer not to have to hang about until 10 o'clock in the evening to do something live. --- 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