Defamation (Amendment) Bill 2024: Committee Stage (Resumed) Seanad Éireann — 2025-11-12 ============================================================ Jim O'Callaghan (FF), Dublin Bay South I will try to be brief. At the outset, I will consider all the things that have been referred to here during the consideration of whether I need to bring forward Report Stage amendments. This is no effort by me or the Government to curry favour with the media. As I said previously, the purpose of defamation law and amendments to the Defamation Act is to try the balance the sometimes competing rights between the right to one's good name, on the one hand, and the right to freedom of expression on the other. It is a difficult balancing act. However, this is an area where we should try to balance it more in favour of the publisher. Let us think of an example. We are talking about circumstances where a licensed broadcaster as defined under the Broadcasting Act 2009 either invites a contributor or somebody in the audience to make a contribution in respect of something that has been said on a live broadcast. Many people in this House and the Lower House organise public meetings. We do it for the reason that we believe it is very much in the public interest, and probably in our own political interest as well, to have public meetings where issues of public concern can be discussed. It attracts people to come along to the public meetings. However, if it is the case that somebody stands up at a public meeting and says something that is defamatory of another person, it is not fair in that circumstance for the politician who organised the meeting to be held liable for that publication. It is too unfair on a politician to say they are liable for that, they organised the meeting, and somebody came along and defamed another person. Obviously, the individual who makes the utterance is going to be liable, but should the politician also be liable? In my view, he or she should not. What is being done here is to try to recognise and respect that an important part of the broadcast media is live broadcasting. I disagree with Senator McDowell when he said we should not really be having live broadcasts. It is not for us to decide what Virgin, RTÉ or any broadcaster wants. That would involve us getting too censoriously involved in controlling the media. We should not be near that. I know that everyone in this House is a proponent of free speech. The last thing we want to do is dictate to broadcasters that they cannot have live broadcasts or they can only have them in very limited circumstances. It is their decision to decide whether they want live broadcasts. My assessment of live broadcasts is they are more exciting from the point of view of the people who are on the live broadcast and from the audience's point of view. If they were told something was broadcast a couple of hours ago, it would lose some of its excitement. It should not be a decision for us though. It is a matter for the broadcaster to determine. We should stay away from that. One of the issues raised by Senators Mullen and McDowell is to put some responsibility on the broadcaster to try to correct a statement, if a defamatory statement has been made. In fairness to Senator McDowell, he probably did one of the most effective and well-known responses on a radio programme very many years ago during a presidential election campaign where defamatory comments were made about a presidential candidate. The Senator was on the panel and reprimanded the individual who uttered what were fairly nasty, if not defamatory, comments about one of the presidential candidates. Under this legislation, one of the factors the court will be required to take into account in determining whether the broadcaster took reasonable and prudent precautions, is contained within section 13(2)(e). It states that the court must take into account: "the overall management in practice of the live programme concerned, and of its participants, by the broadcaster and in particular by the presenter of the live programme." That is a clear reference to the fact that the court will take into account what the presenter of the programme said at the time these comments were made. It was mentioned whether this legislation is just trying to deal with some abstract issue. As Members know, I do not like mentioning previous court cases, but a court case that was previously brought by a former Sinn Féin councillor against RTÉ in respect of an utterance made by a former Member of these Houses on the "Saturday with Claire Byrne Show" got a lot of public attention. Clearly, that was an issue from the point of view of RTÉ. It is also an issue to be taken into account when we are considering the review of the legislation. These are not some abstract problems; they do actually happen. If the broadcaster and the presenter seek to challenge the individual concerned, that will be taken into account. I am conscious there may be circumstances where they do not have the information available. I think broadcasters do it very effectively at present where they say a person is not there to defend themselves, has never been convicted of any criminal association, or, RTÉ or Virgin Media has no knowledge of it. There is only a limited number of things they can do. We either want to shut down live broadcasts completely, which is something I know this House does not want to do, or we are going to have to try to give broadcasters some form of greater protection. The way the law is at present means they do not have any real protection in respect of it. This is why this is a separate statutory defence in respect of live broadcasting. Senator Mullen also asked how they are going to overlap these different defences, including the new defence set out in proposed section 27A and the new amended defence in section 26. As the Senator will know, it is possible to use and rely upon alternative defences when it comes to defending a defamation action. The fair and reasonable defence or the publication on a matter of public interest is, as I said, designed to deal with a type of broadcast or publication that loosely comes within the definition of public interest journalism and responsible journalism. Section 27A is dealing with something very different. It is dealing with circumstances where, outside of the broadcaster's control, a defamatory statement is published and, notwithstanding precautions taken by the broadcaster, there was nothing it could do to stop it. In those circumstances, the section is seeking to provide a separate statutory defence in respect of this situation. I have to say that I think this is a reasonable amendment and a reasonable further protection for broadcasters. I do not see it as having the consequences that Senators have identified. I think it should be supported and that it would be beneficial not just to broadcasters but to public discussion in general. It will not mean individuals will know they can go on an RTÉ radio programme and publish a statement that is defamatory. They would be liable, and there would be a liability on RTÉ or another publisher or broadcaster if it did not take reasonable steps to prevent it. Somebody mentioned the issue of a march going down the street. Let us use the example of where every evening on the "Nine O’Clock" news we see Paul Cunningham or Míchéal Lehane standing outside Dáil Éireann and broadcasting live. If it was the case that somebody just passed by and, uninvited, as is provided for here, made a publication defamatory of me or someone else, should the broadcaster be held liable for that? Should this be the case where someone is just passing by and utters some defamatory statement saying the Minister for justice is a whatever? Do we hold RTÉ liable for that when there is nothing it could have done to stop it? I think we need to be reasonable here. We should not be too censorious about live broadcasts. We want to encourage them. I will conclude by saying I will take into account what Senators have said when we come to looking at Report Stage amendments. I said I would previously in respect of the amendment put in by Senator McDowell. --- 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