Broadcasting Law

In the nature of things, accusations are leveled at opponents in court. These accusations vary in nature and import. The most serious are found in criminal proceedings. There, the State pursues the defendant with a view to punishing him/her, possibly with imprisonment. Few criminal proceedings do not imply a moral failure in addition to a breach of the law.

However, even civil proceedings following a road traffic accident will generate pleadings criticising the defendant. They, too, may imply a moral failure on the part of the defendant, or, just as pertinently, may be construed as doing so.

Construction may be everything; if the object of criticism thinks the criticism may lower him/her in the estimation of right-thinking members of the community he/she may sue for defamation. Absolute privilege is a defence to a defamation action and, under Section 17 (2) (i) of the Defamation Act 2009, attaches to reports published of proceedings before the Irish courts whether in the Republic or in Northern Ireland. The Section reads;

“…it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was…… a fair and accurate report of proceedings publicly heard before, or decision made public by, any court-….”

To avail of this provision, the proceedings must have been held in public. This means that, for instance, the content of pleadings or an affidavit not opened in court will not be covered by the provision. (The writers of such pleadings or affidavits are protected, with absolute privilege, under Section 17 (2) (g) of the Defamation Act 2009).

The reporters of those pleadings or affidavits, if they are not made public in the court proceedings (i.e. not opened in court) are protected by qualified privilege under Section 18 of the Defamation Act 2009.

What if the judge, for instance, mutters “…I’ve read the affidavit…” and moves on? Has it been opened? Is it reportable?

That is a current issue in the UK.

HERE is the legal submission, in skeleton form, of the Guardian newspaper on the entitlement of the newspaper to have access to the papers upon which the [UK criminal] Courts are making or going to make their judgments.

See HERE for a statement relevant to this question in an Irish context.

So, before you can publish “a fair and accurate report” you must access the material. There is no right of access, under the Freedom of Information Acts, to Irish court records. In the High Court the records are under the control of the President of the High Court and in the Circuit Court under the control of the President of the Circuit Court.

Currently, in the High Court, civil pleadings are no longer filed in the Court. They are simply exchanged between the litigants and, later, a booklet of pleadings is delivered to the Court to facilitate the hearing of the action.

All of this is in considerable contrast to US courts. There, the general public has access to the court records. Indeed, they are often published on the internet by the court authorities. This is essential, for instance, in relation to a class action. There, the general public must be able to understand the issues to know whether to subscribe to the proceedings as an injured claimant.

When will Ireland catch up with the UK, not to speak of the US?

One of us, attending the High court recently, witnessed the following instance of judicial self restraint.

Counsel: “That’s your opinion, judge”.

Judge: “Yes, it is.”

It was a moment of witless insolence. The judge had rejected Counsel’s submissions; Counsel disparaged the rejection by denigrating it as “opinion”.

He was wrong on many fronts.

(1) When you have lost, you have lost.

(2) When you are in a hole, stop digging.

(3) “Opinion” is all we have.

Plato confronted this issue; he opposed objective knowledge and opinion. Presumably this is the basis for the terms of Section 39 of the Broadcasting Act 2009.

Section 39 (1) (a) provides;

“Every broadcaster shall ensure that- “… all news broadcast by the broadcaster is reported and presented in an objective and impartial manner and without any expression of the broadcaster’s own views.”

This is nonsense.

All “news” is subjective; that is, a matter of, or expression of, opinion. It has been selected; it has been expressed in words or images, which have to be selected.

What is probably being addressed is “style” or, possibly, fairness. In short, a finding of breach should made by a literary critic or an artist, not by a judge.

That implies that the wrongful act of a broadcaster is not the promulgation of “his” opinion, but the suppression of alternative views. This is a difficult problem. There are views that ought not to be expressed, if not suppressed. We see that in the public burning of a Koran in the USA.

Domestically, what is in issue is this: on what possible moral basis does the Oireachtas claim the right to restrict the public expression of opinion?

We see another, less sub rosa instance of this in Section 16 (2) of the Legal Services Ombudsman Act 2009, which states;

“The Legal Services Ombudsman when giving evidence under this section shall not question or express an opinion on the merits of any policy of the Government or on the merits of the objectives of such policy.”

The Ombudsman’s evidence will be like a doughnut; it will have a lot missing.

PS. Judicial restraint is a requirement of the job. See HERE.

It is ironic that I should suggest HERE that an opinion should not be asked of a lawyer in any and every circumstance (or, specifically, should not be asked for in some circumstances) and then, belatedly, discover the blogging phenomenon that is Eoin O’Dell has availed of a disclaimer on his website.

What is good enough for Eoin O’Dell is good enough for McGarr Solicitors. We are now following his example (and some of his wording, which, we believe, he permits). The wording is not identical to his; his blog ranges into subjects where we do not venture. The reasons for this vary. We have, to date, for instance, refrained from telling the world our opinion of the film “The Last of the Mohicans”. (It is not a promotion of the myth of the noble savage; it rejects it. What is noble about Magua? Certainly, Uncas and Chingachgook are noble, not because they are savages but because they are civilized). (This being a blog and of limited space, it is not possible to reconcile the contradictory use of “civilized” in connection with characters unconnected with a city).

OUR DISCLAIMER

“We get some emails asking for legal advice. (Not surprisingly; that’s the business we are in).
However, this blog is not intended to convey, and should not be construed as, or used as a substitute for, legal advice. It is written for general, informational purposes, and reading it does not create a lawyer-client relationship. Moreover, this blog is always under construction, and the contents are always changing, so please do not rely on any post as a comprehensive or current statement of the law on any of the issues discussed. No responsibility of any kind is accepted for any reliance you may place on anything I have written here.
There are lots of links in my posts, but I am not in any way responsible for the content of sites linked from here – such sites are the responsibility of those who maintain them; complain to them, not to me.”

(I am going to ask our IT department to place this in a more central place; some things are beyond me).

Should judges express their opinion?

The answer is yes, but appropriately.

Adrian Hardiman, a member of the Supreme Court expressed his opinion of Irish legal reporters recently (script seen HERE), and was attacked by, inter alia, the NUJ, HERE. (No comments, please on my use of latin ["inter alia"]).

In fact a court reporter has a very difficult job. The newspaper owner and the editor are very anxious to report what happens in court; any fair and accurate report is privileged and they are relieved of the phenomenal effort and anxiety required to prove the fact or facts of the proceedings.

However, the method of exposition in a court is not conducive to making clear what is actually happening in a case. Often, the case is developed through a series of motions and there may be considerable time lapses between the hearing of the motions. Even in a trial the “opening” by counsel may not reflect the actual events which take place in the trial. Proper “fair and accurate” reporting ought not to be a “quick and dirty” operation but the reporter may have no alternative to adopting that as a solution.

It is an open secret that court reporters are assisted by the legal practitioners. They are frequently furnished with a copy of the pleadings. These will contain some essential facts, at least. However, the reporter needs to know that what is pleaded may not necessarily be supported by evidence at the trial.

This relationship is fraught; the reporter should know that legal practitioners are seldom without an agenda of their own. That agenda will be more or less benign depending on the circumstances.

Equally, for a reporter to produce the kind of report that will please a judge is not necessarily a good thing; many judgments are overturned on appeal, sometimes because the judge’s conclusions were not supported by the evidence. Some judges are better than others (to put it mildly).

Consequently, a reporter should not look for the “core” of his or her report in the pleadings or in the characterisation of the case by counsel or in some diatribe by the judge (unless he or she is working for a “red-top”; then, always go for the diatribe).

In Ireland, speaking generally, legal proceedings take the form of a contest. The contest is conducted according to rules, but a contest it is.

Contests do not guarantee proper, fair outcomes but they are superior to the alternative, no hearing to one (or more) party.

The phrase to describe such hearings without a party on notice is “ex parte”.

It refers to a court application brought by one person in the absence of and without representation by, or notification to, other parties.

In principle, such an application is a breach of fair procedures (as secured by the Irish Constitution) (and the European Convention on Human Rights).

Article 6.1 of the Convention reads:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Nevertheless, such applications take place and courts make orders pursuant to them. The saving feature is that they are, to be proper, of a strictly temporary nature. The order will (or aught to) be limited in its effect to a time for the hearing of an application (“interlocutory”) (the other party having been notified of the intended application) to continue or renew the order made ex parte.

The applicant party will have notified the respondent party of the making of the order ex parte (and the order will bind the respondent forthwith) as well as giving notification of the date and time for the making of the “interlocutory” application.

Ex parte applications will, generally, be based on evidence presented in, say, affidavit form. It can happen that, subsequently, the evidence so presented is shown to be false or mistaken or generally unreliable.

For this reason a court has to be very careful in making orders ex parte. The absolute necessity for the making of the order without notification to the respondent must be shown. Considerable damage may be inflicted on the respondent, unfairly, by an order restraining the respondent from acting in some matter or fashion.

In addition, the publication of a record of the ex parte proceedings in court may libel the respondent. Under Section 18 (1) of the Defamation Act 1961, newspaper (and radio) publication of transactions in court are privileged, subject to the report being fair and accurate.

Arguably, to report the contents of the grounding affidavit or other allegation and/or the terms of the order, and to fail to report that an application was made ex parte (with an explanation of the meaning of that phrase) is not fair.

If that argument is accepted the report will lose its privilege and the publisher will be liable for the libel.

I knew little of this show. Now, I learn, it portrays Jesus as a coprophiliac sexual deviant. At least, a group called Christian Voice says so. In that belief, it applied to a London magistrate for leave to prosecute the BBC for blasphemous libel. (The BBC had televised the show). The magistrate declined leave (I am curious as to why), and the group has now applied to the High Court in London for the same relief. If the group is successful the BBC could face a maximum penalty of life imprisonment. Considering that ITV is not even facing prosecution for what seems was a major fraud on the viewing public, there is little chance of the BBC going to jail. Blasphemous libel is a common law offence. The common law is part of the law of Ireland.

The Irish Times informs us that a coalition of Irish organisations entitled “Stop Climate Chaos�? has been formed to lobby and campaign: “…to ensure Ireland plays its part in preventing runaway climate change�?.

The coalition calls on the Government to

1. Ensure Ireland does its fair share to prevent climate chaos by immediately bringing in a climate change law which provides for an annual Carbon Budget and 3% year-on-year reductions in Irish greenhouse gas emissions.
2. Push for an international agreement to keep the rise in global temperatures to 2 degrees C or less. This means global greenhouse gas emissions must reach their peak and begin to decline irreversibly within 10 years.
3. Support developing countries to adapt to the unavoidable effects of climate change.

So, climate change has now definitely joined Godzilla and pasta in the ranks of “political�? issues, requiring the Broadcasting Commisison of Ireland (by its lights) to ensure that any radio advertisements of the Stop Climate Change coalition are not aired on Irish commercial radio.

Furthermore, on the available report it would appear the the Standards in Public Office Commision also has a role to play in keeping track of, and curbing, this “third party�?. (See Section 23C of the Electoral Act 1997, as inserted by Section 49 of the Electoral (Amendment) Act 2001) where you will find a definition of “political purpose”.

Marinetti was the leading Futurist,, a group of Italian intellectuals. The group was launched with the publication of the Futurist Manifesto on 1909. They praised speed but were dubious about women. (It is believed by the writer that the Futurists were men to a man).

In 1932, Marinetti turned his attention to food. The following extract is from “The Futurist Cookbook�? translated by Suzanne Brill.

Of pasta he wrote:

We call for the abolition of pastaciutta, an absurd Italian gastronomic religion. It may be that a diet of cod, roast beef and steamed pudding is beneficial to the English, cold cuts and cheese to the Dutch and sauerkraut, smoked pork and sausage to the Germans, but pasta is not beneficial to the Italians. For example, it is completely hostile to the vivacious spirit and passionate, generous, intuitive soul of the Neapolitans. If these people have been heroic fighters, inspired artists, awe-inspiring orators, shrewd lawyers, tenacious farmers it was in spite of their voluminous daily plate of pasta. When they eat it they develop the typical ironic and sentimental scepticism which can often cut short their enthusiasm.

This is something for the Broadcasting Commission of Ireland  to, pardon the pun, get their teeth into.

Pasta is political and must therefore, under their policy, not be advertised on commercial radio.

Godzilla is widely recognised as expressing Japanese fears of attack from the United States of America.

His activities have varied from film to film but trampling Tokyo is an enduring theme.

a) Tokyo is the capital city of Japan. It embodies Japanese political power.

b) Godzilla films allude to the destruction of this power.

c) Therefore, Godzilla films are political;

d) Therefore advertisements for Godzilla films, on commercial radio, should be banned by the Broadcasting Commission of Ireland.

See our previous posting relating to the need to keep religion in check.

The Broadcasing Complaints Commission polices the commercial radio sector.

Under the terms of Section 10 (3) of the Radio and Television Act 1988, it is obliged to ensure that advertisements tending towards any religious or political end are not broadcast.

It has decided in the past that an advertisement in opposition to gender discrimination (internationally, be it noted) was political; see HERE.

Now it has decided the following advertisement, being part of a campaign by the European Union office in Ireland, is political.

‘Did you know that the European Union has legislation to protect the environment. Governments must guarantee their citizens access to clean water and ensure that they breathe clean air. There are also EU laws in place to protect endangered wildlife. To find out more log onto euireland.ie or call into any of the Europe Direct Information Centres. Europe Direct Information; its all about EU.’