Radio

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.

I was on “The Last Word”, yesterday discussing Lotto tickets. This led to a reference to the passing of ownership of property to the finder of lost property.

I cited a year and a half as the period of time required to elapse before that transfer or vesting could take place. I meant to say “… a year and a day”.

As I write I have not found the source of that (recollected) period, but I am impressed by the discussion of this in Wikepedia, HERE.

It has this neat citation: “A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except the true owner, and is entitled to keep abandoned property”.

You have it all there, except the definitions of “mislaid” “lost” and “abandoned”, and for that you will need a lawyer.

The following is the transcript of a telephone interview on “The Breakfast Show�? on Newstalk Radio, broadcast at 7.10 am on 13th September 2007.

The transcript is a free interpretation of what was said and has been subject to Ciceronian editing (in other words I have changed what was said to what might and should have been said). (The interview ended abruptly and prematurely, leaving the impression that the interviewer had to answer a call of nature).(I have had time, too, to change out of my pyjamas).

INTERVIEWER: The Ryan family of Cork have issued proceedings in respect of the death of Mr. Ryan in a Cork hospital in 2002. An inquest held last November found he had died from MRSA. Does this indicate there will be a flood of such cases coming before the courts?

SELF: I don’t think so. The point about the Ryan case is that the inquest made a finding that the deceased died of a particular form of MRSA – MRSA bacteraemia, which is a form of blood poisoning. That’s a notifiable disease; other forms of MRSA are not. The Ryan family, like all Plaintiffs must prove negligence against the defendants.

INTERVIEWER: The newspaper report confirms that there will be many such cases taken?

SELF: The newspaper report also states that the case “alleges the pensioner died after contracting the superbug through contributory negligence”. Contributory negligence is what a Plaintiff is found to be guilty of, not a defendant.

I would like to re-capitulate about MRSA. MRSA is a variant of a relatively common bacterium. It is overwhelmingly a nosocomial infection; that is, it is contracted in a health care setting. It is a hospital hygiene issue. Hygiene is a management issue, not a medical issue. That means that the wrongful infection of a person by MRSA in a hospital setting is a matter of ordinary negligence and not a matter of medical negligence. The standard is different in each case.

INTERVIEWER: Are there other difficulties facing the Plaintiffs in the action?

SELF: Proof of ordinary negligence is easier than proof of medical negligence. A potential difficulty, I think, is the effect of the Statute of Limitations. Under the Civil Liability and Courts Act 2004 (brought in by Mr. McDowell) the period within which proceedings must be issued for personal injuries was reduced from three years to two years. The Plaintiffs, in the instant case, may argue that time did not begin to run until they got the result of the inquest; that is, that they did not know who had caused the death of Mr. Ryan until then.

INTERVIEWER: Do they have any advantages?

SELF: Not particularly. Every Plaintiff suing in respect of MRSA infection faces a number of irrational distinctions. There is the, to my mind, irrelevant distinction between MRSA infection of the blood and other locations for the infection. On the point of dangers from biological agents; the staff of a hospital are specifically protected by Statutory Instrument from biological agents at work. There is no such provision made to protect patients. Arguably Section 30 of the Health Act 1947 is a protection to patients, but arguably it is not. It reads as follows:

30. —(1) A person who knows that he is a probable source of infection with an infectious disease shall, in addition to taking the precautions specifically provided for by or under this Part of this Act, take every other reasonable precaution to prevent his infecting others with such disease by his presence or conduct or by means of any article with which he has been in contact.

(2) A person having the care of another person and knowing that such other person is a probable source of infection with an infectious disease shall, in addition to the precautions specifically provided for by or under this Part of this Act, take every other reasonable precaution to prevent such other person from infecting others with such disease by his presence or conduct or by means of any article with which he has been in contact.

(3) A person who contravenes subsection (1) or (2) of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds,

In any event, if it applies, it applies to staff as well as patients. So, staff are more protected than patients.

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.’