Recently, in the evening stream of the Dublin Legal Workshop (School of Law, Trinity College Dublin), on 3 April 2007, Andrea Martin, solicitor and media law specialist gave a talk entitled:

Right of Reply – a Workable Proposition for the Media?

Her argument was that a recent statutory proposal for a right of reply on broadcast media was neither necessary nor desirable, but that a voluntary scheme operated by broadcast media would have a lot to recommend it. The proposal is contained in Head 45(2) of the Broadcasting Bill, 2006 which provides:

2. Subject to the provisions of this section, any natural or legal person, whose legitimate interests, in particular reputation and good name, have been damaged by an assertion of incorrect facts in a broadcast shall have a right of reply.

The proposal in Head 45 might be thought necessary because Article 23 of the Television Without Frontiers Directive [Directive 89/552/EEC as amended by Directive 97/36/EC; a consolidation is available here (pdf), provides for “a right of reply or equivalent remedies”, and the 1997 amendment clarified that “Member States shall ensure that the actual exercise of the right of reply or equivalent remedies is not hindered by the imposition of unreasonable terms or conditions.” (Current reform proposals (pdf) do not seem to suggest changes to this aspect of the Directive).

As Andrea pointed out, this requires either a right of reply or “equivalent” remedies. Moreover, whilst the EU Directive applies to television, the Irish Bill applies across the broadcasting sector, not only to tv, but also to radio. As a consequence, the basic direction of Andrea’s argument here, so it seemed to me, was that the State in proposing Head 45 is indulging in what be termed double overcompliance: a right of reply is not necessary at all under EU law if there are equivalent remedies; and where it is necessary under EU law, it is necessary only for television.

The proposal in Head 45 might be thought desirable because of the pervasive influence of broadcast media, and the need to ensure that its coverage is fair and that reputations are protected. However, fairness is already covered in broadcasting arena by section18 of the Broadcasting Authority Act, 1960 as amended by section 3 of the Broadcasting Authority (Amendment) Act, 1976, section 9 of the Radio and Television Act, 1988, and section 24 of the Broadcasting Act, 2001 (see now Head 40 of the 2006 Bill). A quick method of redress against broadcasters is provided by the Broadcasting Compaints Commission (BCC) – though complainants often go to the courts rather than the BCC – and this function will be discharged by the Complaints Committee of the Broadcasting Authority of Ireland (BAI) if and when the Broadcasting Bill, 2006 is enacted.

Reputation is protected by Article 40.3.2 of the Constitution and the common law of defamation. Furthermore, when the Defamation Bill, 2006 (2006 (Department of Justice | Oireachtas (pdf) (which has regularly featured on this blog) becomes law, the general reforms will provide more than adequate right of reply or equivalent remedy, such as the summary procedure (s33), correction order (s28), declaratory order (s26). Moreover, a quick method of redress against the print media will be provided by the Press Ombudsman and Press Council (also much featured here) – a hybrid of voluntary council with statutory recognition it complies with the criteria in Schedule 2 of the Bill. Indeed, Andrea endorsed the decision of the press industry to go ahead and establish it without waiting for statute.

In other words, for Andrea, what she termed the formal “redress vista” already provides or is about to provide for a suite of remedies “equivalent to” a right of reply. In her view, therefore, head 45 was neither necessary nor desirable; also ran into some conceptual and practical difficulties. Its relationship with defamation actions (should it postpone such actions? would it count as an offer of amends? or even as an admission of liability?), the practical considerations of scheduling and braodcast, and the sheer scope for argument over whether something call for a reply or counted as one, all told further against it. She illustrated these considerations by reference to a complaint made against RTÉ’s programme “A Family Fortune: de Valera’s Irish Pressâ€? broadcast in their Hidden Histories series (which ran into similar difficulties with regard to a more recent episode). In a complaint before the BCC, the son of the subject of the programme argued that his father’s reputation had been traduced; but RTÉ argued that the complainant had refused the opportunity to participate in the programme, and that the issues were accurate facts and legitimate inferences to which a formal reply would have been inappropriate; and, in January 2006, the BCC held in favour of RTÉ. This kind of clash of interpretation demonstrates just how difficult it can be to decide what is appropriate to a reply and what is not.

But Andrea did not just construct a compelling case against head 45, she also suggested an alternative, in which media influence was tempered by common sense considerations. Although in her view a statutory scheme was premature, she felt that a voluntary scheme should be give a chance. In her view, informal procedures work best if voluntarily undertaken by industry, and that, in cases of disputes between broadcasters and complainants, a third party should help mediate and facilitate a fair outcome.

The role of this “Broadcast Complaints Mediator� sounded to my ears very much like that of the proposed Press Ombudsman. We didn’t pursue it in questions afterwards, but this voluntary Mediator could stand to the BCI (or BAI) as the Press Ombudsman stands to the Press Council.

All in all, this was a superb addition to the Workshop’s growing corpus. There have also been three other great papers. On the evening of 3 April 2007, Prof Spencer Zifcak (of La Trobe University, Melbourne, Australia) delivered a challenging paper on

Truth Reconciliation and Justice in East Timor – or Not?

On the afternoon of 4 April 2007, Des Ryan, a research student, tutor, and part-time lecturer in the Law School, TCD presented a veritable tour de force on

Tort Law, Public Authorities, Rights and Wrongs.

And, on the evening of 10 April 2007, Dr Cory Way, Assistant Dean of Corpus Christi College, Oxford delivered a wonderful paper on

‘Nothing beats a stunning good murder’: Crime news in early mass media print.