Digital Rights Ireland: ECJ Judgement on Data Retention

This morning, the European Court of Justice-the EU’s top court- will give its judgement on whether the EU’s data retention directive is compatible with the Charter on Fundamental Rights.

We’ll update this page as the day unfolds. In the meantime, here is our client’s description of how we got here and what today’s judgement will mean.

Digital Rights Ireland: Judgement Day Q&A

And our previous posts on this case, including full text copy pleadings.

All Digital Rights Ireland posts

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Why do Irish Journalism outlets not want to secure their sources?

Enigma machine
Imagine you know something. It’s something explosive, something the public ought urgently to know. Let’s say the state is being undermined from within- either by regular ole corruption, or by infiltration by a hostile external group.

Now, imagine you hold the evidence to prove this explosive fact. It’s on a USB stick (that’s how vast infodumps come, these days). You want to deliver it to a media outlet so they can alert the public. But you don’t know any journalists- you didn’t go to school or college with them. So, you can’t know who-if anyone- you can trust with your identity.

You work inside the system, you know its quirks and foibles and if you’re identified as the source of the leaks you’re afraid you’ll be identified and victimised (or worse. Don’t forget, we’re just imagining here.). Maybe you remember that Geraldine Kennedy, the former Editor of the Irish Times just this year said she feared for her life during the phone-tapping affair.

“I took the precaution to ask George Colley, the senior Fianna Fáil adversary of Mr Haughey, if he would come to see where I lived. He did. I told him that if I ever went missing to search the river Liffey and if I were found there I hadn’t gone voluntarily, because I didn’t swim.”

You realise you can’t just email the data in the clear. You can’t even contact a journalist in the clear. You need to contact a news outlet that can receive encrypted emails.

You look at the contact pages of The Irish Times, The Irish Independent, The Irish Examiner and RTE. You see no sign any of them use the PGP (or GPG, its free open source equivalent) system to protect sources. Nor do any of them seem to run a secure DeadDrop system to receive leaks from whistleblowers, like the New Yorker magazine. That’s free and open source too. But they just don’t seem to have bothered to set up the basics of receiving information in a way that protects their sources.

Perhaps, you think to yourself as you look at the USB key in your hand, they would prefer not to know.

Photo by Anthony Catalano, used under cc licence

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David Quinn, Shirley Temple, and The Milkman’s Cheery Whistle

It cannot be easy to be an opinion columnist. No, that’s not quite true. Being an opinion columnist is incredibly easy, especially when compared to jobs such as firefighter, coalminer or deep-sea fisherman. What is difficult though, so difficult that there are only a handful of people in the world up to the task, is to be a good one.

Most people don’t have all that many opinions. We might have subjects in which our jobs or personal experience have given us a certain expertise. We might have come across a subject in passing one day and kept ourselves vaguely informed about it. Otherwise, we tend to outsource our opinions to our friends (who will have their own handfuls of areas of expertise), to political leaders, to twitter. It would be an unusually thoughtful person who came up with a dozen fully-formed original opinions per year. Expecting someone to have one of them per week, let alone per day, is unrealistic. Worse, it depletes their intellectual resources, turning them into opinion machines, wandering through the world looking for things to publicly have opinions about. This is how the columnist turns into a crank, unable take a neutral stance on anything, having (and worse, expressing) strongly held views about things that no sane person would care about at all.

Stephen Fry has spoken amusingly of his time as a newspaper columnist, and the dangerous habits of mind into which this occupation can lure one. The most dangerous trap is what he calls “the milkman’s cheery whistle”. This is the lazy tendency, when stuck for something to write about, to muse on “an object of nostalgic regret”. Whatever happened to the milkman’s cheery whistle, muses the columnist. You used to hear it every morning, back in the old days. Now, the milkman is almost a thing of the past. Shame really. Of course I’ve been buying my milk from Tesco for years now, but still, it’s sad that we’ve lost that personal touch. Seems sort of soulless really, but sure that’s modern life, isn’t it?

Quinn

All of which may be a possible explanation for a column written recently by David Quinn for the Irish Catholic. Mr. Quinn, perhaps best known on the internet, where he is a figure alternately of fun and hatred, writes not one but two weekly columns. And he’s been at it for over a decade. You might then be forgiven for thinking that he must be a polymath, a renaissance man, his mind ranging from subject to subject, and coming up with one hundred fresh, unique observations per year. On the evidence of his most recent column, you would be wrong.

Mr. Quinn laments the recent passing of his own personal milkman’s whistle, the former child actress Shirley Temple. Aside from displaying frequent symptoms of columnist’s laziness (“The only Shirley Temple film I can actually remember properly…”) he suggests that Temple’s post -child-stardom life was a more wholesome than Miley Cyrus’. But, in this fallen age, another Shirley Temple is impossible to imagine. Of “Bright Eyes”, a movie he “can’t remember at all” but read something about, somewhere (no citation is given), he asks:

“Could a movie like that be made today? Have we become too cynical, too secular-minded? My hunch is that a movie like that, adapted slightly for modern tastes would still be popular but would probably never see the light of day because of the overt faith references”

There’s a lot to deal with in this paragraph. First, the sneaky suggestion that secularism and cynicism are somehow the same thing. Better still, the “hunch” that Hollywood won’t give the people the pious, wholesome films they want (presumably because the movie industry hates to make money). Finally, the realisation that this entire fantasy, where Hollywood for some reason produces a remake of “Bright Eyes” only to suppress it, is based on a film Mr. Quinn admits to never having seen.

It is almost poignant, this sadness that the word has become so cynical. Things were better in the days of “Bright Eyes”.

In that less cynical age, Graham Greene wrote (and was sued for his trouble) that Shirley Temple’s appeal was essentially paedophilic in nature. Certainly, it is hard to imagine a contemporary child star glammed up the way Shirley Temple was (think of the Minipops debacle). Is that concern for sexualisation of children modern cynicism, or a better awareness of something we should have been more worried about all along?

In that less cynical age, the world saw the Great Depression, World War II and the Holocaust.

In that less cynical age, there wasn’t so much in the media about demands for gay rights, and drag queens didn’t presume to enter public debate. But they still existed. The only difference is that now Mr. Quinn is hearing about them.

Modern

The world of your childhood was simpler, not because it was a simpler time, but because you were a child then. If it seems to you that in your childhood there was less alcoholism, infidelity and domestic violence, it’s probably because people don’t talk about those things in front of children. If it seems to you that things – rights for gay people, political correctness – have gone too far, you need to ask yourself at what point in history they had they gone exactly far enough. If it seems to you that there was ever such a thing as a less cynical age, that is entirely human and natural. Sit down, watch a Shirley Temple film (or whatever cultural comfort food you prefer) and wallow for a short moment in old, illusory certainties. Then turn the TV off, and go outside into the modern world, where you have to live whether you like it or not.

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CONFIRMED: RTE internal memo to unhappy staff re Pantigate

UPDATE: It is real.
***
I’m not a journalist and I’m not used to getting leaks.
So all I can tell you is, I received the text below and it may be accurate or it may not.
If it is accurate, it is the most expansive RTE has been in trying to justify their decision making on this.
If it isn’t accurate I’ll clarify that in an update and we can leave this post as a monument to my folly.

***

Colleagues,

Over the last week a number of people have approached me questioning RTÉ’s apology to John Waters and members of the Iona Institute following the receipt of six legal complaints and you will, no doubt, have seen the ongoing debate on this subject.

I want to reassure you that RTÉ explored every option available to it, including right of reply. Legal advice was sought and all avenues were explored, including an offer to make a donation to a neutral charity.

However, based on the facts of what was broadcast, and having regard for broadcasting compliance issues, the seriousness of the legal complaints, and the decision by the complainants not to accept RTÉ’s proposed remedies, we decided that a settlement was the most prudent course of action. Senior counsel was consulted and confirmed that the legal position was far from clear.

As a dual-funded public body, RTÉ should not knowingly progress to defend an action when it is advised, internally and externally, that such a defence is unlikely to succeed before a jury.

RTÉ has not engaged in censorship, but has rather fallen foul of Ireland’s defamation laws. The topic reopened over the weekend and RTÉ will continue to cover this and related issues, as evidenced by last week’s Late Debate, coverage of the protest in Dublin city centre on Sunday, today’s item on Today with Sean O’Rourke on RTÉ Radio 1 and last weekend’s debate on the subject on The Saturday Night Show.

Glen Killane
MDTV

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A People, Risen

I take it that you, like me, have already see the video posted above, of Panti’s Noble Call, a stirring address to the audience at the final production of The Risen People on Saturday night. If so, you won’t be the last. The video has been watched by 100,000 people already, and is spreading like wildfire across the world’s media.

And of course the whole thing is so magnificently stirring that you feel like soaring orchestral music should start playing behind it at the end. The setting, the Abbey Theatre, scene of so many famous nights in Irish history. The backdrop, actors playing workers who struck for their rights a century ago. The speech itself, so raw and honest, yet so thoughtful and reasoned that the anthologies of Great Irish Speeches already seem incomplete and out-of-date without it. It is the most significant piece of public speech Ireland has seen in years.

We all enjoy watching feelgood videos that confirm our already held political opinions. But for me at least, something else was at work when I watched. I couldn’t get the video out of my head, and I wondered why.

Yesterday, this conversation came up in my timeline:

Myself

And then I began to suspect why the Noble Call was still nagging at me, and I watched it again. Panti talks about checking herself at the pedestrian crossing, to make sure she doesn’t look too gay. She talks about cringing when friends act too gay in public. And this is the power of prejudice, that it is so pervasive that it can enter the head of an out-and-proud gay man and make him feel embarrassed by the very idea of gayness. And I recognised that embarrassment within myself. Because prejudice also worms its way into politically correct liberal thought. It makes us define other people’s struggle in terms of our own perspective (in my case, that of the straight white liberal male), rather than theirs. It leads to thoughts like “look guys, you know I’m on your side, but hey, dial it down a little”. It lead to my gut reaction when I read this tweet:

Taxi

I thought, well that’s really sad, but maybe it was the safer option. This is how we endorse society’s prejudices even while we say we condemn them. Of course, I’m not prejudiced, we say, but not every taxi driver is as liberal as I am. This kind of thought is more common than we wish to acknowledge. You hear it too when people complain about tourists and foreign students around the town. We complain about their loudness, their “being in the way”, when maybe it is their visible foreignness that really irritates. You hear it when people declare they have no problems with Africans or Roma, but why do they have to dress like that?

Tolerance is a fine, useful value. It allows people to get on in society even when they hate or have no understanding of each other. But tolerance is no long-term solution for a society that aspires to inclusiveness and equality. These aspirations require us to accept people for what they are, not for how closely they conform to what we are. And that’s why the Noble Call wouldn’t get out of my head. By honestly addressing that homophobia exists everywhere, even in the minds of gay people, it (very graciously, in the circumstances) allowed me to recognise it within myself. It is not for me or anyone else to decide just how gay a gay man is permitted to act. Put on your heels and wig and make-up and do us proud before the world, Panti. Stand at the pedestrian crossing however you please. We, the risen people, will have your back.

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What we can learn from the Pantigate scandal

Photo cc Jay Wilson

Photo cc Jay Wilson

Firstly, yes, it is a scandal. Anything that generates a 2000 person demonstration on freedom of expression in a matter of days, without any advance media publicity is big. Anything that has Ireland’s commitment to free speech and minority rights being commented on internationally is big. Anything that has major media outlets openly admitting that they are afraid in covering a story is huge.

 

““So, yes, it’s obvious; and yes, we all get it. We’ve all got our muzzles on.”
-Nadine O’Regan, Sunday Business Post, 2nd February 2014

“In Ireland Only Straight People Are The Victims Of Homophobia”
- Dan Savage,

Paul Murphy MEP, speaking in the European Parliament debate on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity

So, a scandal.

Generally, in media-land, this would be where we would move on to the “Who is to blame” section. But actually, I think this is the wrong question. All the players here have played their part predictably within the roles they have been given or chosen. The problem is that the rules of the game need to be changed.

For me, the root of the problem lies in a well-meaning piece of legislation from 2009. Not the Defamation Act, which has been untested in this entire imbroglio. Rather the difficulties, and opportunities for improvement, lie with the Broadcasting Act 2009.

Here’s Section 39 (1) (d)

Every broadcaster shall ensure that “anything which may reasonably be regarded as causing harm or offence, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by the broadcaster,”

This section puts causing offence on the same level as undermining the authority of the State. But no society can ever improve itself, can ever acknowledge what is wrong and address how to make things better, if we can only say things that cause nobody any offence.

Effectively, by outlawing the giving of offence Section 39(1)(d) is a ban on open discussion on our airwaves, making the broadcasting complaints process a happy hunting ground for people who don’t want to be disturbed in their cosy beliefs.

To give RTE its due, its own internal guidance documents attempt to address this tension. It highlights a range of things which might be expected to give offence but it asserts that, for example

“The denigration of religious beliefs and the mockery of faith are not permitted. It is however, acceptable to examine critically religious beliefs, institutions and experiences in factual programmes, dramas and other genres of output.”

However, the requirement not to broadcast anything which causes offence leads to a situation where RTE is required, even in its own statement on respecting diversity to tie itself in knots:

“As Ireland evolves into a more multicultural and ethnically diverse nation it is important that RTÉ reflects these changes. But equally programme-makers must be sensitive to areas of public opinion that are absent from public discourse because of the reticence of some people to express their views”

Which seems to suggest that RTE has to be sensitive to the views of people whose views are so socially unacceptable that they are reluctant to admit to holding them.

Excising the words “or offence” from Section 39(1)(d) of the Broadcasting Act 2009 would be a minor legislative change but it would allow a revolution in the development of a really free media in Ireland.

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Response from the BAI to complaints re the Saturday Night Show

If you write to the Broadcasting Authority of Ireland about the recent Panti/Saturday Night Show excitement, you will likely get a reply something like that below.
If you want to make an effective complaint, you should note that;

  1. You should make sure your complaint is about the statement read on the 25th January
  2. You should send on your initial complaint to RTE and its response (or non-response, as the case may be) with your BAI complaint
  3. That they seem to be saying they want complaints to be made from now on using their Complaint form . They don’t say what happens to complaints made from now on which don’t use that form.
    Here’s a link to that form
  4. That there is a pretty short time limit of 14 days from the date of your response from RTE for making your BAI complaint.

I certainly don’t think that 3 would be an appropriate response, if it is actually intended to be the BAI’s policy to distinguish between complaints made with or without their internally generated form. It feels like a unnecessarily bureaucratic response to concerns clearly expressed by the public.

Here’s the BAI’s own reply.

*****
I write to acknowledge receipt of your email about The Saturday Night Show on RTÉ 1 television.

Due to the large number of complaints received about this programme, our reply to your email will deal with all of the main issues raised by those who have written to us on this matter. The main elements of complaints received so far relate to:-

1)         The statement read on The Saturday Night Show on the 25th January, in response to the original broadcast aired on 11th;

2)         Reports that RTÉ has paid compensation in respect of comments included in the programme of 11th January;

3)         The re-editing of the programme of 11th January, currently available on the RTÉ Player;

4)         The reference to journalist, Mr. John Waters, as a member of the Broadcasting Authority of Ireland (BAI).

The statement provided during the programme broadcast on the 25th January is the only element of the complaints received that the BAI can address. The other issues relate to operational decisions made by RTÉ or relate to content held online. In both cases, the BAI has no regulatory role and these are matters for RTÉ and its Board of Management. Regarding Mr. John Waters, please note that Mr. Waters is no longer a serving member of the BAI. The BAI issued a statement following his resignation and this can be viewed here: http://www.bai.ie/?p=4290

The BAI can consider complaints against any programme, as aired, and if you believe that the statement broadcast on the 25th January infringed the requirements of the Broadcasting Act and/or the BAI’s broadcasting codes, then it is open to you to make a complaint. Information on the complaints process is set out below:

•           If you have not already sent your complaint to RTÉ, please note that it is the BAI’s policy to direct complainants to the relevant broadcaster in the first place. Complaints must be submitted to the broadcaster within 30 days of the date on which the programme was aired.  The broadcaster should then respond within the timeframe specified in their Code of Practice for Complaints Handling, which is 20 working days in the case of complaints sent to RTÉ. Please allow this period of time for a response. A copy of the RTÉ Code of Practice for Complaints Handling can be found here: http://www.rte.ie/about/en/information-and-feedback/complaints/2012/0222/291660-complaints-procedure/

•           If you are not satisfied with the response from the broadcaster and/or the broadcaster does not respond to your complaint within the timeframe specified in their Code of Practice for Complaints Handling, you may then refer your complaint to the BAI. You are asked to refer any complaints within 14 days following this period by completing the attached referral form and indicating clearly the section/s of the Broadcasting Act/BAI Codes you believe, in this case, that the statement broadcast has breached.   Information on the complaints handling process, including a copy of the complaint referral form, can be found here: http://www.bai.ie/?page_id=115

•           In the case of those complaint referrals which have already been submitted to the BAI for consideration, these will now be processed in line with the procedures detailed in our Guide to the Complaints Handling Process.

Further responses to the BAI should be addressed to complaints@bai.ie.

I trust this information is of assistance to you.

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The Oppression of Silence, The Freedom Of Speech

Thirty years ago a 15 year old girl died alone after giving birth to her baby at the foot of a statue of Virgin Mary. Her baby son also died. Her name was Ann Lovett.

In the days that followed, letters poured in to Gay Byrne. And then Gay Byrne started to read them out on air. And more came in. And the seal covering Irish women’s lives- hiding anguish, about babies, love and lovelessness, about cruelty and above all about living in silence- was broken.

By reading out all those women’s words Gay Byrne loaned his voice- the most famous voice in Ireland- to people who hadn’t even been able to speak before because the ruling forces in society didn’t ever want them heard.

When we mark off things that mustn’t be said, we grow forests of ignorance in their place. When certain things are deemed “too loaded” to be spoken, we lose the ability to describe a piece of truth.

Silence your opponents and you steal their voice. But you also steal from everyone else the chance for an understanding of their lives.

Gay gave his voice to people who had had theirs taken from them. RTE carried personal stories and the emotions of hidden lives into every part of the country. The station let the powerless choose their own words to describe their own life.

Silencing people- actually preventing their words being heard- is a tragedy that creates more tragedy. Argument and discussion, polite or raw, is a society’s best protection against the darkness.

You must say what you like, as must I. And we both may say what we think of the other. If we can’t do that- if one of us takes the other’s voice because they cannot bear to hear what they say- it is certain that we will again be lost to the dark.

Dissent is not oppression. Silencing is oppression. Dissent is freedom, through speech.

20140131-102541 p.m..jpg

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Helpful BAI Statement on new Code of Business Conduct Issued today

“Please note that this code has been updated in recent weeks and a new version has been placed online today; it is viewable here: http://www.bai.ie/wordpress/wp-content/uploads/20131119_RevisedCodeOfBusinessConduct_PK.pdf

Employees who infringe the Code of Business Conduct may be subject to the disciplinary policy and procedures in place for BAI staff. The application of a sanction would be dependent on the specifics of a breach of the Code. The procedures provide for four stages as follows:-

Stage 1 – formal verbal warning;
Stage 2 – first written warning;
Stage 3 – final written warning;
Stage 4 – dismissal or other disciplinary action.

In an instance of gross misconduct, the BAI may summarily dismiss an employee. In this situation, a full investigation will be carried out under the direction of the Chief Executive.

Certain staff members holding ‘designated positions’ and members of the statutory Authority and Committees are subject to the obligations placed on them by the Ethics in Public Office Act, 1995 and the Standards in Public Office Acts, 1995 and 2001. ‘Designated positions’ refer to staff at the grade of Higher Executive Officer and higher. Authority and Committee members as well as staff are also subject to Sections 21 and 22 of the Broadcasting Act 2009 and this is dealt with in the Code of Conduct. In addition, Section 20 of the Broadcasting Act places duties of accountability to Oireachtas Committees on the Chief Executive, Chairperson of the Authority and the Chairpersons of the Statutory Compliance and Contract Awards Committees.

Complaints of a perceived breach of the Ethics in Public Office Act, 1995 and the Standards in Public Office Acts, 1995 and 2001 can be made to the Standards in Public Office Commission (http://www.sipo.gov.ie.), in the case of members of the Authority or Statutory Committees. Complaints of a perceived breach in the case of ‘designated positions’ can be made to the Chief Executive of the BAI, or in the event that the complaint relates to the Chief Executive, the Chairperson of the Authority

In the case of complaints relating to any other matters covered by the Code of Business Conduct the following would apply:
- If a complaint relates to a member of staff, a complaint should be notified to the CEO
- If a complaint relates to the CEO, a complaint should be notified to the Chairperson of Authority
- If a complaint relates to a member of the Authority, it should be notified to the Chairperson of the Authority. Similarly, if a complaint relates to a member of either statutory Committee, it should be notified to Chairperson of the Committee
- If a complaint relates to any of the Chairpersons, then it should be notified to the Minister
- Given that the Chief Executive and the Chairpersons of the Committees have duties of accountability to the Public Accounts Committee and other Oireachtas Committees, then that avenue would also be open to a complainant.

With regard to sanction in respect of Authority/Committee Members, my understanding is that it would be
a) dependent on the nature of the breach of the Code of Business Conduct and b) any sanctions such as removal from office, for example, is solely a matter for Government, provided for under section 10 of the Broadcasting Act 2009″

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The BAI, John Waters and regulating away Other voices

As a member of the Broadcasting Authority of Ireland (BAI), John Waters is one of nine people who are in charge of regulating all broadcasting in Ireland- RTE TV and Radio, TV3, and all commercial radio. He is also one of only two of those nine who sits on the Contracts Awards Committee which licences independent commercial and community broadcasters including digital television providers.

He was appointed by Dermot Ahern in 2002 to the BAI’s predecessor, the BCI. He was later one of the five direct Ministerial appointments to the BAI on its establishment by Eamon Ryan.

He has described the circumstances of his initial appointment himself:

I was appointed to the broadcasting commission by Dermot Ahern, then minister for communications, in 2002. Ahern, whom I’d met casually on two or three occasions, said I was being appointed because of an article I’d written about a particular decision of the commission.
But Dunphy confided a different version of my appointment to the commission. Shortly before the appointment, he had attended a brunch in the Dublin 4 home of the developer Sean Dunne.
Bertie Ahern, then taoiseach, had been at the brunch, and Dunphy claimed he had suggested that the government might “do something” for me. (It was the weekend in 2002 over which I’d been briefly fired from The Irish Times, having made some adverse public comments about the then editor and the remuneration of senior executives.) According to Dunphy, Bertie had said he’d see what could be done.
This story (which I have been unable to verify but have no reason to doubt) tells us a few things about Dunphy.

On The Saturday Night Show of the 11th January 2014, Rory O’Neill, who performs in drag as his alter ego Panti, was interviewed by Brendan O’Connor. The interview was well conducted, I thought, and thoughtful. Mr. O’Neill addressed the questions of how members of minorities are treated as outsiders (as the Other, as the critics might have it) because of the relative unfamiliarity of the majority with them as individuals.

He said that, therefore, the fact that Ireland is as small as it is means that social change can come faster because of the likelihood that individuals will get to know members of minorities, personally. He addresses that idea primarily in terms of racism, because of the immediacy with which a person can be Othered if they look differently. However, he also addressed the same tendency as it applied to the minority he belonged to and reflected that the fact that everyone knew an openly gay person meant that Irish society had moved to be considerably more “open and pluralistic” (see S25(1)(c) of the Broadcasting Act);

“The only place that you see it’s OK to be really horrible and mean about gays is on the internet in the comments and people who make a living writing opinion pieces for newspapers,” he said.

Brendan O’Connor then went on to press him to name the newspaper opinion writers whose writing he felt were ‘horrible and mean about gays’, which he did.

By Tuesday, Mr. O’Neill tweeted

RTE initially sought to obscure the source of this legal concern, telling TheJournal.ie that the censorship was:

due to potential legal issues and for reasons of sensitivity following the death of Tom O’Gorman as would be standard practice in such situations.

The unseemly attempt to use Mr. O’Gorman’s death as an explanation was overtaken by events when, on Thursday the 16th January, the Irish Independent ran a story headed “RTE cuts part of show after legal complaint from Waters”;

It removed the entire programme earlier this week, after claims that comments made by a guest about journalist John Waters were defamatory.

The Irish Independent understands that representatives of Mr Waters sent a legal letter to the broadcaster, seeking the removal of the interview.

Mr Waters refused to comment when contacted by the Irish Independent. However, sources confirmed that he contacted the broadcaster and asked for the programme to be removed.

When he did not receive what he saw as a satisfactory response, his solicitors sent RTE a legal letter.

Now, this is where we reach an interesting point. Because, provided we accept that the Irish Independent was accurate, this was not merely a letter from an aggrieved citizen to a broadcaster. It was also a letter from one of that Broadcaster’s regulators seeking to have that broadcaster censor a citizen, who was both contributing to a matter of public debate and engaging in a defence of a minority of which he is a member, bona fide and without malice.

This is, to put it mildly, an unusual situation.

As I say, the difficulty here is that John Waters is not just a private citizen. He is a member of the Government-appointed Broadcasting Authority of Ireland. And as part of that appointment he has to accept certain constraints on his behaviour. Firstly, uniquely amongst all citizens, the nine members of the BAI are told to protect one constitutional right above all others.

The Broadcasting Act 2009 sets out the obligations and function of the Authority and its members in Section 25 (1) of the Act. They must ensure

(b) that the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression, are upheld,
and
(c)the provision of open and pluralistic broadcasting services.

This section sets out what are the primary duties of the Authority and each of its members. They place an obligation on all the Authority members to be act to ensure that the right to freedom of expression is “especially” upheld and that broadcasting services are “open and pluralistic”. This is actually their job.

There is a corollary of this.
The nine members of the Broadcasting Authority of Ireland must not seek to lightly restrict liberty of expression on the basis of claims of defamation untested before the courts. The inhibitions on them before seeking the silencing of debate are significantly higher than on the rest of us.

A broadcasting Regulator who is obliged to uphold the constitutional “liberty of expression” above all other democratic and Constitutional values and to act to “ensure the provision of open and pluralistic broadcasting” can choose to follow their statutory duty. Or they can contact a broadcaster and obtain the silencing of a dissenting view without testing the legitimacy of their complaint before a court.

But I can’t see any way that they can do both.

When it comes to the exercise of power, nothing speaks louder than silence.

UPDATE: John Waters resigned from the Broadcasting Authority of Ireland on the 23rd Jan 2014.

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