Since her appearance on the Saturday Night Show a fortnight ago Miss Panti, also known as Rory O’ Neill, has received legal correspondence from three members of the Iona Institute…and one from Irish Times columnist John Waters.
Solicitor Simon McGarr on his blog Tuppenceworth.ie writes
[When RTE removed Miss Panti's interview from the RTE Player] 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.
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,
(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.