RTE’s BIZARRE HANDLING of the Saturday Night Show/Iona Institute libel case has inflicted untold damage on the battle to create a more open society.

Regardless of the legal niceties contained in the advice given by libel lawyers to the station, the public is left with the impression that RTÉ will fold in the face of any action that threatens to impose substantial costs upon it. That belief alone, unchallenged at present by RTÉ, is an enormous threat to free speech.

Sitting on €180m a year in unearned income from TV licence fees plus another €160m in commercial revenues, the organisation’s claim that its actions will protect taxpayers’ money is risible. The reverse is almost certainly the case.

A vastly-resourced enterprise has capitulated without firing a shot in the face of a de facto class action launched by a small modestly-resourced lobby group.

By doing so it has invited similar actions in the future, perhaps by organisations much more powerful than Iona. Plaintiffs now know that they are pushing an open door.

Consider the following hypothetical case. Suppose Joe Duffy allows a speaker on his daily phone-in Liveline show to voice deeply critical comments concerning the Labour deputies who were returned to Dáil Eireann in 2011.  Suppose that the speaker draws disturbing, arguably defamatory conclusions from the failure of that party to honour some of its election promises. Suppose that thirty or more Labour deputies take a class action against the station.

I am not suggesting for a moment that Labour deputies would ever engage in this sort of legal action against a public service broadcaster. But such a case is a real possibility.

Would the station bosses fold in the face of such an action? Would they publish a grovelling apology and pay damages and costs to all thirty plaintiffs?  And, if they did, then where does that leave freedom of expression and the legal protection traditionally afforded under Anglo-Saxon law to the sincere articulation of honestly held opinions on matters of public interest?

“But fight you must”

RTÉ’s managing director of television Glen Killane is a former Head of Sport. He must be aware that there is a time in every man’s life when he must stand and fight. Sometimes that time comes when you are wounded and bleeding, let down by some of those around you, fighting with one hand tied behind your back. Sometimes it is when solicitors’ letters are pouring through your letterbox. But fight you must.

Killane got a hospital pass from The Saturday Night Show. Presenter Brendan O’Connor literally invited his guest Rory O’Neill to name names after he (O’Neill) made his claims about alleged homophobia in the debate on gay marriage.

Only a full hearing of the case could determine how O’Neill’s subsequent response might be interpreted by any right-thinking and reasonable viewer. What was the ordinary meaning of his observations? Was O’Neill making what purported to be a series of statements of fact about those whom he named? If so, the onus would be on RTÉ to prove the veracity of such statements.

The RTÉ lawyers would also have raised questions about how such a libel action might be fought. O’Neill is an intelligent and persuasive man but how might he acquit himself before a jury as the main witness for the defence? Would O’Neill’s professional persona as Miss Panti, performing his cabaret act in a Capel Street club, affect the weight which the jury attached to his evidence?

“Our unreformed libel laws”

The costs involved in resolving such litigation would clearly be substantial, as is always the case under our unreformed libel laws.

Lawyers advising RTÉ will have tried to estimate such costs in order to help Killane reach a decision. RTÉ, so far, has not published its legal advice.

RTÉ does say that that its counsel was of the view “that the legal position was far from clear”.

RTÉ further states that in general “RTÉ should not knowingly progress to defend an action when it is advised externally and internally that such a defence is unlikely to succeed before a jury”.

To an extent, one might sympathise with RTÉ.  Proving that Person A or Person B is a homophobe is not an easy matter. For a start, what exactly is a homophobe?

Clearly a group of skinheads sporting prison tattoos and standing outside a Moscow nightclub, waiting to bash up gay revellers as they leave, might fairly be described as homophobic.

“What is a homophobe?”

But what is one to make of a writer or campaigner who wants to limit the proper expression of his/her sexuality by a homosexual person, because the active expression of that sexuality with another consenting adult might, in the opinion of the writer or campaigner, affect the common good?

Is that person a homophobe? Perhaps not. But that person clearly wants the homosexual to suppress part of his/her sexuality indefinitely so that another person may reside in a society where the writer or campaigner feels safer or better protected.

What of a writer or campaigner who wants to deprive a homosexual of the legal rights normally accruing to married persons, again in order to protect their own interpretation of the ‘common good’?

Is that person a homophobe? Or is the import of what they are saying homophobic in effect? After all, they want to deprive a fellow citizen of a right afforded to others in order to promote a personal, idiosyncratic view of what constitutes a good society.

“The argument would have moved far from the narrow legal issues”

Clearly if RTÉ had chosen to stand its ground in this case the net argument would move far beyond the narrow legal issue of what the words uttered by O’Neill meant and what effect those words had on the good name and reputation of those whom he named. The argument would become political.

But why not? The Iona Institute was created for a political purpose. It wants to act as a moral arbiter of what is good and what is bad. It wants to tell other people how to think and how to behave.  It campaigns publicly so that others will place limits on your freedom in order to fashion a society in its (Iona’s) own image.

The RTÉ/Iona case would almost certainly have had to go before not just the High Court, but the Supreme Court and the European Courts as well. And so it should.

RTÉ had the resources to pursue this matter to a conclusion. The reason we give it €180m a year in free money is because it is charged with acting as a public service broadcaster. Part of its duty involves the promotion of robust debate on contentious issues. That debate cannot be abrogated because one or more of the willing participants in that debate purports to be emotionally and otherwise wounded by the inevitable verbal exchanges that must ensue.

“The Jurgen Klinsmann effect”

As former Head of Sport Killane will recall a certain Jurgen Klinsmann. A talented German footballer he liked nothing better than to roll on the pitch, holding his leg and looking for sympathy from the referee.

In the 1990 World Cup final the Argentine defender Pedro Monzon tried to make a spectacular tackle on Klinsmann. No contact was made but this did not prevent Klinsmann from launching into a graceful athletic dive adding in a spasmic jerk and a couple of forward rolls for good measure.

Klinsmann’s actions on that day became part of football legend: years later schoolboys across the world were still trying to emulate his technique. Monzon, however, got sent off.

Image Conor Horgan/Panti Bliss via Facebook

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