Broadcasting Act 2009

49.

Right of reply.

49.— (1) In this section—

“requester” means a person who makes a request under subsection (6);

“right of reply” means the broadcast by a broadcaster of a statement prepared in accordance with a scheme;

“scheme” means a scheme under subsection (3).

(2) Subject to this section, any person whose honour or reputation has been impugned by an assertion of incorrect facts or information in a broadcast shall have a right of reply.

(3) The Authority shall prepare, within 6 months of the establishment day, following a period of public consultation, a scheme for the exercise of the right of reply.

(4) A scheme shall set out the procedures to be followed in the exercise of the right of reply.

(5) In preparing a scheme the Authority shall ensure that—

( a) a right of reply shall be broadcast—

(i) within a reasonable time period subsequent to the request for a right of reply being made, and

(ii) at a time and in a manner appropriate to the broadcast to which the request refers, and

( b) a right of reply shall—

(i) state to what extent the information contained in the broadcast under subsection (2) is incorrect or misleading, and

(ii) be limited to factual assertions necessary to rectify an incomplete or otherwise distorting assertion.

(6) A person who wishes to exercise a right of reply in accordance with a scheme shall make a request in writing addressed to the broadcaster concerned—

( a) stating that the request is made under this section,

( b) containing sufficient particulars to enable the identification by the taking of reasonable steps of the part of the broadcast which asserted incorrect facts impugning the honour or reputation of the requester, and

( c) if the requester requires the right of reply to be given in a particular form or manner (being a form or manner which is in accordance with the terms of any scheme) specifying the form or manner of the right of reply.

(7) A request for a right of reply shall be made not later than 21 days after the making of the broadcast referred to in the request, unless otherwise agreed between the requester and the broadcaster concerned.

(8) The broadcaster shall, as soon as may be but not later than 10 days after the receipt of a request under subsection (6)

( a) decide whether to grant or refuse the request, and

( b) cause notice in writing of the decision to be given to the requester.

(9) Where notice of a decision under subsection (8) is not given to the requester by the expiration of the period specified for that purpose a decision refusing to grant the request under subsection (6) shall be deemed to have been made upon such expiration by the broadcaster concerned.

(10) A broadcaster shall give due and adequate consideration to any request under subsection (6), which in the opinion of the broadcaster has been made in good faith and is not of a frivolous or vexatious nature, by a member of the public in respect of the broadcasting service provided by the broadcaster and shall keep due and proper records for a period of 2 years of all such requests and of any reply made to them or of any action taken on foot of them.

(11) A broadcaster shall, if directed by the Compliance Committee, make available for inspection by the Compliance Committee all records kept by him or her under subsection (10) .

(12) No charge shall be made for the processing of a request under subsection (6) by a broadcaster.

(13) In a defamation action the granting of a request for a right of reply under this section by a defendant in respect of a statement to which the action relates—

( a) does not constitute an express or implied admission of liability by that defendant, and

( b) is not relevant to the determination of liability in the action.

(14) In a defamation action the defendant may give evidence in mitigation of damage, that he or she granted or offered to grant a right of reply under this section to the plaintiff in respect of the statement to which the action relates, either—

( a) before the bringing of the action, or

( b) as soon as practicable thereafter, in circumstances where the action was commenced before there was an opportunity to grant or offer to grant a right of reply.

(15) In a defamation action, a defendant who intends to give evidence to which subsection (14) applies shall, at the time of the filing or delivery of the defence to the action, notify the plaintiff in writing of his or her intention to give such evidence.

(16) Evidence of the granting of a right of reply under this section by a broadcaster in respect of a statement to which the action relates is not admissible in any civil proceedings as evidence of liability of the defendant.

(17) Subject to this section, the Compliance Committee, on application to them in that behalf, in writing, by a requester, shall endeavor to within 21 days after the receipt of such an application, review a decision to refuse by a broadcaster under subsection (8) or (9) and as they consider appropriate—

( a) affirm the decision, or

( b) annul the decision and require the broadcaster concerned to broadcast the Compliance Committee’s decision including any correction of inaccurate facts or information relating to the individual concerned within 7 days of such decision being communicated to the broadcaster and at a time and in a manner corresponding to that in which the broadcast to which the request relates took place,

in accordance with this section.

(18) An application under subsection (17) shall be made to the Compliance Committee not more than 21 days after receipt of a decision to refuse under subsection (8) or (9).

(19) Where the Compliance Committee propose to investigate an application made under subsection (17) , the Compliance Committee shall afford to the broadcaster to whom the application relates (hereafter in this section referred to as the “broadcaster concerned”) an opportunity to comment on the application.

(20) As soon as may be after they decide on an application made under subsection (17) , the Compliance Committee shall send to—

( a) the person who made the application, and

( b) the broadcaster concerned,

a statement in writing of their decision, including the reasons for their decision.

(21) The Compliance Committee may reject any request for a right of reply where it is of the opinion inter alia that—

( a) the request is of a frivolous or vexatious nature or was not made in good faith,

( b) a right of reply is manifestly unnecessary owing to the minor significance of the error in the broadcast complained of,

( c) the proposed right of reply cites untrue information or assertions,

( d) the proposed right of reply is a personal opinion,

( e) the proposed right of reply is an assessment or warning against the future conduct of a person,

( f) satisfaction of the proposed right of reply would involve a punishable act,

( g) satisfaction of the proposed right of reply would be harmful or offensive,

( h) satisfaction of the proposed right of reply would render the broadcaster liable to civil law proceedings,

( i) satisfaction of the proposed right of reply would breach a broadcaster’s statutory obligation,

( j) satisfaction of the proposed right of reply would breach the terms of a broadcaster’s contract under Part 6 with the Authority,

( k) the person who was injured by the contested information has no legally justifiable actual interest in the publication of a right of reply,

( l) the original broadcast also contained a statement from the person affected and such contents are equivalent to a right of reply,

( m) an equivalent editorial correction has been made and the person affected informed,

( n) the content of the proposed right of reply would violate the rights of a third party,

( o) the matter concerned relates to reports on public sessions of the Houses of the Oireachtas or the Courts,

( p) the matter concerned relates to a party political broadcast,

( q) the matter concerned relates to a broadcast under section 3 of the Act of 1998,

( r) the broadcast of a right of reply is not in the public interest, or

( s) the application was not made within the period specified in subsection (18) .

(22) Where the Compliance Committee finds that the broadcaster has failed to comply with a decision under subsection (17) the Compliance Committee shall notify the broadcaster of those findings and give the broadcaster an opportunity to make representations in relation to the notification or remedy any non-compliance, not later than—

( a) 10 days after issue of the notification, or

( b) the end of such longer period as is agreed by the Compliance Committee with the broadcaster concerned.

(23) Where, at the end of the period referred to in subsection (22) , the Compliance Committee is of the opinion that the broadcaster concerned has not remedied its non-compliance, the Compliance Committee may recommend to the Authority, and the Authority shall follow such recommendation, that the Authority apply to the High Court for such order as may be appropriate in order to ensure compliance with a decision under subsection (17) .

(24) The High Court may, as it thinks fit, on the hearing of the application make an order—

( a) compelling compliance with a decision under subsection (17) ,

( b) varying a requirement under subsection (17) , or

( c) refusing the application.

(25) A scheme shall be—

( a) published by the Authority on a website maintained by the Authority, and

( b) carried out in accordance with its terms by the Compliance Committee.

(26) ( a) A scheme shall be laid before each House of the Oireachtas by the Minister as soon as may be after it is prepared.

( b) Either House of the Oireachtas may, by resolution passed within 21 sitting days after the day on which a scheme was laid before it in accordance with paragraph (a) , annul the scheme.

( c) The annulment under paragraph (b) of a scheme takes effect immediately on the passing of the resolution concerned but does not affect anything that was done under the scheme before the passing of the resolution.

(27) The Authority shall review and report to the Minister on the operation, effectiveness and impact of a scheme not later than 3 years from the date on which it comes into operation and every 5 years thereafter or at such time as may be requested by the Minister.

(28) A copy of a report under subsection (27) shall be laid by the Minister before each House of the Oireachtas as soon as may be after it has been made to him or her.