the Irish for rights

Cowengate and Freedom of Expression

No image, to represent the attempt to censor the Cowen caricatures

Suzy must get the prize for popularising the best political coinage of the day, for – so far as I can see – it is she who has run with the name “Cowengate” for the sturm und drang surrounding satirical portraits of the Taoiseach (Prime Minister), Brian Cowen. In a piece of guerrilla artistry as ingenious as the coinage Suzy has popularised, caricatures of Mr Cowen were anonymously hung on the walls of the National Gallery of Ireland and the Royal Hibernian Academy. Once they were discovered, they were removed, but not before they had garnered sufficient publicity for RTÉ (Raidio Telefís Éireann, the national state broadcaster) to broadcast a story about them on the flagship 9:00pm television news programme.

It has been the occasion for lots of bad puns and some embarrassment on the part of the Taoiseach, the Gallery and the Academy, but in the ordinary course of things, the story should have blown over after about 48hours. However, things then took two turns for the worse. First, RTÉ apologised to Mr Cowen and his family or for any disrespect shown to the office of Taoiseach by their broadcast. Second, when the radio station Today fm covered the story, the Gardaí (the police) arrived at the station asking that an email with the artist’s details be handed over (.wav). Leaving the obvious jokes aside (because they have all been done better elsewhere), these two quite sinister developments raise some profound questions about freedom of expression in Ireland.

The first question relates to the artist’s freedom of expression. Is it illegal to paint nude caricatures of the Taoiseach, or is this protected by the constitutional right to freedom of expression? I just don’t see how it can amount to incitement to hatred against a group of persons [update: or to an obscene representation provocative of a breach of the peace]; nor are the censorship regimes for films or publications engaged. All that’s left is the (still extant) common law crime of obscene libel, which criminalises publication of matter with a tendency to deprave and corrupt (R v Hicklin (1868) LR 3 QB 360). [I leave aside questions of civil defamation or other similar claims, as they would not implicate criminal investigation and/or prosecution; update: though the ugly crime of seditious libel might raise its ugly head]. The last time the criminal libel ‘tendency to deprave or corrupt’ test was implicated in an Irish case was 1959 (see AG v Simpson (1959) 93 ILTR 33, discussed in Gerard Whelan and Carolyn Swift’s palpably angry Spiked: Church-State Intrigue and the Rose Tattoo (Dublin: New Ireland Books, 2002) (summary review here); it concerned a production of the wonderful Tennessee Williams play The Rose Tattoo featuring Anna Manahan); its vagueness must be seriously open to constitutional challenge; and anyway, it is hard to see how the Cowen caricatures satisfy even this nebulous standard. In the circumstances, I find it difficult to see what crime the artist committed.

However, even if one of these crimes is implicated, I can’t see how it could survive constitutional challenge: artistic expression is at the heart of the right to communicate in Article 40.3 whilst political expression is at the heart of freedom of speech in Article 60.6.1(i) (as these articles are explained by Barrington J in Murphy v IRTC [1999] 1 IR 120, [1998] 2 ILRM 360 (SC)). The caricatures of the Taoiseach are not only exercises in artistic expression, they are also pre-eminent examples of satirical political dissent. Political speech – in particular when it is unpopular, even in dissent – is at the heart of the rights protected by Article 40.6.1(i) (and by Article 10 of the ECHR), and the subversive lampooning of powerful political figures as a means of expressing political dissent is part of a tradition that goes back at least as far as Aristophanes and reaches to Scrap Saturday, Spitting Image and The Daily Show (to say nothing of Martyn Turner‘s wonderful political cartoons), even where it is anonymously expressed.

The second question relates to RTÉ’s freedom of expression. Was it illegal to broadcast the story, or is it protected by the constitutional rights to freedom of expression and freedom of the press? If there was no legal problem with painting the Cowen caricatures in the first place, then there would be no legal problem with broadcasting about them. And even if there were, not only could RTÉ rely on the arguments about 40.3 and 40.6.1(i) already made, but they could also invoke the protections for freedom of the press in the latter article. As a consequence, RTÉ could easily have chosen to stand over their broadcast. But they chose not to, and they even broadcast an apology. There seem to be no legal reasons for this change of mind. In the end, it would seem that it was considerations of taste, appropriateness and editorial judgment rather than of legal constraint which drove RTÉ’s change of mind.

The third question relates to Today fm’s sources. Whether journalists have a privilege at Irish law to decline to reveal their sources has not yet been decided at Irish law. It would be ridiculous if the matter were to be tested on these facts. The fourth question relates to the artist’s use of the Gallery and the Academy. Was it illegal to hang the paintings there, or is this too protected by the constitution? Driving nails into walls in the Gallery and the Academy may very well constitute criminal damage (though the damage from a single nail in each case may be sufficiently trivial that law ought not to concern itself with it). [Update: Entering the Gallery and the Academy for reasons other than viewing their objets d’art could constitute a criminal trespass of some sort (though, again, each trespass may be too trivial); further update: and any civil trespass, like civil defamation (above) would not implicate criminal investigation and/or prosecution]. However, even this criminal damage [update: or trespass] may be constitutionally protected, if the gallery and the academy constitute public fora dedicated to expressive activities and thus worthy of constitutional protection. This doctrine has not been considered as a matter of Irish constitutional law, but this affair may yet provide the crucible in which it may be tested.

Cowengate has provoked a storm of controversy, but the high emotionalism provoked by the caricatures has aroused entirely misguided state action. They were no more than a critique of the Taoiseach, and though plainly emotive, they are nevertheless classical political speech, and thus deserving of the highest constitutional protection.

Note 1: As to the coinage of “Cowengate”, see Gerard‘s comment below, and see also Cerandor. The more popular, but less inspired, soubriquet – especially on Twitter, as Tom (also here) points out in the comments below – seems to be ‘picturegate‘, though even there you’ll also find ‘cowengate‘, ‘cowangate‘ and ‘cowngate‘.

Note 2: I’ve updated the links here, corrected the typos, and tidied up the text. I’ve moved the “other coverage” links to a separate post: Cowengate: Pictures at an exhibition (below), and it has been supplemented by Cowengate follow-on: a question, and more pictures at the exhibitions, Cowengate and seditious libel, and Cowengate: no use crying over spilt milk. There will be no further amendments here – the text of this post is now closed.

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37 Responses to “Cowengate and Freedom of Expression”

  1. Holemaster says:

    Very worrying development indeed. Are we witnessing the consequences of a government in office for so long they think they are above the law?

  2. Tom Raftery says:

    Hey Eoin,

    great post as always – 2 things in your links to public fora examples “(here, here, here)”, are you perhaps missing a couple of links? and secod, you haven’t mentioned at all the extensive coverage this has received on Twitter (see http://search.twitter.com/search?q=picturegate for an updating search)

  3. […] Eoin O’Dell, a senior lecturer at the TCD School of Law summarises the legal aspects of Cowangate.The long and the short of it is that the only thing that the artist could possibly be […]

  4. Eoin says:

    Thanks for the comments.

    I agree with Holemaster that this episode is an example of governmental hubris, the very thing that the caricatures are satirising – the over-reaction has proved their verisimilitude.

    I’m glad to see that Irish developments still make it as far as Spain, Tom. As for Twitter, I’ve put that link in early in the post, and I’ve re-edited the public fora links (I moved them to the phrase “public fora” but forgot to delete their earlier draft home). I write these posts so rapidly that this kind of editing glitch is very common; I usually tidy them up pretty quickly; and I’m always glad when a sharp-eyed reader points them out to me. Now, have a look. They’re gone!

  5. Heres the text… ” Often caught with his pants down by the economy, the opposition and the North of Ireland Brian Cowen has been captured on canvas with his pants in his hand. …

  6. TJ McIntyre says:

    “I find it difficult to see what crime the artist committed” – quite a charitable comment in the circumstances. Personally I’d have been rather more emphatic that there was no possible question of the paintings constituting either incitement to hatred or obscenity – the fact that an investigation was launched on those grounds shows an astonishing ignorance of the law on the part of the Gardaí. It also demonstrates one danger sometimes overlooked by lawyers – while any such charges would be laughed out of court, matters don’t have to get that far to have a harmful effect. The fact that these vague offences exist in the first place creates the basis for artists to be intimidated, property seized and journalists questioned – all in order to silence speech critical of the government.

  7. Thanks to your scholarly research, I have made #picturegate a third level final exam question in a fourth year Mass Communications module that I teach. The question includes a caricature and the exam will be filed in the National Digital Learning Repository of Ireland.

  8. Eoin says:

    As always, TJ, you are absolutely right. I couldn’t agree more. And I wish I’d said in my post what you said in the comment.

    As for the thoughts of influencing exams somewhere other than TCD, I”m sure my students and yours, Bernie, could form a support group. More seriously, I approve of the NDLR deposit. Please send me the link when it’s up.

  9. […] Cowengate and Freedom of Expression Suzy must get the prize for the best political coinage of the day, for – so far as I can see – it […]

  10. […] Maman Poulet Cearta.ie – Cowengate and freedom of expression: a legal analysis Irish Election – “The powers that be […]

  11. […] Cearta.ie offers a legal opinion of some of the issues in the story, and at the bottom of the post has a list to what must be […]

  12. Can I claim credit for ‘cowengate’? See first response to Suzy’s blog post titled RTE apologise for disrespect to Office of Taoiseach


    That said, the punning cowengate has been floating around pretty much since the day he became taoiseach (certainly oin usenet) looking for a scandal to attach itself to.

  13. […] over at Cearta.ie has an excellent rundown of the law here, and it’s pretty clear from what he says that there was no justification for Garda […]

  14. Eoin says:

    Hi Gerard,

    Of course you can. I’ve amended the post to spread the praise around. This is such a perfect scandal for the title (the only way it could have been better would have been if a portrait had also been hung in the foyer of the Gate Theatre!).


  15. […] are legislators so loath to repeal criminal libel provisions? Cowengate and Freedom of Expression » Mar 26 […]

  16. […] O’Dell provides a legal analysis HERE […]

  17. This is a useful explanation of the legal background, and badly needed. I agree that the Guards seem to be woefully lacking in knowledge of the law, which I suppose is why they rely so much on the all-purpose public order offence. It saves having to keep two ideas in their heads at the same time.

    You’ll probably think I’m being an old grouch, but I’m afraid I dislike the appendage “-gate” as much as I dislike “-aholic” and I haven’t used it in any of my posts on the subject, even though Cowengate seems to be the preferred search term. There was a Watergate and there is alcohol, but there’s no such thing as cowengate, just as there’s no such thing as workahol.

    But that’s just me being me. Pay no attention.

  18. Abbott_Of_Iona says:


    Why do you not finish with the point and call it what it is.


    Is that too difficult for a lawyer to tackle.

    Is storm and longing to much for your enlightened mind?

    Are you too comfortable in your world with the Fascism that this is?

    Will it take more that the looting of the Treasury to wake you up?

    How much more of the scarce resources of the State will be used to support bankrupt banks in favor of the Fianna Fail Fascist agenda?

    How many more times will Fianna Fail tell the people to shut up and mind their own business?

    How long will it take the lawyers who know how to stop this Fascism stop it.

    Or are they just happy to suck the tit of the Fascist Fianna Fail State?

  19. Eoin says:

    Thanks, Bock, for the comment, especially the reference to public order – as a consequence, I updated the post with the clause about breach of the peace, linking to the 1994 legislation on public order. And I rather like your grouchy points about the overly easy transfer of suffixes like ‘gate’ – but you have to admit, ‘Cowengate’ is just too good a coinage to miss.

    As for Abbott, I have no problem whatsoever describing as ‘fascism’ the denial of individual rights in favour of national collective interest as defined by one party. However, one year, in my Freedom of Expression class, I described state trampling on freedom of expression as ‘fascist’ or ‘fascism’ so often that I became conscious of depriving the words of their pejorative force. The lesson of Goodwin’s law in a related context is that we must be careful not to attach such emotive labels to every disagreeable state action, because such overuse diminishes their impact. So, I’ve probably gone to the other extreme of not using them even where they are merited. But I agree with you, using state power to threaten political satire is fascist.

  20. […] adding one, there might be some merit to your point. As the National Gallery is a public space (as argued by Dr Eoin O’Dell), rather than a salon from which the unwashed must be barred from at all costs, your outrage is […]

  21. […] small sample of related blog and media coverage: Eoin O’Dell, Suzy Byrne, Tuppenceworth, Bock, Damien Mulley, Alexia Golez, Twenty Major, Caricatures Ireland, […]

  22. Loo Laa says:

    Sad, sorry and scary. Fianna Fáil are now made, without question, a fascist party of themselves.

  23. […] of all the Picturegate coverage from which you can find out about the reactions online as well as a legal analysis of the likely court […]

  24. I was advised by a lawyer friend this evening that the unauthorised donation of a picture to a gallery might constitute trespass. Do you have a view on this?

  25. Eoin says:

    Yeah, Bock; thanks for this. Trespass occurred to me after I had closed the post. However, it was too important an issue to leave out, so I amended the post with flagged updates, and an additional link to criminal trespass legislation. So, my view on trespass is in the post. Briefly: if it is a civil trespass, that is a matter between the gallery and the artist, but not a matter for the criminal law necessitating the Guards. If it is a criminal trespass, then it raises the same issues as criminal damage: is it too trivial? if not, is there a constitutional freedom of expression public forum protection? In other words, trespass raises no issues of structure or principle that differ from matters such as obscene libel or criminal damage.

  26. […] that I have strongly defended anonymous speech on this blog (here and here), Sarah Hinchliff Pearons’s blogpost Accountability and Anonymity: Rethinking the Value of […]

  27. […] issues are concisely summarised here and the spread of people writing about the matter can be seen here). I call them “modest, but concerning” because, while no perceived/actual attack on […]

  28. John Waters might have overstepped himself in calling Conor a criminal.

  29. I discovered the banned RTE report is still online at RTE’s site:
    Mark Humphrys

  30. Eoin says:

    Hi Mark,

    Thanks for this. I’ve included the link in the post tracked back below.


  31. […] Cowengate controversy certainly caught the imagination this week; and, by way of update to my earlier posts […]

  32. […] national broadcaster has conveniently decided to ignore. Meanwhile, Eoin of cearta.ie has written a thought provoking post on the implications of Cowengate on freedom of expression in Ireland, proving that behind the […]

  33. […] is not the only place where nude pictures of politicians have been appearing in public. Via Cearta.ie, I became aware that the issue has also surfaced in Ireland, albeit in a rather different way. […]

  34. […] wonder whether anyone has suggested that Conor Casby’s caricatures of Cowen constitute a seditious libel? It’s not that fanciful a question: the common law crime still […]

  35. […] my first post on this issue, I argued that that the caricatures were protected political speech within the remit […]

  36. Lawyers says:

    This is very interesting a colleague of mine told me of this situation and there be no problem as there is rights to freedom of expression , the news channel in Ireland should not be have to apologise but then is it run by the government ?

    it completely different in australia

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Me in a hatHi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.

“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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