the Irish for rights

Blasphemous rumours and constitutional amendments

Cover of Depeche Mode single 'Blasphemous Rumours' via their website; linked to the video of the songThe free speech guarantee in Article 40.6.1(i) of the Constitution is a fragile freedom, much to the inglorious discredit of Irish democracy. However, there is a slim chance that the controversy over the blasphemy provisions in Part 5 of the newly-commenced Defamation Act, 2009 might provide an opportunity to replace the current text of Article 40.6.1(i) with something rather more robust. Consequently, much more in hope than expectation, this post concludes with a suggestion for a replacement text, on which I would welcome any comments and suggestions.

But first, the context. The blasphemy provisions in the 2009 Act are provoking quite a bit of commentary in the media, both in Ireland (Sunday Independent | Sunday Tribune | Irish Times here and here | Sunday TImes) and abroad (BBC | CNN | Guardian | MSNBC | New York Daily News | Sydney Morning Herald | Washington Post). Even the Drudge Report has commented on the story; and there are more here). I particularly like the Post piece, because I’m quoted in it. More seriously, much of the coverage revolves around the publication by Atheist Ireland of 25 potentially blasphemous quotations in the hope of provoking a prosecution; and they’ve opened an online petition to challenge the blasphemy provisions of the 2009 Act. As Fiona argues here and here, it is actually rather difficult to commit the offence. Difficult perhaps, but not impossible – it’s unlikely that Atheist Ireland’s 25 quotes do so, though this poem has been found to be blasphemous, and questions have been seriously raised about this cartoon.

The Minister’s justification for the offence was that the last line of Article 40.6.1(i) of the Constitution provides that the “publication or utterance of blasphemous … matter is an offence which shall be punishable in accordance with law”. There have been some calls to amend this provision; but, according to the Sunday TImes, a spokesman for the Department of Justice said:

The minister is quite happy to have a referendum to remove the reference to blasphemy from the constitution, but doesn’t believe that should be done this year, given the other serious challenges facing the country.

The First Report of the Joint Oireachtas Committee on the Constitution (July 2008) concerned freedom of expression in Article 40.6.1(i) with a particular focus on blasphemy. As I noted at the time, the Committee that the Article is unsatisfactory and drafted in such a way that the limitations on free speech are accorded undue prominence, and recommended that it therefore be amended along the lines of European Convention on Human Rights. However, the Committee went and spoiled it all by concluding that the amendment was not immediately necessary, but should be undertaken when an appropriate opportunity presented itself.

If there is to be amendment to Article 40.6.1(i), I think it should go considerably further than removing the reference to blasphemy in the last sentence of Article 40.6.1(i), or even removing that last sentence itself. Like the Joint Oireachtas Committee, I think that the entire article should be replaced; but I think we should go even further than that. In my submission to the Committee, I argued that Article 10 should be a starting point but not the end point, and I provided an alternative text:

Everyone has the right to freedom of thought, belief, speech and expression. This right includes the freedom to seek, receive, hold and impart convictions, opinions, information and ideas of any kind in any form without interference by public authority. This right also includes the freedom of the press and other media of communication.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such necessary limits as are prescribed by law and proportionate only to the interests of national security, territorial integrity, public safety or the common good, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or the rights of others, preventing the disclosure of information entitled to a reasonable expectation of privacy or otherwise received in confidence, or maintaining the authority and impartiality of the judiciary.

Comments, please, on this suggestion.

11 Responses to “Blasphemous rumours and constitutional amendments”

  1. […] This post was mentioned on Twitter by Fiona de londras, Eoin O'Dell. Eoin O'Dell said: http://tinyurl.com/ybkr42p My new blogpost: Blasphemous rumours and constitutional amendments […]

  2. Eoin says:

    I particularly like the following subsequent sources:

    NPR (on the wonderful All Things Considered): Irish Befuddled By New Blasphemy Law

    The Independent: Blasphemy laws can only invite trouble by Philip Hensher

    The Sensuous Curmudgeon: Is This Blog Blasphemous in Ireland?

  3. Eoin says:

    Mark Humphreys has taken the 25 quotes, and added some video clips. Enjoy.

  4. CH says:

    A couple of quick questions: Why do you think that it’s a good idea to have an exhaustive list of the ways in which infringement of the right to free speech is permissible included in your draft provision? Why not just leave it at something general like the “common good” and allow the courts to take it from there? And why do you think it is permissible to curtail free speech “for the protection of… morals”? Is there a specific evil that you’re guarding against or is it a belt and braces approach? I’m not sure that covering all possible bases is desirable when drafting a constitution. It should have room to develop organically and the possibility of prohibiting”immoral” speech on constitutional grounds seems excessively restrictive to me.

  5. […] an earlier post, I suggested a wording for a complete revision of Article 40.6.1(i) of the Constitution. That makes […]

  6. Keep the first paragraph, ditch the second. Then go through the rest of the Bunreacht with a blue pencil, and do the same.

  7. Social comments and analytics for this post…

    This post was mentioned on Twitter by cearta: http://tinyurl.com/ybkr42p My new blogpost: Blasphemous rumours and constitutional amendments…

  8. […] ignorance and conscientious stupidity to an entirely new level are two stories: a new “blasphemy law” in Ireland, which makes it a crime to, well, blaspheme; and the dogged pursuit by […]

  9. […] full text of a possible alternative is available here. If you like this post, please click on this link to pass it on. Thanks! Hide […]

  10. […] the common law offences of blasphemy and blasphemous libel. On the other hand, in Ireland, the already-notorious section 36 of the Defamation Act, 2009, goes in precisely the opposite direction, […]

  11. […] is welcome, but doesn’t go far enough: the entire free speech clause should be thoroughly reformed (especially if there is to be a convention to develop a new constitution). Of course, this might […]

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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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