Month: January 2010

The 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.

Writing in today’s Irish Times, Andrew O’Rorke, Chairman of Hayes Solicitors who are that paper’s legal advisors, welcomes the recent commencement of the Defamation Act, 2009 (much as the Editor did at the time of its enactment):

Defamation Act will facilitate more sensible, efficient justice

… The impetus to change the law on defamation originated in 1987. … Government has always been suspicious of media’s perception of its own importance to society. It is an uneasy relationship, which has probably deteriorated in recent times with the increasing examination and analysis of executive action and conduct. There was a marked reluctance to proceed with new legislation, as is evidenced by the almost 20-year gap in finally introducing the Bill in 2006 and the delays since then, …

Freedom of expression is a fundamental right, a cornerstone of any democratic, tolerant society, and when sought to be exercised by journalists it should be for the benefit of and on behalf of that same society and the public’s right to know. It is a precious right, but not one that can be exercised in defiance of others’ rights and certainly not if it vilifies another person or paints an untrue picture of that person, their character or actions, which is the essence of defamation. … It is right that healthy tension should divide the two, representing the democratic choice of the people and the resultant scrutiny of the exercise of power. Defamation law to some extent mirrors that contrast, as is evidenced by the contributions to the Oireachtas debates on the passage of the legislation.

The 2009 Act modernises the law and puts it on a par with other civil legislation governing the conduct of litigation. There are no revolutionary changes in its provisions .. To some extent it is lawyers’ law incorporating amendments which will facilitate all sides in the better and fairer conduct of cases. … These modest changes should lead to more efficient, sensible procedures in the interests of the parties and smoother administration of justice.

Read all about it here.

The above image is the front page of the first ever Times newspaper, first published as the Universal Daily Register on 1 January 1785. From today’s Times Online:

The Times celebrates its 225th birthday

How a former bankrupt with a big idea started a feeble rumbling that became The Thunderer

On this day 225 years ago the very first issue of a newspaper that would soon be renamed The Times appeared on the streets of London. … its beginnings were, to put it mildly, inauspicious … Yet the paper did survive, and prosper, thanks in part to the energy and vision of its creator, John Walter, a former coal merchant, entrepreneur and Lloyd’s underwriter who had declared himself bankrupt after he was ruined by a combination of the American War of Independence and a Jamaican hurricane. …

In 1789 he was put on trial for libelling the Duke of Clarence and the Duke of Cumberland. He refused to reveal his sources, and was sentenced to a year in Newgate Prison, fined £50 and ordered to stand in the pillory at Charing Cross for an hour. This last part of the sentence was lifted, although editors of The Times have occasionally been pilloried since. Once his sentence was completed, he started another, following a successful libel action by the Prince of Wales.

Image: Two clinking glasses of champagne.
Caption: A new year’s resolution … is something that goes in one year and out the other.

Happy new year!