An Act against Atheism and Blasphemy, 1697; Massachusetts; 1759 printing, via Wikipedia
The Massachusetts Act against Blasphemy, 1697 (pictured right) amplified the common law offence of blasphemous libel. It was one of the four heads of the common law crime of libel which applied throughout the common law world, including Ireland. Section 35 of the Defamation Act, 2009 abolishes three of those four heads: the common law offences of defamatory, seditious and obscene libel. Similarly, section 73 of the Coroners and Justice Act 2009 in the UK does the same thing. However, the positions in Ireland and the UK diverge in their treatment of the fourth head, that of blasphemous libel. In the UK, the Blasphemy Act, 1697 (9 Will 3, c 35) was repealed by section 10 and Schedule 4 to the Criminal Law Act 1967, and section 79 of the Criminal Justice and Immigration Act 2008 abolished the common law offences of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, providing for an offence of blasphemy. The difference is not so great as it might appear, however, since the Racial and Religious Hatred Act 2006 made incitement to religious hatred a crime in the UK. In Ireland, the Prohibition of Incitement to Hatred Act, 1989 (also here) had already done so, and the blasphemy provisions of the Defamation Act, 2009 simply amplify this. Indeed, given that incitement to religious hatred was already a criminal offence at Irish law, it is difficult to locate the Constitutional gap relied upon by the Minister for Justice to justify the introduction of the blasphemy offence into the 2009 Act.
Be that as it may, sections 36 and 37 of the Defamation Act, 2009 now require, in essence, that the material be intentionally grossly offensive to a large number of adherents of a religion, and that it not have any redeeming value. It is an oddly drawn offence. Read the rest of this entry »
The tongue unlocked, with everything to say,
Forgets its borders and lets loose its songs;
The mind receives them and, like alchemy,
Makes gold of what was lost or shot away.
Part 5 of the Defamation Act, 2009 (also here), which came into effect on 1 January this year, controversially makes blasphemy a criminal offence. In the view of the Minister for Justice, Dermot Ahern, the Constitution’s reference to blasphemy could not be ignored. It now seems that this reference might be removed. If so, the opportunity should be taken to revise the Constitution’s free speech clause in its entirety.
I have long argued that the protection of freedom of expression in the Irish Constitution is very puny indeed and ought to be replaced at the first opportunity. I argue in today’s Irish Times that a referendum to remove the offence of blasphemy from the Constitution would provide just that opportunity:
The promised referendum to remove the reference to blasphemy from the Constitution should go further, and entirely revamp the very limited guarantee of freedom of expression … Deleting one objectionable word, rather than thoroughly revising the whole gruesome clause, would be equivalent to repairing a single broken slate on the roof of a house which needs complete refurbishment. … The freedom of expression guarantee in the Irish Constitution is an example of the wrong way to protect free speech. The forthcoming referendum should replace it with something far better suited to the needs of a modern constitutional democracy.
The full text of a possible alternative is available here. The cases referred to in the piece are:
Murphy v Independent Radio and Television Commissions [1999] 1 IR 26; [1998] 2 ILRM 360 (Supreme Court held that free speech is fundamental both for personal development and as a foundation of democracy);
Corway v Independent Newspapers 1999] 4 IR 485; [2000] 1 ILRM 426; [1999] IESC 5 (30 July 1999) (Supreme Court held that the common law crime of blasphemous libel was too uncertain to give content to the constitutional crime);
Mahon v Post Publications [2007] 3 IR 338; [2007] 2 ILRM 1; [2007] IESC 15 (29 March 2007) (Supreme Court asserted that the right of a free press to communicate information without let or restraint is intrinsic to a free and democratic society); and
Dillon v DPP[2007] IEHC 480 (4 December 2007) (High Court held that section 3 of the Vagrancy (Ireland) Act 1847 infringed constitutional protections of speech).
Minister Ahern said that the application from the Press Council of Ireland under section 44 of the Defamation Act 2009 has been examined with reference to the requirements in Schedule 2 of the Act and that he was satisfied that the application met those requirements.
These requirements involve the objectives of the Press Council, its composition, its independence, the appointment of independent directors, financial arrangements, the role and operation of the Office of Press Ombudsman and a code of standards.
Formal recognition will confer certain benefits on the Press Council. A significant benefit is that qualified privilege will attach to its reports and decisions as well as those of the Press Ombudsman. Subscription to the Press Council and adherence to the Code of Practice for Newspapers and Periodicals will strengthen the entitlement to avail of the new defence of reasonable publication in any court action [see section 26(2)(f) of the Act (also here)]. Non-members of the Press Council will be required to have in place an equivalent fairness regime or to operate an equivalent and publicised code of standards to avail of that defence.
There is more coverage here and here from the Irish Times. At a time when other countries are looking with favour on the Irish model, it heartening to see the final pieces of the Defamation Act jigsaw slotting into place.
Posted elsewhere (some of my recent posterous posts)
My posterous site is a companion to this blog: anything that catches my eye on the wild wild web that's too long for twitter but too short for a normal post here will (probably - eventually) end up over there.
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