cearta.ie

the Irish for rights

Any Attempt to Prosecute Irish Publication of Charlie Hebdo Mohammed Cartoons is Doomed to Fail

I wrote the following as an OpEd for the University Times:

Charia Hedbo via Charlie HebdoThe attack on Charlie Hebdo, and the murders of ten journalists and two policemen, are not only a tragedy for the victims, their families, and their colleagues, but also an assault upon freedom of expression and the fabric of western democracy. The only appropriate response is to refuse to give in to such an outrage, and instead to support and exercise the fundamental freedoms for which the victims gave their lives.

It is therefore troubling that Dr Ali Selim – admittedly in response to a line of leading questions from a radio journalist – should threaten legal action against any Irish media outlet which chooses to publish cartoons depicting the Prophet Mohammed which had been published by Charlie Hebdo. I assume that he has in mind the offence of blasphemy contained in section 36 of the Defamation Act, 2009. It was included in that Act to give effect to the constitutional requirement that the publication of “blasphemous … matter” should be a criminal offence. However, section 36 is very narrowly drawn, and its terms would not be satisfied by the publication of a Charlie Hebdo cartoon to illustrate a story on the attack on the magazine.

Under section 36, there are three main issues to be considered. First, it would be necessary to establish that the publication of the cartoons is grossly abusive or insulting in relation to matters held sacred by Islam. Since many Muslims believe that visual depictions of the Prophet should be prohibited, satirical cartoons of the Prophet are very likely to meet that standard.

Second, it would be necessary to establish that the publisher “intends” to cause outrage among a substantial number of Muslims. This would be hard to establish where the intention behind the publication is to illustrate a major news item.

Third, even if that is established, it is a defence for the publisher to prove that “a reasonable person would find genuine literary, artistic, political, scientific, or academic value” in the publication, a rubric which would be easily satisfied by a major news story.

Finally, even if the terms of the offence are made out, the question would arise as to how the offence could be prosecuted. Dr Selim might make a complaint to the Gardaí and, even if they investigate, it would be a matter for the Director of Public Prosecutions (DPP) whether to prosecute or not. And although, at common law, any individual has the right to initiate a private criminal prosecution, the DPP can decide to discontinue it.

That there is some superficial plausibility to Dr Selim’s misconceived claim demonstrates just how unwise the blasphemy provisions of section 36 the Defamation Act, 2009 actually are. A referendum to remove the reference to blasphemy from the Constitution is promised for this year. If it succeeds, section 36 should be immediately repealed. Thereafter, we should be able to discuss and debate issues of faith and politics, rather than seek to have the law come down on one side or the other of such intractable issues. That is what democracy is all about. And, in that way, we honour the memories of those who died in the attack on Charlie Hebdo.

#JeSuisCharlie #NousSommesTousCharlie

2 Responses to “Any Attempt to Prosecute Irish Publication of Charlie Hebdo Mohammed Cartoons is Doomed to Fail”

  1. […] in Paris against terrorism in the aftermath of the murderous attack on Charlie Hebdo. In Ireland, unfounded claims that the publication of Charlie Hebdo cartoons of the Prophet Mohammed would amount to blasphemy at […]

  2. […] disciplines of the humanities and social sciences to respond to the social ruptures that followed the January 7 attack on the Charlie Hebdo newspaper in Paris. There can be no greater irony than the censorship of a conference devoted to censorship. […]

Leave a Reply

 

Welcome

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.

Academic links
Academia.edu
ORCID

Subscribe

  • RSS Feed
  • RSS Feed
  • Subscribe via Email
  • Twitter
  • LinkedIn

Archives by month

Categories by topic

My recent tweets

Blogroll (or, really, a non-blogroll)

What I'd like for here is a simple widget that takes the list of feeds from my existing RSS reader and displays it here as a blogroll. Nothing fancy. I'd love a recommendation, if you have one.

I had built a blogroll here on my Google Reader RSS subscriptions. Google Reader produced a line of html for each RSS subscription category, each of which I pasted here. So I had a list of my subscriptions as my blogroll, organised by category, which updated whenever I edited Google Reader. Easy peasy. However, with the sad and unnecessary demise of that product, so also went this blogroll. Please take a moment to mourn Google Reader. If there's an RSS reader which provides a line of html for the list of subscriptions, or for each RSS subscription category as Google Reader did, I'd happily use that. So, as I've already begged, I'd love a recommendation, if you have one.

Meanwhile, please bear with me until I find a new RSS+Blogroll solution

Thanks,

Eoin.

Licence

Creative Commons License

This blog is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. I am happy for you to reuse and adapt my content, provided that you attribute it to me, and do not use it commercially. Thanks. Eoin

Credit where it’s due

The image in the banner above is a detail from a photograph of the front of Trinity College Dublin night taken by Melanie May.

Others whose technical advice and help have proven invaluable in keeping this show on the road include Dermot Frost, Karlin Lillington, Daithí Mac Síthigh, and Antoin Ó Lachtnáin.

Thanks to Blacknight for hosting.