Category: Blasphemy

Blasphemy is in the news again; it should be removed from the Constitution, as the Constitutional Convention recommended

Stephen Fry (via Flickr)The Irish Independent reports that the Gardaí (the Irish police) have launched a blasphemy probe into comments made by Stephen Fry (pictured left) on the television show The Meaning of Life:

Gardaí have launched an investigation after a TV viewer claimed comments made by Stephen Fry on an RTE show were blasphemous. Independent.ie can reveal that a member of the public reported the allegation to Ennis garda Station following a broadcast of ‘The Meaning of Life’, hosted by Gay Byrne, in February 2015.

The story has been picked up by the media, in Ireland and abroad – including the BBC, CBS, the [UK] Independent, the Irish Times, RTE, the Mail online, The Journal.ie the Sunday Times (sub req’d), the Observer, the Sunday Telegraph, and the Sydney Morning Herald.

The crime of blasphemy is provided for in section 36 of the Defamation Act, 2009 (also here). Subsection (1) provides that a “person who publishes or utters blasphemous matter” shall be guilty of an offence; anyone guilty of the offence is liable to a fine not exceeding €25,000.

Subsection (2) provides a threefold definition of when a person publishes or utters blasphemous matter. First, the matter in question must be “grossly abusive or insulting in relation to matters held sacred” by a religion. Second, it must cause “outrage among a substantial number of the adherents of that religion”. And, third, the person who published or uttered the blasphemous matter must intend to cause such outrage. I’m not sure that any, let alone all, of these three elements were made out by Fry’s interview. An articulate challenge to God is not gross abuse or insult to a religion; controversy is not outrage; and candidly defending atheism is not intentionally causing outrage.

However, even Fry’s if comments do meet these criteria, subsection (3) provides that it is a defence to prove “that a reasonable person would find genuine literary, artistic, political, scientific, or academic value” in the relevant matter. I think that Fry’s interview would easily meet that standard; just as I thought that an Irish publication of the Charlie Hebdo cartoons of the Prophet Mohammed would too. As Atheist Ireland told the Sunday Times (sub req’d), the Garda investigation “highlights a silly, silencing and dangerous law”.

But it should not have come to this. Freedom of expression is protected by Article 40.6.1(i) of the Constitution, and the last sentence of that paragraph provides that the publication or utterance of blasphemous matter is an offence punishable by law. In Corway v Independent Newspapers [1999] 4 IR 485, [2000] 1 ILRM 426, [1999] IESC 5 (30 July 1999) (noted here), the Supreme Court held that there was no clear statutory definition of blasphemy to give effect to this provision. Section 36 was enacted to fill that legislative gap. On Monday 27 January 2014, the Constitutional Convention published its Sixth Report, recommending the removal of the offence of blasphemy from the Constitution. But the last government kicked the issue to touch; and the current government’s most recent Legislation Programme (pdf p17) says only that “preliminary work has commenced” on a Bill to provide for a referendum on removing the crime of blasphemy from the Constitution. I contributed to the deliberations of the Constitutional Convention that led to this recommendation, and I am disappointed that it has not been implemented.

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The Department of Justice is conducting a review of the Defamation Act 2009

DoJEDublin (element of Wikipedia photo)The Tánaiste and Minister for Justice and Equality has announced a review of the operation of the Defamation Act 2009 (also here), and is now inviting contributions and submissions by 31 December 2016. This is excellent news.

According to the announcement on the Department’s website, the aim of the review is:

– to promote an exchange of views and experiences regarding the operation in practice of the changes made by the 2009 Act,

– to review recent reforms of defamation law in other relevant jurisdictions,

– to examine whether Irish defamation law, and in particular the Defamation Act 2009, remains appropriate and effective for securing its objectives: including in the light of any relevant developments since 2009,

– to explore and weigh the arguments (and evidence) for and against any proposed changes in Irish defamation law intended to better respond to its objectives, and

– to publish the outcomes of the review, with recommendations on appropriate follow-up measures.

Interestingly, the review excludes the blasphemy provisions of the Act (sections 36 and 37), because the issue will be the subject of a constitutional referendum, as provided in the Programme for a Partnership Government. Moreover, the review will take into account any relevant recommendations of the recent Report of the Law Reform Commission on Harmful Communications and Digital Safety.

The Press Council of Ireland welcomed the review and confirmed that it will be making a submission, as has NewsBrands Ireland, the representative body for national newspapers. Similarly, the NUJ told the Irish Times that the “review should be seen as a welcome step for all citizens. It must be a review aimed at enhancing freedom of expression rather than simply a means of reducing defamation costs”. Shane Phelan, in the Irish Independent, also welcomed the

… long-overdue review of Defamation Act, amid continuing concern the size of libel awards in Ireland are having a chilling effect on the media’s role as a watchdog for the public.

This is not the first time that an INM title has argued that the 2009 Act has brought about only limited changes. NewsBrands regularly make a similar point. Both arguments are bolstered by reference to the €1,250,000 damages award in Leech v Independent Newspapers [2014] IESC 79 (19 December 2014). However, although libel damages are indeed still high, this focus is misconceived. That case was decided on the basis of the law as it applied before the Defamation Act 2009, which introduced a whole range of reforms to meet the concerns expressed by INM and NewsBrands. Their arguments would be stronger if they focussed on the reality of the application of the Act and not on an objectionable outcome produced by the unreformed pre-Act common law.

The review is indeed long-overdue, and much to be welcomed. But arguments against the pre-Act law by those who are advocating for further reform do their case no favours. Instead, I hope that the submissions make strong arguments in favour of coherent and effective reform of our libel laws.

Some forthcoming legislation on the administration of justice, cybercrime, education, intellectual property, and privacy

Government Buildings by night, via Wikipedia

Government Buildings,
Merrion Square, Dublin.
Image via wikipedia
Government Chief Whip Regina Doherty has announced the Government’s Legislation Programme for the Autumn Session 2016 (pdf). It is a considerable update of the programme published last June (pdf) when the government came into office.

The June programme had the feel of a holding document, published to get a new government to the Summer Recess. This programme has a far more substantial feel about, published to demonstrate the government’s confidence in its capacity to promote and enact legislation.

After the publication of the June programme, I examined proposed legislation from the Department of Education and Skills (here; and see also here), the Department of Jobs, Enterprise and Innovation (here; and see also here and here), and the Department of Justice and Equality (here and here). Under those headings, very little has changed. But there are some notable additions, not least of which is the Interception of Postal Packets and Telecommunications Messages (Regulation) (Amendment) Bill. All we are told is that work is underway on a Bill to “amend various pieces of legislation in respect of electronic communications”. There is no further explanation. This is probably the Bill to provide for further covert surveillance of electronic communications promised by the Minister earlier this Summer. It is also likely to cover incoming requests from overseas to access to data held in Ireland. It may also include preparatory work for the response to the investigations being carried out by retired Chief Justice John Murray and retired Supreme Court judge Nial Fennelly. However, at present, this is just speculation, so we shall have to wait and see what the Department has in mind.

As to the administration of justice, priority legislation to be published by the Department of Justice and Equality this session includes a Bill to make provision for periodic payment orders to replace lump sum damages, and a (hastily-promoted?) Bill to establish the long-awaited Judicial Council. Indeed, that Bill is expected to undergo pre-legislative scrutiny this session, as is a Bill to replace the Judicial Appointments Advisory Board with a new Judicial Appointment Commission – indeed, the cabinet agreed yesterday to bring forward the heads of such a Bill by November. All of these developments are very welcome – provided that the Appointments Bill permits legal academics to apply for appointment to be bench, especially at appellate level. It would not be difficult to draft the necessary legislative provisions, and there is no reason in principle not to do so.

As to cybercrime, first, the busy Department of Justice and Equality is promoting the Criminal Justice (Offences Relating to Information Systems) Bill 2016, to implement Directive 2013/40/EU on attacks against information systems. It is on the Dáil Order Paper, awaiting Second Stage. Second, in the ‘I’ll believe it when (if) I see it’ category is the long-promised and almost long-forgotten Cybercrime Bill to give effect to the Council of Europe Convention on Cybercrime 2001. Yes, you read that right, it’s a 2001 Convention. It is 15 years old, which is a lifetime online.

As to education, legislation envisaged at some stage from the Department of Education, but probably not in this session, includes the Higher Education (Reform) Bill and the longer-threatened Universities (Amendment) Bill (critiqued here, here, here, and here). And the Technological Universities Bill 2015 remains on the Dáil Order Paper, awaiting Committee stage.

As to intellectual property, pre-legislative scrutiny is expected shortly on the Knowledge Development Box (Certification of Inventions) Bill. Heads of a Bill to amend Article 29 of the Constitution to recognise the Agreement on a Unified Patent Court were approved on 23 July 2014, though, in the light of Brexit, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Jobs, Enterprise and Innovation to the Oireachtas. Finally, the Copyright and Related Rights (Amendment) (Miscellaneous Provisions) Bill has been “referred to committee” pre-legislative scrutiny. This is presumably the Joint Committee on Jobs, Enterprise and Innovation. However, the Bill is not in the pre-legislative scrutiny list for this session, so we probably won’t see it in committee before Christmas.

As to privacy, the most important piece of legislation mentioned in the Programme is the Data Protection Bill, to transpose the EU Directive 2016/680 and give full effect to the General Data Protection Regulation (Regulation 2016/679). Heads are expected before the end of 2016 (but I’m not holding my breath). A Data Sharing and Governance Bill will be published and sent for pre-legislative scrutiny, to mandate and facilitate lawful data-sharing and data-linking for all public bodies, and a Health Information and Patient Safety Bill go further in the context of health information. In both cases, the drafting will be tricky, not least because the Bills will have to be compliant with the decision of the Court of Justice of the European Union in Case C?201/14 Bara. The Criminal Records Information System Bill and the Passenger Name Record Bill implement EU obligations. However, in the case of the latter, since there is a challenge before the CJEU in respect of a related measure, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Justice and Equality to the Oireachtas.

Finally, it is heartening to see that work has commenced on a Bill to remove blasphemy from the Constitution, and interesting to see active proposals to establish an Electoral Commission and to amend the transfer of records in the National Archives from 30 years to 20 years.

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The university should be a safe space for the life of the mind – says Salman Rushdie

Salman Rushdie, via Surian Soosay on FlickrWhile accepting a Chicago Tribune 2015 Literary Award last week, Salman Rushdie robustly rejected the wave of “safe space” censorship that is currently breaking upon college campuses:

The university is the place where young people should be challenged every day, where everything they know should be put into question, so that they can think and learn and grow up. And the idea that they should be protected from ideas that they might not like is the opposite of what a university should be. It’s ideas that should be protected, the discussion of ideas that should be given a safe place. The university should be a safe space for the life of the mind. That’s what it’s for.

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Why will there be no referendum to remove the offence of blasphemy from the Irish Constitution?

CharlieHebdoCoverOn Sunday 10 January 2015, the Taoiseach (Irish Prime Minister) joined an array of world leaders and an estimated two million people at a rally 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 Irish law have led to several calls to repeal the blasphemy provisions in Article 40.6.1(i) of the Irish Constitution and section 36 of the Defamation Act, 2009.

However, despite his attendance at the Paris rally on Sunday 10 January 2015, not two days later on Tuesday 12 January 2015, the Taoiseach was insistent that a referendum on removing the offence of blasphemy from the Constitution will not be held during the lifetime of this Government. (more…)

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.

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International Blasphemy Day

International Blasphemy Day twitter avatarYesterday was International Blasphemy Day (Facebook | twitter). According to a post I came across late yesterday evening on Media Law Prof Blog, the day

… was instituted after the Danish newspaper, Jyllands-Posten, came under fire in 2005 for publishing twelve cartoons that mocked the Prophet Mohammed. More here from the Campaign for Free Expression, here from the Telegraph, here from the Huffington Post.

In honour of the day (with apologies that it’s a day late), here’s an extract from a post on the Irish Philosophy blog about Ireland’s first recorded blasphemy trial:

Thomas Emlyn spent fourteen of his seventy-eight years in Dublin (1691-1705), but they were easily the most eventful of his life. He wrote his An Humble Inquiry into the Scripture Account of Jesus Christ as a result of events there. The result was his appearance as the … [defendant] in what “appears to have been the first reported blasphemy prosecution in Irish law” (UK Select Committee on Religious Offences in England and Wales First Report). …

blasphemy … was defined in the statute as … “a scornful and spiteful reproach uttered in designed contempt of God;” … The jury was pressured and despite his book not reaching the standard for blasphemy, and his authorship remaining unproven (the printer swore that he didn’t know the writing), Emlyn was found guilty.

In the leading modern Irish case of Corway v Independent Newspapers [1999] 4 IR 485, [2000] 1 ILRM 426, [1999] IESC 5 (30 July 1999), Barrington J said:

17. It appears that the earliest reported case of a prosecution for blasphemy in the Irish Common Law Courts was the trial in 1703 of Thomas Emlyn. Emlyn was a Unitarian Minister who had written a book arguing, apparently in moderate terms, that Jesus Christ was not the equal of God the Father. He was convicted of blasphemy, sentenced to one year’s imprisonment, fined £1,000 and ordered to find security for good behaviour for life.

18. Speaking of this case, over a century later, Sir. Edward Sugden said:-

“… I am not called upon to give any opinion whether that prosecution was right or wrong; but it proves this, which is of great importance that as the law was then administered, it was blasphemy to deny the Divinity of Christ;” (AG v Drummond (1842) 1 Or and War 353, 384).

The case of John Syngean Bridgman … arose out of disputes between Roman Catholic clergy and Protestant Ministers in the middle of the 19th Century. … Another case involving bible burning occurred later in 1855. … There is no record of any prosecution for blasphemy between then and the enactment of the Constitution of the Irish Free State in 1922. …

The Chief Justice, the Council of State, and Article 26 References to the Supreme Court

Council of State room, Aras an UachtrainArticle 31.1 of the Constitution provides that there “shall be a Council of State to aid and counsel the President on all matters on which the President may consult the said Council …”. The image, left, is a painting of the Council of State hanging in the Council of State Room in Áras an Uachtaráin, the President’s official residence. One matter on which the President must consult the Council of State is provided by Article 26.1.1:

The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.

On foot of this power, President Higgins convened a meeting of the Council of State to consider whether to refer the Protection of Life During Pregnancy Bill 2013 to the Supreme Court under Article 26; and that meeting is due to begin right about now (see: Irish Examiner here, here, and here | Irish Independent here and here | Irish Times here, here, and here | RTÉ | TheJournal.ie here and here). Update: Writing on ConstitutionProject.ie, Laura Cahillane of UCC provides an excellent overview of the issues which arise on this reference, including – the question of conflict of interest addressed in this post, and an earlier one, on this blog; immunity from future constitutional challenge of Bills approved by the Supreme Court; the propriety of the single-judgment rule; and the amount of time provided by Article 26 for the Supreme Court’s consideration.

This summoning of the Council of State is an unsurprising – even predictable – development; and those who sought to manufacture a controversy out of the reference were misguided (to say the least) as to the President’s constitutional rights, powers and discretions. As to the outcome of the meeting, whilst I think that the chances of a reference are 50/50, I would not be surprised if the President does ultimately decide to refer the Bill. After all, the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995 was referred to the Supreme Court under Article 26. The Supreme Court upheld the Bill (see [1995] 1 IR 1, [1995] IESC 9 (12 May 1995)) and the Bill was duly enacted into law.

There has been much analysis of whether the President should refer the Bill, and if he does, what the Supreme Court might make of it; doubtless, after today’s meeting, there will be much further analysis and commentary. I will leave those issues to others; but, now that the meeting has started, I would like here to raise two small procedural points. The first relates to a possible conflict of interest in the membership of the Council of State; the second relates to the standard on foot of which the President will consider whether to refer the Bill or not.

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