Category: Freedom of Expression

Blasphemous rumours and constitutional amendments

| 11 Comments
| Blasphemy, Freedom of Expression

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.…

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Speech Art

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| Blasphemy, Censorship, Freedom of Expression, US Supreme Court

Cover of Bezanson's Randall P Bezanson has just pubished another very important book on on Art and Freedom of Speech (University of Illinois Press, 2009), exploring the decisions of the US Supreme Court relating to artistic expression under the First Amendment. From the abstract:

… In considering the transformative meaning of art, the importance of community judgments, and the definition of speech in Court rulings, Bezanson focuses on the fundamental questions underlying the discussion of art as protected free speech: What are the boundaries of art? What are the limits on the government’s role as supporter and “patron” of the arts? And what role, if any, may core social values of decency, respect, and equality play in limiting the production or distribution of art?

Accessibly written and evocatively argued, Art and Freedom of Speech explores these questions and concludes with the argument that, for legal purposes, art should be absolutely free under the First Amendment–in fact, even more free than other forms of speech.

In matters that have recently featured on this blog, his views on blasphemy (discussed here) and treaspassory art (discussed here) will resonate with our recent blasphemy and Cowengate controversies.

Mark Tushnet has written an excellent discussion of Bezanson’s book.…

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The last Irish case on criminal libel

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| criminal libel, ECHR, Freedom of Expression, Irish Law, Irish Society

Star logoYesterday’s Irish Times reminds me of an interesting High Court judgment handed down early in the Summer. It’s called Dennehy v Independent Star Ltd trading as The Irish Daily Star Newspaper [2009] IEHC 458 (28 May 2009) and it concerns an attempt to bring a prosecution for criminal libel. Section 8 of the Defamation Act, 1961 (also here) provides

No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application.

When the Defamation Act, 2009 (pdf) comes into effect in the new year, section 4 will repeal the 1961 Act and section 35 will abolish the common law crime of criminal or defamatory libel (the UK is soon to follow this lead). So, the Dennehy is likely to be last Irish case concerning this ancient crime. But the case also looks to the future, as one of the arguments made on behalf of the applicants was founded upon the European Convention of Human Rights, and the reasons why that argument failed are quite striking.…

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Defamation and the Constitution

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| Defamation, Defamation Act 2009, ECHR, Freedom of Expression, Irish Law

Coat of Arms, Ireland (the image on the cover of the Constitution) via Wikipedia“Predictions are difficult, especially about the future.” I have seen this variously attributed to Neils Bohr, Sam Goldwyn, and Yogi Berra. Whoever said it, it contains a grain of truth: when it comes to the future, all we can do is speculate. In my paper for last Saturday’s conference on Recent developments in Irish Defamation Law, I speculated on the prospect that the Defamation Act, 2009 (pdf) may be unconstitutional or incompatible with the ECHR in some important respects.

In Steel and Morris v UK 68416/01, (2005) 41 EHRR 22, [2005] ECHR 103 (15 February 2005) (the infamous McLibel case) the ECHR held that the applicants’ rights under the Convention had been infringed by the failure to allow them legal aid, in an inflexible presumption of falisty (affirmed here), and in the rule that a body corporate taking a defamation action need not prove special damage, in all three cases because these rules compounded the significant imbalance which they faced in defending a defamation action being taken against them by a multinational corporation (McDonald’s).

In Ireland, defamation is absolutely excluded from the legal aid regime by section 29(8)(a)(i) of the Civil Legal Aid Act, 1995 (also here), and the 2009 Act does not ameliorate this in any way; but since there is no constitutional right to civil legal aid at Irish law, if it is invalid, the remedy is a declaration of incompatibility with the ECHR under section 5 of the European Convention on Human Rights Act, 2003 (also here).…

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Film classification and press regulation

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| Censorship, Freedom of Expression, IFCO, Press Council

Two pieces in yesterday’s Irish Times caught my eye. The first relates to the retirement of the man who has probably the most recognised signature in Ireland. The second relates to the responsibility of those who write other words that many of us read.

IFCO logoFor the past six years, every movie released in Ireland has been classified by his office with a certificate signed by him. He is John Kelleher, and he has just retired as Director of the Irish Film Classification Office:

‘I don’t believe in censoring for adults’

He’s seen nearly 2,000 films personally and supervised the watching of 55,000 others, yet the film censor John Kelleher only banned one film. Mr Kelleher, the director of the Irish Film Classification Office (Ifco), stepped down yesterday just two days short of his 65th birthday. …

He says his biggest achievement in office was to be involved in last year’s Civil Law (Miscellaneous Provisions) Act, which changed the name from the Irish Film Censor’s Office to the [the Irish Film Classification Office] Ifco. The Act changed his job title to reflect his primary role in classifying rather than censoring films. The phrase “likely to cause harm to children” was introduced into the legislation for the first time.

…

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The Regulation and Perception of Political Advertising

| 2 Comments
| advertising, Broadcasting Authority of Ireland, Freedom of Expression
Eisenhower for President via Youtube

As a companion piece to the Reagan advertisement in my last post, Eisenhower for President (left), built around the famous slogan “I like Ike”, is regarded as the first paid political television advertisement. I wonder what the first Irish one will be, and when?

I promised in an earlier post that I would look again at Kevin Rafter’s recent report on Political Advertising: The Regulatory Position & the Public View (here), the research for which was funded under the Broadcasting Authority of Ireland’s Media Research Scheme.

In Ireland, political advertising is banned in the broadcast media, but there are no similar restrictions upon the non-broadcast media, such the press, billboards, and so on, though a system of party political broadcasts during election and referendum campaigns is intended to mitigate the harshness of the broadcast advertising ban.

This distinction between broadcast and print media is often justified by the particular power of the broadcast medium. However, a local ban takes little account of developments in broadcasting (cable, satellite and digital channels) and telecommunications (the internet, mobile devices), and radio and television have nothing like the reach and impact that they had even a generation ago.…

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Political advertising in the morning

| 3 Comments
| advertising, Broadcasting Authority of Ireland, Freedom of Expression
Morning in America via Youtube

Morning in America (left) is the common name of a political adverisment used by Ronald Reagan in the 1984 US presidential election. Officially entitled Prouder, Stronger, Better, the optimistic tone of the advertisment made it one of the most effective political campaign advertisments ever made (and went hand in hand with another famous political advertisment critical of his opponent). It is an advertisment that comes to mind whenever I think about political advertising.

Following on from yesterday’s post, here are three quick updates on political advertising.

First, Kevin Rafter’s report for the BAI (here) has been picked up by the The Irish Film & Television Network. Second, there is a very good letter in today’s Irish Times on the issue:

Madam, – A proposal to alter the restrictions on political and religious advertising is long overdue (News, November 16th). The decision, some weeks ago, by RTÉ to ban a fundraising advertisement by the Shell to Sea campaign is an indication of the folly which underlies this ban. Defining what comes under the scope of a political campaign is a delicate but, ultimately, subjective judgement.

An oil company or car manufacturer advertising a “green” approach to business is a highly political act.

…

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Massaging the political advertising ban

| 6 Comments
| advertising, Broadcasting Authority of Ireland, Freedom of Expression

Cover of McLuhan and Fiore's 'The Medium is the Massage' via PenguinSection 41(3) of the new Broadcasting Act, 2009 (pdf) provides:

A broadcaster shall not broadcast an advertisement which is directed towards a political end or which has any relation to an industrial dispute.

This sub-section (in conjunction with section 41(4), which contains a ban on religious advertising) re–enacts long–standing bans on political (and religious) advertising; though such a ban is unlikely to survive challenge in the European Court of Human Rights.

Dr Kevin Rafter, Head of the Department of Film and Media, in the School of Creative Arts, at the Dun Laoghaire Institute of Art, Design and Technology has just written a fascinating report on Political Advertising: The regulatory Position and the Public View (here) for the Broadcasting Authority of Ireland (BAI). I’m glad to see this for at least two reasons.

First, it means that the BAI has hit the ground running. In October, the Minister announced five members of the Authority; according to section 13(7) of the Act, the quorum for meetings of the authority is five, so it has been operational since these five members were appointed by the Minister. However, the full membership is nine, and the other four members are being appointed by the Joint Oireachtas Committee on Communications, Energy and Natural Resources.…

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