Picking up on last week’s post about Milton’s Areopagitica, in the classical liberal tradition, the fact that speech is offensive is not in itself a sufficient reason to censor it. As John Stuart Mill (pictured left) put it, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”. And he utterly rejected that offence could amount to such harm:

Before quitting the subject of freedom of opinion, it is fit to take notice of those who say, that the free expression of all opinions should be permitted, on condition that the manner be temperate, and do not pass the bounds of fair discussion. Much might be said on the impossibility of fixing where these supposed bounds are to be placed; for if the test be offence to those whose opinion is attacked, I think experience testifies that this offence is given whenever the attack is telling and powerful, and that every opponent who pushes them hard, and whom they find it difficult to answer, appears to them, if he shows any strong feeling on the subject, an intemperate opponent. But this, though an important consideration in a practical point of view, merges in a more fundamental objection. Read the rest of this entry »

Hart Publishing have just published Academic Freedom and the Law: A Comparative Study (cover left) by Eric Barendt:

Academic Freedom and the Law: A Comparative Study provides a critical analysis of the law relating to academic freedom in three major jurisdictions: the United Kingdom, Germany and the United States. The book outlines the various claims which may be made to academic freedom by individual university teachers and by universities and other higher education institutions, and it examines the justifications which have been put forward for these claims. Three separate chapters deal with the legal principles of academic freedom in the UK, Germany, and the USA. A further chapter is devoted to the restrictions on freedom of research which may be imposed by the regulation of clinical trials, by intellectual property laws, and by the terms of contracts made between researchers and the companies sponsoring medical and other research. The book also examines the impact of recent terrorism laws on the teaching and research freedom of academics, and it discusses their freedom to speak about general political and social topics unrelated to their work.

This is the first comparative study of a subject of fundamental importance to all academics and others working in universities. It emphasises the importance of academic freedom, while pointing out that, on occasion, exaggerated claims have been made to its exercise.

The title of this post is taken from the third paragraph of Milton’s Areopagitica. As I commented in an earlier post, one of the classic liberal justifications for freedom of expression was stated by John Milton (pitctured left) in his Areopagitica – A Speech for the Liberty of Unlicenc’d Printing, to the Parlament of England. According to The Writer’s Almanac with Garrison Keillor (with added links):

It was on this day in 1644 that John Milton published a pamphlet called Areopagitica, arguing for freedom from censorship. He said,

I wrote my Areopagitica in order to deliver the press from the restraints with which it was encumbered; that the power of determining what was true and what was false, what ought to be published and what to be suppressed, might no longer be entrusted to a few illiterate and illiberal individuals, who refused their sanction to any work which contained views or sentiments at all above the level of vulgar superstition.

He compared the censoring of books to the Spanish Inquisition and claimed that the government wanted “to bring a famine upon our minds again.” Read the rest of this entry »

Obscene. Once I had caught my breath, and collected my composure, this was my immediate reaction to learning that a high court jury had awarded 10 million euro in libel damages, made up of €9m in compensatory damages and €1m in aggravated damages. According to RTÉ:

A Co Louth businessman who took a libel action against his former employers after an incident in which he sleep walked naked has been awarded €10m in damages.

The jury agreed that a press release sent out by mining company Kenmare Resources in July 2007 insinuated that Donal Kinsella had made inappropriate sexual advances to company secretary Deirdre Corcoran on a business trip in Mozambique in May that year.

The award is the highest award of damages for defamation in the history of the State. … Lawyers for Kenmare Resources were granted a stay on the award pending an appeal to the Supreme Court. … Kenmare Resources issued a statement saying it was ’shocked’ at the verdict and it will ‘immediately and vigorously appeal the decision’.

The Irish Times added: “Outside court, Mr Kinsella (67) said he was ‘exhilarated and vindicated’ by the jury’s verdict”. I do not in any way begrudge him the vindication of his reputation, but does this really require 10 million euro? Indeed, the Journal.ie reported that the judge (Mr Justice Éamon de Valera) “appeared surprised at the scale of the damages being awarded”.

Appeals to the Supreme Court are pending in three other high profile cases of involving very high levels of damages. Read the rest of this entry »

It is a bad advert for Irish politics that RTÉ (Ireland’s national public broadcaster) has had to decline to broadcast a radio advertisement for the short film Defend The Pension from the Older & Bolder campaign (above, via Vimeo; see also here, via YouTube). Older & Bolder is an alliance of non-governmental organisations that champions the rights of all older people, and seeks to combat ageism. Defend The Pension is directed by award-winning director Ken Wardrop, who directed the wonderful His & Hers; and it shows a number of old age pensioners standing in the pouring rain explaining why the State pension is important to them and should not be cut.

Section 41(3) of the Broadcasting Act, 2009 (also here) provides

A broadcaster shall not broadcast an advertisement which is directed towards a political end …

According to today’s Irish Times, Peter Feeney, Head of Broadcast Compliance at RTÉ, said that this section forbids all broadcasters from carrying advertisements towards political ends, and that RTÉ has no discretion in this matter. He also said that RTÉ’s copy clearance committee decided the advertisement breached the Act because it directed listeners to a video and website that sought to influence the Government in the formation of December’s budget.

Defend The Pension is powerful, poignant, and arresting; it is exactly the kind of thing that section 41(3) is designed to prevent; and, as Peter Feeney says, RTÉ has no choice in this. The predecessor of this section withstood constitutional challenge in Colgan v IRTC [2000] 2 IR 490, [1999] 1 ILRM 22, [1998] IEHC 117 (20 July 1998), though whether it would survive a challenge in the European Court of Human Rights (ECHR) is questionable. More than that, however, this episode demonstrates just what a tawdry provision the political advertising ban actually is. It is what one would expect from a political establishment scared of criticism. It is not appropriate to a mature democracy. And it is shameful that a radio advertisement for Defend The Pension cannot be broadcast.

In Sanoma Uitgevers BV v The Netherlands Application no 38224/03 (14 September 2010) (Inforrm’s Blog | Index on Censorship Free Speech Blog | JuraBlogs), the Grand Chamber of the European Court of Human Rights (ECHR) has held that an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources requires legal procedural safeguards commensurate with the importance of the principle at stake. This is an important standard, and the actions of the Dutch authorities failed to meet it. An order to disclose journalistic material was made by a public prosecutor, whom the Court considered to be a party rather than impartial, so that there was no independent assessment as to whether the interest of a criminal investigation overrode the public interest in the protection of journalistic sources. As a consequence, the Court unanimously held that there was a violation of Article 10 of the European Convention on Human Rights.

The case concerned illegal car races being investigated by the Dutch magazine Autoweek, published by Sanoma Uitgevers BV. The journalists took photographs and made notes, but edited the published photographs to guarantee the anonymity of the participants in the race. The participants in the illegal race were suspects in other serious crimes, and the public prosecutor took the view that the need to identify them justified a summons ordering the production of the CD-ROM on which the original photographs were stored. The Third Section of the ECHR held that this did not infringe Art 10 (a decision which I criticised at the time). On appeal, the Grand Chamber has now made amende honorable.
Read the rest of this entry »

As regular readers of this blog will know, the right to freedom of expression – broadly interpreted – is one of my main areas of research and teaching. Many of my favourite internet resources relating to free speech can be seen in my blogroll and the list of badges in the sidebars on the right. Via Kate Sutherland on Twitter, I see that Kurt Hopkins has a great post on ReadWriteWeb about his Top 10 Online Free Speech Resources. In particular, he listed institutional resources which are accessible to anyone, provide original news or analysis, and are frequently updated. It’s a great idea; indeed, it’s such a good idea,

I’m going to copy it, and – without overlapping Kurt’s choices – list another top 10 online free speech resources below the jump (in broadly alphabetical order): Read the rest of this entry »

Two recent cases in the European Court of Human Rights demonstrate that there are still large gaps in the protection of freedom of expression in Turkey.

Terrorist speech
In Gözel and Özer v Turkey (43453/04 and 31098/05; 6 July 2010 | judgment (in French); press release (in English)), a Turkish magazine published an article that contained a statement by the central committee of the banned Marxist-Leninist/Turkish Communist Party. Another published an article about the founder of the Marxist movement in Turkey which included a statement by eight people who were in custody for belonging to illegal organisations. The editors of both magazines were convicted of pubishing statements of illegal armed organisations.

The ECHR noted that the editors had been convicted for publishing texts that the domestic courts had characterised as “terrorist organisation statements” without taking into account their context or content, and held that to condemn a text simply on the basis of the identity of the author would entail the automatic exclusion of groups of individuals from the protection afforded by Article 10. It therefore concluded that since the opinions expressed did not constitute hate speech or stir up violence, the Respondent was not entitled to rely on national security to restrict the public’s right to receive information, and that Article 10 had therefore been breached.

In Ireland, the leading Supreme Court decision in this area is the deeply flawed The State (Lynch) v Cooney [1982] IR 337 upholding the infamous section 31(1) of the Broadcasting (Authority) Act, 1960 [(also here), as amended by section 16 of the Broadcasting Authority (Amendment) Act, 1976 (also here), ultimately repealed in 2001] (discussed on this blog here | here | here). On foot of the powers in that section, the Minister had proscribed the access of paramilitaries to the airwaves, and this extended to preventing an election broadcast by a candidate in a party associated with a paramilitary organisation. That association, effectively the mere identity of the candidate, was sufficient to allow the ban to be upheld. O’Higgins CJ held that the use of the media for the purpose of securing or advocating support for organisations which seek by violence to overthrow the State or its institutions is a use which is prohibited by the Constitution. This must now be questionable in the light of Gözel and Özer.

Academic Freedom
In Sapan v Turkey (44102/04; 6 July 2010 | judgment (in French); press release (in English) | h/t Strasbourg Observers), the applicant published a book on the emergence of stardom as a phenomenon in Turkey. It was based upon his doctoral thesis, and it focussed in part on a well-know pop singer. The Turkish courts held that, since the book addressed subjects related to the singer’s personal life rather than his public persona, it had infringed his personality rights. An interim order that the book be seized was eventually lifted after two years and eight months, but the singer’s damages claim was allowed to proceed.

The ECHR emphasised the importance of academic freedom, and it considered that the book was a serious academic analysis of the social phenomenon of stardom which could not be compared with the tabloid press or gossip columns. It therefore held that there were no relevant or sufficient and reasons to justify the seizure of the book, and that Article 10 had therefore been breached.

In an earlier post, I placed the terms of section 14(1) of the Universities Act, 1997 (also here) in the context of US and ECHR decisions on academic freedom, in particular the decision of the ECHR in Sorguc v Turkey 17089/03, [2009] ECHR 979 (23 June 2009). This is a very significant judgment in the development of this important right. In particular, it re-inforces the argument that, since academic freedom is protected under the ECHR as an aspect of Article 10, it should by analogy be protected under the Irish Constitution as an aspect of the right to freedom of expression in Article 40.6.1(i), or of the right to communicate protected by Article 40.3, or even as an unenumerated right located in Article 40.3.