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  4 IR 485,  1 ILRM 426,  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.