Freedom of Expression or halting the misuse of the Incitement laws

©http://www.irishtimes.com/newspaper/frontpage/2009/0429/1224245599892.html?via=mr

Wednesday, April 29, 2009

Crime of blasphemous libel proposed for Defamation Bill

CAROL COULTER, Legal Affairs Editor
irishtimes.com

A NEW crime of blasphemous libel is to be proposed by the Minister for Justice in an amendment to the Defamation Bill, which will be discussed by the Oireachtas committee on justice today.

At the moment there is no crime of blasphemy on the statute books, though it is prohibited by the Constitution.

Article 40 of the Constitution, guaranteeing freedom of speech, qualifies it by stating: “The State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

“The publication or utterance of blasphemous, seditious, or indecent material is an offence which shall be punishable in accordance with law.”

Last year the Oireachtas Committee on the Constitution, under the chairmanship of Fianna Fáil TD Seán Ardagh, recommended amending this Article to remove all references to sedition and blasphemy, and redrafting the Article along the lines of article 10 of the European Convention on Human Rights, which deals with freedom of expression.

The prohibition on blasphemy dates back to English law aimed at protecting the established church, the Church of England, from attack. It has been used relatively recently to prosecute satirical publications in the UK.

In the only Irish case taken under this article, Corway -v- Independent Newspapers, in 1999, the Supreme Court concluded that it was impossible to say “of what the offence of blasphemy consists”.

It also stated that a special protection for Christianity was incompatible with the religious equality provisions of Article 44.

Minister for Justice Dermot Ahern proposes to insert a new section into the Defamation Bill, stating: “A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €100,000.”

“Blasphemous matter” is defined as matter “that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage.”

Where a person is convicted of an offence under this section, the court may issue a warrant authorising the Garda Síochána to enter, if necessary using reasonable force, a premises where the member of the force has reasonable grounds for believing there are copies of the blasphemous statements in order to seize them.

Labour spokesman on justice Pat Rabbitte is proposing an amendment to this section which would reduce the maximum fine to €1,000 and exclude from the definition of blasphemy any matter that had any literary, artistic, social or academic merit.


http://www.irishtimes.com/newspaper/opinion/2009/0430/1224245681506.html

Thursday, April 30, 2009

Crime of blasphemous libel proposed for Defamation Bill

CAROL COULTER, Legal Affairs Editor

A NEW crime of blasphemous libel is to be proposed by the Minister for Justice in an amendment to the Defamation Bill, which will be discussed by the Oireachtas committee on justice today.

At the moment there is no crime of blasphemy on the statute books, though it is prohibited by the Constitution.

Article 40 of the Constitution, guaranteeing freedom of speech, qualifies it by stating: “The State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

“The publication or utterance of blasphemous, seditious, or indecent material is an offence which shall be punishable in accordance with law.”

Last year the Oireachtas Committee on the Constitution, under the chairmanship of Fianna Fáil TD Seán Ardagh, recommended amending this Article to remove all references to sedition and blasphemy, and redrafting the Article along the lines of article 10 of the European Convention on Human Rights, which deals with freedom of expression.

The prohibition on blasphemy dates back to English law aimed at protecting the established church, the Church of England, from attack. It has been used relatively recently to prosecute satirical publications in the UK.

In the only Irish case taken under this article, Corway -v- Independent Newspapers, in 1999, the Supreme Court concluded that it was impossible to say “of what the offence of blasphemy consists”.

It also stated that a special protection for Christianity was incompatible with the religious equality provisions of Article 44.

Minister for Justice Dermot Ahern proposes to insert a new section into the Defamation Bill, stating: “A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €100,000.”

“Blasphemous matter” is defined as matter “that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage.”

Where a person is convicted of an offence under this section, the court may issue a warrant authorising the Garda Síochána to enter, if necessary using reasonable force, a premises where the member of the force has reasonable grounds for believing there are copies of the blasphemous statements in order to seize them.

Labour spokesman on justice Pat Rabbitte is proposing an amendment to this section which would reduce the maximum fine to €1,000 and exclude from the definition of blasphemy any matter that had any literary, artistic, social or academic merit.

Friday, May 1, 2009

Position of blasphemy in our Constitution cannot be ignored

OPINION: Successive governments have been advised to reform the law on blasphemy; the only alternative to legislation would be a referendum, writes DERMOT AHERN .

THE 1961 Defamation Act provides that a person can be both fined and imprisoned for a maximum of seven years for the crime of blasphemous libel. The Government is moving to reform that Act, while respecting our Constitution, which requires that blasphemy must be punishable by law.

My intention is to remove the possibility of prison sentences and private prosecutions for blasphemy, currently provided for in Irish law. The only credible alternative to this move is a blasphemy referendum which I consider, in the current circumstances, a costly and unwarranted diversion.

Reform legislation in regard to our laws on defamation has been long in the making, dating effectively from the Report of the Law Reform Commission in 1991. The Defamation Bill 2006 is the culmination of that process and it has fallen to me to bring the reform to fruition, which I expect to do before the summer.

The Bill was passed by Seanad Éireann on March 11th, 2008. On Wednesday April 29th, in the Dáil, the Select Committee on Justice, Equality, Defence and Women’s Affairs began its consideration of the Bill and of a number of amendments proposed by myself and the Opposition parties. This is a normal part of the legislative process.

Among my proposed amendments was a proposal in regard to the treatment of the issue of blasphemy in our law. It is wrong to state that we have no law in this area and that I am creating a new offence. Currently, section 13 of the 1961 Defamation Act provides for sanctions, both monetary and prison, where a person might be convicted of publishing a blasphemous libel. That section will be repealed, along with that whole Act by the new legislation.

There is no element of surprise here as some of the less informed commentators might have you believe. The requirement to deal with this issue was publicly flagged previously on consideration of this Bill in both the Seanad and the Dáil.

The key point here is that successive attorneys general have advised the various ministers for justice, in the context of the reform of defamation law and the repeal of the 1961 Act, that article 40.6.1.i of the Constitution imposes an obligation to implement the constitutional offence of blasphemy.

That article specifically states that the publication of blasphemous matter “is an offence which should be punishable in accordance with law”. Those who argue that, where the Constitution has ordained an offence, a minister should simply ignore it to suit his ideological positions, seem to me to be arguing for a clear constitutional provision to be wilfully ignored. This would be to undermine the Constitution and its protection. Needless to say, I have no intention of so doing.

Following the 1999 Corway case, the only blasphemy action taken in the State since at least the 1937 Constitution, there is a legal obligation to ensure that article 40.6.1.i is operable. If that article is not to be removed from the Constitution by referendum then it is necessary to ensure that it is operable. To do otherwise would imply an a la carte approach to the Constitution and its precepts and principles.

Indeed, the Law Reform Commission Report pointed out that “the abolition without replacement of the offence of blasphemy would be impossible under the existing Constitutional provision”.

I am repealing the Defamation Act 1961 which purported to provide a punishment for blasphemy. The Supreme Court in Corway pointed out that legislation was necessary to define the offence in relation to blasphemy. In repealing the relevant provisions of the 1961 Act it is necessary for me to provide for such a definition.

In doing so, I have taken the opportunity of ensuring that private prosecutions for blasphemy can no longer be brought by ensuring it is not a summary offence and that all prosecutions have to be brought by the independent prosecutor, the DPP. I have also removed the punishment of imprisonment and instead imposed a fine. The Labour Party in its proposed suggestion in regard to my amendment does not propose deletion of it, but rather to make a proposal as to the penalty involved.

This acknowledges that a provision is required on blasphemy if no referendum to take out the reference to blasphemy in the Constitution is held.

Finally, while the Constitution requires an offence of blasphemy it also, like the position in many other countries, expressly protects freedom of expression. My reform legislation will have to be construed in that context. No innocent conduct will be captured.

The revised provision in regard to blasphemy requires at least three elements to be present: that the material be grossly abusive or insulting in matters held sacred by a religion; that it must actually cause outrage among a substantial number of adherents of that religion; and, crucially, that there be an intent to cause such outrage. Such intent was not previously required.

It is my intention to complete the reform of our law on defamation as soon as possible. I also intend to comply with my constitutional obligations, where in this case I have to fill a constitutional gap left by the Corway case.

Our response to article:

Dear Editor,

Carol Coulter alludes to the protests against Scientology and raises the issue of whether these altruistic
people would be under pressure. Irish Times, April 30, (For God’s sake, why have blasphemous libel?)
Carol has some awareness of this subject having written a book on cults in the early ’80’s.
Scientology claims to be a religion and during the protests of the last year has reported
those protesting outside its premises to the Gardai at Store St. for inciting racial and religious hatred.
After the members of Anonymous briefed the Gardai and showed them video copies of their activities
those attempts ceased. However, it should be noted that Gay Byrne asked the Scientologists
on the Late, Late Show in February 1995 whether they had obtained charitable status here.
They replied then they hoped it would be soon. Certainly up till now they have not succeeded
in obtaining charitable status in the three areas possible: Advancement of Religion, Relief of
Poverty and Education.
Furthermore, Ireland unlike most countries has no chair of World Religion and so the scientific study
of religion in this country is in its infancy. A cursory reading of the last Census shows we have about
2000 Agnostics, 1000 Atheists, the “No Religion” category is larger than the Church of Ireland, and the different
Christian denominations are treated as religions. Try bringing a case to court in that environment?


Regards
MIKE GARDE
DIRECTOR

DIALOGUE IRELAND TRUST

Letter sent to the Minister:

Dear Minister,

I would be grateful if you could consider seeing me in regard to the issue of cults, sects and New Religious Movements.
In 2005 I met Michael McDowell twice and in 2007 I met Brian Lenihan in regard to the issue of briefing them on the current situation.

Furthermore, I copy what I have written to the Irish Times in regard to your proposed new leglislation.
I look forward to hearing from you.

“Carol Coulter alludes to the protests against Scientology and raises the issue of whether these altruistic
people would be under pressure. Irish Times, April 30, (For God’s sake, why have blasphemous libel?)
Carol has some awareness of this subject having written a book on cults in the early ’80’s.
Scientology claims to be a religion and during the protests of the last year has reported
those protesting outside its premises to the Gardai at Store St. for inciting racial and religious hatred.
After the members of Anonymous briefed the Gardai and showed them video copies of their activities
those attempts ceased. However, it should be noted that Gay Byrne asked the Scientologists
on the Late, Late Show in February 1995 whether they had obtained charitable status here.
They replied then they hoped it would be soon. Certainly up till now they have not succeeded
in obtaining charitable status in the three areas possible: Advancement of Religion, Relief of
Poverty and Education.
Furthermore, Ireland unlike most countries has no chair of World Religion and so the scientific study
of religion in this country is in its infancy. A cursory reading of the last Census shows we have about
2000 Agnostics, 1000 Atheists, the “No Religion” category is larger than the Church of Ireland, and the different
Christian denominations are treated as religions. Try bringing a case to court in that environment?


Regards
MIKE GARDE
DIRECTOR

See our Mission statement: https://dialogueireland.wordpress.com/about/

irishtimes.com (c)

Thursday, May 7, 2009

‘Blasphemous libel’ proposal

Madam, – As a committed Catholic, I would have anticipated being in favour of a blasphemy law in principle.

But in practice the current proposal would leave it open for any religion (or even cult) to nominate who their “God” is and silence their critics through the threat of litigation. Thus we could have an endless stream of affinity groups nominating individuals as God, such as Xenu the Galactic Warlord, the Dalai Lama, the Rev Sun Myung Moon . . ..

Many of these cults are well funded and ruthless in crushing opposition.

One group even has a policy of “fair game” which allows its members to use any means to destroy its opponents.

I cannot see the proposed blasphemous libel proposal as wise in these circumstances. – Yours, etc,

COLM FITZPATRICK,

Castleknock,

Dublin 15.

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