Blas from the Past


As the much-anticipated Defamation Bill comes into law, the blasphemy provisions throw up more questions than answers, writes Zelda Cunningham, international woman of mystery…

IRELAND’S DEFAMATION LAWS received a much-needed and long-overdue makeover with the signing of the Defamation Bill 2006 in July this year. Previously, the issue of libel was fraught with complexities, with vast gaps in jurisprudence leading to much uncertainty for those both facing and bringing charges of defamation. The Irish courts have faced criticism by the European Court of Human Rights for their lack of direction to juries regarding the extent of damages, where arguably disproportionate awards have been lavished on injured parties.

Admittedly, many of these concerns have been addressed, and according to Minister for Justice, Equality and Law Reform, Dermot Ahern; resolved by the Defamation Bill 2006, however, it was the controversial blasphemy law, that overshadowed the legislation.

Now, acts of gross indecency, intending to cause offence to any religion could face a maximum fine of €25,000.

On the face of it, this blasphemy law doesn’t appear to be overtly restrictive; however, serious questions and objections raised by a number of commentators have cast doubt on the very constitutionality, and public support of this dubious provision.

Blasphemy, although specifically referenced in Bunreacht na hÉireann, has not been recognised as part of Irish law since 1995, with the Supreme Court ruling it was more or less unenforceable in this jurisdiction. This was the year in which the Divorce Referendum was affirmed by the Irish people; and the Supreme Court decision appeared to represent the evolving Irish distaste for restrictions on freedom of speech and indeed, the power of the Catholic Church.

BlasphemyFor this reason, many have questioned why the Minister for Justice initiated such a provision in the Defamation Bill. Yes, it was filling up a vacuum in our constitutional law, however, perhaps it would have more prudent to suggest removing blasphemy from the constitution in the next referendum considering the uncertainties this law has raised.
In Ireland (under the influence of the UK courts), blasphemy specifically referred to Christianity. The Satanic Verses case, regarding Salmon Rushdie’s work provided this assurance. However, the 2006 Bill clearly states that any religion can seek the protection of the law in this regard. Although reflecting the more multi-denominational society Ireland has become, it also could see a can of worms opening in the courts.

Gross indecency is a term that is subjective to the particular religions. For example, depicting the Islamic prophet Muhammad has proven to incite rage from some Muslims. Does this mean that producing such images amounts to criminal liability in this country? Conversely, adjudicating liability by an objective standard would seem artificial. Would the courts judge it from the perspective religious person? If so, what religion? The disparity in beliefs in practically every sect can be expansive, provoking the question, who determines what is offensive?

The ECHR has accepted that certain blasphemy laws are a justified limitation to the right to freedom of expression. However, the rationale behind this limitation was the preservation of public order. As mentioned, ‘outrage’ is subjective and personal, whereas public order has the aim of protecting society as a whole, not just those of religious inclination.

Surely, the public good, in the broadest sense, is the only excusable basis for restricting a right as intrinsic to a free society as that of expression. In this light, a €25,000 fine for offending something you may consider a complete delusion seems unwarranted.

The debate continues to rage over this provision. Considering the difficulties regarding blasphemy, questions were raised as to why President McAleese did not use her power under Article 26 of the Constitution to refer the Bill to the Supreme Court and thus determine the constitutionality of the legislation.

The Atheist Society of Ireland has already elected to challenge the constitutionality of the blasphemy law by composing a purposely blasphemous statement designed to provoke outrage, therefore attracting the punitive measures of the Bill. As the Supreme Court did not have the opportunity to test the legality of the Defamation Bill and judging from the jurisprudence from the ECHR, the Atheist Society could perhaps topple this law- which would be a humiliation for the Oireachtas and President McAleese.

The Defamation Bill 2006 will certainly be a bone of contention in Irish society in the coming years. Freedom of religion is undoubtedly of crucial importance to all Irish citizens, and naturally, having one’s faith insulted will cause upset and possibly outrage. However, in modern European society, the outrage of some is not something we should let restrict the fundamental rights of everyone. It is not a question of atheists versus people of faith, saints versus sinners… The right to expression is guaranteed to citizens and shouldn’t be restricted for any thing less than their protection.

But luckily for the Government, it took our mind of the recession for five minutes…