Blasphemy - Section 36 of now active 2009 Defamation Act

Tom Young

Discuss:

Blasphemy Section:

36.—(1) 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 Euro 25,000.

(2) For the purposes of this section, a person publishes or utters
blasphemous matter if—

(a) he or she publishes or utters 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

(b) he or she intends, by the publication or utterance of the
matter concerned, to cause such outrage.

(3) It shall be a defence to proceedings for an offence under this
section for the defendant to prove that a reasonable person would
find genuine literary, artistic, political, scientific, or academic value
in the matter to which the offence relates.

(4) In this section “religion” does not include an organisation or
cult—

(a) the principal object of which is the making of profit, or
(b) that employs oppressive psychological manipulation—
(i) of its followers, or
(ii) for the purpose of gaining new followers.

In case people are interested, the leading case here is Corway v Independent News and Media.

Where do we go for a balance of freedom of expression versus this type of law?

Tom

PS: I guess 4. (b) rules out every religion globally so!

dolittle

i`m kinda afraid to say anything

Tom Young

Ah Jesus, go on.

Pushtrak

Hell, you could say they knocked a few out of the park on 4 (a).

darragh666

The defenses seem broad enough to cover most 'blasphemous' comments. The atheist Ireland website could probably fall under academic value.

Trojan911

I wonder if, in the name of comedy, are comedians exempt?

napplechunks

I think it's fine - no wait..

Does the judge determine whether a reasonable person would find
artistic value in the material?

In my humble opinion this might be too subjective.

If one finds an item personally offensive they would be unlikely to find artistic value. As a purpose of art is to provoke a response, it is always possible the item would be offensive to someone, somewhere.

nesf

What constitutes oppressive psychological manipulation? Is this a term that's got a basis in law already or one that'll end up being decided on by one of the higher courts?

Tom Young

nesf wrote: »

What constitutes oppressive psychological manipulation? Is this a term that's got a basis in law already or one that'll end up being decided on by one of the higher courts?

Sorry, first answer is God knows!

It will be more than likely decided upon by the courts with some sort of test perhaps a proportionality test in order to ascertain what levels would be accepted and all based on evidence.

In Heaney v. Ireland [1994] IR 3 IR 593 , a case where the plaintiffs had challenged the constitutionality of section 52 of the Offences against the State Act, 1939 (which requires persons arrested under the provisions of the 1939 Act to give an account of their movements and provides that failure to do so gives rise to a maximum penalty of six months’ imprisonment) as being contrary to Article 38.1 of the Constitution, Costello J. referred to a formulation of the test of proportionality in Canada. He stated:

“In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights (see, for example Times Newspapaters Ltd. V. United Kingdom, (1979) 2 E.H.R.R. 245) and has recently been formulated by the Supreme Court in Canada in the following terms. The objectives of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:

(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible, and
(c) be such that their effects on rights are proportional to the objective: Chaulk v. R. [1990] 3 S.C.R. 1303 at pages 1335 and 1336.

No, it is not a term that has a basis in law and it like other statutory provisions is to be treated literally, per the 2005 Interpretation Act http://www.irishstatutebook.ie:80/2005/en/act/pub/0023/index.html

6.—In construing a provision of any Act or statutory instrument, a court may make allowances for any changes in the law, social conditions, technology, the meaning of words used in that Act or statutory instrument and other relevant matters, which have occurred since the date of the passing of that Act or the making of that statutory instrument, but only in so far as its text, purpose and context permit.

nesf

Yeah, I'm just thinking oppressive is quite a vague term really. It ranges from brain washing to merely instilling fear/guilt/anxiety in a person with the consequences of not believing, i.e. don't baptise your child and bad things will happen to them or similar.

Makes no odds really, the DPP will have some job ever making those proofs. That is assuming the DPP ever even prosecutes one of these cases. I'd put an even €100 there isn't a conviction under this law in the next 5 years.

Tom Young

Bump.

Our man in Havana

What defines a religion for the purpose of the act? I could create my own religion and claim that someone offended my followers?

GerardKeating

Bond-007 wrote: »

What defines a religion for the purpose of the act? I could create my own religion and claim that someone offended my followers?

Can i join ???

Our man in Havana

Sure.

Tom Young

It's not defined in the act, but you'll see in the quote above that Section 4 has some elements which might stop your plan Where do I get the membership forms?

Dubhghaillix

Anyone think Atheist Ireland's campaign stands a chance at overturning this law? I know they're hoping to be charged with blasphemous liable for publishing their 25 quotes ( http://www.atheist.ie/2010/01/25-blasphemous-quotations/ ), and then to challenge the law in the courts. It seems to me that the publication has genuine political value, but I wouldn't be the least surprised if some crank and or busybody comes out of the woodwork claiming "I'm offended", and seeks legal action against them. I'm just wondering, how can they challenge it?

The legislation is clearly constitutional, (albeit repugnant to the idea of Liberal Democracy), so is there any way that they could overturn it? I'd guess they have standing, given that they don't believe, but it isn't really violating any constitutional rights, is it? You could argue that atheists are more prone to violating this law, and forcing them to keep their views on religion silent (especially where it is due) is violating their right to freedom of conscience. (but that's kinda like Sen. Norris' argument that homosexuals were more prone to breaking the anti-sodomy laws, thus violating their constitutional right to equality of all citizens regardless of sex, and if I remember correctly the Supreme Court didn't accept that).

So can anyone think of a way they could beat this, or will the Irish have to once again turn to Brussels to overturn another barbarian law?

Our man in Havana

It would need someone to complain to the Gardai. Then the Gardai would send a file to the DPP. It is unlikely the DPP would bite and charge someone tbh.

Tom Young

Dubhghaillix wrote: »

Anyone think Atheist Ireland's campaign stands a chance at overturning this law? I know they're hoping to be charged with blasphemous liable for publishing their 25 quotes ( http://www.atheist.ie/2010/01/25-blasphemous-quotations/ ), and then to challenge the law in the courts. It seems to me that the publication has genuine political value, but I wouldn't be the least surprised if some crank and or busybody comes out of the woodwork claiming "I'm offended", and seeks legal action against them. I'm just wondering, how can they challenge it?

The legislation is clearly constitutional, (albeit repugnant to the idea of Liberal Democracy), so is there any way that they could overturn it? I'd guess they have standing, given that they don't believe, but it isn't really violating any constitutional rights, is it? You could argue that atheists are more prone to violating this law, and forcing them to keep their views on religion silent (especially where it is due) is violating their right to freedom of conscience. (but that's kinda like Sen. Norris' argument that homosexuals were more prone to breaking the anti-sodomy laws, thus violating their constitutional right to equality of all citizens regardless of sex, and if I remember correctly the Supreme Court didn't accept that).

So can anyone think of a way they could beat this, or will the Irish have to once again turn to Brussels to overturn another barbarian law?

While I don't disagree with you, I'd be most interested in your views on the preamble to the Constitution, to which we are all subject.

I have no views on atheism but I do believe that like the right to freedom of expression, people have a right to profess a faith, a non-faith, or whatever, similar to sex, orientation and so forth. In relation to the quotation, in my original post, there is a fair few savors in the legislation, as is.

I think the 25 quotes you have on your blog, or the blog cited, are interesting and there is something of a problem in relation to objectivity, subjectivity (:)) and indeed abnormal sensitivity should that law survive.

A Constitutional challenge will follow soon enough. In addition there probably will also be some form of proportionality test making the section invalid practically.

Anyhow - there you go.

Tom

metrovelvet

napplechunks wrote: »

I think it's fine - no wait..

Does the judge determine whether a reasonable person would find
artistic value in the material?

In my humble opinion this might be too subjective.

If one finds an item personally offensive they would be unlikely to find artistic value. As a purpose of art is to provoke a response, it is always possible the item would be offensive to someone, somewhere.

Alot of Jews find images of the crucifixion offensive. Should the national gallery be under house arrest?

Tom Young

Tom Young wrote: »

While I don't disagree with you, I'd be most interested in your views on the preamble to the Constitution, to which we are all subject.

The preamble has no direct legal effect though it can be taken into account when reading actual provisions of the Constitution. Even the CRG couldn't totally agree on what to do with it though, I'd imagine, it would probably be best to get rid of it altogether.

That said, one would do well to remember that the Preamble was the basis for much of the unenumerated rights doctrine, particularly in McGee and while it has had negative effects also (Norris) overall it has been beneficial. A number of constitutional scholars have noted that in absence of the Preamble an alternative expression of the spirit of the constitution (dignity, freedom etc) may be necessary.

Tom Young wrote: »

I have no views on atheism but I do believe that like the right to freedom of expression, people have a right to profess a faith, a non-faith, or whatever, similar to sex, orientation and so forth. In relation to the quotation, in my original post, there is a fair few savors in the legislation, as is.

There was a fair point made yesterday on Newstalk that, by simple definition, the religious beliefs of one faith are the blasphemous utterances of another. That said the express intention requirement would obviously cover such issues but, regardless, the entire Act seems designed to make a conviction nigh on impossible.

Tom Young wrote: »

A Constitutional challenge will follow soon enough. In addition there probably will also be some form of proportionality test making the section invalid practically.

I cannot see how one would ground any Constitutional challenge. In fact I would imagine this law fits perfectly with the Constitution as it currently stands in Art. 40.6.1. The proportionality test would similarly fail as it would look at the objective, namely to legislate for a Constitutionally mandated offence, and look at how it was done, very very restrictively and with almost no chance of a conviction, and the Court would have no choice but to find the legislation perfectly sound.

napplechunks

napplechunks wrote: »

I think it's fine - no wait..

Does the judge determine whether a reasonable person would find
artistic value in the material?

In my humble opinion this might be too subjective.

If one finds an item personally offensive they would be unlikely to find artistic value. As a purpose of art is to provoke a response, it is always possible the item would be offensive to someone, somewhere.

It is not whether the person or persons who find it offensive find any artistic value in it. Rather it is whether a reasonable man would do so.

Tom Young

Kayroo: Yes, sorry. Scratch the word "constitutional" in my above post, it should be presumed constitutional and is constitutional per your point, which is correct. Sorry, I wasn't thinking correctly at all. The legislation is as you point out.

Reading your earlier post re. DPP and grounding a crime, I agree also. 100 Euro bet?

In re. preamble, thanks for adding in the detail. The point I was asking the atheist poster, in a nice way, was to see what his views are of the preamble. Which as we know has a few references to God, religion etc. Cheers for putting in Magee and Norris they stand to exemplify or even amplify the point that even the the applicable body of the text is relatively free from religious guidance or reference, case law has seen the judiciary grounding judgments on religious foundations e.g., Norris.

I don't think my point on proportionality is right either but, what I was thinking (which you've answered) was what test would apply if a case came before a high court judge and how would such a test would be applied.

Now practically, I think there might be will out there to push this on? What do you think?

Tom

Dubhghaillix

Tom Young wrote: »

While I don't disagree with you, I'd be most interested in your views on the preamble to the Constitution, to which we are all subject.

Tom

I'm actually not with Atheist Ireland, just your run of the mill atheist.

I think that the preamble is really just surplus to requirement. A simple "we the people of Éire, do hereby adopt this constitution", would have sufficed. Personally, I see the "god" parts of it, as an expression of the sheer arrogance of Christianity, assuming that everyone agrees with your particular brand of metaphysical speculation.

If it's purpose is a mission statement, I don't think it's a very good one . Just "the unity of our country restored", and "obligations to our divine lord". Take the north back from the crown & bow before some apocalyptic prophet? Where's the "preservation of Democratic values & Republican Ideals?", or something like the United States Constitution "Life, liberty & the pursuit of happiness". If there is to be a preamble, I'd rather it be Democratic and not Theocratic.

"True social order". Does that actually mean anything? What then, is "false social order"? Forgive my ignorance, but "true social order", seems to me to essentially be carte blanche for the state to do whatever the hell it wants.

I think the one redeeming factor is the "with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured" bit. But I don't think that compensates for it promoting values contrary to Republican ideals, but like Kayroo said, it is important for the unenumerated rights doctrine, without which, we'd probably still be in the Victorian Era. (although personally, I don't think it could hurt to write them down).

If I were in a position to re-write the preamble today, it'd be something like:

"We, the people of Éire,

Do hereby adopt this constitution,

for the promotion of Democratic and Republican Ideals,

for the protection of the dignity, freedom, equality, and inalienable rights of the individual,

and in the hopes of building a nation, free from war, fear, oppression, tyranny, and in which each and every citizen is free entitled to life, liberty and the pursuit of happiness."

Tom Young

Tom Young wrote: »

Now practically, I think there might be will out there to push this on? What do you think?

Tom

What do you mean by "push this on"? Do you mean to try and get rid of it or try and get a conviction under it to prove the absurdity of the whole thing?

Dubhghaillix wrote: »

I think that the preamble is really just surplus to requirement.

You cannot think it is surplus to requirements and then later acknowledge that it was vital to the unenumerated rights doctrine. It cannot be both. The judiciary found use in it and if it is removed then it would probably be prudent to replace it.

Dubhghaillix wrote: »

Personally, I see the "god" parts of it, as an expression of the sheer arrogance of Christianity, assuming that everyone agrees with your particular brand of metaphysical speculation.

This is a pointless thing to say. Who cares about the arrogance of Christianity? This is a legal discussion.

Dubhghaillix wrote: »

"True social order". Does that actually mean anything? What then, is "false social order"? Forgive my ignorance, but "true social order", seems to me to essentially be carte blanche for the state to do whatever the hell it wants.

Your ignorance is excusable, it's an understandable mistake. A Constitution, and particularly this one, is designed to stop the State doing whatever it wants. It is designed to protect the individual from the machinations of the State and to always place the fundamental rights of the citizen on a par with the power vested in those charged with realising those rights on their behalf.

Dubhghaillix

Deleted User wrote: »

You cannot think it is surplus to requirements and then later acknowledge that it was vital to the unenumerated rights doctrine. It cannot be both. The judiciary found use in it and if it is removed then it would probably be prudent to replace it.

Apologies, I should have stated that I thought that adding a preamble in the first place was surplus to requirement, but that in hindsight it has proven a good thing for the most part, and if it was imperative/preferable to have one, I'd rather if it were secular. I suppose this is why lecturers tell me to read before submitting.

Deleted User wrote: »

This is a pointless thing to say. Who cares about the arrogance of Christianity? This is a legal discussion.

Fair enough. Tom Young was asking for my view on it, so I gave it. I think it is repugnant to democracy to assume that Authority comes from a source other than humans. I have my opinion, and the framers of the constitution had theirs.

Tom Young

Yes, try the conviction route and see what happens. I think getting rid of it won't happen now, but as you've said above it is constitutional.

Tom, the proofs are too high.

1. Prove it was grossly insulting.
2. Prove it was intended.
3. Prove it was about something held sacred.


Then the defences:

1. Reasonable man. This is the catch all defence. It will definitely stop a conviction.
2. Prove that it is a religion for the purposes of the Act. Atheist Ireland would have a field day, no prosecuting counsel could keep a straight face and argue against them.

Tom Young

I guess you're correct.

Wow, that ended a bit abruptly.

Tom Young

Deleted User wrote: »

Wow, that ended a bit abruptly.

Well, I guess so. Ideally, I'd love to see someone bring it through but I believe you're analysis is on the money.

Tom

PS: I take it the Brehon Lawyers association are not online!

GerardKeating

Bond-007 wrote: »

Sure.

What if our new religion found the Blasphemy law itself a form of Blasphemy, could we prosecute the government for publishing the law ?

napplechunks

GerardKeating wrote: »

What if our new religion found the Blasphemy law itself a form of Blasphemy, could we prosecute the government for publishing the law ?

I'll take a portion of that religion please-the blasphemy law is blasphemy! priceless:D maybe the principle could be applied to other laws...

sorry of topic...:)