European Lawyer journal debates blasphemy law

In the current edition of The European Lawyer magazine, I argue against the new Irish blasphemy law and Thomas Byrne TD of the Oireachtas Justice Committee argues in favour of it. I am publishing the text of both articles here, and I will analyse the arguments made by Thomas Byrne TD in a separate post.

(The European Lawyer is the leading monthly magazine for the legal profession across Europe. Its subscribers – predominately senior private practice and in-house lawyers – are based in jurisdictions across the European continent as well as the UK and North America.)

This is the argument for the law:

Necessary modernisation

Thomas Byrne TD is a solicitor and a member of the Oireachtas Justice Committee

Long awaited reform and modernisation of defamation law in Ireland has unfortunately been overshadowed by ill informed and somewhat hysterical campaigning over the arcane issue of blasphemy libel.

The Defamation Act 2009 came into operation at the beginning of this year and introduces a modern statutory framework, providing for:

• comprehensive reform;
• statutory expression to developments in the jurisprudence of Irish courts, and elsewhere, including the European Court of Human Rights;
• respect for the necessary balance between the competing rights of freedom of expression (article 40.6.1 of the Irish Constitution) and of respect for ones good name and reputation. (article 40.3).

In completing the reform and modernisation of defamation law, the Minister for Justice had to consider the provision on blasphemous libel contained in section 13 of the old Defamation Act 1961. That section provided for the offence to be punishable by monetary and prison penalties (a term of up to two years’ imprisonment was possible). The section gave expression to article 40.6.1.i. of the Constitution, which is its only criminal offence provision, stating: ‘The publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law.’

This issue has onlv come to prominence in the context of the reform of Ireland’s defamation legislation. The minister had previously explained in some detail, both before the Oireachtas (the parliament) and in the media, the position in relation to the constitutional obligation involved here.

The Irish government was required to respect the provision of our constitution. Successive attorneys general advised that until the constitution is amended, by referendum of the Irish people, it is necessary that blasphemous libel remain a crime and that legislation must make provision for sanctions for this crime. Thus, to proceed with the reform of defamation law, it was necessary to address this issue.

At the Dail (the lower house of parliament) committee stage examination of the Defamation Bill last May, Justice Minister Dermot Ahern made it clear that (we as legislators do not have the luxury of pursuing a do-nothing approach while we wait for an opportune moment to move a constitutional amendment’. He set out all the relevant elements involved and drew particular attention to the nature of the constitutional obligation imposed.

The government’s preference, which I believe was widely supported, was to proceed with reform of defamation legislation rather than postpone it to await a possible referendum on blasphemous libel. I have expressed the hope that sanctions in regard to blasphemous libel will be little, if ever, a point of issue in the future. This was the case in the past under the provisions of the previous Defamation Act of 1961.

It is important to understand, despite claims to the contrary, that the provisions in the Defamation Act 2009 are not designed for the protection or promotion of any particular religion. I received no representations from any particular religion in regard to the drafting of those provisions.

Despite the criticism directed towards Mr Ahern by some, as a minister he is not in a position to advise anyone as to any potential breach of the law nor to offer a view as to any possible prosecution. Prosecution of criminal offences in Ireland is a matter solely for the independent Director of Public Prosecutions.

I hope that we will not have to wait a long time before a suitable occasion arises to put a proposal to the Irish people to delete the reference to blasphemy from our constitution. This course of action was proposed by the Joint Oireachtas Committee on the Constitution in July 2008, which suggested that we might avail of any appropriate opportunity in the future.

However, I am not necessarily convinced that a referendum needs to be held as a matter of urgency, given the other serious challenges facing our country. I should also point out that one should not anticipate a positive result in a referendum.

And this is the argument against the law:

Blaspheme and be damned

Michael Nugent is an Irish writer and chairperson of the advocacy group Atheist Ireland.

Why has the Irish Government introduced a medieval canon law offence into the criminal law of a modern pluralist democratic republic? Officially, it is because blasphemy is an offence under the Irish Constitution. But in 1999, the Supreme Court had found that the existing law was unenforceable, as blasphemy was not defined. However, between 1996 and 2008, four Constitution Review Committees had called for the deletion of religious references, including blasphemy, from the Constitution.

And in 2008, the Venice Commission, the body that advises the Council of Europe on constitutional matters, recommended that incitement to hatred, including religious hatred, should be a crime; that insult to religious feelings should not be a crime; and that the offence of blasphemy should be abolished (which is already the case in most European States) and should not be reintroduced.

In this context, nobody in Ireland expected the offence of blasphemy to survive the recent updating of the Defamation Act which contained it. The Justice Minister had three options: to leave the law as it was, to seek a referendum to remove blasphemy from the Constitution, or to make the law enforceable by defining blasphemy. He chose the third option. And so, for the first time, Ireland now has an enforceable blasphemy law.

This new law is both dangerous and silly. It incentivises religious outrage by making it the first test of blasphemy, in a Europe where cartoons or novels can trigger such harmful behaviour. The new law also treats religious beliefs as more valuable than secular, scientific or political beliefs. But the criminal law should protect people from harm, not ideas from criticism. In any case, we should be removing 1930s religious references from our Constitution, not legislating to enforce them. For example, you cannot become President or a Judge in Ireland without taking a religious oath.

Even if the Minister felt obliged to bring in a blasphemy law, he was certainly not obliged to bring in this particular one. It is too vague to enable citizens to regulate their conduct, and is discriminatory in its ambiguities. For example, what is “a substantial number of adherents” of a religion? If it is an actual number, it discriminates against smaller religions. If it is a proportion, it discriminates against larger religions.

In 2007, the English High Court held that it was the prevention of imminent public disorder that made the old English blasphemy law compatible with Article 10 of the European Convention of Human Rights. But “causing outrage” is a far lower hurdle than the risk of public disorder. If the Irish Supreme Court were to use the same criteria as the English High Court, it could find this law unconstitutional.

The new law also discriminates against atheists. In 1999, the Irish Supreme Court said the old common law of blasphemy would have to be adapted to the circumstances of a modern State which guarantees freedom of conscience and of religion. The new law attempts to do this by redefining blasphemy as protection from outrage and extending such protection to citizens of any religion. However, it arbitrarily excludes such protection from citizens whose fundamental belief system is based on no religion.

Under political pressure, the Minister reduced the fine from €100,000 to €25,000 and introduced some safeguards that merely add more problems. The ‘genuine value’ defence shifts the burden of proof to the defendant in a criminal trial. And the exclusion of so-called ‘cults’ from being classified as religions is an arbitrary interference in the constitutional rights to freedom of religion and from discrimination.

The Minister just doesn’t get it. The problem with a blasphemy law in a modern republic is its existence, not its detail. On the day it became operational, Atheist Ireland published 25 blasphemous statements on our website. If we are prosecuted, we will challenge the constitutionality of the law. If we are not prosecuted, it strengthens the political case for the repeal of a law that serves no purpose.

Worryingly, this law is also harmful outside Ireland. In recent years, Islamic States have been trying to make defamation of religion a crime at UN level. Ireland has voted with our fellow EU States against this concept. Now Pakistan, on behalf of the Islamic States, has adopted the wording of the new Irish law to advance their agenda at UN level. This silly and dangerous Irish law will eventually be repealed. For everybody’s sake and for the reputation of Ireland, this should happen sooner rather than later.

As mentioned earlier, I will analyse the arguments made by Thomas Byrne TD in a separate post.

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Hot Press tackles blasphemy law

Hot Press magazine has published a comprehensive feature on the new Irish blasphemy law. In it, Valerie Flynn argues that, in truth, Ireland’s ludicrous new blasphemy laws are no laughing matter and, what’s worse, there is now a move to get others to copy us!

2010: Yeah, it sounds like the future, but my hover skateboard and phaser gun seem to have gone missing! Instead, out here on the farthest, weirdest edge of Europe, we’re keeping things nice and retro in this sci-fi sounding year by reintroducing some Middle Ages-style blasphemy laws.

To quote: “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 €25,000. 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.”

Hot Press asked Michael Nugent, of campaigning secularist group Atheist Ireland, what he thinks of this absurd new addition to the Irish statute book.

“Well, there are two categories of concern. One is that it’s a silly law,” says Nugent. “Blasphemy is a theological concept and it shouldn’t have any place in the criminal law of a pluralistic country. When there are a number of religions it doesn’t make sense – any one religion’s stated beliefs are blasphemous to another religion’s stated beliefs.”

For example: in 2006 Pope Benedict XVI quoted a 14th century Byzantine emperor – and caused quite a bit of offence – when he said: “Show me just what Muhammad brought that was new and there you will find things only evil and inhuman.”

On January 1, Atheist Ireland marked the introduction of the new law by publishing this sentence on their website – one of 25 (arguably) ‘blasphemous’ quotations thus enshrined. Also on the list was “Actually, I’m a bit gay” – that one from ‘Jesus’ in Jerry Springer: The Opera. A law that criminalises that kind of joke sounds like a joke itself. But Irish Independent cartoonist Aongus Collins reckons there’s a real and serious dimension to the blasphemy law when it comes to freedom of speech.

Here’s why: the maximum fine for blaspheming is €25,000. The only possible defence, under the terms of the law, is that “a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.”

According to Collins: “The problem is that you have to defend yourself in court. A national broadcaster or a national newspaper will have a libel fund. But a small book publisher or a small magazine could be literally bankrupted because legal costs are so high in Ireland. What it does is that any small publisher of, say, [militant atheist] Richard Dawkins in Ireland would have to go to a barrister before publishing. It is intended to have a chilling effect on free speech.”

Collins believes that for non-mainstream publishers – bloggers, freelance journalists, left-field magazines, smaller or radical publishing houses – the new law, with its hefty fine, will be a meaningful and material inhibition to freedom of expression.

“I work for the Irish Independent, the Irish Times and the [Sunday] Tribune, but I got started working in smaller magazines like In Dublin. In the 1980s, I did a few cartoons that were a bit close to the bone in terms of the Catholic Church. I didn’t think twice in my 20s or 30s – but I would now. A small magazine would have to decide if it can afford to go to court.”

Another disturbing aspect of this law, and one that has been very much under-reported since the Bill was first announced last year, is the powers given to the Gardaí. Where a garda has reason to believe that copies of a “blasphemous statement” are to be found at a premises – including a dwelling – he or she is authorised, “if necessary by the use of reasonable force… to seize and remove any copies.”

“I’m a cartoonist and it’s very easy to offend, for example, Islam,” Aongus says. “The definition of blasphemy is so subjective. It’s carte blanche for some religious extremist to make a complaint to the guards. If they make a complaint, the guards can enter a business premises or even enter your house and grab all copies of this statement. So they could take your PC.”

For many Irish people, the blasphemy law seems like a depressingly familiar throwback to the days when Monty Python’s Life of Brian was banned. That’s not so far from living memory, kids – 1987 to be precise. But Michael Nugent believes we shouldn’t just look at this law just in the context of our own, fairly miserable, history of censorship and of the cultural dominance of the church. We should pay close attention to the international implications.

“At the UN for the last 10 years, the Islamic countries have been trying to make defamation of religion a crime and the western states, including Ireland, are opposing those attempts. But now they have the opportunity to say, ‘Here’s one of your own countries doing this’,” says Nugent.

The Organisation of the Islamic Conference (OIC) – the collective body representing Muslim states – has already adopted the wording of Ireland’s blasphemy law for the purposes of lobbying the UN General Assembly to introduce an international treaty criminalising defamation of religion. Now there is a contribution to the campaign for Freedom of Ideas!

So you’re probably wondering why in the name of god (oops – blasphemy?) this law was enacted? It’s a bit of a mystery. Before news of the blasphemy Bill came out last year, Foreign Affairs Minister Mícheál Martin had been actively opposing the OIC’s attempts to have blasphemy declared a crime. Surprisingly, there is no evidence to suggest that the Catholic Church lobbied for this new law. Neither did the Protestant churches, nor the Islamic community in Ireland – although the latter subsequently welcomed it.

The official line from Justice Minister Dermot Ahern (he wasn’t available for interview) seems to be that his hands were tied: previously, blasphemy was prohibited by the Constitution but there was no corresponding crime on the statute books.

Fianna Fáil TD Seán Connick, convenor of the Oireachtas Committee on Justice, told Hot Press the Government had a choice between a referendum on the blasphemy provision in the Constitution and reform of the existing law. It was the Minister’s choice, and he went down the road of ‘reform’. Too much is being “read into” this piece of legislation, he added.

Connick denies the blasphemy law will stifle free speech, using as a (slightly mystifying) example, last year’s pseudo-scandal, Portraitgate – when a nudey picture of the Taoiseach was hung on the wall of the National Gallery. But RTÉ was pressurised into issuing a full apology for reporting that story. “What one person finds humorous, another person might find offensive,” responds Connick.

Words of wisdom indeed – which underline very well the dangerous side to this blasphemy law.

By all accounts, Dermot Ahern is highly conservative. He (in)famously spoke against the de-criminalisation of homosexuality in the Dáil in 1993 (“We have a duty to legislate for the standards and norms which we regard as appropriate for the Irish people.”) In light of this, some observers have speculated that the influence of hardcore Catholic organisation Opus Dei within the public service might have been a factor behind the blasphemy law. We are unlikely to find out.

Whatever the impetus, it’s pretty clear that anyone publishing or broadcasting in Ireland on the topic of religion is going to have this law at the back of their mind. Michael Nugent says most media organisations have shied away from printing the exact words of Atheist Ireland’s 25 ‘blasphemous’ quotations. And Hot Press has already spoken to one frequent participant on RTÉ’s The Panel, who said he was reminded to be aware of the new law – even before it was enacted on January 1.

So far, one month and two weeks into 2010, no one has yet been prosecuted yet for ‘grossly offending’ Jesus, Allah, Yahweh or any other deity. As they say in the clearly aberrant and thoroughly blasphemous Life of Brian: “Always look on the bright side of life.”

This article appeared in the Feb 3-24 print edition of Hot Press magazine. It is is online, along with further analysis of the blasphemy law, on the Hot Press website.

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Blasphemy art exhibition in Dublin

The blasphemy exhibition in the Oonagh Young Gallery is on until Saturday 27 February, and is open from 12 to 6pm every Thursday, Friday and Saturday. It’s a fascinating show, and well worth a visit.

This Wednesday at 7pm there is a special screening of Rocky Road to Dublin and The Making of Rocky Road to Dublin, which should be watched by anyone interested in secularism and censorship in Ireland.

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Atheist Conference in Denmark in June

I look forward to speaking at an international atheist conference titled “Gods & Politics” in Copenhagen, Denmark, from June 18-20, 2010.

It is the first Atheist Alliance International conference to be held in Europe, and is co-hosted by AAI and the Danish Atheist Society.

The venue is the Royal Danish Library also known as “The Black Diamond”.

It would be great if as many atheist activists as possible from Europe and beyond can attend this conference, as atheism is a concept that crosses national boundaries and we can all learn from each other and support each other in our advocacy work in our respective countries.

The full list of speakers is:
AC Grayling (UK)
Aroup Chatterjee (UK)
Brian Arly Jacobsen (DK)
Christer Sturmark (SE)
Dan Barker (US)
Gregory Paul (US)
Ivana Bacik (IRE)
Jens Morten Hansen (DK)
Lone Frank (DK)
Michael Nugent (IRE)
Mikael Rothstein (DK)
PZ Myers (US)
Paula Kirby (UK)
Per Bilde (DK)
Rebecca Goldstein (US)
Rebecca Watson (UK)
Richard Wiseman (UK)
Robin Ince (UK)
Simon Bressendorff (DK)
Taslima Nasrin (US)
Victor Stenger (US)

You can get further information at http://www.godsandpolitics.eu

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PZ Myers in Dublin promotes Atheist Ireland

PZ Myers, biology professor and author of the science blog Pharyngula, promotes Atheist Ireland (and Guinness!) during his visit to Dublin.

(If you can’t see the video, go to this page.)

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