A chilling effect

The Irish Constitution’s freedom-of-expression guarantee, as part of article 40.6.1(i), includes blasphemy, sedition, and the publication of indecent matter as part of the constitutional crimes that would be punishable in accordance with law.

The Defamation Act 2009 included provisions to clarify and strengthen the criminal law of blasphemous libel. The retention of the offence converged with the debate over freedom of expression and religious sensibilities, as highlighted by the publication of cartoons depicting the Prophet Muhammad in a Danish newspaper. The act took blasphemy from a constitutional offence, without supporting legislation, to a powerful criminal offence punishable by a fine of up to €25,000. Irish law went from a situation where blasphemy was a vaguely defined transgression to a criminal offence with a severe bite.

Even though the offence does allow for a literary, artistic, political, scientific, or academic-value defence, the mere fact that such an offence is created in the statute books creates a chilling effect, writes Jennifer Kavanagh, a lecturer in Law at Waterford Institute of Technology and author of ‘Constitutional Law in Ireland’.

The move to reform

This, in turn, has made the constitutional position of blasphemy a more tangible and controversial issue, which was considered by the Constitutional Convention. In all, 61% of convention members said that blasphemy should be removed from the constitution, with a majority supporting new provisions regarding incitements to religious hatred. The proposal that will be put before the people in November is to remove the word ‘blasphemous’ from the constitution, but retain the sections related to seditious and indecent matter.

Writing in the September Gazette, Kavanagh discusses the implications of the proposed change, and the arguments advanced on both sides of the issue to date.

Read the full article in the Aug/Sept 2018 Gazette

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