It’s a pity that Part 5 of the Defamation Act, 2009, relating to blasphemy, has dominated the coverage of the Act at home and abroad (eg, US, Denmark (pdf)), since the legislation does considerably more than that. It is radical modernisation of Ireland’s defamation laws, and is a vast improvement on what had gone before. In particular, it provides several means to ensure much speedier resolution of defamation cases; it provides for a new defence of reasonable publication; it significantly improves the law relating to damages in defamation cases; and it gives a stable statutory footing to the Press Council. These will be matters to which I will return on this blog; but, before that, I want to make another comment about Part 5 of the Act.

Part 5 of the Act consists of three sections. Section 35 abolishes the common law offences of defamatory libel, seditious libel and obscene libel are abolished. Section 36, subsections (1)-(2) create the new crime of blapshemy, by making it an offence to cause outrage among a substantial number of the adherents of a religion by intentionally publishing material that grossly abuses or insults matters held sacred by their religion. This is narrowed in two ways: subsection (3) provides a saver for publications of genuine literary, artistic, political, scientific, or academic value; and subsection (4) excludes from the definition of “religion” an organisation which principally aims to make a profit or which employs oppressive psychological manipulation. Finally, where there has been a conviction, section 37 (probably impotently) allows for the seizure of blasphemous matter.

This Part of the Act was introduced very late in the day, and was the subject of limited debate in the Oireachtas, but it is not a unique provision. Moreover, as I have already said, it is neither a trap for the unwary, nor a charter for religious cranks, nor even a check upon valuable public discourse; but there are still many problems with it. First, for all that subsections (3)-(4) try to limit the reach of section 36, an important saver is missing. Section 8 of the now repealed Defamation Act, 1961 (also here) provided that

No criminal prosecution stall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application.

It was an application under this section that led to the decision of the Supreme Court in Corway v Independent Newspapers [1999] 4 IR 485; [2000] 1 ILRM 426; [1999] IESC 5 (30 July 1999) that the common law crime of blasphemy was too uncertain to give effect to the Constitutional mandate that blasphemy should be a criminal offence. But there is no equivalent in Part 5 of the Defamation Act, 2009, and its absence is not simply unfortunate but potentially perilous. More than that, given that this demonstrates that the section could easily have been far more narrowly drawn, it raises serious questions as to whether this is a proportionate restriction upon freedom of expression.

Even more disturbing are two points made by Eugene Volokh of UCLA School of Law. His first point is that the saver in section 35(3) is potentially troublesome:

… it seems to me that a court decision saying that the Mohammed cartoons or the Satanic Verses can’t be punished because it has “genuine literary, artistic, [or] political … value” would cause even more insult and social tension than the original speech itself would. At least without the blasphemy law, the government can say the speech is protected no matter how awful it might be. But with the blasphemy law, a government body must either find the speech unprotected — or place its imprimatur behind the view that the “reasonable person would find genuine … value” in it.

In other words, if there is an outcry about a controversial publication, then the government might have managed to get out of the frying pan by allowing for the possibility of prosecution under section 36, but it may have simply jumped into the fire, by allowing for the possibility of further inflaming the controversy if the publication is found to have genuine value. [On the Satanic Verses controversy, see here and here; on the Mohammed cartoons controversy, see here, here and here]. Volokh’s second point is even more interesting:

… Likewise, another defense requires courts to decide which religions “employ[] oppressive psychological manipulation” “of [their] followers.” Is threatening eternal damnation oppressive psychological manipulation, for instance? How about urging women to conceal themselves behind veils? I agree, of course, that religions should have the right to engage in such behavior, regardless of whether the government views it as “oppressive psychological manipulation” — but if the law sets up “oppressive psychological manipulation” as a legal standard for determining which religions’ adherents are protected from “blasphem[y],” then courts would have to apply that standard. Is religious tolerance and amity really advanced by official court decisions (and presumably jury decisions) about whether a religion practices “oppressive psychological manipulation”?

On both points, the analysis hits home. They demonstrate just how difficult the operation of the section is likely to prove, and underscore once again just how puzzling, hasty, ill-judged and misconceived the government’s response to Corway has been.

In other news, the Act is still not available anywhere in electronic format (it’s not in either of the two most obvious places: here and here); the best that can be done is to look at the final version of the Bill here (pdf). As with the availability of judgments, the tardiness with which such important public information is made available online is indefensible.