Category: Freedom of Expression

Political expression, autonomous communication, and anti-social behaviour orders: a note on Tallon v DPP [2022] IEHC 322 (31 May 2022)

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| Freedom of Expression, Freedom of Expression, Irish cases

Loudhailer ASBO

1. Introduction

The decision of Phelan J in Tallon v Director of Public Prosecutions [2022] IEHC 322 (31 May 2022) is a recent and important judgment on the scope of the free speech rights protected by Article 40.6.1(i) and Article 40.3.1 of the Constitution. It concerns the extent to which an anti-social behaviour order imposed pursuant to section 115(1) of the the Criminal Justice Act, 2006 (also here) can permissibly restrain constitutional free speech rights.

2. Free speech rights in the Irish Constitution

2.1 The freedom of political expression
The right “to express freely … convictions and opinions” contained in Article 40.6.1(i) of the Constitution is now understood, broadly speaking, as a freedom of political expression, concerned with the public activities of citizens in a democratic society (see Murphy v Irish Radio and Television Commission [1999] 1 IR 12, 24, [1998] 2 ILRM 360, 372, (28 May 1998) [37]-[44] (doc | pdf) (Barrington J; Hamilton CJ, O’Flaherty, Denham, and Keane JJ concurring) building on Irish Times v Ireland [1998] 1 IR 359, [1998] 2 ILRM 161 (2 April 1998) (doc | pdf) (Barrington J)). And, in Dunnes Stores v Ryan [2002] IEHC 61 (5 June 2002), Kearns J in the High Court struck down section 19(6) of the Companies Act, 1990 (also here), which required a company to provide an explanation or make a statement to an officer making inquiries about the company, on the grounds, inter alia, that it infringed the right to silence implied into Article 40.6.1(i) (a right now being relocated to Article 38.1 of the Constitution insofar as it relates to the fairness of the trial process; see Director of Public Prosecutions v M [2018] 1 IR 810, [2018] IESC 21 (21 March 2018) [37] O’Malley J (Clarke CJ and O’Donnell, Dunne and Charleton JJ concurring); Sweeney v Ireland [2019] IESC 39 (28 May 2019) [76] (Charleton J; O’Donnell, MacMenamin, Dunne and Finlay Geoghegan JJ concurring); Director of Public Prosecutions v Carroll [2021] IECA 261 (13 October 2021) [17] (Donnelly J; Edwards and McCarthy JJ concurring)).…

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Striking the balance of the constitutional protections of free speech and good name in Irish defamation cases – corrected, revised, and updated

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| Defamation, Freedom of Expression, Freedom of Expression

Balance scales, via Wikipedia1. Balancing competing rights
Irish defamation cases are increasingly replete with comments stating the need to balance the constitutional right to freedom of expression with the constitutional right to a good name. Article 40.6.1(i) of the Constitution protects “right of the citizens to express freely their convictions and opinions”; whilst Article 40.3.2 provides that the “State shall … by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the … good name … of every citizen”. Recent cases citing these rights together include Watson v Campos [2016] IEHC 18 (14 January 2016) [28] (Barrett J); Rooney v Shell E&P Ireland [2017] IEHC 63 (20 January 2017) [31]-[32] (Ní Raifeartaigh J); Ryanair v Channel 4 Television [2017] IEHC 651 (05 October 2017) [49]-[52] (Meenan J).

The language of balancing of competing constitutional rights is longstanding and widespread, in Ireland and elsewhere; and it is deployed in these cases to foreclose an a priori outcome where one right is automatically favoured over the other. Irish constitutional law does indeed subscribe to a hierarchy of rights in some cases (see, eg, People (DPP) v Shaw [1982] IR 1, 63 (Kenny J)); but that is usually unprincipled and largely unworkable (see, eg, Attorney General v X [1992] 1 IR 1, [1992] IESC 1 (5 March 1992) [138]-[139] (McCarthy J), [184] (Egan J); Sunday Newspapers Ltd v Gilchrist and Rogers [2017] IESC 18 (23 March 2017) [36] (O’Donnell J; Denham CJ, Clarke, MacMenamin and Dunne JJ concurring)); [update] indeed, it has been rejected where freedom of expression has been balanced against the right to a fair trial (DPP v Independent News and Media plc [2017] IECA 333 (21 December 2017) [13]-[14] (Edwards J) (Finlay-Geoghegan J concurring) (applying Gilchrist)) [/update]; and it has not been deployed at all in defamation cases when freedom of expression competes with the right to a good name.…

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Cliff Richard v BBC – Part II – Media speech and publication in the public interest

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| Freedom of Expression, Privacy

The record man said
‘Don’t let it go to your head, I’m gonna make you a star’
… So mama please don’t worry about me, I’m nearly famous now.

Sir Cliff Richard OBE in Greenwich 2017 (via Flickr) (element)1. Introduction
The words above are in the first verse of “I’m Nearly Famous”, the title track of an album released in 1976 by Sir Cliff Richard [Sir Cliff], pictured left rocking Greenwich, UK, in 2017. Six weeks earlier, the South Yorkshire Police [SYP] had admitted that their tip off to the BBC that he was being investigated in respect of allegations of historic sex abuse infringed his privacy (see, eg, Richard v BBC [2017] EWHC 1648 (Ch) (26 May 2017)). On foot of that tip off, the British Broadcasting Corporation [the BBC] gave those allegations and the search of Sir Cliff’s property in Sunningdale, Berkshire prominent and extensive television coverage. Last week, in Richard v BBC [2018] EWHC 1837 (Ch) (18 July 2018) Mann J held that that the BBC’s broadcasts also infringed Sir Cliff’s privacy, and awarded him £210,000 damages. In a previous post, I have considered Mann J’s analysis that Sir Cliff had a reasonable expectation of privacy under Article 8 of the European Convention on Human Rights [the ECHR] in respect of the police investigation.…

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Cliff Richard v BBC – Part I – Police investigations and reasonable expectations of privacy

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| Freedom of Expression, Privacy

I just got to tell someone about the way I feel,
Shout it from the rooftop to the street,
And if I spread the word please tell me who’s it gonna hurt …

Sir Cliff Richard OBE in Sydney 2013 (element)1. Introduction
The words above are the opening lines of “Can’t Keep this Feeling In“, released in 1998 by Sir Cliff Richard [Sir Cliff], pictured left in a mellow pose at a concert in Sydney, Australia in February 2013. In August of the following year, arising out of an ongoing investigation into allegations of historic sex abuse, the South Yorkshire Police [the SYP] searched a property belonging to him in Sunningdale, Berkshire; and – on foot of a tip off from the SYP the previous month – the British Broadcasting Corporation [the BBC] gave the allegations and the search prominent and extensive television coverage. Sir Cliff was never arrested or charged; and, in June 2016, the Crown Prosecution Service [the CPS] decided that Sir Cliff would not face any charges. This decision was re-affirmed by the CPS the following September, following a full review of the evidence.

Meanwhile, in July 2016, Sir Cliff commenced legal proceedings against the SYP and the BBC, arguing that SYP’s leak to the BBC in July 2014, and the BBC’s coverage of the raid in August 2014, invaded his privacy and breached his data protection rights.…

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The Proportionality of Tobacco Packaging Restrictions on Autonomous Communication, Political Expression and Commercial Speech

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| Freedom of Expression, Intellectual property, Tobacco Control

The Summer 2018 volume of the Northern Ireland Legal Quarterly has been published this morning. Just in time for tomorrow’s seminar, and building on my earlier paper in the QUT Law Review, it contains the following piece by me:

“A Little Parthenon No Longer: The Proportionality of Tobacco Packaging Restrictions on Autonomous Communication, Political Expression and Commercial Speech” (2018) 69(2) Northern Ireland Legal Quarterly 175-211

Abstract
This paper evaluates the constitutionality of statutory restrictions upon tobacco packing in Ireland. It concludes that public health and the protection of children constitute pressing and substantial reasons sufficient to justify the Public Health (Standardised Packaging of Tobacco) Act 2015 and Part 5 of the Health (Miscellaneous Provisions) Act 2017 as proportionate restrictions upon tobacco companies’ freedom of political expression protected by Article 40.6.1 of the Constitution and freedom of autonomous communication protected by Article 40.3.1.

In many respects, Ireland has been a world leader in tobacco control, from banning smoking in the workplace or in cars with children, to requiring standardised packaging. Part 1 introduces this article; it sets out the background to the 2015 and 2017 packaging legislation. Part 2 of this article, on restrictions, describes the restrictions in the packaging legislation.

…

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Legal reforms and practical responses are necessary to protect freedom of speech

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| Freedom of Expression

Sunday Independent front page 12 NovYesterday’s Sunday Independent (front page pictured left) was something of a bumper issue for freedom of speech. The Editorial argued that it’s time to level the media playing field, and called on the Joint Oireachtas Committee on Communications, Climate Action and Environment to take into account the challenges facing all of the media, not just radio and tv stations, in its deliberations on the future of the television licence fee. And there were three other interesting columns in the print edition that were published online last night. Fergal Quinn argued that, with a referendum looming, the media should champion free speech, and we must learn to tolerate open debate. Eilish O’Hanlon argued that no-one should need to beg the Government’s permission to express an unpopular opinion. And Ruth Dudley Edwards praised Conor Cruise O’Brien as a revisionist who cared about truth and as a patriot who kept free speech alive.

Last week, the Long Room Hub in Trinity College Dublin and the Heyman Center for the Humanities in Columbia University, New York co-hosted a series of events in Dublin and New York on the challenges fake news poses to modern society. In yesterday’s Sunday Independent, Breda Heffernan reported on one of the Dublin events that fake news is a dark menace to truth, democracy and discourse.…

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Making headlines defending speech

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| Freedom of Expression, Irish Society

Headlines & Fake NewsIn Trinity College Dublin, where I work, the Long Room Hub is the College’s Arts & Humanities Research Institute. It hosts over 250 events each year, including a discussion series entitled Behind the Headlines, which offers background analyses to current issues by experts drawing on the long-term perspectives of Arts & Humanities research. In particular, the series “aims to provide a forum that deepens understanding, combats simplification and polarization and thus creates space for informed and respectful public discourse.”

In the recent past, the series has featured discussions on artificial intelligence, Trump’s America, Syria, and Brexit (not once but twice). The next event in this series will be on Monday 6 November 2017, 6:30pm to 8:00pm, on

Freedom of Speech: Where Journalism and the Law Collide at the Boundary of 21st Century Debate

In a world where truth is under siege, freedom of speech has never been more important. But, as outrage and offense in public debate become a commodity for social media technology giants, the future of professional journalism in educating public opinion while challenging authority and power is increasingly under attack. …

This discussion is part of the ‘Fears, Factions and Fake News’ symposium held in conjunction with Columbia University and in partnership with Independent News and Media.

…

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Social media, open justice, and contempt of court

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| Contempt of Court, contempt of court, Freedom of Expression, Open Justice

Social Media iconsI have a short op-ed in today’s Irish Independent, on the topic of contempt of court by social media, pointing out that there’s a fine line between commenting on and prejudicing a trial (registration required).

Here’s a rather longer version, with a few relevant links:

The law on contempt applies equally to all media, offline and online

Social media coverage of criminal trials raises profound constitutional issues, and may hasten legislation on contempt of court

Justice shall be administered in public, according to Article 34.1 of the Constitution. The full glare of a public hearing enables everyone to know that justice is being administered fairly, and impartially, and according to the evidence. It allows the press and the public to report on, to scrutinise, and to comment upon, the workings of the law.

Every person facing a criminal charge is entitled to a fair trial, according to Article 38 of the Constitution. So commentary that gives rise to a substantial risk either of serious prejudice to, or of prejudgment of, an active trial, can amount to contempt of court. This can be dealt with either by the judge during the trial itself (by charging the jury to ignore the comments, or penalising the commentator, or – in rare and extreme cases – stopping the trial, or some combination of these), or by a case taken by the Director of Public Prosecutions against the commentator after the trial.…

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