Strong press self-regulation can provide alternative to blasphemy laws

The Charlie Hebdo murders, and the revulsion they evoked are salutary reminders of the vital importance of a free press in a democratic society. But not all the relevant questions have been asked or answered, nor all of the issues adequately addressed. It is possible indeed that there are no simple answers but that does not mean that these questions should not be aired.

It is unarguable that there is no justification of any kind for the murder of journalists – or of any members of the public – for speaking, writing, or drawing their opinions, however offensive or blasphemous they may appear to some. Despotic regimes which engage in state-sanctioned murder for the same reasons are no better. But it is difficult to argue on the basis of this premise that all speech, and particularly speech by journalists, should be immune from any sanction in all circumstances.

There is hardly a society that does not impose some legal limits on the freedom of speech. And defining whether, and when, such limits are appropriate is not readily assessable by agreed international norms (the European Convention on Human Rights, for instance, balances freedom of expression against the right to privacy) because the issues concerned involve complex webs of both political and cultural norms.

In France, as Gary Younge pointed out in the Guardian on January 12th, Le Monde was found guilty in 2005 of "racist defamation" against Israel and the Jewish people, and Charlie Hebdo itself, in 2008, fired a cartoonist who refused to apologise for anti-Semitic comments in a column. Even in the US, whose media is less restricted than that in any comparable jurisdiction, there are civil libel laws which can be invoked, however rarely, to penalise the media, and the unauthorised publication of government information can lead to horrendous and expensive legal consequences for the organisation and any reporters involved.

Here, we have libel legislation that is still over-protective, an Official Secrets Act that does not bother to conceal its dated British parentage, and the Prevention of Incitement to Hatred Act. There is also the Code of Practice for journalists, of which more anon.

TheCharlie Hebdo murders have now encouraged wide acceptance of the proposition, already promoted by the Constitutional Convention, that blasphemy should be decriminalised in a constitutional referendum.

Defamation Act

It is therefore appropriate to look at the origins both of the constitutional provision and the law which gives effect to this provision – sections 36 and 37 of the 2009 Defamation Act – and at some of the more fundamental issues which will remain even if the Constitution is changed.

The Fianna Fáil-PD government had a choice in 2004 (when the 2009 Defamation Act was first incubated) between promoting a constitutional referendum to remove the section on blasphemy or passing legislation defining it so that it could be designated a criminal offence.

Fearful, no doubt, of embarking on another unpredictable referendum, both that government and the subsequent Fianna Fáil-Green government decided to define blasphemy by statute. I am no lawyer, but any common-sense reading of the provision suggests strongly that it was deliberately designed to reduce the chances of a successful prosecution for blasphemy to as close to zero as possible. Another Irish solution to an Irish problem, no doubt.

Those chickens have now come home to roost. Indeed, the first flight of these birds arrived even earlier, when representatives of states in which Islam is a powerful political force argued in international organisations – to the alarm, I heard at the time, of our diplomats – that the new Irish law was a precedent which could justify national pro-Islamic legislation in their own countries. This is certainly a reason, not the only one, for now removing these provisions from our law.

There is a strong argument for the removal of the constitutional provision on blasphemy, and of the subsequent statute criminalising blasphemy. They are out of date, vague to the point of incoherence, and capable of spawning all sorts of sectarian nonsense. But this will not in itself solve the problem of deciding when some speech, or journalism, is so offensive, or dangerous, that the risks created cannot be ignored, and of devising appropriate sanctions for breaches of what are essentially cultural, social and political, rather than legal, parameters. There are no agreed international norms in this regard.

This is where the Press Ombudsman, and the Press Council, and the Code of Practice come in. It must be noted that the Code of Practice is not the Press Council's, nor the Press Ombudsman's, but a code agreed formally by journalists before the establishment of the council. It is monitored by a Code of Practice Committee, structurally part of the Press Council, but not including any member of the council. Its membership is confined to editors or their representatives and the ombudsman, and it can effectively promote or veto any change to the code. In my time on the committee, no member has ever suggested that the core elements of Principle 8 of the Code, which mirror the provisions of the Prevention of Incitement to Hatred Act, should be removed or amended.

Breaching the code

The ombudsman and/or the council do not have the power to prevent the publication of blasphemy, or indeed of anything else which may be a breach of the code. It would require legislation (which I and many others would oppose) to confer such powers.

But it doesn’t mean that they are powerless. Deciding that the code has been broken in relation to blasphemy or anything else, is not a penal provision, but a soft, social judgment which the original framers of the council’s articles of association no doubt hoped, and as I believe has happened, would have a cumulative and persuasive effect on the development and maintenance of journalistic standards appropriate to our society, our culture and our age.

Technically and legally, there is no reason why editors cannot republish ad nauseam matter which the ombudsman or the council has determined to be a breach of the code which the editors themselves established. But it doesn’t happen, and that fact speaks for itself.

Decriminalising blasphemy is only part of the answer to a deep-seated set of problems. A strong and independent press ombudsman and press council, supported by editors even when, perhaps especially when, they are chagrined by decisions that go against them, is also essential. While not necessarily a conclusive response to the complicated issues involved in an area where different rights clash, these voluntary structures are an effective and important element in the ongoing task of ensuring that human dignity, and human rights, are honoured in the spirit, as well as in the letter, of our public discourse and in our society.

John Horgan served as Press Ombudsman from 2007-2014