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Ireland's political and cultural magazine
32 July
I
n Russia, a new law against “disrespecting
the armed forces” has been used to
prosecute dissenters making protests
such as writing “no to war” in the snow.
Meanwhile…in Ireland the Online Safety
and Media Regulation Bill, which
establishes a new Media Commission to replace
the Broadcasting Authority of Ireland in Section
46J provides that:
“Broadcasters and on-demand audiovisual
media services shall not broadcast or make
available certain material which may reasonably
be regarded as causing harm or oence, as likely
to promote, or incite to, crime, as conduct which
advocates the commission of terrorist oences
within the meaning of Article 5 of Directive (EU)
2017/541, as likely to incite to violence or hatred
directed against a group of persons, or a member
of a group, or as tending to undermine the
authority of the State”.
Let’s just focus on the extraordinarily wide
provisions prohibiting broadcast of material
which “may reasonably be regarded as causing
harm or oence”, or “as tending to undermine the
authority of the State”.
The bill criminalises causing harm or oence
as judged reasonably.
But by whom?
By David Langwallner
Broadcasters shall not broadcast material
which may reasonably be regarded as
causing harm or offence, or as tending to
undermine the authority of the State.
A politically appointed commission? Vox
populism? The ‘mob’? Mr Varadkar and his
expressed fear of unregulated journalism?
Right-thinking members of the community? Us
not them?
Or is it that the norm, breach of which may
cause “offence”, has inevitably been
established by those who rule the system.
In the Seanad, Senator Alice Mary Higgins
noted: “There is a danger that we come to a
point, even though we are trying as a society
to move ourselves forward towards more
equality and human rights, at which this
legislation sets in place an absolute reification
of existing power structures whereby anything
that might oend or harm existing powers or
interests could eectively be challenged”.
She therefore suggested an amendment that
“would prohibit the broadcast” of “anything
that may reasonably be regarded as causing
harm to a group of persons, or a member of a
group, based on any of the grounds referred to
in Article 21 of the [EU Charter on Human
Rights]”.
That prescribes that “Any discrimination
based on any ground such as sex, race, colour,
ethnic or social origin, genetic features,
language, religion or belief, political or any other
opinion, membership of a national minority,
property, birth, disability, age or sexual
orientation shall be prohibited”.
Quietly
Criminalising
Causing Offence
Media Regulation Bill prohibits rights to broadcast material
that may cause offence or undermine authority of State,
but some well meaning legislators seem oblivious
Minister Catherine Martin appeared well
disposed to the earnest entreaties of Senator
Higgins but considered:
“Going further than {Article 6 of the EU
Directive – which the bill purports to be
implementing} in reference to the Charter,
without a firm basis in existing EU legislation,
may give rise to unintended consequences.
Given one of the grounds in Article 21 of the
Charter is “political or...other opinion”, the
amendment may inadvertently prevent criticism
of political groups. Accordingly, I propose to
reject the amendment”.
She resolved to return with better wording.
With respect, both Senator Martin and
Senator Higgins seem out of their depth. Article
6 of the Directive merely provides…
“Without prejudice to the obligation of
Member States to respect and protect human
dignity, Member States shall ensure by
appropriate means that [broadcasts] do not
contain any:
(a) incitement to violence or hatred directed
against a group of persons or a member of
a group based on any of the grounds
referred to in Article 21 of the Charter;
(b) public provocation to commit a terrorist
oence...
The measures taken for the purposes of this
Article shall be necessary and proportionate and
shall respect the rights and observe principles
set out in the Charter”.
Catherine Martin is utterly wrong to say the
Irish bill could fail to provide for the
implementation of the EU Directive — since the
bill is implementing EU law of which the Directive
and the Charter are both components.
Implementing the Charter, which applies to
POLITICS
July 33
Member States only when they are applying EU
law, hardly risks “unintended consequences”
in terms of implementation of EU law!
Perhaps, however, to avoid the clever point
she makes about not wanting the bill to define
oence to exclude “criticism of political groups”,
it could, even better, be limited to the grounds
listed in the current Prohibition on Incitement to
Hatred Act 2009 — which prohibit “stirring up
hatred” against “a group of persons in the State
or elsewhere on account of their race, colour,
nationality, religion, ethnic or national origins,
membership of the travelling community or
sexual orientation”.
If broadcast material is deemed oensive by
some people but doesn’t do any of that, I believe
it should be tolerated.
The reason it won’t be is that there is a myth
abroad that the current legislation is deficient.
Senator Higgins for example stated “I accept
that the incitement against hatred provision has
been too narrow and inadequate in addressing
the targeting and harm that is done”.
It is a dangerous myth. It is not deficient, it is
simply not implemented.
In passing we may note that the UK’s own
delayed internet safety bill encourages internet
service providers to be self-policing and
crucially, and wisely, only criminalises harmful
content not oensive content.
An alternative to “going the EU route”, could
be the European Court of Human Rights (ECHR),
an agency not of the EU but of the largely parallel
Council of Europe. In Ireland the State is obliged
as far as possible to follow the case-law of the
ECHR. Sadly but crucially, in domestic law it
depends on interpretation by Irish courts, and
is subject to Ireland’s own Constitution.
Several ECHR cases such as Jersild and
Lingens have indicated that speech
encompasses the right to outrage and shock
and that these are the hallmarks of tolerance
and broadmindedness for the ECHR. Now not
everything is permitted: Holocaust denial or
racist speech and incitement to hatred against
vulnerable minorities most notably, for example,
but the parameters are wide; or were.
So we can’t rely on the progressive
jurisprudence of the ECHR as its status is inferior
to national and EU Law, and can be overridden.
Turning then to the bill’s prohibition on
broadcasting material tending to undermine the
authority of the State. This in fact replicates the
terminology of the existing 2009 Broadcasting
Act but is none the less disgraceful for that. The
authority of the State is very wide and very deep.
Undermining it at the edges is healthy in a
democracy. Prohibiting it is Stalinesque.
This bill as initiated is a bald assertion of a
controlled statist and corporate fascism and the
rendering nugatory of the elite from criticism.
Christopher Hitchens, the last piece in the
enlightenment tradition of rationalist criticism,
remarked that freedom to speak inoensively is
not worth having.
So, in Snyder v Phelps (2011) a fundamentalist
Christian group, Westboro, demonstrated
outside a gay serviceman’s funeral. Upholding
speech rights, the US Supreme Court concluded
that:
’Westboro believes that America is morally
flawed; many Americans might feel the same
about Westboro. Westboro’s funeral picketing
is certainly hurtful and its contribution to public
discourse may be negligible. But Westboro
addressed matters of public import on public
property, in a peaceful manner, in full compliance
with the guidance of local ocials. The speech
was indeed planned to coincide with Matthew
Snyder’s funeral, but did not itself disrupt that
funeral, and Westboro’s choice to conduct its
picketing at that time and place did not alter the
nature of its speech…As a Nation we have
chosen…to protect even hurtful speech on
public issues to ensure that we do not stifle
public debate. That choice requires that we
shield Westboro from tort liability for its
picketing in this case”.
In Brandenburg v Ohio (1969) The court went
as far as to protect racial abuse at a Ku Klux Klan
“rally”.
One film showed twelve hooded figures,
some of whom carried firearms. They were
gathered around a large wooden cross, which
they burned. No-one was present other than the
participants and the reporters who made the
film. Most of the words uttered during the scene
were incomprehensible when the film was
projected, but scattered phrases could be
understood that were derogatory of Black
people and, in one instance of Jews.
The Supreme Court concluded that this was
speech protected under the first amendment on
the principle that the constitutional guarantees
of free speech and free press do not permit a
State to forbid or proscribe advocacy of the use
of force or of law violation except where such
advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or
produce such action.
The greatest liberal jurisprudential
theoretician Ronald Dworkin, who taught me in
University College London, wrote in response to
the infamous Danish Cartoon incident in 2005
where a cartoon of the Islamic prophet
Muhammad, wearing a bomb in his turban,
sparked several murders:
“Ridicule is a distinct kind of expression: its
substance cannot be repackaged in a less
oensive rhetorical form without expressing
something quite different from what was
intended. That is why cartoons and other forms
of ridicule have for centuries, even when illegal,
been among the most important weapons of
both noble and wicked political movements.
So, in a democracy no-one, however powerful
or important, can have a right not to be insulted
or oended”.
The bill criminalises causing
harm or offence as judged
reasonably
David Langwallner Offends
1. Mr Varadkar is like verruca salz in Willie
Wonka’s chocolate victory a spoilt
privileged brat and a wart on the body
politic. A verruca.
2. The UCD Law faculty by calling its
building the Sutherland school of
law is paying lecturers’ salaries out
of a building honouring a corporate
criminal.
3. TULSA is a nefarious organisation and
like an unsafe facility dedicated to
destroying people’s lives.
4. The FG Party are a crypto-fascist
organisation and those who their
bidding crypto fascists. Our neo
liberal crypto fascists, or let’s just call
them crypto Nazis. FF conversely is a
Peronist populist party devoid of values
which will grab any policy to achieve
power.
Without change to the bill, all of these statements could ground prosecution.
“Crypto-fscists”
“Corporate criminal’s law school”
