I thank the Chairman for giving us the opportunity to appear before the committee, which will have received a submission that we forwarded on 4 March with an accompanying letter. We have had the benefit of further reflection in the interim - the submission was prepared at relatively short notice - and I would like to outline a revised version. It includes additional thoughts not referred to in the original. In that regard, I consider what I say today as replacing the original submission. My colleagues and I will be happy to answer questions when I conclude.
The personal rights of all citizens are enshrined in Article 40 of the Constitution. Article 16 ensures the right to vote and to elect Members to Dáil Éireann, while Articles 34 to 37, inclusive, guarantee a free and independent Judiciary. Article 40 seeks to protect a citizen's personal rights. Many of the great constitutional cases have revolved around this article and our rights to equality, to liberty, to an inviolable dwelling, to hold and express convictions and opinions openly, to assemble and to associate. The people gave themselves these rights in a constitutional format in 1937. They are to be nurtured and respected, notwithstanding that some are circumscribed by the restrictive wording of subordinate provisions.
Freedom of expression is an essential right of each and every citizen and goes to the heart of democracy. Newspapers often provide the vehicle for that free expression. It is one of the essential foundations of democratic society and central to the working of the political process. Neither the fact that newspapers undoubtedly have a financial interest in advocating freedom of expression, nor even the fact that the freedom is doubtless abused from time to time deprives the principle of importance. National Newspapers of Ireland recognises that the exercise of the freedom carries with it duties and responsibilities and is necessarily subject to conditions and restrictions. An indication of that recognition is the initiation in the recent past of the Press Council of Ireland by NNI and its industry partners. NNI acknowledges that any constitutional recognition of freedom of expression is also legitimately subject to restrictions. It is suggested the present text of the Constitution dealing with these issues does not recognise the importance of freedom of expression and, in particular, does not go as far as is required by the European Convention on Human Rights in vindicating freedom of expression which we, as a nation, committed to as far back as 1953.
The right to communicate is one of the unenumerated rights protected by Article 40.3 of the Constitution. Freedom of expression is guaranteed by Article 40.6.1o, which provides:
The State guarantees liberty for the exercise of the following rights, subject to public order and morality:
i. the right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.
It is worth noting the antiquity of the language of 1937.
The courts have held that the freedom of expression guaranteed by Article 40.6.1o provides for the freedom of the press both to communicate facts and to express convictions and opinions. As Judge Ronan Keane noted, "In modern conditions, the media are the eyes and ears of the public and the ordinary citizen is almost entirely dependent on them for knowledge."
Freedom of expression and press freedom are under attack on a number of fronts. The following are the most outstanding examples of what has occurred in the past few years. First, we have the large libel awards made by juries. An award of £300,000 in 1999 was described as being "top of the bracket". Notwithstanding this, there have been recent jury awards of €750,000 and €900,000. Awards such as these are bound to have a considerable, chilling impact on freedom of expression. In addition, in recent times a number of injunctions have been sought to restrain freedom of expression, for example, in the Leas Cross case.
On the confidentiality of sources, it is worth noting that the Government, politicians and others frequently avail of the media to inform or reveal information anonymously in the public domain in the belief this serves the public interest. Although Article 10 of the European Convention on Human Rights recognises that an essential part of freedom of expression is the media's right to retain the confidentiality of sources, this has come under scrutiny in Ireland in recent times. Article 10.1 of the convention recognises the importance of freedom of expression as follows:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
At the same time, Article 10.2 of the convention recognises that the expression of freedom "may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society". The interpretation of these words has led to a structured system for assessing what restrictions on freedom of expression are not justified. First, any restriction must be prescribed by law. Second, the restriction must be necessary in a democratic society. This has been interpreted by the European Court of Human Rights as requiring that the interference complained of must correspond to a pressing social need and must be proportionate to the legitimate aim pursued.
It should be noted that a corollary to the right to freedom of expression is the right to remain silent. The Supreme Court has recognised this right and it is one that is under active consideration by the superior courts.
These principles have been accepted in Irish law. Since the passage of the European Convention on Human Rights Act 2003, it has been the obligation of any court when interpreting legal norms to do so in a manner compatible with the State's obligations under the European Convention on Human Rights. We believe the freedom of expression protected by the Constitution and the European Convention on Human Rights encompasses: the right to state and impart facts and information; the right to express freely ideas, convictions and opinions; the right to receive facts, information, ideas, convictions and opinions; the right to scrutinise and criticise public policy; and the right to educate public opinion, a matter of grave import to the common good and the system of democratic government prescribed by the Constitution.
The passage of the European Convention on Human Rights Act 2003 has not prevented the developments described in my earlier statements. I suggest, therefore, that if it is deemed desirable to reform this part of the Constitution, it should be reformed in a way that makes it clear that if the rights set out in the Constitution on freedom of expression are to be restricted, this should only be done in accordance with the principles of the European Convention of Human Rights. That would have two desirable effects. First, it would emphasise the need to justify restrictions on freedom of expression, without making it impossible or more difficult to impose such restrictions. Second, it would ensure the Constitution was brought into line with the European Convention of Human Rights, which would make it increasingly unlikely that successful claims could be brought against Ireland in the European Court of Human Rights.
The issue of blasphemy was specifically mentioned in the letter the joint committee sent to National Newspapers of Ireland. Article 40.6.1°(i) of the Constitution provides that the publication of blasphemous matter is an offence "which shall be punishable in accordance with law". Spoken blasphemy remains an offence at common law. Blasphemous libel - blasphemy in written form - is the subject of statutory regulation under section 13(1) of the Defamation Act 1961. However, that offence is virtually obsolete. When the Law Reform Commission considered the matter in 1991, it concluded that it was likely that the present law protected religious beliefs in the Judeo-Christian tradition only. The commission concluded that there was no place for the offence of blasphemous libel in a society that respected free speech. It recommended that the reference to blasphemy in Article 40.6.1°(i) should be deleted as part of any extensive revision of anachronistic or anomalous constitutional provisions. Although this is not an important aspect of daily life for newspapers, National Newspapers of Ireland recommends this view to the committee. The 1999 decision of the Supreme Court in Corway v. Independent Newspapers lends further support to this argument. The court found it difficult to see how the crime of blasphemy could survive within the existing constitutional framework. It referred, in particular, to Article 44 which guarantees “freedom of conscience and the free profession and practice of religion” to all citizens, regardless of whether they are Roman Catholics, Protestants, Jews, Muslims, agnostics or atheists. The State’s function in this regard is not as an arbiter of religions but as a protector of public order and morality. It is difficult to see how the mere act of publication of blasphemous matter without an intention to blaspheme can be reconciled with Article 44 of the Constitution.
I would like to refer briefly to the report of the Constitution Review Group published in May 1996. The group which had a most distinguished membership was chaired by Dr. T. K. Whitaker. National Newspapers of Ireland is generally in agreement with the views and conclusions outlined in the group's lengthy reflection on the issue of freedom of expression. It is worth noting that the group suggested, in the interests of promoting responsible freedom of expression, that any amendment to Article 40.6.1°(i) should be modelled on Article 10 of the European Convention on Human Rights. It advised that the retention of the present constitutional offence of blasphemy was not appropriate. It recommended the deletion of references to seditious matters in the Constitution, on the basis that if an amended Article 40.6.1°(i) were to be based on Article 10 of the European Convention on Human Rights, the capacity to criminalise publications which posed a genuine and real threat to public order would be retained. It proposed the deletion from the Constitution of references to indecent matter and their replacement by a statutory offence. It recommended that the right to freedom of expression should not be subject to the test of public order and morality and the authority of the State, as such a test was too all-embracing. It proposed that the protection which might be sought could be achieved by amending the Constitution in line with Article 10.1 of the European Convention on Human Rights.
I will conclude by summarising National Newspapers of Ireland's overall recommendation in respect of this aspect of the Constitution. The group respectfully submits that Article 40.6.1°(i) could be reworded to provide:
The State guarantees liberty for the exercise of the right of citizens to express freely their convictions and opinions and state the material upon which the same are based. The State also guarantees liberty for the exercise of the freedom of the press. Any restriction on these rights must be prescribed by law, must correspond to a pressing social need, and must be proportionate to the legitimate aim pursued.
I thank the members of the joint committee for their time and attention. My colleagues and I are available to answer questions.