Fundamental and Human Rights
The Irish Constitution, European Convention on Human Rights (“ECHR”) and the EU Charter of Fundamental Rights (“EUCFR”) each provide that freedom of expression is a fundamental human right.
The freedom to express opinions, comment and communicate are presumed necessary and desirable features of a democratic society. This echoes the particularly strong freedom of speech provision in the First Amendment to the United States Constitution.
The ECHR provides that everyone has the right to freedom of expression. This includes the right to hold opinions and the right to receive and impart information and ideas, without interference by public authorities and regardless of frontiers. The protection is stated not to prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The Irish Courts have taken the view that the Irish and ECHR rights are broadly similar. However, the scope of the Irish Constitutional provision and the ECHR provisions do not fully coincide. Each recognises that the freedom may be limited, and subject to restrictions which are necessary in a democratic society.
Limits on Freedoms
The Irish Constitution, the ECHR and the EUCFR provide or recognise that there are limitations on the right of freedom of expression, in the public and private interests.
The Irish Constitution provides that the guarantee is subject to public order and morality. It provides that the State shall endeavour to ensure that the organs of public opinion while preserving the right of liberty of expression, including criticism of public policy, shall not be used to undermine public order or morality or the authority of the State.
It has been suggested that the Constitutional guarantee relates to public expressions rather than private expressions. Remarkably, the Constitution specifically provides that the utterance of blasphemous, seditious or indecent materials shall be an offence punishable by law.
The ECHR protection provides that freedom of opinion and expression carries with it, duties and responsibilities. The freedom may be subject to formalities, conditions, restrictions and penalties which must (if at all) be prescribed by law. They must be necessary in a democratic society in the interests of national security, territorial integrity, for public safety, for the prevention of crime or disorder, for the protection of health or morals, for the protection of reputation or rights of others, for preventing disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
The law of defamation protects the reputation of individuals. The publication of statements which tend to lower a person in the opinion of his peers may be the subject of an action for defamation. Defamation cases are heard with a jury, and significant damages have been often awarded. An Injunction may be granted in some circumstances, to prevent publication of material claimed to be defamatory.
The arrival of the internet increased greatly, the scope for private individuals to publish material instantaneously to numerous persons, not only in Ireland but throughout the world. This raises many questions as to how the Irish law of defamation and the law of other jurisdictions, apply to such publications.
Publication on the internet may be the subject of an action for damages or restrained by injunction under defamation law. “Publication” for defamation purposes, may be affected by inputting materials and uploading them onto the internet. Equally, defamatory statements can be made by repeating a statement already made by another. Each subsequent repetition is a new defamation, which can be the subject of a civil suit. It does not matter that another person is the original author or originator of the statement.
Intellectial Property Rights
Publication on the internet may constitute a breach of copyright. Similar concepts apply to copyright as apply in defamation. The direct publisher is primarily liable for the infringement. Distributors and other parties are prospectively secondarily liable, if they are aware of the infringement or if they do not take steps to remove the infringing copies, once they are brought to their attention.
EU legislation provides exemptions from liability for certain intermediaries. The Court may make orders against such intermediaries requiring them not to infringe or cease infringing rights. If the intermediary qualifies for the exemption, it is not liable for damages nor subject to criminal prosecution.
There exists a number of ancient, rarely prosecuted and someone anomalous crimes aimed at certain utterances. Some of these are likely to be inconsistent with Constitutional and ECHR rights.
The Constitution itself, reflecting its origins, requires that there be a crime of blasphemy. At common law, blasphemy consisted of indecent and offensive attacks on Christianity and the scriptures, sacred persons or objects calculated to outrage the feelings of the community. The denial of Christian teaching was not enough.
The Courts have stated that in modern times, given a multicultural society and the multiplicity of religions, it has become impossible to interpret and give effect to an offence of blasphemy. In pursuance of the Constitutional requirement, the Defamation Act restated the crime of blasphemy in a narrow manner. It defines blasphemy as the publication or utterance of a matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion. There must be an intention to cause such outrage.
It is a defence to proceedings for blasphemy for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates. Religion does not include an organisation or cult the principal object of which is the making of profit, or that employs oppressive psychological manipulation of its followers or for the purpose of gaining new followers.
Offences Against State
Historically, the prosecution of the common law crimes of treason and sedition often amounted to politically motivated oppression. Treason, is defined by the Constitution as levying war against the State or assisting any State or person or inciting or conspiring with any person to levy war against the State or attempting by force of arms or other violent means to overthrow the organs of government established by the Constitution or taking part or being concerned in or inciting or conspiring with any person to make or to take part or be concerned in any such attempt.
The Offences against the State Act prohibits the publication or distribution of documents and materials which are treasonable or contain seditious material. A seditious document is one tending to undermine the public order of the State,
- which suggests that the government is not the lawful government,
- which suggests that another rival body is the lawful government,
- which suggests that the military forces under the Constitution are not the lawful military forces or
- which suggests that there exists an alternative military force which should be recognised.
Obscene Material at Common Law
The publication of obscene material is a crime at common law. Obscenity is defined by reference to its capacity to corrupt and deprave. Prosecutions are very rare and the test of obscenity is very difficult to apply in modern society.
The Law Reform Commission has noted that obscenity is a highly subjective concept. What may disgust one person may be acceptable to another.
The common law recognises the offences of conspiracy to corrupt public morals and outraging public decency. Their present scope in Irish law is uncertain. Prosecutions are extremely rare and are likely to be reserved only for “extreme” cases.
Obscene Material in Legislation
Censorship legislation applies to any medium which stores visual images with or without sound. The legislation is primarily aimed at official releases of DVDs, films and videos. It is an offence to supply a work which has not been certified by the official censor unless the supply is exempt. Internet video sites such as YouTube may technically require censorship certificates. The legislation as originally drafted did not contemplate the internet. It is unlikely that the legislation would be enforced in respect of internet content in the broadest sense.
It is an offence under telecommunications legislation to post or send any telephone message which is grossly offensive, indecent, obscene or menacing. It is also an offence to cause annoyance, inconvenience or anxiety to another by any message which the sender knows to be false or persistently to make telephone calls to another person, without reasonable cause.
Messaging includes short messaging service. A person found guilty of an offence is liable on conviction on indictment for a fine of up to €75,000 or imprisonment for a term not exceeding five years or both. On summary conviction, a person is liable for a fine up to €5,000 or a sentence in prison of up to 12 months.
Criminal libel is a serious libel of a character likely to disturb the peace of the community or provoke a breach of the peace. It is rarely prosecuted. It may be prosecuted in very serious cases, for example, where a person has deliberately and falsely accused another of a heinous crime.
Before a prosecution for criminal libel may be initiated, an application must be made to a High Court Judge sitting privately for an Order. The person concerned must have an opportunity to be heard on the application. The Court must be satisfied there is sufficient evidence for a prima facia case. The libel must be serious and one which is proper for the criminal law to be involved. The public interest must require the institution of proceedings.
It is an offence for a person to publish or distribute written material outside of a private residence or to distribute visual images or sounds, if the material, words, behaviour, images or sounds are threatening, abusive or insulting or are, having regard to the circumstances, likely to stir up hatred. There is a defence for innocent persons who distribute the material.
References and Sources
Data Protection Act 1988
Data Protection (Amendment) Act 2003
Data Protection Act 2018
Communications (Retention of Data) Act 2011
Criminal Justice (Surveillance) Act 2009
Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (An Garda Síochána) Regulations 2009, S.I. No. 275 of 2009
Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Revenue Commissioners) Regulations 2009, S.I. No. 290 of 2009
Criminal Justice (Surveillance) Act 2009 (Written Record of Approval) (Defence Forces) Regulations 2010, S.I. No. 80 of 2010
Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (Official Journal L 8 of 12.1.2001, pp. 1-22)
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).
Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending (declared invalid by Court of Justice ruling, see below).
Directive 2002/58/EC (Official Journal L 105 of 13.4.2006, pp. 54-63)
Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009
Commission Regulation (EU) No 611/2013 of 24 June 2013 on the measures applicable to the notification of personal data breaches under Directive 2002/58/EC of the European Parliament and of the Council on privacy and electronic communications (Official Journal L 173 of 26.6.2013, pp. 2-8).
European Communities (Directive 2000/31/Ec) Regulations 2003
European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011, S.I. No. 336 of 2011
EU Data Protection Law Kelleher & Murray 2018
Information & Technology Communications Law Kennedy & Murphy 2017
Social Networking Lambert 2014
Law Society PPG Hyland Technology & Intellectual Property Law 2008
Information Technology Law in Ireland 2 Kelleher & Murray 2007
Data Protection Law in Ireland: Sources & Issues 2 Lambert 2016
Privacy & Data Protection Law in Ireland Kelleher 2015
Data Protection: A Practical Guide to Irish & EU Law Carey 2010
Practical Guide to Data Protection Law in Ireland A&L Goodbody 2003
Privacy and Data Protection Law in Ireland 2nd ed Denis Kelleher 2015
EU and UK Texts
Privacy and Legal Issues in Cloud Computing Privacy and Legal Issues in Cloud Computing Edited by: A. S. Y. Cheung, R. H. Weber 2016
Privacy and Legal Issues in Cloud Computing Privacy and Legal Issues in Cloud Computing Edited by: A. S. Y. Cheung, R. H. Weber 2015
Information Rights: Law and Practice Information Rights: Law and Practice 4th ed Philip Coppel 2014
Cloud Computing Law Christopher Millard 2013
Transborder Data Flow Regulation and Data Privacy Law (eBook) Christopher Kuner 2013
Consent in European Data Protection Law Consent in European Data Protection Law Eleni Kosta 2013
A User’s Guide to Data Protection A User’s Guide to Data Protection Paul Lambert 2013
Confidentiality (Book & eBook Pack) Confidentiality 3rd ed The Hon Mr Justice Toulson, Charles Phipps 2012
Binding Corporate Rules: Corporate Self-Regulation of Global Data Lokke Moerel 2012
Property Rights in Personal Data: A European Perspective Property Rights in Personal Data: A European Perspective Nadezhda Purtova 2011
Global Employee Privacy and Data Security Law 2nd ed Morrison & Foerster LLP 2011
Computers, Privacy and Data Protection: An Element of Choice Computers, Privacy and Data Protection: An Element of Choice Edited by: S. Gutwirth, Y. Poullet, P. De Hert, R. Leenes 2011
Information Rights: Law and Practice Information Rights: Law and Practice 3rd ed Philip Coppel 2010
Data Protection: Legal Compliance and Good Practice for Employers Data Protection: 2ed Lynda Macdonald 2008
The Law of Personal Privacy David Sherborne, Mark Thomson, Hugh Tomlinson Due August 2019
Tort Law and the Protection of Privacy John Hartshorne April 2019
The Privacy, Data Protection and Cybersecurity Law Review The Privacy, Data Protection and Cybersecurity Law Review 5th ed Edited by: Alan Charles Raul 2017
International Cybersecurity and Privacy Law in Practice International Cybersecurity and Privacy Law in Practice Charlotte A. Tschider 2017
Determann’s Field Guide to International Data Privacy Law 3rd ed Lothar Determann
The Law of Privacy and The Media 3rd ed Edited by: Nicole Moreham, Mark Warby 2016