Tuesday

26th Mar 2019

Opinion

Irish defamation law and EU human rights

  • "Bad legislation has a tendency to spread" (Photo: wikipedia)

On July 23, a new defamation law went into effect on Ireland.

The new legislation has made blasphemous speech illegal, which means that a citizen of the European Union can be punished for making a comment that is determined to be offensive to a substantial number of followers of a religion.

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The punishment of a fine, up to €25,000, can hardly be consistent with human-rights obligations under the EU treaties, and I have therefore filed a complaint to the European Commission.

Mandatory practicing of a religion is something that most of us associate with times long gone. But this is exactly what a blasphemy law amounts to. A statement is blasphemous only within a religious context, and the systematic avoidance of blasphemy is part of religious practice. Thus, a law against blasphemy is an obligation to live your life according to the religious beliefs of others.

Defining blasphemy as speech that offends a substational number of religious followers gives the churches the power to gradually expand the application of the law. A not too far-fetched guess is that statements threatening the power of religious leaders will awaken the strongest reactions and therefore be considered the most offensive ones, resulting in punishment by the state.

Article 6.1 in the current EU treaty establishes that the Union "is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the member states."

Free speech is a human right, a fundamental freedom and a necessary condition for democracy. Article 10 of the European Convention on Human Rights describes free speech as everyone's right to freedom of expression and adds: "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."

There is no obvious reason why free speech should not include the right to characterise religious views or symbols in a way that some might find offensive.

Countries with strong free-speech laws, such as Sweden, have reasons to worry about the Irish blasphemy legislation. The immediate concern is that Swedish citizens, while traveling within the European Union, can run into legal processes and be punished for merely expressing a view on a religion or religious symbol.

The less direct but more serious concern is that bad legislation has a tendency to spread. Once a restriction is in place in one European country it will quickly be legitimised, and politicians in other countries can point to it as they take away fundamental rights from their own citizens. The argument will be that if a developed Western society such as Ireland does it, it surely cannot be incompatible with democratic principles.

In worst case, the spread of blasphemy laws will be accelerated by EU initiatives.

We have already seen the European Union limit free speech to combat problems such as terrorism and racism. Mandatory blocking of websites that facilitate the sharing of banned material is now being discussed amongst ministers of justice, and it's only a matter of time until the French proposal to cut suspected file sharers off the internet is back on the EU agenda. Banning negative statements about religious symbols would certainly fit the European inclination to battle ideas with censorship.

The Irish legislation against blasphemy gives the EU Commission a chance to draw the lines against both online and offline censorship. Let us hope they grab the opportunity, because the obligations of the member states need to be clarified.

How harsh can free-speech restrictions be under a treaty demanding respect for freedom, democracy and human rights?

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