“measured, justifiable and proportionate..”

With one eye on the recent Holylands blogger trial and the other on the DUP’s Iris Robinson’s comments, or rather the ongoing reaction to those comments, in the Irish News Newton Emerson is rightly concerned about references to freedom of expression in the Bill of Rights Forum’s final report in March this year.

The common point running through all these arguments is that speech should be restricted if it might lead to harm. This sweeping concept is enshrined in the Human Rights Act, which curbs freedom of expression where it impinges upon public safety, national security, health, crime, disorder and the rights of others. Earlier this year, politicians and special interest groups on the Bill of Rights Forum added further proposed restrictions to freedom of expression in Northern Ireland. These included “consideration of the best interests of children” and “incitement to unlawful discrimination, hostility or violence”. Few people in Northern Ireland would deny that words can lead to violence. But banning “hostility” could lead to cases even more absurd than the prosecution of Mr Murray, with unjust and provocative consequences.

Meanwhile the Irish Times reports on the “First Report of the Oireachtas Joint Committee on the Constitution: Article 40.6.1.i – Freedom of Expression” [PDF file available here]

5.4 The Committee was of the view that the Article 40.6.1.i appears to give undue priority of consideration to the limitations on freedom of speech rather than on the entitlement itself. The drafting of the Article gives the impression that the framers were concerned with controlling the corrosive effect of matters such as immorality, blasphemy, sedition and indecent material. Whilst it is vital that the State can legitimately impose restrictions on free speech, it is also vital that any such restrictions be measured, justifiable and proportionate to the protection of other freedoms and rights.

The report continues

5.5 In this regard, the Committee was of the view that there were two clear reasons for improving the language of Article 40.6.1.i so as to increase the protection for free speech itself.

5.6 The first reason is the imperative to ensure that Ireland is fully in compliance with its obligations under the European Convention of Human Rights. Whilst the recent decisions of the Courts show Article 40.6.1.i is being interpreted along these lines (and in fact certain judgments express the view that there is no distinction in substance) an amendment modelled along the lines of the European Convention of Human Rights article would provide welcome clarity in this regard.

5.7 The second reason is that the current trend of judicial interpretation is potentially temporal in its effect. Whilst there is no immediate concern, the Constitutional imperative to protect free speech should not be dependent on judicial support alone, but protected by the will of the people as expressed through the Constitution.

It’s worth noting the reference, quoted by Newton, from the Freedom of Expression recommendation in the Bill Of Rights Forum report [PDF file pages 60-62] in full

FREEDOM OF EXPRESSION

This provision deals with a right within the European Convention on Human Rights and should be drafted to indicate the additional protection recommended.

Recommendation

1. 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 any public authorities and regardless of frontiers.

2. Everyone has the right of access to information, including any information held by public authorities and any information that is required for the exercise or protection of any rights in the Bill of Rights.

3. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. It may also be subject to consideration of the best interests of children.

4. These freedoms do not include freedom for advocacy of hatred, on any proscribed ground, that constitutes incitement to unlawful discrimination, hostility or violence.

5. This article shall not prevent public authorities from licensing broadcasting, television or cinema enterprises.

The DUP and the UUP, along with Neil Faris of the Business Sector, opposed the adoption of the recommendation on Freedom of Expression on the basis that

“[Human Rights Act] Article 10 sufficiently addresses this issue”.
“Furthermore, the proposal cannot be considered as relevant to the particular circumstances of Northern Ireland”.

All others supported the “additional protection”.

To quote the Oireachtas Committee on the Constitution again.

Whilst it is vital that the State can legitimately impose restrictions on free speech, it is also vital that any such restrictions be measured, justifiable and proportionate to the protection of other freedoms and rights.