Portraitgate: a breach of civil liberty in progress?

The Euro Tribune want to know of the police action regarding portraitgate; #Cowangate; #picturegate: “Inciting whom to what, I wonder?” Eoin of Cearta.ie has been looking at why, and it would seem the legal cupboard is almost bare

Is it illegal to paint nude caricatures of the Taoiseach, or is this protected by the constitutional right to freedom of expression? I just don’t see how it can amount to incitement to hatred against a group of persons [update: or to an obscene representation provocative of a breach of the peace]; nor are the censorship regimes for films or publications engaged. All that’s left is the (still extant) common law crime of obscene libel, which criminalises publication of matter with a tendency to deprave and corrupt (R v Hicklin (1868) LR 3 QB 360). [I leave aside questions of civil defamation or other similar claims, as they would not implicate criminal investigation and/or prosecution]. The last time the criminal libel ‘tendency to deprave or corrupt’ test was implicated in an Irish case was 1959

Which would be the perfect cue for the Supreme Court to step in a strike an antiquated common law provision on the spot…

artistic expression is at the heart of the right to communicate in Article 40.3 whilst political expression is at the heart of freedom of speech in Article 60.6.1(i) (as these articles are explained by Barrington J in Murphy v IRTC [1991] 1 IR 120, [1998] 2 ILRM 360 (SC)). The caricatures of the Taoiseach are not only exercises in artistic expression, they are also pre-eminent examples of satirical political dissent. Political speech – in particular when it is unpopular, even in dissent – is at the heart of the rights protected by Article 40.6.1(i) (and by Article 10 of the ECHR), and the subversive lampooning of powerful political figures as a means of expressing political dissent is part of a tradition that goes back at least as far as Aristophanes and reaches to Scrap Saturday, Spitting Image and The Daily Show (to say nothing of Martyn Turner’s wonderful political cartoons), even where it is anonymously expressed.

He then goes on to hold up the collapse of RTE in the face of state pressure to legal scrutiny, but finds none. IMHO, the complaint was fair enough; public service broadcasters have to expect to be ‘gamed’ by external players, by the Daily Mail as much as the government… But, the collapse was unexpected and with the benefit of external hindsight and apparently completely unwarranted…

Last word to Eoin:

Cowengate has provoked a storm of controversy, but the high emotionalism provoked by the caricatures has aroused entirely misguided state action. They were no more than a critique of the Taoiseach, and though plainly emotive, they are nevertheless classical political speech, and thus deserving of the highest constitutional protection.

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