JOINT COMMITTEE ON THE CONSTITUTION
FREEDOM OF EXPRESSION.
SUBMISSION OF NATIONAL NEWSPAPERS OF IRELAND (“NNI”)
1.
Freedom of expression constitutes one of the essential foundations of democratic
society
1
and is central to the working of the political process.2 Freedom of
expression is of importance not just for newspapers, but for society in general. The
fact that newspapers undoubtedly have a financial interest in advocating freedom of
expression,
or even the fact that that freedom is doubtless from time to time
abused, does not deprive the principle of importance. As an English Judge has said
:-3
Newspapers are sometimes irresponsible and their motives in market
economy cannot be expected to be unalloyed by considerations of
commercial advantage. Publication may cause needless pain, distress, and
damage to individuals or harm to other aspects of the public interest. But
a freedom which is restricted to what Judges think to be responsible or are
in the public interest is no freedom. Freedom means the right to publish
things which government and judges however well motivated, think should
not be published. It means the right to say things which ‘right thinking
people’ regard as dangerous or irresponsible. This freedom is subject only
to clearly defined exceptions laid down by common law or statute.”
2.
NNI recognises that the exercise of this 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,
which is designed to provide a means whereby those hurt by what is published
about them in the press can have a speedy, free and effective means of redress. In
the same way, NNI recognises that any constitutional recognition of freedom of
expression is also legitimately subject to restrictions. However, it is respectfully
suggested that 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.
1
Handyside v. UK (1976) 1 EHRR 737, European Court of Human Rights
Bowman v. UK (1998) 26 EHRR 1, European Court of Human Rights
3
Hoffmann L.J. in R v. Central Independent Television Plc [1994] 3 WLR 20
2
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3.
The right to communicate is one of the unenumerated rights protected by Article
40.3 of the Constitution.4 Freedom of expression is guaranteed by Article 40.6.1.i,
which provides that the State guarantees liberty for the exercise, subject to public
order and morality, of
“The right of the citizens to freely express 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 right for
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 incident matter is an
offence which shall be punishable in accordance with law.”
The courts have held that the freedom of expression guaranteed by article 40.6.1.i
does not protect merely expressions of convictions and opinion, but also protects
the right to report facts. 5
4.
Article 40.6.1.i is unique in conferring liberties and rights upon the “organs of public
opinion”. It has been held that, because “organs” are not capable of having rights,
this reference must be taken to be a reference to those persons (natural or artificial)
who control the organs of public opinion. In other words, article 40.6.1.i provides
for the freedom of the press, both to communicate facts and to express convictions
and opinions.6 Freedom of the press is closely related to, but is different from,
freedom of expression. If consideration is being given to amending the Constitution,
it is suggested that it would be appropriate now to give express constitutional
recognition to the freedom of the press. Without such protection, the precise status
of press freedom will necessarily remain somewhat unclear.
5.
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:-
4
Attorney General v. Paperlink Ltd [1984] ILRM 343
See Irish Times v Ireland [1998] 1 IR 359, where this view was expressed by the majority of the
court, although Keane J. held that it was a matter that he would reserve to consider in an appropriate
case.
6 See Barrington J. in the Irish Times Ltd v. Ireland at pages 403 to 407, and O’Flaherty J. at page
395.
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
Large libel awards made by juries. In de Rossa v. Independent Newspapers Plc7,
an award of IR£300,000 was described in 1999 as being at the “top of the
bracket”. Notwithstanding this, a jury later in 1999 awarded Denis O’Brien
IR£250,000. This was found by the Supreme Court to be disproportionately high
in 20008, only for the matter to be remitted to the High Court where a jury
assessed damages in a second trial in 2006 at €750,000. Just this week, a fresh
record for an award against a newspaper was achieved by a plaintiff in an action
against the Sunday World9, when a jury awarded €900,000. While the verdicts
in both these cases are under appeal to the Supreme Court,
the mere fact of
awards such as this being made is bound to have a considerable “chilling”
impact on freedom of expression.10 Thus, the question is not whether one
approves of the award of significant damages in any individual case. The
question is whether the availability of large damages combined with the
unpredictability of the system that leads to their assessment has an effect on
freedom of expression in general.
7
[1999] 4 IR 432
See O’Brien v. Mirror Group Newspapers [2001] 1 IR 1
9
McDonagh V. Sunday Newspapers Ltd
10
See Barendt & others “Libel and the Media” (Clarendon Press, Oxford 1997). The authors of that
book conclude at page 191:“This study has attempted to move beyond legal principle to an account of social (and sociolegal). We believe that our investigation of the impact of defamation law on various media has
demonstrated clearly that the chilling effect in this area genuinely does exist and significantly
restricts what the public is able to read and hear.”
8
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Injunctions sought to restrain freedom of expression. Thus, for instance, the Mahon
Tribunal sought and obtained from the High Court in December 2004 an order
restraining the Sunday Business Post from publishing any information which the
Mahon Tribunal had directed should remain confidential. This order survived until
March 2007, when the Supreme Court eventually determined that there was no legal
basis to grant it.11 Thus, a newspaper was prevented for over two years from doing
something that it was always lawfully entitled to do. The availability of injunctions
such as these demonstrates the importance of strengthening the Constitutional
provisions protecting the freedom of expression.

Efforts to make the media reveal their sources. Although article 10 of the ECHR
recognises that an essential part of freedom of expression is the right to the
media to retain the confidentiality of sources,
this has come under attack in
Ireland in recent times. Thus, in Mahon v. Kenna12, the High Court directed two
Irish Times journalists to answer questions posed by the Mahon Tribunal, on the
basis that answers might enable the Mahon Tribunal to determine whether or
not it was the source of leaked documents.
6.
Article 10 of the European Convention on Human Rights recognises the importance
of freedom of expression, while at the same time recognising that it can be subject
to such formalities, conditions, restrictions, and penalties “as are prescribed by law
and are necessary in a democratic society.” The interpretation of the words in
quotation marks has led to a structured system for assessing whether restrictions
on freedom of expression are or are not justified.
7.
First, any restriction must be “prescribed by law”. This has been interpreted by the
European Court of Human Rights13 as requiring (a) that the law must be adequately
accessible; the citizen must be able to have an indication that it is adequate in the
circumstances of the legal rules applicable to a given case. It has been interpreted as
meaning (b) that a rule cannot be regarded as a “law” unless it is formulated with
sufficient precision to enable the citizen to regulate its conduct. He must be able – if
need be with appropriate advice - to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail.
11
Mahon v Sunday Business Post
23rd October 2007
13
Sunday Times v. UK (1979) 2 EHRR 245 at 271
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8.
Secondly, the restriction must be “necessary in a democratic society”. This has been
interpreted by
the European Court of Human Rights14 as requiring that the
interference complained of must correspond to a pressing social need, that it must
be proportionate to the legitimate aim pursued, and that the reasons given by the
national authorities to justify it must be relevant and sufficient.
9.
These principles have been accepted in Irish law 15. Indeed, since the passage of the
European Convention on Human Rights Act 2003, it is the obligation of any court
when interpreting legal norms to do so in a manner compatible with the State’s
obligation under the European Convention on Human Rights. However, the passage
of the European Convention on Human Rights Act 2003 has not prevented the
developments described above. It is therefore respectfully suggested that, if it is
thought desirable to reform this part of the Constitution,
then it should be
reformed in a way that makes it clear that restrictions on freedom of expression can
be justified only in accordance with these Convention principles.
That will have
two desirable effects. First, it will emphasise the necessity of justifying restrictions
on freedom of expression, without of course in any way making it impossible or
even necessarily more difficult to impose such restrictions. Secondly, it will ensure
that that the Constitution is brought in line with the Convention,
and that
successful claims against Ireland in the European Court of Human Rights are
thereby rendered increasingly unlikely.
10.
The text of article 40.6.1.i provides inter alia that the publication of blasphemous
matter is an offence which should be punishable in accordance with law. Spoken
blasphemy remains an offence at common law, and only blasphemous libel (i.e. in
written form) has received statutory regulation by section 13(1) of the Defamation
Act 1961. The offence is virtually obsolete. In 1991, the Law Reform Commission
considered the matter,
and concluded that it was likely that the present law
protected religious beliefs in Judeo-Christian tradition only.16 The Law Reform
Commission concluded that there is no place for the offence of blasphemous libel in
a society which respects free speech, and recommended that the reference to
blasphemy in article 40.6.1.i be deleted as part of any extensive revision of an
anachronistic or anomalous constitutional provisions.
Although this is not an
14
Again Sunday Times v. UK (1879) 2 EHRR 245 at 277 to 278
See for instance Mahon v. Sunday Business Post, cited above.
16
Which was a view upheld by the High Court in England in R v. Chief Magistrate, ex parte
Choudhury [1991] 1 All ER 306, where it was held that the publication of “the Satanic Verses” did not
constitute blasphemous libel.
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important aspect of daily life for newspapers, the NNI recommends this view to the
consideration of the Committee.
11.
In the light of the above submissions, NNI respectfully submits that article 40.6.1.i.
could be recast so as to provide as follows:“The State guarantees liberty for the exercise, subject to public order and
morality, 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, subject to public order and
morality, 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 strictly proportionate to the
legitimate aim pursued.”
12.
The NNI would be happy to make such further submission or give such further
information to the Committee as may be required, or to meet with the Committee if
appropriate.
March 2008
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