The strange death of criminal libel?

I will post some separate, lengthy comments about the Defamation Bill (which is – finally – passing through the Seanad today) later on or over the course of the week. However, something quite remarkable – and unexpected – happened in today’s proceedings. That is the question of the offences in Ireland of criminal libel, seditious libel and obscene libel.

The Defamation Bill, as drafted, and through Committee Stage in the Seanad, would have abolished these three (relatively obscure) offences, and replaced them with a new offence of the publication of gravely harmful statements. That would have been good, but not enough, as there would still have been a significant cirminal offence of the statute books. However, in an amendment (nos. 51 and 53) introduced by the Minister for Justice at this stage (only published this week), and debated quite speedily in the House, the sections relating to the new offence were removed; he argued that he was not convinced that it was appropriate to introduce a new criminal offence that would have such an impact on freedom of expression.

So on the topic of criminal offences, all that remains in the Bill is the abolition of the three offences (the full Defamation Bill 1961, which developed some of the offences in terms of penalties and procedures, is to be repealed in full anyway). The Minister did point out, though, that the ‘constitutional offences’ of article 40.6.1 (“the publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law“), would still have to be dealt with, and that part of the 1961 Act might have to live on in order to provide for the sanctions for the constitutional offences. It was a short enough debate – Alex White (Labour) agreed with the Minister and Joe O’Toole (Ind) said that this would make Ireland a leader on this issue and would enhance the standing of the Minister in criticising criminal libel laws in more repressive states.

The context for the original proposal was the report of the Legal Advisory Group on Defamation of 2003, where they said (at para 59) that they

… endors(ed) the recommendations of the Law Reform Commission concerning the desirability of abolishing the common law offences of blasphemous libel, obscene libel and seditious libel. This is in a context where the Group has formed the view that matters such as blasphemy, sedition and indecency should not be dealt with in the context of a defamation statute even if they should be criminalised in their own terms in another statutory vehicle. (PDF)

but proposed the ‘publication of a gravely harmful statement’ offence (paras 60-61) while abolishing criminal libel. Earlier, as they said, the Law Reform Commission had also recommended abolishing the offences of seditious libel and obscene libel and maintaining but reforming ‘the common law offence of defamatory libel’, with a series of alternatives being set out regarding blasphemous libel. The LAG also mentioned, as you see, blasphemous libel (for abolition), although the Bill doesn’t points to this specifically in the repeal of common law (though repealing the Act of 1961, I think, would do some of this in practice anyway). The Bill, as it emerges from committee later tonight, will without further amendment provide for

  • the repeal of the 1961 Act including Part 2 dealing with various criminal offences
  • the explicit repeal of “the common law offences of criminal libel, seditious libel and obscene libel”
  • no provisions on a new offence of the publication of gravely harmful statements
  • no specific mention of blasphemy or blasphemous libel other than the repeal of s 13 (as part of the general repeal) of the 1961 Act (though I think that might mean that, especially in conjunction with the Constitution, blasphemous libel – or blasphemy, indeed – would continue to exist – but see note below on the definition of criminal libel)

And that, I believe, is good news.

(Additional notes on blasphemous libel after the jump)

Edit : An additional note on ‘blasphemous libel’. This is quite confusing. The LRC referred (in its crime of libel consultation paper) in a note on terminology to this, saying :

We note at the outset that we consistently refer to the overall crime as the “crime of libel”or “criminal libel” and the sub-crimes by their individual names, seditious libel, blasphemous libel, obscene libel and defamatory libel. Others have used the term “criminal libel” to depict defamatory libel, but we have avoided this practice as we feel it is misleading.

So the LRC says ‘criminal libel’ is an overall term for four types of sub-crime ; seditious, blasphemous, obscene, defamatory. The DAG said that ‘blasphemous libel, obscene libel and seditious libel’ should be abolished, as should ‘criminal libel’. The Bill says that ‘criminal libel, seditious libel and obscene libel’ are abolished. Are they all saying the same thing?

Finally, in terms of this question, note that the former Minister for Justice said (in the Seanad) in 2006 (while introducing the Bill – yes it was that long ago!) that:

Provision is made for the abolition of the common law offences of criminal, seditious and obscene libel. The issue of blasphemy is under consideration by the Oireachtas All-Party Committee on the Constitution. I am inclined to the view that the committee is well placed to reflect the range and depth of opinion on that complex subject and it would be better for us to get on with this legislation rather than dealing with that particular area.

From this, I think it means that the Minister deliberately took the words ‘blasphemous libel’ out of the LAG’s proposal and thus (in the Bill as originally presented) did not intend to abolish this offence. So if that’s the case, the status of blasphemous libel way still be unclear….of course, the way they are doing it in the UK is worth looking at too…

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4 comments

  1. Daithí says:

    For the first indication that this was coming down the line, see the comments of the Minister for Justice last December in the Seanad, where he said :

    Section 35 deals with an arcane branch of our law. Part 5 deals with criminal liability. If I may, I will revert to section 34, which is linked to section 35. Section 34 purports to abolish the common law offences of criminal libel, seditious libel and obscene libel and section 35 proposes to establish an entirely new section dealing with the publication of gravely harmful statements. All of these matters in sections 34 and 35 are criminal and not civil matters. Article 40° of the Constitution provides that the publication of blasphemous, seditious or obscene material is in itself an offence. As legislators, we must have regard to that in whatever proposals we draw up in these areas. I am not satisfied with the current arrangement in sections 34 and 35. Following discussions with the Attorney General, I am reviewing the provisions of sections 34 to 36, inclusive, to ensure that whatever legislation we bring in respects the existing constitutional provisions and goes no further than them.

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