Freedoms of Expression II

Freedom of Expression

The Constitution protects freedom of expression, assembly and association.  Each is subject to considerations of public order and morality.

The right to express opinions and convictions is a right to communicate facts and the  right to comment on them. Freedom of expression includes the right to make and express political opinions and criticise the government.

Section 31 of the Broadcasting Act 1960 allowed the making of orders preventing certain classes of material from being broadcast if the Minister concerned was of the opinion that it would undermine the authority of the State.  Broadcasts made for or on behalf of Sinn Fein or inviting support for it were prohibited under a ministerial order.

The constitutionality of the order was challenged on the grounds that was inconsistent with the guarantee of freedom of expression protected by the Constitution. The Supreme Court upheld the constitutionality of Section 31 on the basis that freedom of expression had not been unduly restricted.

It indicated that the State is entitled to control rights and freedoms in certain cases.  This must be in accordance with the Constitution and the overriding considerations of public order and morality.

The Supreme Court held that it was permissible for the State to deny the use of the public media to an organisation which sought to overthrow the State by force and violence.  The court said that in this case there was an objective determination. However, the State could not curtail or prevent free expression of convictions and opinions on any irrational or capricious grounds.

Commercial Communication

The Radio and Television Act prohibited advertisements directed towards religious or political ends or in relation to a trade dispute.  The constitutionality of this provision was challenged by a plaintiff who sought to advertise a presentation of evidence regarding the resurrection of Christ.

The challenge was unsuccessful, but the case shows that commercial communications are protected as well as political and personal comment. The guarantee protects individuals as well as person and businesses comprising the press and equivalent media.

Proportionality

In considering whether freedom of expression might be limited,  the courts often rely on a  proportionality test.  A number of cases  involved orders restraining coverage of legal proceedings for particular reasons.  The courts have emphasised the strong presumption that the Press  may report on legal proceedings. However, a blanket ban was found to go too far in restricting this freedom.

The courts have emphasised the requirement for proportionality in the context of a restraining order on reports.  The order should be designed to restrict publication of material which would cause serious prejudice and a  real risk of an unfair trial.

The order should so in a manner  which interferes as little as possible the entitlement to report fully on all aspects of the administration of justice and should do so in a way which is proportionate.

Prior Restraints

The Irish courts  have been reluctant to grant orders restraining the publication of material  simply because it is alleged to be private or disputed in some way.  An interlocutory injunction may be granted to restrain publication of a defamatory article in an appropriate case.

However, the courts are reluctant to grant such an injunction in advance. A prior restraint must be clearly authorised by law. The media is free to presumptively free to publish material.

The right of freedom of expression applies to trivial prurient and worthless works as well as to serious and valuable work.  The freedom covers the right to publish unpopular matters or matters which many or even the majority regard as reprehensible.

The law of defamation strikes a balance between freedom of expression and the right of a citizen to his good name. The courts have reviewed the principles of defamation law in relation to privilege in the context of the balance set out in Article 40.6 and in the European Convention on Human Rights.

In the above mentioned case with reference to religious-based advertisements  impaired the Constitutional rights as little as possible and as proportional to its object.

The prohibition was on advertisements related to it a matter  which are divisive in society.  The court took the view that the legislature was entitled to take the view that public advertisements of these kind could be unfairly exploited.

Blasphemy

Article 40.6 provides that the publication or utterance of blasphemous, seditious or indecent matter is an offence which must be punishable by law.

In the absence of a definition of blasphemy in legislation the courts were unwilling to define what the offence of blasphemy consists of.