Many constitutions and human rights instruments recognise the right to free speech. Free speech and the ability to communicate thoughts and ideas is upheld as one of the most precious rights of man. It is fundamental to the democratic nature of the State.
Under Article 40.6.1:
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;
the education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that the organs of public opinion such as the radio, the press, the cinema, while preserving their right for liberty of expression including criticism of public government policy, shall not be used to undermine public order or morality or the authority of the State.
Until a 2019 amendment, the Constitution provided that the publication or utterance of blasphemous, seditious or indecent matter is an offence and shall be punishable in accordance with the law.
Public debate is fundamental, in a democratic and free society. Freedom of the press includes the right to publish, criticise and disseminate opinions. Democracy requires the expression of opinions with which all or many may not agree, in the interest of public discourse and debate.
There are a number of sources of restriction on freedom of expression. Defamation legislation provides legal liability for damages and the possibility of an injunction in respect of utterances which are damaging to a person’s reputation.
The Defamation Act 2009 has codified and updated defamation law. It seeks to provide a balance between the Constitutionally protected right to a person’s reputation and good name and the freedom of expression of others. The Act expanded the defence for a fair and reasonable publication of matters of public interest. A range of publications enjoys qualified privilege by which the liability arises only if they are published in abuse of privilege or advantage.
Many types of publication and advertisement are prohibited by reasons of public policy. In other cases, they may be regulated. See generally the various sections on advertisements. Advertisements in many areas are regulated on public health grounds.
The Offences against the State Act requires that documents which are to be sold, distributed or displayed in public places, must have the name and business address of the printer.
The Irish courts are reluctant to issue pretrial restraints on publication or so-called gagging orders. While such orders may be granted, the courts are vigilant to protect the citizens, who also may have a right to be informed.
Some information is proprietary in nature and may be restrained in order to protect the underlying effort and value in its compilation. See the sections on confidential and proprietary information may not be freely disseminated.
Murphy v. Independent Radio and Television Commission related to advertisements. An advertiser wished to publish advertisements contrary to the prohibition on religious or political broadcast or a broadcast relating to any industrial dispute in the broadcasting legislation. The Supreme Court held that the restrictions were consistent with the Constitution.
“All three kinds of banned advertisement relate to matters which have proved extremely divisive in Irish society in the past. The Oireachtas was entitled to take the view that the citizens would resent having advertisements touching on these topics broadcast into their homes.”
The Official Secrets Act restricts very sensitive State information. It prohibits the disclosure of official information, certain military and Garda information and other information which would or might be prejudicial to the safety or preservation, of the State. Communication to a member of an unlawful organisation or a foreign agent is deemed to be prejudicial to State security.
The legislation prescribes the publication of secret or classified material. A person shall not communicate any official information to any person unless he is duly authorised to do so in the course of or in accordance with duties as a holder of a public office and when it is his duty in the interest of the State to communicate it.
Official information is, “information which is secret or confidential or is expressed to be either and which is or has been in the possession, custody and control of a holder of a public office or to which he has access by virtue of his office.”
Offences Against the State
The Offences against the State Act prohibits seditious treasonable and incriminating documents published by prescribed organisation. It is also an offence to set up in typed print, publish or sent through the post, distribute, sell or offer for sale any document which includes an incrementing, treasonable or seditious document. It is an offence to have any such document in one’s possession.
The former broadcasting ban aimed against members of illegal organisations was upheld in The State (Lynch) v. Cooney. It prohibited Sinn Féin candidates from being broadcast on RTE on the basis that their connection with the provisional IRA, the provision was justified on the basis of overriding considerations of public order and morality, the fact that the provisions were employed against persons who sought to overthrow the State and the Constitution, was significant element of its justification.
Security & Justice
In Holland v. Governor of Portlaoise Prison, a ban on communications between prisoners and members of the media was found unlawful.
Publications prejudicial to legal proceedings, the sub judice principle and contempt of court raise a conflict between the integrity of court proceedings and freedom of expression. There are statutory restrictions in relation to the reporting on sending forward persons for trial. An account of proceedings may not be published, other than bare details of the charge, the accused and the facts and the decision as to sending forward, save where the judge permits further information to be published.
Publications which may prejudice a fair trial constitute contempt of court. The court must weigh freedom of express and expression with the rights of the accused or party to the litigation.
Publications which tend to interfere with the course of justice, may constitute the offence of contempt. What is published before trial, must not be such as interferes with the jury’s determination of matters on the basis of the evidence properly before the court.
Prejudicial pretrial publicity may constitute contempt. It may involve written material or photographs. The courts have acknowledged that such material may enter the public domain and subconsciously influence persons, such as to undermine fair trial.
Unfounded allegations against judges of bias, hypocrisy, acting inappropriately or improperly may constitute contempt of court. See generally the sections on communications and the media.
The Criminal Justice (Public Order) Act provides that it is an offence in a public place to distribute or display, any writing, signs or visible representation, which is threatening, abusive, insulting or obscene with intent to provoke a breach of the peace or be reckless as to whether a breach of the peace may be occasioned.
The Prohibition of Incitement of Hatred Act makes it an offence to publish or display material that is threatening, abusive, insulting or intended or likely to stir up hatred against persons on account of nationality, colour, race, religion, ethnic origins, membership of the travelling community, or sexual orientation.
The legislation on the censorship of films has existed since the foundation of the State. The legislation on censorship of books was effectively liberalised significantly in 1967. In Melton Enterprises v. Censorship of Publications Board held that the Censorship Board functions did not constitute the administration of justice.
The requirements of Constitutional justice require that fair procedures be followed in the prohibition of publication. The requirements of fairness will depend on the circumstances. Where there are fair questions and points of view in relation to a matter and publication is not clearly indecent or obscene, the Publications Board should communicate with the publisher in order to seek its representations, which should be taken into account. In cases where the matter is clearly, patently obscene or indecent, this would not be required.
Blasphemy Obscenity & Indecency
The Constitution required blasphemous statements to be criminalised. See the sections on defamation in relation to the statutory provisions on blasphemy. The Supreme Court had found in Corway v. Independent Newspapers (Ireland), that the law of blasphemy was so uncertain as to be unworkable. The Defamation Act 2009 had provided that publishing blasphemous libel is an offence.
The Criminal Justice (Public Order) Act provides that it is an offence to publish any obscene writing, sign or visible representation with the intent to provoke or being reckless as to provoke a breach of the peace. It is an offence to publish an advertisement for a brothel or the services of a prostitute in the State. There are defences for publication and distribution in the ordinary course of business.
The common law offences of outraging public decency and conspiracy to subvert public morals or to outrage public decency exist but are rarely prosecuted. They may be too uncertain and subjective in their scope to afford to constitute an offence in view of the requirement for certainty in relations to the criminalisation of conduct.
The Criminal Law Amendment Act provides that it is an offence at or near a place where the public habitually passes to commit any act in such a way as to offend modesty, cause scandal or injure the morals of the community.
The Indecent Advertisements Act 1889 prohibits advertisements of indecent or obscene matter. It prohibits advertisements which to relate to or refer or may reasonably be supposed to relate to any sexually transmitted disease.
The Post Office Act prohibits the sending through the post of a package which encloses any indecent or obscene print, painting, photograph, lithograph, engraving, book or card or any indecent or obscene article, whether similar to the above or not or ;has on the packet or on the cover thereof, any words, marks or designs of an indecent, obscene, or grossly offensive character.
The Wireless Telegraphy Act provides that it is an offence to broadcast anything which is indecent, obscene or of an offensive character.
Public v Government Interests
In Mahon Tribunal v Keena and Kennedy, the Supreme Court allowed a claim for privilege against disclosure by a journalist of confidential sources. This reversed the former approach which held against journalistic privilege. The information involved a clear public interest but had been supplied in confidence to a Tribunal of investigation. The Tribunal had ordered identification of the source concerned.
The Supreme Court held that the newspaper could not be compelled to disclose the source, which appeared in any event to be anonymous. It is not clear whether this would hold if the source was known.
In Attorney General for England and Wales v. Brandon Books Publishers, an attempt to restrain the publication of a book by a member of the security forces in England, in the United Kingdom was rejected. It was held to be unacceptable in a democratic society that there should be a restraint on the publication of information relating to government action, where the only vice of that information is that this enables the public to discuss and review government action.
Important Notice! This website is provided for informational purposes only! It is a fundamental condition of the use of this website that no liability is accepted for any loss or damage caused by reason of any error, omission, or misstatement in its contents.
Draft Articles; The articles on this website are in draft form and are subject to further review for typographical errors and, in some cases, updating and correction. It is intended to include references to the sources of materials and acknowledgements in the final version. The content of articles with [EU] in the title and some of the articles in the section on Agriculture are a reproduction of or are based on European or Irish public sector information.