Free speech ‘not fully protected’ by Constitution

THE Constitution does not do enough to protect free speech, a cross-party Oireachtas committee has found.

The Joint Oireachtas Committee on the Constitution found that Article 40.6.1.i places an “undue emphasis” on the restrictions on free speech.

Article 40.6.1.i also states that it is a punishable offence to publish or utter “blasphemous, seditious or indecent matter” — outdated references which the committee said did not suit the modern era.

The committee recommended that the article be amended so that it resembles Article 10 of the European Convention of Human Rights, which provides a much stronger defence of freedom of expression.

Amending the Constitution in this way would “ensure greater emphasis on the freedom of speech whilst allowing for proportionate and measured restrictions on that freedom”, committee chairman and Fianna Fáil TD Sean Ardagh said.

A referendum would be required to amend the article, as any proposed changes to the Constitution must be put before the people.

However, the committee said the amendment was not a matter of urgency.

This is because legal cases have demonstrated that judges are applying the European Convention of Human Rights when interpreting Article 40.6.1.i.

“The enactment of the European Convention of Human Rights Act 2003... now requires the courts to interpret legislation in a manner compatible with the provisions of the Convention,” the committee reported.

“It is clear from [the emerging jurisprudence of the Irish courts] that the courts are giving effect to the freedom of expression as it is envisaged by Article 10 of the Convention and, in that regard, are transcending the potential structural and linguistic limits which might otherwise arise from Article 40.6.1.i.”

The committee, therefore, said it was not necessary to call a referendum for the sole purpose of amending Article 40.6.1.i.

Instead, the committee said the article could be amended “when an appropriate opportunity presents”, ie, when a referendum is being held on a more important issue.

Proposed amendments to Article 40.6.1.i could then be put to the people as a secondary issue during the same referendum.

Article 40.6.1.i says that the State guarantees the right of the citizens to express freely their convictions and opinions “subject to public order and morality”.

It adds: “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 rightful 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 indecent matter is an offence which shall be punishable in accordance with law.”