Jan 7, 2015

Any Attempt to Prosecute Irish Publication of Charlie Hebdo Mohammed Cartoons is Doomed to Fail

Eoin O'Dell responds to troubling remarks by Dr Ali Selim on blasphemy following attack in Paris.

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Eoin O’Dell

The attack on Charlie Hebdo, and the murders of ten journalists and two policemen, are not only a tragedy for the victims, their families, and their colleagues, but also an assault upon freedom of expression and the fabric of western democracy. The only appropriate response is to refuse to give in to such an outrage, and instead to support and exercise the fundamental freedoms for which the victims gave their lives.

It is therefore troubling that Dr Ali Selim – admittedly in response to a line of leading questions from a radio journalist – should threaten legal action against any Irish media outlet which chooses to publish cartoons depicting the Prophet Mohammed which had been published by Charlie Hebdo. I assume that he has in mind the offence of blasphemy contained in section 36 of the Defamation Act, 2009. It was included in that Act to give effect to the constitutional requirement that the publication of “blasphemous … matter” should be a criminal offence. However, section 36 is very narrowly drawn, and its terms would not be satisfied by the publication of a Charlie Hebdo cartoon to illustrate a story on the attack on the magazine.

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It is troubling that Selim should threaten legal action against Irish media outlets

Under section 36, there are three main issues to be considered. First, it would be necessary to establish that the publication of the cartoons is grossly abusive or insulting in relation to matters held sacred by Islam. Since many Muslims believe that visual depictions of the Prophet should be prohibited, satirical cartoons of the Prophet are very likely to meet that standard.

Second, it would be necessary to establish that the publisher “intends” to cause outrage among a substantial number of Muslims. This would be hard to establish where the intention behind the publication is to illustrate a major news item.

Third, even if that is established, it is a defence for the publisher to prove that “a reasonable person would find genuine literary, artistic, political, scientific, or academic value” in the publication, a rubric which would be easily satisfied by a major news story.

Finally, even if the terms of the offence are made out, the question would arise as to how the offence could be prosecuted. Dr Selim might make a complaint to the Gardaí and, even if they investigate, it would be a matter for the Director of Public Prosecutions (DPP) whether to prosecute or not. And although, at common law, any individual has the right to initiate a private criminal prosecution, the DPP can decide to discontinue it.

That there is some superficial plausibility to Dr Selim’s misconceived claim demonstrates just how unwise the blasphemy provisions of section 36 the Defamation Act, 2009 actually are. A referendum to remove the reference to blasphemy from the Constitution is promised for this year. If it succeeds, section 36 should be immediately repealed. Thereafter, we should be able to discuss and debate issues of faith and politics, rather than seek to have the law come down on one side or the other of such intractable issues. That is what democracy is all about. And, in that way, we honour the memories of those who died in the attack on Charlie Hebdo.

#JeSuisCharlie #NousSommesTousCharlie


Eoin O’Dell is an Associate Professor in Trinity’s Law School, Chair of the Fellows of Trinity College Dublin and the former Editor of Dublin University Law Journal. He blogs about academic law and related matters at Cearta.

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  • SOMARA556

    Dr Salim might be more at home in a country like Saudi Arabia or Qatar than in Ireland.

  • Johnny King

    12 people have been murdered and “Dr” Salim is more concerned with a cartoon image. That’s it, I’m out.

  • LS

    He also wants radical reform of the Irish educational system to accommodate Islamic
    beliefs. This would include physical education, relationship and sexuality education, music, drama and the practice of Islamic rituals during school hours. Freedom of thought and expression are anathema to Islam, this has been evident since Salman Rushdie published the Satanic Verses in 1988 and a fatwah was decreed against him resulting in several attempts on his life. His Italian, Norwegian and Turkish translators were stabbed or shot and the Japanese translator was murdered. The massacre in Paris yesterday is just another manifestation of this endemic intolerance and obscurantism. Dr. Selim has no place in TCD and should go back to wherever he came from.

    Leslie Shaw, Associate Professor, ESCP Europe Paris campus

    • CathalM

      “Freedom of thought and expression are anathema to Islam” –It is too easy, too reductionist, and too polarising to assert that Islam as a belief system is intolerant of freedom. We have seen a multitude of Muslim scholars come out in the last number of days, personally horrified by the atrocities committed in the name of Islam, and pointing to the many instances in the Qu’ran and Hadith condemning actions of this nature. It was the Catholic Church that persecuted Galileo in the name of faith, not any Muslim cleric. Blasphemy is still an offence in this country — it could as flippantly be asserted that this is evidence that “the Irish people” as a whole are, therefore, also enemies of freedom of expression.

      That there are extremists without perspective, fellow-feeling, or common decency in every faith and tradition is a truism. We should not be blinkered by tunnel vision when it comes to narratives featuring Muslims as their protagonists. To do otherwise is to play right into the hands of the Front Nationale, PEGIDA, UKIP, et al.

      Cathal Malone, BL

    • Jimbo

      “Freedom of thought and expression are anathema to Islam” <- I could say the same of Catholicism. Get religion out of school altogether.

      • LS

        That is exactly the point. Selim wants to put religion in schools, not take it out.

  • Robbie

    We will not be dictated to by Islam, feel free to find a country that reflects your extreme needs!

  • corkgirl

    just like all religious nutters

  • Adrian Morgan

    Selim appears to be trying to assert some sort of Islamic supremacy in Ireland, suggesting that no-one dare depict an image of his particular prophet, which at this moment in time is just offensive, and provocative, behaviour.

    • Joe Burns

      In a couple of generations there will be an Islamic flag flying over the Dail and most of Europe. Muslims have far higher birth rates.

  • David Parris

    Allowing for the fact that clarity is not the promary aim of Irish legal drafters, I can see how the text of the Act might lead Dr Selim to see how an offence could be committed:

    “36.—(1) A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding 25,000.

    (2) For the purposes of this section, a person publishes or utters blasphemous matter if—

    (a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and

    (b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

    (3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.”

    Many countries have legislation limiting freedom of speech where it will incite hatred on grounds of race and religion, and others have a law on religious insult:

    Andorra (of which François Hollande is “co-prince”), Cyprus, Croatia, the Czech Republic, Denmark, Spain, Finland, Germany, Greece, Iceland, Italy, Lithuania, Norway, the Netherlands, Poland, Portugal, Russian Federation, Slovakia, Switzerland, Turkey and Ukraine.

    The Charlie Hebdo affaire has led to a lot of bleating about freedom, not all of it exempt from hypocrisy. In France, for example, it is forbidden to deny the Holocaust/Shoah:

    « Seront punis des peines prévues par le sixième alinéa de l’article 24 ceux qui auront contesté, par un des moyens énoncés à l’article 23, l’existence d’un ou plusieurs crimes contre l’humanité tels qu’ils sont définis par l’article 6 du statut du tribunal militaire international annexé à l’accord de Londres du 8 août 1945 et qui ont été commis soit par les membres d’une organisation déclarée criminelle en application de l’article 9 dudit statut, soit par une personne reconnue coupable de tels crimes par une juridiction française ou internationale. » (Loi Gayet)

    I personally entertain NO doubts about the historical truth of the Holocaust, but on the other hand I do entertain doubts about whether governments should determine what is or is not truth, and the French have attempted, to curry electoral favour, by twice trying to ban denial of the Armenian genocide (about which, personally, I also have no doubts).

    I am not sure Dr Selim is wrong to seek advice to guide him through the minefield of conflicting entitlements.

    • LS

      Well put David (Leslie Shaw, 1976)

  • Carl

    The drafters of sect 36 of the 2009 Act were rather stupid to include the phrase “any religion” when they defined blasphemy. This only opened things up, whereas the Supreme Court would have had to read the Constitution through the lens of how and why it was drafted, in other words in this instance as a christian clause in the document for a christian Ireland and therefore Mohamed would have been a non entity as he has no place in the christian faith. The last thing we need is more of this PC gobbledygook turning up in our laws for no good reason. If someone invents a religion that spreads to Ireland that includes aliens or nonsense then it should be open to ridicule and not protected by the Irish State. But then what do we expect off the people in power except terrible laws that turn into complete messes! The law or that phrase is probably unconstitutional as it has included non christian religions in this law that provides for actions subject to the clause in the constitution which specifically only refers to the christian religion. The constitution gives us the inherent right to so called “blaspheme” all non christian religions. Not that I am pro acting in an ungentlemanly manner towards anyone.

  • Christian

    Do we really have freedom of speech in the West? Or do we really have selective freedom of speech? For example if we really want to exercise freedom of speech, should we not allow al Qaeda and and ISIS propaganda be broadcast to the wider public? Or should be allow radical Islamic preachers preach inflammatory sermons? Or would we think its perfectly ok to publish anti Semitic or homophobic cartoons for a laugh all in the name of freedom of speech? Of course not!

    What happened in Paris is a disgrace, and no one should ever die for a few drawings, however if you put your hand out to get slapped, more than likely it will get slapped! Publishing those cartoons, was nothing to do with freedom of speech, it was pure racist arrogance, and highly disrespectful to the Muslim community. If somebody asked you not to do something or call them something because it made them feel uncomfortable, common manners would make you oblige. The same common decency should be shown when interacting with people of a different ethnic or religious group, Mutual respect for our Muslim neighbours and what they hold sacred would of avoided all this hate.

    Je ne suis pas Charlie, je suis en enfant de la monde, la meme de tout le monde! respect!

    • Rudigar

      Christian, I agree with you that there are those in the west who do not feel free to poke fun at things like the holocaust, homosexuals, etc., and I believe this is probably because of the negative reaction those ideas would incite. I think though that they are free to be homophobic or anti-Semitic…just the majority of mainstream society would shun them. Likewise, if people choose to publish homophobic or anti-Semitic material, those offended by it would cease to support or buy that publication and may even subject the paper to large amounts of negative media. Which in many ways is just another way of exercising their freedom to choose what speech they listen to and their own freedom of speech. I cannot think though of one example where a magazine has been a victim of mass murder because they published mocking pictures of homosexuals, or images of holocaust denial. Correct me if I am wrong?

      If some Muslims are so offended by simple pictures as to kill people who draw them and publish them, then I think they must ask serious questions about their conviction to their own faith. Perhaps what they truly fear is that their ‘sacred’ beliefs are so easily subject to ridicule and this is why they act out so quickly in anger?

  • Olly A. Donnelly

    While I understand that it was meant to show a kind of solidarity in the Idea of freedom of speech, I think the photo here is a bit of a petty move by UT. The Article stood without it, and if anything is undermined by it, because it’s went from something interesting and constructive to something that will offend. Just because you have a freedom doesn’t mean you should use it guys. Poor show.

  • Joe Burns

    Still, it will be interesting to see if Dr Selim makes good on his threat.