Dr Ali Selim (above) and ‘Charlie Hebdo’ (top)
Dr Ali Selim, of the Islamic Cultural Centre of Ireland has threatened legal action against any Irish media outlet which chooses to publish cartoons depicting the Prophet Mohammed which had been published by Charlie Hebdo.
Eoin O’Dell, an Associate Professor in Trinity’s Law School, writes:
Under section 36 [of the Defamation Act, 2009], 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 If it succeeds, section 36 should be immediately repealed.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.