The late great Ronald Dworkin taught me Jurisprudence and towards the end of his illustrious career, and in response to the Danish Cartoon incident, wrote a nuanced defence of the right to offend, saying:
“Ridicule is a distinct kind of expression: its substance cannot be repackaged in a less offensive rhetorical form without expressing something very different from what was intended. That is why cartoons and other forms of ridicule have for centuries, even when illegal, been among the most important weapons of both noble and wicked political movements.
“So, in a democracy no one, however powerful or important, can have a right not to be insulted or offended.”
The Irish Government, through the Online Safety and Media Regulation Bill 2022, is purporting, in contradiction to the sentiments and arguments of Dworkin and others, to criminalise causing offence as well as harm.
It is Section 46JA of the bill which is the exact provision which criminalises causing harm or offence as judged reasonably. But by whom? A politically-appointed commission, of course. Vox populism. The mob. Mr. Varadkar and his oft expressed fear of unregulated journalism. Those who tell the truth about him and those he cannot influence not to do so. Well, now to be regulated by him and his cohorts. What a vista? Also offence to whom. The right-thinking members of the community? Us not them.
In fact, the act is contrary to the jurisprudence of the European Court Of Human Rights (ECHR) by which we are bound.
Now not everything is permitted, Holocaust denial or racist speech for example, but the parameters are wide or were. And, in a number of cases, such as Jersild Vs Denmark and Lingens Vs Austria, the court has indicated speech encompasses the right to outrage and shock and such are the hallmarks of tolerance and broadmindedness.
Under the interpretative obligation implementing the ECHR in Ireland, the state is obliged as far as possible to follow that jurisprudence, but, crucially, as interpreted by domestic Irish courts, this is subject to existing constitutional protection which on speech are much more limited.
So, clearly the mandarin gambit is to criminalise domestically, seek to scupper or wait in the never never as the ECHR finds a breach many years later, at which stage it will be too late, and then water it down in terms of existing constitutional entitlements. We protect enough. The act is constitutional. Our good old boys can be relied on to say so.
It is deeply sinister and redolent of other historic Fine Gael legislation on controlling broadcasts from deemed subversive organisations. But who are the subversives? It is not just Sinn Féin historically that has blood on its hands.
The bill if enacted is a further escalation to a controlled form of corporate Stalinism. The suppression of dissidence. The dying of the light.
David Langwallner is a barrister, specialising in public law, immigration, housing and criminal defence including miscarriages of justice. He is emeritus director of the Irish Innocence project and was Irish lawyer of the year at the 2015 Irish law awards. Follow David on Twitter @DLangwallner
Previously: Simon McGarr: Unflattering Portraits