Freedom Of Expression Notes

Freedom of Expression

Irish Times v Ireland (HC 1997, SC 1998)

Facts

1. One of the defendants made an order prohibiting contemporaneous reporting of a trial over which he was presiding.

2. The plaintiffs sought an order of certiorari, claiming that the defendant had failed to have regard to the right of the press to freedom of expression.

Issue

• Freedom of expression – Contemporaneous reporting of court proceedings

Supreme Court Judgment

1. Hamilton CJ (concurring)

   • In this case there was no evidence before the Circuit Court judge that could justify him holding that there was real risk of an unfair trial if contemporaneous reporting was not prohibited – he was not entitled to assume that such reporting would be unfair or inaccurate.

   • Contempt of court proceedings are a sufficient safeguard should it transpire that subsequent reporting is unfair or inaccurate.

2. O'Flaherty J (concurring)

   • Freedom of the press is guaranteed under Art 40.6.1 and is not limited to mere expressions of convictions and opinions – it includes a right to publish information which does not involve any breach of copyright provided the public interest is not affected by the publication and there was not a breach of confidentiality in a private or commercial setting.

   • In light of the importance of freedom of expression, the risk must be run that, from time to time, the press will distort the proceedings of court.

3. Denham J (concurring)

   • The test for whether the accused's right to a fair trial requires that other constitutional rights be overrided is whether a) there is a 'real risk' and b) such a risk can not be negated by appropriate rulings and directions.

   • The trial judge erred in his application of this test.

4. Barrington J (concurring)

   • Art 40.6.1 appears beside the right of citizens to assemble peacefully and to form associations and unions – these all relate to the public activities of citizens which are at once vitally important to the success of a democracy and a potential source of instability, which is why both the Constitution and ECHR assert and circumscribe them.

   • The Article implies a right to communicate facts as well as report on them – this is because it would be ludicrous for an organ of public opinion to have freedom to express a conviction without having the freedom to communicate the facts on which the conviction is based.

   • In light of the importance of this right, the trial judge failed to give it due weight.

5. Keane J (concurred)

Kelly v O'Neill (SC 1999)

Facts

1. The plaintiff was convicted of a number of drug offences and the hearing on his sentencing was in progress, when the defendant wrote an article in the Irish Times covering facts about the plaintiff which would be inadmissible at the hearing.

2. The defendants were fined for contempt of court and appealed against the fine arguing that their right to freedom expression allowed the publication of such an article after the trial and before sentencing.

Issue

• Freedom of Expression

Judgment

1. Denham J (concurring)

   • A case such as this requires that a balance be struck between the right to a fair trial and to freedom of expression – if there is a real or serious risk or a doubt that an accused would not receive a fair trial, the balance will lie in favour of the accused.

2. Keane J (concurring)

   • The protection conferred by contempt of court jurisdiction does not end once the jury have returned their verdict – judges are still human despite their experience and oath of office.

   • The right to freedom of expression is not absolute, and a temporary restraint lasting for as short a period as this is not disproportionate to the right of the accused to due process even after conviction.

   • The press can print a summary of the findings of fact made by the jury and innocuous information about the accused without interference.

   • In deciding whether this article was calculated to interfere with the administration of justice it should be taken into account that a) it did not urge the imposition of any particular sentence, b) it contained inadmissible and prejudicial material, c) the likelihood of the article influencing the sentence was of a low order, in light of the circumstances of the case and d) it was open to the trial judge to conclude that the article had been published in good faith with no intention of influencing the court.

   • Even if the defendants were convicted, only a modest penalty should be imposed

3. Hamilton CJ (concurring - agreed with Keane J

4. Lynch J (concurring – agreed with Keane J)

5. Barrington J (concurring – agreed with Keane and Denham JJ)

Murphy v IRTC (SC 1998)

Facts

1. The plaintiff had placed an advertisement on radio which the defendants removed pursuant to the relevant legislation, which prohibited the broadcast of advertisement to political or religious ends or in relation to trade disputes.

Issue

• Freedom of expression

Judgment (Barrington J)

• The right to communicate is an unenumerated right protected by Article 40.3.1 – it embraces the right most fundamental to man's survival besides the right to nurture and embraces words and gestures as well as rational discourse.

• The right in Article 40.6.1 is more concerned with public expression by the citizen of his opinions and the facts on which they are based – the two rights overlap to a certain extent.

• Both rights may be limited in the interests of the common good – but their limitation must be proportionate to the aims which the Oireachtas wishes to achieve.

• Thus the test of proportionality should be employed as stated in Heaney v Ireland.

  • In this case the restriction on the plaintiff's rights is minimalist – he is precluded only from advancing his views by paid advertisement on television.

  • Although a more selective approach could be employed, whereby only offensive advertisements would be banned, the Oireachtas may well have decided it was inappropriate to involve agents of the State in such a controversial process.

  • Once the Statute is broadly within the area of competence of the...

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