Freedom Of Expression

Question 1

What article concerns freedom of expression

Answer 1

Article 40.6.1

Question 2

Give slight background on freedom of expression

Answer 2

Common law and statutory rules on it have survived throughout the years
Not much case law predating 1996 so if you were to abolish anything before that it wouldn’t have any effect really

Question 3

Content of the guarantee
State 2 main things about freedom of expression

Answer 3

1. It applies to both expression of opinions and statement of fact
2. The closer your statement is linked to the public the stronger your protections are

Question 4

1. It applies to both expression of opinions and statement of fact
   State the cases

Answer 4

Irish times limited v Ireland-
Barrington J stated that the guarantee not only applies to making a statement of facts but also commenting on them. And there is an implied right of the citizen under 40.3 to communication

Murphy v IRTC- endorsed barringtons views in Irish times

Holland v Governor-
Concerned a criminal who wanted to communicate to the media abt the legality of his conviction

Held: had a right to do so under article 40.3 and 40.6

Mahon v An post publications- the constitution unequivocally guarantees both the right to express opinions and state facts and these are inseparable

Question 5

2. The closer your statement is linked to the public the stronger your protections are

Answer 5

Irish times limited v Ireland- barrington J stated that the guarantee primarily focuses on the public comments of the person

Murphy v IRTC
HC: stated that guarantee only applies to people trying to piblically sway opinion
SC: disagreed w HC said that this was too far reaching, guarantee concerned anyone addressing the public or part of the public.
However there were policy reasons justifying why it couldn’t be used in this circumstance

SULLIVAN V BOYLAN
Concerned a debt collector and he would be outside woman’s house w van saying debt collector and sought to argue 40.6
Held: 40. 6 does not apply to private disputes between persons where it doesn’t have any discernible public interest

NOLAN v Sunday newspapers
Concerned publication of solicited pics

Held: 40.6 was weak because it was distant from the core objective of 40.6.1

Higgins v aviation authority
Concerned allegedly defamatory emails sent out about the plaintiff to a number of ppl

Held: 40.6 relatively weak here because message was only relayed to a small group and not the public at large

Dillon v DPP
Convicted under legislation that prohibited begging in a public place

Held: dévalera accepted that 40.6 could be invoked here and conviction was successfully appealed.
Controversial cuz begging is engaging in private convos w ppl

Question 6

The media what article

Answer 6

40.6.1(2)

Question 7

How can u interpret it and what did LRC say

Answer 7

Media have More protections than citizens
Media have the same
Media have less
LRC said one didn’t allign with con and others depended on whether citizen in 40.6.1(1) included media or not
If yes- less protections more restrictions
If no- same protections

Question 8

What case commented on this

Answer 8

Corcoran v commissioner for Garda siochana
Collins J rejected argument that media have more protections and noted that they do receive more restrictions than citizens normally get

Question 9

Other cases on media

Answer 9

Henniven v RTE- rte refused to allow leader of Green Party in public debate on general election
Held: media had right to make edirioeial and programming choices and their criteria wasn’t unjust as to warrant the courts to interfere w something they have no knowledge on

Foley v Sunday newspapers- in order to grant an interloc injunction preventing the media from publishing an article abt the plaintiff he would have to show sufficient evidence justifying why such publication should be restricted

Cogley v RTE

Mahon v post publications

Question 10

Cases where media was restricted

Answer 10

X v Sunday news -

O’vrien v rte

Question 11

How has courts modernised judgements in relation to freedom of expression

Answer 11

Acknowledged technological advancements post 1937 enactment

Lynch v coney- recognised TV as organ of public opinion

Cornec v morrice- judge hogan said online blogs were organ of public opinion

Question 12

Right to silence and freedom of expression

Answer 12

Heaney v Ireland
Right to silence under article 38 derived from right to freedom of expression

Question 13

Public funds and referendum and freedom of expression

Answer 13

McKenna v TD- freedom of expression in breach by state funding one side of referendum and not the other

Question 14

Other provisions of con relevant to freedom of expression

Answer 14

Article 40.3- implied right to communicate
Article 15- parliamentary privellege

Question 15

Limitations on freedom of expression

Answer 15

Right to life
State security
Official privacy
Public peace and order
Court authority
Fair trial
Journalistic privelege
Privacy
Reputation
Public morality
Protecting confidential info
Consumer protection

Question 16

Right to life
State cases
And
Statute

Answer 16

Foley v Sunday news papers
Not sufficient evidence to prove the right to life necessitated restriction on media
Not satisified that he discharged burden of proof
Munewe v Facebook

Criminal law suicide act

Question 17

State security
State cases and statute

Answer 17

Ag for England and wales v Brandon book publishers
Offences against state act- prohibits carrying seditious material- constitutional review group calls for more clarity on this word

Question 18

Official privacy
State stature

Answer 18

Official secrets act
Prohibited disclosing of any official info unless compelled to by court

Repealed by
Freedom of info act
Official info to be given to 3rd parties upon request unless reasons justifying not to

Question 19

Public peace and order

Answer 19

Prohibition on incitement to hatred

Section 5 of criminal law public order act- freedom of express subject to right of person not to be annoyed????

SECRION 12 criminal law act

EL COMPANY V KENNEDY

Marines terminal

Haynes v Dundalk racing
Verbally abusing someone in order to compel them not to exercise their rights is unlawful

Tallon v DPP- leg restricting freedom of expression has to be clear and definitive

Question 20

Court authority

Answer 20

Concerns contempt of court

Walsh v DPP
Higgins indicated leanings of contempt of court

Conduct that tends to obstruct the carrying out of justice
Conduct that tends to decrease confidence of public in the courts

Question 21

Fair Trials

Answer 21

Irish times v Ireland

Independent news v Anderson
media could only be restricted for the right to privacy and not the right to a good name.
When appropriate to restrict press freedom:
The order proportionate- ot would only restrict material thta would cause serious harm
Interfere as little as possible

O’brien v financial services ombudsman-

Question 22

Whats the subjudice principle

Answer 22

Prohibits the making of statements tending to influence the decision of a pending issue before the courts.
Prohibits subjecting a person to criticism on the basis that the person has exercised his/her right of access to the courts.


Question 23

State cases and leg on subjudice principle

Answer 23

Quinn v IBRC 2015

Held: Horton J declined to impose restrictions on the reporting of a civil case where there were concerns that this might prejudice a criminal trial involving some of the witnesses in a civil case.
Took the view that there weren’t exceptional circumstances to justify any such restriction.

Section 4J of the Criminal Procedure Act 1967

This applies to preliminary legal proceedings relating to indictable offences.
Provides that no person shall publish or broadcast any information about preliminary legal proceedings other than the names of the individuals involved and the decision.

Section 14(2) of the Censorship of Publications Act 1929

Prohibits the publication of evidence given in proceedings for divorce, annulments / judicial separations.

Section 8 of the Criminal Law Rape Act 1981

Prohibits the publication of evidence given in proceedings for sexual assault and rape.

Question 24

Journalistic sources
state cases

Answer 24

Re Kevin O’Kelly
Goodwin v UK
Mahon v Keena
Walsh v Newsgroup
Cornec v Morrice
Ryanair v Channel 4
Corcoran v comisisoner of an garda shiochana

Question 25

Re Kevin O’Kelly

Answer 25

Facts: Kelly was an RTE journalist and had interviewed the then Chief of staff of the provisional IRA and had broadcasted that interview. Legal proceedings were taken in the course of which Kelly was asked to identify the person on the tape recording that he made. He refused to name the chief of staff of the IRA arguing that in his role as a journalist, if he were compelled to disclose the identity of his sources, future potential whistleblowers would not have trust in him as a journalist in fear that their identity would be disclosed. Asserts journalistic privilege.

Held:
Special Criminal Court: Convicted him of contempt of court and sentenced him to 3 months imprisonment.

CoA: Obiter: Walsh J dismissed Mr Kelly’s defence taking the view that journalists and reporters were no different than any other citizens when it came to disclosing information that was received in confidence. The judge has a right to that evidence except when that person is protected under the Constitution/ other established privilege. The law had not recognised a privilege protecting journalists.
These views were criticised by Hogan J in Corcoran v Commissioner of An Garda Siochana 2023 on the grounds that Walsh failed to consider the reference to the media in Article 40.6.1(1).

Question 26

Goodwin v UK

Answer 26

Held: The courts took the view that the protection of journalistic sources was a protection for press freedom. Disclosing the identity of the sources was a breach of Article 10 of the ECHR unless the information in question was in breach of constitutional rights.

Question 27

Mahon v Keena

Answer 27

Facts: The HC granted an order requiring a journalist to answer a series of questions. The questions were designed to identify the source of a leak, ie. who was leaking the information.

Held: Sc struck down the HC order. Fennelly J acknowledged the Goodwin case: the journalist could refuse to disclose the identity of the source because the material was supplied anonymously.

Fennelly noted that the privilege wasn’t absolute and the courts could order the journalist to disclose the identity of his sources when they saw fit.

Question 28

Walsh v Newsgroup

Answer 28

Facts: Concerned section 62 of the Garda Siochana Act 2005 which makes it an offence for Garda to disclose information from work.

Issue: Was the principle of journalistic privilege relevant to the 2005 Act?

Held: O ‘Neill J held that disclosure by a Garda to a journalist was not covered by journalistic privilege.
Indicated that the principle of journalistic privilege only applies to a source whose identity is unknown.

Question 29

Cornec v Morrice

Answer 29

Held: Hogan J stated that a journalist doesn’t have to disclose their source even if their identity is known. Journalistic privilege is vital in protecting the right to freedom of expression however this privilege is not absolute and will be read subject to public order and morality.

Question 30

Ryanair v Channel 4

Answer 30

Neenan J cites Keena v Mahon and confines the case into 3 principles:
Journalistic privilege protects not only the identity of the source but also the information given by the source.
Privilege is not absolute and the courts can require a journalist to disclose sources/ information that they have received in light of public interest.
There is a heavy burden placed on the person who seeks disclosure of the source.

Question 31

Corcoran v Commissioner of An Garda Siochana 2023

Answer 31

Facts: A journalist received a tip-off on an incident that was going to take place. He managed to attend the scene and witnessed what amounted to a severe criminal offence. The journalist recorded the carrying out of the offence and the Garda obtained a search warrant of his home and seized his phone. The applicant challenged the legality of the warrant- stating that for the warrant to be granted, the judge would have to take into consideration journalistic privileges.

Held: The fact that the subject of the warrant was a journalist should’ve been made clear to the district court judge prior to granting the warrant. ECHR rights weren’t taken into consideration as a result. Hogan J believed that journalistic privilege was recognised under the Constitution however Collins J was sceptical, he was not convinced that it needed to be constitutionally protected. Hogan J stated that journalistic privilege may not protect every source: Article 10 of ECHR does not protect people engaged in criminal activity from journalists identifying the

Question 32

Individual Privacy State cases and statute

Answer 32

Re Kennedy v McCann 1976

Facts: The defendant made numerous criticisms of the courts; The criminal court was described as a ‘sentencing tribunal’ implying that everyone in the court would not have a fair trial because the judges were already biased against them.

Held: The defendant was prosecuted for contempt in court as the criticisms that he had made were excessive.

Sections 7 & 8 of the Criminal Law Rape Act 1981

Prohibit the publication of material to identify the victim of sexual assault.

Section 3 of the Criminal Law Incest Proceedings Act 1995

Prohibits the publication of material to identify the victim of incest/ person charged with incest.

X v Flynn 1994

Held: Costello J granted an injunction restraining the media from publishing details of a case because of the need to protect the plaintiff’s constitutional right to privacy. The plaintiff had made a fair case that she would establish the constitutional right to privilege.

NB: M v Drury 1994

Held: O’Hanlon J refused to grant an injunction restraining the media from publishing material relating to the breakup of the plaintiff’s marriage.
Cited Hoffman that ‘it is not for judges to decide what is appropriate to be published by the media.’

Murray v Newsgroup Newspapers 2010

Held: Refused to restrain the defendant newspaper from publishing an article on the plaintiff who was a serial rapist. The judge held that there wasn’t a strong argument showing that his privacy had been breached and therefore no interlocutory injunction was granted.

Question 33

Where the publication has already been published, the courts will award damages

Answer 33

Herrity v Associated Newspapers 2009

Held: Dunne J awarded punitive damages against a newspaper when it published material of the plaintiff’s marriage that had been gained unlawfully.
Accepted that the right to privacy would only prevail over freedom of expression in certain cases but it would prevail in relation to someone’s medical condition such that the material released would cause undue stress to the victim.

NB: Cogley v RTE 2005

Held: Clarke J drew a distinction between cases concerning information of an entirely private nature and cases where information had been obtained through a breach of privacy.
Clarke indicated that where the information itself was of a more private nature, the court would be more strict in preventing publication. Refused to grant the injunction.

Question 34

Private reputations, ie the right to the good name

Answer 34

Defamation act- right to good name vindicated

Hynes-O’Sullivan v O’ Driscoll 1988

Facts: The defendant had sought to extend the grounds upon which he should be allowed to publish information. He argued that if the person had an honest belief that the person receiving the communication had a duty/ interest in receiving it, then that would be sufficient to protect that communication even though it was damaging the reputation of the plaintiff.

Held: SC rejected the attempt to extend the protection to speakers referring to the constitutional right to protect one’s good name.
Henchy J stated that the constitutional right to one’s reputation would be of little value if a person defamed were to be deprived of redress because the defamer honestly but unjustifiably believed that the receiver had an intention/ right to receive it.

NB: Foley v Independent Newspapers 1994
Facts: The defendant sought to invoke freedom of expression in proceedings as a defence.

Held: Gaigan J made reference to the individual’s right to his/ her good name. The balancing that occurs between the 2 rights is achieved through the ordinary law of defamation.

Reynolds v Malocco 1999

Held: Kelly J indicated that the courts would be reluctant to grant interlocutory injunctions restraining the publication of allegedly defamatory articles because of the importance of freedom of speech and press freedom. Did grant the injunction.

De Rossa v Independent News 1999 / Leech v Independent Newspapers 2014

Held: SC accepted that a defendant’s freedom of expression required that there be some form of proportionality between the award of damages for defamation and the damage suffered by the plaintiff in the defamation proceedings.
Awarding of damages should not be excessive as it will make journalists scared of publishing articles in the future.

Hunter v Duckworth 2003

Facts: The defendant sought to extend the holdings in normal defamation proceedings to defend a book written about the Birmingham 6. When the defendant was sued for defamation, they argued that they should be allowed to publish it in a matter of public interest.

Held: The courts rejected this, and took the view that you cannot view the right to freedom of expression over the right to a good name.
Return to a more traditional approach emphasising the protections of a right to a good name.

McDonagh v Sunday Newspapers 2015

Held: Hogan J affirmed the right to publish. Every person has the right to publish words that are true in nature or in action.
SC: Disagreed with Hogan, noted that you do not have a right to publish everything that is true: speech can be restricted on the basis of public order.

Evans v Carlyle 2008

Held: Hedigan J granted an interlocutory injunction restricting the defendant’s right to freedom of expression by requiring him to obliterate/ remove the potentially defamatory statements that he had painted on the walls of his house.

Question 35

Public morality

Answer 35

Explicitly referred to in Article 40.6.1 as restricting freedom of expression.
The publication or utterance of indecent matter is an offence which shall be punishable in accordance with law.
There is not a definition of indecency or obscenity yet in Irish courts however old UK precedent provides a definition:

R v Hicklin 1868

Held: The test for obscenity was whether the tendency of the matter charged as obscene was to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication may fall.

Muller v Switzerland 1991

Facts: Concerned the display of obscene paintings and applicants were convicted under Swiss law in relation to the displaying of those paintings. Challenged that conviction before the ECHR unsuccessfully.

Held: The paintings were liable to offend the sense of sexual propriety of persons of ordinary sensitivity.
Offered a more objective test than that in Hicklin: Would a reasonable person be offended by the display of the thing in question?

Constitutional Review Group 1996

Recommended that the publication/ utterance of indecent matter shouldn’t be a constitutional offence because of the uncertainty in relation to the definition of what ‘indecent’ pertains.
Recommended that Article 40.6.1(1) be amended to allow the Oireachtas to regulate by legislation the restriction on distribution of obscene/ indecent matter.

Question 36

Protecting confidential info

Answer 36

AG for England And Wales v Brandon Book Publishes 1986

Held: O’Carroll J refused to prevent publication of the book, but did accept obiter that freedom of expression could be restricted in the interests of protecting copyright/confidential information.

Mahon v Post Publications 2007

Held: While the court was prepared to accept that you could restrain freedom of expression in the interests of protecting confidentiality, there wasn’t any legal basis for the particular claim that was being advanced.

ACC v Irish Business 1985

Held: HC granted an injunction to prevent the publication of articles based on confidential material belonging to the plaintiff where the plaintiff established that such a publication would amount to a breach of confidence and copyright.

National Irish Bank v RTE 1998

Held: The majority of the SC held that where the publication of confidential information would assist in the defeating of wrongdoing, the public interest in such publication would outweigh the public interest in protecting confidentiality.
O’Brien v RTE 2015

Facts: Concerned an action taken by the plaintiff successfully seeking an interlocutory injunction preventing the RTE from publishing documents regarding his relationship with a particular bank.

Held: HC accepted the fact that a relationship between a bank and its customer is protected by confidentiality.

Question 37

Comsumers

Answer 37

`consumer protection act

Question 38

Interception of messages

Answer 38

Section 98 of the Postal and Telecommunications Services Act 1983

Authorises the interception of messages by taps on telephones in the interest of protecting state security.

Sections 46 & 53 Communications Regulation Postal Services Act 2011

S46: Provides that the state can intercept, and examine post.

S53: Provides that it is an offence for a postal service provider to open mail without the consent of the recipient.

Question 39

Licensing apparatus

Answer 39

Part I of the Wireless Telegraphy Act 1926

Provides that it is necessary to have a licence for radio broadcasting, issued by the minister for telegraphs in order to set up a radio station.

The constitutional power vested in the minister did feature in 2 cases:

Nova Media v Minister for Posts and Telegraphs 1984

Facts: During the times when a series of private radio stations emerged challenging RTE, Nova Media wanted to set up its own radio station but was being denied a license by the minister.
Brought an action seeking an interlocutory injunction preventing the minister from interfering. Argued that the power of the minister was an unjust restraint on freedom of expression.

Held: Acknowledges that there was an issue to be addressed but declined to grant an interlocutory injunction.

Question 40

Prohibition on religious and political advertising:

Answer 40

Section 20(4) of the Broadcasting Authority Act 1960

Provides that any advertisement which is directed towards any religious or political end or has any relation to any industrial dispute will not be accepted.

Section 10(3) of the Radio and Television Act 1988

No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.

NB: Murphy v IRTC 1999/ Murphy v Ireland 2004

Held: The state had a legitimate interest in prohibiting religious advertising
ECHR: Sustained the SC ruling: restriction on religious advertising was permitted under Article 10 of the ECHR. The statutory provision had subsequently been amended:

Section 41(4) of the Broadcasting Act 2009

Permits religious advertising but prohibits a broadcast which addresses the issue of the merits of the religion/ attempting to sway someone towards a particular faith.

Colgan v IRTC 2000

Facts: The defendant prevented the broadcasting of an advertisement on the ground that it amounted to political advertising. The advertisement was submitted by an anti-abortion campaign group and they challenged IRTC’s ban. Argued that the relevant statutory provisions only referred to political parties’ advertising.

Held: Argument rejected- broader interpretation of the concept of political adversity is taken- included any advertising that sought to change public policy or that sought to resist public policy.

The ban on political advertising does not preclude party political broadcasts in the 2009 Act - ie. during general elections as provided or in the legislation:

Coughlan v Broadcasting Complaints Commission 2000

Held: SC stated that in this context, the constitutional principle of equality provides that an equal amount of time be given to the broadcasting of both sides of the debate.