International Blasphemy Day
Yesterday was International Blasphemy Day (Facebook | twitter). According to a post I came across late yesterday evening on Media Law Prof Blog, the day
… was instituted after the Danish newspaper, Jyllands-Posten, came under fire in 2005 for publishing twelve cartoons that mocked the Prophet Mohammed. More here from the Campaign for Free Expression, here from the Telegraph, here from the Huffington Post.
In honour of the day (with apologies that it’s a day late), here’s an extract from a post on the Irish Philosophy blog about Ireland’s first recorded blasphemy trial:
Thomas Emlyn spent fourteen of his seventy-eight years in Dublin (1691-1705), but they were easily the most eventful of his life. He wrote his An Humble Inquiry into the Scripture Account of Jesus Christ as a result of events there. The result was his appearance as the … [defendant] in what “appears to have been the first reported blasphemy prosecution in Irish law” (UK Select Committee on Religious Offences in England and Wales First Report). …
blasphemy … was defined in the statute as … “a scornful and spiteful reproach uttered in designed contempt of God;” … The jury was pressured and despite his book not reaching the standard for blasphemy, and his authorship remaining unproven (the printer swore that he didn’t know the writing), Emlyn was found guilty.
In the leading modern Irish case of Corway v Independent Newspapers [1999] 4 IR 485, [2000] 1 ILRM 426, [1999] IESC 5 (30 July 1999), Barrington J said:
17. It appears that the earliest reported case of a prosecution for blasphemy in the Irish Common Law Courts was the trial in 1703 of Thomas Emlyn. Emlyn was a Unitarian Minister who had written a book arguing, apparently in moderate terms, that Jesus Christ was not the equal of God the Father. He was convicted of blasphemy, sentenced to one year’s imprisonment, fined £1,000 and ordered to find security for good behaviour for life.
18. Speaking of this case, over a century later, Sir. Edward Sugden said:-
“… I am not called upon to give any opinion whether that prosecution was right or wrong; but it proves this, which is of great importance that as the law was then administered, it was blasphemy to deny the Divinity of Christ;” (AG v Drummond (1842) 1 Or and War 353, 384).
The case of John Syngean Bridgman … arose out of disputes between Roman Catholic clergy and Protestant Ministers in the middle of the 19th Century. … Another case involving bible burning occurred later in 1855. … There is no record of any prosecution for blasphemy between then and the enactment of the Constitution of the Irish Free State in 1922. …
The future of the Seanad
The following appears under the above heading in the letters page of today’s Irish Times:
Sir,
As academics engaged in research in a variety of different disciplines we strongly advocate a No vote in the upcoming referendum on Seanad abolition.
We believe that to tackle the major issues affecting our society, it is vital that there should be more scrutiny of legislation and executive accountability, not less; that the level of vocational expertise in our parliamentary system should be strengthened, not eliminated; and that political participation by citizens in deliberative democratic processes should be intensified, not reduced. While the Seanad, as currently constituted, is not sufficiently equipped to deliver on these ideals, the reform proposals set forth in the Seanad Bill 2013 proposed by Senators Feargal Quinn and Katherine Zappone go some way to meeting them.
By broadening the nomination process and giving all citizens the right to elect our senators, the Quinn-Zappone Bill seeks to implement the real value of bicameralism in providing space for reflection and debate by two sets of qualitatively different representatives. By increasing the Seanad’s powers of scrutiny in a range of areas and providing for the right of the people to force the Seanad to debate on an issue of national importance, this reform package has the capacity to bring new expertise and scrutiny into the parliamentary system and to provide a channel for citizens to express their views, their ideas and their suggestions for change, thus strengthening the foundations of democracy in our country.
The only hope for real reform is a No vote.
Yours, etc,
Prof Ivana Bacik, School of Law, TCD;
Dr Cathryn Costello, Faculty of Law, Oxford University;
Dr Yvonne Daly, School of Law and Government, DCU;
Dr Shane Darcy, School of Law, NUI Galway;
Prof Fiona de Londras, Durham Law School, Durham University;
Larry Donnelly, School of Law, NUI Galway;
Prof Diarmaid Ferriter, School of History and Archives, UCD;
Dr Graham Finlay, School of Politics and International Relations, UCD;
Prof Conor Gearty, Department of Law, London School of Economics;
Dr Aidan Kane, School of Business and Economics, NUI Galway;
Dr Padraic Kenna, School of Law, NUI Galway;
Dr Robert Mooney, School of Sociology, UCD;
Dr Ronan McCrea (Faculty of Laws, University College London)
Dr Noel McGrath, School of Law, UCD;
Dr Cian Murphy, School of Law, King’s College London;
Prof Gary Murphy, School of Law and Government, DCU;
Colm O’Cinnéide, Faculty of Laws, University College London;
Prof Donncha O’Connell, School of Law, NUI Galway;
Dr Eoin O’Dell, School of Law, TCD;
Charles O’Mahony, School of Law, NUI Galway;
Prof Gerard Quinn, Centre for Diability Law and Policy, NUI Galway;
Dr Niamh Reilly, School of Political Science and Sociology, NUI Galway;
Dr Ciara Smyth, School of Law, NUI Galway;
Prof Jennifer Todd, School of Politics and International Relations, UCD;
Dr John Walsh, School of Languages, Literature and Cultures, NUI Galway;
Judy Walsh, School of Social Justice, UCD;
Suzanne Egan, School of Law, UCD, Belfield, Dublin 4.
I’m proud to join such stellar company in signing this letter; and kudos to Suzanne Egan for bringing us together and arranging its publication!
Update (1 Oct 2013): There is a reply by another group of academics in today’s letters’ page of the Irish Times, urging a vote the other way.
Pornography, cyberbullying, and internet regulation
The image, left, shows the result of a poll on TheJournal.ie which ran last Tuesday: the question was whether Ireland follow the UK’s lead in blocking online porn? And the results show a slight majority (54%) against doing so. This comes in the wake of proposals from UK Prime Minister David Cameron to compel internet service providers to block pornographic material by default.
To the age old question “will no-one please think of the children?“, Cameron (perhaps rather cynically) rushes to answer: “I will”:
I want Britain to be the best place to raise a family. … Where children are allowed to be children. … Protecting the most vulnerable in our society; protecting innocence; protecting childhood itself. … I will do whatever it takes to keep our children safe.
Predictably, there were calls for similar Irish developments. The Minister for Communications, Energy and Natural Resources, Pat Rabbitte, has blown cold then hot then cold again on the issue. Writing in TheJournal.ie, Ashley Balbirnie, Chief Executive of the Irish Society for the Prevention of Cruelty to Children (the ISPCC), is very critical of Rabbitte’s vacillation, and makes the case for following Cameron’s lead:
… viewing graphic and violent pornographic material online is extremely harmful to children and we believe strongly that introducing such filters in Ireland is an option worth at least some serious consideration.
We have been here before with calls that “something must be done” and doubtless we will be again. But many of Cameron’s legislative proposals may be neither necessary nor possible, whether in the UK or in the Ireland. In the UK, section 63 of the Criminal Justice & Immigration Act 2008 already goes a long way to doing what Cameron said he wants; in Ireland, the Child Trafficking and Pornography Act, 1998 is similar; European Union case-law seems to prevent the kind of filtering upon which the detail of some of Cameron’s proposals rely, detail which it is notoriously difficult to get right. However, beyond the headline, Cameron’s plan is authoritarian and ill-conceived; the reach of this kind of technology can be extended and over-extended very quickly and easily to other content; it will simply drive the already-illegal material further underground; and it probably won’t work in its avowed aim to help children.
These developments come hot on the heels of the Oireachtas Joint Committee on Transport and Communications conclusions the previous week that the Office for Internet Safety does not adequately deal with the issue – though I think the Committee was overly-critical of the OIS. In any event, the Committee recommended that there should instead be a single body co-ordinating the regulation of social media content. Other recommendations include:
Recommendation 1
Despite age restrictions put in place by social media companies, many children are opening accounts on social media platforms. The Committee recommends that, where this has been identified, the relevant company must be swift in closing the account and taking down all information in relation to it. …Recommendation 2
The Committee recommends that Child Protection Guidelines incorporate guidance for all professionals working with children, to aid them if they encounter issues relating to cyberbullying and inappropriate use of social media.Recommendation 3
The Committee recommends supporting and reiterating the recommendation[s] contained in the Action Plan on Bullying …Recommendation 4
The Committee recommends that employers be made aware of the importance of introducing a social media policy, i.e. outlining what constitutes cyberbullying and what actions will be taken if there is a breach of such a policy. Employers should be aware that cyberbullying falls within the term “harassment” and Section 10 of the Non-fatal Offences Against the Person Act 1997 may apply in such cases. …Recommendation 8
The Committee recommends that more emphasis be placed on educating parents, teachers and children on how to safely use social media. …
The following day, a Canadian report on Cyberbullying and the Non-consensual Distribution of Intimate Images, completed last month, was published. It recommended that Canadian law be amended to modernize certain existing offences to deal with harassment through electronic media, as well as the investigative powers for law enforcement, to ensure that all acts of cyberbullying carried out through the use of new technologies can be effectively investigated and prosecuted. It also concluded that there is gap in the criminal law on the issue of the non-consensual distribution of intimate images, and therefore recommended a new criminal offence addressing the issue. Section 5 of the Irish report also looked at the currently applicable legislative provisions; but, in the event, the Committee did not make any recommendations relating to reform of the criminal law.
Doubtless, the various speeches, articles, recommendations and reports mentioned here reflect many good intentions, but as I was regularly reminded growing up, the road to hell is paved with them. Many of these developments discussed in this post seem to me to be driven by a fear of the unknown – though the internet is getting less unknown, and the cyberbullying recommendations are getting more nuanced, even if the filtering suggestions are not. I have argued several times on this blog (eg: 1, 2, 3, 4, 5 & 6) that we must be careful not to legislate simply because we are offended, and we must be vigilant against arguments from offence – or worse, arguments from ignorance, fear or populism – being dressed up in more acceptable garb, such as Cameron’s appeal to child protection. I entirely agree with Balbirnie that we must not leave children unsupported and open to stumbling across pornographic material online. But knee-jerk legislation is not the way to do it. ISPs are already doing a lot (eg: the ISPAI Hotline; Eircom; UPC; Vodafone; Webwise; etc), though no doubt they could be doing more. Moreover, many of the non-legislative recommendations in the cyberbullying reports could be easily adapted to protect children from pornography as well. So, for example, parents could be more vigilant of what their children do online, as by taking advantage of their ISPs’ net monitoring services, or implementing parental controls and installing filter software such as Net Nanny on their children’s computers. The government could work with ISPs to ensure that they provide robust online safety services to which parents can opt-in. And the government and concerned agencies could also be doing more to educate children, parents and teachers about the social evils of pornography and keeping children safe online.
Let us not, through good intentions, over-react, over-legislate, and over-reach. I think, in his final position (so far) Pat Rabbitte has got the balance about right:
It is entirely understandable that parents and children’s rights bodies are concerned … However, the perennial question is as to the appropriate response by the State, and I remain to be convinced that blanket censorship or a ‘default on’ blocker is the correct or workable response. …
That is not to say that there is nothing that can be done … the most important task is to help educate children, young people and parents as to the risks that can be found online; to support parents and teachers in explaining these issues to children; and to identify the optimal technical solution to protect children.
Update (1): In the Irish Times, Jennifer O’Connell (@jenoconnell) argues: Don’t ban the internet. Educate your kids:
… research by the British NSPCC found that one in five children has been a victim of cyberbullying; one in 10 is taunted online daily.
As a parent, your first instinct is to lock up all your laptops, smartphones, tablets and desktops, and throw away the key. But I don’t believe that is the answer. …
Social media is here to stay, and if you are a parent you have two choices. You can ban the internet (good luck with that) or you can educate yourself, and do your best to educate your children, so that they know how to cope with abuse if it happens to them; and so they don’t grow up believing that sending threats of sexual violence out into cyberspace is an acceptable way to spend a Saturday evening.
And, in the Irish Independent (as well as in the Daily Telegraph), child psychotherapist Julie Lynn Evans provides some advice for parents on how to guide teens through the dangerous online world (although much of her advice is sensible, I’m nevertheless bemused by the fact that I can’t find a website for her, and I’m perturbed that the headline is sensationalistically implying that the entire online world is dangerous).
Update (2): On the BBC Webwise site, Tom Ilube (@tomilube) provides ten online safety tips, including:
3. Check your settings
Use the privacy and security settings on social media sites so that only friends and family can see your pages. …5. Guard personal information
Don’t post any personal information – your address, email address or mobile number – publicly online. …6. Photos and videos
… Remember, once you’ve put a picture of yourself online, other people may be able to see it and download it – it may not just be yours anymore. …
The Chief Justice, the Council of State, and Article 26 References to the Supreme Court
Article 31.1 of the Constitution provides that there “shall be a Council of State to aid and counsel the President on all matters on which the President may consult the said Council …”. The image, left, is a detail from the ceiling in the Council of State Room in Áras an Uachtaráin, the President’s official residence. One matter on which the President must consult the Council of State is provided by Article 26.1.1:
The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.
On foot of this power, President Higgins convened a meeting of the Council of State to consider whether to refer the Protection of Life During Pregnancy Bill 2013 to the Supreme Court under Article 26; and that meeting is due to begin right about now (see: Irish Examiner here, here, and here | Irish Independent here and here | Irish Times here, here, and here | RTÉ | TheJournal.ie here and here). Update: Writing on ConstitutionProject.ie, Laura Cahillane of UCC provides an excellent overview of the issues which arise on this reference, including – the question of conflict of interest addressed in this post, and an earlier one, on this blog; immunity from future constitutional challenge of Bills approved by the Supreme Court; the propriety of the single-judgment rule; and the amount of time provided by Article 26 for the Supreme Court’s consideration.
This summoning of the Council of State is an unsurprising – even predictable – development; and those who sought to manufacture a controversy out of the reference were misguided (to say the least) as to the President’s constitutional rights, powers and discretions. As to the outcome of the meeting, whilst I think that the chances of a reference are 50/50, I would not be surprised if the President does ultimately decide to refer the Bill. After all, the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995 was referred to the Supreme Court under Article 26. The Supreme Court upheld the Bill (see [1995] 1 IR 1, [1995] IESC 9 (12 May 1995)) and the Bill was duly enacted into law.
There has been much analysis of whether the President should refer the Bill, and if he does, what the Supreme Court might make of it; doubtless, after today’s meeting, there will be much further analysis and commentary. I will leave those issues to others; but, now that the meeting has started, I would like here to raise two small procedural points. The first relates to a possible conflict of interest in the membership of the Council of State; the second relates to the standard on foot of which the President will consider whether to refer the Bill or not.
Some reflections on @RuadhanIT’s excellent @IrishTimes series on the Irish Supreme Court
In Brown v Allen 344 US 443, 540 (1953), Robert H Jackson, Chief Prosecutor at Nuremburg and Associate Justice of the Supreme Court of the United States said of that Court:
We are not final because we are infallible, but we are infallible only because we are final.
Supreme Courts’ quality of finality, on matters of the gravest import, fascinates observers; and, giving us a chance to go behind that finality closer to home, Ruadhán Mac Cormaic (@RuadhanIT) has an excellent series of articles on the Irish Supreme Court in the Irish Times. Here (with some added links and a few comments) is a flavour of his coverage over the last few days.
Inside Ireland’s Supreme Court: “… Nearly all judges resist labels such as liberal or conservative, pro-State or pro-plaintiff and dismiss attempts to extrapolate from their background a predisposition to decide a case a certain way. …”. Nevertheless, it is a persistent trope amongst watchers of the US Supreme Court (and of the UK courts, though perhaps less so), and it is likely to become so for the Irish Supreme Court as well, if the planned Court of Appeal allows the Supreme Court to become more of a constitutional court in the mo(u)ld of its US counterpart.
University strategic planning – but where are the tactics?
I’ve used the above image before, but it’s too good not to use again. University strategic planning is required by section 34 of the Universities Act, 1997 (also here). At best, it is a necessary evil; at worst, it borders on the absurd.
Strategy is all about long-term planning; tactics are all about the individual steps to get there. Most university strategic plans tend to be long on strategy but short on tactics: they are usually good on long-term ambition, but weak on short- and medium- term steps to achieve that ambition. A good plan would outline the detailed tactics necessary to achieve the strategy – and if the tactics can’t be planned, that should demonstrate that the strategy is unsound.
Sometimes, the best strategy is “steady as she goes”, but the statutory requirement for strategic planning carries with it an unexamined impetus for change for its own sake; and, whilst both strategy and tactics carry their own risks, strategic planning for the sake of strategic planning carries the risk of too much change for no reason other than the impetus for change supposedly demanded by the corporatist strategic-planning cycle.
The educationandstuff blog today captures (for DCU) what I think about the process:
A Strategy Blitz
… Most strategic plans make hard reading. They are filled with buzzwords like “foster”, “leverage”, “transformational”, “synergy”, “interdisciplinary” etc. Academics are ‘roped’ into writing these things by virtue of having climbed up the academic ladder and I suspect that they hate writing them. I would.… I suppose the best thing about the strategy blitz is that most academics just ignore it and find a way to do what they like – and what they’re good at.
40 winks that converted €62.40 into €222,222,222.22; or mistaken payments and the law of restitution, again – updated
The following story caught my eye in the news today:
Cashier asleep with finger on keyboard launched a €222,222,222 transaction
… a German bank employee … had intended to transfer €62.40 from a retired employee’s account but “momentarily fell asleep” and ended up transferring €222,222,222.22 … which was only spotted and rectified by bank staff hours later.
Sadly for the recipients, the bank was perfectly entitled to rectify the error: as I have said on previous occasions on this blog, the recipients of the €222m would have had to pay the money back. See A bank error in your favour is not a gift from God; Santa, Scrooge, and overactive ATMs; Bank errors are not a licence to gamble.
The terms and conditions of the contracts between banks customers usually allow banks to reverse such erroneous transfers. Even if the contract doesn’t apply, or if the transfer cannot be electronically reversed, there are likely to be non-contractual claims to restitution on the grounds that the customers were unjustly enriched by the mistaken payments. Worse, if the recipients decide that the money would be much better off resting in their other accounts, this would constitute theft. There is no electronic philosopher’s stone that can transmute €62.40 into €222,222,222.22 and leave the recipient secure in receiving the latter amount – unfortunately.
Update (24 July 2013): In another astounding computer error, PayPal mistakenly credited Chris Reynolds, 56, of Pennsylvania, with $92 quadrillion (£60 quadrillion). But PayPal quickly spotted the mistaken credit of $92,233,720,368,547,800, and reversed it by the time Reynolds logged back into his account.
Felonius Monk and the Right to Copy
Today is the feast day of St Columba (in Irish, variously: Colamcille, Columcille, Colm Cille etc).
To mark the occasion, I present a(n in)famous episode (pdfs here and here; image here, purchase here) in his life, retold – under the above title – by my Trinity colleague Dr Eoin O’Neill, who says that his tale below is most effectively delivered in the accents of Chicago of the 1930s, as interpreted by Hollywood:
The Monks had a corner on the market
In the early days of the monastic age in Ireland, (it only lasted for ~1,000 years),
the faithful were attracted to regional monasteries by various marketing techniques such as the sight of rare and sacred objects eg finely worked gold vessels and rare books.
Rivalry between monasteries was rife, and when the renowned monk Colamcille (a scion of the house of Uí Néill, the ruling dynasty) went to visit the abbot Finian at his monastery (possibly Moville or Clonard), he noted that Finian had a fine book in the scriptorium, (a copy of the Psalms: the recording media used normally was the skin of a calf). Finian had diligently procured this copy abroad through his network, no small feat in the early part of the sixth century, given the firewalls that were then in vogue.
No Open Source code policy
The noble monk sought from Finian a Licence to copy this work so he could use it in his own monastery, but this Licence to copy was refused. He was however permitted to read the sacred manuscript in the scriptorium, and the local monks marvelled at how he diligently pursued his theological readings until late into the night, when less pious monks had gone to bed.
Quis custodiet ipsos custodes?
Imagine the consternation of the hosts when it was discovered that their guest had indeed not only studied diligently in the monastery scriptorium at night; he had downloaded the text with his quill pen onto some spare calf-hides, and indeed had secretly transmitted the copy to the safety of his own monastery. Demands from Finian for the return of the copy were ignored by Colamcille, and eventually Finian had to seek redress.
Hi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.
