The old rhyme goes that “sticks and stones may break my bones, but words will never hurt me”. But what if words incite those sticks and stones? What happens when free speech becomes hate speech? Although no fault was found in Christ, the crowd – urged on by the priests – shouted: “Crucify him, crucify him!” sparking the Crucifixion.
While the words of the rhyme suggest that one can shrug off any verbal abuse, the Constitution in Article 40.6.1 guarantees “the right of the citizens to express freely their convictions and opinions”, but sets boundaries of “public order and morality.”
It is probably easier to define attacks on public orderlike street riots, than attacks on public morality. It is accepted that public morality can evolve over time, as shown by the marriage equality and abortion referendums.
The Constitution also states that the publication or utterance of seditious or indecent matter is an offence which shall be punishable in accordance with the law. For example, before legislation in 1979 to permit the promotion and sale of contraceptives, the Censorship Act 1929 made it illegal to advocate the use of contraceptives.
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Section 31 of the Broadcasting Act, 1960, permitted the relevant minister to order the RTÉ Authority not to broadcast certain material. In 1974, when then minister for posts and telegraphs Conor Cruise O’Brien complained to RTÉ about broadcast material, the national broadcaster responded that it wished to ensure balance in its coverage.
In 1976, O’Brien banned spokesmen/women of certain organisations from the airwaves and any broadcast likely to incite crime. This included IRA groupings, any other organisation also classified as unlawful in Northern Ireland and Provisional Sinn Féin. The section 31 ban was lifted in 1994.
Books were also censored and banned, including Edna O’Brien’s Country Girls and Brendan Behan’s Borstal Boy.
Film censorship was strong in Ireland for many years, resulting in some banned films. The Film Censorship Board now classifies films according to suitability by age. For example, 12A and 15A require that a child under 12 or 15 be accompanied by an adult.
The Review Group on the Constitution (1996) recommended that “the Oireachtas should be empowered to legislate in a manner which struck a fair balance between the right of free speech and access to information on the one hand and pressing public interests on the other, such as the prevention of the portrayal of women in a degrading manner and the protection of children”.
In April 2015, the 31st amendment of the Constitution was passed. That resulted in the insertion of article 42A that (1) provides: “The State recognises and affirms the natural, imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”
Protecting children from toxic material on social platforms poses a challenge to politicians. One of the specific objectives of Comisiún na Meán, which has responsibility for standards in television, radio and social media, is the protection of children.
However, barring access to children aged under 16 to social media may not succeed if the young person can access the account of a parent or older friend. Another challenge, dependent on the age verification process, is ensuring that any ban cannot be circumvented by under-16s simply stating their age as over 16.
The subject of free speech and its limits has an international aspect. The United States government wants the Irish Government to urge the European Union to allow each member state to address hate speech as each “sees fit” and to improve protection for free speech. This is at least partly because of the effect of the Republic’s media regulator on US social media companies operating in the State. Washington claims that the cost to American tech companies of complying with the EU’s Digital Services Act was €14.8 billion in lost online advertising and €18.1 billion in lost platform and other revenues within the union during 2024.
Australia has led the way in forcing platforms like TikTok and Instagram to block users under 16. Many European countries are considering following suit. The French national assembly passed a Bill last month banning social media for under-15s.
Spanish prime minister Pedro Sánchez said earlier this month that his government’s intended plan to ban social media for under-16s was to protect children from the “digital wild west”.
Irrespective of any ban, access to devices is critical.
How would Irish parents feel about a licensing law for under-16s for phones and devices that access social platforms, whereby a parent or guardian would identify themselves and take responsibility for their child’s online activity?
- Dr Finola Kennedy was a member of the Review Group on the Constitution (1996)
