Blasphemous libel

United Nations General Comment 34

Blasphemy laws are incompatible with the International Covenant on Civil and Political Rights

In July, 2011, the UN Human Rights Committee released a 52-paragraph statement, General Comment 34 on the International Covenant on Civil and Political Rights (ICCPR) 1976, concerning freedoms of opinion and expression. Paragraph 48 states:

Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favor of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.

Defence

In both Canada and New Zealand it is not blasphemous libel to express in good faith any opinion on a religious subject.

Australia

It remains an offence in some Australian states and territories, although the Commonwealth and some states and territories have abolished it within their jurisdiction. For details, see Blasphemy law in Australia.

Summary of offence and defense

In Canada, blasphemous libel is an offence under the Criminal Code.

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(1) Every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years

(2) It is a question of fact whether or not any matter that is published is a blasphemous libel.

(3) No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject.

It is an indictable offence and is punishable with imprisonment for a term not exceeding two years. The offence of blasphemous libel, like all other laws of Canada, is subject to section 2 of the Canadian Charter of Rights and Freedoms, which protects freedom of expression. To date, no court has been asked to consider whether blasphemous libel is consistent with the Charter's guarantee of freedom of expression, which came into force in 1982.

Last prosecution: R v Rahard (1935)

The last prosecution of a charge of blasphemous libel was in 1935, in R v Rahard, in Quebec. In that case, the court adopted an argument that prosecutor E. J. Murphy had proffered in the case of R v Sperry (unreported) in 1926. Mr. Murphy put the issue this way:

The question is, is the language used calculated and intended to insult the feelings of and the deepest religious convictions of the great majority of the persons amongst whom we live? If so, they are not to be tolerated any more than any other nuisance is tolerated. We must not do things that are outrages to the general feeling of propriety among the persons amongst whom we live.

In Rahard, the Court found the Rev. Victor Rahard of the Anglican Church of Canada guilty of blasphemous libel for his aspersions upon the Roman Catholic Church.

The words "calculated and intended to insult the feelings and the deepest religious convictions of the great majority of the persons amongst whom we live", which the court used, were adopted from the summing up of Lord Coleridge, LCJ. in R v Bradlaugh.

Republic of Ireland

In the Republic of Ireland, §13 of the Defamation Act, 1961 prescribed penalties for blasphemous libel, but did not define the offence. The only attempted prosecution since the 1937 Constitution was in 1999; the Supreme Court ruled that the Constitution had extinguished the common law offence of blasphemous libel, since when "it is impossible to say of what the offence of blasphemy consists". The Defamation Act 2009 defines a new offence of "Publication or utterance of blasphemous matter", which was held to be required by Article 40.6.1.i. of the Constitution, which states "The publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law".

New Zealand

In New Zealand it is an offence under section 123 the Crimes Act 1961 to publish any blasphemous libel. The maximum punishment is one year imprisonment. No one can be prosecuted without the consent of the Attorney General.

Defence

Section 123(3) of the Crimes Act 1961 provides:

It is not an offence against this section to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever on any religious subject.

England and Wales

In 1985, the Law Commission (England and Wales) published a report, Criminal Law: Offences against Religious and Public Worship, that concluded that the common law offences of blasphemy and blasphemous libel should be abolished without replacement. In England and Wales, the common law offence of blasphemous libel was abolished on 8 July 2008 by the Criminal Justice and Immigration Act 2008. The Racial and Religious Hatred Act 2006 created an offence of inciting hatred against a person on the grounds of their religion.

Northern Ireland

Blasphemous libel is an offence under the common law of Northern Ireland. Section 7 of the Libel Act 1843 creates a defence.

See also the Criminal Libel Act 1819, the Libel Act 1792 and section 8 of the Law of Libel Amendment Act 1888.