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Senators want to criminalise offending people online – and they're dangerously misguided

Without the freedom to offend, freedom of expression does not exist.

IN THE United States, the famous first amendment to the constitution protects the right to free speech so unconditionally that a group of religious nutters are allowed to stand outside funerals with signs telling loved ones that God hates their deceased relative. Most sane people are disgusted by the actions of this group, but there is a reassuring certainty in their presence: they are censured, not censored. And they prove that brave people are free to say important things in that same country.

In Ireland we have no guaranteed protection of free speech. Indeed, our constitution has a specifically limiting clause where free speech is concerned. Anything deemed to undermine public morality, whatever that is judged to be by lawmakers on any given day, or that is blasphemous, seditious or indecent can be treated as an offence under law.

This actually leaves us in a deeply dicey position where our personal freedoms are concerned. Any government, for any reason, now or in the future unseen, can trample our rights to free speech into the ground.

The road to perdition can be paved with seemingly good intentions

That future government could be malicious in its intent – not that I’m looking at any recently armed insurrectionists in particular – or, as is more often the case, the road to perdition could be paved with seemingly good intentions.

Enter the Harmful and Malicious Electronic Communications Bill, 2015. The bill is one of a couple being mooted at the moment to make criminal the causing of offence online, carrying hefty fines, jail sentences and demands to withdraw a fairly vague spectrum of comments. As well as dealing with specific cases of driving someone to suicide, which we can all agree on, the bill outlines that in wider sense “an electronic communication shall be considered malicious where it intentionally or recklessly causes alarm, distress or harm to the other.”

Quite what is alarming, distressing or harmful of course depends on a level of subjectivity that is difficult, if not impossible, to tie down.

The bill got some bad press during the week for the usual reasons that backbench bills get noticed: silly antics. The sometimes hapless Senator Fidelma Healy Eames was speaking on the bill and got round to discussing how terrible it is that people are so reliant on their smartphones, often asking for “the wiffy code” when arriving at a restaurant.

Eames later claimed that she intentionally used the French pronunciation for WiFi, but whether she was doing some post rationalisation I’m not sure. In either event, she became the subject of some widespread public ridicule. Even Aer Lingus and 3 Mobile took to Twitter to riff about wiffy codes after the comments did the rounds.

We don’t need new laws – we need better enforcement of the existing ones

When someone says or does something faintly ridiculous in the public debating chambers of the Oireachtas, it is fair game to colour writers and commentators and the public at large. At least, it has been. Eames told us something of the nature of this bill when she emerged to say that the ridicule proved exactly why we need a bill to create “boundaries for behaviour on social media”.

What she means, of course, is that ridicule of any sort ought to be illegal. This Senator, who has in the past presumably been made to feel bad by online comment concerning her motor tax affairs and ticketless train journeys, would like a broad-brush mechanism to go running to the courts to tie up any future keyboard assailants.

There already exist laws, as Digital Rights Ireland pointed out recently, that deal with harming another person by, for example, harassing them or inciting hatred. We don’t need new laws there, we need better enforcement of the existing ones in the digital age of cyberbullying.

What we most certainly do not need is a broad brush law that makes it an offence to offend anyone. This is precisely the sort of chipping away at free speech that allows litigious rich people and incompetent government agencies to tie up the ordinary person, political activists and probing journalists in legal and financial knots that make the act of speaking freely impossible.

Without the freedom to offend, freedom of expression does not exist

I’ve long been of the belief that we should heartily embrace the offence caused by caustic free speech. Because the harsher the speech that is allowed, the harsher the truths that can be freely told. Without the freedom to offend, the freedom of expression does not truly exist.

This flawed bill should be shot down, but so too any that might follow in its footsteps ought to be strangled at conception by an unwavering commitment to free speech in our constitution. The current arrangement leaves far too much latitude for oppression, no matter how well-intentioned the originators of bills might feel.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Simple, clear, unambiguous. It gives you the Westboro Baptist Church but it also gives you The Pentagon Papers. It certainly doesn’t send you to prison for 12 months after tittering at a video of “the wiffy code” speech.

Aaron McKenna is a businessman on columnist for You can follow him on Twitter here.

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