NOTES OF CASES
| Date | 01 May 1983 |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02522.x |
| Published date | 01 May 1983 |
NOTES
OF
CASES
BLASPHEMY
AND
HUMAN
RIGHTS
IT
was difficult to predict the outcome of Denis Lemon’s attempt to
vindicate, before the Commission
of
Human Rights,’ his right to
publish the poem
“
The Love that Dares to Speak its Name.” Dicta
from the
Hundy:ide
case confirm that the Convention’s guarantee
of freedom of expression extends to publications that
“
offend, shock,
or disturb
. .
.
any sector
of
the population
.
.
.”
On the other hand,
there are legitimate restrictions on free expression under the Convention
which might be thLought appli~able.~ Lemon’s application was declared
manifestly ill-founded. The Commission’s reasons highlight, but do not
adequately resolve, problems in the interpretation of the Convention
which could well arise again when publications offensive to some are
in question.
It is important
to
make clear at the outset that there was no claim
of
a violation of rights under the Convention because the publication had
been suppressed
by
a law enforcing outmoded and unrepresentative
sensibilities. Instead, it was argued that however accurately Mrs.
Whitehouse reflected contemporary English Christian feeling, and
whatever the degree of respect properly accorded to it, the law was too
uncertain to provide an adequate guide to the citizen, and, as it finally
emerged from the House of Lords decision, was more restrictive than
necessary to satisfy the demands
of
a democracy. It was also claimed
that whatever the merits of preventing certain forms of offensive
expression, there was no clear right in the Convention not to be
offended as such.‘*
To
import this right would be unwarranted judicial
legislation.
Submissions were made under Articles guaranteeing freedom of
religion,6 discrimination on grounds
of
opinion and the imposition
of
retrospective criminal laws. However, the core of Lemon’s complaint
involved Article
10,
guaranteeing freedom of expression, to which this
note will be confined.
It was argued that those constituents
of
the law of blasphemy
relevant to Lemon’s conviction restricted his right to free expression
and could not be justified under Article
10,
(2).
In particular, the law
was said not to ble sufficiently certain to enable one
to
conclude that
Lemon’s action had been
“
prescribed by law,” nor was it justifiable as
Lemon
v.
U.K.
Decision
of
the Commission, May 7,1982 now reported at
5
E.H.R.R.
2
Handyside
v.
U.K.,
1
E.H.R.R.
731, para. 49.
8
Art.
10
(2) where relevant provides:
“
(The right
to
freedom
of
expression guaranteed
in Article 10
(1))
may be subject to such
.
. .
restrictions or penalties as are prescribed by
law and are necessary in a democratic society
.
. .
for
the prevention
of
disorder
or
crime,
for the protection of hizalth or morals,
for
the protection
.
.
.
of the rights
of
others.
.
.”
123.
C’
e.g. de
Becker
v.
Belgium.
Appln. 214156. Series
B,
paras. 227-264.
Art. 9. Art.
14.
7
Art.
7.
338
May
19831
NOTES
OF
CASES
339
a measure for the
“
protection of morals,” the
“
prevention of disorder,”
or
the
“
protection of the rights of others.” Finally, the law of blasphemy
was said to be more restrictive than was
“
necessary in
a
democratic
society.” The United Kingdom Government argued in reply that the
law
was legitimate precisely because it satisfied each of these five
requirements.
The Commission agreed that Lemon’s right to free expression had
been restricted, but found for the Government on three of the five
contentious points: the law was sufficiently certain, it did protect the
rights of others, and it was necessary in a democratic society. It thus
felt able to avoid the questions whether the protection of morality and
prevention of disorder were also adequately served by the law.
“
Protection of the rights of others
”
emerged as the central justifi-
cation for the decision by
a
process of elimination. The Commission
thought that since
“
the public authorities did not consider it necessary to institute
criminal proceedings
. . .
it cannot be said that the public interest
(prevention of disorder and protection of morals) was
so
pre-
ponderant that it provided the real basis for the interference with
the applicant’s right
to
freedom
of
expression. In the circumstances,
the justifying ground for the restriction must therefore primarily
be sought in the protection of the rights of the private prosecutor.”
What is the prosecutor’s right in question? In the Commission’s view
it is
‘‘.
.
.
the right of citizens not to be offended in their religious feelings
by publications.”
*
This raises several difficulties. First, the Commission appears to
think that
a
private prosecution, in the face of the D.P.P.3 decision not
to act, sets in motion criminal law which can be assessed according to
distinct and more limited criteria than it otherwise would be. It treats
the distinction between the protection of morals and prevention of
disorder, and the protection
of
the rights of others, as equivalent to
a
distinction between public and private interest. With private pros-
ecutions the law
will
not apparently be assessed according to the
Convention’s demand that restrictions on freedom of expression serve
the public interest: it
will
be sufficient to consider the interests of the
private prosecutor, and the need to show that their protection
is
necessary in
a
democratic society. This certainly confounds Lord
Diplock‘s view in
Gleaves
v.
Deakin,
that the private prosecutor’s
freedom from considering the public interest before proceeding was
precisely what brought the law of criminal libel into conflict with the
Conventi~n.~
The Commission’s conclusion seems wrongly focused
:
the central
question did not concern the justification for the
prosecution
of Lemon
but rather the justification for his
conviction.
As
the Commission itself
observed, the crime may not be of such public importance as to warrant
the authorities’ intervention. However, once a private prosecution was
*
Supra,
note
1,
para.
11.
[I9801
A.C.
477, 483-484.
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