In a speech he gave in 1949, Lord Denning declared that the English law against blasphemy was effectively extinct:
In one sense, Denning is still right. Blasphemy, in its narrow definition under English (and Australian) law, only applies to the Anglican Church – an obsolescent concept in light of the social reality of multicultural, contemporary Western life. According to Nash,
However, recent events have renewed debate about the possible validity – indeed, necessity – of blasphemy laws. The need for blasphemy laws may not have been quite as dead as Denning suggested, but rather laying dormant to once again be reawakened by a suitable social and geopolitical climate.
The catalyst for this debate is, of course, the controversy surrounding the Jyllands-Posten Mohammad Cartoons. Recent years, however, have seen other events and trends that have provoked explorations of the validity of blasphemy laws in the contemporary world.
The primary purpose of this comparative study will be to examine how the law should treat blasphemy. Are laws against blasphemy is an anachronism that should be abolished? Conversely, in the light of the Jyllands-Posten controversy, should they be widened to protect non-Christian beliefs and enforced more vigorously?
In order to do this, it will be necessary to firstly examine the Jyllands-Posten Mohammad Cartoons controversy in more detail. The study will then consider blasphemy laws in a number of international jurisdictions, and then compare those with Australia’s blasphemy laws at federal and state levels. Throughout these sections, there will be an emphasis on specific case studies - the ways in which blasphemy has met with actual legal treatment. Once this groundwork is laid, the study will then be able to examine the arguments over blasphemy law in Australia: should it be abolished, revised or left alone?
THE JYLLANDS-POSTEN MOHAMMAD CARTOONS CONTROVERSY: A BRIEF OVERVIEW
The controversy began in mid-September, 2005, with the publication of an article in the Danish newspaper Politiken regarding the author who was writing a children’s book on the life of the Prophet Mohammad. The writer had had difficulty finding an illustrator for the book due to a widespread fear of fundamentalist Moslem retaliation, due to a prohibition of depict the face of Mohammed in some forms of Islam.
The article generated debate amongst the Danish media about freedom of speech and its subordination to terrorist threats. In response, the Jyllands-Posten, a Danish newspaper with a circulation of about 150,000, commissioned work from Danish cartoonists that depicted Mohammed. There were twelve submissions, which were published on September 30, accompanied by an editorial which read, in part:
One commentator described the cartoons as
The publication of the cartoons intensified the debate and provoked protests by Danish Moslem groups, some of whom felt that the cartoons were another example of what they felt was an anti-Moslem bias amongst the Danish media and wider society. A request by several ambassadors from Moslem countries to meet with the Danish Prime Minister was rejected.
At the end of October, a complaint was filed with the Danish police by Moslem groups against the Jyllands-Posten, claiming that the newspaper had breached section 140 of the Danish Criminal code, the so-called ‘Blasphemy Law’, which reads:
The Regional Public Prosecutor investigating the
charge found that no criminal offence had been committed. On appeal, the Danish Director
of Public Prosecutors upheld the decision.
Interestingly, however, most of the largest newspapers in the US, UK and Australia declined to reprint the cartoons, partially in light of the increasingly violent demonstrations that had been spawned across Afghanistan, Pakistan, Libya, Somalia and Nigeria. On February 20, it was estimated that 139 people have died and 823 had been injured in these riots. Furthermore, there had been widespread property damage, including the destruction of Danish embassies in the Middle East, along with economic boycotts of Danish products which resulted in an estimated loss of $1.6 billion dollars in export revenues.
The results seem absurdly disproportionate to the cause. Nonetheless, if seemingly insignificant things like the Jyllands-Posten cartoons can have such serious global ramifications, for practical purposes, should there be restrictions on the publication and dissemination of such matter? If so, are blasphemy laws the best way to achieve this?
BLASPHEMY LAWS AROUND THE WORLD
In some places, the cartoons were banned. In Malaysia, the Sarawak Tribune, who published them, was shut down, and the government declared that it was illegal to ‘publish, import, produce, manufacture, circulate, distribute or possess the caricatures’ as they would be likely to ‘jeopardise public harmony and safety, which may cause chaos, or endanger public peace or national interest.’
Ultimately, however, in the majority of places in which they were published, the cartoons were legal, and did not breach any blasphemy laws.
Rather than provide a comprehensive summary of blasphemy laws in international jurisdictions, this section will instead focus on four different countries: the United States, Germany, Pakistan and the United Kingdom. Each of these countries has a very different approach to criminalising blasphemy, providing, hopefully, a richer comparison when considering Australian law.
1) The United States
‘As is widely know,’ Epstein writes,
In his article, Epstein goes on to illustrate the oppressive religious laws that existed that existed in the US during its infancy. This included, in many US jurisdictions, the death penalty for blasphemy.
Despite being an extraordinarily religious country, the US has perhaps the fewest legal restrictions on blasphemy in the world. The decision in Joseph Burstyn, Inc v. Wilson effectively brought an end to US blasphemy laws, establishing that they were unconstitutional under the guarantee of freedom of speech under the First Amendment of the US Constitution. The case concerned a claim that Roberto Rossellini’s film The Miracle was ‘sacrilegious’ under New York legislation. Justice Clarke wrote in his decision:
This decision encapsulates one of the strongest arguments against blasphemy laws – how, exactly, should religion be defined? This issue be examined in greater detail further on.
Chapter 11 of the Strafgesetzbuch, the German Criminal Code, deals with ‘Crimes Which Relate to Religion And Philosophy of Life’. Section 166(1), known as the Gottesl�sterungsklausel, deals specifically with blasphemy:
In February 2006, a German political activist by the name of Manfred van H. received a one year suspended jail sentence and 300 hours of community service for breaching section 166. He had had rolls of toilet paper with the words Koran, the Holy Qur'an’ printed on them and distributed to mosques and media outlets.
Although the trial took place during the midst of the Jyllands-Posten cartoon controversy, the toilet paper had actually been printed the previous July, following the London Bombings. He claimed his motives were ‘to find out who is on whose side in today's Germany’ and that he wanted to ‘raise a monument to the victims of Islamist terrorism and... raise donations with the paper.’ The Judge acknowledged that the sentence was harsher in light of the cartoon controversy and the man’s previous criminal convictions.
What is especially notable about the case is that the law, despite having an open definition of religion, had been almost exclusively used in anti-Christian blasphemy cases in the past.
Pakistan’s anti-blasphemy laws are amongst the most stringent in the world. Section 295 C of the Pakistan Penal Code states:
In October 2000, a Pakistani teacher named Mohammed Younas Sheikh made some comments during a class that prior to the prophet Mohammed’s receiving the Koran as a revelation, the prophet was not a Muslim: a logical statement, considering that Islam did not exist before the his revelation. Sheikh was charged with blasphemy under 295 C and sentenced to death.
In the last 10 years, reportedly dozens of people had been executed for breaching the blasphemy laws, 560 people have been charged and 30 are still awaiting sentencing.
4) United Kingdom
Blasphemy is technically illegal in the UK as a common law offence, and based primarily on nineteenth century decisions. There have been only four reported judgements on blasphemy cases in the twentieth century, and the last prosecution occurred in 1979 in the case of Whitehouse v Lemon. The decision in that case was a surprise to many who, like Lord Denning thirty years earlier, thought that blasphemy was dead.
The case was a private prosecution. It concerned the publication of a poem by the Gay News magazine about a homosexual centurion's love for Christ at the Crucifixion. In the appeal, Lord Scarman decision outlined what is likely still the UK’s legal position towards blasphemy:
The publisher of the Gay News was fined 500 pounds and given a nine-month suspended jail sentence. The magazine itself was fined 1,000 pounds and had to pay 10,000 in court costs.
A more recent and famous UK blasphemy case was R v Chief Metropolitan Stipendiary Magistrate, Ex Parte Choudhury. As with the Gay News case, this was an attempt at a private prosecution, this time against the author Salman Rushdie and publishers of his novel The Satanic Verses on the grounds that it constituted blasphemous libel against Islam. In many ways, the facts surrounding the Rushdie case are comparable to the Jyllands-Posten cartoon controversy insofar that an enormous Moslem backlash was generated - a fatwah, or death sentence, was placed on Rushdie, both the book’s Italian and Japanese translators were stabbed (the latter murdered), and international riots lead to dozens of deaths.
Ultimately in the case, it was held that blasphemy laws only applied to blasphemy against the Anglican Church, the legal grounds for which were found in an 1837 case: ‘[a] person may, without being liable for prosecution for it, attack Judaism, or Mahomedanism, or even any sect of the Christian Religion (save the established religion of the country).’
BLASPHEMY LAW IN AUSTRALIA
Australia initially inherited British legislation
and case-law, which, at the time of colonisation, applied exclusively to blasphemy against
the Anglican Church. Significantly, unlike Britain, Australia has never had an
‘official’, legally-entrenched religion. Section 116 of the Constitution
prohibits the Commonwealth from making ‘any law for establishing any religion, or for
imposing any religious observance, or for prohibiting the free exercise of any
At the federal level, blasphemy is not an offence under the Commonwealth Crimes Act 1914, nor is it an offence under the Common Law. There used to be prohibitions against the importation and broadcast of blasphemous matter under various federal customs, postal and broadcasting acts and regulations, but these have all been phased out in recent years. Nowadays, the only federal legal restriction on blasphemy seems to be is an esoteric provision in Reg 21 s 2(d) of the Shipping Registration Regulations 1981 that prescribes the use of names for registered ships that are ‘blasphemous or likely to be offensive to members of the public.’
At the state and territory level, blasphemy is an offence in NSW under common law and legislation. Quoting, in part, from Section 574 of the Crimes Act 1900 (NSW), Mason describes the offence of blasphemous libel under NSW law as being
The single Australian prosecution for blasphemous libel took place in NSW in 1871 in the case of R v William Lorando Jones. Briefly, the facts of the case were that Jones, an elderly man, gave a public talk in which he described the Old Testament as being ‘immoral’ and unsuitable for a female readership. He was fined �100 and sentenced to two years jail. Public outcry at the severity of the sentence led to his release four weeks later. Furthermore,
Not only was there talk of abolishing the offence
of blasphemy 135 years ago, but the absence of any subsequent prosecutions indicate that
the offence may have fallen into a state of desuetude, whereby it has ‘lapse[d]
through prolonged disuse.’
Tasmania has similar provisions against blasphemy to NSW under s 119 of its Criminal Code. The criminal codes of Queensland, Western Australia and the Northern Territory all neglect to mention blasphemy. Blasphemy does not exist as a common law offence in the former two jurisdictions, although it is argued that it might in the latter.
Blasphemy is not mentioned under Victorian or
South Australian legislation, though the offence still exists at common law in both
states. The last attempted prosecution for blasphemy by the crown occurred in Victoria in
1919, after the journalist Robert Ross published a satirical piece in which Bolsheviks
ransacked heaven. The charge of blasphemous libel was dropped, but Ross was found guilty
for sending blasphemous materials through the mail and sentenced to six months of hard
labour. As in the Jones case, there was public protest at the perceived severity of
the sentence, and a petition for the abolishment of blasphemy laws was presented to the
In one of Australia’s most recent blasphemy cases raises several issues directly relevant to the question at hand: should Australia’s blasphemy laws be strengthened or weakened?
In Pell v Council of Trustees of the National Gallery of Victoria, Melbourne’s Catholic Archbishop George Pell tried to gain an injunction against the opening of an exhibition at the National Gallery of Victoria that featured a photograph of a crucifix submerged in urine, on the grounds that it was blasphemous, contravening 17(1)(b) of the Summary Offences Act 1966 (Vic):
The injunction was refused on the grounds that civil remedies like injunctions cannot be used to restrain allegedly criminal acts. It was held that ‘indecent or obscene’ referred to lewdness, rather than blasphemy and that there was no evidence that the exhibition would lead to a breach of the peace or widespread social unrest.
Justice Harper also questioned whether blasphemy laws continued to exist in Victoria, in light of their seeming incompatibility with s 116 of the Constitution and inappropriateness to a multi-religious society.
It is this point on which most arguments concerning the reform or abolishment of blasphemy laws hinge. If blasphemy laws are to exist, should they not protect all religions, not in the least Islam, the world’s fastest growing religion?
The question, of course, is where to draw the line. What should constitute a religion? As Justice Clarke wrote in the previously-mentioned US case of Joseph Burstyn, Inc v. Wilson
In its 1994 Report on Blasphemy, the NSW Law Reform Commission outlined four possible approaches to the law of blasphemy in NSW. By extension, the same four options could be applied to Australia as a whole. They are as follows: 1) Retaining the law as it currently stands, 2) Codifying the law, 3) Replacing the law or 4) Abolishing it entirely.
In each case, the question of widening blasphemy offences to protect non-Christian beliefs as well as Christian beliefs was raised. Those in support of retaining the law in its current form claimed that statistically, historically and culturally, NSW was fundamentally a Christian place. Those in support for codifying or replacing the law suggested that extension to other religions could be implemented by defining a religion as having a certain minimum number of adherents, on a case-by-case basis or by utilising the High Court’s definition of religion in the case of The Church of the New Faith v Commissioner of Pay-Roll Tax. In following this option, an approach like that of Germany in s Section 166(1) of its Criminal Code could presumably be taken, leaving the definition of religion open.
However, the NSWLRC found that coming to a satisfactory, all-encompassing definition of religion was ‘impossible’ and that ‘this alone is sufficient reason to abandon the offence of blasphemy.’
Many argue that to leave the definition of religion so open would be an unreasonable impingement on the freedom of speech. It was partly for this reason that the Jyllands-Posten cartoons were published in the first place, and partly the reason why so many countries reprinted them:
Freedom of speech is rarely an absolute right, and in most western countries is subject to a variety of laws, from intellectual property to defamation. However, in none of the examples or cases examined in this study have the rights of any individuals to believe in and practice a religion been denied. It is difficult to see how an appreciable loss could be sustained by an individual against whose religion is blasphemed. Hitchens writes, in reference to the Jyllands-Posten controversy,
His comments are echoed by those of Rose, the original publisher of the cartoons in the Jyllands-Posten:
Fundamentally, laws against blasphemy seem inimical to contemporary Western thought, culture and society as reflected by the Universal Declaration of Human Rights, which enshrines not only the freedom to practice a religion, in Article 18, but also the freedom to mock one in Article 19.
On this note, in February, the Jyllands-Posten published a Manifesto entitled ‘Together facing the new totalitarianism’ signed by, among others, Salman Rushdie, which stated:
Nonetheless, freedom of speech arguments aside, the fact still remains that the cartoons had serious ramifications from which Australia could potentially not be immune. The NSWLRC Report examined the use of anti-vilification and anti-discrimination as a means of protecting against publications that could potentially lead to the disturbance of public order. As it stands, the cartoons would not have breached such legislation in Australia, according to Szoke:
Should there be, then, some kind legislative response to the Jyllands-Posten cartoons? If there is, it is extremely unclear what form such legislation would take without posing serious threats to the standard of free of speech on which a democracy like Australia’s rests.
If there is one definitive conclusion to be drawn from this study it is that, as the NSWLRC recommended in 1994, the common law of blasphemy should be abolished.
The fact that a handful of illustrations in
‘a small Scandinavian newspaper of which nobody had ever heard before’ had
such massive global consequences seems like more of a fluke of timing context that a
logical result. Had the controversy been contained within Denmark – as local
controversies like these tend to be – the rioting, deaths and injuries would have
been likely avoided.
In the absence of any other clear solutions, it seems that the sanest, safest alternative is to promote open discussion, respect and prudence rather than attempting to implement a legislative overhaul that would threaten freedom of speech. As it stands, there are sufficient legislative safeguards in Australia against the kind of racial and religious vilification that has truly damaging effects, and the current, obsolete blasphemy laws that still exist are harmful at best.
As mentioned, the cartoons, although clearly a catalyst for the riots, were not the fundamental cause. What is clear is that many of the riots didn’t arise spontaneously amongst concerned Moslem citizens, but in many cases were, rather, whipped up by influential fundamentalist Moslem leaders for their own ends.
Even so, there is clearly a tremendous anger which such leaders were able to tap into, and this is ultimately the cause of the controversy:
It is likely that, these kinds of actions are symptomatic of an outrage at a perceived injustice and inequality felt by many Moslems living both inside and outside of Europe at the Western world. Addressing these issues will ultimately help to find solutions for these crucial global issues far more than blasphemy laws ever could.