Wednesday, 20 March 1929
Dáil Éireann Debate
In page 2, before line 29, Section 2, to insert the words “neither the expression `periodical publication' nor the word `book' shall include a journal, book, or other publication which is certified by the Board to be published bona fide for the information or instruction of members of the medical profession.”
This amendment is one which I promised Deputy Sir James Craig to insert in the Act in favour of the medical profession. It omits from the category of books or periodicals that are to be censored books or periodicals of a purely medical character.
In page 2, lines 29 and 31, to delete all words from and including the word “calculated” to and including the word “deprave” and substitute therefor the words “suggestive of, or inciting to sexual immorality or unnatural vice or likely in any other similar way to corrupt or deprave.”
This amendment arises from the fact that the number on the Board of Censors has been increased from five to nine. The amendment enables the Board to function, notwithstanding one or two, but not more than two, vacancies. I think that that expresses the views of the House during the earlier proceedings.
“(1) Whenever a complaint is duly made under this Act to the Minister to the effect that a book or a particular edition of a book is indecent or obscene or advocates the unnatural prevention of conception or the procurement of abortion or miscarriage or the use of any method, treatment or appliance for the purpose of such prevention or such procurement, the Minister may refer such complaint to the Board.
(2) The Board shall consider every complaint referred to them by the Minister under this section and for the purpose of such consideration shall examine the book or the particular edition of a book which is the subject of such complaint and on the completion of such consideration the Board shall make to the Minister their report on such complaint.
(4) When considering a complaint referred to them under this section the Board may communicate with the author, editor, or publisher of the book or the particular edition of a book which is the subject of such complaint and may take into account any representation made in relation to such book or edition by the author, editor, or publisher thereof.
(5) The Board may at any time make to the Minister a report in respect of any book or any particular edition of a book although no complaint in regard to such book or edition has been referred to them by the Minister, and in considering the making of a report under this sub-section in respect of a book or particular edition of a book the Board may have regard to the like matters and communicate with the like persons in relation to such book or edition as they are by this section authorised to have regard to or to communicate with when considering a complaint referred to them under this section.
 (6) Whenever the Board under this section makes a report, assented to and signed by at least seven members of the Board, stating that in the opinion of the Board the book or the particular edition of a book which is the subject of such report is in its general tendency indecent or obscene and should for that reason be prohibited or that in the opinion of the Board such book or edition advocates the unnatural prevention of conception or the procurement of abortion or miscarriage or the use of any method, treatment or appliance for the purpose of such prevention or such miscarriage and should for that reason be prohibited, the Minister may by order (in this Act referred to as a prohibition order) prohibit the sale and distribution in Saorstát Eireann of such book or of such edition of a book.
(7) A prohibition order made under this section in relation to a book shall, unless it is limited to one or more particular editions of such book, apply to every edition of such book whether published before or after the date of such order save such (if any) editions thereof as may be excluded by an amending order from the application of such prohibition order.”
This is really a new, substituting section dealing with books and it takes the place of the old Section 6. It is very much in the terms of that section. There is only one thing new in it and that is that it enables the Board of Censors to initiate proceedings themselves. I undertook to insert that in Committee. I admit that I am not very enamoured of it, because it puts the Board rather in the position of being both judges and accusers, which is not a very happy one. I promised it as a sop to Cerebus, to try and save my Associations, but while Cerebus took the sop my Associations have gone. It appears to be the view of the House that it should be inserted.
Professor Thrift: I think there is  a mistake in this amendment. On the Committee Stage, the Minister said in answer to a question of mine about the words “or tends to inculcate principles contrary to public morality” that he intended to leave these words out. We had a long debate on the matter in Committee.
“(1) Whenever a complaint is duly made under this Act to the Minister to the effect that the several issues of a periodical publication recently theretofore published have usually or frequently been indecent or obscene or have advocated the unnatural prevention of conception or the procurement of abortion or miscarriage or the use of any method, treatment or appliance for the purpose of such prevention or such procurement or have devoted an unduly large proportion of space to the publication of sensational matter relating to crime, the Minister may refer such complaint to the Board.
 (2) The Board shall consider every complaint referred to them by the Minister under this section and for the purpose of such consideration shall examine the issues theretofore recently published of the periodical publication which is the subject of such complaint and on completion of such consideration the Board shall make to the Minister their report on such complaint.
(3) Whenever the Board under this section makes in reference to a complaint a report, assented to and signed by at least four members of the Board, stating that in the opinion of the Board the issues recently theretofore published of the periodical publication which is the subject of such complaint have usually or frequently been indecent or obscene and should for that reason be prohibited or that in the opinion of the Board such issues have advocated the unnatural prevention of conception or the procurement of abortion or miscarriage or the use of any method, treatment or appliance for the purpose of such prevention or such procurement and should for that reason be prohibited or have devoted an unduly large proportion of space to the publication of sensational matter relating to crime, and should for that reason be prohibited, the Minister may by order (in this Act referred to as a prohibition order) prohibit the sale and the distribution in Saorstát Eireann of any issue of such periodical publication published after the day on which such order comes into operation.
(4) A prohibition order made under this section in respect of a periodical publication in respect of which no such prohibition order has previously been made shall, unless previously revoked under this Act, continue in force for three months from the day on which it comes into operation and shall then expire.”
Mr. Anthony: I want to make a request, which I am sure will be agreed to by many Deputies. I think we should proceed more slowly with the amendments. I find it difficult, and I am sure other Deputies also find it difficult, to follow the amendments. While I have given careful consideration to the Bill, I think we should proceed more slowly.
Mr. Fitzgerald-Kenney: I will go as slowly as the Deputy wishes, but these amendments were previously discussed at great length. I am really introducing amendments which were agreed on in Committee. There is no novel idea introduced in any amendment, and they all express the agreed view of the House.
An Ceann Comhairle: Amendment 5, sub-section (3), should read then: “Whenever the Board under this section makes in reference to a complaint a report, assented to and signed by at least seven members of the Board...” That is, the word “seven” is being substituted for the word “four.”
That amendment was suggested, I think, by Deputy Thrift on the Committee Stage, and seemed to receive general assent. The reason for it is that it would be impossible for persons to know whether they were or were not committing an offence in selling books or having books in stock unless the Register were available for them. They would not know that they were committing any offence in bringing books into the country unless they knew what books were actually prohibited. I think I pointed out another reason on the Committee Stage, that where a censorship has been found necessary a list of books has always been kept. One can see a list of the books that are not allowed into Canada or Tasmania. The “Index” publishes a list of prohibited publications.
In page 5, lines 48 and 52, Section 11 (4), after the word “person” to insert in each line the words:—“who shall have satisfied the Minister in manner to be prescribed by regulations that he requires to make such inspection for a bona fide purpose connected with the administration of this Act.”
“(5) It shall not be lawful for any person save the person or persons duly authorised by the Minister to publish or cause to be published to any person whatsoever a copy of the register or of any entry thereon or the contents of the register.
(6) Every person who acts in contravention of the foregoing sub-section shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding £50 and in the alternative to imprisonment with or without hard labour for any term not exceeding six months.”
The object of these two amendments is merely to prevent the publication of prohibited lists in newspapers or to prevent newspapers from having wholesale access to the list of prohibited publications. I think it is very undesirable that there should be published in the daily Press a list and particulars of prohibited publications. The object of these two amendments is to provide against that. I think it is necessary that these amendments should be inserted if we want to keep the prohibition close.
Mr. Fitzgerald-Kenney: I am entirely in sympathy with the object which Deputy Ruttledge has in view. The same view was expressed on the Committee Stage by Deputy Little. I have considered the matter very carefully since then, and I am not sure that these provisions could be carried out at all in practice, because I think you may take  it for granted that the Press will not publish a long list of books that are simply obscene in their character, as it would be an advertisement for those books. I think we may safely trust the Press not to do that. We have no control over the Press outside this country. We could not prosecute the Press outside this country at all for doing it, and I do not think there is any danger of the Press of the country publishing a list of that nature. On the other hand, I think it is very important that the Press should know, and should be able to comment upon, a decision of the Censorship Board. There should be an appeal, as it were, from the Censorship Board to the court of public opinion. That is, if the censors have allowed in a book which should not be allowed in, I think you cannot prevent the Press from commenting on it. On the other hand, if a book is prohibited which ought not to be prohibited, you cannot prevent the Press from commenting on that. You must leave a good deal to the common-sense of the Press itself. In addition to that, if a paper presses it too far it might get itself into the danger zone.
Mr. Little: I quite agree with the Minister that in some particular cases the Press should have the right to criticise. Probably the kind of book that the Press would consider it necessary to deal with, would be a book of a doubtful nature and probably for that reason it would not do very much harm. At the same time, one has always to look at it from the point of view of the Press as a trade. The Press has to meet severe competition, and if one paper makes a news item out of that list, which, after all, is a very interesting item, and publishes it, other papers will also publish it. It is really in the interests of the Press to make it part of the law that they will not be allowed to publish the list in toto, and, further, I think we should have in this Act some means of protecting ourselves against the external Press publishing such a list. If we have not got power in  the Act, I imagine that a paper publishing, in the face of the law, such a list, could be put on the banned list. I think it is really only fair to the public generally to let them know clearly what is the intention of the law and not to leave it as something which has to be discovered later, when someone has committed an offence against it, and to make it perfectly clear that such a list cannot be published in an Irish paper or in papers coming in. At the same time, fair comment on some new book would be quite allowable. After all, this particular class of legislation is very like a certain type of police work. It is open to the Press to publish certain things at present which occur in the police courts but they usually do not do it. It becomes even simpler for them when it is dealt with under the Act, when it is clearly laid down that they are not allowed to publish certain facts dealing with certain types of crime. I think in this case we ought to make our stipulations as clear as we have done in the other cases.
Professor Thrift: I do not think there is much difference between amendments 7 and 8. I should like to point out that amendment 9 might be taken, if carried, to make criticism of any single act of the Board of Censors, either for or against a book, impossible, because it would be impossible to criticise a book unless reference was made to the fact that a certain book had or had not been excluded. I quite agree with the view put forward by the Minister. I think we might have confidence that the Press would act in a reasonable, rational way in reference to this publication, and would not try to make capital by publishing a general list of obscene books.
Major Cooper: While I sympathise with the point of view of Deputies Ruttledge and Little, I think we are perhaps slightly losing sight of the main purpose of the Bill. The main purpose of it is to prevent these harmful publications coming into the country. In order to do that you  will have to have a widespread knowledge of what are considered to be harmful. There are, I suppose, some 3,000 to 5,000 small newsagents all over the country. There is also a certain number of booksellers—I am sorry to say not a very large number. The only real way by which these people will inform themselves will be by the Press. We cannot imagine every little shop which sells a few newspapers taking in “Iris Oifigiúil” regularly. Much the quicker way to get them to stop ordering these papers and to save all the trouble to the postal and customs authorities and the Gárda, that will be caused by widespread seizures, will be to inform them by the quickest and easiest machinery of what books and papers have been banned, and the quickest and easiest machinery in this respect is most certainly the Press. All of them read some daily or weekly paper, and all of them can thus inform themselves in such a manner, and cancel their orders without delay for what is not allowed to come into the country. That being so, I think the harm that Deputy Little foresees is less than the advantage of the quick distribution of information. The suggestion that Deputy Little has made, that you might publish part of the list and not the whole, is really no safeguard at all. You would get round that by publishing the whole of the list and leaving out one publication, probably one with a foreign name. You could get round it by publishing the list in a series of instalments. I hope I am not misunderstanding the Deputy.
Major Cooper: I can assure the Deputy that my misunderstanding was not intentional. I was not trying to misrepresent him. Even so, the difficulty would still arise. Assuming there was a pornographic paper which wished to do what  Deputy Little feared, it might, if it chose, select one book weekly. You could not restrain the paper from making some comment on the contents of the book. I think, on the whole, that publicity is a greater enemy of pornography than any amount of hushing up. What we have all feared and must fear is what one might almost call a sniggering circulation, from pocket to pocket, behind one man's back to another man, or possibly even, I am afraid, one woman to another woman, of the kind of publication we are trying to get rid of. You must in the long run trust the people. The best way is to let the people know what the Censorship Board considers to be harmful. Ultimately, I think public opinion will be on your side and not on the side of the offending publication.
Mr. Fitzgerald-Kenney: There is another little point that has been possibly overlooked, and it is this: suppose this list is published in this country, the books will not be available in this country. If it does any harm to any persons, it will be to persons outside the country or to persons in this country who go outside the country temporarily and who decide that they will spend whatever time they are out of the country reading indecent literature. These are a small number of persons. After all, if people are very anxious to discover what are indecent books, there is no difficulty in finding them. If you want to find them, you will find them without going to any Censorship Bill.
Professor Alton: I should like to point out to Deputy Little that what the Minister has brought in in amendment 6 seems to prevent any newspaper giving a gratuitous advertisement to a list of books. The Minister has inserted “advertise.”
Mr. Law: Might I make an appeal  for the sake of people who are suffering from some inferiority of hearing? If we are discussing this Bill, it is essential that we should hear what is being said. I have heard a few words occasionally from the Minister—I know he is suffering from a bad cold. I heard Deputy Cooper very clearly, but, for the rest, I heard absolutely nothing of what has been said. I do not know whether it is possible, sir, to invoke your authority.
Mr. Byrne: I find myself in a very awkward position. Section 6 (3), to which I want to draw attention, was passed before I knew that we had even reached it. I do not know whether you, sir, will allow me now to make an appeal to the Minister.
An Ceann Comhairle: The Deputy desires to raise a point on amendment 4, already passed. When we are finished with the amendments, the Bill must be reported, and we will have a motion, “That the Bill be received for final consideration.” The Deputy may then make his point. It will, of course, be then too late for any but verbal amendments to the Bill.
Mr. Fitzgerald-Kenney: Yes, but I frankly think it would be very hard to frame a regulation which would prevent the publication by a newspaper of extracts from the list; it would be very difficult, but I shall consider what can be done.
Mr. Little: That is not quite the point. The question is, the publication of the list either in toto or a large portion of it. I think it would not be impossible to draft regulations which would allow of comment upon an individual book, but which would forbid the publication of the list of books.
Professor Alton: I ask the Minister again, would not such publication be regarded as an advertisement, and is it not forbidden by his own amendment? I cannot conceive a newspaper publishing a list gratuitously from the register. The newspaper would be as anxious to get money for such public advertisement as the publisher would be to get money for the book. A gratuitous publication of that sort must be conceived to be an advertisement.
Mr. Fitzgerald-Kenney: I cannot agree with Deputy Alton, that the publication of the list would be an advertisement. An advertisement means something published in the advertising columns of a newspaper. I think if they said such and such books have been censored by the Board of Censors this week you could hardly call that an advertisement. I do not think you could satisfy a tribunal that that was an advertisement. However, there are certain powers for making regulations under this Act. If it turns out in practice and in working that newspapers are giving gratuitous advertisements to these books, that the way in which the Press is dealing with them is such that it is really encouraging their sale then an ad hoc regulation can no doubt be worked out to deal with the particular evil which has shown itself in working. But I do not see how we can do anything at the moment to forestall what is a possible evil and which may never arise at all. I ask Deputies to look at the matter in that light.
Mr. Fitzgerald-Kenney: I think so. I think there would be ample powers to make regulations under amendment 7 “made available for the public in such manner and at such time as he shall think proper.” That is in addition to the publication in “Iris Oifigiúil.”
Mr. Anthony: With regard to what the Minister has said about encouraging sales, I should like to have the position cleared up as far as newspapers are concerned. Assuming a newspaper gets a book to review, and that it reviewed it favourably in its columns, would that be interpreted by some legally-minded person as “encouraging sales.” Many things in some of the sections of this Bill may not react as the Minister desires, and as we all desire, but the case I have in mind is the case of a newspaper asked to review a book. If the newspaper reviews that book favourably, and afterwards if the book is put on the register of prohibited publications, how does that newspaper stand in the matter?
Mr. Fitzgerald-Kenney: It is perfectly safe, because it has done nothing after the book is put on the list. If the book had been put on the list of prohibited publications first, and then the newspaper wrote a eulogistic article in favour of it, then the paper might be in danger, but if it reviewed the publication favourably and subsequently the book was put on the list of prohibited publications, the paper would not have committed any offence.
In page 6, Section 13 (2) to delete lines 36 and 37 and substitute therefor the words “The Minister for Posts and Telegraphs may by order under this section make regulations for the purpose  of,” and to insert at the end of the sub-section, line 41, the following words: “and for the delivery to the Minister for Justice of any such edition or issue intercepted in course of transmission by post.”
This amendment deals with the Post Office Act. There is very little in the amendment that differs from what is in the actual section as it stands. The only thing is that the proposed amendment is more in harmony and in keeping with the Post Office and Telegraph Act, 1908, than the wording in the actual section. But if Deputies look at it, they will see that the meaning is exactly the same.
Mr. Anthony: With regard to this amendment, I should like to say we are all very jealous of the inviolability of the Post and the secrecy of the Post. I would like Deputies to give more consideration to this particular section of the Bill. Does it mean that we are going to set up another censorship in the Post Office, and the postal officials will have authority to open parcels or papers or packets addressed to people in this country? I can see very easily that if this is passed such a practice may creep in, and it might very easily be used for political purposes. It might be that people's correspondence would be opened. I am not suggesting that people's correspondence would be opened by this particular Government, but rather by future Government. I want to know how we stand as free citizens in a free country. I feel in direct antagonism to this section. I want to stand over the secrecy of the Post, and to feel that my correspondence as a citizen of this State is not interfered with, and that the correspondence of other citizens of this State is not interfered with. I claim the same right for every other individual that I claim for myself. I ask the Minister to reconsider this section and to make sure to safeguard one of the greatest privileges we enjoy—namely, the inviolability of the Post.
Mr. Fitzgerald-Kenney: If Deputy Anthony wishes to carry out the views that he expressed, that in all circumstances correspondence in the post should be regarded as secret, and should not be touched, then he will have to repeal the Post Office Act of 1908. But I may inform the Deputy that it is looked upon as a serious offence to send indecent matter through the post, and any alteration of that law I would, myself, most strongly oppose. What Section 13, as it stands, or as it would stand if the amendment were carried, does is nothing more than to apply automatically, as it were, to those prohibited publications the orders which otherwise would have to be made by the Minister for Posts and Telegraphs, or some other Minister, for the stoppage of objectionable matter going through the post.
Of course a whole lot of things have to be stopped in the post. For instance, lotteries are illegal. Lottery tickets are stopped in the post. An order has been made that lottery tickets are to be stopped; letters addressed to persons who are known to be running private lotteries are stopped, and the money which they contain is returned to the senders. It is precisely the same way with regard to these books and publications. They will be opened and dealt with in the same manner as lottery tickets are at the present moment. I do not see that you are opening the door widely to abuse. I think this is simply utilising the existing procedure.
Professor Alton: As a matter of fact, are not books coming from abroad opened at the present time? I get parcels of books nearly every week and they are always examined. Apparently, they must be examined, because I might be smuggling.
Mr. Fitzgerald-Kenney: There are certain books, the introduction of which into this country is prohibited. Some of these are foreign books. There are not very many of them, but at present the postal authorities  have to keep their eyes open for those particular named books.
When I mentioned, in reply to Deputies Tierney and Law, that I accepted the particular class of publication which Section 16 deals with, and that that class of publication should come under Section 6, I also pointed out that I would only do so on a promise that the fact that they were not mentioned in Section 6 should not be an answer to a prosecution under Section 16.
“(3) Where a person who carries on the business of selling or distributing books or periodicals or other publications is charged with an offence under this section it shall be a good defence to such charge to prove that he committed the act alleged to constitute such offence in the ordinary course of his said business, and that he could not by the exercise of reasonable care have known or ascertained the contents of the book or other publication in respect of which such Act was committed.”
This is also an amendment to Section 16. It has been put in rather in relief of the sellers; that is to say, if a bookseller sells a periodical which up to a certain time has been quite proper but which suddenly produces an improper article, it would be very hard for him to be punished for the sale of that paper  which he did not apprehend, and which he had no reasonable grounds for apprehending, would contain an article of that nature. Unless he shows negligence he will escape, but if he is grossly negligent, and has got, as it were, notice, then he would be liable.
This takes out Section 16 of the Post Office Act, 1908, from Section 18. The reason of that is that the definition of indecent which this Act contains might not be altogether in keeping with the actual wording of that particular section. Besides that, the words in Section 16 of the Post Office Act are very wide. It is undesirable when you amend an Act which is part of a code like the Post Office Act of 1908 that it should be amended by a little section which might easily be passed over in an Act of this nature. It is one of the general principles in making law easy for those who have to study the law that you should not amend very much by reference; you should amend by reference as little as  possible. Section 16 of the Post Office Act is quite strong enough without this definition of indecent. As a matter of fact, it would rather weaken it, because it would be arguable that under Section 16 of the Post Office Act, as regards certain of these particular types of appliances now stopped in the post as indecent articles there might be more difficulty in stopping them. The definition of indecent is more applicable to books and periodicals, and is framed for them, but it is not so suitable for what are described in that particular section of the Post Office Act as indecent articles.
|Last Updated: 16/05/2011 16:13:09||Page of 30|