Sharing hate speech online will become a crime, but there will be protections for freedom of expression

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SHARING HATE SPEECH online will become a crime under the proposed legislation, but there will be a high standard for prosecution.

Justice Minister Helen McEntee today presented the findings of the public consultation on hate speech and hate crimes.

She hopes to introduce new legislation to cabinet by Easter 2021 that will combat hate speech and hate crimes.

The new bill will repeal the 1989 Hate Incitement Prohibition Act. The minister says this law “is not fit for purpose” and should be replaced by more modern legislation.

The proposed legislation aims to address online speech that is racist, anti-LGBTQI +, or abusive towards religious groups, members of the itinerant community, or people with disabilities, for example.

Under the new plans, which can be read here, there will be provisions to protect freedom of expression, as well as protections for social media companies against prosecution if they can show they have reasonable steps to prevent the spread of such material.

Over 3,600 submissions (more than 175 of which were detailed written submissions) were made during the public consultation process that involved various community and civil society groups, academics, and experts.

The report includes 10 conclusions:

  • The Hate Speech Prohibition Act of 1989 is not effective in addressing hate speech and should be replaced with a single piece of legislation to address both hate speech and hate crimes.
  • The characteristics protected by the new legislation must include all those listed in the 1989 Law, as well as gender, gender expression or identity, and disability.
  • The definition of “ethnicity” in the new legislation should explicitly include membership in the itinerant community on an equal basis with other ethnic groups.
  • New hate crimes are needed and the deliberate or reckless incitement to hatred against a person or group of people due to its association with a protected characteristic, and the display or distribution of hateful material should be prohibited.
  • The new legislation must contain strong safeguards for freedom of expression, such as the protection of reasonable and genuine contributions to literary, artistic, political, scientific or academic discourse, and the presentation of fair and accurate reporting.
  • The thresholds for criminal incitement to hatred should be high, for example incitement to harm or illegal discrimination. However, it should not be necessary to show that someone was actually influenced by the prompting or persuaded to act accordingly.
  • A company accused of displaying or distributing hate material must be able to defend itself by demonstrating that it has reasonable measures in place to prevent the dissemination of this type of material in general, was complying with those measures at the time, was not aware of and had no reason to suspect that this particular content was provocative.
  • To be meaningful, the new legislation must also effectively address hate crimes. Threatening and abusive communications, criminal damages, harassment, assault, and intimidation are all common forms of hate crimes as described by participants in this consultation, and specific and aggravated forms of existing criminal offenses should be included. in legislation to address them and ensure that crimes are properly categorized and recorded.
  • Additional elements may be needed to help ensure that the new legislation is effective, such as allowing alternative verdicts for juries when the aggravating element of ‘hate’ is not proven, and including a general provision (for crimes that are not specific hate crimes ) to say that a court will always consider whether hatred should be an aggravating factor in sentencing and, where applicable, that this is reflected in the record.
  • Not all hate incidents are serious enough to be a crime; many incidents are best dealt with outside of the criminal sphere and appropriate measures will be needed to ensure that this happens.

Speaking at the launch this morning, McEntee noted that many of those who participated in the consultation have been victims, “while others are concerned about the real need to respect the human rights of all those involved, including the right to freedom of expression, so that the new legislation is proportionate, as well as effective in achieving its goals ”.

Many of those who participated have been victims themselves and what we have learned is that victims of hate crimes are made to fear for the future, not only for themselves but for their friends, their loved ones, their children. This type of fear can lead to a more divided society, where entire communities can feel unsafe.

The new law will cover both hate speech and hate crimes. The new hate crimes will be aggravated versions of existing crimes, for example, crimes against the person, criminal damages or crimes of public order, when they are committed out of prejudice against a protected characteristic.

The creation of these new crimes will mean that a crime can be investigated as a possible hate crime by gardaí, and evidence of the element of hate can be presented in court.

“There is no place for hate crimes in our society. The legislation will address situations where perpetrators seek to incite other people to hatred behind the protection of a screen or anonymous account, ”added McEntee.

“Regarding the fundamental constitutional right to freedom of expression, I want to assure people that this legislation will be proportionate, specific and clear, with crimes that can be proven beyond a reasonable doubt. There will be no confusion about what constitutes criminal hate speech. “

‘Considerable damage’

The publication of the plan has been welcomed by the Irish Network Against Racism (INAR).

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Claudia Hoareau, vice president of INAR, said the report recognizes “the considerable damage caused by crimes motivated by hostility towards someone’s identity” and establishes “a clear framework to develop the best legislative protections for people against hate crimes. “.

“We look forward to the Oireachtas and the public discussions that follow, and working closely with our partners in LGBTQI and disability rights organizations, civil society at large, and government, to agree on the best way to ensure legal protections. effective for ethnic minorities and other groups from the considerable damage caused by hate crimes. “

The Irish Civil Liberties Council (ICCL) has also welcomed the release of the report.

Doireann Ansbro, ICCL Senior Policy and Research Officer, said: “No one in Ireland should suffer a hate crime and those who do should be assured that the justice system will respond appropriately. Now we are one more step towards this goal ”.

However, he added: “When it comes to legislating against any kind of speech, we must always be cautious. Freedom of expression, even when offensive, is a fundamental human right and a democratic principle. We welcome the Government’s commitment to include strong freedom of expression protections in the proposed legislation. “

The ICCL is “cautious about the possible combination of hate speech with hate crime” and does not support the criminalization of hate speech, “except in the most extreme circumstances, such as incitement to genocide or hate violence, or war propaganda.” .



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