EU law on harmful speech could make Ireland’s hate offences Bill obsolete

It is ironic that a law designed to combat hate speech has attracted so much vitriol. The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill was back in the news recently as Elon Musk, Fox News and other “anti-woke” champions renewed hostilities against it.

It is worth remembering the Bill is now four years in gestation. Its genesis was a public consultation launched in 2019 by then minister for justice Charlie Flanagan on upgrading the Prohibition of Incitement to Hatred Act 1989.

Minister for Justice Helen McEntee “intends progressing” the Bill “early in the new year”, which doesn’t exactly inspire confidence. However, there is no shame in doing a sanity check on the proposed law even at this late stage.

One big change that has occurred since 2019 is the introduction of the Digital Services Act, an EU-wide regulation that holds online platforms accountable for illegal content, including hate speech, on those forums. The EU law, which came into force in November 2022 and takes full effect next February, provides a means of policing harmful speech that arguably lessens the need for the new Bill.

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For a fresh take on the matter, The Irish Times turned to Dr Jeff Howard, a political scientist at University College London, who has researched hate speech laws globally.

“What I try to do is thread the needle between two positions that have dominated debate,” he says. There is an “absolutist view that, barring rare emergencies, speech that incites hatred has to be protected even if it leads to harm; even if it endangers people ... It doesn’t seem to me that that view is especially plausible,” he says. “But I think sometimes people go too far in the other direction and say ‘Oh, this speech is harmful and so we should ban it’.”

Howard advocates what he calls a “strategic” compromise.

Political philosophers have linked hate speech to various harms. Some people describe it as a kind of violence. Would you go that far?

“I don’t think it’s helpful to describe speech as a form of violence ... but I think a lot of philosophers have drawn attention to the harms hate speech can cause, and these different theories help us see why there is a very basic moral duty not to engage in hate speech.

“Because there are a lot of different harms caused by hate speech, there is no one single kind of harm. So a question I would ask is: are there tools within the law through which we can deal with these different harms?

“One harm is where hate speech can incite violence. Well, we have existing provisions in the law against inciting violence so we might think about making more muscular use of those. Hate speech can function as a form of bullying or harassment. Well, we have provisions against harassment in the law.

“So a thought I have is: are jurisdictions making suitable use of the tools already available to them rather than having to create a new criminal offence?”

The Irish law would create specific offences for targeting people with ‘protected characteristics’ such race, religion or gender. Is that a sensible thing to include in the law?

“There is a debate to be had on whether the motivations or intentions behind particular crimes can make those crimes worse than they would otherwise be – and I can see the argument for the answer yes ... but I think it’s quite unhelpful that that issue is lumped together with the free speech issue in this legislation.”

[ What are the proposed new hate crime laws and why the delay? ]

Are there any examples of countries that have legislated well on hate speech?

“What has largely happened in most western liberal democracies is that, with the exception of the United States, legislators have passed statutes criminalising hate speech on some specification. The statutes aren’t crazy. They are perfectly sensible, even if I doubt they do much good.

“The police in my estimation then radically underenforces them, perhaps out of a tacit acknowledgment that arresting people is not necessarily a sensible way of dealing with intolerant views in a community. I think there’s a stronger case for compelling platforms to remove hate speech than there is for incarcerating individuals for engaging in hate speech ... and that’s why we should be broadly supportive of regulation such as the Digital Services Act. It’s fully appropriate to insist platforms live up to their responsibilities as curators of public discourse.”

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On the question of strategy, the Irish legislation has galvanised a range of reactionary campaigners. Is there a case for quietly dropping the Bill or would that be seen as surrender?

“I’m sympathetic to the thought that they [the Government] should not back down in the face of these kinds of criticisms because I think the criticisms are coming from a somewhat hysterical place ...

“My own take is that I doubt legislation like this does much good and may actually be counterproductive, depending on how it is enforced, but it comes from a laudable place. I think the Irish legislature has the legitimate authority to think through this issue and decide what to enact; what kind of policy to take. As a participant in that policy debate, I’d raise some sceptical questions as to whether this was necessarily the most sensible way. But I think the hysterical criticism of the legislation as evil and illiberal is completely misguided.”