Tricky path ahead to protect freedom of speech while dealing with online hatred

Department of Justice set to introduce new hate crime and hate speech Bill in the near future

In a world where everyone has an opinion and, more importantly, where everyone has the ability, if they choose, to share it with the rest of the world, one person’s hate speech can sometimes be another’s right to free speech.

Here, the thorny issue of defining what crosses the line between strongly-voiced, but legitimate opinion and hate speech that is a criminal act is coming to a head, with the Government set to bring legislation to the Oireachtas in the near future.

Urged for years to act, the Department of Justice now says that it will protect political speech and defend “offensive” speech, but it leaves a tricky path ahead to define what type of public commentary will be outlawed under the proposed new legislation.

Currently, the Online Safety and Media Regulation Bill (OSMR) sets a very low threshold for the type of opinions broadcasters and others can reasonably broadcast, with Imelda Munster, a Sinn Féin TD, saying that parts of the legislation are a “significant attack” on people’s right to freedom of expression.

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The Government is therefore currently considering a myriad of apparently contradictory ways to regulate speech in an attempt to protect people. But can it balance this desire against the fundamentals of freedom of speech?

There are two key parts to the hate crime Bill, one dealing with defining a hate crime, with the other relating to hate speech.

The more contentious element of the Bill is likely to be the defining of hate speech.

The new legislation will set the threshold for criminal incitement to hatred as “intent or recklessness”.

This means a person must either have deliberately set out to incite hatred. Or, according to the department, “at the very least” have considered whether what they were doing would incite hatred, concluded that it was “significantly likely”, and decided to press ahead anyway.

Minister of Justice Helen McEntee, however, has said the legislation will contain robust safeguards for freedom of expression, such as protections for “reasonable and genuine contributions” to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting.

Emphasising that the right to utter offensive speech will be defended, a department official said: “There is an important protection for freedom of expression being built into the new Bill, which guarantees that a communication will not be taken to incite violence or hatred solely on the basis that it contains discussion or criticism – even if that might be offensive – of matters related to a protected characteristic.”

Someone will not “accidentally” veer into incitement to violence or hatred, according to the department: “Those claiming protection under the defences provided for in the Bill as ‘reasonable contributions’ [to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting] would have to be just that: reasonable and genuine.”

The chief executive of the migrant rights organisation NASC, Fiona Hurley, says the threshold of the definition is high enough that it won’t stifle debate.

“That is something the legislators were very keen to try and come down on in a very balanced way. No one wants to stifle debate.”

Some determinations “may come down to an individual assessment via court”, she says.

The co-director of Pavee Point, Martin Collins, points out that it is “discernible” when offensive speech moves into hate speech, offering examples where politicians have suggested that Travellers should be microchipped or all forced to live on an island.

Members of the Oireachtas Justice Committee worried when they read the general scheme of the Bill that it did not sufficiently protect defences against incitement to hatred, urging changes, “particularly the provision of using political discourse as a defence”.

The concerns about the potential for conflation between hate speech and hate crime are understood by advocacy groups for minorities.

The hate speech element of the Bill should be split from the hate crime part, says Hurley, so that everyone “can move on” from hate crime and have a larger debate about incitement to hatred “if it is needed”.

Saying she understands the concerns about freedom of speech, Hurley said incitement to hatred legislation already exists and it is “unrealistic”, to believe that the Director of Public Prosecutions would start bringing prosecutions “across the board” when the legislation is enacted.

Hate crime

An initial draft of the legislation set out a “motivation” test for hate crime. During pre-legislative scrutiny in the Oireachtas last year, concerns were raised that this would result in few prosecutions.

The head of the Department of Applied Social Studies at Maynooth University, Dr Seamus Taylor, told the justice committee that including a demonstration test in the proposed Bill would be “essential”, as it is often the element of an incident that is crucial in securing a conviction for an offence of hate crime or incitement to hatred. This would mean that if someone makes a racial slur while carrying out an attack on a member of a minority community, that will be included as evidence to show that a hate crime has taken place.

He pointed out that relying solely on a legal test of motivation can be challenging and may result in an ineffective law. His concerns were echoed by others representing minority groups.

In July, McEntee allayed these concerns by confirming that a “demonstration test” would be introduced in the investigation of hate crimes.

This represents a “huge improvement” on the existing 1989 Incitement to Hatred Act, Collins says. “That was a totally useless and ineffective piece of legislation.”

It did not work because it relied on the intent or motivation of the individual, which meant that any prosecution needed to get “into the head” of the person being prosecuted, he says.

Luna Lara Liboni, a policy officer with the Irish Council for Civil Liberties (ICCL) believes a “very cautious” approach should be taken with the test , however. “We believe the test should not be significantly expanded as we believe the threshold for conviction of hate crimes should be high.” Liboni says that a balanced approach needed to be taken to expand the test for hate crime so that convictions could be successfully secured, while also recognising the effect on a person’s life if they are convicted of such a crime.

Social media

In reality, hate speech now proliferates freely online, with Collins saying most hate speech now occurred there, rather than in the mainstream media.

Social media companies need to be held to account for the “toxic” online comments about Travellers, he says. “I don’t think social media companies are dealing with it effectively.”

Hurley says that social media companies need to take “more responsibility” for what is on their platforms. “There has to be a reckoning for what social media is making available [online],” she says.

Questioned, a Twitter spokesman said the company’s “top priority” is to protect the health of the conversation on its platform and “keeping people safe”.

“We are committed to building a safer internet, tackling online hate and improving the health of the public conversation,” he said.

The social media platform said it has clear rules in place to address threats of violence, abuse and harassment, and hateful conduct. Facebook, meanwhile, would only say that it was looking forward to the publication of the legislation.

It is in the online sphere that the hate crime and hate speech legislation intersects with the OSMR Bill that is currently going through the Oireachtas. The OSMR Bill will force social media companies hosting such material to take down content that incites hatred or violence.

It will provide for the appointment of an online safety commissioner to oversee the new regulatory framework for online safety. Social media companies will be governed by “legally binding online safety codes”. Breach of these codes will lead to serious financial sanctions, the department said.

“The effective dovetailing of the legislative provisions governing incitement, hate speech and regulatory framework for online safety will ensure social media companies are able to effectively manage hate speech on their platforms.”

The ICCL, however, has raised serious concerns about the OSMR Bill as currently constituted, saying the definition of harmful online content is “hazardously vague”.

“It empowers a State-appointed body, the media commission, to ultimately decide what can and cannot be said online by deciding what is and is not harmful; enables a Minister to expand the definition of harmful online content; decide what entities fall under the scope of ‘designated online service providers’; and regulates their compliance with binding codes created by the commission,” the civil liberties body says.

Elsewhere, the Bill says a broadcaster or a provider of an audiovisual on-demand media service, such as the RTÉ Player, will not broadcast anything that may “reasonably be regarded as causing harm or offence”. This is in direct contradiction with comments by the department.

Speaking in the Dáil last month, Minister for Media Catherine Martin acknowledged concerns about freedom of expression around the Bill. She said she was examining these issues and said she may bring amendments to the Bill at committee stage in the Dáil, which is due to start shortly.

In attempting to protect minorities from hate speech and protecting people from abuse online more generally, the Government is taking big steps to regulate speech. As Munster and others such as the ICCL have noted in recent weeks, there is a very careful balancing act to be managed.