Politics

Hate crime and speech legislation to protect freedom of expression

Bill affords ‘robust safeguards’ for artistic and political discourse and offers ways to deal with offensive online content

Hate speech online
New Bill will strengthen the law around hate speech. Offences will include inciting hatred against people because they are associated with a protected characteristic. It will also deal with the sending or distribution of material inciting hatred. Illustration: Paul Scott
Brian Mahon
Wed Oct 05 2022 - 05:00

Offensive speech will be protected under new hate crime and hate speech legislation which is due to be published in coming weeks by the Department of Justice.

The legislation will create new, aggravated forms of certain existing criminal offences, such as hate crimes, where those offences are motivated by prejudice against a protected characteristic.

These characteristics will include race, colour, nationality, religion, ethnic or national origin, sexual orientation, gender (including gender expression and identity) and disability.

The Minister for Justice, Helen McEntee, said the Bill would also strengthen the law around hate speech – by reflecting today’s society more accurately, especially by offering ways to deal with hateful online content.

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Offences will include inciting hatred against a person or persons because they are associated with a protected characteristic. It will also deal with the sending or distribution of material inciting hatred.

Responding to a parliamentary question, Ms McEntee said: “The text of the new legislation is currently in the final stages of drafting, and it is expected to go to government for approval in the coming weeks.”

The Minister also said the legislation would contain “robust safeguards” for freedom of expression, such as protections for reasonable contributions to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting.

Discussion or criticism

A spokesman for the department told The Irish Times: “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.

“This Bill is endeavouring to only criminalise the extreme forms of hate speech that deliberately and recklessly incite or stir up acts of hostility, discrimination or violence.”

As part of the legislation, a “demonstration test” will also be introduced to help investigations into hate crimes. This will be in addition or an alternative to the “motivation test”.

Martin Collins, the chief executive of Pavee Point, a Travellers’ rights organisation, said the proposed new legislation was a “huge improvement” on the existing legislation, the 1989 Incitement to Hatred Act.

The 1989 legislation 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.

“That was a totally useless and ineffective piece of legislation,” he said.

Demonstration test

He called the demonstration test “absolutely” essential. “It will make it easier to determine if an attack or an assault was motivated by hate.” A demonstration test 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.

However, Mr Collins raised concerns about the continuing protection for political speech that will be offered by the new legislation, saying that politicians have uttered hate speech in the past, especially about accommodation in a bid to “pander to their constituents”.

“They engage in racist rhetoric,” he said, adding that the legislation could give a “free for all” to politicians.

Hate speech is often “discernible” from politicians, he said. “I’m 25 years involved in the struggle, and I’ve been involved in robust debates with politicians. They’ve said offensive things to me, and I’ve said offensive things to them and that’s fine. Sometimes they take it to the next level and incite hatred.”

In the past, some politicians have made remarks suggesting that the Traveller population needed to be curtailed, which he regarded as clear evidence of hate speech.

Fiona Hurley, the chief executive of Nasc, a migrant rights group, said there needed to be better definitions of political and academic speech. “The concerns we have is that anyone who is standing for public office has any speech protected, purely by dint of the fact they are standing for public office. That is something that needs to be drilled down into.”

She said Nasc was concerned about people publishing something in an academic article that could be hate speech but would be protected as it would be considered academic speech.

A spokesman for the Department of Justice said definitions are still being finalised as the drafting of the Bill continues.