SHARING HATE SPEECH online is set to become a criminal offence under proposed legislation but there will be a high bar for prosecution.

Minister for Justice Helen McEntee today launched the findings from the public consultation on Hate Speech and Hate Crime.

She expects to bring forward new legislation to Cabinet by Easter 2021 that will combat incitement to hatred and hate crime.

The new Bill will repeal the Prohibition of Incitement to Hatred Act 1989. The minister says this act is “not fit for purpose” and needs to be replaced with more modern legislation.

The proposed legislation aims to tackle online speech that is racist, anti-LGBTQI+ or abusive to religious groups, members of the Travelling community or disabled people, for example.

Under the new plans, which can be read here, there will be provisions to protect freedom of speech, as well as protections for social media companies from prosecution if they can prove they have reasonable measures in place to prevent dissemination of this type of material.

More than 3,600 submissions (over 175 of which were detailed written submissions) were made during the public consultation process which engaged with various civil society and community groups, academics and experts.

The report includes 10 conclusions:

• The 1989 Prohibition of Incitement to Hatred Act is not effective in dealing with incitement to hatred and should be replaced by a single piece of legislation to deal with both incitement to hatred and hate crime.
• The characteristics protected by the new legislation should include all of those listed in the 1989 Act, and also gender, gender expression or identity, and disability.
• The definition of ‘ethnicity’ in the new legislation should explicitly include membership of the Travelling Community on the same footing as other ethnicities.
• New offences of incitement to hatred are needed and should prohibit deliberately or recklessly inciting hatred against a person or group of people due to their association with a protected characteristic, and displaying or distributing material inciting hatred.
• The new legislation should 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.
• Thresholds for criminal incitement to hatred should be high, for example incitement to harm or unlawful discrimination, However, it should not be necessary to show that anyone was actually influenced by the incitement or persuaded to act upon it.
• A company accused of displaying or distributing hateful material should be able to defend itself by showing that it has reasonable measures in place to prevent dissemination of this type of material in general, was complying with those measures at the time, was unaware, and had no reason to suspect that this particular content was inciteful.
• To be meaningful, the new legislation must also deal effectively with hate crime. Threatening and abusive communications, criminal damage, harassment, assault and intimidation are all common forms of hate crime as described by participants in this consultation and specific, aggravated forms of existing criminal offences should be included in the legislation to deal with these and ensure that such crimes are properly categorised and recorded.
• Additional elements may be needed to help ensure the new legislation is effective, such as allowing alternative verdicts for juries where the aggravating ‘hate’ element is not proven, and including a general provision (for crimes that are not specific hate offences) to say that a court will always consider whether hate should be an aggravating factor in sentence and, where it is, that this will be reflected in the record.
• Not every hate incident is serious enough to be a crime – many incidents are better dealt with outside the criminal sphere and proper measures to ensure this happens will be needed.

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

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

The new law will cover both incitement to hatred and hate crime. The new hate crime offences will be aggravated versions of existing crimes, for example offences against the person, criminal damage or public order offences, where they are carried out because of prejudice against a protected characteristic.

Creating these new offences will mean that a crime can be investigated as a potential hate crime by gardaí, and evidence of the hate element can be presented in court.

Justice Minister Helen McEntee - ahead of publishing the findings of the public consultation on hate crime - says she wants to ensure that discriminating against individuals because of a particular characteristic "simply won't be acceptable anymore in this country".

— Órla Ryan (@orlaryan) December 17, 2020

“There is no place for hate crime in our society. The legislation will deal with situation where perpetrators seek to incite other people to hatred from behind the protection of a screen or an anonymous account,” McEntee added.

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

‘Considerable harm’

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

Claudia Hoareau, vice-chair of INAR, said the report recognises “the considerable harm done by crimes motivated by hostility towards someone’s identity” and sets out “a clear framework for developing the best legislative protections for people from hate crime”.

“We are looking forward to the Oireachtas and public discussions that follow, and to working closely with our allies in the LGBTQI and disabled rights organisations, wider civil society, and government, to agree the best way to ensure effective legal protections for ethnic minorities and other groups from the considerable harm done by hate crimes.”

The Irish Council for Civil Liberties (ICCL) has also broadly welcomed publication of the report.

ICCL’s Senior Research and Policy Officer Doireann Ansbro said: “No one in Ireland should experience hate crime and those that do should be confident that the justice system will respond appropriately. We are now one step further towards this goal.”

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

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