JUSTICE MINISTER HELEN McEntee has said the proposed hate speech legislation “is not radical as detractors claim”, while stating that she recognises there are different points of the view.
Speaking during the Second Stage Seanad debate this evening, the minister said some say the bill doesn’t go far enough and others believe it goes too far.
She said the Government’s legislation is “proportionate, evidence-based and in line with legislation in other countries”.
However, a number of senators have said the proposed laws will have a chilling effect on free speech.
Independent Senator Michael McDowell said the bill in its current state “isn’t in a good shape”, while Fianna Fáil Senator Lisa Chambers said there are “reasonable questions” around the legislation that need to be asked.
McDowell told the Seanad that the legislation will create a chilling effect on free speech, in his view, stating that “most people will take many many steps to avoid the danger of being prosecuted and shut their mouths”.
He also raised concerns, which were also highlighted by Chambers, around members of the Seanad feeling “constrained” in what they can say about certain topics “because on both sides outside there was such a violent reaction on social media’.
Chambers said the “vagueness” around some aspects of the legislation and the lack of definition of hate is problematic to some people and creates a “level of subjectivity which makes people nervous”.
Fine Gael’s Barry Ward defended the legislation, calling it progressive and stating that it is not about stifling debate.
He criticised senators who will vote against the bill, stating “don’t give us the rubbish you see online… tell us if you are in favour of legislating against hate speech or not”.
However, there has been chorus of negative reactions to the bill has grown louder in recent weeks, with NGOs and free speech groups have joined the chorus of Irish and international detractors, with some very high-profile critics.
However, McEntee said she believes the bill has been broadly welcomed across the political spectrum as well as by an array of representative organisations.
The minster said that much of the discussion around the legislation has “unfortunately also been subject to deliberate misinformation and distortion, including from fringe commentators and US-based social media personalities”.
The core purpose of developing this legislation is to ensure that vulnerable and minority communities can feel safe, she told senators.
“Nobody deserves to be targeted for the intrinsic and unchangeable characteristics of their identity. To do so is cowardly, callous and contemptuous and should be open to prosecution.
“The increase in hate crime is not limited to Ireland, but rather is a broader phenomenon globally; often fuelled and amplified by social media and the politicisation of certain media outlets that attempt to use so-called ‘Culture Wars’ to reach a wider audience,” said McEntee.
The minister said there has been extensive public consultation on the proposed legislation, which began in 2019.
This included a short public survey; detailed written submissions; seven independently facilitated discussion workshops around the country; and a series of meetings with stakeholder groups, civil society, academics, law enforcement professionals and other experts, said the minister.
“I have no qualms in standing up against those who criticise this Bill, who say that hate speech and hate crime don’t exist in Ireland. Most of those proclaiming the loudest don’t seem to have taken the time to read the Bill, to understand that it doesn’t seek to infringe on their rights to say offensive things. Nor do they seem to understand that hate speech is already a crime in Ireland,” she said.
Speaking to the right of freedom of expression, the minister said she wanted to be clear that no one has a right not to be offended.
“The right to freedom of expression and freedom of speech are vital rights in any democratic society. These rights are protected by the Irish Constitution and the European Convention of Human Rights,” she said, adding:
You have a right to express your convictions and your opinions, no matter how unpopular they might be. You have a right to be divisive and argumentative, a right to offend others and to hold political opinions which are not the mainstream.
McEntee said that Section 11 of the Bill explicitly provides protection for freedom of expression and ensures that discussion or criticism of matters relating to a protected characteristic does not constitute incitement to hatred in and of itself.
“However, freedom of speech is not an absolute right. You don’t have a right to shout fire in a crowded theatre. You don’t have a right to make defamatory statements. And you don’t have a right to incite hatred or violence against individuals.
“When a communication incites hatred or violence against others, a very clear line is crossed and such behaviour must be dealt with through effective, and prosecutable, legal recourse,” said the minister.
The incitement offences that currently exist under the 1989 Act are being updated to encompass any communication or behaviour that intentionally or recklessly incites hatred or violence, so that they can be prosecuted more effectively, the minister argued.
“The key change here is that we are simplifying the core incitement offence and setting the standard at recklessly or intentionally inciting hatred. Recklessness is a very common feature in criminal law.
“This means a person must either have deliberately set out to incite hatred or violence, or knew that there was a risk that what they were doing would incite hatred or violence, and did it anyway.
“While still very challenging to prove, including recklessness as part of this offence was widely welcomed during the pre-legislative scrutiny process,” said the minister.
She said it is a lesser offence to prepare or possess material, such as posters or leaflets, which is intended, or is likely, to incite violence or hatred, even if the material has not yet been shared or made public.
However, McEntee said there would need to be evidence that the person intended that this material would be made public in order to secure a conviction.
“This provision has attracted much attention, with claims that it equates hate speech to ‘thought crime’.
“However, these provisions in relation to preparing or possessing before us today replicate the provisions of the 1989 Act so what we are talking about is not new.
“I wish to make it clear that this provision only applies in cases where an individual has a clear intention to disseminate harmful material that would stir up violence or hatred. This would need to be proved in court beyond a reasonable doubt,” she added.
The minister said this provision is already in the 1989 Act and is being carried over to the new legislation in order to cover situations where material might be intercepted before it is communicated.
Giving an example, she said this would be in the case of a person travelling to a rally with far-right posters expressly inciting hatred or violence in their car or backpack.
“Again, there has to be clear evidence of intent or likelihood to stir up violence or hatred for a prosecution to be brought under this section,” McEntee told senators today.
The legislation contains 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, she said.
The new law is “about criminalising those who deliberately or knowingly put other people in harm’s way through their statements and views”, she tod the Seanad.
Before the debate was adjourned for the evening, a number of senators asked for genuine consideration to be given to Seanad amendments and called for adequate time to be given to tease out the bill.
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