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Offensive people can still be offensive, and
offended people still offended. However,
when free speech is targeted at a defined
group, calculated to cause hatred against
that group, or intended to incite violence
against it, we should prohibit it
o right is absolute; all rights are
balanced against other rights, to one
extent or another. So it is with the
right to freedom of expression and
free speech, one of our most
cherished and valued rights
protected by Article 40.6.1° of the Constitution
and Article 10 of the European Convention on
Human Rights
or free speech is not absolute either; we cannot
say anything we want.
Our free speech is constrained by defamation
laws, public order legislation, public safety
limitations, and a concern that free speech
should not be abused to negatively impact on
other citizens by incitement to hatred or violence
against them.
The Criminal Justice (Incitement to Violence or
Hatred and Hate Oences) Bill 2022 attempts to
balance those competing rights to free speech
and to live a life without fear that someone else
will seek to make others hate you or commit
violence against you because of your individual
characteristics defined here as race, colour,
nationality, religion, ethnic origin, descent,
gender, sexual characteristics, sexual orientation
or identity, or disability.
Indeed, so important is freedom of expression
in Irish policy that Section 11 of the Bill specifically
protects it by saying that discussionsimpliciter,
can not be taken to be an incitement to violence.
As the Bill began its passage though the Seanad,
some have harshly criticised it, making
unsubstantiated claims that it will end freedom
of speech or that it constitutes a gross over-reach
by government into people’s private lives and
In addition to critics here, Donald Trump Jnr.
has described the legislation as “insane, Elon
Musk said it was “a massive attack on freedom
of speech”, and Fox News ran a headline
suggesting that the Government was restricting
freedom “to protect trans people from
None of these statements is true, of course,
and none stands up to scrutiny. Therefore, it is
important to dispel the misinformation that has
been put out there about what the Bill will actually
do and how it will address hate crime and hate
speech in Ireland.
In Ireland at least, most of the Bills detractors
but without
By Barry Ward
accept the need for, and desirability of, hate crime
and hate speech legislation, but they dispute how
that should be done or that this Bill is a reasonable
response. However, central to the Bill is the right,
irrespective of personal characteristics, of all
individuals to go about their business peaceably,
without being subjected to hatred, and without
being under the threat of violence.
This Bill is not about stifling debate but taking
the hatred out of debate.
What the Bill does and does
not do
Which is not to say that this legislation will
outlaw taking, or giving, oence. Oensive
people can still be oensive, and oended
people can still be oended. However, when free
speech is targeted at a defined group, is
calculated to cause hatred against that group,
or intended to incite violence against the
members of that group, it is absolutely
appropriate that we, as a community, draw a line
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and say that that behaviour is not acceptable.
This bill will repeal the Prohibition of
Incitement to Hatred Act 1989, which was
ineective, resulting in just 50 prosecutions in
almost 35 years. Where hate speech might
have manifested itself in pamphlet form in
1989, the modern iteration is substantially
more digital. This new legislation is broader
and specifically addresses on-line activity,
whether in Ireland or not.
The Bill also includes protections in addition
to the normal fair procedures that we associate
with our criminal justice system. For example, it
excludes “a reasonable and genuine
contribution to literary, artistic, political,
scientific, religious or academic discourse. The
permission of the Director of Public Prosecutions,
independent in her functions, will be required
for any prosecution.
The Bill does a number of things, including
ensuring that, where certain crimes are
committed against a person because that
person is gay, or black, or Jewish, or a woman,
or transgender, or some other defined personal
characteristic, any sentence will necessarily be
higher because of the hate element of the
oence; making it an oence to condone, deny
or grossly trivialise genocide and other crimes
against humanity; and making it an oence to
incite violence or hatred against someone for
those reasons.
Hate crime effects
Being the victim of crime is one thing. It is
unpleasant, unacceptable and unfair,
sometimes it takes time to get over, depending
on the nature of the crime, where it happened
and other factors. But we know that, when a
crime is motivated by hate
be it racism, or misogyny, or homophobia, or
anti-traveller sentiment, or any other
manifestation of hatred
the victim is significantly more liable to a long-
lasting eect and is twelve times more likely
to suer psychologically beyond the physical
eects of the crime itself.
Whether the perpetrators of such oences
know it, acknowledge it, or admit it, hate crime
damages our whole society, and not just
individual victims.
Burden of proof
Some people have claimed that this bill will
overturn the burden of proof, which, in Ireland,
requires the Prosecution to prove the case
against the Accused. While the Bill will not
change this important principle, it does contain
a “rebuttable presumption”, which allows
certain conclusions to be drawn if there is no
reasonable explanation for particular
Rebuttable presumptions are common and
can be found in the law on theft and fraud,
misuse of drugs, and firearms and oensive
weapons, to name but a few, yet the same
critics have not complained about the
operation of those statutes since the 1970s
and before.
Others have condemned the provisions that
criminalise possession of certain material, even
if it has not be distributed or published. They
claim that people should be able, for example,
to possess material that, if distributed, would
be criminal, but because they have not yet
distributed it, those people should suer no
It should not be that the Garda have to wait
until a person is ‘caught in the act’ of distributing
material before that person falls foul of the law.
They also complain that possession, without
proven intent, should not constitute an oence,
notwithstanding that it does in several other
pieces of Irish criminal legislation. A person who
possesses more drugs than could possibly be
contemplated for immediate personal use is
presumed to be dealing drugs or intending to
distribute them; a person carrying a weapon
with no reasonable basis (such as a chef with
knives, on the way to work, for example), is
presumed to possess the weapon for an
unlawful purpose; so why should the same logic
not apply to material that is likely to incite hatred
or violence?
Thought crime
Certain individuals have stated outright, without
any basis, that the Bill will police thoughts and
opinions, but they cannot point to where it
supposedly does that