By Barry Ward
No right is absolute; all rights are balanced against other rights, to one extent or another.
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.
Balance
The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) 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.
Criticisms
As the Bill began its passage through 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 the government into people’s private lives and thoughts.
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 discomfort”.
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
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 Bill’s detractors 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, offence. Offensive people can still be offensive, and offended people can still be offended. 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 and say that that behaviour is not acceptable.
This bill will repeal the Prohibition of Incitement to Hatred Act 1989, which was ineffective, 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 online 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 offence; making it an offence to condone, deny or grossly trivialise genocide and other crimes against humanity; and making it an offence 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 effect and is twelve times more likely to suffer psychologically beyond the physical effects of the crime itself.
Whether the perpetrators of such offences 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 circumstances.
The Bill also includes protections for “a reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse”
Rebuttable presumptions are common and can be found in the law on theft and fraud, misuse of drugs, and firearms and offensive weapons, to name but a few, yet the same critics have not complained about the operation of those statutes since the 1970s and before.
Possession
Others have condemned the provisions that criminalise possession of certain material, even if it has not been 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 suffer no consequences.
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 offence, 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; there is nothing to justify that claim. People will still be able to think what they like, however hateful, discriminatory, offensive or misguided those thoughts might be. However, translating any such thoughts into action that is likely to incite hatred and violence will be an offence.
Calculated action to cause hatred and/or violence against a group will rightly be an offence, as opposed to when that person keeps his or her hatred to himself or herself or otherwise expresses it in a way that is not intended to incite violence.
Definition of “gender”
As stated above, this legislation is broader than the 1989 Act; it has a very wide definition of gender as being “the person’s preferred gender or [the gender] with which the person identifies”. I know some people have expressed misgivings about such an all-encompassing definition, but it is deliberately so: those who do not conform to binary, male/female concepts of gender, are exactly the people whom we know are probable targets for hate speech and hate crime.
Definition of “hate”
Finally, another criticism that has been made is that the term “hate” is not defined, the suggestion being that there is, therefore, some vagueness about what sort of behaviour will be unlawful. But I dispute that there is any confusion; we all know the kind of hateful and inciteful behaviour that will be banned by this law.
Perhaps the most important thing is that we create functional and functioning legislation, and not to repeat the ineffectiveness of the 1989 Act.
Conclusion
Those who are concerned about this legislation should not fear its contents. For those who ardently oppose it, I ask “what is it that you want to do or say that you think this bill will outlaw?”
This new legislation must send out a clear message that we as a community, and as a country, will not tolerate the hateful actions of a small few who compromise the free and peaceful enjoyment of living in a modern, progressive Ireland.
If we achieve that, Ireland will be a better place for us all.
Barry M Ward is Fine Gael Spokesperson on Justice in Seanad Éireann and a practising barrister.
