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
