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Wednesday 29 November 2023 Dublin: 1°C
Sam Boal
Hate speech

New laws on hate speech includes provision to protect freedom of expression, says minister

Government has been called on to ensure new laws comply with principles of proportionality and necessity.

NEW LEGISLATION TO criminalise hate crime and hate speech is expected to become law before the end of the year.

Justice Minister Helen McEntee today published the new laws that will criminalise hate speech and legislate against hate crimes for the first time in Irish law.

Earlier drafts of the bill have been updated to include the clear provision to protect genuine freedom of expression, according to McEntee.

Cabinet approved the publication of the new legislation, which will add gender, including gender expression and identity to a list of “protected characteristics” which will also include race, colour, disability, nationality, religion, ethnicity or national origin and sexual orientation.

The Incitement to Violence or Hatred and Hate Offences Bill 2022 will criminalise any intentional or reckless communication or behaviour that is likely to incite violence or hatred against a person or persons because they are associated with a protected characteristic.

Penalty of five years in prison

The penalty for this offence will be up to five years imprisonment

It will also create new, aggravated forms of certain existing criminal offences, where those offences are motivated by hatred of a protected characteristic.

These will carry an enhanced penalty and the criminal record will clearly state that the offence was a hate crime.

A number of changes have been made to the bill since earlier this year, including a provision to further protect genuine freedom of expression.

It is clarified in the bill that a communication is not taken to incite violence or hatred solely on the basis that it involves discussion or criticism of matters relating to a protected characteristic.

Other changes include the inclusion of a demonstration test for hate crimes to make it easier to secure prosecutions and convictions for crimes motivated by hate.

This is in addition or can be used as an alternative to a motivation test, which was included in the general scheme of the bill when it was published in April.

A motivation test for hate crime requires proof of someone’s subjective motivation for committing an offence – what was in their mind at that exact moment.

However, the minister concluded that motivation alone in proving hate crime offences can be difficult to establish and therefore might not result in a conviction.

Therefore, she has recommended that a demonstration test of proof be included in the legislation, which simply means that a perpetrator demonstrates hatred towards a member of a protected group/characteristic at the time of an offence being committed.

An example of this might involve the use of hostile or prejudiced slurs, gestures, other symbols or graffiti at the time of offending.

Proof of offence

In practice, it means that by using a demonstration test, the prosecution does not necessarily have to get inside the mind of a perpetrator to prove the crime but can use a demonstration test as an alternative method of proving a crime committed is a hate crime.

Speaking about the new laws, McEntee said”

We are all horrified when we hear of homophobic, racist, and other hateful incidents in our country. While these repulsive acts of violence and abuse against innocent people have been extensively reported on, we know that some people go about their lives constantly in fear of abuse simply because of who they are.

“Although it is a small minority of individuals carrying out these reprehensible acts and spouting this abuse, there is a clear desire from the public that these individuals need to be dealt with in the appropriate way.

“This Bill provides separately for hate crime and for hate speech, but on the basis of the same protected characteristics.

“All provisions throughout the Bill have been carefully developed to ensure it is victim-centred and effective in securing convictions where serious crimes are committed, and the legislation follows extensive public consultation and research,” she said.

Broadening protections

McEntee said the protected characteristics are further reaching than those in the 1989 Act and are in line with international best practice.

“They were chosen following extensive public consultation where vulnerable and minority communities shared the characteristics which are most commonly targeted.

“The new offences will allow for the ‘hate criminal’ label to follow an offender in court, in garda vetting, and so on, and the data gathered will give a fuller picture on the prevalence of different kinds of hate incidents in Ireland,” she added. 

McEntee said she wanted to assure the public that the Government has worked hard to “strike a balance” in this bill “in protecting the right to free speech with protection of vulnerable and minority communities from dangerous hate speech”.

“There are protections for freedom of expression built into this legislation. But ultimately, hate speech is not about free speech. Hate speech is designed to shut people down, to shut them up, to make them afraid to say who they are and to exclude and isolate them.

“There is nothing free about that, and there is, frankly, no place for it in our society,” she said.

Freedom of expression

The Coalition Against Hate Crime Ireland, which is a group made of 21 civil society organisations representing communities commonly targeted by hate crime and hate speech in Ireland  –  including the Irish Council for Civil Liberties (ICCL), Irish Network Against Racism (INAR), Irish Traveller Movement (ITM), LGBT Ireland, and Nasc (Migrant and Refugee Rights Centre)  – to name but a few, welcomed the new legislation.

The group called the law “long overdue”.

However, the coalition is also calling for better engagement with impacted communities and civil society organisations as the bill progresses through the Oireachtas. 

The Coalition Against Hate Crime, which is led by the ICCL’s Equality and Hate Crime Policy Officer and Chair of the Coalition, Luna Lara Liboni, said:

“Hate Crimes send minorities the message they are not welcome in Ireland. Such crimes have a ripple effect, impacting individuals, communities and society as a whole. It’s essential we introduce effective legislation to send an even clearer message: nobody should be targeted because of who they are. This Bill is therefore very welcome.”

She said the group will be calling on the Government to ensure that the bill complies with international human rights standards, including on the protection of freedom of expression and that it complies with principles of proportionality and necessity.

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