THE FACT OF THE MATTER
Before the Oireachtas we have a new law purporting to banish ‘hate speech’. The Incitement to Hatred Bill 2022 has passed the Dáil and is before the Seanad. No doubt, this was conceived with the best of intentions and may, hopefully – or, indeed inadvertently, may not – go some way to prevent both verbal and physical assaults on people out of a sense of venomous hared.
Last year saw a recorded 582 hate crimes in Ireland.
Leo Varadkar recently condemned a hate crime attack on a 14-year-old boy and also criticised the bystanders as no one intervened to help him. “The young man who was in that video. I really feel for him. He shouldn’t have been subjected to that violence. He shouldn’t have been humiliated by having that video posted online,” he said. “It is a very sick type of individual who posts videos.”
Mr Varadkar said social media companies have a significant role in taking down content quickly and cancelling accounts of people who post and repost footage like this. He said proposals to establish an online regulator and an online safety commissioner would provide more power and it would require companies to take down content like this and impose fines also.
Quite right, the criminal justice system should deal more robustly with such crimes. That said, the Bill before the Seanad banning ‘hate speech’ could be argued to be somewhat problematic. For starters, no one has defined exactly what ‘hate speech’ is, as it largely depends on how people perceive it. There is the argument, too, that the Bill opens the door to unwarranted State intrusion into the ‘free speech’ of citizens. And, is there real evidence that hate speech is linked with violence and crime?
I would argue yes to the latter, as evidenced by the small but insidious growth of the far-right in this country and that likely played a role in the recent attacks on refugees in Dublin and on the ongoing scenario in Inch, Co Clare which is not – quite definitely not – all motivated by concern over the lack of amenities for the asylum seekers at the centre of the local protests.
The updated ‘hate’ legislation will add a ‘demonstration test’, where prosecutors can rely on the use of hostile or prejudiced slurs, gestures or symbols at the time of offending, in order to make it easier to secure prosecutions. The legislation is arguably long awaited as Ireland does not currently have specific laws dealing with hate crime.
The law will legislate for such crimes by creating new, aggravated forms of certain existing criminal offences, where those offences are motivated by prejudice against a protected characteristic such as race, colour, nationality, religion, ethnic or national origin, sexual orientation, gender and disability. The aggravated offences will generally carry a heavier penalty compared to the ordinary offence.
The Bill also introduces a new offence of condoning, denying, or grossly trivialising genocide, war crimes, crimes against humanity and crimes against peace.
The legislation has drawn notice from unusual quarters through the global reach of social media: Donald Trump Jnr, son of the former US president, has described the Bill as “insane”, while Elon Musk, the billionaire owner of Twitter, has tweeted that the proposed legislation is “very concerning”.
Introduced last year by Minister for Justice Helen McEntee, the Bill is being steered through the Oireachtas by Simon Harris who is standing in for Ms McEntee while she is on maternity leave.
Hatred directed against one group certainly is poisonous. Nazi Germany’s vile antisemitic publications hugely contributed to the crimes against Jewish people. What is going on in Myanmar and de facto with Putin is hate-driven. Our own Troubles on this island for 30 years plus was, in part, driven by the hatred of one community for the other.
That said, there is a balance between freedom of expression and due consideration for the impact your words may have. The Bill purports to include measures designed to protect freedom of expression around protected characteristics, but arguably could see a return to the past pattern of damaging censorship.
Perhaps, politicians should reflect on that legacy while giving careful consideration to the proposed measures.
What is that adage about hard cases making for bad law…