Holocaust denial may become an offence under new legislation

Forthcoming hate speech legislation could make the denial or minimalisation of genocides such as the Holocaust an offence in the Republic, The Irish Times understands.

Holocaust denial or trivialisation is a crime in many European countries, including France and Germany.

The introduction of similar legislation is to be examined by Department of Justice officials over the coming months as part of a new suite of hate crime and hate speech laws due to come before Cabinet sometime around Easter 2021.

Yesterday, Minister for Justice Helen McEntee launched a series of recommendations for the enactment of the laws criminalising the publishing or sharing of hate speech online where there is an intent to incite violence.

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The topic of genocide denial was not examined in detail by department officials prior during the consultation process and is not mentioned in the report. The issue is not believed to be a major problem in Ireland.

Obligations

However, officials believe there is a general international principle that modern hate speech laws should include laws against the minimalisation or denial of genocides, including the murder of 17 million people by the Nazi regime before and during the second World War.

There is also a belief among officials that Ireland will be expected under certain international obligations to include such a provision.

In 2008, the Council of the European Union passed a non-binding framework decision calling for the criminalisation of the denial of genocide, crimes against humanity and war crimes when that conduct is likely to incite hate or violence.

Under the directive, genocide is defined by the International Criminal Court and the Charter of the International Military Tribunal, the tribunal set up to prosecute Nazi war criminals.

It is understood any provision in Irish law would criminalise the denial of all genocides, not just the Holocaust, in circumstances where such action could incite hate.

The introduction of laws against genocide denial in other countries have been upheld by the European Court of Human Rights which found they do not breach the right to freedom of expression.

Speaking yesterday at the launch of the department’s report, Ms McEntee said the proposed hate speech laws will not be about “catching people out” for misspeaking.

Offence

Instead, the legislation will target people who “intentionally or recklessly” incite hatred against individuals or groups.

The test for criminal hate speech will be the perpetrator’s intentions, not how the speech was perceived by the victim.

The Bill will list trans people and people with disabilities, alongside already protected groups such as other members of the LGBT community people, refugees, immigrants, Travellers and ethnic and religious groups.

Asked if it will be an offence to misgender a trans person or use their former name, Mr McEntee said: “We’re not trying to catch people out, this is not something you can stumble into by accident. This is not about somebody causing offence to somebody else or misspeaking.

“What is very clear is we’re talking about a intention or recklessness to incite hatred against one individual or a group of people.”

The Minister said she was legislating for a “very serious type of crime that has very serious consequences for individuals. But this isn’t about somebody who might say something without intending to cause harm.

“That would obviously be a much wider scope and it wouldn’t be implementable.”