Planned hate speech laws will contain higher bar for prosecution

The Government’s planned hate speech laws will contain a significantly higher bar for prosecution compared to similar laws that have led to controversial court cases in the UK.

Minister for Justice Helen McEntee will on Thursday produce draft legislative proposals to greatly strengthen the State’s ability to tackle hate speech levelled against minorities.

The planned Bill will also contain stronger sentences for existing crimes, where it can be shown that the alleged offender was motivated by hate for an ethnic, or religious group.

Preparing the draft, Department of Justice officials examined hate speech laws in other countries, including the UK where similar legislation has been the subject of intense debate in recent years.

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Given fears about the rights to free speech, it will contain several safeguards to ensure the laws do not unnecessarily impinge on the constitutional right to freedom of expression. Chief among these is a recommendation of protections for “contributions to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting”, the report states.

Furthermore, unlike in the UK, the test for hate speech will be objective rather than subjective. There, speech can be treated as hateful if another member of the public believes it to be hateful. However under the Irish proposals, specific and pre-existing guidelines will be used to determine if speech is hateful, not just whether the alleged victim felt they were the victim of a hate attack.

A person may be prosecuted for deliberately taking part in hate speech and for recklessly taking part in hate speech, for example where inciting hatred was not their main goal but they knew it was a likely outcome.

However someone who negligently, without intent, engages in hate speech will not have committed an offence.

“Thresholds for criminal incitement to hatred should be high, for example incitement to harm or unlawful discrimination”, the report states. However it will not be required to show that someone was influenced by the speech “or persuaded to act upon it.”

Education

Prosecutions should “always be the measure of last resort”, it says.

“There is no doubt that criminal legislation alone will not solve the problem of hate speech, and is not suitable for dealing with many of the milder forms, which although harmful and far-reaching in their negative effects, do not reach the threshold for criminal prosecution.”

Instead education and awareness will be key, says the department. Protected categories will include people of different ethnic backgrounds, religions and sexual orientations. It will also include transgender people and people with a disability.

Travellers will be explicitly included as a protected group.

“It was widely recognised by contributors to our consultation that Travellers are relentlessly targeted by hate speech, and that a significant portion of this is dismissed by mainstream opinion as if it were unintentional, or defended as if it were accurate.”

During the consultation process, 4,000 submissions were received with some arguing that socio-economic status, employment and homelessness should be included as protected categories. These suggestions have not been followed.

The Government is concerned that debate on the proposed Bill will be hijacked by far-right, anti-immigration or anti-LGBT elements, who argue that the State is trying to reduce their rights.

Many of the submissions to the department came from such activists, including several well-known far-right individuals. Nineteen per cent of the submissions came from the US, UK and Canada.