Concern at Bill’s ‘overly broad’ list of defences for people accused of hate speech

Refugee rights organisation Nasc has raised concern that the defences open to a person accused of incitement to hatred remain “overly broad” in the proposed new law.

The Department of Justice published the Incitement to Violence or Hatred and Hate Offences Bill 2022 on Friday evening.

A number of organisations, including Nasc and Pavee Point – which represents the Travelling Community – raised concern about the defences listed in a draft version of the law last year during the Oireachtas Committee on Justice pre-legislative scrutiny meeting.

There was particular concern about the inclusion of political discourse in the list, with Pavee Point saying there had been hate speech directed against Travellers and Roma people during elections.

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Fiona Hurley, the policy manager of Nasc, told the committee that the defences were “more expansive” than those contained in the 1989 Incitement to Hatred Act.

The language on defences in the legislation published on Friday is similar to the earlier draft.

Literary and other discourses

It says it that in any proceedings for an offence in the incitement part of the Bill, it will be a defence to prove that the material concerned consisted of “a reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse”.

Ms Hurley told The Irish Times that Nasc “remains concerned” that the defences to incitement to hatred “remain overly broad”.

She added: “It is unclear to us what constitutes political discourse.

“Will speech that would otherwise constitute incitement to hatred from anyone standing or signalling their intent to stand for any public office be exempted?” she asked.

A Department of Justice spokesman said the recommendations from the pre-legislative scrutiny process were reviewed at great length and many have been reflected in the Bill.

He said the defences were kept “relatively broad” to allow for judicial discretion in their application.

He said: “Defining the defences further could result in them being overly prescriptive and only applicable in a narrow set of circumstances, while it is impossible to predict the breadth of situations where these defences may be required.”

On the defence of political discourse, he said “it will be the judge or jury that determines whether such a contribution was reasonable and genuine.”

He added that the threshold for inciting hatred is lower in the new Bill than in the previous 1989 legislation.

“The new legislation 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.

“Lowering the threshold to recklessness was widely welcomed in the submissions to the pre-legislative scrutiny process.”

Speaking ahead of the publication of the legislation, which covers hate crime as well as hate speech, Minister for Justice Helen McEntee said the Government “have worked hard to strike a balance” between protecting the right to free speech with “the protection of vulnerable and minority communities from dangerous hate speech”.’

‘Protected characteristics’

As The Irish Times revealed earlier this week, the new law, signed off by Cabinet on Tuesday, will criminalise incitement to hatred against people on a list of “protected characteristics” that includes race, colour, nationality, religion, ethnicity or national origin, sexual orientation, gender and disability.

A person who seeks to incite hatred against a person or group with one of these characteristics may be guilty of an offence which could carry a penalty of up to five years in prison.

The new legislation will repeal the previous incitement to hatred laws and is intended to make prosecutions easier.

However, the bar for a prosecution remains high given the list of defences and how a defendant must have deliberately intended to incite hatred or violence.

The Bill includes a general provision to further protect genuine freedom of expression and clarifies that a “communication” is not taken to incite violence or hatred solely on the basis that it involves discussion or criticism of matters related to one of the listed protected characteristics.

The Government intends to have the legislation enacted before the end of 2022.