The prosecution, let alone successful prosecution, of those inciting hatred, whether for racial, religious, gender, or sexual preference grounds, has been exceedingly rare. Largely, lawyers say, that is because of the requirement of the Prohibition of Incitement to Hatred Act (1989) for proof that the accused either intended to, or in the circumstances was likely to, stir up hatred. The State has been marginally more successful in using anti-hate-crime provisions to reclassify some offences as “aggravated”, carrying stiffer sentences.
The first hate speech conviction successfully brought under the Act, in July 2000, which saw a bus driver convicted for racially abusing and assaulting a passenger, was overturned a year later. There have been few if any attempts since then to prosecute hate speech. But hate speech, as members of minority communities will readily testify, is not a rare phenomenon. Many go about their lives constantly in fear of abuse simply because of who they are.
So the publication on Friday, following Cabinet approval, of the Incitement to Violence or Hatred and Hate Offences Bill (2022) is a welcome attempt both to make prosecution easier and to prohibit and penalise transphobic speech . On pain of potential imprisonment, increased to up to five years, the Act will criminalise intentional or reckless communication or behaviour likely to incite violence or hatred against anyone because they are associated with a protected characteristic.
The protected characteristics in the new Act are race, colour, nationality, religion, national or ethnic origin, sexual orientation, and with the new categories, descent, gender, disability, and sex characteristics .
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To protect free speech, Minister Helen McEntee has also included an important general provision to protect discussion or criticism of matters relating to such protected characteristic. While the availability of such a defence may make conviction more difficult, she has also sought to remove the high bar of requiring prosecutors to prove an accused is “motivated” by hate. Such a requirement will be supplemented with the alternative of an objective “demonstration test” in which the court will hear of the accused’s behaviour at the time of the alleged offence.
Importantly, the legislation will dovetail with provisions in other legislation which is attempting to regulate social media, placing new obligations on the owners of platforms.
The new Act is unlikely to lead to a wave of prosecutions. Using it will remain complex and unwieldy. But the enacting of such legislation will send out an important message about the social unacceptability of hate speech in a democratic society, and the requirement on the Garda to take complaints seriously. Respect is ultimately a cultural rather than legal pillar of our society.