Ireland clamping down harder on 'offensive' online content, making it easier secure convictions for 'hate crimes'

Ireland's Department of Justice is finalizing a new hate crime and hate speech law that will make it easier to secure prosecutions and convictions for crimes allegedly motivated by or judged to cause hate. Material that is sent or distributed (e.g., retweeted) and judged to be hateful will be dealt with under this law.

Helen McEntee, the Irish justice minister, indicated on July 13 that the new law, entitled the "Incitement to Violence or Hatred and Hate Crime" bill, will legislate for hate crimes by creating new, aggravated forms of certain existing criminal offenses, "where those offences are motivated by prejudice against a protected characteristic, which would include disability, religion, color, sexual orientation and gender (including gender expression and identity)."

Whereas previously in Ireland, which made hate speech a crime in 1989, prosecutors would have to establish "proof of someone's subjective motivation for committing an offense" — "what was in their mind at that exact moment" — Ireland will now alternatively or additionally use a so-called demonstration test. Accordingly, a crime may qualify as a hate crime if directed toward a member of a protected group or a protected characteristic.

The Irish Mirror reported that "all offences that were aggravated by a hate element will incur penalties that are higher than the ordinary form of the offense."

A harassment charge, for example, can be upgraded to a hate crime if it was directed at a protected class of person (e.g., transsexuals) or if it can be shown that there were accompanying "hostile or prejudiced slurs, gestures, other symbols or graffiti at the time of offending."

The Irish Department of Justice (IDOJ) admitted that this change is intended to rectify past difficulties establishing "motivation alone in proving hate crime offences."

Critics have suggested that this would constitute a shift in the burden of proof from those levying accusations of hatred to those who were accused.

According to Ireland's National Police and Security Service, a hate crime is any "criminal offence which is perceived by the victim or any other person to, in whole or in part, be motivated by hostility or prejudice." Perception, not intent, makes the crime.

If a criminal offense has not been committed, someone can still be accused of a "hate incident," having done or said something legal that is perceived to be motivated by hostility or prejudice.

The government claimed that the law will "contain robust safeguards for freedom of expression, such as protections for reasonable and genuine contributions to literary, artistic, political scientific or academic discourse." However, it is not clear whether expressions of religious belief (e.g., statements opposing abortion or gay "marriages") will be protected or meet the threshold for "criminal incitement to hatred," especially as it was omitted from the IDOJ's sample list.

In the early days of the legislation's development, the IDOJ issued a report indicating that "good faith" contributions to public debates would be permissible, but "a broadcast or speech which is clearly designed to incite hatred, but is couched in polite or coded language, would be covered by the new offence."

David Quinn, founder of the Christian advocacy group Iona Institute, argued in the Sunday Times earlier this year that this law would have a significant chilling effect on free speech and political discourse. He questioned whether a Raidió Teilifís Éireann 1 show that discussed transsexual issues, later accused by activist groups as having been "unacceptable, triggering and extremely harmful," would have been found guilty of "recklessness" and therefore treated as a protracted hate crime.

Quinn also suggested that the law might criminalize debates on immigration along with critiques of Islam, such as those advanced by Richard Dawkins, landing such speakers in jail. McEntee's unwillingness to factor in the likelihood that the law would be greatly abused for socio-political ends may be "a clear indication that neither she nor the government has a true commitment to free speech and that their intention is to limit the scope of public debate."

An IDOJ spokesman told the Irish Times that "a communication will not be taken to incite violence or hatred solely on the basis that it contains discussion or criticism – even if that might be offensive – of matters related to a protected characteristic."

It is presently unclear what will distinguish "offensive" material from, as the bill puts it, "extreme forms of hate speech that deliberately and recklessly incite or stir up acts of hostility, discrimination or violence."

An Irish repeat of the 2005 Jyllands-Posten Muhammad cartoons controversy may, for instance, test whatever distinction the IDOJ will arrive at in the language of the new law.

On the one hand, the Jyllands-Posten images, evidently offensive to some, might have fit the criteria of protected speech alluded to in the IDOJ's revelations about the forthcoming law (i.e., as contributions to artistic and political debates). However, with the IDOJ's suggestion that the result contra intent may be a determining factor, in such a scenario, the cartoons might have constituted hate crimes in light of the Islamist riots that followed, which resulted in nearly 250 deaths.

In a recent RTE article, two academics from University College Cork indicated that this law will most likely to target the "male working-class youth" and is being supported by "'progressive' leftist, feminist, anti-racist and LGBT+ political movements," who are "putting their trust in the state and its juridical institutions to do justice."

Recent hate speech laws elsewhere in the Anglosphere

Last year, Scotland passed the "Hate Crime and Public Order Bill," which made it a crime to "stir up hatred against protected groups."

The law reportedly builds on an understanding expressed by Lord Bracadale in his review of existing hate crime legislation, whereby "it would not be necessary for the prosecution to prove that there was an 'intent' on the part of an accused person to stir up hatred, rather that, having regards to all the circumstances, hatred in relation to a particular characteristic is 'likely to be stirred up thereby'."

Critics of the legislation noted that in a country with various groups all holding different and often opposing views, the bill "would undermine that freedom, most crucially among religious communities."

The Glasgow Guardian reported that one among the groups and institutions that criticized the bill was the Christian Institute, which stated, "Provisions on 'inflammatory material' could be used against Christian books, sermons by church ministers – even the Bible itself."

In Canada, Prime Minister Justin Trudeau's Liberal government — which passed the prescribed speech bill C-16 — is advancing Bills C-36 and Bill C-11. The latter is regarded by many as a "censorship law." Bill C-11 will update the country's Broadcasting Act and enable the Canadian Radio-television and Telecommunications Commission to regulate social media content created by Canadians.

Bill C-36, touted as a means of targeting online hate and extremism, would enable an accuser to take someone to court if they felt the accused had posted something hateful online.

Accordingly, "A person may, with the Attorney General's consent, lay an information before a provincial court judge if the person fears on reasonable grounds that another person will commit ... an offence motivated by bias, prejudice or hate based" on a multitude of grounds.

Much in the spirit of the forthcoming Irish law, C-36 amends the Canadian Human Rights Act to provide that "it is a discriminatory practice to communicate or cause to be communicated hate speech by the means of the Internet or other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination."

Reclaim the Net reported that this bill is similarly vague about what precisely constitutes "hate."