Legislation in place against hate speech for almost 35 years is ineffective, limited and largely discredited, she said.
The Prohibition of Incitement to Hatred Act 1989, which will be repealed and replaced by the bill, has resulted in around 50 convictions, of which many were successfully appealed.
Incitement
The incitement offences under the 1989 act are updated to encompass any communication or behaviour that intentionally or recklessly incites hatred or violence.
The minister said that the bill simplifies the core incitement offence and sets the standard at “recklessly or intentionally inciting hatred”.
Recklessness is a very common feature in criminal law, she stated, though very challenging to prove.
“The core purpose of developing this legislation is to ensure that vulnerable and minority communities can feel safe,” the minister stated.
Hate speech is already a crime in Ireland, she said, and the legislation was developed as a EU Framework Decision requirement.
Protected characteristics set out in section 3 of the bill include:
- Race,
- Colour,
- Nationality,
- Religion,
- National or ethnic origin,
- Descent,
- Gender,
- Sex characteristics,
- Sexual orientation, and
- Disability.
These protected characteristics were selected after “public consultation and submissions from key stakeholders”, the minister stated.
‘Gender’ as a protected characteristic expressly provides for gender expression or identity in order to include transgender and non-binary persons, she stated.
No one has a right not to be offended, the minister said.
“The right to freedom of expression and freedom of speech are vital rights in any democratic society. These rights are protected by the Irish Constitution and the European Convention of Human Rights.
“You have a right to express your convictions and your opinions, no matter how unpopular they might be. You have a right to be divisive and argumentative, a right to offend others and to hold political opinions which are not the mainstream,” she added.
Freedom of expression
Section 11 of the bill explicitly provides protection for freedom of expression. Discussion or criticism of matters relating to a protected characteristic does not constitute incitement to hatred in and of itself, she said.
The bill makes an offence of preparing or possessing material (such as posters or leaflets) likely to incite violence or hatred, even if the material has not yet been shared or made public.
The intention to disseminate harmful material that would stir up violence or hatred would need to be proved in court beyond a reasonable doubt, the minister stated.
“This provision is being carried over from the 1989 act into the new legislation in order to cover situations where material might be intercepted before it is communicated; for example in the case of a person travelling to a rally with far-right posters, expressly inciting hatred or violence, in their car or backpack,” she said.
Wide criticism
The bill has been subject to wide criticism, including from People Before Profit, Aontú, independent TDs and various commentators, including Elon Musk and Donald Trump Junior.
Paul Murphy TD said the bill will establish ‘thought crimes’ by including material on a computer, but not disseminated.
Senator Michael McDowell and Senator Ronan Mullen have also sought clarification on the definition of ‘gender’ in the bill.
The definition of ‘gender’ in the draft is: “‘Gender’ means the gender of a person or the gender which a person expresses as the person’s preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female...”
Senator McDowell has asked why the draft legislation has been expanded from gender definitions included in previous legislation, and asked what is intended by the term ‘transgender’ and the phrase “a gender other than those of male and female”.
The senator points out that the Gender Recognition Act has a binary definition of gender, in that it “provides that a gender-recognition certificate has effect that if the preferred gender is the male gender, the person’s sex becomes that of a man, and if the female gender, the person’s sex becomes that of a woman”.
Understanding meaning
The Irish Times reports that Senator McDowell wrote to the minister saying: “Since one of the purposes of the bill is to expand the concept of protected characteristics ... it seems to me to be important that members of the Seanad, including myself, should understand the meaning of the phrases “transgender” and “a gender other than those of male and female”.”
“The purpose of this letter is, in advance of the second stage debate in the Seanad, to obtain absolute clarity as to what you, as proposer of the bill, intend these terms to mean. I must ask the following questions: a) Is transgender a gender for the purposes of Irish law? And b) Can you specify what is meant, in addition to transgender, by “any gender other than those of male and female”?”
Senator Ronan Mullen said the Government was “smuggling a radical new definition of gender into an already controversial hate-speech law”.