Online hate speech to become a crime under new legislation

The new law will legislate for hate crimes by creating new and aggravated forms of certain existing criminal offences if the offence is motivated by prejudice against one of eight protected characteristics.

Ms McEntee added that the legislation would provide “teeth” to combat hate crime and make it easier to secure convictions.

“We all have a right to be safe, to feel safe,” she told RTÉ radio and Newstalk.  

The protected characteristics are race, colour, nationality, religion, ethnic or national origin, sexual orientation, gender (including gender expression and identity), and disability.

The law will also update the previous 1989 legislation on hate speech to "reflect the current context more accurately; including online hateful content".

The legislation would cover all forms of media, including online and social media. Hosting companies were “onboard” with the new legislation, and knew that they would have to show that they made every effort to remove offending content.

Ms McEntee said there would be clear safeguards to protect free speech and debate, but a high bar would have to be created and she wanted hate crime and incitement to commit acts of violence to be prosecutable.

Ireland does not currently have specific legislation dealing with hate crime but a hate motive is an aggravating factor that judges can take into account when sentencing. Aggravated offences will generally carry an enhanced penalty compared to the ordinary offence.

Demonstration test

Ms McEntee says that she will now include a "demonstration test" in the investigation of hate crimes in addition to the "motivation test" as previously outlined in the General Scheme of the Bill, which was published in 2021. The Oireachtas justice committee had recommended the demonstration test in April.

Ms McEntee said that this change will result in prosecutions where serious crimes are committed.

A Department of Justice statement said that a motivation test for hate crime "requires proof of someone’s subjective motivation for committing an offence — what was in their mind at that exact moment".

However, Ms McEntee has now concluded that motivation alone in proving hate crime offences can be "difficult to establish and therefore might not result in a conviction".

"A demonstration test means simply that a perpetrator demonstrates hatred towards a member of a protected group/characteristic at the time of an offence being committed. This might involve, for example, the use of hostile or prejudiced slurs, gestures, other symbols or graffiti at the time of offending."

In addition, the Criminal Justice (Incitement to Violence or Hatred and Hate Crime) Bill 2022 will repeal and replace the hate speech provisions in the Prohibition of Incitement to Hatred Act 1989. It will create new offences to cover inciting hatred against a person because they are associated with a protected characteristic, and also disseminating or distributing material inciting hatred.

Intent or recklessness

The new legislation will set the threshold for criminal incitement to hatred as intent or recklessness. This means a person must either have deliberately set out to incite hatred, or at the very least have considered whether what they were doing would incite hatred, concluded that it was significantly likely, and decided to press ahead anyway.

Calls for hate crime legislation grew in April after the killings of Aidan Moffitt and Michael Snee in Sligo and the homophobic assault of Evan Somers in Dublin.

Work on the new Bill had commenced in 2019, Ms McEntee said. There had been consultation with different groups and individuals. Ms McEntee added that there had been pre legislative scrutiny which led to recommendations that she “took on board.”

Ms McEntee said that she aims to have the full bill published in September and enacted by the end of the year.