12th March 2024

To kickstart Spring, The Criminal Justice (Incitement to violence or hatred and hate offenses) Bill 2022 was debated this morning with our contributor Seamus Gunn comparing the latest proposed legislation to the Incitement to Hatred Act of 1989, drawing distinctions in the particular Defences open to a prosecution in respect of the latter as against the new proposed legislation which is currently before the Senate, having passed though the Dáil prior to Christmas, without any major issues. 

He said that this was all in the context of the riots in November last, for which there were 2 persons now charged before the Courts. He said that he was of the view that knee-jerk legislation can give rise to difficulties going forward so it was best that the matter was stalled and as it is now at the committee stage in the Senate. There were some issues with which he had reservations. He agreed that the old legislation was not fit for purpose in the current digital media world and that prosecutions were problematic in this area up to now as intention had to be established on the part of the publisher of threatening, abusive or insulting material, that it was likely to stir up hatred against a group of people. Greg Hughes referenced the protective characteristics which are cited in the new legislation to include race, colour, nationality, descent, religion, ethnic or national origin, gender, sexual orientation or disability. Our contributor said that he was of the view that the thrust of the legislation was to make it easier to call people to account before the Courts and to secure convictions. He was however concerned about a particular section which gave powers to the Gardai in relation to warrants to enter individual’s private homes and seize media devices to include phones, computers, etc. and also the power to obtain passwords for these devices from the individual suspected of having content, whether or not it was communicated, that could give rise to a charge for incitement to violence or hatred. He made it clear that free speech was protected in the proposed legislation but that there were difficulties with situations where an individual could innocently have received a text or message on social media, retained it and as a result were therefore committing an offence. He said that people were still entitled to voice offensive opinions on such matters and to make others feel uncomfortable, but this did not extend to voicing or broadcasting such opinions that, on any reasonable interpretation, could give rise to inciting hatred in others. He said that there was a thin line between the 2 but he thought that it was necessary to have this deterrent on the Statue Books. Greg Hughes and Seamus Gunn agreed that such issues should be debated, and Gunn thought they should be objectively assessed and if this legislation worked as a warning for one to take stock and consider the consequences of their actions for others, this would be a step in the right direction. But he had reservations about the implementation and policing of it going forward. More to follow as the Bill has not yet been enacted.