How the Government fails the ‘Pinocchio’ test in its answer to concerns about the ‘Hate Speech’ Bill. A correspondent of mine wrote to a Government TD about how the controversial ‘Hate Speech’ legislation could curb freedom of expression.
The reply, whether from Party headquarters or penned by the TD himself, was a masterpiece of spin and evasion. I analyse it here and give it the ‘Pinocchio’ fact-checker test:
The TD writes: ‘Hate crime is a real and lasting problem in Ireland today’
My response: Everyone knows that hate is an unpleasant feature of human relations. We will always need appropriate and proportionate responses to help reduce it. Most noteworthy here is that the TD wasn’t asked about the ‘hate crime’ aspect of the Bill (where existing offences such as assault are made more serious if proven to be motivated by hatred). My friend was concerned by limitations on free speech by the prohibition of incitement to ‘hatred’ – with ‘hatred’ so far undefined. If by ‘real and lasting problem’, the TD means ‘substantial problem’, there are no useful available figures on dangerous ‘hate speech’ amounting to crime…
TD: Ireland stands alone among European nations in not having introduced statutory protections from hate crime.
R: The TD has still chosen not to address the more controversial ‘hate speech’ element, focusing on the less controversial ‘hate crime’ part. Is he leaving his correspondent with the impression that we have no legislation banning speech that incites hatred? The 1989 Act is there, ready to be amended if needed.
TD: If the harm of hate is to be acknowledged and countered, it falls on us as legislators to act to provide a legislative framework for the explicit naming of bias crime.
R: Still talking about ‘hate crimes’ I notice, but is the Government admitting for the first time that it sees ‘hate’ as meaning ‘bias’? Is a Government Party finally revealing its hand on what it means by ‘hatred’ and why it has failed to define it in the Bill?
TD: ‘Ireland must join other nations in ensuring the violence of hate experienced by vulnerable individuals and communities is challenged head-on.’
R: Note that the TD does not say ‘violence caused by hate’ but ‘the violence of hate’. So ‘hate’ is automatically ‘violence’. And so ‘hate speech’ is violence? No. While speech should be criminalised if it incites violence, SPEECH ITSELF IS NOT VIOLENCE. There is international guidance here which the Government has ignored: “measures to combat hate speech should be appropriate and proportionate to the level of severity of its expression; some expressions of hate speech warrant a criminal law response, while others call for a civil or administrative law response, or should be dealt with through measures of a non-legal nature…”
TD: ‘(victims) remain at risk of repeated victimisation.’
R: A harsh law which is widely viewed as unjust may not be properly implemented for fear of injustice, and thus do little or nothing to dissuade the true haters. Alternatively, other people will be victimised by being deprived of their right to express legitimate views freely.
TD: ‘(this is) not an attempt to criminalise opinions and discourse, but to tackle extreme forms of hate speech that deliberately and recklessly incite or stir up acts of hostility, discrimination or violence’
R: Ah, look’it! The words ‘stir up’, ‘deliberately’, ‘extreme’ and ‘hostility’ are absent from the new Bill. Those words could have been included. The Bill does not distinguish extreme forms of hatred from stupidity, or from opinionated or robust speech. The European standard for freedom of expression allows for words that ‘offend, shock or disturb the State or any sector of the population.’
TD: While freedom of speech is enshrined in both the Constitution and the European Convention on Human Rights, limits may be placed on it by law in order to protect other fundamental rights.
R: Agreed, but the international way proposes: ‘the exercise of the right to freedom of expression carries with it duties and responsibilities’ and that ‘any restriction of this right must…. (be) narrowly construed and comply with the requirements of lawfulness, necessity and proportionality to the legitimate aims.’
TD: ‘The Bill takes a balanced approach in protecting freedom of expression and ensuring that the rights of minority and vulnerable communities are protected from hate speech.’
R: A lack of balance has dogged this Bill going back to the first public consultations in 2019. By not defining ‘hatred’ and by effectively penalising a thought crime, this Bill, if enacted, will have a chilling effect on the free speech rights of anyone who wishes to publicly contradict, for example, a government narrative on a controversial issue of the day. Its vagueness will invite ‘pile-ons’ by those who feel they have a right not to be offended, getting social media platforms to silence certain voices.
TD: ‘The inclusion of a general provision to further protect genuine freedom of expression, including genuine contributions to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting…’
R: Section 11, on ‘Freedom of Expression’ was inserted as an afterthought and adds nothing. Journalists and politicians may not feel the heat with their ‘genuine’ contributions but the woman with the placard defending womanhood will. People should not have to wait until they are before a judge and jury to find out whether their robust freedom of expression has put them outside the law. The verdict: For failing to acknowledge existing statutory measures against ‘incitement to hatred’, for equating ‘hate’ with ‘bias’, for suggesting ‘hate’ is ‘violence’, and for suggesting that certain key words might be in the Bill when they are in fact absent – four Pinocchios is the appropriate response to the TD’s letter. Not much direct falsehood, but a misleading idea in nearly every paragraph. I also note that the TD’s (standard?) letter gave no explanation for the smuggling of a controversial new definition for ‘gender’ into the Bill, another issue that his correspondent raised. Please continue to make your views known…