Hate speech online will become a crime under new legislation

New hate crime legislation will create new crimes for online hate speech, the justice minister has said.

Helen McEntee said she was “changing her approach” to the upcoming Incitement and Hate Crimes Bill to make it easier to secure prosecutions and convictions for hate crimes.

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

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

The law will also update previous hate speech legislation from 1989 to “more accurately reflect the current context, including hateful content online”.

Ireland does not currently have specific legislation dealing with hate crimes, but a hate motive is an aggravating factor that judges can take into account when determining sentencing. Aggravated offenses will generally be punishable by an aggravated penalty compared to the common law offence.

Demo test

Ms McEntee says she will now include a ‘demonstration test’ in the hate crime investigation in addition to the ‘motivational test’ as previously outlined in the Bill’s general scheme, which was released in 2021. The Oireachtas Justice Committee had recommended the demonstration test in April.

Ms McEntee said the change will result in the prosecution of serious crimes.

A Department of Justice statement said a hate crime motivation test “requires evidence of a person’s subjective motivation to commit an offense – what was in their mind at that particular moment.” .

However, Ms McEntee has now concluded that the sole motivation to prove hate crimes may be ‘difficult to establish and therefore may not result in a conviction’.

“A demonstration test simply means that a perpetrator manifests hatred towards a member of a protected group/characteristic at the time an offense is committed. This may involve, for example, the use of insults, gestures, other hostile or prejudiced symbols or graffiti. at the time of the offence.”

In addition, the Criminal Justice (Incitement to Violence or Hatred and Hate Crimes) Bill 2022 will repeal and replace the hate speech provisions of the Prohibition of Incitement Act 1989 to hatred. It will create new offenses to cover incitement to hatred against a person because they are associated with a protected characteristic, as well as the dissemination or distribution of material inciting hatred.

Intention or recklessness

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

Calls for hate crime legislation grew in April following the murders of Aidan Moffitt and Michael Snee in Sligo and the homophobic attack on Evan Somers in Dublin.

Ms McEntee said she was aiming for the full bill to be published in September and signed into law by the end of the year.

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