The Battle for Free Speech in Ireland Is Far From Over

The Irish Government has announced it is scrapping its plans to introduce significant updates to Ireland’s existing hate speech laws, as there is not enough support for the proposed legislation. Remarkably, the legislation had already passed the lower house of the Irish Parliament by an overwhelming margin (114 in favour, 10 against) in April 2023, but began to stall in the Senate as its more problematic features came to light. It had gained international notoriety when it came under fire from X’s CEO, Elon Musk.

Free speech advocates across the world should find solace in the fact that a regressive piece of legislation with dire implications for free speech, is now dead in the water, in spite of being a “sure thing” less than two years ago. This is a piece of legislation, after all, that had already comfortably passed in the lower house of Parliament, was supported by all major political parties, and was initially only resisted by a handful of journalists, politicians and political activists. The Irish Government had staked their reputation on the passage of this hate speech law, so they would not have withdrawn it at the last minute unless they had come under intense political pressure.

Ireland already has had hate speech legislation on its statute books for over 30 years: the 1989 Prohibition of Incitement to Hatred Act. However, that legislation set the bar for prosecution quite high, insisting on the need to demonstrate that someone is knowingly and/or intentionally inciting hatred. Consequently, only a handful of convictions have been secured in over 30 years.

The Government sought to remedy this situation by drafting the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill in 2022, which would have introduced a more stringent and wide-ranging hate speech regime in Ireland. Had it passed, the Hatred and Hate Offences Bill would have had the following legal effects:

In the 1989 legislation, categories protected from hate speech were race, religion, colour, nationality, membership of the travelling community or sexual orientation. The 2022 Bill expanded this list of protected characteristics to include gender, sex characteristic, disability and descent. So, the basis for pressing hate speech charges would have been significantly broadened, had this law been passed.
In the 1989 legislation, Gardaí (police) may seize physical objects from a person’s home during a search-and-seizure operation, if they “reasonably” suspect such objects contain offensive material that was intended to be published. The updated legislation would have given Gardaí the power to compel citizens to hand over passwords or encryption keys to access their privately stored data.
The 1989 legislation allows Gardaí to seize physical materials in the context of a search-and-seizure operation, while the new legislation explicitly authorised Gardaí to confiscate electronic data, but also to retain and copy it for as long as needed for the investigation.
The 1989 legislation allows someone charged with a hate speech offence to avoid prosecution by showing that he did not in fact intend to stir up hatred, and was unaware that the material in question was “threatening, abusive, or insulting”. The 2002 legislation would have made it easier to secure a prosecution, by allowing convictions in case an individual was “reckless” as to whether their actions could incite hatred.
The 2002 Hatred and Hate Offences Bill would have introduced steeper penalties for hate speech offences. Whereas the established penalty is up to two years in jail, the revised penalty is up to five years in jail.

In spite of the defeat of the Government’s new hate speech legislation, Ireland’s Justice Minister Helen McEntee is adamant that she will pass another version of this Bill, dealing with “hate crime” rather than “hate speech”, and has suggested the revised bill would retain the expanded list of protected characteristics, including “gender”. Furthermore, the 1989 Incitement to Hatred Act, which remains the law of the land, contains deeply problematic features, including the right to search private property based on a “reasonable suspicion” that an individual possesses offensive material intended for publication.

Thus, the battle for free speech in Ireland is far from over. Nevertheless, this was something of a David-and-Goliath situation: all major political parties had backed the Hatred and Hate Offences Bill, and it had already passed the lower house of the Parliament by an overwhelming margin – 114 votes in favour, 10 against. Only a handful of mainstream journalists in Ireland spoke out against the Hate Offences Bill. The Irish Council for Civil Liberties, along with numerous other NGOs, came out in its favour, and expressed “disappointment” that the Justice Minister was dropping all elements of it pertaining to hate speech.

So, this is certainly a victory free speech advocates should savour and learn from. A small but powerful coalition of voices and organisations, including Senator Michael McDowell, Free Speech Ireland, Elon Musk and ADF International, were able to make enough of an intelligent “ruckus” about the Hate Offences Bill to sink it. Champions of free speech across the world would do well to learn from this uphill victory.

David Thunder is a researcher and lecturer at the University of Navarra’s Institute for Culture and Society in Pamplona, Spain. This article was published by the Brownstone Institute from the author’s Substack.