James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank the Deputies for their proposed amendments. They propose removing the defence of a reasonable and genuine contribution to religious discourse and expanding on the provisions of section 11, which provide protection for freedom of expression, to include the right to express ideas that shock, offend or disturb. In this regard, the freedom to express and practice religion is protected under the Constitution and the European Convention on Human Rights. Accordingly, religion is considered to merit a similar level of protection as literary, artistic, political, scientific or academic discourse. Under the provisions of the Bill, it will be important for persons accused of these offences to have an opportunity to defend themselves if they believe what they were saying was reasonable. For example, if a person is writing an academic paper on the portrayal of a race in literature over time and includes problematic quotes from older pieces of literature, this paper would be considered a reasonable contribution to academic and literary discourse. It would be a matter for a court to determine if the use of this defence is permissible in the circumstances of any individual case. Furthermore, these offences were examined at length by the Attorney General and I am advised that they are in order as currently drafted.

Similarly, the freedom of expression provision in section 11 has been carefully drafted in consultation with the Office of the Attorney General and clarifies that for the purpose of this Part of the Bill, a communication is not taken to incite violence or hatred solely on the basis that it involves discussion or criticism of matters relating to a protected characteristic. This is important as it sets a clear bar for the courts to assist them in determining what is incitement to violence or hatred. It is important to stress that the section was expressly drafted in line with the ECHR, does not create a defence for persons who are accused of incitement to violence or hatred and, therefore, cannot be exploited or abused by people who incite hatred to try to avoid a conviction. Only the most severe types of speech that constitute incitement to violence or hatred would be criminalised under the Bill. Discussion of protected characteristics, including criticism of matters relating to protected characteristics, is not a crime unless it crosses the line into incitement to violence or hatred. This remains a high bar and is not something into which people would just fall.

This provision under section 11 is set out as it stands to put beyond doubt that there will not be an offence to hold and express particular views unless this very high bar is cleared. The Deputies who tabled the amendment seek to expand this provision to include the general principle that the right applies to the expression of information or ideas that offend, shock or disturb. This was considered by my Department and the view of the Attorney General was sought on the issue. The legal advice is clear. These words do not capture all aspects of freedom of expression that might have a detrimental effect on a victim without reaching the standard required for an incitement of violence or hatred offence. By singling out such material in particular, there would be the risk of inference that other aspects of freedom of expression, such as the right to dislike a person, are not protected The inclusion of a provision worded in this way could result in the unintended consequence of creating a defence that highly offensive or shocking forms of expression that may otherwise be an offence under this Part would be protected under this section. It is possible that a provision of this nature could be abused by a person convicted of incitement to avoid a conviction that would otherwise be entirely warranted. Accordingly, I cannot agree with these amendments.

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