James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank the Deputy for his contribution. He is correct that during the Committee Stage debate on this Bill, this matter was discussed. This same amendment was proposed to delete section 10 of the Bill, which creates an offence of preparing or possessing material likely to incite violence or hatred against persons on account of their protected characteristics. The Deputies have again proposed the deletion of the section in its entirety. I must reaffirm the previously stated position on this. It is fundamentally important to retain the latitude to prosecute an individual who has created content that would incite violence or hatred against vulnerable individuals or groups, but whose material has been intercepted before it is shared publicly.

During the Committee Stage debate, a comment was made, which equated the inclusion of this section as an attempt to legislate for "thought crime". I thoroughly refute this assertion. An individual who has prepared a manifesto inciting violence against a group of persons with a protected characteristic or a social media post inciting dangerous levels of hatred against a minority group should still be held responsible for their actions, even if An Garda Síochána manage to intervene before the material becomes public.

We have consistently striven to carve out the appropriate defences and protections for freedom of expression in this Bill. As the Deputies will be aware, section 10(2) of the Bill expressly provides for protections that can be availed of. The first of these is intentionally wide in scope in that it allows for a defence to be utilised if the material that is in question "consisted solely of a reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse".

The use of the phrase "reasonable and genuine contribution" is the key to this provision. In the context of literary, artistic, political, scientific, religious or academic discourse, it allows for a contribution that is considered by a reasonable person, including a judge or jury, as being reasonably necessary in the context of a debate or discussion involving a protected characteristic. While it would not be acceptable to publish an explicitly racist paper which incites hatred, the defence of a genuine contribution to academic or political discourse could apply to a person who is genuinely researching a fascist group, for example, and is, therefore, in possession of material that could be deemed hate speech in the course of their research. The context is key here and I am satisfied that this provision allows for a nuanced approach to its implementation.

In summary, the inclusion of section 10 is specifically to capture those instances where there has been a successful operation to stop communication of material or behaviour that clearly constitutes incitement to violence or hatred against a person or group of persons on account of their protected characteristics. These provisions do not apply to an individual who is preparing or possessing such material for reasons which are non-criminal.

As with every aspect of this legislation, individual situations will be assessed by An Garda Síochána and the Director of Public Prosecutions to assess whether an offence under this section has occurred. As this "preparation and possession of material" offence already exists under the 1989 Act, it would be inappropriate to remove this provision, and to do so would inevitably result in persons who are clearly intending to incite violence or hatred avoiding prosecution in certain circumstances. For these reasons, I cannot accept the amendment.

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