Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 92:

In page 49, to delete lines 14 and 15.

I understand that the intention here, an intention that is shared by many of us present, is to address through the legislation certain matters. I have highlighted the issue of harmful content and, as the Minister will be aware, I have also advocated for addressing harmful conduct. There are concerns, however, in respect of how widely this might be interpreted and how it is framed. We need far more clarity on this.

Section 46J(1)(a) refers to "anything which may reasonably be regarded as causing harm or offence". That is so wide and potentially widely interpreted that it could lead to a significant curtailment of any form of engagement and could also create an unfair and unequal power dynamic whereby those who are resourced to assert their rights under this legislation can effectively have a chilling and silencing effect on those who may not have those resources.

I recently launched a new respect policy in NUI, Galway. It has a new process for the development of a respect charter. It is a really positive initiative. One of the interesting discussions there in the context of discussing respect and what is harmful or offensive was that one does not want it to be framed as offensive if one does not use exact, perfect and polite language, and for that to, effectively, be weaponised against those who are marginalised already in order to inhibit their voices. A power analysis is needed, effectively.

In considering respect, offence and power, we need to also consider what is the situation. For example, the legislation may have a silencing effect. A person with significant power and resources could effectively silence any individual who may not have any of the same equipment of power and who criticises that person or asks a question. That is my concern. That is why amendment No. 93, which is, perhaps, the more nuanced of the two in this grouping, seeks to get to what I hope is the intention, that is, to address harmful practices.

I say this as one who supports hate legislation and action on hate speech. I believe that is something we need to do in order to ensure an equality of participation in public life. It is part of freedom of expression that we address issues such as abusive contact, harassment or hate speech because those silence people and prevent them from being able to participate in public life equally. That is why amendment No. 93 seeks to replace the language in the section. The amendment would prohibit the broadcast of "anything that may reasonably be regarded as causing harm to a group of persons, or a member of a group, based on any of the grounds referred to in Article 21 of the Charter". That mirrors the language in section 46J(d), which refers to "anything which may reasonably be regarded as likely to incite to violence or hatred directed against a group of persons, or a member of a group".

I accept that the incitement against hatred provision has been too narrow and inadequate in addressing the targeting and harm that is done. That is why I can see there is need for something more than that, such as the provision in 46J(d). However, this very wide provision in the section as it stands in terms of "harm or offence" will basically allow the stating of offence to be a mechanism for those in power, possibly those making important decisions that affect people's lives, to silence criticism.

Amendment No. 93 is clear that it is doing what we need to do, which is to build on and go further than the incitement against or hatred or violence and nip it in the bud by addressing messages that cause harm or offence. It does not mean that every interaction on the Internet is covered. It really means that we are protecting those who are vulnerable and have been recognised by the equality Act as needing protection in terms of their equality and equality of participation.

Amendment No. 92 involves a straight removal, while amendment No. 93 takes a nuanced approach. I am concerned that the current phrasing is so wide that its interpretability could mean that it ends up disadvantaging or even being weaponised against those who may fall under those protected categories under the charter or, potentially, equality legislation.