Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 75:

In page 49, to delete lines 14 and 15.

We made very constructive progress over the course of the debate on this Bill and there are a number of areas where the Bill has been very much strengthened and improved. However, this is an area which I believe requires greater and further consideration. I am aware that this is a difficult area to address but it needs to be more nuanced than it is currently. I hope there will be opportunities for that to happen over the course of the Bill's journey into the Dáil and that perhaps some of the concerns we have raised may get addressed at that point.

Currently, the Bill has quite a worryingly vague use of the word of "offensive". We discussed this on Committee Stage where I mentioned that "anything which [might] reasonably be regarded as causing harm or offence," could perhaps be interpreted as financial harm or a situation where this could be exploited by those in power such as with a politeness clause, and others that might be used and weaponised against more vulnerable parties, or those who critique those with very large amounts of power.

I say this as someone who has been a proponent of the importance of challenging and regulating hate speech but there is principle involved in addressing hate speech and that protecting the most vulnerable in our society would be done in a very carefully thought through way so that it is not, in fact, exploited or it does not become weaponised against the more vulnerable in society and against marginalised groups. Members will be aware that some of my previous amendments sought to tie it specifically to those who are protected under our equal status legislation.

Amendment No. 75 seeks to delete the phrase in regard to broadcasting anything which might be reasonably deemed to cause harm or offence. I say that again in the context of being quite open to a strengthening of legislation on hate but the phrasing at the moment is too wide. Amendment No. 76, which would be preferred by me, seeks to replace the phrase with a more concrete threshold which states that it should not broadcast anything which may cause 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. We are looking at persons who are experiencing harm based on their identity, on who they are, and not, for example, harm to financial interests or to one's business interests.We should not have an equivalence between persons who are receiving harm based on who they are and persons who deem that they receive harm based on having an unpopular opinion and so forth.

Amendment No. 77 addresses a real concern over the phrase "undermining the authority of the State." I seek to bring clarity by tying it to the Offences against the State Act. Where the phrase "undermining the authority of the State" appears in the Constitution it has attached those caveats about freedom of expression. It is not a phrase floating on its own. Taking that phrase and placing it here in a decontextualised way is ambiguous. It would be better to tie those measures to things already identified in the Offences against the State Act so that we are tying these constraints to specific statutory concerns, which would be more robust.

The reference to incitement to violence or hatred in section 46J(1)(d) is important. Perhaps it might be useful for section 46J(1)(d) to be strengthened and for section 46J(1)(a) to be narrowed. We will come to something similar at a later point where rights and opinions seem to be given equivalence about which I am also concerned.

I know this is transferring from other legislation. However, in recent years, months and weeks even we have seen that some of that earlier legislation might not actually be effective. The legislation we have at the moment may not be protecting more vulnerable persons but may be used in a way that silences. It tends to be more strongly enforced for those who have the power or potential resources to threaten legal action than for other vulnerable groups in society.