Sharon Keogan (Independent) | Oireachtas source

The Bill currently lacks a clear definition of hate and incitement to hate or violence, which are central to its purpose. By leaving these terms undefined, the legislation risks creating ambiguity in its application, leading to potential challenges in enforcement, interpretation and legal scrutiny. This amendment seeks to address this gap by providing a clear and precise definition of incitement of violence or hatred as conduct specifically intended to cause physical violence or to create intense or irrational emotions of opprobrium, extreme enmity, hostility, detestation or deep hate towards a person or group. Incorporating these thresholds ensures the legislation targets conduct that goes beyond mere expressions of disagreement or distaste and focuses on speech or actions that genuinely aim to incite harmful emotions or actions against others. It protects the fundamental rights to freedom of expression while drawing a firm line around behaviours that threaten societal peace and individual safety.

Incitement refers to encouraging or provoking someone to commit a crime or act unlawfully. In the context of this Bill, incitement to violence or hatred involves actively commanding or encouraging others to commit violent acts or to develop a strong, unjustifiable bias or hatred towards individuals or groups based on characteristics like race, religion, sexual orientation or gender identity. The inclusion of this definition sets an important legal standard that can help distinguish between legally protected forms of speech and conduct that seeks to provoke violence or irrational hostility, ensuring the law is both effective and proportionate.

Globally, many legal frameworks include clear and well defined parameters for what constitutes incitement to hatred, ensuring legislation can be applied consistently and fairly. For example, article 20 section 2 of the International Covenant on Civil and Political Rights, ICCPR, defines incitement to hatred as speech that advocates for "national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence". The ICCPR's guidance stresses that restrictions on speech must be necessary and proportionate to prevent overreach.

The Council of Europe's additional protocol to the Convention on Cybercrime in 2003 defines incitement to hatred as the act of spreading racist and xenophobic material motivated by hostility or prejudice and likely to incite violence or discrimination. The European Union framework decision of 2008 on combating racism and xenophobia also defines incitement to hatred as the public dissemination of a message that incites violence or hatred based on race, colour, religion or dissent, again focusing on clear intent and specific targeting.

These international legal standards provide robust, narrow definitions to prevent both misuse of the laws and the risk of infringing on freedom of expression. They also emphasise that incitement laws must address speech or conduct that genuinely threatens public safety or leads to real world harm, ensuring laws focus on actions with clear intent to incite violence or hatred. The current Bill, however, lacks any such clear or precise definition of what constitutes incitement to hatred or incitement to violence. Without a concrete framework, the legal threshold for conviction may be uncertain, leaving critical questions unanswered. What level of conduct or speech would trigger an accusation or conviction? How will the courts distinguish between heated or offensive speech and speech that actually incites violence or hatred? This absence of clarity may lead to subjective interpretations of what constitutes incitement, increasing the risk of inconsistent enforcement.

The lack of an explicit definition creates potential for overreach, where individuals may be prosecuted for speech that, while offensive or controversial, does not rise to the level of incitement under international human rights standards. Without a clear legal definition of incitement, individuals could be wrongly convicted based on misinterpretation of their speech or intent where provocative, controversial or critical statements are seen as incitement, even when they fall short of encouraging actual violence or hatred. Vague or subjective standards, where authorities or courts apply inconsistent criteria, could potentially lead to the prosecution of speech that is merely offensive, distasteful or dissenting rather than incitement. For example, an artist, journalist or activist expressing views critical of a political group or religious ideology could be charged with incitement to hatred under a broad or ambiguous law despite having no intent to provoke violence or irrational hostility. This would have a chilling effect on free speech and would discourage individuals from expressing legitimate, though controversial, opinions. Moreover, the lack of definition may cause disproportionate enforcement against minority groups, dissidents or marginalised communities who may be more vulnerable to accusations of incitement due to cultural misunderstandings of political bias.

In its current form, the Bill risks violating international norms of free expression by failing to provide clear definitions of incitement to hatred or incitement to violence.The proposed amendments seek to introduce a clear and specific threshold for incitement, ensuring that only conduct with the intent to provoke violence or irrational hatred is criminalised. This would protect the fundamental right to free speech while ensuring the law effectively addresses harmful conduct aimed at inciting violence or hatred. By drawing on international legal standards, this amendment ensures the Bill aligns with best practice, maintaining a balance between the right to freedom of expression and the need to protect individuals from genuine threats of violence and hate.

The absence of a clear definition for incitement to hate in the Bill also poses broader implications for legal certainty. Internationally, legal certainty is a fundamental principle of the rule of law, ensuring that individuals can understand what actions are prohibited and adjust their behaviour accordingly. By failing to provide precise language around what constitutes incitement to hatred or violence, this Bill risks creating ambiguity in its enforcement. Without a clear definition, ordinary citizens may not know when their words or actions cross the line into criminal conduct. This creates an atmosphere of fear and uncertainty around the boundaries of permissible speech. As seen in other jurisdictions, such uncertainty can result in censorship where individuals avoid expressing opinions that, while lawful, could be perceived as incitement. This disproportionately affects public discourse on controversial issues, especially political, religious or social matters. Law enforcement agencies tasked with applying the law may struggle with how to interpret vague provisions, leading to inconsistent or biased enforcement. This can result in selective prosecutions or targeting of individuals or groups based on subjective judgments rather than objective legal standards. As demonstrated in jurisdictions where similar laws lack clear thresholds, officers may find themselves uncertain about what exactly constitutes incitement to hatred versus offensive or provocative language that remains protected under the rights to free expression.

The courts may be burdened with the complex task of interpreting these vague provisions, leading to varying judgments across different cases. This can create legal inconsistencies as different judges could apply the law based on their personal interpretation or societal attitudes. A lack of clear criteria could open the door to broad judicial discretion which increases the risk of legal rulings being influenced by political or cultural biases, further complicating matters of free speech and protection against genuine incitement.

International law cases demonstrate that minorities and marginalised groups may be disproportionately affected by hate crime legislation that lacks specificity. These groups may be unfairly targeted or accused of incitement when expressing views that challenge the majority, leading to a skewed application of justice. In countries where a broad or ill-defined incitement laws exist, activists from minority communities have often found themselves criminalised for raising critical or uncomfortable discussions about social injustices, despite having no intent to incite violence or hatred.

The proposed amendment seeks to prevent wrongful convictions by demanding a clear threshold for what constitutes incitement to hatred or violence. When the law is not clear, it opens the door to misinterpretation and misuse, particularly in cases where speech is misunderstood or misrepresented by others. This is especially true in highly charged social or political contexts where emotions run high and legitimate criticisms or dissent can be misconstrued as hateful or violent incitement. Without specific definitions and legal criteria, individuals could face charges based on subjective interpretations of their intent or statements. For example, a public figure or speaker engaging in controversial political debate could be prosecuted if his or her statements are seen as hostile, even if they were not intended to incite violence or hatred. Satirical speech or artistic expression, which often use exaggeration or provocation to highlight societal issues, could be wrongly viewed as incitement due to the subjective reactions of audiences. The lack of a clear intent requirement also leaves the law vulnerable to being weaponised against individuals or groups for reasons unrelated to genuine incitement. This could lead to a chilling effect, particularly in the context of sensitive or polarising topics such as religion, gender identity or ethnic relations where accusations of hatred or violence may arise from misunderstandings rather than actual malice.

The proposed amendment aims to bring the Bill in line with international standards, which typically include clear intent and specific harm as necessary components of any hate speech or incitement law. For example, the Rabat plan of action, which is a 2012 report of the UN High Commissioner of Human Rights, outlines six key factors to consider when determining whether speech constitutes incitement, including intent, context and likelihood of harm. These guidelines underscore the need for a high threshold to ensure restrictions on free speech do not exceed what is necessary to prevent violence or discrimination. The European Court of Human Rights has consistently ruled that restrictions on free speech must be carefully balanced to ensure they do not infringe on the rights of freedom of expression. This includes a focus on whether speech directly incites violence or discrimination. By introducing a clear and specific definition of incitement to hatred and violence, the amendment would ensure the Bill meets these international recognised standards, reducing the risk of overreach or misapplication.

The proposed amendment is critical to ensure the Bill provides clear definitions and a high threshold for what constitutes incitement to hatred or violence. Without such clarity, the Bill risks creating legal uncertainty, chilling free expression and leading to wrongful convictions based on vague or subjective interpretations of intent. By aligning with international norms and providing specific guidance on incitement, this amendment would help safeguard both public safety and the fundamental right to free expression.

The definition of amendment No. 9 aligns the definition with Irish law. If we are to accept the Government’s definition, however, this would mean there would be at least 72 genders, including, but not limited to, agender, abimegender, adamasgender, aerogender, aesthetgender, affectugender, agenderflux, alexigender, aliusgender, amaregender, ambigender, ambonec, amicagender, amorgender, androgyne, androgynflux, anesigender, angeligender, anogender, anongender, anteisgender, anxiegender, apagender, apconsugender, apertusgender, aposgender, aquagender, aquariusgender, archaegender, argogender, aristogender, aritgender, artistigender, astroflux, astralgender, atmosgender, atturgender, autigender, autogender, axigender, axiogender, azuregender-----