Sharon Keogan (Independent) | Oireachtas source

On amendment No. 11, there is no standard definition of incitement. The fact that hate, incitement and incitement to violence or hatred is ambiguous is a major problem with this Bill. This definition should be robust enough to ensure no one is unfairly convicted. The emphasis on irrational creates a great burden of proof. This amendment introduces a clear and standardised definition of "incitement" to be included in the Bill, which is currently lacking. The proposed definition frames incitement as behaviour or communications about a person or group that creates a serious risk of discrimination, hostility or violence towards them based on their protected characteristics.By doing so, it aims to establish a robust legal threshold that ensures individuals are not unfairly convicted for incitement while addressing harmful behaviours that genuinely threaten the well-being of others.

One of the major shortcomings of the Bill is the absence of clear definitions of "hate", "incitement" and "incitement to violence or hatred". This creates significant challenges when it comes to the interpretation and enforcement of the law. Without clear guidance law enforcement and the Judiciary are left to interpret these terms, potentially leading to inconsistent applications and an increased risk of wrongful convictions. The absence of a definition of "incitement" leaves a grey area regarding what kinds of speech or behaviour are legally punishable. This could potentially criminalise legitimate speech, including criticism, debate and dissent, which should be protected under free expression.

Ambiguous legal terms also make it difficult for individuals to know what constitutes lawful or unlawful conduct, which can chill free speech by creating fear of persecution or expressing opinions. The proposed definition is designed to be specific and robust, focusing on behaviour or communications that create a serious risk or harmful outcome such as discrimination, hostility or violence. This sets a high threshold that ensures only genuine harmful acts which are likely to lead to real-world consequences will be criminalised. By introducing the concept of a serious risk the amendment prevents overreach and ensures the incitement laws do not criminalise speech that is merely offensive or provocative. Instead they will target individuals that pose a genuine danger to individuals or groups. The definition covers direct and indirect actions, including communications about a person or a group and thereby ensuring the harmful stereotyping misinformation or dangerous rhetoric that leads to real harm is addressed.

International standards offer guidance on the meaning of incitement and the thresholds that should be applied. The European Court of Human Rights has consistently ruled that incitement must be clearly linked to a likelihood of imminent violence or serious harm. In cases like Erbakanv.Turkey, the European Court of Human Rights emphasised that offensive speech alone does not constitute incitement unless it directly leads to violence or discrimination. The UN’s Rabat plan of action sets a high threshold for incitement, requiring the speech or behaviour in question be directed at a specific audience, having intent and be likely to lead to imminent harm. This approach is designed to safeguard free speech while addressing dangerous conduct. Countries like Germany and Canada have also introduced similar thresholds in their hate speech and incitement laws to ensure only speech that leads to tangible harms is penalised. For example, Germany’s criminal code includes provisions that punish incitement to hatred, but only when it is aimed at disrupting public peace or inciting violence. By adopting a definition aligned with these international standards, the amendment ensures that Ireland’s legislation remains in line with global human rights norms, especially in balancing the protection of individuals from hate speech and violence with the preservation of free speech.

The emphasis on irrational emotion, opprobrium, enmity, and detestation found elsewhere in the Bill creates a high burden of proof and could lead to difficulties in prosecution. While it is important to distinguish between rational criticism and irrational hatred, the absence of a clear threshold for incitement increases the likelihood individuals could be convicted for expressing views that do not actually incite violence or hatred. The proposed definition seeks to protect individuals from unfair conviction by ensuring only actions or communications that create a serious risk or harm would qualify as it as incitement. This introduces greater legal certainty and prevents over-criminalisation. By focusing on actions that lead to a serious risk of discrimination, hostility or violence, the definition ensures laws do not disproportionately target minority voices, satire or political dissent. These forms of expression often provoke strong reactions but do not necessarily incite harm. Inclusion of a standard definition of "incitement" is crucial for the Bill’s clarity and enforceability. The proposed definition establishes a clear threshold for what constitutes incitement to ensure only behaviour or communication that creates a serious risk of discrimination, hostility or violence based on a person’s protected characteristics are criminalised. This amendment aligns with international legal standards and protects against unjust prosecutions while addressing genuine harm, offering a more balanced approach to incitement laws.

I will come in on my other amendments later.