Online Hate Speech in Ireland and the United Kingdom

ONLINE HATE SPEECH IN IRELAND AND THE UNITED KINGDOM

Roisín McFadden

With the rise of the Internet and social media over recent decades, online hate speech and harmful content have become new and prevalent issues in law. Ireland’s legislation on the issue is the outdated Prohibition of Incitement to Hatred Act 1989, which is due to be replaced by The Criminal Justice (Hate Crime) Bill 2021, currently before An Seanad. This article will contrast the two Acts. It will also discuss how cases involving online hate speech are handled in other jurisdictions, in particular the UK, compared to Ireland, with regards to legislation, court attitude and sentencing.

Prohibition of Incitement to Hatred Act 1989

The current position in Irish law regarding hate speech is covered in s2 of the Prohibition to Incitement of Hatred Act 1989, under ‘actions likely to stir up hatred’. The 1989 Act states that if written material, words, behaviour, images or sounds are likely to stir up hatred towards a protected group then it is an offence to publish, distribute, or perform this behaviour. This material is described as being ‘threatening, abusive or insulting’. This applies if the material is displayed in a context where people outside their private residence are likely to see it.1

In this case hatred is defined as ‘hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation.’ The Act makes no reference to online hate speech specifically.

Irish Case Law

There is only one significant case of someone being tried under the Prohibition of Incitement to Hatred Act in this jurisdiction, where Patrick Kissane2 became the first person to be tried for hate speech under the 1989 Act. In the Killarney District Court in 2011 Kissane was tried for setting up a Facebook Group named ‘Promote the Use of

1 Incitement of Hatred Act 1989. 2 John O'Mahony, 'Facebook Traveller Rant Was A 'Once-Off' (Independent, 2011) <https://www.independent.ie/irish-news/courts/facebook-traveller-rant-was-a-once-off26777448.html>.

Knacker Babies as Bait’3, as a result of a bad interaction with a traveller in a local pub. The page in question had extremely low privacy settings, meaning that the content posted was visible to anyone with a Facebook account and the group garnered over 600 members before its eventual deletion.

Kissane was acquitted of all offences. The court found his attitude towards travellers to be ‘obnoxious, revolting and disgusting’4 but decided that it did not qualify as hate speech due to lack of intent and no proof of real hatred being incited was put forward. The 1989 Act states that for an offence to be committed, stirring up hatred must be intended or likely5, implying that intention is not an essential factor. As well as this, the defence that no real hatred had been incited as a result of the page seems difficult to understand, as the objective likelihood of a page being named such as it was provoking hatred is extremely likely. The District Court were willing to let this go as a ‘once off incident’6 .

UK Case Law

In comparison to Irish case law, cases of online hate speech in the UK have been more harshly prosecuted. In R v Davison7, a man was prosecuted for posting racist remarks about Muslims from his personal Instagram account. These remarks were accompanied by a photograph of himself holding a gun. The defence argued that the post had not caused anyone to ‘take action and be spurred on’8 by it, similar to the lack of incited hatred defence in Kissane, however the Welsh courts rejected this and sentenced Davison to four years imprisonment on the grounds of hate speech.

In Scotland, the sentencing is also harsher for offences of this nature. A Facebook page entitled ‘Neil Lennon Should Be Banned’, which was critical of the manager of the Celtic football club, included sectarian comments about Catholics posted by a Mr Birrell9 in the same year as the Kissane case. In the Glasgow Sheriff court, Mr Birrell was given an eight month prison sentence for comments in the group that included ‘Proud to hate Fenian tattie farmers’ and ‘Hope they (Celtic fans) all die. Simple.

3 ibid. 4 ibid. 5 ibid. 6 Prohibition to Incitement of Hatred Act, 1989 s2. 7 [2020] EWCA Crim 665. 8 ibid. 9 'Internet Bigot Stephen Birrell Facing Prison Term' (BBC News, 2011) <https://www.bbc.com/news/uk-scotland-glasgow-west-15077806> Accessed 13 March 2022. 83

Catholic scumbags ha ha.’10. The Sheriff concluded that ‘very real harm does result’ from comments such as Birrell’s, unlike the judgement in the Killarney District Court. Scotland also recently passed new hate speech legislation, in the form of the Hate Crime and Public Order (Scotland) Act 202111, which is expected to come into force this year. The Act takes laws on hate speech a step further, criminalising speech which is considered inflammatory and offensive, even if it is proven no actual harm has been incited from the words. The Act has received criticism, mainly from the public, based on the effects it could have on free speech on the Internet12 and remains a divided issue.

The Criminal Justice (Hate Crime) Bill 2021

The Criminal Justice (Hate Crime) Bill is currently before An Seanad and aims to update the Prohibition of Incitement to Hatred Act 1989. The changes to legislation are not overly significant aside from sentencing changes, with the revised laws being:

Head 3 of the General Scheme provides that a person who communicates with the purpose of inciting hate or being reckless to whether said communication will incite hatred against people with a protected characteristic will be guilty of an offence. If found guilty of this offence on a summary conviction, the person will be liable to a Class A fine and/or imprisonment for a term of up to 12 months13, which is an increase from 6 months in the 1989 Act. On conviction of indictment, they will be liable to an unlimited fine and/or imprisonment of up to 5 years14, increased from 2 years imprisonment under the 1989 Act. This is a large, proposed increase in sentencing for hate crimes and is more in line with the current UK punishment.

The new Bill also acknowledges online hate speech specifically, placing liability on the social networking platforms themselves. The platforms do have a defence where they can prove that they were unaware of hate crime measures and followed adequate procedure to try to attempt to stop it. 15This is in line with the European Commission’s

10 ibid. 11 Hate Crime and Public Order (Scotland) Act 2021. 12 'Scotland’s New Hate Crime Act Will Have A Chilling Effect On Free Speech' (The Economist, 2021) <https://www.economist.com/the-world-ahead/2021/11/08/scotlands-new-hate-crime-actwill-have-a-chilling-effect-on-free-speech> Accessed 13 March 2022. 13 The Criminal Justice (Hate Crime) Bill, 2021. 14 ibid. 15 ibid.

‘Code of conduct on Countering Illegal Hate Speech Online’, which requires intermediaries to aim to remove harmful content within 24 hours.16

Criticism of The Criminal Justice (Hate Crime) Bill 2021

The proposed Criminal Justice (Hate Crime) Bill 2021 has also received its fair share of criticism. The Irish Human Rights and Equality Commission (IHREC) has described it as vague and open-ended, and lacking legal certainty. 17 The IHREC has advised that the definition of hatred be widened to include matters such as ‘disinformation…harmful conduct, including grooming and radicalisation’18 as they become more prevalent across the Internet.

The Law Society of Ireland’s report on the 1989 Act recommended that any reform should also include punishment for sharing and ‘retweeting” of hateful material19’. This has not been incorporated into the 2021 Bill. The Irish Council for Civil Liberties have also expressed concern that the hate speech and hate crime aspects of the proposed Bill ‘are being treated together under the same legislation while being distinct’20. It is important that these issues are discussed separately despite their link.

Conclusion

Ireland currently has a much more relaxed legal attitude to hate speech, particularly online hate speech, compared to jurisdictions in the UK. The introduction of the

16 European Commission ‘The EU Code Of Conduct On Countering Illegal Hate Speech Online' (2016) <https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combattingdiscrimination/racism-and-xenophobia/eu-code-conduct-countering-illegal-hate-speechonline_en> as cited in Michael O'Doherty, Internet Law (Bloomsbury 2020). 17 Irish Human Rights and Equality Commission, 'Submission To The Joint Committee On Media, Tourism, Arts, Culture, Sport And The Gaeltacht On The General Scheme Of The Online Safety And Media Regulation Bill' (2021) <https://www.ihrec.ie/app/uploads/2021/03/IHRECSubmission-to-the-Joint-Committee-on-Media-Tourism-Arts-Culture-Sport-and-the-Gaeltachton-the-General-Scheme-of-the-Online-Safety-and-Media-Regulation-Bill-FINAL.pdf> Accessed 11 March 2022. 18 Irish Human Rights and Equality Commission (n 17). 19 Law Society of Ireland, 'Submission On The Review Of The Prohibition Of Incitement Of Hatred Act 1989' (2020) <https://www.lawsociety.ie/globalassets/documents/submissions/submission-prohibitionincitement-to-hatred-act-1989.pdf>. 20 Irish Council for Civil Liberties, 'Ahead Of Oireachtas Discussion On Hate Crime, On UN Day For Tolerance, Affected Communities Call For Action' (2021) <https://www.iccl.ie/news/aheadof-oireachtas-discussion-on-hate-crime-on-un-day-for-tolerance-affected-communities-call-foraction/>

Criminal Justice (Hate Crime) Bill is a step in the right direction. It will likely be easier for victims of hate speech to seek justice, given the harsher sentences and specific acknowledgement of hate speech online, without interfering with freedom of speech in a radical way. The Criminal Justice (Hate Crime) Bill 2021 could be further amended to include more reference to hate speech online, given that the Internet is ‘ideally positioned for the dissemination of hate speech’.21 It should also expand its definition of ‘hatred’ to include newer harmful practices, such as those named by the Irish Human Rights and Equality Commission above.

21 O'Doherty (n 16).