Barry Ward: None of us is in any doubt about what ‘hate’ means

New legislation will proportionately balance the rights of ordinary people to enjoy their place in our community with the rights of others to freely express their views and opinions, writes Barry Ward

People will be able to continue to be offensive, and offended, as they were before. However, when free speech is abused and calculated to cause hatred or incite violence against members of a group, it is right that we draw a line in the sand.

Theodore Roosevelt said “no law could ever be framed to make a fool wise or a weakling strong or a coward brave”. By the same token, no law can make the unkind kind, or the hateful loving, but the fact that we cannot legislate for what people think or how they feel does not mean that we should not regulate behaviour where it negatively impacts on other citizens.

New legislation attempts to do that and has been the subject of criticism this week as it came before the Seanad.

It is important, however, to dispel some of the misinformation around what the bill will actually do and how it will address hate speech.

There is broad agreement on the need for legislation dealing with hate crime and hate speech, but not about how it should be done. At the heart of this bill is a principle that everyone in Ireland has the right, irrespective of personal characteristics, to go about their business unmolested, in peace, and without being subjected to hatred.

The bill is not about stifling debate but about taking the hate out of debate.

The reality is that the hate component of a crime or hate speech is particularly destructive; it makes people feel they are lesser, unwelcome, or unsafe, and that damages us all. That is not to say that this legislation will outlaw taking or giving offence. People will be able to continue to be offensive, and offended, as they were before. However, when free speech is abused and calculated to cause hatred or incite violence against members of a group, it is right that we draw a line in the sand.

Several people have claimed that this bill will be an end to freedom of speech. In fact, those freedoms will continue to be protected by the Constitution, the European Convention, and section 11 of the bill, all of which recognise the centrality of free speech in a democratic society.

No right is absolute. All rights involve a balancing act at some level. The right to free speech is not absolute either: It is curtailed by defamation laws, existing incitement to hatred laws, and public order laws, where common decency fails. 

It is not an unreasonable restriction on the right to free speech to say that it may not be used to incite hatred or violence against a vulnerable group.

Some have suggested that this is thought crime, but nothing in the bill justifies this claim. People will still be able to think what they like, however hateful, discriminatory, or offensive those thoughts might be. Translating any such thoughts into action that is intended to incite hatred or violence will be an offence.

When someone takes calculated action to cause hatred or violence against a group, that will be an offence, not when that person keeps his or her hatred to himself or herself. However, when someone is reckless with his or her hatred, it is reasonable that he or she would be held responsible for it.

A great deal of consideration has gone into the purpose and practical application of this bill. Those who have said that the bill will overturn the burden of proof are wrong. In criminal cases, the prosecution must prove the case against the accused, and this bill will not change that. What the bill does contain is a “rebuttable presumption”, which allows certain conclusions to be drawn if there is no reasonable explanation for possession of material likely to incite violence or hatred, for example.

The thing is, rebuttal presumption is a common feature of Irish legislation. 

It can be found in legislation on theft, possession of firearms, misuse of drugs, and many other areas. It does not overturn the burden of proof and any accused person is entitled to refute, contradict, or challenge any circumstantial presumption.

Finally, another criticism that has been made is that the term “hate” is not defined, the suggestion being that there is therefore some vagueness about what sort of behaviour is outlawed. In actual fact, none of us is in any doubt about what “hate” means and so the ordinary meaning of the word is what will be applied. To define the term is to unnecessarily restrict what is covered by a word in common usage and well understood.

All too often, we pass legislation with what are popularly referred to as “loopholes”, but the danger is that a definition of “hate” that only included certain elements of the wide spectrum of what qualifies as hate will potentially do two things: Create the very “loopholes” that are so often decried; and limit the law to concepts we understand today, even though we have seen how the existing law became hopelessly and rapidly out-of-date.

All things considered, this legislation will proportionately balance the rights of ordinary people to enjoy their place in our community with the rights of others to freely express their views and opinions. There is nothing to be feared in this bill; hopefully it will result in a kinder, more reasonable society for us all.

• Barry Ward is a Fine Gael senator