Like the prospect of execution, which is said to sharpen the mind wonderfully, the imminent passage of the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 has had the effect of alerting the minds of Irish people to the dangers it presents to their freedom of speech.
My first involvement with this matter occurred in 2019, when I was part of an Edmund Burke Institute submission to the Department of Justice when this Bill was first in prospect. To give their due to the officials of the Department, we were allocated a significant amount of time in which I and a law lecturer from one of the Irish universities were able to point out many of the problems, theoretical and practical, which the creation of such legislation could create.
However, despite our best efforts then, we now have before us a remarkably flawed proposal which, if passed, bodes ill for the capacity of the people of Ireland to exercise the freedom of expression guaranteed to them by the Constitution.
Irish citizens have the right “to express freely their convictions and opinions” [Bunreacht na hÉireann, 40.6.1.i] Unfortunately, this right, unlike its US counterpart in their First Amendment [“Congress shall make no law…abridging the freedom of speech] comes with the rider that its exercise is ‘subject to public order and morality”, and it is this rider that gives our legislators the opportunity to attempt to limit our freedom of expression by the kind of legislation we now have before us.
The problems with this particular piece of legislation are many and have been rehearsed in various places.
Whatever about the possibility of a criminal conviction in relation to any of the matters included in the Bill, we have pointed out that the mere existence of this Bill would conduce to bringing about a kind of pre-emptive self-censorship: after all, who wants a member of An Garda Síochána to get in touch with them, as PC Gul did to Harry Miller in the UK, to tell them “I need to check your thinking”.
Such has been the focus of our attention on this Bill, that those of us who are concerned with defending our right to free expression haven’t been as aware as we should have been of some other pieces of legislation that, together with this Bill (if enacted), would entangle us in a web that would seriously stifle our ability to speak freely on a range of significant topics.
But not all of us were thus unaware. Just over a year ago, Tracey O’Mahony, barrister and chair of ICHR, published a YouTube video that outlined aspects of existing and prospective legislation that could also be considered as impinging on our freedom to express ourselves. In that video, she discusses:
A: The Harassment, Harmful Communications and Related Offences Act 2020 [in brief, Harmful Communications Act]
B: the Non-Fatal Offences against the Person (Amendment) Stalking Bill 2021 [in short, Stalking Bill
C: the Online Safety and Media Regulation Act 2022 [in short, Online Safety Act]
Buried in the Harmful Communications Act is a section (section 4) that criminalises the distribution or publication of any threatening or grossly offensive communication to another person, intending by such distribution or publication to cause harm, including psychological harm.
What, you might wonder, is a grossly offensive communication? Well, you’ll have to look elsewhere other than the Act to find out!
The term ‘grossly offensive’ is not mentioned in the “Interpretation” section of the Act. The possibility of this section’s being used to restrict freedom of speech should be obvious. In a Dáil debate, Paul Murphy—not someone with whom I usually find myself in agreement!—was moved to comment:
“…this section, as it stands, could have real and damaging implications for freedom of speech because it provides that anyone who sends a ‘grossly offensive communication’ to or about another person with the intent to ‘cause harm’ is guilty of an offence carrying a potential sentence of up to two years in prison. I have two issues with that. First is the fact, as I said, that a ‘grossly offensive communication’ is not defined anywhere in the Bill and is, therefore, left to the interpretation of a judge. Second, ‘harm’ is defined in the Bill to include where a communication ‘causes alarm’. A judge could decide that someone online calling me or any public representative whatever name under the sun has been grossly offensive and alarming and the person could be sent to prison for it. I receive my fair share of abuse on social media. I do not welcome it but I do not think it should be criminalised. I do not think anyone should go to prison just because he or she caused me alarm.”
The Stalking Bill contains in 10A, section 3, subsections a, c and f, a definition of stalking that includes persistently communicating by any means of communication “with or about a person’; attempting to make “repeated unwanted contact with a person”; “monitoring…a person by any means”.
These sections open the possibility of criminalising attempts to communicate with public representatives.
The Online Safety Act (it was still a Bill when O’Mahony published her video so some parts of her discussion may be redundant) establishes a Commission with extraordinarily extensive powers to regulate Online Streaming Services and Broadcasters. The Commissioner will have the power to levy swingeing fines on Social Media services that fail to abide by the codes that the Commission draws up. Section 46 of the Act outlines a long list of specific forms of harmful content, including subsection 4 which prohibits the publication of “material, images or sounds which are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred”; subsection 5, “threatening, abusive or insulting images or sounds whose broadcast is intended or, having regard to all the circumstances, is likely to stir up hatred.”
This is just a brief summary of the kinds of issue O’Mahony raises. Readers should view her excellent video for more detail.
When we put all these pieces of legislation together with the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022, it seems that in the years to come, Irish citizens will be faced with formidable legal obstacles to give effect to their Constitutional right to express freely their convictions and opinions.
Gerard Casey is an Irish academic and is a Professor Emeritus at University College Dublin