One of Ireland’s most prominent law firms has described the proposed hate speech legislation as a “radical” change to the law, which could see companies facing charges under the bill, including in circumstances when an offence is committed by a employee or representative of the company.
A piece published by commercial law specialists Matheson, highlights that The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 will establish that offences can be committed by a company, or a director, manager, secretary or other officer of said company.
This also applies where the corporate body is managed by its members, the briefing notes, saying that “the individual, guilty of such an offence under the Bill, faces imprisonment and / or a fine as provided for under the relevant section.”
The article, entitled “Hate Speech” Bill: Corporate Offences on the Horizon, says that “one of the key features of the Bill is the provision for offences by corporate bodies.”
It also says that a company may be guilty of an offence when a director or manager failed to exercise the “requisite degree of supervision or control” over a person who committed a crime under the proposed law.
Under section 13 of the Bill a company/corporate body will be liable where an offence is committed for its benefit and the commission of the offence was “attributable to the failure, by a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, to exercise… the requisite degree of supervision or control” of the person who committed the offence.
Where a body corporate is found to be guilty of an offence under the Bill, it will be liable on conviction on indictment to a fine. The level of fine applicable is dependent on the offence committed.
The analysis explains that if a body corporate commits an offence and it was was committed with the “consent or connivance or…wilful neglect” of a director, manager, secretary or other officer, the relevant individual will be guilty of an offence.
“This also applies where the corporate body is managed by its members. The individual, guilty of such an offence under the Bill, faces imprisonment and / or a fine as provided for under the relevant section.”
Matheson says that “the current iteration of the Bill provides a defence for the corporate body to show that it took all reasonable steps and exercised due diligence to avoid the commission of the particular offence. Therefore, to establish and maintain such a defence, companies will need to have the appropriate processes and procedures in place. ”
The hate speech bill has been criticised as a “draconian” measure, with concerns being expressed regarding its effect of free speech and the powers given to Gardaí to search homes and seize property.
Senator Sharon Keogan said that the proposal would mean that a person could be jailed for refusing to give their passwords for devices Gardaí wished to search.
Careful Now! Don't be caught with the wrong opinions. This video explains the #Gardai powers under the new #HateSpeech bill. pic.twitter.com/yV44hv3Ns5
— Senator Sharon Keogan (@SenatorKeogan) May 11, 2023
Free Speech Ireland said that the sponsors of the Hate Speech Bill had refused to define ‘hate,’ leaving the assessment to Gardaí and said an analysis by former Justice Minister, Michael McDowell had pointed out that ‘Hate Speech’ citizens’ arrests would be possible.
This is HUGE 🚨
Section 13 of the Hate Speech Bill means that managers and executives could face charges for a hate offence IF AN EMPLOYEE is found guilty of such an offence (e.g., hate speech or possession of hateful material). https://t.co/0HrxJkfIp7
— Free Speech Ireland (@FreeSpeechIre) November 28, 2023
Commentator David Thunder said that Matheson’s analysis raised the question as to whether the indicated responsibility of “bodies corporate” for hate offences of their members might also apply to schools and universities.
"Hate Speech'' Bill: Corporate Offences on the Horizon
– Excellent summary of the new hate speech legislation currently under consideration in the Irish Senate.https://t.co/t86AnllyBT
— David Thunder (@davidjthunder) November 28, 2023