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Not all hate speech merits a criminal-law response

Any proposed legislation to regulate the media or online content must satisfy the requirements of legality, necessity and proportionality, IHREC has said.

The rights to freedom of expression, privacy and freedom of assembly must be protected in any move to counteract online harmful content and conduct, it has said.

The body has set out its concerns that a new law being prepared to build online safety and strengthen media regulation has no detail on the role or functions of a proposed new Online Safety Commissioner.

It describes the draft law as vague and open-ended, and lacking legal certainty, and has set out 23 recommendations to Oireachtas members on the General Scheme of the Online Safety and Media Regulation Bill.

The bill sets out to close the legal gap in addressing harmful online content, and also to establish a robust regulatory framework.

It provides for the appointment of an Online Safety Commissioner, as part of a wider Media Commission, to oversee the new regulatory framework for online safety.

Protected

However, the right to freedom of expression is protected under the Constitution, European and international law and includes the freedom to hold opinions, and freedom to seek, receive and impart information and ideas of all kinds, without interference by public authority and regardless of frontiers.

The European Court of Human Rights has found that this right is applicable not only to information or ideas that are favourably received, or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population, IHREC points out.

The right to freedom of expression also imposes positive obligations on the State to protect authors and journalists, in order to create a favourable environment for expression of opinions and ideas without fear, even if these ideas are “irritating or shocking”.

The IHREC submission also says that only certain, more severe, hate-speech expressions meet the threshold of incitement to hatred, meaning that not all hate-speech acts merit a criminal-law response.

Precise

The UN Special Rapporteur has said that restrictions on lesser forms of hate speech must meet the strict standards of international human-rights law, and that the law must be precise, public, and transparent, and not provide authorities with “unbounded discretion”.

The Special Rapporteur recommends that states pursue measures other than criminalisation and prohibition – such as education, counter-speech, and the promotion of pluralism – to address all kinds of ‘hate speech’.

The draft legislation can be strengthened through stronger and more consistent reference to human rights and equality standards, IHREC says.

Powers

Given the significant and far-reaching powers being proposed for a new Media Commission in regulating speech in broadcasting and on-line in Ireland, references to people’s rights and specific protected groups need to be strengthened, IHREC says.

Legal certainty is needed to ensure that:

• The legislation is proportionate and compatible with rights including freedom of expression,
• The definitions will be effective in practice,
• Those definitions are not open to misuse or abuse to target content or users unfairly. 

IHREC wants more detailed consideration of the core human-rights and equality issues involved in the role and functions of the Media Commission, including freedom of expression, and association, privacy rights, equality, and prohibition of discrimination, including hate speech and disinformation.

It also recommends that grants for budgetary allocation to the Media Commission should be subject to a separate vote in the Oireachtas.

Sanctions

It also says the power to impose financial sanctions must be in accordance with fair procedures and constitutional justice, as guaranteed under Irish law and EU law.

IHREC recommends that the definition of harmful content be revised to include disinformation and harmful conduct, including grooming and radicalisation.

Terms that relate to hate speech — including racism, sexism and ableism — should be defined in the new law, IHREC says.

Children’s rights and a disability rights perspective should also be weighed up.