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THE CRIMINAL JUSTICE (Incitement to Violence or Hatred and Hate Offences) Bill, 2022, attracted limited comment when it passed through the Dáil last year and was carried at the final stage by 110 votes to 14.
Yet, it has been highlighted in recent days following the heavy defeats of the two referendums on family and care. Some of those who opposed the referendums cite the Hate Speech legislation as the latest element of the ‘woke agenda’ that they wish to oppose. Others, including those in government parties, feel that the legislation should not be a priority as we move into the final year of this administration.
The closer we move toward elections, politicians will always be nervous about engaging in areas that may appear controversial. But just because we face political contests does not mean we should shy away from debate – the underlying issues that pointed to the need for this legislation will not go away.
The desire to legislate in this area does not come from nowhere. It comes from very genuine concerns where we have seen individuals targeted because of their race, ethnicity, sexual orientation, religion and other grounds related to their perceived or actual identity.
We already have the 1989 Prohibition of Incitement to Hatred Act, but that legislation has been found not to be sufficiently effective and it is from a different era, long before an increasingly polarised online public space has emerged that facilitates anger directed against individuals and groups because of whom they happen to be.
There are legitimate concerns that freedom of expression could be hugely damaged if the State seeks to intervene too far. So what principles should we use as legislators if we choose to regulate speech and expression? What might guide us?
What about these:
“You may not threaten, incite, glorify, or express desire for violence or harm.”
“You can’t affiliate with or promote the activities of violent or hateful entities.”
“You may not share abusive content, engage in the targeted harassment of someone, or incite other people to do so.”
“You may not attack other people on the basis of race, ethnicity, national origin, caste, sexual orientation, gender, gender identity, religious affiliation, age, disability or serious disease.”
These are not Sections of the government’s Hate Speech legislation. They are, in fact, the “Rules of X”, the community standards of the platform formerly known as Twitter. Drawn up by people who work for one of the world’s wealthiest men, they set the limits on free speech on his platform with no recourse to legislators and determine how these rules are enforced.
Although he never actually said or wrote it, the phrase attributed to Voltaire is often trotted out when debates arise around Free Speech,
“I disapprove of what you say, but I will defend to the death your right to say it”,
Whether in Revolutionary France or contemporary democracies, it remains a point of contention as to where the line should be drawn, if one is to be drawn at all, between ensuring that vital right of freedom of expression (no matter how horrible or horrific the views expressed) and protecting other rights, such as privacy, freedom from harassment and incitement to violence and to avoid being targeted because of one’s identity.
The debate around ‘freedom of expression’ is forming a central element of the so-called culture wars. When and where is it appropriate to regulate what people can say? What constitutes ‘Hate Speech’? How do we allow for awful but lawful content online, but still try to ensure safe spaces and battle polarisation?
As a member of the Oireachtas Media Committee, these were among the questions I and colleagues considered as we examined in detail what became the Online Safety and Media Regulation Act. The issues are now resurfacing in the context of the deliberations on Hate Speech legislation.
Arguably some of the best legal views on these questions were considered by US Supreme Court Justice Oliver Wendell Holmes. Holmes was a civil libertarian and was a strong defender of the American First Amendment. He tried to draw the line between what should be classified as ‘protected’ and ‘unprotected’ speech.
In a case in 1919, he set out the ‘clear and present danger’ test that needed to be considered by lawmakers.
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
He used the example of someone running into a crowded theatre and falsely shouting ‘Fire!’. There are clear and dangerous consequences of such an action.
The objective of any democratic society should be to protect the principle of the ‘freedom of speech’ not speech itself. To ensure freedom of speech requires that there must be guardrails. As Jamie Susskind points out in his book, ‘The Digital Republic’ (2022), the approach across Europe has been to place on positive duty on governments to ensure that free expression can be enjoyed safely.
Article 10 (1) of the European Convention on Human Rights (ECHR) reads:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”
This is a very important assertion that must be strongly defended but is balanced by Article 10 (2) that rightly points out that where there are rights, there must also be responsibilities and respect for the rights of others.
“2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The ECHR clearly envisions, therefore, that some limits must be in place.
The development of social media and online platforms has had many incredible positives. It has helped democratise the sharing of news and ideas and to set out your views, it is not essential to get past the gatekeepers of opinion page editors such as the one who kindly decided that this piece was interesting enough to run here.
The increase in the quantity of opinions offered is generally not matched in quality. True news values such as factchecking are often sacrificed and good journalism is often restricted behind a paywall while you can get any and all opinions, informed or not, usually for free. While the online world can provide a forum for informed debate from those with an expertise or interest that we may not often hear, equally it can allow amplification of the views of those who are ill-informed or to spread misinformation.
Most social media platforms (Facebook / X (Twitter) / TikTok etc) simply allow users to upload content and then rely on other members of the ‘community’ to report the content if it goes against the ‘community standards’ that have been designed by the company.
The ‘Community Standards/Hate Speech’ set of rules operates on all such platforms. The rules are not determined by elected legislators (save where there is a requirement by a State on illegal content) but by the billionaire owners of such platforms and those who work for them.
This is the self-regulated approach to hate speech currently undertaken by the tech giants.
Mark Zuckerberg of Meta has said that about 95% of reported content or hate speech on Facebook is taken down by Artificial Intelligence. About 6.5 million reports are generated every week. The company still has about 15,000 content moderators globally. This figure was confirmed at the Oireachtas Media Committee recently where Meta representatives indicated that AI is used 90 to 95% of the time to remove content that goes against the platform’s rules on speech (the ‘community standards’).
Representatives of X also stated that over 90% of content was removed by AI though alarmingly the number of human content moderators overseeing this process has been slashed globally from 5,500 up until November 2022 when Elon Musk took over to 2,500 today.
Elon Musk presents himself as a defender of Free Speech and is often cited by those who argue against restrictions as the great liberator on this issue. But Musk himself has placed limits on freedom of expression and only this week we saw this play out in the courts where his own limits were laid bare.
When Musk was threatened by major advertisers that they would pull advertising on X, he demanded greater levels of content moderation; employees at his companies must sign non-disparagement and non-disclosure agreements, and there have been cases where X has suspended the accounts of anyone who criticises Musk.
In 2007, Facebook entered into a settlement with the State of New York around the company’s alleged failure to protect children online, particularly with regard to access to pornography. Part of the agreement involved Facebook responding to and addressing complaints about nudity or pornography, harassment or unwelcome contact within 24 hours. The company’s actions would be independently verified by the State.
More generally, in the United States Courts, it has often been held that pornography is protected by First Amendment Free Speech rights whereas ‘obscenity’ is not. The question again is: where do we draw the line? (And who draws it?) Cultural attitudes here obviously influence one’s approach. The attitude to nudity or limited clothing, for example, would differ enormously from the beaches of Brazil or the Mediterranean to societies with strong religious disapproval of such choices.
There are 19 countries around the world that ban Holocaust denial. Engaging in speech that promotes this lie is a punishable offence. In Germany, understandably, this issue is taken particularly seriously and inciting hatred against any “national, racial, religious group or a group defined by their ethnic origins, against segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population or calls for violent or arbitrary measures against them” could lead to imprisonment on conviction.
In 2017, Mark Zuckerberg, who is himself Jewish, defended the rights of Holocaust deniers but by 2020 had stated that his “thinking had evolved” because of evidence that social media postings were leading to an increase in anti-Semitic violence. Meta’s “Hate Speech Policy” now prohibits any content that denies or distorts the Holocaust.
As private sector platforms debate the limits of free speech internally, we as legislators face similar challenges but our responsibilities are much greater. While Musk and Zuckerberg and others are beholden to their shareholders, legislators and regulators need to think about citizens and society.
How do we get the balance right with competing rights?
In an increasingly polarised political environment (exacerbated by the social media companies), attempts to have a civilised debate can be difficult.
Pim Fortuyn was a socially liberal but anti-immigration Dutch politician who founded a political party in 2002 that came second in the General Election in the Netherlands that year. Fortuyn was gay. He was strongly critical of Islam viewing it as a threat to the Dutch way of life. But he defended the right to free speech of homophobic Islamic leaders, albeit with an important caveat… “An imam should be able to say that homosexuals are worse than pigs. My only demand is that you mustn’t incite violence”. Fortuyn was shot dead nine days before the election. The Dutch politician drew the line where there was a threat of violence.
Meta indicated when it came before the Oireachtas Media Committee that it would hold a similar position. It used the example that where somebody posted “I hate Emmanuel Macron and he is a useless politician” that such would not constitute a breach of community standards, whereas if somebody stated that the French President “deserves to be shot and I encourage people to do it”, such a statement would be deemed in breach.
While blasphemy was removed from the Constitution in 2018 (who remembers that referendum?), there is always a tension where freedom of expression is seen as insulting to deeply held beliefs. This has been evident with some in the Islamic tradition in instances such as the response to Salman Rushdie’s ‘The Satanic Verses’ or to the cartoons of Mohammed published in Denmark or by French magazine, Charlie Hebdo. Equally though, Christians are often offended by pieces of art that are perceived to be insulting to Christ.
Racist speech is still sadly too common in Irish society. In April last year, the outstanding Wexford sportsman, Lee Chin, was racially abused from the sidelines at a charity hurling match in Tipperary. The GAA handed down a 48 week ban to the spectator who shouted the abuse. Was this a justifiable restriction on that spectator’s ‘right’ to freedom of speech? Should individuals have a right to scream racist (or sexist or homophobic) abuse at a game or indeed anywhere else? This is not just a challenge for the GAA and other sporting codes have also acknowledged the problem.
Interestingly, at the Oireachtas Sports Committee, the GAA supported the introduction of Hate Speech legislation precisely to deal with this sort of behaviour.
In this article, I hope that I have outlined some of the issues that legislators and regulators face in trying to balance freedom of speech with other rights such as personal safety, human dignity and social cohesion. Self-regulation already takes place by the online platforms and in other spheres.
There are valid concerns around some of the definitions in the Hate Speech legislation. It is important that any laws are clear and enforceable and that they achieve their intended purpose as well as avoiding any unintended consequences. These concerns must be addressed in the context of the next stage of the debate on this law. However, we have to maintain a focus on the purpose of these laws: to tackle the growing level of incitement to violence as a result of hateful intolerance.
I would hope that in considering these issues we can have a reasoned and evidence based debate (as I am sure there will be in the Comments section below) and that we can determine where we need to draw the line.
Malcolm Byrne is a Fianna Fáil Senator and member of the Oireachtas Media Committee.
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The cheapest room in the premier inn in the UK will cost you about £40 so apply Dublin prices and you’ll probably be paying €100 plus a night for a basic hotel.
@Ben Dawkins: at the very least
@Ben Dawkins: If there is any kind of concert or sports event they’ll drive the prices through the roof like the rest of them.
@Ben Dawkins: that’s about €100 a night cheaper than the rest at the moment
@Ben Dawkins: thats business. Supply & demand. Not much will change that. Give it a year & their average prices will be 5% or less cheaper than average. Remember when Tesco started selling fuel?? It was 10c or more cheaper then competing stations. Its the same price now.
In fairness as hotels in the UK go,they do the job at reasonable prices, but as this is Dublin thats another story.
@Paul Mc: Might want to view the Doc on Channel 4 in How they treat the Cleaners no pay for hours at work this might be the Reasonable prices charges
@Johnny Mason: seen that. Horrible stuff
@Johnny Mason: well actually that wasn’t Premier inn! That was a different company.
Since the documentary Premier Inn have since returned to using its own in house teams at that hotel and are anywhere else it was outsourced.
I stay at the T5 and T4 Premier Inns at Heathrow on a regular basis with work. All the employees tend to enjoy the job, there’s a bit of a John Lewis feel to working for them. Staff are enabled to make decisions for themselves and take their careers further in a structured rewarding manner!
Looks like it could of been a suitable location for the Homeless
@Johnny Mason: always one
@Johnny Mason: free houses for everyone!!!
@Johnny Mason: so your saying give the people that don’t work a prime location for free and let the working people go to all lengths to travel to city Centre to work at big expense
@Johnny Mason: why didn’t our government think of that , ah but then again we only vote for boys club and they only think about themselves
@Shaun Gallagher: Yeah culchies out! Leave dublin for the honest dubs.
@Johnny Mason: Does everything have to be about the homeless ffs? Terrible situation but it doesn’t mean everything else in the country stops because of it.
@Paul Howlin: It is a Terrible situation that is why I made the Comment didn’t think it was a unchristian comment but my apologizes if it upsets people like Ye
@Anto Whelan: Fair enough.
@Johnny Mason: if everyone gave up their property to the council to build homeless shelters we would all be homeless. Homeless people are in a very difficult situation, agreed and I’m very supportive of homeless charities but the answer isn’t to give everything to them. The world doesn’t work like that. A solution is needed but suggesting every building sold should have been sold to the council so they could build a homeless shelter in prime real estate is ridiculous.
@Johnny Mason: not everything in Ireland is about or can solve the housing crisis. Yes it’s terrible that families are living in hotels but if that was London they’d be on the streets! This all stems from the policy change to let people in council houses buy them. Before that, there was no getting rich off of social housing. But getting mad because a hotel chain wants to build a hotel is just stupid. A. They will do what they want regardless and B. Would it really have been suitable on a very busy road with night clubs and bars alongside? I for one welcome premier inn into Dublin. It would be nice to be able to afford to stay in the city occasionally.
@Johnny Mason: who mentioned anything relating to christianity? Not ever business decision or story relates to homelessness and the constant linking of completely unrelated stories to homelessness is causing people to become desensitized to the plight of the homeless through sheer fatigue at the volume of stories
@Colm O’Leary: This Hotel Project is another Prime example that we have abundance of derelict Properties around the Country that can be renovated and make a huge impact on the Housing Crisis . Yet we continue to put big business and Commercials Properties First and move mountains to accommodate their Interests all I am highlighting is their must be and can be a Little Consideration towards this Housing Crisis in similar ways
@Colm O’Leary: absolutely! On a night out in the city recently, it was impossible to find any hotel in the city on a Saturday night for less than €190. If Premier Inn could charge a bit less, then great. But considering their close proximity to Temple Bar, I doubt that they will.
@Anto Whelan: You are wrong all Dubs are Culchies now.
@Johnny Mason: we need home and hotels too.
@Johnny Mason: You don’t think Premier Inn have thought of that too..Guaranteed they’ll get a contract to house some..
@Alan Scott: Other way around and we have sent missionaries out to populate the land and spread the word of The Dub. We have taken over towns and villages by sleath. No longer is it u to Dublin to get a job, it is down the country to teach the good word
@Johnny Mason: oh sweet baby Jesus there’s always one.
@Johnny Mason: oh sweet baby Yeezus there’s always one.
@Johnny Mason:
New hotels are needed in city centre to meet rising demand for rooms, mainly from overseas tourists, and to keep a lid on prices, and to lessen the chances of serious price gouging during crowd-drawing events.
Many jobs are created, during construction phase and upon commencement of hotel operations phase, including many for local residents with the necessary experience and motivation to take on the short walk.
@Shaun Gallagher: Why do you say that all homeless people don’t work? I know a few people that work and some college students that are homeless and live out of a car or on the streets and some of them are sleeping on friends sofas. Many people cannot afford the rents the average rent in Dublin is 1300 per month and down the country its nearing a 1000 a month their are some people that don’t earn that amount per month get real.
@Johnny Mason: It’s “could have” not “could of”
Delighted to see that building put to use, just a shame its a premier inn.
@David Linehan: yea, they’re comfortable, but not a fan. Anti-suicide windows and long corridors make you feel like an inmate rather than a guest. Nonetheless Dublin needs beds.
@Greg Blake: true on all accounts
I stay in Premier hotel when in the UK. Always clean and comfortable, just one thing though, they regularly advertise sales with ‘rooms from £35. Try and find one, impossible!
There are at least 3 more Premier Inns in Ireland already, in Belfast !
@Brendan M: that’s not Ireland… yet
If you start regulating short term lettings we will need plenty of cheap hotels .
Want to clean the city center up first before they start planning all these new hotels especially around the board walk zero tolerance on these drug addicts
Few other Premier Inns already in Ireland, Belfast has at least 2 I know of…
@Brendan M: That is not Ireland that is the United Kingdom. Do you need a geography lesson.
@Brendan M: That’s Northern Ireland! As in part of the U.K. and it’s a U.K. brand so yeah, Belfast has been covered!
The only one in THIS country is in Swords!
@Tony Stanley: This island is called Ireland.
Good use of an empty building for a hotel – shame we’ve lost other amenities to this orgy of hotel building. Come to Dublin and stay for the er… hotels
@Ciaran Forde: I don’t visit Dublin anymore other than for business. It has nothing to do with the proliferation of hotels.
It’s dull and drab and heavily littered. It’s the only place in Europe, or the UK, that I visit that has locked toilet doors in eateries and coffee shops.
That has such an extreme level of aggressive beggars. That has open drug dealing and taking in broad daylight (as witnessed by my 9 year old).
I witnessed extreme violence at night on rugby weekends. I was even confronted myself for no reason. It’s prohibitively expensive, sprawling and hard to get around or through. Hotels are the least of Dublin’s worries.
@Etherman: Sums it up lovely
@lochinvar56: I take no pleasure in it. I used to love a visit to Dublin. We should all have a capital city to be proud of.
@Etherman: I’m pretty damn proud of it! I travel the world for a living and find Dublin to be one of the cleanest and easiest cities to get around with the best people, amazing food and great pubs!
I rarely feel intimidated by anything going on around me in it but like any major city you need to be street wise. The grass is not always greener!
Great city we have here!
@Tony Stanley: you must live in another Dublin. Etherman has it nailed.
@Etherman: Your experience is so far removed from the millions of visitors experiences that come here to Dublin every year. The overwhelming majority of tourists have amazing things to say about Dublin. As a Dub myself, I’m proud of our capital, it’s people, it’s culture, nightlife, music scene and food outlets. Is it perfect? No. Has it got issues like ALL capital cities? Yes. I travel for work and I’ve witnessed a shooting in New York, violence in Berlin and drug dealing in Madrid.
You can walk almost everywhere in Dublin city centre. Bus services are good, luas is good. Perhaps you’re driving in the city and struggling to get around???
Where is the paradise that you live?
I’ll take the amazing feedback of millions of annual visitors to Dublin over you any day.
@Etherman: stay away!….. I have lived in Dublin all my life and yes it has its problems but not nearly half as bad as the way country people describe it.and it’s about as dangerous as most of the cities towns and villages around Ireland. In fact I have seen more trouble outside chippers in country bumpkin villages than I have in Dublin. Fact.
@Patrick J. O’Rourke: what oasis are you living in Ireland paddy. Care to name it. Bet not.
@Ian Breathnach: these culchies will never name where they live, they just like tearing Dublin a new one in every article in here.
@John: Its a bleedin disgrace so it is.
@Etherman: Agreed on all accounts, I lived in the UK for 6 years and the contrast is stark.
In Cork at the moment and the infrastructure is equally underwhelming however much smaller and a few percentage points cheaper.
I may not stay in Ireland at all at the end of my contract, Dublin has so many negatives despite the draw of friends and family. Shame.
Great news:) hope they are reasonably priced. Premier inn are great for keeping the character of the buildings they occupy. I’ve stayed in many but the one in Albert Dock in Liverpool is fabulous inside and out. Red brick in the rooms etc.
Good to have the chain here. Always choose them when in England.
Yes. and they will be ripped off in the local area.
I am absolutely disgusted that yet another hotel is being built between the canal and the Liffey. How can yet another hotel go up when there aren’t enough beds in Dublin for people who actually live here?
Judging by some I’ve seen, they won’t have much to do with this building
have your say