Proposed Irish hate speech regulations could have a chilling effect on freedom 

In light of the Dublin riots, which estimates suggest resulted in millions of euro worth of damage, following the stabbing of three children outside their school by a foreign national, Ireland’s regional free speech culture war battleground has become global. 

Several public figures from across the world have sounded the alarm over potential threats to freedom of speech provoked by Irish government legislation to combat so-called ‘hate speech.’

Immediately following the riots, prime minister, or Taoiseach, Leo Varadkar made it his priority, not to ensure the safety of children going to school, but to combat wrongthink. 

“We will modernise our laws against incitement to hatred and hatred in general”, he said before adding, “I think it’s now very obvious to anyone who might have doubted us that our incitement to hatred legislation is just not up to date. It’s not up to date for the social media age. And we need that legislation through within a matter of weeks.”

Even before the riots, the Irish government has sought to curb “hate speech” through legislation called The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022. 

The bill has caused quite the stir both inside and outside Ireland, with the riots providing a renewed sense of urgency on the part of the government to see the legislation through. 

“Free speech absolutist” and Twitter, now X, CEO Elon Musk has threatened to take the Irish State to court over the legislation; Donald Trump Jr. has described the bill as “insane”; and member of the Irish Parliament Willie O’Dea blasted the architect of the legislation, Irish Justice Minister Helen McEntee, as an attempt by her to “play to the woke gallery.” 

But what’s in the bill that has opponents so worried about the threat to freedom of speech? 

As per the tentative legislation, people with “protected characteristics” which includes, inter alia, race, color, and nationality are afforded new legal protections against psychical and mentally inflicted harms, in which offenders are motivated by “hatred.”

The problem with the bill is that hatred in this instance is not defined. 

Indeed, the term “hatred” is often used to describe a range of legitimate concerns that many in the political class would prefer not to talk about including the tinder box of immigration that Ireland is now coming to terms with. 

Even more worrying is the bill’s criminalizing of possession of ill-defined hateful material “with a view to the material being communicated to the public or a section of the public.” Despite Ireland’s common law tradition of innocent until proven guilty, the legislation places the onus on the accused to prove he or she did not intend to distribute the hateful material in public. 

As such, Ireland’s police force, An Garda Síochána, will have the authority under the bill to raid the home of the possessor of such material, demand their password and seize their devices. Failure to comply could result in a year-long prison sentence.
As previously mentioned, Irish politicians feel current legislation is not sufficient in the social media age. This legislation, which is currently stalled in Ireland’s upper chamber, the Irish Senate, will replace legislation dating from as far back as the 1980s known as the Prohibition of Incitement to Hatred Act 1989. 

A separate but related piece of legislation, which has passed, specifically related to social media, also has free speech advocates concerned about Ireland’s commitment to safeguarding that right. 

While a recent opinion piece in The Hill described attempts by Ireland to regulate social media as a means to disrupt harmful algorithms, the moves go beyond that. 

The Online Safety and Media Regulation Act was signed into law by Irish President Michael D Higgins in December 2022. 

Under the terms of this bill it is an offense to publish or distribute “online content” contrary currently to the 1989 statute but, if passed, will apply to the 2022 legislation in which what constitutes ‘hateful material’ remains vague. 

The legislation establishes a new online safety commission known as Coimisiún na Meán which will enforce the regulations. 

As a member of the European Union Ireland will also be at the forefront in enforcing the EU’s signature piece of social media regulation known as the Digital Services Act (DSA). The DSA places similar curbs on social media to monitor so-called harmful content. 

However, due in large part to hospitable tax incentives such as a 12.5 percent corporate tax rate, many social media conglomerates have located their headquarters in Dublin, including Meta and X, to avail of low taxes. 

As a result, Ireland is often compelled by EU authorities to impose hefty fines on social media companies for privacy violations among other things. 

However, if Ireland continues to disrupt Elon Musk’s business model which is enhancing free speech on X it could see the major Irish employer close up shop in the country. 

In a sign of what’s to come, X recently cancelled a trust and safety contract with an Irish outsourcing company making over 70 workers redundant. The Irish-based team were replaced by an outsourcing firm based in Lisbon, another hub for global tech firms. 

Indeed, Irish domestic regulations could have a ripple effect across not only Europe but America as well. 

Journalist for Brussel Signal Peter Caddlesays that EU ‘hate speech’ regulations could “leak” into all social media terms of service as it will “likely be easier to apply EU censorship rules to all users rather than to try to split the user base into EU and non-EU users.” As a result, he claims, “Americans could end up getting hit.” 

This, according to Sarah Hardiman of Free Speech Ireland, could include “comments and memes on the internet.” 

The Irish Council for Civil Liberties (ICCL) has said that what some may consider “hate speech” that could cause “deep offense” but does not encompass a “criminal threshold… should be combated by other means.” 

While a judge may find it difficult to prosecute internet users over such material due to the vagueness of the criteria, this could have a damaging effect on an ordinary person’s sense of security when sharing content online. 

This is a classic case of the Irish government and the EU punching down and seeking to prevent the public from expressing their views on a wide range of topics as they may fear prosecution. 

While regulation of social media is necessary and important given the sheer power tech firms have amassed in recent years, seeking to curb freedom of speech is an even bigger threat. 

Theo McDonald is a freelance journalist based in Dublin, Ireland. He writes primarily about economic and social issues impacting the country.