Freedom of expression is a deeply embedded value of most democracies. It is a cornerstone of human rights upon which other rights such as freedom of assembly and freedom of religion depend. But what happens when this freedom is taken too far and becomes hate speech? Where is the line between the two?
The right to free speech is often invoked as a defense against attempts to regulate hateful expression. With the rise in digital platforms, there have been increased legislative attempts to curb hate speech. Unfortunately, even with increased awareness and legislation, hate speech is on the rise, according to the European Parliament Think Tank. It has become much more socially acceptable to express hate towards those deemed “others” and this is even seen in the political arena with the rise in migration concerns and also against both Jews and Muslims since the most recent Hamas attack and Israeli’s retaliatory war.
While there is no uniform definition of hate speech in law, the UN Strategy and Plan of Action on Hate Speech defines it as “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.” The 2008 Framework Decision, the current governing law relating to hate crimes within the EU, only criminalises “serious” crimes such as the incitement to violence or hatred.
The 2022 Digital Services Act requires that a service provider remove any hate speech from its platform that it is notified of. While the EU sets the minimum standards in relation to criminalising hate speech, it is up to each member state to implement this in its domestic legislation. In December 2021, the EU proposed to add hate speech and hate crime to the crimes under Article 38(1) of the Treaty on the Functioning of the European Union to ensure consistent protection to victims across the EU. However, while the proposal was enthusiastically welcomed, there has been no consensus on a plan of action.
Ireland is not immune to the global rise in hate crimes, seeing an increase of 13% in the figures between 2023 and 2024 based on An Garda Siochana reports, with anti-race and anti-nationality motives making up nearly 50% of all cases. On foot of a call from the European Commission to fully implement the 2008 Framework Decision into domestic law, the government passed The Criminal Justice (Hate Offences) Act 2024. The new law has made it easier for prosecutors to convict someone of a hate crime as it has now removed the requirement to prove that the perpetrator intended to cause harm. A defendant can no longer appeal the charges by saying that there was no intention of transmitting hatred. This legislation also allows for higher penalties when prejudice can be proved as a motivating factor for the crime.
“Legislating speech, no matter what the motive, can tread into dangerous territory and threaten the very democracy it purports to protect.”
A natural instinct is to legislate against hate speech. It seems like a reasonable measure to protect vulnerable individuals and groups from abusive and derogatory language. However, legislating speech, no matter what the motive, can tread into dangerous territory and threaten the very democracy it purports to protect.
In his book Free Speech: A History from Socrates to Social Media, Jacob Mchangama points out that while the intention behind hate speech laws is largely to silence far right extremists, minorities have also been targeted under these laws. Spain has used its hate speech laws to sentence a two left-wing, anti-establishment rappers to terms of nine months imprisonment for insulting the monarchy and glorifying terrorism in their lyrics. In 2023, France attempted to ban all pro-Palestine protests on the basis that they were likely to generate disturbances to public order. Thankfully, the French court decided that this should at least be determined on a case by case basis.
British writer, lecturer and broadcaster Kenan Malick has argued that hate speech restriction has become more about enforcing social regulation and less about intimidation or incitement. Some argue that the response then should be to tighten the definition of hate speech. However, Malick makes the point that “hate speech restriction is a means not of tackling bigotry but of rebranding certain, often obnoxious, ideas or arguments as immoral. It is a way of making certain ideas illegitimate without bothering politically to challenge them.” It is dangerous to allow society to stand on the brink of such a precipice.
Those who spew hate speech, while contemptible, often proclaim ideas that are morally acceptable to a portion of society. People who hold these views are unlikely to have their minds changed due to legislation. Legislation may stop the broadcasting of their ideas, but it does not change their underlying reasons. Is it worth the risk to society of legislating speech in such a way that, while it may stop “hate speech”, it may also stop the ability to challenge reigning political ideology?
Stacey Ebersole is currently a student at the Irish Centre for Human Rights undergoing an LLM Transitional Justice, Human Rights and Conflict.
