Incitement to Hatred

Stirring up Hatred

The Prohibition of Incitement to Hatred Act 1989 criminalises acts which are likely to stir up hatred. It is an offence to

• publish or distribute written material;
• to use words, behave or display written material,
• in any place, other than inside of private residence or inside of private residence so that the words behaviour or material are heard or seen by persons outside the residence or
• to distribute, show or play a recording of visual images or sounds,

if the materials, words, behaviour, images or sounds, are threatening, abusive or insulting or are intended or, having regard to all the circumstances, are likely to stir up hatred.

“Hatred” means hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origin, membership of the travelling community or sexual orientation.

“Publish” includes publication to a section of the public.

“ Recording” refers to any record of images or sounds that may be reproduced.

Defences

It is a defence to prove that the person was not aware of the content of the material or recording concerned and did not suspect and had no reason to suspect that the material or recording was threatening, abusive or insulting.

It is a defence for the accused to prove that he was inside a private residence at the relevant time and had no reason to believe that the words, behaviour or material concerned would be heard or seen outside the residence.

It is a defence if it is shown not to have intended to stir up hatred, or to prove that he did not intend the words, behaviour or material concerned and was not aware that they might be, threatening, abusive or insulting.

Broadcasting Offences

The broadcasting of an item involving threatening, abusive or insulting visual images or sounds, is an offence if the below categories of persons, intend to stir up hatred or, having regard to all the circumstances, hatred is likely to be thereby stirred up.

The persons for the above purposes are:

• the person providing the broadcasting service,
• the person by whom the item concerned is produced or directed, and
• any person whose words or behaviour in the item concerned are threatening, abusive or insulting.

Broadcasting Defences

In proceedings for the above offences, it is a defence if the person is not shown to have intended to stir up hatred and he proves that he did not know and had no reason to suspect that the item concerned would involve the material to which the offence relates, or having regard to the circumstances in which the item was broadcasted, it is not reasonably practicable for him to secure the removal of the material aforesaid.

There are defences for directors and producers, if they prove that they did not know and had no reason to suspect that the item would be broadcast, or that the circumstances in which the item would be broadcast would be such as hatred would be likely to be stirred up.

It is a defence for the person charged to prove that he did not know and had no reason to suspect that the material to which the offence relates was threatening, abusive, or insulting.

A script on which the item was based is evidence of what was included in the item and of the manner in which the item or any part of it was performed.

Possession of Material

It is an offence for a person to prepare or be in possession of any written material with a view to its being distributed, played, broadcast or otherwise published in the State or to be in possession of a recording, sounds or visual images with a view to its being distributed, shown, played, broadcast or otherwise published, in the State;

if the material or recording is threatening, abusive or insulting and is intended or, having regard to the circumstances, is likely to stir up hatred.

It is a defence if the accused is did intend to stir up hatred, that he was not aware of the content of the material or recording concerned and did not suspect, and had no reason to suspect, that the material or recording was threatening, abusive or insulting.

It is presumed that a person  is in possession of material or a recording in contravention of the prohibition, where it is proved that he was in possession of the material or recording in circumstances where it is reasonable to assume that it was not intended for personal use.

None of the provisions above apply to fair and accurate report of proceedings in either House of the Oireachtas or of an official report or publication of the House or a committee of the House.

The prohibition is not breached by fair and accurate report of proceedings publicly heard before a court, or a tribunal exercising functions or powers of a judicial nature, where the report is published contemporaneously with the proceedings and if it is not reasonably practicable or would be unlawful to publish a report of them contemporaneously, as soon as publication is reasonably practicable and lawful.

Investigation

The Gardai have powers under the legislation. Where a member of rank of superintendent or above, has reasonable grounds of suspecting that an offence has been committed or that an item is to be included and that an offence is likely to be committed, may make an order in writing, authorising any member of An Garda Siochána within one month, to require any person named in the order, on production of the order to produce a script, or recording and affording the opportunity to copy.  Failure without reasonable excuse to comply with the requirement made, is an offence.

It is an offence to obstruct or interfere with a member of An Garda Síochána in executing a warrant or to fail or refuse to give information, give a false or misleading name or address.

A District Court or Peace  Commissioner may on foot of sworn information issue a warrant where there are reasonable grounds for suspecting that material or recordings, possession of which would contravene the legislation or a script is at a premises or place. A warrant may be issued to seize the recording, material or script concerned, require persons to give their name and address and  may authorise searching of the premises.

Sanctions and Persons Liable

A person guilty of the main offences under the legislation is subject on summary conviction, to a fine up to €1270 or imprisonment of a term of six months or both. He is liable on conviction on indictment, to a fine up to €12,700 or to imprisonment or for a term up to two years or both.

Offences by a body corporate may also be the subject of proceedings against directors, managers and other officers, who have consented to or connived or to whose neglect the offence is attributable.