What is in Ireland's new so-called 'thought crime' bill, how many years in jail can you get, and which parties are backing it?

The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 as a whole seeks to "amend the law relating to the prohibition of incitement to violence or hatred against a person, or a group of persons, on account of certain characteristics of the person, or the group".

These “protected characteristics” are:

(A) race, (b) colour, (c) nationality, (d) religion, (e) national or ethnic origin, (f) descent, (g) gender, (h) sex characteristics, (i) sexual orientation, or (j) disability.

Importantly, this is the bill’s definition of what "gender" means:

"The gender which a person expresses as the person’s preferred gender, or with which the person identifies, and includes transgender, and a gender other than those of male and female" *.

• THE THREE MAIN CLAUSES EXPLAINED •

The three main clauses are Sections 7, 8, and 10.

They set out what the new crimes will involve, and what kind of prison time offenders could do.

Section 7 of the bill says it will be a crime if somebody "communicates material to the public or a section of the public, or behaves in a public place in a manner that is likely to incite violence or hatred against a person or a group of persons, on account of their protected characteristics".

To count as a crime, Section 7 says the offender must have either the "intent to incite violence or hatred", or to have been "reckless as to whether such violence or hatred is thereby incited".

This, added to the definition of "gender" above, suggests it will become a crime to voice views which risk resulting in "hatred" towards people who are biologically male, but who want access to women's changing rooms and sports because they feel female.

Similarly, it also suggests it will be a crime to express views which could inspire "hatred" towards the "non-binary" movement (comprised of people who say they are neither male nor female, but instead belong to some new category like "two-spirit" or "gender-queer").

The maximum penalty under Section 7 is five years in jail.

Section 8 deals with "condoning, denying or grossly trivialising genocide, war crimes, crimes against humanity and crimes against peace".

It says that to "behave in a public place" in such a way, or to "communicate material" of this kind, will be a crime if it can be proven there is "intent to incite violence or hatred".

The maximum penalty under Section 8 is one year in jail.

Section 10 then goes further.

Under this section, it will be a crime of someone merely "possesses material that is likely to incite violence or hatred against a person or a group of persons... with a view to the material being communicated to the public or a section of the public, whether by himself or herself or another person".

The bill says that where it is "reasonable to assume that the material was not intended for personal use", it will be "presumed" that the accused did indeed intend to disseminate it unless they can prove otherwise.

The maximum punishment under Article 10 is two years in jail.

However, there is a get-out clause for suspected offenders – they can defeat the prosecution by showing the material in question counts as a "reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse".

The new law would apply not just to anyone committing such crimes within Ireland's territorial borders, but to anyone accessing "material hosted on an information system in the state".

In other words, this could open up the possibility that if "hateful material" is saved on a server in Ireland, then the person who saved it there has committed a crime, regardless of where they are in the world or whether they knew where the data was being saved.

• WHO VOTED FOR THIS? •

It was passed last week in the Dail (the Irish equivalent to the House of Commons) and has now gone to the Seanad (the Irish equivalent of the Lords) for what looks likely to be a rubber-stamping exercise.

It was approved by 110 votes to 14, with the 110 "yes" votes including Sinn Fein, Labour, the Green Party, FIne Gael (including leader Leo Varadkar personally), and Fianna Fail (including leader Micheal Martin personally).

The 'No' votes came from People Before Profit, alongside Aontu and several independents.

However, People Before Profit's contribution to the debate was mixed; whilst voicing fears about freedom of speech and describing the bill as heralding the advent of “thought crime”, its TD Paul Murphy tried (unsuccessfully) to remove freedom of speech protections for Christians and other religious believers from the bill.

"A certain portion of hate speech, particularly homophobic, transphobic or sexist hate speech, in society is sometimes put forward under the guise of being a contribution to religious discourse," he said.

"Fundamentally, that should not be a defence. Hate speech is hate speech even if the person involved says it is his or her deeply held religious view that gay people are sinners and, therefore, it is appropriate for him or her to incite violence against them.

"That should not be a defence and, on that basis, we seek the deletion of the religious ground as a defence."

• ELON MUSK, TRUMP JNR, JORDAN PETERSON WEIGH IN •

Criticism of the bill has been international, with a number of Twitter users saying it amounts to ushering in an era of “thought crime”.

Elon Musk, the US-based space pioneer and owner of Twitter, told his 138 million followers: "This is a massive attack against freedom of speech."

Former Ivy League psychology professor Dr Jordan B Peterson (@jordanbpeterson, 4.1m followers), made reference to similar recent efforts at criminalising "hate speech" in Canada: "Coming your way, Canadians: Bill C-11 is just the beginning. This is where Ireland already stands. Those with eyes open: note and heed Elon Musk's response."

Donald Trump Jr (@DonaldJTrumpJr, 9.8 million followers) said: "It’s insane what’s happening in the 'free world'."

Meanwhile Count Dankula (@CountDankulaTV, 475,000 followers) – a Scottish man called Mark Meechan who was convicted after filming a "grossly offensive" video of a dog raising its paw, sieg heil-style – also weighed in.

He said: "You know how Scotland passed the Hate Crime Bill that made us tumble a few dozen places in the Freedom Index and made us the most authoritarian part of the UK?

"Well Ireland thought that sounded smashing and have decided to do the same thing."

Gay Irish libertarian Paddy Manning (@PaddyJManning, 10,000 followers) said: "Ireland's hate speech law won't result in many prosecutions.

"It's not law as you understand law. It's lawfare, where the law creates a process of investigation and disrepute that does not require a guilty verdict to punish.

"The process is the punishment."

Lawyers For Justice Ireland (@LFJIreland, 5,000 followers) was among those saying the bill amounts to the creation of “thought crimes”, adding: "The most chilling effect of hate speech laws are that they will lead to self censorship as people will fear speaking out.

"This is all by design as as such laws are designed a tool to silence dissent at a critical juncture in our society when more and more people are waking up."

* This is different from the UK. Under the UK's 2010 Equality Act, "sex" and "gender reassignment" are the protected characteristics, not "gender".

Under this piece of UK law, someone has the protected characteristic of "gender reassignment" if that person "is proposing to undergo, is undergoing, or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex".

More from this reporter:

• Fears raised about freedom of expression as prosecutors say it is ‘no longer appropriate’ to quote parts of the Bible in public

• The Free Speech Union says expanding reach of hate crime law in Northern Ireland risks ‘empowering the easily offended and endangering the peace process’