Elon Musk, Donald Trump Jr and the Irish hate speech row

Elon Musk wants to take legal action over it. The son of former United States president Donald Trump called it "insane". And it's the most hotly-debated piece of paperwork sitting in the Irish government's in-tray.

It's the country's first dedicated piece of legislation to combat hate speech - The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022.

Critics - including Donald Trump Jr and Mr Musk - say the proposed legislation excessively encroaches upon freedom of expression, with little clarity on what defines incitement to hatred.

With dozens of amendments anticipated, the law is set to make plenty of headlines as it makes its way through the Oireachtas (Irish Parliament) - but what is it and why is it so controversial?

The proposed legislation will establish statutes for addressing incitement to violence or hatred.

A spokesperson for the Department of Justice said "the real purpose of this bill is protecting those who are most vulnerable" to hate crime and hate speech.

“Ireland does not have specific hate crime offences set out in law, making us an outlier in the western world," they added.

The bill will allow for higher sentences if someone is convicted of assaulting a person on the basis of hatred for “protected characteristics”.

These include race, colour, nationality, religion, ethnicity, gender, sexual orientation and disability.

The department has stressed that the legislation is “not a new or radical departure in Irish law” and said it wants to be clear about what is, and what isn’t, intended with the bill.

For example, it says:

• “You will still be able to offend other people or express views which make others uncomfortable”

• “You will still be able to debate and discuss issues regarding protecting characteristics”

• “The new law includes defences for reasonable and genuine contributions to literary, artistic, political, scientific, religious or academic discourse, and fair and accurate reporting”

• “You can be offensive, say things that make others uncomfortable, have full and robust debate”

• “You cannot incite hatred or violence against others”

• “You cannot use extreme forms of speech to deliberately and recklessly encourage or incite other people to hate or cause harm to a person because of your views”

Freedom of expression is a protected right under both the Irish constitution and the European Convention on Human Rights.

A spokesperson for the European Commission told BBC News NI it had been in contact with Irish authorities to “support an effective transposition of the Framework Decision on combating racism and xenophobia by means of criminal law”.

“Once the bill is adopted, the commission services will closely assess the conformity of the new legislation with EU legislation criminalising hate speech and hate crime,” they added.

The Coalition Against Hate Crime Ireland, an umbrella body representing groups commonly targeted in hate crimes, has campaigned for legislation reform and in October it welcomed publication of the bill.

The coalition is headed up by the Irish Council for Civil Liberties (ICCL), but it has said it was unhappy with the proposed law change in its current form.

A spokesperson for the ICCL said it “fully supports freedom of expression” and the body has been advocating to ensure the bill properly protects this right.

“ICCL’s position is that only the most extreme forms of hate speech… should be addressed through criminal law,” they said.

The council has made several recommendations for the bill:

• Strengthen and make more explicit freedom of expression defences
• Remove an offence that would criminalise the possession and preparation of material that would likely incite hatred
• A statutory review of the legislation within five years

“Other forms of hate speech, which might cause deep offence but do not reach a criminal threshold, should be combated by other means," they added.

Free Speech Ireland spokesperson Sarah Hardiman said the bill is in "no way clear and possibly intentionally vague".

She said the organisation supported hate crime reform but thought the planned legislation needed "greater protections [to] balance up the free speech restrictions".

"The context in which speech is delivered would now be scrutinised, possibly to the point [of] comments and memes on the internet," Ms Hardiman added.

"It's simply not the role of the state."

Such is the debate around this bill, it has prompted reaction from two lightning rods of controversy - Elon Musk and Donald Trump Jr.

Writing on his social media platform X, formerly known as Twitter, Mr Musk said the proposed legislation was a "massive attack against freedom of speech".

The businessman has more recently said he would file a legal action to "stop" hate speech laws in Ireland.

Taoiseach (Irish Prime Minister) Leo Varadkar offered a blunt response.

"He cannot just challenge a law in the courts and certainly not one that isn’t even a law yet," Mr Varadkar told the Sunday Independent.

“I suspect he doesn’t know what he means and is just showboating.”

Donald Trump Jr also chimed in on the proposed legislation, writing: "It’s insane what’s happening in the “free world”."

Simon Harris - who was interim justice minister at the time - was quick to shrug the criticism off, telling reporters that when someone from the Trump family took a contrary view it was “not a bad day at the office”.

That remains to be seen - it is anticipated the bill will pass into law in one form or another and how this works in terms of policing has yet to be fully established.

A spokesperson for the Irish police force, An Garda Síochána, said the organisation does not comment on the detail of proposed legislation.

The force said it was “committed to providing a human-rights focused” police service.

Its current definition of hate crime is based on the McPherson “perception-based test”.

This means, it said, that if a victim or witness "perceives the incident was motivated by prejudice based on one of the nine protected characteristics... then it is recorded as such".

But critics of the bill fear a lack of definition on the term "incitement" could lead to an unproportionate response.

Free Speech Ireland said it was “gravely concerned with the overreach of gardaí powers that would be instilled in this legislation".

"With the specific protected categories of speech, we’re concerned that this will ultimately restrict freedom of expression, which is a constitutionally-guaranteed right," Sarah Hardiman added.

"The current bill is also vague in defining terms such as hate and incitement. Any form of legislation should be very clear in its definition and intention."

While some free speech advocates feel the legislation may lead to unnecessary policing, others fear the opposite.

Martin Collins, co-director of the travellers' group Pavee Point, said for the legislation to be effective it should include both a demonstration and a motivation test of proof for hate crime offences.

"Relying on a motivation test alone could result in difficulties enforcing the legislation," he said.

"It can be difficult to prove people’s thinking [or] motivation and this could lead to low levels of prosecution, as we saw with the Incitement to Hatred Act 1989.”

What happens now is anybody's guess.

The bill progressed swiftly enough through the Dáil (lower house of parliament) with broad support from across the political spectrum, but the climate could be changing.

"Other than in the context of the mother and baby homes, I do not think I have received as many emails about a particular piece of legislation as I have in respect of this one," Senator Regina Doherty said in June.

Senators are now poised for further debate as the legislation reaches committee stage in the Seanad (upper house of parliament).

"Ultimately we would like to see the bill defeated, we realistically know that’s not going to happen, at a very minimum we would like to see a definition around the word 'incitement'," Sarah Hardiman said.

"I'm now optimistic...I believe there's over 80 proposed amendments to come through."

Some of these amendments are being put forward by Senator Sharon Keogan, who has been very vocal in her opposition to the bill.

She claims the bill "seeks to codify the prevailing narratives and restricts the free exchange of ideas" and has urged her colleagues "to be brave and speak up".

Time will tell if those senators choose to exercise their own rights to free speech.