No. 19/1989:

PROHIBITION OF INCITEMENT TO HATRED ACT, 1989

ARRANGEMENT OF SECTIONS

Section

1. Interpretation.

2. Actions likely to stir up hatred.

3. Broadcasts likely to stir up hatred.

4. Preparation and possession of material likely to stir up hatred.

5. Savings for reports of proceedings in Houses of Oireachtas or judicial proceedings.

6. Penalties.

7. Offences by bodies corporate.

8. Certain proceedings only by or with consent of Director of Public Prosecutions.

9. Search and seizure.

10. Powers of arrest.

11. Forfeiture.

12. Short title and commencement.

ACTS REFERRED TO

Number 19 of 1989

No. 19/1989: PROHIBITION OF INCITEMENT TO HATRED ACT, 1989

AN ACT TO PROHIBIT INCITEMENT TO HATRED ON ACCOUNT OF RACE, RELIGION, NATIONALITY OR SEXUAL ORIENTATION.

[29th November, 1989]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1.—(1) In this Act—

"broadcast" means the transmission, relaying or distribution by wireless telegraphy or by any other means or by wireless telegraphy in conjunction with any other means of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not;

"distribute" means distribute to the public or a section of the public and cognate words shall be construed accordingly;

"hatred" means hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation;

"publish" means publish to the public or a section of the public and cognate words shall be construed accordingly;

"recording" means any record from which visual images or sounds may, by any means, be reproduced, and references to the distribution, showing or playing of a recording are to its distribution, showing or playing to the public or a section of the public and "distribute", "show" and "play", and cognate words, in relation to a recording, shall be construed accordingly;

"written material" includes any sign or other visual representation.

(2) In this Act—

( a ) a reference to any enactment shall, unless the context other wise requires, be construed as a reference to that enactment as amended or extended by any subsequent enactment,

( b ) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other enactment is intended,

( c ) a reference to a subsection or paragraph is a reference to the subsection or paragraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

2.—(1) It shall be an offence for a person—

( a ) to publish or distribute written material,

( b ) to use words, behave or display written material—

(i) in any place other than inside a private residence, or

(ii) inside a private residence so that the words, behaviour or material are heard or seen by persons outside the residence,

or

( c ) to distribute, show or play a recording of visual images or sounds,

if the written material, words, behaviour, visual images or sounds, as the case may be, are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred.

( 2 ) ( a ) In proceedings for an offence under subsection (1), if the accused person is not shown to have intended to stir up hatred, it shall be a defence for him to prove 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.

( b ) In proceedings for an offence under subsection (1) (b), it shall be a defence for the accused person—

(i) 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 beard or seen by a person outside the residence, or

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

(3) In this section "private residence" means any structure (including a tent, caravan, vehicle, vessel or other temporary or moveable structure) or part of such a structure used as a dwelling but does not include any part not so used or any part in which a public meeting is being held; and in this definition "public meeting" means a meeting at which the public are entitled to be present, on payment or otherwise and as of right or by virtue of an express or implied permission.

3.—(1) If an item involving threatening, abusive or insulting visual images or sounds is broadcast, each of the persons mentioned in subsection (2) is guilty of an offence if he intends thereby to stir up hatred or, having regard to all the circumstances, hatred is likely to be stirred up thereby.

(2) The persons referred to in subsection (1) are:

( a ) the person providing the broadcasting service concerned,

( b ) any person by whom the item concerned is produced or directed, and

( c ) any person whose words or behaviour in the item concerned are threatening, abusive or insulting.

(3) In proceedings against a person referred to in paragraph (a) or (b) of subsection (2) for an offence under this section, if the person is not shown to have intended to stir up hatred, it is a defence for him to prove—

( a ) 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

( b ) in a case other than one to which paragraph (a) relates, that, having regard to the circumstances in which the item was broadcast, it was not reasonably practicable for him to secure the removal of the material aforesaid.

(4) In proceedings against a person referred to in subsection (2) (b) for an offence under this section, it is a defence for the person to prove that he did not know and had no reason to suspect—

( a ) that the item would be broadcast, or

( b ) that the circumstances in which the item would be broadcast would be such that hatred would be likely to be stirred up.

(5) In proceedings against a person referred to in subsection (2) (c) for an offence under this section, it is a defence for the person to prove that he did not know and had no reason to suspect—

( a ) that an item involving the use of the material to which the offence relates would be broadcast, or

( b ) that the circumstances in which such an item would be broadcast would be such that hatred would be likely to be stirred up.

(6) In proceedings for an offence under this section, 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.

(7) In any proceedings for an offence under this section alleged to have been committed in respect of an item—

( a ) a script on which the item was based shall be evidence of what was included in the item and of the manner in which the item or any part of it was performed, and

( b ) if such a script is given in evidence on behalf of any party to the proceedings, then, except in so far as the contrary is shown, whether by evidence given on behalf of the same or any other party, the item shall be taken to have been performed in accordance with that script.

( 8 ) ( a ) If a member of the Garda Síochána not below the rank of superintendent has reasonable grounds for suspecting—

(i) that an offence under this section has been committed by a person in respect of an item included in a broad-cast, or

(ii) that an item is to be so included and that an offence under this section is likely to he committed by a person in respect of the item,

he may make an order in writing under this section authorising any member of the Garda Siochána—

(I) at any time or times within one month from the date of the making of the order, on production if so requested of a copy of the order, to require any person named in the order to produce, if such a thing exists—

(A) a script on which the item aforesaid was or, as the case may be, will be based, or

(B) a recording of any matter which was or, as the case may be, will be included in the item, and

(II) if the script or recording is produced to him, to require the person to afford him an opportunity of causing a copy thereof to be made.

( b ) An order under this subsection shall be signed by the person by whom it is made, shall name the person to whom it is directed and shall describe the item to which it relates in a manner sufficient to enable the item to be identified.

( c ) Any person who without reasonable excuse fails or refuses to comply with a requirement made pursuant to an order under paragraph (a) shall be guilty of an offence.

( d ) Where, in the case of an item based on a script, a copy of a script on which the item was based has been made by or on behalf of a member of the Garda Síochána by virtue of an order under this subsection relating to the item, subsection (7) shall apply in relation to that copy as it applies in relation to a script on which the item was based; and a document purporting to be a copy of the script and to be signed by the member shall be deemed, for the purposes of this section, to be such a copy and to be so signed unless the contrary is shown.

( e ) Nothing done under this subsection or in pursuance of an order under this subsection or the use of a script or recording such as aforesaid or a copy thereof exclusively for the purposes of the enforcement of this section shall constitute—

(i) an infringement of the copyright of any work, sound recording, cinematograph film or television or sound broadcast, or

(iii) an offence under any of the provisions of the Performers' Protection Act, 1968 .

(9) In this section "script', in relation to an item, means the text of the item (whether expressed in words or in musical or other notation) together with any directions for its performance, whether contained in a single document or not.

4.—(1) It shall be an offence for a person—

( a ) to prepare or be in possession of any written material with a view to its being distributed, displayed, broadcast or otherwise published, in the State or elsewhere, whether by himself or another, or

( b ) to make or be in possession of a recording of sounds or visual images with a view to its being distributed, shown, played, broadcast or otherwise published, in the State or else-where, whether by himself or another,

if the material or recording is threatening, abusive or insulting and is intended or, having regard to all the circumstances, including such distribution, display, broadcasting, showing, playing or other publication thereof as the person has, or it may reasonably be inferred that he has, in view, is likely to stir up hatred.

(2) In proceedings for an offence under this section, if the accused person is not shown to have intended to stir up hatred, it shall be a defence for him to prove 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.

(3) In proceedings for an offence under this section, where it is proved that the accused person was in possession of material or a recording such as is referred to in subsection (1) and it is reasonable to assume that the material or recording was not intended for the personal use of the person, he shall be presumed, until the contrary is proved, to have been in possession of the material or recording in contravention of subsection (1).

5.—Sections 2, 3 and 4 do not apply to—

( a ) a fair and accurate report of proceedings in either House of the Oireachtas or a committee of the Oireachtas or of either such House or an official report or publication of the Oireachtas or either such House or such a committee, or

( b ) a 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 or, 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.

6.—A person guilty of an offence under section 2, 3 or 4 shall be liable—

( a ) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both, or

( b ) on conviction on indictment, to a fine not exceeding £10,000 or to imprisonment for a term not exceeding 2 years or to both.

7.—(1) Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other similar officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

8.—Where a person is charged with an offence under section 2, 3 or 4, no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.

9.—(1) ( a ) If a justice of the District Court or a Peace Commissioner is satisfied on the sworn information of a member of the Garda Síochána not below the rank of sergeant that there are reasonable grounds for suspecting that material or a recording the possession of which would be in contravention of section 4 or a script or recording referred to in section 3 (8) is in or at any premises or other place, he may issue a warrant under his hand authorising any member of the Garda Síochána, accompanied by any other members of the Garda Síochána, at any time or times within one month from the date of the issue of the warrant, on production if so requested of the warrant, to enter, if need be by force, and search the premises or other place specified in the warrant and—

(i) to seize any such recording, material or script as aforesaid found there, and

(ii) to require any person found there to give him his name and address.

( b ) A justice of the District Court or a Peace Commissioner shall not issue a warrant under paragraph (a) in relation to a script or recording referred to in section 3 (8) unless he is satisfied by information on oath—

(i) that a requirement specified in subparagraph (I) of section 3 (8) (a) was made in relation to it and was not complied with,

(ii) that the requirement specified in subparagraph (II) of section 3 (8) (a) was made in relation to it and was not complied with, or

(iii) that, in all the circumstances, it is necessary to issue the warrant notwithstanding that a requirement specified in the said subparagraph (I) or that specified in the said subparagraph (II) was not made in relation to it.

(2) A person who—

( a ) obstructs or interferes with a member of the Garda Síochána acting under the authority of a warrant under this section, or

( b ) is found in or at the premises or other place specified in the warrant by a member of the Garda Síochána acting as aforesaid and who fails or refuses to give the member his name and address when required by the member to do so or gives him a name or address that is false or misleading, shall be guilty of an offence and shall be liable on summary conviction—

(i) if the offence is under paragraph (a), to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both, or

(ii) if the offence is under paragraph (b), to a fine not exceeding £500.

(3) In this section "premises" includes a vehicle, vessel, aircraft or hovercraft or an installation in the territorial seas or in a designated area (within the meaning of the Continental Shelf Act, 1968 ) or a tent, caravan or other temporary or moveable structure; and a vessel or hovercraft or such an installation as aforesaid may be treated, for the purposes of the jurisdiction of a justice of the District Court under this section, as being in any place in the State.

10.—(1) If a member of the Garda Síochána reasonably suspects that a person has committed an offence under section 2 (1) (b), he may arrest him without warrant.

(2) If a member of the Garda Síochána reasonably suspects that a person has committed an offence under this Act (other than an offence under section 2 (1) (b) or 9 (2) (b)), he may require him to give him his name and address and, if the person fails or refuses to do so or gives a name or address that the member reasonably suspects to be false or misleading, the member may arrest him without warrant.

(3) A member of the Garda Síochána acting under the authority of a warrant under section 9 may arrest without warrant a person whom the member reasonably suspects of having committed an offence under subsection (2) (b) of that section.

11.—(1) The court by or before which a person is convicted of an offence under section 2, 3 or 4 may order any written material or recording shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or otherwise disposed of in such manner as the court may determine.

(2) A court shall not order written material or a recording to be forfeited under this section if a person claiming to be the owner of it or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made.

(3) An order under this section shall not take effect until the ordinary time for instituting an appeal against the conviction or order concerned has expired or, where such an appeal is instituted, until it or any further appeal is finally decided or abandoned or the ordinary time for instituting any further appeal has expired.

12.—(1) This Act may be cited as the Prohibition of Incitement to Hatred Act, 1989 ,

(2) This Act shall come into operation one month after the date of its passing.