Common points of contention
What is "reasonable and genuine contribution"?
Both supporters and opponents of the bill point out that there's no strict definition of what "reasonable and genuine" means precisely. The bill attempts to address this by defining it as "considered by a reasonable person as being reasonably necessary or incidental to such discourse":
Several stakeholders expressed concern that the defences were considerably wider than the equivalent defences contained in the 1989 Act, and could render the legislation ineffective, and unworkable. ICCL recommended the removal of the phrase “other lawful purpose” as it could have a broad application, whereas the Coalition and NYCI observed that the same phrase was very vague. [...]
The proposed defence of “reasonable and genuine contribution to literary, artistic, political, scientific, or academic discourse” was considered to be particularly problematic with some stakeholders raising concerns regarding definitional clarity. For example, ICCL, the Coalition and NYCI observed that the term “genuine” was very subjective, in particular, insofar as it relates to artistic contributions, and was insufficiently defined in the General Scheme. Similarly, INAR and BelonG To observed that the phrase “reasonable or genuine contribution” was insufficiently defined in the General Scheme. Seemingly in response to these concerns, section 6(1) of the Bill now indicates that an objective test will be used to determine what constitutes a “reasonable and genuine contribution”. It stipulates that the phrase “means a contribution that is considered by a reasonable person as being reasonably necessary or incidental to such discourse”.
Concept of a "reasonable person" is not new, and is already used in other areas of law application1.
In one of the debates on this very subject, Senator Barry Ward further explained that such provision aligns with how the rest of the criminal law is applied today:
We have been told the Bill overturns the burden of proof. I am a criminal barrister and work only in criminal defence.
I deal with this issue every day. There is no way I would stand in this Chamber and say it is acceptable to overturn the burden of proof. This Bill does not do that, which is why I am supporting it.
Let us consider what the Bill does achieve. It creates presumptions, or what we call in law "rebuttable presumptions", that exist in so much other legislation. The Minister gave one example, the Misuse of Drugs Act, but one could also have given the examples of the Criminal Justice (Theft and Fraud Offences) Act 2001 or the firearms legislation. If I am walking down the street with a knife in my pocket and get arrested by the Garda, for whatever reason, it is reasonable to require that I explain why I have a knife in my pocket. There would be a rebuttable presumption that I had the knife for a nefarious purpose. By the same token, if a search is conducted of a person's house and it is found to contain hateful material, including pamphlets decrying particular groups because of certain characteristics, it is reasonable to expect the person to explain why he or she has them and reasonable to conclude, in the absence of a rational explanation, that the person has them for a nefarious purpose. This provision exists in legislation of all kinds. Therefore, the same Senators who will today complain about the overturning of the burden of proof would need to complain about all the Acts in the criminal canon. One could say it is absolutely unfair to require people who walk into shops with foil-lined bags to explain why they have devices that are designed specifically to defy the magnetic detection devices at the entrances to shops, but of course it is not. Senators who are going to say things like this in this debate should tell us why what they propose should be the case.
Common criticism of the 2022 Bill
"Section 7(1)(a) means that simply sharing something on social media can be an offense!"
It may be, yes. Sharing hateful content is no less harmful than typing it out yourself.
Note, however, that such sharing is still a subject to additional conditions of section 7(1)(b) (having intent or being reckless), as well as to provisions of sections 7(3) and 11 (freedom of expression).
"Section 8 prohibits sharing something just because it doesn't conform to mainstream views!"
No it doesn't. Materials from different cultures and/or different historical context can be shared and discussed if that's done not with an intent to incite hatred, but to contribute to discourse. (See sections 7(3) and 11)
"Section 9 allows for anyone to accuse anyone even when no harm was done!"
No it doesn't.
Library & Research Service's digest of the Bill notes that the provision of having some actions criminalised even before actual harm is done is known as "inchoate offense" and is in line with international law.
After all, hateful conduct often does not cause physical harm to a person, but that does not mean that we should wait until someone snaps, if we can recognize harmful behaviour much earlier.
"I won't be able to say anything that someone else might find offensive!"
No, someone being offended as grounds for prosecution is not mentioned anywhere in the bill.
Footnotes
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Example of use of "reasonable" person: https://legalguide.ie/liability-in-negligence-ii/#the-reasonable-person ↩