New hate crime law to cover social media

Tuesday 01 February 2022

A law to ban hate crime in Jersey has been pushed back so it can cover comments made on social media.

Hate crime is broadly defined as any criminal offence which is perceived by the victim or any other person to be motivated by hostility or prejudice, based on the ‘protected characteristics’ of an individual, such as disability, race, religion, gender or sexual orientation.

The Home Affairs Minister was due to lodge the draft Crime (Prejudice and Public Disorder) Law imminently after extensive consultation, but Deputy Gregory Guida said he had decided to delay it after the Scottish Parliament approved a new piece of legislation that addresses the very latest issues around social media.

The law will now have to be proposed by the next Council of Ministers.

The Scottish Hate Crime and Public Order Act was passed by its Assembly last year.

Under the bill, offences are considered “aggravated” - which could influence sentencing - if they involve prejudice on the basis of age, disability, race, religion, sexual orientation, transgender identity or variations in sex characteristics.

It also creates a new crime of “stirring up hatred” against the protected groups - which is defined as “behaving in a threatening or abusive manner, or communicating threatening or abusive material to another person”.

It does not tackle misogyny, or gender-based violence, but Deputy Guida said that Jersey’s draft law would. 

The introduction of the Scottish law has not been without controversy, with opponents raising concerns about its impact on freedom of speech. 

Pictured: Home Affairs Minister Gregory Guida: "I am very upset not to have it as one of our achievements but, on the other hand, I completely recognise that it needs rewriting from scratch to include this."

While supporting the principle of protecting people from prejudice, they also argued that the definition of “stirring up hatred” was too vague and open to interpretation.

In November, the Economist wrote: “Scotland’s new Hate Crime Act will have a chilling effect on free speech. It is the latest example of growing authoritarianism.

“It will make certain political arguments punishable by up to seven years in jail. It creates an offence of 'stirring up' hatred, criminalising utterances that are considered inflammatory or insulting even when they cause no actual harm and are not intended to incite a specific act. 

“And it covers private conversations, even within the home.”

However, while incorporating elements of the bill, Deputy Guida said that Jersey would not be copying it word for word.

Grilled by a panel of politicians at a Scrutiny hearing this week, he said: “Our new Prejudice Law was originally based on the UK law which is more than ten years old. We were pretty much ready to lodge it, then the Scottish came up with a much-updated law which took more account of the current landscape of social media.

“That was not very well taken care of in our [draft] law, and we saw just how outdated it would be on entry. It was hard for me to let it go because it was ready to be lodged but I can see that it makes much more sense to include social media, where most of the harassment takes place now.

He added: “I am very upset not to have it as one of our achievements but, on the other hand, I completely recognise that it needs rewriting from scratch to include this.

“We are not copying other people’s legislation word by word but when they have a good idea, it would be silly not to take it into account.”

Civil Servant Nathan Fox, who is Head of Justice Policy, told the hearing: “The 1986 approach which the UK took, has been bent as social media has evolved, mostly by judicial decisions.

“I actually think it was quite a courageous decision [to redraft the law] because the Home Affairs Minister did have the opportunity to push through the older legislation, even though he had been advised that it wasn’t enormously suitable.”

Elsewhere in the meeting, the Minister and his officials were asked about drug policy, particularly in relation to cannabis and medicinal cannabis.

Deputy Rob Ward, Chair of the Home Affairs Scrutiny Panel, said after the hearing: “We have concerns about the lack of clarity and joined up approach to dealing with some of the key issues discussed in the hearing today, especially male violence to women and drug and alcohol misuse strategy.

"We look forward to receiving further updates to address these important local problems and would reiterate that the Government must act now to improve the lives and safety of islanders.”