Scotland has implemented a new hate crime law, which is being criticised by notable figures such as JK Rowling and Elon Musk over concerns that it may impede on free speech. Under the Act, a new crime of “stirring up hatred” has been established, relating to age, disability, religion, sexual orientation, transgender identity or being intersex. The maximum penalty is a prison sentence of seven years. The law replaces the existing Public Order Act 1986 and includes several safeguarding measures to protect freedom of expression. Senior police officers expect a surge in complaints about online posts, however, the Scottish government claims that the law provides protection from hate and prejudice without restricting individual expression.
A person commits an offence via the Hate Crime Act if they communicate material, or behave in a manner that a reasonable person would consider to be threatening or abusive, with the aim of stirring up hatred based on the protected characteristics. The bar for this offence is lower compared to the others as it includes “insulting” behaviour, and prosecution only requires proof that stirring up hatred was “likely,” not “intended.” Aggravated offences that show malice or ill-will towards victims based on protected characteristics, which can be taken into account by a sheriff or judge with a longer sentence or a higher fine than would otherwise have been the case, were also consolidated by the law.
The legislation was passed with 82 votes in favour, 32 against, and four abstentions following a heated debate about its contents. Supporters of Hate Crime Act cite that it has safeguards in place for freedom of speech. In addition, the European Human Rights Convention Article 10 supports the right to freedom of expression, encompassing protection for “ideas that offend, shock, or disturb.” Those who have reservations about the new law are concerned that the law is unclear and vague, leading to potential malicious and baseless complaints. The authorities have pledged to investigate all hate crime complaints they receive, with the cases being assessed by hate crime advisers to determine what action should be taken
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