Scotland caught up in heated debate over new hate speech law

Insults, hostility, and hate speech are a major problem in public spaces and on social networks. Governments around the world are seeking to take firmer legal action against these phenomena.

Germany, for example, introduced the Network Enforcement Act in 2017. The European Parliament has called for a more forceful prosecution of hate crimes throughout the EU. Initially, then, it appeared to be a good thing that the Scottish government had decided to tighten the existing regulations.

What are the rules in Scotland?

The new Hate Crime and Public Order (Scotland) Act came into force on April 1. It extends existing regulations, in that racially motivated acts and incitements to hatred are no longer the only such activities to be deemed a criminal offence.

A law to combat these has been in place across the UK since the 1980s. Now, anyone in Scotland who incites hatred on the basis of age, disability, religion, sexual orientation, or transgender identity is also guilty of an offense and could face up to seven years in prison.

Victim support organizations and LGBTQ+ activists have welcomed the introduction of the law. Siobhian Brown, Scotland's minister for victims and community safety, said it would contribute toward "building safer communities that live free from hatred and prejudice."

Brown explained that "the impact on those on the receiving end of physical, verbal or online attacks can be traumatic and life-changing" and described the law as "an essential element of our wider approach to tackling that harm."

More than 400 reporting centers have been established across Scotland for people to report hate crimes, and in some they can do so anonymously. These include police stations and the website of the Scottish police, but also town halls, cafes, universities and some civil society organizations.

"Police Scotland treats all hate crimes seriously," the police website says. "We want you to report it."

Surge in reporting of hate crimes

Many Scots have already responded to the invitation. Police received around 4,000 complaints in the first two days after the law came into force, according to reports in British media.

Critics of the law fear police may not be able to cope with the surge. Every complaint has to be carefully scrutinized — but the Scottish Police Federation has said its officers have so far only received a single two-hour online training session on evaluating incoming reports.

It's only just over a month since Police Scotland announced a pilot project, according to which minor offenses such as shoplifting, burglary and vandalism would not always be prosecuted. The aim was to prevent their officers from becoming overburdened. All this has prompted David Kennedy, the general secretary of the Scottish Police Federation, to warn that the hate speech law could "cause havoc with trust in police in Scotland."

Provocative statement or hate speech?

Over the past few weeks, numerous opposition politicians and celebrities have been vocal in their opposition to the new law. They say the most serious problem is that there is no clarity as to when exactly a comment crosses the line from "provocative statement" to prosecutable hate speech.

The Police Scotland website says the legal definition of hate crime is "any crime which is understood by the victim or any other person as being motivated (wholly or partly) by malice or ill will towards a social group."

However, not even Scottish lawmakers seem to be clear on how, in legal terms, this should be implemented. A memorandum from the Scottish parliament in Edinburgh says: "There is no single accepted definition of hate crime."

Scottish minister Brown also caused a stir in a BBC interview in late March, when she said incidents of so-called misgendering — deliberately assigning to a transgender person a gender that does not correspond to their chosen identity — could be investigated under the law, and it would be up to the police to decide whether it constituted a criminal offense.

This legal uncertainty is one of the reasons critics of the law fear curtailment of their right to freedom of speech. These critics include strictly religious Christians and Muslims, who hold conservative views on women, transgender people or homosexuality.

Separate law planned to combat misogyny

A particularly bitter row has been raging on the internet between a group of gender-critical feminists and some transgender activists. The feminists have refuted the right of people who were assigned male at birth to define themselves as women, and warn that an expansion of transgender rights could undermine the provision of safe spaces for women.

They have also criticized the fact that women are not named as one of the groups protected by the new law. The Scottish government has previously announced that it plans to introduce a separate law to combat misogyny.

Author J. K. Rowling, the author of the "Harry Potter" series, has become a prominent spokesperson for these feminists. In recent years, Rowling has repeatedly come under fire for making transphobic statements. She has said she's afraid the new law will have a "silencing effect" — that people with dissenting opinions will not express them out of fear that doing so may make them liable for punishment. 

On April 1, Rowling published a long thread on the social media platform X, formerly Twitter, that strongly criticized both the new law and a number of transgender people. She said she looked forward to being arrested for the post upon her return to Scotland.

'Very high threshold' for criminality

Members of the Scottish government have visibly been trying to pour oil on troubled waters. Brown said there had been "a lot of misinformation and hysteria regarding this bill being introduced," while First Minister Humza Yousaf said the "threshold of criminality in terms of the new offenses is very, very high indeed."

The new hate crime act has already passed its first stress test. A spokesperson for Police Scotland said on Tuesday that Rowling's comments "are not assessed to be criminal and no further action will be taken."

This article was originally written in German.