Introduction

The government promised changes to our little used hate speech laws after the Christchurch massacre. They have now released a discussion document with their proposals so that people can give initial feedback before a law is drafted. This is an approach we welcome and hope we will see more often following passage of the Public Service Act. 

The government’s discussion document describes its intention thus:

“The proposals target the types of communication that seek to spread and entrench feelings of intolerance, prejudice, and hatred against groups in our society. All people are equal, and our society is made up of people with many different aspects to their identities. The incitement of hatred against a group based on a shared characteristic, such as ethnicity, religion, or sexuality, is an attack on our values of inclusiveness and diversity. Such incitement is intolerable and has no place in our society.”

They then mention particular harms: “Experiences of hatred can make people feel unsafe and unwelcome in the places that they should feel at home in. They can also lead to further discrimination and violence.”

The proposed substantive changes are to:

• Move the criminal offence from the Human Rights Act to the Crimes Act and increase the penalties to up to 3 years imprisonment and a fine of up to $50,000.
• Expand the types of groups covered to include religion, sexuality, gender identity, and possibly others such as political beliefs (this is one of the areas being consulted on).
• Clarify the definition of what speech would be covered so that it only applies to speech that stirs up, maintains or normalises hatred. This is intended to be more restrictive than the current definition and the government says would only catch the most extreme speech.
• Change the civil provision to match some of the language used in the criminal provision, and also make “incitement to discrimination” illegal.

The question that this proposal partly tries to answer is, what are the limits of freedom of expression when it comes to hate speech, and how should breaches of those limits be punished? 

You can read more about the details of the proposed changes in the document itself, the associated interim regulatory impact statement, and in this useful explainer by Stuff journalist Keith Lynch.

Statement of our values

The New Zealand Council for Civil Liberties has a keen interest in this topic as it has serious implications for our civil liberties and particularly our right to freedom of expression. Our organisation was formed as a result of the 1951 waterfront dispute which included censorship laws allowing the government to punish people for sharing material in support of the waterfront workers.

We support freedom of expression both as a personal freedom that should not be unnecessarily limited by the state, and as a societal benefit that provides for the exchange of knowledge, information and ideas, including the types of communication necessary to the successful working of a democratic government. 

However we also recognise, in the words of New Zealand’s Bill of Rights Act, that these rights and freedoms may be reasonably limited “as can be demonstrably justified in a free and democratic society”. There are already a number of laws fettering free speech in New Zealand including hate speech provisions in the current Human Rights Act, defamation law, the actions of the Chief Censor, electoral law, and the Harmful Digital Communications Act. 

While we don’t agree with every part of these laws, we believe we are currently at a high point of freedom of expression. Our ability to communicate to others, to share our ideas, and to hear what they have to say in return is unprecedented. We can criticise the government, accuse the church of being corrupt, and propose new philosophies, all with no fear of official punishment. Our words can be shared in ways that mean that anyone in the world can receive them within minutes of us saying them.

Crucially, what the Bill of Rights Act and international human rights treaties recognise is that freedom of expression is not more important than our other rights.

Whose speech?

While freedom of expression is theoretically available to all, our society has always seen that some people are better able to exercise it than others. Your speech is much more likely to be published when you’re either a member of the elite, speaking on behalf of the elite, or at least saying things that don’t scare the elite too much. Those who society is prejudiced against or who have radical ideas have found their theoretical freedom of expression is limited in practice.

The internet has helped tear down many of these barriers. Whereas in the past it was hard to reach a mass audience without the support of mass media, which thus provided somewhat of a brake on extreme speech, the rise of the internet means that nearly anyone can speak on any topic they like with the knowledge that their words can be spread around the country or even the world.

With this freedom has come new twists on old problems. Because we can also use the internet to direct personal abuse to individuals we’ve never met, call for mistreatment of types of people we don’t like, reveal identities of the anonymous, share videos of horrific acts, or bully those who don’t agree with us. All this can be done under our own names, under a pseudonym, or even under a multitude of pseudonyms to give the impression of being a crowd.

This bullying and harassment is used in an attempt to drive certain views or types of people off the internet – or at least away from the mainstream forums. Some of this seems organic while some seems organised but the effect is the same for the targets, with only the most thick-skinned able to continue. This limits the level of freedom of expression in our society.

When looking at laws that affect freedom of expression we need to consider both personal freedom and the societal benefits. It’s not enough to champion one at the expense of the other. We want to see a society where everyone feels able to participate in discussing the issues that are important to them.

The government’s proposal

Limitations on speech

When it comes to freedom of expression we don’t see all speech is equal. For example, in a democratic society there is very little value in speech that denies the humanity of others. Some speech is the price we pay for freedom of expression rather than a benefit from it. 

We accept that hate speech can be harmful to individuals, groups, and to our society. Humanity’s history has too many examples of countries where concerted propaganda and hate speech has led to massacres or genocide. It saddens us that New Zealand is on that list. 

Because of this we accept that it is possible to justify limiting hate speech in a democratic society.

Definition of hate speech

We think it is important to further clarify what the government means by hate speech. There is much work in the proposal trying to define terms but there is a curious reluctance to turn that into concrete examples that would help everyone better understand what is being proposed.

The proposal mentions “inciting hatred” that “stirs up hostility” towards a group of people. It would seem obvious that this would include calls to incite violence towards that group or that call for a group to be expelled, but what does it mean for people who disagree with a group or who refuse to support measures that would aid the group?

While these latter examples are clearly not hate speech by most definitions, it is also apparent that there are those out there who like to use accusations of “hate” in order to fight their political battles. These types of arguments will be strengthened by the publicity around these law changes so it will be important to protect against that in the wording of the eventual bill. 

In particular we want any law to explicitly recognise that speech doesn’t have to be nice to be worthy of protection. We have a right to disagree, to have strong feelings, and to engage in robust debate that might upset or insult. Furthermore we need to recognise that some speech that harms others is of benefit to society, for example when it’s exposing wrongdoing or corruption.

Inherent vs adopted attributes

When it comes to deciding which groups should be protected by hate speech laws, we differentiate between protected characteristics that are inherent, such as race, gender, sexuality, and national origin, and those that are chosen such as political beliefs and religion. Of course, people are not simple and religion is often inextricably linked with race, culture, and national origin. It should also be obvious that anti-Muslim and anti-Jewish hate speech are significant problems in our world.

As inherent qualities, we support adding the sex, gender identity, and disability to the protected grounds for the criminal offence.

We believe it is important that we can criticise both religion and politics. Some so-called religions are scams which prey on their followers, and some political beliefs are so rooted in treating some people as lesser human beings that it is disappointing to believe that anyone supports them. And even if they are established sincerely the values held might be anathema to others. We are strongly opposed to any law that would prevent or limit vigorous criticism of religious or political beliefs.

We support adding the religion to the protected grounds for the criminal offence but would like further consideration of how this might work in practice in such a way to ensure that the ability to criticise religion is protected. 

We do not support adding political beliefs to the protected grounds for the criminal offence. We fear it would provide a chilling effect on political debate through attempts to use the law as a weapon against political opponents.

Crimes Act vs Human Rights Act

We do not see any advantage in moving the criminal offence to the Crimes Act. Rather it seems to sit well within the scope of the Human Rights Act which is concerned with preventing harm from prejudicial behaviour based on group membership. The criminal law will also share definitions with the civil provisions which remain within the HRA.

We oppose increasing the criminal penalties from the current 3 months or $7000 to 3 years or $50000. We see the benefit of this law is in providing a little-used backstop, a purpose which is amply provided by conviction and the current penalties. New Zealand already locks up too many people for too long and we don’t see that the increased penalties will make any difference in deterring people. 

Impact of the government’s proposal

Will the proposal be effective?

One of the important considerations we look at when considering any new law, is whether it will be effective. Will these changes produce the promised reductions in division and violence, while promoting diversity and inclusion?

When doing so it’s worth considering the impact and role of the current law. The criminal provisions have hardly been used but does this mean it’s been effective or ineffective?

In our experience many people seem to assume that hate speech is illegal in New Zealand and act accordingly, being surprised when told our laws don’t apply to hate speech based on, for example, sex, gender identity, or religion. As such these proposals may be catching up to public perception rather than getting ahead of it.

The wider question of whether the law has been responsible for any societal improvements in the years since 1993 when the law was passed is one that is probably impossible to answer one way or the other.

However, we believe that this may be missing the point of a law like this. Consequences for hate speech are not simply about punishing people. Indeed, with legal processes being slow, in most cases highly offensive hate speech will be more quickly dealt with by the normal consequences such as losing access to platforms, public backlash, losing sponsorship and jobs.

It seems to us that the role of the current law, and the proposed modified law, is of a symbolic final backstop, a line drawn in the sand which our society says that no one shall cross. By doing so it both sets an ultimate limit and also provides a useful benchmark to help calibrate other consequences of hate speech. So on these limited grounds we think it will be effective.

What impact will the changes have on freedom of expression? 

The other side of “will it be effective?” is “will it be worth it?” Will it cause more damage to our civil liberties than the benefit we get from it?

We do not believe that the current law has had a significant negative impact on freedom of expression in NZ. As previously mentioned there have been very few prosecutions and the only effect there has been is probably to have the desired chilling effect on extreme hate speech. 

As the changes seem designed to maintain this state while extending the scope to cover additional groups, the intent of the proposal does not seem to significantly increase the threat to civil liberties. 

However, we are concerned that the changes in wording are currently too ill defined. The main worry for us is not that extreme hate speech will be illegal, but that the definition of hate speech will be too wide so that it doesn’t just capture “the worst” but can also be used to suppress disagreement and acceptable political speech.

One current important protection that the proposal retains is the gatekeeping effect with civil complaints going to the Human Rights Tribunal, while criminal prosecutions can only be made with the consent of the Attorney-General. Of course this relies on the judgement of the Attorney-General which is an office held by a politician and therefore subject to political influences. It might be worth considering what other countries have done in this regard.

Conclusion

We believe that the intentions of the proposed law change are good. This is clearly not an attempt to make a wide range of speech illegal, but rather to impose a limit on the most vile forms of hate speech by expanding current law. As such, we agree that this can be justified as a reasonable limit on freedom of expression in a democratic society. 

However, we are not confident that the current proposal would lead to a law that achieves this. As written we are concerned that there still seems to be too much room for people to attempt to misuse the law to suppress speech not because it is hateful and harmful but merely because they don’t like it. This would be an unacceptable limitation on freedom of expression.

We believe that if the government wishes to proceed with this process, it should not go straight to introducing legislation to Parliament. Rather the next steps should be to publish the analysis of the submissions received and prepare a draft bill for further public consultation and subsequent modification. This will better enable us and other interested groups and people to evaluate the likely impact of the law change.

Finally we note that in this modern age, where the internet is where much of our speech occurs, that these changes to hate-speech laws are not the main threat to our freedom of expression. Other laws such as the existing Harmful Digital Communications Act and whatever comes out of the media regulation review are much more of a concern, as are the policies and standards of the companies who have created the digital commons that we frequent but that they control. We believe that this is where the real battle for the future of freedom of expression lies.