Hate speech laws explained: what do they mean, and will they really impact on free speech?
Thursday, 1 July 2021
Proposed new hate speech laws have prompted a lot of politically motivated chatter. Keith Lynch explains what’s happening and what these laws will really mean.
What is the current situation?
There are already a bunch of different laws in New Zealand that can impact what people say. For example, the Summary Offences Act 1981 makes it illegal to shout racist slurs at someone on a bus.
Another law, The Harmful Digital Communications Act 2015 regulates extremely nasty tweets or Facebook messages.
The Government isn’t changing those. What it is planning to do is to alter two sections that already exist under the Human Rights Act 1993. These two laws deal with racial harmony and prohibit what’s called hate speech against certain groups of people.
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The changes come in the aftermath of the Christchurch shooting where a white supremacist murdered 51 people. Based on recommendations by a royal commission established to investigate the March 15, 2019, attacks, they are designed to make New Zealand society more cohesive or more inclusive.
Let’s start with Section 61 of the Human Rights Act. This is what’s called a civil provision – which means police don’t take someone to court for breaking this. A complaint under Section 61 could end up before the Human Rights Tribunal, which could conceivably issue a large fine, for example. But no-one is going to jail.
It all gets a bit “legally” here. But stick with me as the precision of the wording really does matter.
This section states it’s against the law to use, publish, broadcast or distribute written matter or use words that are both:
Threatening, abusive or insulting, and
Likely to incite hostility or bring into contempt any group on the basis of their colour, race, or ethnic or national origins.
Got that? Cool.
Then there's Section 131 of the same act. As this is the criminal provision – if someone breaches this law they could conceivably end up spending three months behind bars – it’s more important.
This section says it’s a criminal offence to incite racial disharmony by publishing, broadcasting or distributing written matter or using words that are all the following:
Threatening, abusive, or insulting,
Likely to excite hostility or ill-will against, or bring into contempt or ridicule any group on the ground of colour, race, or ethnic or national origins, and
Intended to excite such hostility, ill-will, contempt or ridicule.
So, if you used words that were insulting and likely to ridicule a protected group of people, and you intended to ridicule them, you could end up before the court.
Two things: Number one, notice how both these sections cover only race or nationality. Number two, these are rarely used. There’s only been one prosecution under the former iteration of Section 131 in New Zealand, and that related to a literal neo-Nazi.
The general feeling in legal circles is that the language is too broad, particularly the words “excite hostility against or bring into contempt”. The royal commission was particularly critical of the wording, stating it “impinges on the right of freedom of expression”.
The commission suggested as the law does not provide a “credible foundation for prosecution” it should be narrowed to only include “extreme speech” against a group of people, on the grounds of colour, race, ethnicity, national origins or religion.
It also stated: “We do not see the reframed offence as engaged by microaggressions, and so on. Nor would it be a mechanism for criminalising the vigorous expression of opinion on controversial issues, such as gender identity or immigration.” It also acknowledged that this may not go far enough for some.
What does the Government plan to do?
It has gone a little further than the royal commission. There are five proposals it’s agreed to in principle and right now it wants some feedback.
Essentially it wants to both broaden and narrow Section 131 and beef up Section 61.
First up – remember these two sections only apply to groups of people who are of the same colour, race, or ethnic or national origins. The plan is for more groups to be protected. For example, people who share the same gender, religion or sexuality.
Just which groups will end up protected under the final law is unclear. It could be all the groups outlined in Section 21 of the Human Rights Act below or just some.
You’ll also notice Section 21 doesn’t explicitly include trans, gender diverse and intersex people. They will be included.
The most important proposal involves getting rid of Section 131 and replacing it with a new law in the Crimes Act.
Those words I mentioned above: hostility, ill-will, contempt and ridicule would disappear from law. In future, it would be a crime to intentionally incite/stir up, maintain or normalise hatred against any group protected under Section 21 through threatening, abusive or insulting communications, including inciting violence.
It’s probably useful to think of these three requirements as gates on a road. To break this new law, you’d need to pass through all three gates. The third gate is the most rickety and easiest to get through. For example, people find stuff insulting all the time. Sure, if you say something nasty, you might make it through that gate, but there are two others.
The first gate in particular, the “Hatred” gate, is high, strong and wide, and all the experts I spoke to agreed it would be really hard to get through. To pass that, someone would have to say something extremely awful.
What this may actually mean, though, is that prosecutions become less likely. In his blog, lawyer Graeme Edgeler writes that in narrowing the definition of the law the Government doesn’t seem to realise that its proposal “decriminalises a bunch of currently criminal speech”. His point: the “Hatred” gate is harder to pass than the “Ridicule” gate in the current law.
Lawyer Steven Price has a slightly different take on this. In his blog he suggests that while hatred seems harder to prove, “an intent to normalise hatred is new, and strikes me as a lower bar than stirring it up. The proposed offence would cover both”.
The other thing is “hatred” isn’t precisely defined in the Government’s proposals. It’s hard to know for sure how judges will interpret the wording. And the Government hasn’t really clearly set out precisely what kind of speech it’s out to criminalise. Some examples would be very useful.
Price asks the question: “What is hatred exactly? What is normalisation? How do you show someone intended to incite or normalise hatred?”
It may be that uncertainty or wiggle room within the law is both a good and bad thing. It will allow judges flexibility to interpret the law as societal norms shift, but it will make it harder for police and judges to work out exactly what “hatred” means.
OK. Let’s take a breath and let me give you an example of what these changes could mean in real life.
In 2017, police decided not to prosecute an Auckland pastor for extreme anti-gay remarks. Section 131 as it currently stands doesn’t apply to gay people. If this man made these comments once the law is changed, and more groups protected, he could conceivably face prosecution.
What’s more, the Government plans to increase punishments for breaches of this new law fairly dramatically – three months in prison and a $7000 fine would change to three years in prison and a fine of $50,000.
Is there more?
Yes, there is. Don’t forget about the civil provision, that Section 61 I mentioned earlier. It’s going to change too, to incorporate the changes to the criminal law outlined above.
It’s also getting an additional add-on. This new section could allow make “incitement to discrimination” illegal.
To summarise, this would make speech that is likely to cause incitement to discrimination unlawful, along with:
The excitement of hostility
Bringing into contempt, and
The stirring up, normalising or maintaining of hatred.
Remember, though, no-one is going to jail for breaching Section 61. But they could end up in a civil case. Canterbury University law dean Ursula Cheer makes the point that careful consultation is needed as it’s a little uncertain what “incitement to discrimination” means, and it is different to “hatred”.
Let me outline an example that came up a few times as I researched this piece. Let’s say property investors groups told landlords to not rent to people on a benefit. In a case like this, they could face civil action for discrimination.
OK. That’s a lot of law chatter. How about more practical examples?
To try to make this law a little more understandable to the public, I asked a range of experts for their opinions on what would happen in the cases outlined below under the new law. I’m not naming names as I’ve summarised the thoughts for brevity.
JK Rowling’s controversial tweets about transgender people.
The response was straightforward on this one. There'd likely be no grounds for a prosecution. The general opinion was Rowling was making a social and political point and doing so respectfully. This isn’t hatred, and it’s not inciting discrimination.
Publication of cartoons depicting the Prophet Muhammad. Opinion was a little mixed on this one. When the Danish newspaper Jyllands-Posten published cartoons in 2005 it sparked violent protests around the world.
The cartoon was later (very controversially) republished in New Zealand. Editors could argue this move was necessary to give readers context on international reaction or, as they did at the time, a defence of free speech.
But if similar cartoons were published, without that context, once a new law was introduced, what then?
Firstly, the police would probably have to make a cartoon by cartoon judgment call to see if they incite or normalise hatred. If they did, police may decide to act.
An alternative viewpoint was that publishing such cartoons would not necessarily be viewed as encouraging or normalising hatred towards Muslims. The cartoons would clearly be offensive to some New Zealanders and might well encourage people to ridicule the Islamic religion, but it’s unclear if the “Hatred” gate would be breached.
Commentary suggesting transwomen shouldn’t be allowed to take part in women’s events at the Olympics.
This isn’t hatred so no chance of criminal prosecution. Does it incite discrimination under the new civil law? The lawyers I spoke to were not sure. It’s unlikely, but it may well depend on the language used.
Right-wing/Left-wing people are ruining the country!
To be very clear these laws are not finalised. The Government has asked for feedback on what groups should be protected, but the documentation is a little muddled when it comes to political opinion. On one hand it suggests political opinion which is protected by the Section 21 of the Human Rights Act will be protected. On the other hand it says it is seeking feedback.
So in theory if political opinion is included in the new law, people could be prosecuted for speech directed to make people hate other individuals based on their political opinion.
The example I cite above though is extremely unlikely to pass through the “Hatred” gate. It’s possible that really extreme language actually calling for violence against a political group could.
That's a lot to take in.
Yeah. Fair enough.
What’s confusing some people is this: The Government wants a new law. That’s an entirely understandable reaction after the Christchurch terror attack. On top of that, the current laws are hardly used.
But at the same time it insists, Prime Minister Jacinda Ardern included, that the “Hatred” gate I keep on mentioning will be really hard to get through. So it’s worth asking, as many have, what’s the point of the new law? What will it practically achieve?
On this point, Price writes: “The Government wants the new law to be more effective, but also wants to insist that the very high bar is much the same as before. I don’t think we can have it both ways. If the bar is the same as before, the law is very unlikely to be more effective.
“I suspect that the real criticism of the law is that it’s being oversold. It’s not likely to be used much at all.”
If you want to have your say on the new law go here.