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Mass offence does not equal hate speech

03 May 2018 - By Angharad O'Flynn

There are certain phrases in the English language that are incredibly powerful. ‘Hate speech’ is one of them.

Australian sportsman Israel Folau has taken a public flogging recently. The backlash he received is the result of his response to a question asked on his social media account, Instagram.

A user asked Folau "what was God's plan for gay people?"

Folau replied “HELL! Unless they repent of their sins and turn to God.”

The post has since been removed, but, screenshots remain and have been circulated.

The exchange generated public opinionarticles by the dozens where writers vehemently supported or condemned Folau.

But, no matter the side, many of the articles had one thing in common – there was no definition of “hate speech” when a 'change the law!' exclamation was made.

And then, of course, there's Twitter. A car crash of opinions and language so foul I’m not hyperlinking to any of it.

New Zealand’s Prime Minister responded to Folau’s comments, saying "…I disagree with them but I'm very careful around how I categorise someone's speech."

National MP Paula Bennett also commented saying “I do think that as someone who could be a role model, he perhaps didn’t need to say it…but to go to hate speech feels like another whole step too far.”

Ms Bennett then posed the question, “Do we really want to go down that path where we’re monitoring everything anyone says because we find it objectionable or repugnant?”

As both point out, there is a very fine line between hate speech and offensive comment.

What's the law on this?

So, opinion aside, let’s look at New Zealand's legal definition of hate speech and how it can be applied.

“There is no general prohibition under New Zealand law on saying hateful things against any minority group”, says Honor Ford, a barrister at Shortland Chambers who has a specialist interest in human rights law. Mrs Ford is also a member of the New Zealand Law Society's Human Rights and Privacy Committee.

“New Zealand is a party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). One of our obligations under ICERD is to introduce measures to eradicate the incitement of racial hatred or hate speech. We have implemented that obligation in part through section 61 of the Human Rights Act 1993 (HRA).”

“However, we are also a party to the International Covenant on Civil and Political Rights, which requires us to have due regard to freedom of expression and ICERD itself recognises the importance of free speech,” says Mrs Ford.

Many people appear to base their interpretation of hate speech by how offended they are. What’s the legal difference between what is considered hate speech and what is considered offensive speech?

“Section 61 applies only to things that are said about a racial, ethnic or national group. While racial slurs are highly offensive and upsetting, to fall foul of section 61 they must also expose the racial or ethnic group to hostility or contempt from another group of citizens.

“It is not enough that the targeted group feels insulted.”

Is there any measure which could result in action being taken for comments that discriminate and cause harm to the gay/LGBTQ+ community?

"Section 61, unfortunately, does not help as it only concerns racially motivated hate speech. Potentially, section 62 of the HRA – dealing with sexual harassment – could be relied on where 'hate speech' is directed against a person based on their sexual orientation, so long as the comments were made in certain contexts like employment, education and the like.”

“[Though] it would be a bold move to apply section 62 in that way,” says Mrs Ford.

Israel Folau’s comment offended a lot of people, but he didn’t encourage anyone to commit violence upon anyone, nor was he in any kind of educational or employment setting.

And Israel Folau's side of the story...

For content balance - another concept many related articles didn't have - Folau explains his point of view in an article he wrote for PlayersVoice after the event.

“I believed he [the user] was looking for guidance and I answered him honestly and from the heart.,” wrote Folau.

“My response to the question is what I believe God’s plan is for all sinners, according to my understanding of my Bible teachings, specifically 1 Corinthians 6: 9-10.

This opens another can of worms: How to approach expressions from the bible. A book widely used as a life guide by at least 20,000 Christian denominations, with an estimated global total of 2 billion believers. However, we will stick to the topic at hand: Hate Speech and the Law.

Do we really want to go down a path implementing laws, where we’re monitoring everything anyone says because we find it objectionable or repugnant? Or, do we respectfully agree to disagree and acknowledge the right to an opinion?

Last updated on the 1st June 2018