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Freedom of speech vs Hate speech

04 April 2019 - By Tracey Cormack

Since the Christchurch Mosque attacks the Human Rights Commission, supported by the Federation of Muslim Associations, wants the government to consider changing the law to protect religious groups against hate speech. Justice Minister Andrew Little also would like to speed up the process to review hate crime laws.  The National Party supports the review but is cautious about the removal of freedom of speech principles.

A June 2018 media release by the acting Chief Human Rights Commissioner Paula Tesoriero said the Human Rights Commission was not campaigning to limit free speech and neither were they wanting to ban disharmonious or hate speech aimed at certain religions, and to make such comments an offence.

The ground has changed and there is already a wide-ranging public discussion on whether New Zealand should make changes to the law relating to what people can say. What is the current law in New Zealand, and how have other jurisdictions managed matters?

New Zealand

What is Hate Speech?

Section 61 of the Human Rights Act provides that it shall be unlawful for anyone to publish or distribute threatening, abusive or insulting words likely to excite hostility or bring into contempt any group of persons who may be coming to or in New Zealand on the ground of the colour, race or ethnic origins of that group of persons. Section 61 treats the matter as a civil not a criminal one and complaints go to the Human rights Commission.

Section 131 of the Human Rights Act deals with more extreme acts of offensive speech. It is a criminal offence to publish or use threatening, abusive or insulting words. This section requires an intention of exciting ill-will or hostility to the people targeted, so this is a tougher test than section 61.

There is one case of a criminal prosecution for ‘hate speech’ against the far-right activist Colin King-Ansell, King-Ansell v Police [1979] 2 NZLR 531, for distributing a pamphlet that was held to vilify Jews. He was sentenced to prison, but on appeal he was fined $400.

The Harmful Digital Communications Act 2015 also provides some protection against hate speech. Under section 22 a person who posts a digital communication with the intention that it causes harm to a victim, judged by the standard of the reasonable person in the position of the victim and it does cause harm commits a criminal offence, is subject to two years imprisonment or a fine not exceeding $50,000. The definition of “posts a digital communication”. Harm is defined as meaning “Serious emotional distress.”

Freedom of Speech

Section 14 of the New Zealand Bill of Rights Act 1990 (BORA) – provides that everyone has the right to freedom of expression, including the right to seek, receive, and impart information and opinions of any kind. However, s5 of the BORA provides that freedom of speech is subject to limits. The BORA does not have supremacy over other legislation. Subject to section 4, the rights and freedoms contained in the BORA may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The United Kingdom

In October 2018 the UK Law Commission announced that it is to complete a wide-ranging review into hate crime to explore how to make current legislation more effective and to consider whether there should be additional protected characteristics such as misogyny and age.

Freedom of Speech

In the United Kingdom, Article 10 of the Human Rights Act 1998 protects the rights to ‘hold your own opinions and to express them freely without government interference.’

This freedom, however, may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society.

Hate Speech

Section 4 of the Public Order Act 1986 says it is an offence for a person to use ‘threatening, abusive or insulting words or behaviour that causes, or is likely to cause, another person harassment, alarm or distress'.

Over the years the law has been revised to include language that is deemed to incite ‘racial and religious hatred’ as well as ‘hatred on the grounds of sexual orientation” and language that “encourages terrorism”.

It has been argued that the laws against hate speech can easily cross the line and become an infringement on freedom of speech rights. This is illustrated in the Scottish YouTuber Mark Meechan case PF v Mark Meechan where he was fined £800 after being found “grossly offensive” for posting a YouTube video that was viewed over 3 million times depicting him training his girlfriend’s pug to respond to the phrase “Sieg Heil” by lifting his paw in a Nazi salute.

Germany

Similarly, in Germany a report “Article 19 Germany: Responding to ‘hate speech’’ examines legislation, policies and practices related to hate speech in Germany and was produced with the financial support from the Rights, Equality and Citizenship (REC) of the European Union.

“Incitement to hatred” is an offence under Germany’s criminal code (s30 of the Strafgesetzbuch). It is a crime to incite hatred against parts of the population or to call for violent or arbitrary measures against them or to insult, maliciously slur or defame them in a manner violating their (constitutionally protected) human dignity. This offence is also punishable in Germany if it is committed abroad.

The German Netzwerkdurchsetzungsgesetz (Network Enforcement Act, "NetzDG") which came into force on 1 October 2017, criminalises hate speech on social media sites. It obliges social network providers to delete unlawful content within a short time frame. Failure to do so is a regulatory offence which can incur considerable fines.

The report above recommends among other things that the Criminal Code should undergo comprehensive review and that all offences that are not compatible with international freedom of expression should be abolished. The advocacy of discriminatory hatred which constitutes incitement to hostility, discrimination, or violence should be prohibited in line with Articles 19(3) and 20(2) of the International Covenant on Civil and Political Rights, establishing a high threshold for limitations on free expression. It also recommends that the NetzDG should be repealed and consideration to provisions on reporting requirements in alternative legislation to increase transparency around online content moderation.

Australia

In Australia the Racial Discrimination Act 1975 (RDA) restricts hate speech. Section 18C of this Act provides that: ‘anything that is reasonably likely in all the circumstances to offend insult humiliate or intimidate on the grounds of race is unlawful’.

The courts have interpreted this in the way that it is not enough under Australian law to say that you have been offended insulted or humiliated on racial grounds. It needs to be tested against an objective measure – it must involve an act that causes profound and serious effects. The Act is also not a criminal provision. Complaints will be made to the Australian Human Rights Commission, which attempts to bring the two parties together to conciliate the matter.

According to Brazilian-born legal scholar and a Commissioner with the Law Reform Commission of Western Australia, Dr Augusto Zimmermann, one of the most effective means by which free speech can be silenced is under the cover of laws against racial discrimination. In a 2014 Free Speech Symposium paper he said that s18C of the RDA is an extremely broad prohibition and is an extraordinary limitation of freedom of speech. Amendments to the RDA were abandoned due to concerns that the changes would impact the government’s relationship with the Australian Muslim community. He continues:

the ability of Western democracies to defend their own interests is weakened by hate speech laws that make citizens ill prepared to criticise or give warnings about the nature of religious beliefs, however well-based these warnings might be. This is the singular tragedy of hate speech laws that reduce free speech on some of the most fundamental issues of public morality.”

Dr Zimmermann says that free speech does not disadvantage minority groups, nor does it favour those with more power. It is a core principle of every democratic society. All totalitarian governments restrict speech as a matter of course.

United States of America

Free Speech

The US Supreme Court has repeatedly ruled that hate speech is legally protected free speech under the First Amendment.

In a recent case Matal v Tam 582 U.S._(2017) the Supreme Court confirmed by a unanimous decision that prohibiting the registration of trademarks that may ‘disparage’ persons, institutions, beliefs, or national symbols with the United States Patent and Trademark Office violated the First Amendment.

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” (Matal v. Tam, 2017)

The First Amendment provides that “Congress shall make no law … abridging the freedom of speech, or of the press.”

Hate Speech

There are no laws against hate speech in the USA, however there are laws against hate crimes – acts that are already crimes but are motivated by hatred may receive an additional penalty.

The First Amendment protects speech no matter how offensive – it does not protect behaviour that is targeted harassment or threats or that creates a pervasively hostile environment.

Canada

Freedom of expression

The Canadian Charter of Rights and Freedoms in the Constitution Act, 1982 sets out the fundamental rights and freedoms which includes freedom of thought, belief, opinion and expression, including freedom on the press and other media of communication (s2(b)).

However, Canadians do not have a universal right to freedom of speech and expressing certain ideas and opinions are regulated by law. The Canadian constitution’s declaration provides that the government has a right to restrain freedoms with reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Hate speech

Section 319(2) of the Criminal Code of Canada provides that:

Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of: (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.

Identifiable group is defined as “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.”

Section 320(8) classifies any writing, sign or visible representation that would constitute a s319 offence as “Hate Propaganda.”

Canadian Human Rights Act

Section 3 of the Canadian Human Rights Act prohibits discrimination on ‘race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.’

Canadian Court slams publication promoting hate against women

In the case R v Sears [2019] ONCJ 104 the defendantsJames Sears and LeRoy St. Germaine, the editor and publisher of a newsletter promoting rape legalization and Holocaust denial, were charged with willful promotion of hatred against women and Jews.  Ontario Court of Justice disagreed with the defendants' claim that the publication was meant to be satire, noting "both men were fully aware of the unrelenting promotion of hate” and both were found guilty on January 24, 2019. The office of the Attorney General of Ontario noted that this was the first charge and conviction in Ontario for promoting hate against women.

Citron v. Zündel TD 1/02 (2002/01/18):In this case a complaint was filed with the Canadian Human Rights Commission which found that the respondent, Zündel, had a homepage on the internet that provided publications and pamphlets that were likely to expose persons of the Jewish faith and ethnic origin to hatred and contempt contrary to s13(1) of the Canadian Human Rights Act. An overarching theme found on the materials was “unrelenting questioning of the “truth” related to the extent of the persecution of Jews by Nazi Germany during the second World War”. In this case the Tribunal discussed the meaning of ‘hatred’ or ‘contempt’ with reference to another decision Nealy v Johnson (1989), 10 C.H.R.R. D/6450 where the definition was approved by the Supreme Court.

With hatred the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons… It is a term, however, which does not necessarily involve the mental process of looking down on another or others. It is quite possible to hate someone who one feels is superior to one in intelligence, wealth, or power... Contempt is by contrast a term which suggests a mental process of looking down upon or treating as inferior the object of one's feelings.

Tracey Cormack is employed by the New Zealand Law Society as Legal Writer.

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Last updated on the 4th April 2019