What will happen to our hate speech laws?
Analysis: New Zealand’s hate speech laws could change, with Justice Minster Andrew Little announcing he would be fast-tracking a review of them in the wake of the Christchurch terror attacks.
Changes have the support of the Green Party, with MP Golriz Ghahraman saying reform is long overdue.
New Zealand First has not yet formed a view of the changes, and won’t until concrete proposals are further fleshed out. National is also coy on its support, saying it will wait for concrete proposals, but noting that any changes would have to be balanced against freedom of speech concerns.
Unlike changes to gun laws, which look set to pass with near unanimity, changes to hate speech legislation could be seriously contentious, especially where it concerns limiting certain rights like freedom of speech.
What could change?
Currently, laws on hate speech in New Zealand are limited in both what qualifies as hate speech and who is protected by legislation.
Only groups defined by race are protected - it is illegal to incite “racial disharmony”.
Other minorities, including religious groups, sexualities, and genders, are not protected.
Individuals are also protected from the worst excesses of freedom of speech by defamation laws. This creates something of a gap.
Ghahraman thinks that looking at the protections from harmful speech that defamation law offers individuals is a good place to start, suggesting some of those protections could be extended to groups.
“If you’re targeting an individual, telling a mistruth about them, that harms them or undermines them,” Ghahraman said.
“Calling them a pedophile for example, that’s unlawful, but if you say Muslims or gay men are pedophiles, that will harm them in the same way - it will prevent them from getting jobs, it will have hate targeted to them online - but there’s nothing saying that’s illegal,” she said.
In the context of free speech, she argues it is worth remembering that no rights are absolute, and all human rights are balanced against each other; the right to life is balanced against the right to self defence, for example.
This argument has some favour with Little, who, as Justice Minister, will be driving any possible changes.
“There is a fairly wide acceptance that what we have at the moment, and the Human Rights Act in particular, is not adequate. That there are gaps and there is a willingness for change,” Little said.
“No right or protection, such as the protection of freedom of speech, is absolute. The Bill of Rights Act provides for justifiable limitations,” he said.
Apart from inciting racial disharmony, New Zealand only looks at hate crimes - a distinction often elided in discussions around hate speech.
A hate crime is something that is already illegal, but targeted at a particular group for hateful purposes. Judges look at hateful intent when sentencing.
An example of this would be the desecration of Jewish graves, as has happened several times in recent New Zealand history. The desecration itself was illegal, the targeting of Jewish people turns the crime into an antisemitic hate crime.
Hate crime is far easier to identify than hate speech - after all, the crime is already a crime.
ACT Party Leader David Seymour is concerned the drawing of boundaries of what is and is not hate speech would shut down debate and unduly limit free speech.
He points to numerous cases in the UK where police have interpreted hate speech laws liberally. While few cases resulted in convictions, some cases, like a Scottish comedian teaching his girlfriend’s pug to do a Nazi salute in response to phrases such as “gas the Jews”, appear to interpret the law liberally.
Seymour also pointed to another recent British case in which a man was investigated after tweeting that transgender women were not real women. He said cases like this shut down debate. While he would not weigh in on the debate itself, Seymour said: “It shouldn’t be something that’s criminal to say,”
Dr Eddie Clark, of Victoria University of Wellington, thinks cases like this could occur in New Zealand under a new hate speech regime.
“It can close down debate on issues that some people think should be debated, but some people will think that debate is itself hate speech as well,” Clark said.
“Debating whether or not gay people are pedophiles would be seen as offensive ... because we accept that these things are bad things to be saying,” he said.
Ghahraman believes New Zealanders are capable of determining what is and isn't hate speech.
“It would be fine to go, 'I think we’re taking in too many refugees, what about our own housing crisis' - that’s fine,” Ghahraman said.
“But to come in and go, 'refugees are rapists', or 'Muslims beat their women', that’s quite different to saying, ‘do we need to think about who we let in because there are cultural issues’ and then wanting to specify the cultural issues and have a conversation about it,” she said.
Little said it was important to remember that free speech should be about protecting the powerless.
“I think a lot of it is about having a process where you can call out examples of hate speech that is not defensible on the grounds of free speech ... in New Zealand our political and social culture has been very defensive of rights of freedom of speech. We err on the side of letting people say stuff,” Little said.
But he noted: “The whole notion of freedom of speech and the protection of freedom of speech was always conceived of as a protection of the powerless against the powerful and we shouldn’t forget that”.
What happens to the hateful?
Internationally, hate speech currently tends to be enforced by asking for an apology and demanding payment from the offender.
Again, we could look to defamation law. People can demand an injunction, to stop something being repeated, an apology, and damages.
Clark notes that in some countries, including Canada, a dual regime operates where people can be imprisoned for hate speech. But Canada sets an “extremely high threshold” for imprisonment.
Ghahraman thinks talk of people getting “locked up” for talking online is taking the wrong track.
“People think you’re going to be locked up for talking about something online, we’ll you’re not … there should be remedies,” she said.
Looking at online publishers alongside authors of hate speech is another concern.
“We need to treat online platforms as if they’re a publisher. We absolutely need to go 'No, you have published this',” she said.
Little is also concerned about policing online publishers, but said any changes needed to be seen in light of what is enforceable.
“We can see an obvious case for regulation but how do you enforce that?” he said.
Seymour worries that overzealous enforcement of hate speech could have the opposite to the desired effect. Enforcement that overreaches its boundaries could lead to people losing respect for law itself.
“If your objective is to protect Muslims, then you get some example of the state overreacting and imprisoning someone for something people don’t agree with, then all of a sudden people lose their respect for the law, they lose respect for the idea democracy is impartial," he said.
Whatever is decided upon, it's likely the debate will be long, and potentially divisive.
Clark believes the starting point needs to be an agreement around the fact that hate speech is in and of itself, harmful, regardless of whether or not it leads to violence.
“From a starting point that speech can do harm you can have a good debate about where to draw that line,” Clark said.
This means recognising hate speech alongside defamation as speech that is harmful.
For Ghahraman, herself a frequent target of hate speech, the Christchurch attack makes the threat of hate speech all too real.
‘The Migration Compact was written on the terrorist’s gun, we know that’s where this started,” she said.