Global lawmakers struggle to define hate speech

The government’s fast-track review of New Zealand’s hate speech legislation in the wake of the Christchurch terror attack has triggered widespread fears that it will undermine a pivotal tenet of liberal democracy – freedom of expression.

Hate Speech

Justice Minister Andrew Little says the review will, among other things, consider whether hate crime should be established as its own separate offence, as in the United Kingdom.

Little says he has asked the Justice Ministry to look at relevant aspects of the Human Rights Act, the Harmful Digital Communications Act and sections of the Crimes Act to see what laws need to be changed or added.

The tolerance for what has been considered acceptable has been too high and ethnic minorities need to be not only accepted, but embraced and welcomed, he says. “I certainly think that the laws dealing with what we call ‘hate speech’, and human rights law, are woefully inadequate.”

Good luck with that, say some legal experts and academics.

As they see it, one of the fundamental issues facing the minister’s review is addressing the vexed question of just what constitutes hate speech. Trying to define it will not be an easy task.

One of New Zealand’s most respected historians and social commentators, Professor Paul Moon of AUT, describes it as “the major stumbling block for all proponents of hate-speech legislation”.

“There is no jurisdiction anywhere in the world where a statute has been enacted that offers a clear definition of what hate speech is,” he says.

“Consequently, it is left to the police and courts to determine. This raises the problem of citizens not knowing precisely where the boundary of the criminality of speech begins.

“One result is that people tend to become cautious more generally in their speech, fearing that what they say might be hate speech but being unable to know for certain until they are convicted.”

Moon believes a distinction needs to be drawn between hate crimes and hate speech.

“I think it would be very useful for the police to monitor hate crimes such as swastikas painted on walls, and people assaulted because of their ethnicity, religion, sexual orientation, and so forth.

“Understanding the scope and motives for such a category of crime would be a useful step in tackling its causes. As for our laws on speech, they are adequate and, from what little I saw of the Christchurch killer’s manifesto prior to the censor’s banning of it, the killer breached those laws.”

Just how problematic the uncertainty around the definition of hate speech can become has been highlighted by David Farrar of Kiwiblog. He uses the UK as an example, where disability, race, religion, sexual orientation and transgender identity are all ‘protected characteristics’ under a series of British statutes.

Farrar says the country provides a good example of how well-intentioned laws can criminalise many different types of speech and he has compiled a list of cases to illustrate his point.

  • An evangelist was convicted because he had displayed to people in Bournemouth a large sign bearing the words “Jesus Gives Peace, Jesus is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus is Lord”.
  • A man was arrested in Cardiff for distributing pamphlets calling sexual activity between members of the same sex a sin.
  • Harry Taylor was sentenced to six months prison (suspended) because he left antireligious cartoons in the prayer room of Liverpool’s John Lennon Airport on three occasions and the chaplain complained.
  • A 19-year-old woman was convicted of sending a “grossly offensive” message after she posted rap lyrics that included the N-word on her Instagram page.
  • Scottish YouTuber Mark Meechan of Coatbridge, North Lanarkshire, was fined £800 after being found “grossly offensive” for posting a video, viewed more than three million times, depicting Meechan training his girlfriend’s pug to respond to the phrase “Sieg Heil” by lifting his paw in a Nazi salute.
  • A student was arrested for saying to a mounted police officer, “Excuse me, do you know your horse is gay.”
  • A teenager was arrested for barking at two labradors, as the owner was non-white.
  • A teenager was prosecuted for holding up a placard that described the Church of Scientology as a cult.
  • A man was charged with racially-aggravated criminal damage for writing, “Don’t forget the 1945 war” on a UKIP poster.
  • An Essex baker, Daryl Barke, was ordered to take down a poster promoting English bread with the slogan “none of that French rubbish” because the police believed it would stir up racial hatred.
  • An 11-year-old boy was charged after calling a classmate a “Paki bastard” in a playground fight after being called a teletubby.
  • The North Wales Police Commissioner tried to prosecute a newspaper columnist for suggesting a Welsh bridge should be named something indecipherable with no real vowels, such as Ysgythysgymlngwchgwch Bryggy”.
  • An Irish TV writer was visited by the police because he used the pronoun “he” on Twitter to refer to a transgender woman.

Columnist and media commentator Karl du Fresne says hate speech can be defined as speech calculated and intended to whip up hatred of any racial or ethnic group.

“However, the law must allow room for criticism of the beliefs and practices of ethnic and religious groups that stops short of inciting hatred.

“We are entitled, for example, to question and criticise aspects of Islam just as we do aspects of Christianity, Judaism, Mormonism and sects such as the Exclusive Brethren. All of these latter groups are, quite rightly, subjected to critical scrutiny and there’s no reason why Islam shouldn’t be,” du Fresne says.

“Free and open public discussion is the means by which people evaluate the merits of religious beliefs and thus is part of the contest of ideas that defines a liberal democracy.”

Du Fresne believes the current legislation on speech is fit for purpose.

“I’m not a lawyer but I agree with legal academics such as Professor Ursula Cheer who say the existing laws, while couched in general terms, provide ample protection against ‘hate speech’.

“I think problems arise when the law tries to nail down a definition of hate speech, which is always going to be subjective.

“Better to leave it to the courts to interpret the law within the existing framework. This enables judges to decide whether an offence is aggravated by being ‘hateful’. I think the events in Christchurch demonstrate that existing laws give courts scope to deal with what might be considered hate crimes.”

But Massey University Pro Vice-Chancellor Professor Paul Spoonley told LawNews that compared to some jurisdictions, New Zealand is “something of an outlier” in not having more explicit hate speech policies and legislation.

His wish list would include an agreed definition of hate speech, what qualifies, who decides and how we deal with such incidents.

“I do not believe legislation is the only answer,” he says. “But part of the public understanding is an appreciation of how much hate speech there is, so a central register or a data base which is made publicly available is essential.

“At the moment, targeted groups, typically minority ethnic and religious communities, are well aware of how much hate speech there is – and everyone else is largely ignorant. We need more public understanding.”

The newly appointed Dean of the Auckland Law School, Professor Penelope Mathew, says freedom of expression is important to liberal democracy and is recognised as a fundamental human right for everyone in relevant international law, and also within New Zealand’s Bill of Rights Act.

“Freedom of expression is not unlimited however,” she says. “There are many long-standing limitations on it, such as defamation laws.”

“In the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, to which New Zealand is party, it is recognised that freedom of speech carries great responsibilities, that it is not an unlimited right, and that some speech is, in fact, prohibited.

“This reflects human experience, particularly the holocaust, in which speech has been a precursor to, and enabler of, physical harm and annihilation of particular groups because of their race or religion.

“Consequently, the relevant international laws that have been adopted as a response to phenomena, including genocide and apartheid, are a helpful starting point for understanding how to define racial hatred.”

Mathew says events in Christchurch have highlighted some gaps in New Zealand’s current legislation.

“The relevant sections of the Human Rights Act do not encompass hatred or discrimination directed against members of a religion unless there is also an element of race or national origin involved.

“This is not consistent with Article 20 of the International Covenant on Civil and Political Rights. The shooting in Christchurch highlights the obvious fact that adherents of any religion may be of many races and national origins.

“The live-streaming of the shootings in Christchurch also highlights the ways in which technology may enable advocacy of racial or religious hatred. The proposed review may usefully examine means by which to counter such uses of technology.”

Asked whether the government’s review of hate speech legislation was an over-reaction to the Christchurch massacre and could result in laws inhibiting freedom of expression, she said:

“It is perhaps advisable to be wary of the view that the fact that the law has been broken or didn’t prevent harm means the law must be amended. No law can be perfectly enforced.

“However, there have been long-standing calls for review of New Zealand’s racial hatred laws.

“Having a review in which people are able to make submissions (exercising their freedom of expression) may assist in teasing out where the limits lie between freedom of speech and racial or religious, or indeed, other forms of hatred.

“It may also have the benefit of highlighting that freedom of speech also carries responsibilities. The fact that it is legal to say something does not mean that one should say certain things. Racially or religiously offensive speech that will not be outlawed but may hurt people should be called out by others as offensive.”

But what about the proposition that the best response to hate speech is to get it out into the open where it can be confronted and countered, and not drive the perpetrators underground?

Paul Moon, for one, subscribes to this view.

“This is the only way to defeat ideas. Bans simply don’t work and history is overloaded with examples that prove that.” Religion is banned in the Soviet Union, Marxism banned in Nazi Germany, Nonconformist Protestantism was banned in Stuart England.

“In none of these cases did the ban achieve the desired effect in the long term. On the contrary, the banned ideas eventually rebounded.

“What ultimately destroyed Marxism was not prohibition but exhibition. The idea put into practice proved to be a disaster. So it is with hateful ideas. Exposing their underlying evil and inefficacy is the only way to overcome them.”

Karl du Fresne concurs.

“I’ve been saying that for decades. I’ve always believed that a liberal New Zealand-style democracy is robust enough to deal with offensive and potentially harmful beliefs.

“History demonstrates that New Zealanders are liberal, tolerant people and I think they can be trusted not to be swayed by extreme ideologies. We shouldn’t allow ourselves to be panicked by one rogue event.”

Penelope Mathew takes a different view although she believes the issue could be “usefully discussed” in the government’s review.

“I think everyone can respect this particular opinion, particularly when it is based on long and detailed empirical studies. However, there are certain forms of speech that, if not outlawed, can lead to death.

“Surely we should be concerned about underground cells plotting mass killings and the public incitement of genocide that occurred in Rwanda, for example.

“Perhaps the view that the answer to bad speech is more speech also assumes a level playing field where minority groups are able to speak up effectively against pervasive racism, and underestimates the harm that racist speech inflicts against its victims.

“This is a complex balancing act and a review could play a useful role in finding that balance.”

But have the United Kingdom and Germany, which have already introduced stringent measures to counter hate speech, got the balance right?

Given that the government’s review may take New Zealand in a similar direction, the question is causing concern.

In the UK, for example, hate crimes are recorded and prosecuted separately by the police with figures reported annually.

Karl du Fresne says he can’t see any problem with the police gathering data about what are alleged to be hate crimes to judge how serious the problem is.

“But I think the situation in the UK, where the police are empowered to prosecute for what are effectively “political” crimes, is appalling. It really has become a police state and I agree with David Farrar.”

Paul Moon also shares Farrar’s misgivings.

“I agree with David Farrar. The intention is good but the execution can end up breaching natural justice and ultimately does not achieve its aim of quashing the targeted ideas.

“Legislators will always struggle to control speech, in part because language is so malleable. Racism, for example, is often codified in ways that conceal its purpose. The way much anti-Semitism has been carefully couched in the language of anti-Zionism or anti-Israel rhetoric illustrates this.

“Paul Spoonley sides with Farrar but believes it would be remiss of New Zealand not to put in place more measures to curb hate speech.

“I do agree but I also argue strongly for action on hate speech. So we do not want it to trivialise or have a severity threshold which is too low.

“It is not simply about legislation. It is about public awareness and public discussions so we understand what actually happens in our community, and the impacts of hate speech on groups and individuals.

“It is about speaking out and drawing attention to examples of hate speech and countering that which is inaccurate and hurtful.

“It is about supporting our public agencies as they monitor and reduce the public harm from hate speech.

“And yes, we do need to debate the difference between free speech and hate speech. But hate speech is not free speech.”

But du Fresne has yet to be convinced about the necessity for the government’s fast-track review.

“I certainly think there’s a danger that the government, egged on by the activist Left, might over-react.

“As Stephen Franks wrote recently (quoting Churchill), you should never waste a good crisis. But I can’t see that the problem is so urgent that we can’t wait for the outcome of the Royal Commission.

“Why bother to appoint one if the government is then going to pre-empt it with kneejerk law changes that might not be necessary?” 

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