Tuesday, December 17, 2019

The HRC on hate speech

The Human Rights Commission has published a paper today on Kōrero Whakamauāhara: Hate Speech - An overview of the current legal framework. It examines the principles behind hate speech regulation, as well as current New Zealand and international law. While it draws no formal conclusions, it is clear from that examination that New Zealand law is lagging.

The principles section makes clear that the purpose of hate speech laws is not to prevent offence, but to prevent incitement, discrimination, and the undermining of shared membership in society. They are fundamentally about protecting public order, and people's right to participate in society and be themselves. While there are obvious freedom of expression arguments against restricting hate speech, there is also a right - recognised in New Zealand and international law - to be free from discrimination. Proper regulation requires balancing those rights (just as electoral advertising restrictions involve balancing freedom of speech and the right to free and fair elections).

The international law section reviews those competing rights, both in treaty texts and interpretive rulings. Its worth noting here that in international law, freedom of expression - protected by article 19 ICCPR - is bound by both the general limits of public order, public health, and public morals (whatever those are), and explicit restrictions against war propaganda and "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence". Those provisions were an explicit response to Naziism, and are now interpreted more widely to also protect sex, religion, political opinion, sexual orientation and gender identity, disability and refugee status - basicly anything ordinarily protected under anti-discrimination law. New Zealand has a reservation against that article, but that doesn't mean its not an international standard that we are failing to comply with. And if we're going to move in this area, then removing that reservation seems like a good idea.

Finally, there's a review of laws from other countries, including Australia, Canada and the UK - at least two of which have similar human rights regimes to ours. So we have models to draw on, and caselaw that can be examined to determine their practical effects in deciding what to adopt here.

I've previously been highly suspicious of hate speech laws, misunderstanding them as being about offence rather than protecting participation, and being cautious about potential abuses (both by future governments, and private groups - the religious fanatics who have tried to bring private prosecutions for "blasphemous libel" would probably try and use them to victimise people). I'm still cautious about the abuses, but its clear that we have not balanced the rights to freedom of expression and freedom from discrimination correctly. We need to act on this. The HRC's paper is a good start in deciding what to do.