Körero Whakamauähara : Hate Speech that case, King-Ansell was charged with, and convicted of, publishing a pamphlet which incited ill-will against Jewish people on the grounds of their ethnic origins. On appeal, the Court held that “ethnic” should be taken to mean “pertaining to race or nation.” In the decision, Woodhouse J and Richardson J stated that section 25 referred to discrimination against a group, not an individual: The ultimate genetic ancestry of any New Zealander is not susceptible to legal proof. Race is clearly used in its popular meaning. So are the other words. The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.111 Harmful Digital Communications Act Online hate speech in New Zealand directed at individuals is principally regulated through the Harmful Digital Communications Act (HDCA). The HDCA sets out ten communication principles. Principle 10 reads: A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability. Both the scope and threshold of the HDCA are different to those included in sections 61 and 131 of the HRA. The protected characteristics in the HDCA include religion, gender, sexual orientation and disability in addition to the HRA’s colour, race, ethnic or national origins. Neither is it necessary under the HDCA to show incitement of third parties. Only denigration of an individual on a specified ground needs to be established. Complaints can be made to Netsafe, the approved agency under the HDCA, if an individual believes that one of the communication principles has been breached. Netsafe will work with the parties to find a resolution. However, if a resolution cannot be reached the agency must notify the complainant of their right to apply to the District Court for an order if the affected individual believes he or she has suffered, or will suffer, harm as a result of the digital communication concerned. The Court can make a range of orders including requiring the removal of content and the publishing of an apology. The HDCA also provides for criminal liability when a person does not comply with an order or when a person posts a digital communication with the intention that it cause harm and then harm results. In the recent District Court decision of R v Iyer it was held that the term “posts a digital communication” is broad.112 Digital communications are not confined to only “one on one” communications but can include everything in the realm of cyberspace that has the capability of being published and viewed.113 This could be seen to include content on social media platforms such as YouTube, Facebook, and Twitter. The HDCA requires online content hosts to take certain steps after receiving a notice of complaint. The steps require the on-line content host to notify the user who posted the harmful content and to take down the content unless a valid counter-notice is received by the user within 48 hours. If an online content host takes these steps, they are protected against civil or criminal liability for hosting the harmful content. Films, Videos and Publications Classification Act The Films, Videos and Publications Classification Act 1993 (FVPC Act) allows a complaint to be made where a publication is deemed “objectionable” and thus is also relevant to the discussion on hate speech. The definition of a “publication” under the FVPC Act is broad and can apply to images, representations, signs, statements, or words that are online. However, the FVPC Act currently exempts from liability network operators or online service providers who provide the network or facility through which objectionable publications are distributed. Ibid., Woodhouse J at 537 and Richardson J at 542 (emphasis added). R v Partha Iyer [2016] NZDC 23957 at [29]. 113 Ibid., at [37]. 111 112 23