New Zealand Human Rights Commission: Te Kähui Tika Tangata The ECHR provides for restrictions where necessary for the protection of the reputation or rights of others. New Zealand courts can have regard to the ECHR, to which New Zealand is not a party, for the purpose of interpretive guidance.75 However, regional human rights norms cannot be invoked to justify departure from international human rights protections.76 Other international law sources and commentary UN human rights mechanisms and NGOs have elaborated on the meaning of treaty law on freedom of expression. UN bodies have provided guidance on the treaty provisions. For example, in 2011 the Office of the High Commissioner for Human Rights (OHCHR) held four regional workshops on incitement to national, racial or religious hatred under article 20 of the ICCPR due to confusion about implementation. The workshops resulted in the adoption of the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (Rabat Plan). The Rabat Plan advanced a range of conclusions and recommendations for the implementation of article 20(2) and distinguished between three types of expression:77 • expression that constitutes a criminal offence • expression that is not criminally punishable, but may justify a civil legal claim or administrative sanctions (for example the payment of damages) • expression that does not give rise to criminal, civil or administrative sanctions, but still raises concern in terms of tolerance, civility and respect for the rights of others 75 76 77 78 79 80 The Rabat Plan emphasised that the threshold of the types of expression that would fall within article 20(2) should be “high and solid”78 and that criminal sanctions should be used as a last resort. The Rabat Plan suggests a six-part threshold test for expressions considered as criminal offences: context; speaker; intent; content and form; extent of the speech act; and likelihood, including imminence. The Rabat Plan further provides that States should ensure that the three-part test of legality, proportionality and necessity, for the restrictions to freedom of expression, apply to cases of incitement to hatred.79 Among the recommendations outlined in the Rabat Plan are that States should consider robust definitions of key terms such as hatred, discrimination, violence, and hostility, drawn from the guidance and definitions provided in the Camden Principles on Freedom of Expression and Equality:80 Pursuant to principle 12, national legal systems should make it clear, either explicitly or through authoritative interpretation, that the terms ‘hatred’ and ‘hostility’ refer to intense and irrational emotions of opprobrium, enmity and detestation towards the target group; the term ‘advocacy’ is to be understood as requiring an intention to promote hatred publicly towards the target group; and the term ‘incitement’ refers to statements about national, racial or religious groups which create an imminent risk of discrimination, hostility or violence against persons belonging to those groups. Ibid., at [15]. United Nations General Assembly Promotion and protection of the freedom of opinion and expression UN Doc A/74/486 (9 October 2019) at [26]. Human Rights Council Annual Report of the United Nations High Commissioner for Human Rights – Addendum report of the United Nations High Commissioner for Human Rights on the expert workshops on the prohibition of incitement to national, racial or religious hatred, UN Doc. A/HRC/22/17/Add.4 (11 January 2013) Annex: Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence at [20]. Ibid., [45] and [47]. Ibid., [18]. Ibid., [21]. 16