New Zealand Human Rights Commission: Te Kähui Tika Tangata Part I: Hate speech What is hate speech? The term hate speech is often used in an emotive sense to describe speech or expression that members of society deem as morally wrong. While speech may be morally reprehensible, it is not necessarily unlawful. This paper will focus on what international law says about the regulation of hate speech and how some comparative countries regulate hate speech. No definition of hate speech exists under international law and definitions under national laws vary. In general, hate speech laws usually cover not only spoken words, but words or images printed, published or posted on the internet.2 This is particularly important today because material that is printed or published online has the potential to reach large audiences. Discussions about hate speech often focus on the ideas being expressed, rather than the effect of the expression.3 However, the aim of hate speech laws is not usually to supress expressions of hate in themselves, but to punish the incitement of hate in other individuals. As highlighted by the Human Rights Review Tribunal in New Zealand’s most recent case under the civil hate speech provision found in section 61 of the Human Rights Act 1993:4 [T]he harm at which the legislation is directed is not the expression itself, but the presumed effect of that expression on the minds of third parties. 2 3 4 5 6 7 4 The leading Canadian Supreme Court case of Saskatchewan Human Rights Commission v Whatcott also made this point. The Court was tasked with determining whether the hate speech provision under the Saskatchewan Human Rights Code was constitutional in light of the right to freedom of expression. In coming to its decision, the Court identified that one of the challenges of the application of hate speech laws is the “mistaken propensity to focus on the ideas being expressed, rather than on the effect of the expression.”5 It is notable that in the United Kingdom hate speech laws are referred to as “stirring up” offences, which provides a good description of the intended purpose of such legislation. Why regulate hate speech? Scotland’s 2017 independent review of hate crime legislation found that the merits of having “stirring up” offences included recognition of moral wrongfulness, harm, the seriousness of the offence as well as their symbolic nature.6 In concluding that Scotland’s stirring up offences should be extended, Lord Bracalade concluded that “the harm caused by stirring up of hatred offences can be particularly severe and it is an important consideration pointing towards the extension of such offences.”7 Jeremy Waldron, The Harm in Hate Speech (Harvard University Press, Cambridge, 2012) at 37. At 492. Wall v Fairfax [2017] NZHRRT 17 at [191.3]. Saskatchewan Human Rights Commission v Whatcott [2013] SCC 11 at 492 [31]. See also: The distinction between the expression of repugnant ideas and expression which exposes groups to hatred is crucial to understanding the proper application of hate speech prohibitions. Hate speech legislation is not aimed at discouraging repugnant or offensive ideas. It does not, for example, prohibit expression which debates the merits of reducing the rights of vulnerable groups in society. It only restricts the use of expression exposing them to hatred as a part of that debate. It does not target the ideas, but their mode of expression in public and the effect that this mode of expression may have at [51]; and… An assessment of whether expression exposes a protected group to hatred must therefore include an evaluation of the likely effects of the expression on its audience. Would a reasonable person consider that the expression vilifying a protected group has the potential to lead to discrimination and other harmful effects? This assessment will depend largely on the context and circumstances of each case at [52]. Lord Bracadale, Independent Review of Hate Crime Legislation in Scotland – Final Report (Scottish Government, Edinburgh, May 2018) at iv and 9. At 58.