New Zealand Human Rights Commission: Te Kähui Tika Tangata The right to equality and non-discrimination is affirmed under New Zealand law. Section 19(1) of the NZBORA reads: Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. harm even those who are not users of the subject platform. It is therefore important that States and companies address the problems of hate speech with a determination to protect those at risk of being silenced and to promote open and rigorous debate on even the most sensitive issues in the public interest. The right to freedom of expression can also be limited to promote other values that are considered to be of greater societal importance. For example, certain media, such as films, magazines or books may be censored or their distribution restricted under the Films, Videos, and Publications Classifications Act 1993; the Crimes Act sanctions threatening or offensive statements; and defamation laws exist. Given the context of online hate speech, some have suggested that it requires a multifaceted response that goes beyond civil and criminal penalties to include broader regulatory efforts and self-regulatory action by internet platforms and users.46 It is notable that large social media providers have developed community guidelines and enforcement policies as part of their terms of use.47 The rise of online hate speech Some countries have introduced legislation which applies directly to online hate speech. For example, Scotland’s Communications Act 2003 makes it an offence to send by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or cause any such message or matter to be so sent.48 In New Zealand, the Harmful Digital Communications Act 2015 applies specifically to the online environment (although it does not apply to hate speech directed at groups of people rather than individuals) and legislation such as the Human Rights Act 1993 and the Films, Videos and Publications Classifications Act 1993 can apply to publications and electronic communications transmitted online. The rapid increase in the use of social media has contributed to the prevalence of online hate speech. Hateful comments can be easily shared across a large audience and can be made with anonymity and invisibility. Recently the Special Rapporteur on the promotion and protection of the freedom of opinion and expression (Special Rapporteur), explained the harm of online hate speech in the following way:45 Online hate speech, […] can result in deleterious outcomes. When the phrase is abused, it can provide ill-intentioned States with a tool to punish and restrict speech that is entirely legitimate and even necessary in rights-respecting societies. Some kinds of expression, however, can cause real harm. It can intimidate vulnerable communities into silence, in particular when it involves advocacy of hatred that constitutes incitement to hostility, discrimination or violence. Left unchecked and viral, it can create an environment that undermines public debate and can 45 46 47 48 49 However, applying (and enforcing) domestic law to online content that may be generated and held offshore has inherent difficulties. These challenges were raised by the United Kingdom Law Commission in its 2014 examination of hate crimes, including stirring up offences.49 United Nations General Assembly Report of the Special Rapporteur on the promotion and protection of the freedom of opinion and expression UN Doc A/74/486 (9 October 2019) at [56]. This was the conclusion made by James Chalmers and Fiona Leverick “A Comparative Analysis of Hate Crime Legislation” (University of Glasgow, 2017) at 86 citing B Perry and P Olsson and “Cyberhate: the globalization of hate” (2009) 18 Information and Communications Technology Law 185 at 195-197, who note a range of legal strategies. They comment (at 196) that “law is not the only – or perhaps even the most effective – weapon available to counter cyberhate”, and note “four key mechanisms”: filtering, monitoring organisations, “hate speech hotlines” and internet service provider self-regulation. See, for example, YouTube’s community guidelines, <https://www.youtube.com/about/policies/#community-guidelines>. Section 127(1). Law Commission, Hate Crime: The Case for Extending the Existing Offences; History of Hate Crime Legislation (Law Com CP No 213, Appendix B) at [2.103]. 10