New Zealand Human Rights Commission: Te Kähui Tika Tangata The Special Rapporteurs have provided further clarity on speech which is prohibited under article 20(2).86 First is that only advocacy of hatred is covered. Second is that it must constitute incitement to one of the three listed results. Third is that the incitement is likely to result in discrimination, hostility or violence. Therefore, advocacy of hatred only becomes a breach when the speaker seeks to provoke reactions on the part of the audience and there is a very close link between the expression and the resulting risk of discrimination, hostility or violence.87 The Human Rights Council made clear in Resolution 12/16 that certain types of speech should never be subject to restrictions. These categories include discussion of government policies and political debate; reporting on human rights, government activities and corruption of government; engaging in election campaigns, peaceful demonstrations or political activities, including for peace or democracy; and expression of opinion and dissent, religion or belief, including by persons belonging to minorities or vulnerable groups.88 In 2019 the Special Rapporteur provided further examples of speech that should not be restricted. First, where ridicule, abuse, criticism or other ‘attacks’ is seen as offensive to religious or other belief systems but does not constitute incitement. Second, opinions that are “erroneous” or “incorrect interpretations of past events”. Third, where a speaker is individually targeting an identifiable victim but not seeking to incite others to take an action against persons based on protected characteristics. Fourth, expression that may be offensive 86 87 88 89 90 or characterised by prejudice and raises serious concerns of intolerance but does not meet a threshold of severity to merit any kind of restriction. In the latter, the Special Rapporteur recommends that the six factors identified by the Rabat Plan provide a rubric for considering how to evaluate the appropriate response to such speech. The Special Rapporteur emphasised that the absence of restriction under international law does not mean an absence of action. States should take robust steps to counter such intolerance and ensure that public authorities protect individuals against discrimination rooted in these kinds of assertions of hate. Examples include Government condemnation of prejudice, education, training, public service announcements, and community projects.89 In September 2019 a joint open letter signed by 26 United Nations experts raised concerns about the global increase in hate speech.90 Signatories included the UN Special Rapporteur on the Right to Freedom of Expression and Opinion, the Special Rapporteur on Freedom of Religion and Belief, the Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identify and the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance. The letter states: United Nations General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, U.N. Doc A/66/290 (Aug 10, 2011); 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 [8]. United Nations General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, U.N. Doc A/66/290 (Aug 10, 2011) at [28]. Human Rights Council, Resolution 12/16 Freedom of option and expression, UN Doc A/HRC/RES/12/16 (12 October 2009) at [5(p)]; United Nations General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, U.N. Doc A/66/290 (Aug 10, 2011) at [42]. 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 [21]-[24]. OHCHR, Joint open letter on concerns about the global increase in hate speech <www.ohchr.org>. 18