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
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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>.
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