Will hate speech laws turn us into another Iran?
It portrays freedom
as the great panacea for many of society’s ills, the ever-present battle
of the West’s freedom versus
Communism.
The vast majority of Kiwis will oppose the actions taken by the Iranian Government against its own people. The oppression of women, banning of protests, and death based on enforced religious beliefs are something that is alien to us.
As a country, we would condemn the actions of the Iranian Government and support the rights to protest against those actions. We believe that a government should not impose religious ideals on a population nor murdering those who protest. We believe in freedom of choice, freedom of speech, and that people should be protected from harm.
Iran shows an extreme, where such rights do not exist. We see a country that has removed those things that we see as the foundations of freedom.
In New Zealand, the Government is looking to introduce further hate speech legislation. The purpose of this change is to, according to the consultation document, “Increase the number of groups of people that are protected by the incitement provisions, such as religious groups and rainbow communities”.
At face value, this is legislation that would appear to reduce a freedom that Kiwis have. This is the suggestion taken by MP Brooke van Velden, as recently published (NZ Herald, November 16). She states that hate speech legislation will not reduce harm. She suggests hate speech legislation is the first step towards the oppression in Iran. She holds up a suggestion that hate speech laws are incompatible with freedom.
I come across this Americanised idea of freedom often in my work. Movies and social media, most coming out of the “land of the free”, have created this view of an absolute freedom, sometimes portrayed as a required factor in creating a perfect society. It portrays freedom as the great panacea for many of society’s ills, the ever-present battle of the West’s freedom versus Communism.
However, the reality is not so simple. There are freedoms that cannot be given in isolation. Taken to the extreme, true freedom also reduces freedom. In the US, the First Amendment to the Constitution gives freedom of speech. The Second Amendment provides a right to bear arms, a freedom which has led to many horrible events, incited by those expressing their freedom of speech. So, in the land of the free, freedoms create issues.
Our rights to freedom of expression are in Section 14 of the NZ Bill of Rights Act 1990. This provides that: “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” It is a noble idea. It is imposed on the Government, meaning the Government should not impinge on that right.
However, just as in Iran, freedom of expression is not our only right. We have freedoms of movement, of association, of religious belief, of peaceful assembly, freedom from discrimination, and a freedom from experiencing undue harm. All are also noble ideas and form a foundation of our society.
Let us look solely at hate speech legislation. Taken as an absolute, the freedom of expression would allow for people to incite hatred, spread discrimination, cause serious emotional distress to someone. This freedom of expression conflicts with a person’s right not to be harmed or discriminated against. Both rights cannot exist at the same time. Such harm, experienced in an online environment that multiplies and spreads, can be extremely harmful emotionally. It can also incite physical acts.
Van Velden argues that, unless it can be defined in legislation, hate speech should not be legislated against.
So much of our legislation falls to the court to define where the line is drawn. This allows the law to move with society, and not to be bogged down by outdated views. Most legislation leaves some element of definition to the court. This would be no different.
The reality is the planned legislative changes will give the court slightly more direction as to what is hate speech, and better cover some groups. What the court will look at is what cost to freedom of expression should we give in exchange for protecting people from harm. The court will look at society and take its direction from there.
Will the hate speech legislation prevent women choosing to wear or not wear a hijab from experiencing harm? Perhaps, as we’ve already seen the impact of incited hatred in this country. Will it lead to the Government acting like that of Iran? Of course not.
I would hope Kiwis would value the right to prevent harm greater than the right to incite.
Arran Hunt is a partner at Stace
Hammond, specialising in social media law, with a focus in online
harm.