In this section of the companion paper we discuss other New Zealand legislation that addresses hate speech. We note that there are other ways in which the law addresses hate speech that we do not discuss, in particular hate speech that may attract sanctions imposed by disciplinary bodies in professional settings and may also have employment law consequences.
Under the headings that follow we discuss:
- the Summary Offences Act 1981;
- the Harmful Digital Communications Act 2015;
- the Broadcasting Act 1989;
- the Films, Videos, and Publications Classification Act 1993: the current law; and
- the Films, Videos, and Publications Classification Act 1993: proposals for change.
Summary Offences Act 1981
A number of offences in the Summary Offences Act address offensive, threatening and insulting language. As we have noted, the courts allow considerable leeway for freedom of expression and this is applicable even in cases where the speech in issue targets a particular individual.88 That said, flagrant hate-motivated abuse can be – and has been – prosecuted under this Act:
- In 2014 a woman was found guilty (although discharged without conviction) of using offensive language after she told a taxi driver to: F**k off to India. You come here and get all the Kiwi jobs; eat your f**king curry and f**k off to India. This is a Kiwi job.89
- In 2015, a man was charged with offensive and threating language after calling two men on a bus “Islam c***s” and accusing them of “shooting innocent people”.90
- In 2019 a man was charged with, and later pleaded guilty to, disorderly behaviour the day after the 15 March 2019 terrorist attack, shouting “f**k the Muslims” and later saying: Muslims are not welcome in our country. Go home Muslims.91
All of the offences against public order in the Summary Offences Act require the conduct to take place in (or within hearing of) a public place. The definition of public place in the Summary Offences Act has not been amended since it was introduced in 1981 and encompasses only physical locations.92 This means that a charge of offensive language cannot be brought under the Summary Offences Act against a person who posts material online even where the post is clearly directed at another individual or group and is visible to other people who are online.
Harmful Digital Communications Act 2015
The Harmful Digital Communications Act 2015 creates an offence of causing harm by posting a digital communication.93 It is an offence to post a digital communication with the intention that it cause harm to a victim, if
- posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and
- posting the communication causes harm to the victim.
“Victim” is defined as meaning “the individual who is the target of the posted digital communication”94 and “harm” as “serious emotional distress”.95
The term “posts a digital communication” is defined broadly.96 In drafting the Bill that became the Harmful Digital Communications Act, the Law Commission noted that the term “digital communications” applies “not only to one‑to-one communication but more broadly the range of digital publishing which occurs in cyberspace”.97 That said, the requirement for a “victim” that in turn requires the identification of a “target” inhibits the reach of the offence in respect of communications that denigrate groups rather than particular individuals.
The Harmful Digital Communications Act also provides for civil proceedings to be brought in the District Court which, under section 19(1), may make a variety of orders, including orders that an individual take down or disable material or cease the conduct complained of. Orders can also be made against an online content host which include taking down or disabling material and identifying the author of an anonymous or pseudonymous communication.98 An IP address provider can be required to identify the persons responsible for such communications.99 The criteria that the court must have regard to in making an order are provided, in reasonably general terms, in section 19(5). Particularly relevant are the content of the communication and the level of harm caused or likely to be caused.
Section 4 of the Harmful Digital Communications Act sets out “communications principles” that are required to be taken into account by those (including courts) performing functions and exercising powers under the Act. Principle 9 is in these terms:
A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.
Broadcasting Act 1989
Section 4 of the Broadcasting Act 1989 sets out the responsibility of broadcasters for programme standards. Broadcasters are responsible for maintaining standards that are consistent, among other things, with:
- the observance of good taste and decency;
- the maintenance of law and order; and
- the principle that controversial issues of public importance are discussed in a balanced way.
There are four Broadcasting Codes of Practice (for radio, free-to-air television, pay television and election programmes in an election period) and they all contain standards that outline what is required of broadcasters when they broadcast programmes in New Zealand.
One of those standards is titled “Discrimination and Denigration”. The purpose of that standard is to protect sections of the community from verbal and other attacks, and to foster a community commitment to equality. The standard only applies to recognised sections of the community, which are broadly consistent with the prohibited grounds for discrimination listed in section 21 the Human Rights Act and include, amongst many others, “religious belief” and “race”.
Films, Videos, and Publications Classification Act 1993: the current law
The Films, Videos and Publications Classification Act 1993 is New Zealand’s principal censorship legislation. Under this Act, it is an offence, punishable by a fine not exceeding $2,000, to be in possession of an objectionable publication.100 It is an offence, punishable by imprisonment of up to 10 years, to be in possession of a publication that the person knows (or has reasonable cause to believe) is objectionable.101 There are also distribution offences.
To be objectionable, a publication must describe, depict, express or otherwise deal with matters “such as sex, horror, crime, cruelty, or violence”.102 These topics are sometimes referred to as subject‑matter “gateways”. If the publication does not deal with one of these topics, and thus does not pass through a subject-matter gateway, it cannot be classified as objectionable.103 Illustrating this, there is a decision of the Court of Appeal in which a publication that protested against homosexuality was not classified as objectionable as denigration, by itself, was insufficient to amount to violence or cruelty.104
If a publication passes through a subject-matter gateway, it can only be classified as objectionable if it deals with one of the topics “in such a manner that the availability of the publication is likely to be injurious to the public good”. Injury to the public good can be established in a number of ways. First, section 3(2) of the Act deems a publication to be objectionable if it “promotes, supports, or tends or promote or support” a number of activities or actions. Among those are “acts of torture or the infliction of extreme violence or extreme cruelty”. Second, a publication can be classified as objectionable on the basis of factors and criteria set out in section 3(3) and (4) of the Act.
Section 3(3) and (4) provide:
In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection (2) applies) is objectionable or should in accordance with section 23(2) be given a classification other than objectionable, particular weight shall be given to the extent and degree to which, and the manner in which, the publication—
- describes, depicts, or otherwise deals with—
- acts of torture, the infliction of serious physical harm, or acts of significant cruelty:
- sexual violence or sexual coercion, or violence or coercion in association with sexual conduct:
- other sexual or physical conduct of a degrading or dehumanising or demeaning nature:
- sexual conduct with or by children, or young persons, or both:
- physical conduct in which sexual satisfaction is derived from inflicting or suffering cruelty or pain:
- exploits the nudity of children, or young persons, or both:
- degrades or dehumanises or demeans any person:
- promotes or encourages criminal acts or acts of terrorism:
- represents (whether directly or by implication) that members of any particular class of the public are inherently inferior to other members of the public by reason of any characteristic of members of that class, being a characteristic that is a prohibited ground of discrimination specified in section 21(1) of the Human Rights Act 1993.
In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection (2) applies) is objectionable or should in accordance with section 23(2) be given a classification other than objectionable, the following matters shall also be considered:
- the dominant effect of the publication as a whole:
- the impact of the medium in which the publication is presented:
- the character of the publication, including any merit, value, or importance that the publication has in relation to literary, artistic, social, cultural, educational, scientific, or other matters:
- the persons, classes of persons, or age groups of the persons to whom the publication is intended or is likely to be made available:
- the purpose for which the publication is intended to be used:
- any other relevant circumstances relating to the intended or likely use of the publication.
The 1993 Act has been used by the Office of Film and Literature Classification to censor Al Qaeda and Dā’ish-inspired propaganda105 and, shortly after the 15 March 2019 terrorist attack, the individual’s “manifesto” and the livestream of his terrorist attack were classified as objectionable.106
Films, Videos, and Publications Classification Act 1993: proposals for change
By ratifying article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, New Zealand has agreed to condemn “all propaganda and all organisations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form”. In doing so, New Zealand has promised to “adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination”. We think attempts at compliance involving the creation of offences that incorporate wording similar to, or based on, article 4 may give rise to legitimate freedom of expression arguments. We do, however, see some scope for compliance to be achieved, at least substantially, with amendments to the Films, Videos, and Publications Classification Act.
As we noted earlier, a publication can only be classified as objectionable if it passes through a subject-matter This means that racist propaganda cannot be classified as objectionable unless it also deals with matters such as sex, horror, crime, cruelty or violence.
We propose that section 3(1) of the Films, Videos, and Publications Classification Act is amended by adding “racial superiority, racial hatred and racial discrimination” to “sex, horror, crime, cruelty, or violence”. As noted, this would achieve substantial compliance with article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination.
Amending section 3(1) in this way would not otherwise change the general scheme of the definition of objectionable. In order to be classified as objectionable, the publication would still need to be “likely to be injurious to the public good” after a consideration of the factors in section 3(2)–(4). Section 3(4) provides for, amongst other things, consideration of the “merit, value, or importance” of the publication. Part 4 of the Act provides for extensive rights of review. Importantly, classification decisions must reflect the right to freedom of expression guaranteed under the New Zealand Bill of Rights Act along with the reasonable limits exception.107
88. As was the case in Brooker v Police, footnote 32 above, where the appellant was of the view that he had been unlawfully treated by a constable. Knowing that she had been on night duty, he went to her home in the morning and knocked on her door for some three minutes. Eventually, she opened it and told him to leave. He then retreated to a grass verge on the road outside her house and began to protest. He displayed a sign saying, “No more bogus warrants” and, accompanied by a guitar, began to singing songs addressed to the constable and referring to her by her first name. Some fifteen minutes after he arrived at the constable’s house, police officers arrived. They told him that if he did not leave he would be arrested for intimidation. He would not do so and was arrested. At the hearing, the charge was amended to one of disorderly behaviour.
89. “Queenstown cop avoids conviction over abuse” (15 October 2014) Otago Daily Times https://www.odt.co.nz/regions/queenstown-lakes/queenstown-cop-avoids-conviction-over-abuse.
90. “Racist rant: ‘Sympathy’ for abuser” (30 March 2015) New Zealand Herald https://www.nzherald.co.nz/nz/racist-rant-sympathy-for-abuser/C5PYDLW5YIWLS2NSQTDLHAY4WY/.
91. Rob Kidd “Student sentenced for anti-Muslim slurs” (8 June 2019) Otago Daily Times https://www.odt.co.nz/news/dunedin/student-sentenced-anti-muslim-slurs.
92. Summary Offences Act 1981, section 2.
93. Harmful Digital Communications Act 2015, section 22.
94. Harmful Digital Communications Act 2015, section 22(4).
95. Harmful Digital Communications Act 2015, section 4.
96. Harmful Digital Communications Act 2015, section 4 and R v Partha Iyer  NZDC 23957.
97. Law Commission Harmful Digital Communications: The adequacy of the current sanctions and remedies (NZLC MB3, 2012) at page 7.
98. Harmful Digital Communications Act 2015, section 19(2).
99. Harmful Digital Communications Act 2015, section 19(3).
100. Films, Videos, and Publications Classification Act 1993, section 131.
101. Films, Videos, and Publications Classification Act 1993, section 131A.
102. Films, Videos, and Publications Classification Act 1993, section 3(1).
103. Moonen v Film & Literature Board of Review  2 NZLR 9 (CA) at paragraphs 4–5; Living Word Distributors v Human Rights Action Group (Wellington), footnote 29 above at paragraphs 24–34.
104. Living Word Distributors v Human Rights Action Group (Wellington), footnote 29 above.
105. See, for example, Patel v R  NZCA 234 at paragraph 9; and R v Nawarajan  NZDC 11469 at paragraph 10.
106. See Office of Film and Literature Classification Christchurch shooting video officially objectionable (20 March 2019) https://www.classificationoffice.govt.nz/news/latest-news/christchurch-attacks-press-releases/#christchurch-shooting-video-officially-objectionable; Decision of Film and Literature Board of Review In the matter of an application under section 47(2)(e) by the Kiwi Party (Incorporated) for a review of the publication titled: The Great Replacement (12 August 2019).
107. See Living Word Distributors v Human Rights Action Group (Wellington) footnote 29 above; and Wall v Fairfax New Zealand Ltd, footnote 6 above.