The role of this companion paper
This companion paper supplements Part 9, chapter 4 of Ko tō tātou kāinga tēnei: Report of the Royal Commission into the Terrorist Attack on Christchurch Masjidain on 15 March 2019. For ease of comparison, the paper follows generally (although not exactly) the structure of that chapter, but is more detailed, particularly in respect of hate speech. There is some repetition of information from Part 9, chapter 4 of our report to enable this companion paper to be read on a stand-alone basis.
We have not set out to provide a complete analysis of the practical, policy, philosophical and legal issues involved in the criminalisation of hate crime and hate speech. A very recent survey of these issues was published in September 2020 by the United Kingdom Law Commission in its consultation paper, Hate crime laws.1 Although focused on the position in England and Wales, it provides a comprehensive review of the relevant literature, human rights instruments and international practice. It also provides practical examples of hate crime laws in action.
Given the subject matter of our inquiry, this companion paper focuses on Islamophobia. However, it could have equally addressed hate against marginalised communities, such as anti-Semitism or homophobia. As we will explain, there is a link between hate speech and hate crime, and terrorism. Islamophobic hate speech and hate crime are connected to a risk of terrorism because there are terrorist ideologies premised on Islamophobia. But even where not associated with a terrorist ideology, hate speech and hate crime are significant issues for society.2 So, despite our focus on Islamophobia, we are not blind to the effects of hate crime and hate speech on a wide range of marginalised communities.
In this chapter, we introduce the concepts of hate crime and hate speech and the freedom of expression issues engaged by the creation of hate speech offences. We also discuss the adverse consequences of hate speech. As well, we review police practice in England and Wales regarding non-crime hate incidents, a practice which, for reasons we will explain, we did not discuss in our report.
In the other chapters of this companion paper, we:
- discuss New Zealand’s current hate crime laws and propose legislative change (chapter two);
- explain the background to, and the operation of, sections 61 and 131 of the Human Rights Act 1993 and propose legislative change (chapter 3); and
- review other laws addressing hate speech and propose a change to the Films, Videos, and Publications Classification Act 1993 (chapter 4).
What is hate crime?
In everyday language, a hate crime means an offence that is motivated by the offender’s hostility to the victim as a member of a group that has a common characteristic, such as race, religion or sexual orientation. An example is an assault against a person wearing religious attire that was motivated by the offender’s hostility towards the associated religion. In legal language, hate crime has practically the same meaning except that the law creating a hate crime will define the relevant characteristics covered by the offence. These are usually called “protected characteristics”.3 Since the conduct amounting to a hate crime (for example an assault) is already illegal, it is easy to treat a hate motivation either as a factor that can be taken into account for sentencing purposes (which is New Zealand’s current approach) or as an element of a separately created hate‑motivated offence.
What is hate speech?
Hate speech is a less precise term. In this paper we will generally refer to hate speech in a way that corresponds to the concept of hate crime that we have just outlined and therefore as speech that expresses hatred towards people who share a characteristic. Legislation that creates hate speech liability (which can be civil or criminal) specifies what types of speech are captured and the characteristics that are protected. In this paper we are mainly concerned with the circumstances in which hate speech can, and should, be criminalised.
Unlike hate crime (such as a hate-motivated assault), conduct criminalised by a hate speech offence – in this case, what has been said – is not usually independently illegal. The difference between legitimately criminalised hate speech and a vigorous exercise of the right to express opinions is not easy to capture – at least with any precision – in legislative language. As well, the more far reaching a law creating hate speech offences, the greater the potential for inconsistency with the right to freedom of expression.
Hate speech offences and freedom of expression
Section 14 of the New Zealand Bill of Rights Act 1990 provides:
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.
Under section 5 of the New Zealand Bill of Rights Act, the right to freedom of expression may be:
… subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
There is considerable scope for argument and controversy as to what are “reasonable limits” when it comes to the right to freedom of expression.
The criminal justice system plainly does not (and could not) offer complete answers to all social issues, nor to all violations of community norms.4 A democratic society does not seek to control what people think.5 So there is no room for “thought-crimes”. As well, the weight that democratic societies rightly give to freedom of expression leaves comparatively little room for criminalising what people say or write, although we consider that there is scope at least for prohibiting some harmful speech.
A decision to create hate speech offences has to balance a number of overlapping and conflicting considerations, including:
- the promotion of social cohesion;
- the desirability of limiting speech that encourages hostility that may result in harms, such as discrimination, abuse or actual violence or is psychologically and socially damaging for those targeted;
- the importance of freedom of expression; and
- ensuring that the law can be practically enforced.
Allowance must also be made for the possibility of unintended consequences. Hate speech laws are likely to be based on simple definitions, for instance, in the case of racism, along the lines of prejudice and discrimination on grounds of race, as opposed to a social science definition, which treats racism as dependent on a power imbalance. It is therefore possible that a significant proportion of complaints made under hate speech laws could be against members of marginalised communities who may have spoken of “white privilege” or “white fragility” in ways that others have found offensive. Because many complainants to the Human Rights Commission do not reveal their ethnicity, statistics are not available. It is, however, clear from some of the publications that have been the subject of complaints that a substantial proportion of complaints relate to “reverse racism” or “reverse discrimination”. So, for this reason as well, care needs to be taken in the drafting of hate speech laws.
Language that detracts from social cohesion (such as jokes at the expense of marginalised communities) that was once not subject to much, if any, social sanction, is increasingly unacceptable in a democratic society. But it is highly debateable whether language that has a negative impact on social cohesion should, for this reason alone, be subject to legal, as well as social, sanctions. Illustrating this point is the decision of the New Zealand High Court in Wall v Fairfax New Zealand Ltd,6 which involved an attempt to impose civil liability in respect of racist cartoons published in two newspapers. We discuss Wall later in this companion paper.
Adverse consequences and victims of hate speech
In deciding whether hate speech offences are a reasonable limit on the right to freedom of expression, the adverse consequences of hate speech are relevant.
We were provided with a draft Ministry of Justice document that sets out the evidence base it has established during its review of hate speech legislation. That document lists the impacts of hate speech as including:
- Psychological harm of hate speech – It has been claimed that hate speech causes psychological harm to individuals, and that its presence in society reinforces the racist status quo.7 This is consistent with findings that suggest individuals subjected to non-physical discrimination suffer harm to their physical and mental health.8
- Impact of hate speech on human dignity and public goods such as inclusive society – Jeremy Waldron argues that hate speech should be regulated as part of our commitment to human dignity, inclusion and respect for members of marginalised communities.9 Denigration of a marginalised community through hate speech undermines a public good that can and should be protected – the basic assurance of inclusion in society for all members.
- Impact of hate speech on behaviour of affected people – Some commentators have argued that hate speech causes those who are subject to hatred to retract from society and remain as silent and invisible as possible.10
- Impact of hate speech on New Zealanders generally – A Netsafe survey conducted in 2018 on the impact of online hate speech found that one in ten adults have been personally targeted by online hate speech.11 Of those targeted, about 60 percent reported a negative impact from the experience. Most reported being affected emotionally but also exhibiting changes in their behaviour. A third of those targeted reported not being affected. Descriptions of emotional impact included anger, sadness, fear and frustration. For some, online hate also affected their social interactions, sleep and/or work.
- The link between hate speech on the internet and hate crimes – A study commissioned by InternetNZ concluded that the case for the link between hate speech on the internet and hate crimes has been well made, however more research is needed to understand the details.12
In respect of the last point – that there is a link between hate speech and hate‑motivated crimes – a recent study investigated the relationship between hate speech online and hate crimes offline.13 Researchers collected Twitter and Police-recorded hate crime data over an eight-month period in London and built a series of statistical models to identify whether there was a significant association. The results of the study indicated “a consistent positive association between Twitter hate speech targeting race and religion and offline racially and religiously aggravated offences in London”.14 What this demonstrates is that “online hate victimisation is part of a wider process of harm that can begin on social media and then migrate to the physical world”.15 The study notes that if “we are to explain hate crime as a process and not a discrete act, with victimisation ranging from hate speech through to violent victimisation, social media must form part of that understanding”.16 There is value therefore in seeking to reduce hate speech online and offline, not only to prevent the direct harm it causes but also to limit escalation of such speech to hate-motivated crimes.
It is also plausible to see a link between hate crime and terrorism. Another recent study concluded:
Through the use of multiple data sources, this study uncovers the positive associations between hate crime and terrorism. In the context of intergroup conflict, there appears to be a continuum between the bias-motivated actions of non‑extremists to the hate crimes and terrorist acts committed by far‑rightists, with the presence of one type of activity seeing an escalation in the next type. As a result, it appears that hate crime and terrorism may be more akin to close cousins than distant relatives.17
In the 2018 Netsafe survey referred to above, it was noted that online hate speech was more prevalent among:
- minority ethnic groups, particularly Asians, followed by those who identified themselves within the “other” ethnicity category and then Māori and Pasifika respondents;
- males (13 percent) compared to females (8 percent);
- younger adults, especially those between 18 and 39 years old;
- people with disabilities (15 percent) compared to those without impairments (10 percent); and
- non-heterosexual respondents (such as people who identify as lesbian, gay, bisexual, transgender, queer or intersex).18
Additionally, religion (24 percent) was the most frequent perceived reason for being personally targeted by online hate speech. This was followed by political views (20 percent), appearance (20 percent), race (20 percent) and ethnicity (18 percent).
In a more recent survey, the eSafety Commissioner in Australia found that, in New Zealand, 15 percent of adults said that they had personally experienced online hate speech at least once in the 12 months before June 2019.19 Of those participants who had experienced online hate speech, over half experienced online hate speech at least twice.20 As well, a third of participants in the study had seen or been exposed to online hate speech targeting someone else.21 Personal experiences of online hate speech were more common among people identifying with the Hindu and Islamic religious faiths.22
Reporting, investigating and recording non-crime hate incidents
In England and Wales, Police services investigate and record reports of non-crime hate incidents. This practice has its origins in the February 1999 report of Sir William Macpherson into the Police investigation of the murder of Stephen Lawrence (the Macpherson Report).23 His report was very critical of the Metropolitan Police Service, which he concluded was institutionally racist. He recommended that a Ministerial Priority be established for all Police services “[t]o increase trust and confidence in policing amongst minority ethnic communities”.
Part of the package of reforms proposed by Sir William Macpherson was the recording of hate crime and hate incidents. In particular he recommended that:
- Police services should adopt the following definition of a racist incident: A racist incident is any incident which is perceived to be racist by the victim or any other person;
- the term “racist incident” must be understood to include crimes and non‑crimes in policing terms, and that both must be reported, recorded and investigated with equal commitment;
- the definition of racist incident should be universally adopted by Police services, local government and other relevant agencies;
- Codes of Practice should be established by the Home Office, in consultation with Police services, local government and relevant agencies, to create a comprehensive system of reporting and recording all racist incidents and crimes;
- all possible steps should be taken by Police services at a local level, in consultation with local government, other agencies and local communities, to encourage the reporting of racist incidents and crimes. This should include:
- the ability to report at locations other than Police stations; and
- the ability to report 24 hours a day;
- there should be close cooperation between Police services, local government and other agencies, in particular housing and education departments, to ensure that all information about racist incidents and crimes is shared and is readily available to all agencies.
Following publication of the Macpherson Report, the Association of Chief Police Officers produced its first hate crime manual in 2000 to provide guidance to police officers in England and Wales.24 In 2014, the College of Policing issued the Hate Crime Operational Guidance, which is the result of twenty to thirty years of policy development concerning police responses to hate crime and non-crime hate incidents.25 This document incorporates some of the key recommendations made in the Macpherson Report, such as perception-based recording and encouraging the reporting of non-criminal incidents.
Under the heading “Opposition to police policy”, the Hate Crime Operational Guidance describes how the policy of recording, and responding to, non-crime hate incidents is not universally accepted. It records that some people use the policy “as evidence to accuse the police of becoming ‘the thought police’, trying to control what citizens think or believe, rather than what they do”. The document emphasises the importance of not overreacting to non-crime hate incidents, because of the risk of “civil legal action or criticism in the media”.
The risk of civil legal action identified in the Hate Crime Operational Guidance recently materialised in the case of R (on the application of Miller) v The College of Policing.26 Mr Miller had published material on Twitter about transgender issues and this prompted a complaint by a transgender woman. No crime had been committed but the complaint was investigated. The Court found that, in doing so, a police constable had unlawfully interfered with the claimant’s right to freedom of expression, as guaranteed by article 10 of the European Convention on Human Rights, by turning up at his place of work and by what he said to Mr Miller. However, the Court rejected Mr Miller’s broader challenge to the legality of the Hate Crime Operational Guidance based on the right to freedom of expression guaranteed by article 10.
We have considerable reservations whether a police policy of investigating and recording non-crime hate incidents would withstand legal scrutiny in New Zealand. These reservations are based on section 14 of the New Zealand Bill of Rights Act 1990, which affirms the right to freedom of expression. Assessing the legality of such a policy would require weighing the rights to share and receive information under section 14 of the New Zealand Bill of Rights Act against the state interest in having accurate statistics, intelligence gathering and protecting marginalised communities. Miller was decided against both a legislative scheme (relating to policing)27 and a human rights context that are appreciably different from the position in New Zealand.
In Living Word Distributors v Human Rights Action Group Inc (Wellington) what was at issue was the classification as objectionable under the Films, Videos, and Publications Classification Act of videos that portrayed homosexuality as a factor responsible for spreading HIV and being generally immoral. The classification was upheld in the High Court but set aside in the Court of Appeal, which found the High Court had committed a “fundamental error” by treating the right of non-discrimination under section 19 of the New Zealand Bill of Rights Act28 (which was only peripherally engaged in the case) as trumping the right to freedom of expression under section 14 of the Act (which was directly engaged).29 The decision in Living Word Distributors has received support from academics30 and was cited with approval by the High Court in Wall.31 The reasoning in Living Word Distributors is also broadly consistent with Chief Justice Elias’s reasons in Brooker v Police,32 in which she expressed misgivings whether the courts should “adjust” rights protected by the New Zealand Bill of Rights Act (such as freedom of expression) to allow for values not recognised in that Act (in that case, privacy) unless the particular statute “unmistakably identifies the value as relevant”.33
Given our substantial reservations about the lawfulness of such a policy, we have not explored in our report the possibility of recommending that New Zealand Police adopt a policy of investigating and recording non-crime hate incidents.
1. Law Commission (United Kingdom) Hate crime laws: A consultation paper (23 September 2020) https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2020/10/Hate-crime-final-report.pdf.
2. Emma Webb “Finding the right balance in counter-extremism” in Ian Cram (ed) Extremism, Free Speech and Counter-terrorism Law and Policy (Routledge, Oxon Hill, 2019) at page 134.
3. See Law Commission (United Kingdom) Hate Crime: Background to our Review (March 2019) at page 5 https://www.lawcom.gov.uk/project/hate-crime/.
4. See John Ip “Debating New Zealand’s Hate Crime Legislation: Theory and Practice” (2005) 21 New Zealand Universities Law Review at page 597, where he notes “relying on the criminal justice paradigm to deal with social problems has rarely, if ever, proved to be a complete cure”.
5. See, for example, section 13 of the New Zealand Bill of Rights Act 1990, which guarantees everyone “the right to freedom of thought”.
6. Wall v Fairfax New Zealand Ltd  NZHC 104,  2 NZLR 47.
7. Mari J Matsuda and others Words that Wound: Critical Race Theory, Assaultive Speech and the First Amendment (Westview Press, Colorado, 1993).
8. K Gelber and L McNamara “Evidencing the harms of hate speech” (2016) 22 Social Identities. We note that, more broadly, this is consistent with evidence that words can have a physical effect. See Martin N Teicher and others “Hurtful Words: Association of Exposure to Peer Verbal Abuse With Elevated Psychiatric Symptom Scores and Corpus Callosum Abnormalities” (2010) 16 American Journal of Psychiatry.
9. Jeremy Waldron The Harm in Hate Speech (Harvard University Press, Cambridge, 2012).
10. Mari J Matsuda and others, footnote 7 above at page 50.
11. Netsafe Online Hate Speech: A survey on personal experiences and exposure among adult New Zealanders (November 2018) at page 16.
12. InternetNZ Online Hate and Offline Harm (8 May 2019).
13. Matthew L Williams and others “Hate in the Machine: Anti-Black and Anti-Muslim Social Media Posts as Predictors of Offline Racially and Religiously Aggravated Crime” (2020) 60 British Journal of Criminology.
14. Matthew L Williams and others, footnote 13 above at page 111.
15. Matthew L Williams and others, footnote 13 above at page 114.
16. Matthew L Williams and others, footnote 13 above at page 112.
17. Colleen E Mills, Joshua D Freilich and Steven M Chermak “Extreme Hatred: Revisiting the Hate Crime and Terrorism Relationship to Determine Whether They Are ‘Close Cousins’ or ‘Distant Relatives’” (2017) 63 Crime & Delinquency.
18. See Netsafe, footnote 11 above.
19. eSafety Commissioner Online hate speech: Findings from Australia, New Zealand and Europe (29 January 2020) at page 16.
20. eSafety Commissioner, footnote 19 above at page 17.
21. eSafety Commissioner, footnote 19 above at page 20.
22. eSafety Commissioner, footnote 19 above at page 17.
23. Sir William Macpherson The Stephen Lawrence Inquiry (Cm 4262-I, February 1999).
24. Association of Chief Police Officers of England, Wales & Northern Ireland The ACPO Guidance to Identifying and Combating Hate Crime (2000).
25. College of Policing (United Kingdom) Hate Crime Operational Guidance (2014) https://www.college.police.uk/What-we-do/Support/Equality/Documents/Hate-Crime-Operational-Guidance.pdf.
26. R (on the application of Miller) v The College of Policing  EWHC 225 (Admin).
27. See the amendments brought about by sections 123 and 124 of the Anti-social Behaviour, Crime and Policing Act 2014 (United Kingdom).
28. This provides that “[e]veryone has the right freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993”. Grounds of discrimination prohibited under section 21 of the Human Rights Act include “sexual orientation”.
29. Living Word Distributors v Human Rights Action Group (Wellington)  3 NZLR 570 (CA) at paragraph 41.
30. Andrew Butler and Petra Butler New Zealand Bill of Rights Act: A commentary 2nd ed (Wellington, LexisNexis, 2015) at paragraphs 6.6.25 and 6.6.34.
31. Wall v Fairfax New Zealand Ltd, footnote 6 above at paragraphs 33–37.
32. Brooker v Police  NZSC 30,  3 NZLR 91.
33. Brooker v Police, footnote 32 above at paragraph 40.