Hard call (but the right call) on hate speech

There has been understandable anger and frustration at the announcement that harm provisions in the Human Rights Act will only be extended to religious communities. However, New Zealand will be a better place if the aggrieved can be a little more patient.

Yes, the LGBT+ community, women, the disabled and other ‘targets’ have already waited a long time for the protection that is their fundamental right. I understand why they have launched a petition. Their hopes of legislative change had been boosted by recommendations of the Royal Commission on the Christchurch Mosque Attacks related to social cohesion, and by the Department of Internal Affairs’ Content Regulatory Review.

Those hopes were dimmed by Justice Minister Kiri Allen’s announcement, but not dashed. She also announced that the Law Commission has been asked to undertake “an independent and thorough first principles review of legal responses to hate-motivated offending, and of speech that expresses hostility towards, or contempt of, people who share a common characteristic” (the italics are mine).

One might question why the Law Commission is to do another review when the Department of Internal Affairs review is already canvassing overseas regulation of harmful material. I think that, while there will be overlap, the Law Commission will concentrate on the role of the legal system in achieving a balance of rights: Toleration versus free speech.

The problem is that hate speech is not a wooden club. A club will inflict physical injuries to skin, bone, and internal organs: its damage is finite and relatively predictable. Hate speech is a weapon like no other, capable of inflicting a wide variety of harms – including incitement to the use of wooden clubs – that vary in form, scale and intensity depending on perpetrator and target. The right to be free from it is set against a countervailing right to free expression. Neither right is absolute. While we have a right to live in dignity within our communities, we cannot expect to be protected against any criticism of what we say and do.

Balances can be achieved by setting a bar which a complaint or prosecution must surmount. Central to the required standards is knowing what we are talking about. The reference to ‘first principles’ is a signal that the commission will be grappling with definitions.

Definitions are not a showstopper in the quest for meaningful and balanced rules around hate speech, but they certainly give pause for thought. And I suspect that is what is behind Kiri Allen’s announcement.

The Royal Commission’s four-volume report has provided the necessary definitional work for religious communities to be included in current law, but the DIA review is only at the midway point – and it has already attracted some negative commentary.

The minister alluded to that in her statement: “Some of the debate on this topic over the last year been disappointing, and at times deliberately divisive and misleading, particularly in regard to the proposals that were out for consultation.”

The Law Commission – a sober, deliberative body not given to undue emotion – may be the ideal circuit-breaker to get discussion back on a more even keel. Yet I don’t envy it in finding universal meaning and balance. The exercise is beset with difficulties and paradoxes.

Here are two examples of paradox.

American political theorist Michael Walzer wrote a lengthy essay On Toleration in which he made the following observation: Toleration makes difference possible; difference makes toleration necessary. In the same essay he observes that to tolerate someone else is an act of power, to be tolerated is an acceptance of weakness.

Roger Scruton, in his Dictionary of Political Thought, observed that hate speech is “a phrase without precise legal meaning which has nonetheless entered political discourse and begun to influence the law”.

I mention these paradoxes to demonstrate how important – and how elusive – definitions become in the debate over hate speech versus free speech. They also point to the possibility that ill-defined or inadequately scoped legislation will lead to unintended consequences.

British politicians have been grappling with such difficulties as the Online Safety Bill – which promises to introduce new protections for the public from hate, abuse and other content on line – makes its way through the House of Commons. The Bill has been through several iterations to get it to the committee debate stage (the last opportunity to affect amendment before its final reading).

One unintended consequence that politicians foresaw was that it could limit the media’s freedom of expression. Its solution? It will exempt “recognised news publishers”. And that has led to the very reasonable question: How do you define a “recognised news publisher”? I wonder whether Britain has an equivalent of Alex Jones’ Infowars website (which describes itself as “the #1 independent news service in the world”), or whether this means the London red tops have a licence to publish homophobic rants. Just asking.

Even the Bill’s definition of ‘harm’ has many worried: “Psychological harm amounting to at least serious distress”. How is that measured?

Canada is similarly grappling with online harm legislation and has encountered definitional issues.

Personally, I welcome the move to bring in the Law Commission to inform the legislative process and I think the DIA Review should do no more than feed into its deliberations. However, I would widen the Law Commission’s brief.

Most of what I have seen of the attempts to control hate speech in the digital era has been focussed on mainstream publishers, widely accessed website, and the largest social media platforms. While the latter makes me hesitate to describe the three sources as low hanging fruit ((international platforms remain laws unto themselves), I think they lie at the ‘easy’ end of the problem and are already subject to regulatory oversight. Certainly, I do not believe this is where criminal-level hate speech is spawned and propagated. Ways must be found to monitor and hold accountable those who use more subterranean digital systems – platforms such as Discord or Telegram and the Dark Web Social Network – to promote hate.

I do not accept the argument that these bottom dwellers are simply misguided individuals who should be left to talk to themselves. There is abundant evidence of a cascade effect, where a propagator’s message – intuitively designed to appeal – is adopted and spread by increasing numbers of people to the point where it either touches the mind of someone ready to act on it, or it surfaces in mainstream media (often as a revelation of unacceptable behaviour, but which nonetheless resonates with some of the audience). Properly defined hate speech is dangerous and sometimes deadly.

Therefore, I would link into the Law Commission’s brief another of this government’s annoyingly standalone initiatives – a review of encrypted services. That review, revealed by Newsroom’s Marc Daalder last Friday, is being undertaken by a cross-agency working group to determine the degree to which law enforcement is hampered by encrypted online communication. The working group should be tasked with providing advice to the Law Commission on the misuse of these services to spread hate and recommend solutions.

Yet, here too, there is a balance to be struck. Encryption may offer a hiding place for spreaders of hate, but it is also used for legitimate purposes. I know at least two journalists who use encrypted messaging to protect their confidential sources. Their right to continue to do so without the prying eyes of government agencies (that may even be the subject of their enquiries) needs to be preserved. So, too, do the rights of others who use such services for lawful purposes. The Law Commission is well-placed to determine how that balance can be struck.

Shaneel Lal (one of the organisers of the national petition urging Kiri Allen to reverse her decision) used their latest Herald on Sunday column to highlight attacks on the queer community and to plead for protection. The language they  used illustrated the frustration and impatience being felt. It will probably be of little comfort to them, but Labour’s decision will, ultimately, result in better law.

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