Questions asked by the audience of the webinar. Answers by Prof Douglas Pratt and Prof Paul Spoonley.

Here are further questions that were asked during or right after the Webinar on Hate Speech Restrictions, organised by RDC on 28 July 2021. We have asked the panellists to reply to these questions.
The submissions to the Ministry of Justice are due on 6 August 2021.

Q: Why not focus on identifying exactly what type of speech is unacceptable because it is denigrating to another person or group and incites hatred, rather than trying to identify which groups are protected under the laws. Ultimately all people should be protected from being objects of hate speech!
A: I agree! All forms of hate speech – properly defined – are harmful and dehumanising and as such should be proscribed in law. To a degree this is already so with our libel laws; but clearly more needs to be done. [Douglas Pratt]
A: The last sentence should be one of the guiding principles in any move to legislate on matters of hate speech – it is a universal principle. But I would suggest that both elements – what constitutes hate speech and who should be explicitly identified as possible targets of hate speech – should be considered in any legislation. The first – what constitutes hate speech is critically important, as guidance for our courts and police, and as a signal to the wider New Zealand society what would breach the severity threshold and therefore invite a response. But the second – which groups is should apply – is also important as the current legislation is outdated and too narrow in terms of who might be deemed a target group for hate speech. [Paul Spoonley]

Q: What do you think of the legisation passed recently in the UK?
A: I am not in favour for a couple of reasons. I do not think the wording is helpful, and I note that the Royal Commission borrowed some of the same wording (“stir up hatred”). I do not know what that phrase means. But the more important issue is that the act as it has been written in the UK has led to charges and prosecutions of what have been relatively trivial matters. It has undermined the intention of the act and provided endless stories of how “misguided” such legislation is for many in the public. [Paul Spoonley]

Q: It was under the auspices of hate speech but tacked onto the end of the list of subjects to be avoided on-line was also any mention of anti-vaccination or anti-lockdown. This has led to no real discussion on these matters.
A: Quite. We could not cover everything! A number of ‘anti-xxxx’ positions need to be addressed in relation to the meaning and limits of Free Speech, but they do not necessarily fall into the category of Hate Speech as such. [Douglas Pratt]
A: The test is always whether hate is incited by what is said. I suspect that (and without knowing the exact examples) that the COVID-sceptics and their campaigns would not fall under the act, either current or proposed. But it might be that such actions and words which undermine public health measures need to be addressed in a different way. I would not want prosecutions, for example, to make martyrs of these activists, but at the same time, they should be challenged. [Paul Spoonley]

Q: To discomfort, disquiet and threaten… as Douglas said… what about anti-Nationalistic comments as in belittling Americans, Australians, etc,…. as is seen in our ads on tv and as lecturers sometimes do when spotlighting minority groups, i.e. American militia or splinter faith groups, intending that those splinter groups are typical of the whole?
A: See above re ‘anti-xxxx’ type speech. Objectionable and pushing the boundaries of free speech, but not Hate. And yes, free speech has boundaries – something that needs to be clarified. [Douglas Pratt]

Q: Is anti-Zionism the same as anti Semitism?
A: No. Anti-Zionism is a free speech issue (see above); antisemitism, which
means the hatred and rejection of Jews from a religious and racial perspective, is very much a Hate Speech category. [Douglas Pratt]
A: No. One involves a Jewish homeland while the other is racism directed at all Jews, whatever their location. However, far right and antisemitic groups have sought to avoid being challenged or prosecuted by claiming they are anti-Zionist and therefore not covered by laws and policies which seek to address racism. We need to be clear of the distinction and the way in which it has been used to avoid being labelled antisemitic. [Paul Spoonley]

Q: For me with human rights and freedom of speech should come with an equal set of obligations. What is the view of the panel on including obligations in the definitions? (Douglas already pointed in that direction)
A: Free Speech has the obligation, among others, of being non-demeaning and an example of rational discourse, critical and passionate as needed, but not purely emotive and irrational as, e.g., in taking an ad hominem line (attacking the speaker on irrelevant personal grounds – age, sex, race, etc., – rather than addressing the substance of what is being discussed.) This question highlights the need for a thorough debate on what Free Speech means, alongside the discussion on Hate Speech. [Douglas Pratt]
A: My constant refrain is that we need to educate as well as legislate. One of the things that is often missing is what contributes to respect and respectful discussion, even if there are major disagreements present. We should try to ensure that what we do, in public and private settings, is to be “mana enhancing” – again, even if there are disagreements. I like the idea of stressing obligations and respect alongside guidelines which say what is so deeply disrespectful that it breaches good behaviour guidelines – and which threatens the safety and well-being of a community. [Paul Spoonley]

Q: How important are the proposals for the NZ public?
A: Very. The capacity for dispassionate rational discussion on important
public issues is alarmingly low. Issues raised for good reasons are quickly lost in the morass of personal emotive reaction and attack. See the recent furore over legitimate concerns raised in respect to the relation of science and Matauranga Maori as bodies of knowledge. [Douglas Pratt]
A: New Zealand, like many other countries, has discovered that some have adopted a new form of vitriolic and hateful politics in recent years. They have always been present but the possibilities of the internet, major social and economic dislocation and the rise of nationalist politics have all seemed to generate a more confidant and active far right since about 2015-16. Our moment of (unfortunate) discovery of all this was the 15 March 2019. There are serious issues in play and we need more current and appropriate measures to make sure that our social cohesion is not eroded and that communities are not made to feel (and be) unsafe. [Paul Spoonley]

Q: In the media, it is often said that the new hate speech law proposals are “confusing”. Would you agree?
A: Yes. [Douglas Pratt]
A: At the moment, yes. But that is because we lack good quality public debate (it is often reduced to slogans) and we do not quite understand the extent or the nature of the issues. I would welcome a more informed and evidence-based debate on the proposed laws. [Paul Spoonley]

Q: It is said that we need to update the NZ Laws. What are the gaps in the current law?
A: For me, there are two. There are some key groups missing from the identified protected categories. These need to be updated. Secondly, our laws are not appropriate for an online age. We have some elements in place with recent acts which have moved to identify what to do with online material which breaches public decency, and both Netsafe and the Classifications Office are important bodies with backing legislation (although there are changes coming with the Classifications Office). But a much more intense and pervasive online world needs more appropriate legislative guidance and options. [Paul Spoonley]

Q: Do you believe that increasing penalties will help avoid hate speech?
A: No. It might help, but it is not the answer. The real issue is one of education about speech as public discourse – a topic once known in education terms as ‘rhetoric’. This has been lost to our current age. [Douglas Pratt]
A: I think the penalties send a message but it is largely symbolic. If you could look at our past record, there is a real reluctance to prosecute and to invoke these penalties. That is not the key issue for me. [Paul Spoonley]

Q: Prof Spoonley is quoted in an online article with the words: “the threshold of what constitutes hate speech and what doesn’t must remain high”. What kind of guidelines would the lawyers get?
A: It is not so much the lawyers as the Police (as those who need to consider whether charges should be laid) and then the Courts (which is what you might mean in relation to lawyers). The guidelines would specify what sort of speech constitutes hate speech but the key threshold requirement is whether it can be proven in court that this speech incites others to hate and to act. This threshold (severity threshold) needs to be high. My own view is that the proposed law actually makes it clearer what might constitute hate speech but that the threshold for prosecuting and getting a successful conviction is higher than at present. [Paul Spoonley]

Q: If you are “naming” certain groups in a law, it can be very limiting – it can be out of date before it becomes law. Wouldn’t it be better to include all groups?
A: Yes. Hate Speech proscriptions should not be limited by naming specific groups; rather should be applied to all situations where the speech target, whether a group or an individual is the subject of the hate. [Douglas Pratt]
A: I would go back to the original law from the 1970s and its update in 1993. I think the definitions that were used then have worked reasonably well. But, of course, the list from these earlier acts is now out of date. I have no problem in identifying categories or protected groups. But this should not be at the expense of hate, and incitement, directed at any group. [Paul Spoonley]

Q: The attacked “minorities” can change at any moment: see Covid 19 – aggression against Chinese… Why are they to be named?
A: A specific group, in this case, “Chinese” would not be named in the proposed legislation. But they would be included in “ethnic or national” groups,. I would stick to broad categories (“ethnic” etc), not identify a specific group. That would not be politically acceptable. [Paul Spoonley]

Q: Why do we need a “Group Law”? Why can’t we just concentrate on protecting every human being – no matter if and what affiliation the person has.
A: I am sure there are legal reasons. My own response is to say that everyone should be protected – but given what has happened, online and elsewhere, there needs to be some guidance to the courts and a signal sent that we acknowledge that some groups are targeted and have experienced significant hurt. [Paul Spoonley]

Q: By naming groups, they could become a target – attackers who are aiming at vulnerable groups might not have even thought of certain groups.
A: Not sure this is true. I think there is good research evidence, and testament from the communities who have experienced hate, to indicate that there are well established targets. I am not sure it works the other way around. [Paul Spoonley]

Q: The Ministry has been consulting “affected groups” – how were they chosen? Doesn’t hate speech affect all people in New Zealand?
A: I have some concerns about the consultation process. I think there are groups that have been affected to a much greater degree than others – and they should be consulted. But what does consultation mean? Will it make a difference”? Are there groups that should be consulted – and haven’t been? [Paul Spoonley]

Q: Why are there no examples in the proposals? How can the public understand what the difference of today’s law and the proposal means? Suggestion: Generic examples (with no reference to any existing group) would be helpful.
A: Agreed. [Douglas Pratt]
A: I think it would be helpful too, although the examples should not preclude or anticipate court decision-making. [Paul Spoonley]

Q: The aggression against vulnerable groups will continue behind the scenes – new avenues will be found to attack them.
A: Quite likely. Proscribing Hate Speech will hopefully dampen the expression of, and acting on, underlying negative attitudes and beliefs but will not eliminate them. [Douglas Pratt]
A: But is this an argument not to do something to protect vulnerable groups? [Paul Spoonley]

Q: Who will judge what is “hate speech”? If hate speech is very subtle, only members of the congregation will understand – who will believe them?
A: Good question. The process of prosecuting hate speech is likely to be difficult and potentially expensive (lawyers etc.) so there needs to be a simpler way. Perhaps an Ombudsman/person and/or allied office within either the Human Rights Commission or the Ministry of Justice? [Douglas Pratt]

A: Proposal: “agreed in principle” – how much can still be changed?
Q: Hopefully, quite a bit, otherwise it consultation is meaningless. [Paul Spoonley]

Q: Are judges prepared to differentiate between intentional and unintentional hate speech? This might be difficult if someone translates literally from their own language… – languages differ not only in words but also in tones. What is ok for one group is not ok for the other group.
A: Good point. Intention needs to be established although the critical test will be the incitement threshold. [Paul Spoonley]

Q: Who will judge what is “hate speech”? If hate speech is very subtle, only members of the congregation will understand – who will believe them?
A: Good question. The process of prosecuting hate speech is likely to be difficult and potentially expensive (lawyers etc.) so there needs to be a simpler way. Perhaps an Ombudsman/person and/or allied office within either the Human Rights Commission or the Ministry of Justice? [Douglas Pratt]
A: The legislation should provide guidance, and then the Police (who will decide to charge someone or some group) and the Courts are critical to interpreting the law and coming to a decision about whether something is hate speech. [Paul Spoonley]

Q: Hate Speech: inciting someone to commit an act of violence?
A: I would not limit Hate Speech to direct incitement – there is an awful lot of Hate Speech that would not meet an incitement threshold but is nevertheless harmful and damaging and, more significantly, forms the motivating background that empowers extreme behaviours, including violence. [Douglas Pratt]
A: The incitement component is the most critical in many ways – and the most difficult to establish as the Wall vs Fairfax case showed. [Paul Spoonley]

Q: If the law protects only  “Minority Groups”, then you are discriminating against members of “Majority Groups”!
A: Agreed! [Douglas Pratt]
A: No, all groups should be protected. And given our experience with the Human Rights At provisions, quite often majority groups (Pākehā) have been very willing to use the complaint provisions of the act, sometimes more than minority groups. [Paul Spoonley]

Q: Comment from a migrant: “my teenage son was bullied at school for his name that indicates his religion – he has decided to change his name so that you can’t tell his religion”. Will the bullying on the basis of religion stop with a new law?
A: I doubt it. Although related to the issue of Hate Speech, it is a different form of behaviour that needs addressing in its own right. However, the common denominator is the need for appropriate education. [Douglas Pratt]