Steven Price

My book

Media Minefield


Guide to NZ Media Law

Official Information Act

Official Information Act


Bill of Rights Act

Media law resources

Feeds (RSS)

Members

Is the BSA rejecting too many complaints?

January 31, 2025

Odd fact about the Broadcasting Standards Authority: for the last few years, they’ve only been upholding about 5% of complaints.

Why? I think there’s a range of reasons. Generally responsible broadcasters. Dumb complaints. Complaints brought under the wrong standard. Greater adherence to broadcasters’ rights to freedom of expression in the Bill of Rights. (I might be a bit responsible for that one).

But you have to wonder whether they are rejecting some well-founded complaints. This level of upholds is historically low for the BSA. It’s gone on for some time. It’s much lower than the Media Council’s uphold rate.

In general, I’m a fan of the BSA. Their decisions are clear, thoughtful, principled, and generally (I think) right. But I’ve just looked at the last ten complaints, all of them rejected, and I can see two or three I think they got wrong.

Hartstone v NZME Radio

One is against Fletch, Vaughan and Haley on ZM radio. The hosts are talking about people snooping on their partners’ devices to see if they’ve been cheating. Vaughan reads out a listener text:

Vaughan [reading out text message]: I got my ex cheating while I was overseas. I checked his Find My iPhone and saw he was in a neighbouring city when he said he went for a run. He denied it at first but then confessed that he was cheating.

Hayley: Neighbouring city…

Vaughan: Everyone knows you leave your phone at home if you’re going to go for a run and hook up with people at the public toilets…

[laughter]

Vaughan: Come on guys! We’re better than this.

Fletch: Yeah, duh. Come on.

Vaughan: Chat to a gay, you know. Get some tips.

Hayley: Duh dumb dumbs.

Vaughan: Come on

Fletch: Duh.

Hayley: Yeah the gays should run a course.

Fletch: [laughs]

Vaughan: The gays should run a course.

Hayley: You know what I mean? A class.

Vaughan: Sneaky devils 101

Hayley: Sneaky devils.

Does this denigrate gay people? I think it does. Imagine if they’d said “Maaori” instead.

But the BSA didn’t uphold the complaint. They said the hosts had a reputation for being edgy; this was understood by their young audience; they were joking; it was brief.

The BSA also pointed out that the threshold for the discrimination and denigration standard (effectively a sort of hate speech provision) is a high one. It usually requires an element of malice or nastiness.

And, you know, free speech.

All true. But it strikes me that this was more pernicious than the BSA thought. It takes for granted that gay people are disloyal, dishonest and sneaky. That’s the premise of the joke. No-one questions it. The hosts run with it, repeat it, riff on it. The audience is young. The humour here, the fact that they’re all just making this assumption about gay people as if it’s just part of reality, actually makes it worse.

The type of speech cannot be said to be important in free speech terms (compared with news or serious drama, for instance). The penalty of an uphold does not much hurt ZM. They really need to be told that this isn’t acceptable.

McGlone v TVNZ

In another case, TVNZ’s 1News was doing a story on the dangers of crossing sandbars. It mentioned two recent drowning tragedies. It interviewed someone from the Coastguard, who said:

‘We recommend crossing the bar at high or low tide, so we can try and take the current out of the equation’.

This is pretty much flat wrong. No-one, including official Coastguard information sites, thinks you should be crossing a sandbar at low tide, as the BSA’s decision makes clear.

It’s also the sort of bad advice that (a) is easy to understand and remember and (b) can get you killed. Surely it’s exactly what the accuracy standard is about. The accuracy standard includes a requirement to make corrections.

The BSA didn’t uphold the complaint. When I first read the decision, I expected the BSA to say, as it very often does, that what the Coastguard guy said was simply analysis. It was just a recommendation. An opinion. The accuracy standard does not apply to analysis and opinion.

But the BSA didn’t do that. They said it was likely to be understood by viewers as a statement of fact. I think that’s dead right. I’ve criticised the BSA in the past for being too ready to treat things as analysis when the audience would understand them as fact. They didn’t do that here.

But they did say the error wasn’t material. I think their reasoning is tortuous, so I’ll give it to you in full:

[15]  The statement appears inconsistent with other Coastguard advice on bar crossings. Coastguard has said:

[16]  Many organisations agree it is unsafe to cross a bar during low tide.12 However, advice does vary. Some say it is most unsafe to cross a bar when the tide is going out, rather than at low tide.13 Others say the best time to cross is during slack tide (peak high or low tide) or to avoid crossing at ebb tide (mid-tide).14

[17]  It appears there is no one-size-fits-all rule for crossing a bar. Coastguard, Maritime NZ, and other organisations agree the safest conditions for a bar crossing, including the best tidal conditions, are contingent on the bar in question and advise local knowledge is sought before crossing a bar.15

[18]  In any event, it is not for the Authority to rule on the accuracy of a statement about the safest conditions for crossing any sand bar. To do so would overstep our role and area of expertise. However, we consider there are reasonable arguments the statement was not materially misleading or inaccurate in the context of the broadcast.

[19]  The item was not simply an educative piece on how to cross sand bars. It sought to highlight the risk and complexity involved in crossing sand bars. The broadcast emphasised a bar crossing is ‘among the most hazardous manoeuvres a skipper can make’ and coastal bars are ‘dynamic, unpredictable, and can turn perilous at any moment’. The Coastguard’s Bar Awareness Roadshow was also promoted, which was said to be taking place ‘to push down on [the] risk’ involved in crossing sand bars.

[20]  The statement cannot be viewed in isolation. Surrounding comments contextualised the statement by outlining that various factors are relevant in determining a safe bar crossing.16 The Coastguard representative listed four considerations: tide, current, wind, and swell. Therefore, in the context of the broadcast, viewers can be expected to have understood the relevant statement focused on just one of many relevant risk factors (the tide).

Look, I’m no expert. But as a rule of thumb it seems clear that you don’t cross sandbars around low tide, and any contrary general advice is dangerously wrong. If TVNZ broadcasts that advice, it’s an error, and needs to be fixed.

I don’t understand that stuff about it not being the BSA’s job to rule on that question. Of course they’re not experts at everything. That’s why they look at evidence. They are not experts at most of the subjects of the accuracy questions that come before them. But they still have to rule on them. And usually, they do.

The stuff about risk factors is all very well. But I can’t see how it makes the Coastguard guy’s statement immaterial. By finding that it’s not material, the BSA has left the story untouched, and TVNZ is not required to correct it.

But that’s not the end of the matter. The BSA had another reason for rejecting this complaint. I have to say, it’s a much better one. Because a broadcaster’s duty is not to get things right. It’s to make reasonable efforts to do so. Here, TVNZ interviewed a spokesperson from the Coastguard. Even if that guy got it wrong, surely TVNZ have behaved reasonably.

This is a strong argument, and one the BSA is increasingly relying on. Interview someone authoritative and you’re in the clear. You can make the case that this is all that we can reasonably expect of broadcast journalists.

I have sympathy for TVNZ and the BSA here. It’s hard to criticise either of them. Still, I think the correct analysis here is that TVNZ broadcast a material error, but did not breach standards when they did so, because they relied on an authoritative source.

But TVNZ did breach the accuracy standard when it failed to broadcast a correction after it was told about the error. I think that’s what the BSA should have held.

Al-Jaib v TVNZ

This case is a weird one. TVNZ broadcast a news story last June that said Israel would withdraw from the Gaza as part of a peace proposal. Everyone, including TVNZ, agrees that was wrong. Under the proposal, Israel would only withdraw from densely populated areas.

Everyone agrees the error was significant and material. That triggers TVNZ’s obligation to correct it.

What did TVNZ do? It said it could not correct the story itself, even online, because the news programme was recorded as a whole. It said it published, on its website, the following day, a story with the correct information.

That’s it. It did not broadcast anything. It did not point out, even online, that its earlier story was in error. It left that earlier story up, uncorrected.

The BSA said that TVNZ only needed to take reasonable steps to correct errors (this is a gloss on the standard, but okay), and that TVNZ had done enough.

Really? I think in general that a material error broadcast on air needs to be corrected on air. And that a correction, however it is published, needs to identify the thing it’s correcting.

Topics: General | Comments Off on Is the BSA rejecting too many complaints?

Who’s defaming you?

January 29, 2025

Someone defames you anonymously online. Can you find out who it is?

Maybe. There are legal avenues to seek a court order that an internet host reveal the identity of the person. One of them is called a Norwich Pharmacal order, but as Hugh Tomlinson KC points out, it only applies when the host is “mixed up in” the wrongdoing, and merely hosting an email account doesn’t count.

But court rules in the UK (and in NZ) allow a similar application, and the grounds are wider, though they only apply to relevant documents rather than pure information. Still, any internet host will presumably have records that permit the identity to be revealed.

Although it must be shown (in both countries) that the host is likely to hold relevant information, and that a disclosure order is “necessary”, the cases Tomlinson cites suggest that the necessity barrier will not usually be a high one once relevance is proved. (Under the NZ rules such an application can be brought before a lawsuit against the wrongdoer is filed (rule 8.20), in which case it must be shown that there’s a tenable claim against him or her. Or it can be brought afterwards (rule 8.21), in which case it must be shown that the third party holds documents that would have to have been disclosed if they were a party.

In NZ, an order can also be made under the Harmful Digital Communications Act requiring a host to reveal the identity of an anonymous or pseudonymous poster who has seriously breached the Communications Principles. I’m not aware of any such order having been made though.

It remains to be seen how (or whether?) the Bill of Rights might affect the picture. The US Supreme Court has held that anonymous speech warrants First Amendment protection. I’d like to think that if the poster was engaging in publicly significant speech and was vulnerable to exposure then a court would stop to consider whether a disclosure order is a demonstrably justified restriction on the free speech of the poster …

Topics: General | Comments Off on Who’s defaming you?

Defamation damages too…

January 24, 2025

A couple of recent cases suggest that the courts are awarding significant sums for defamation even where the publication is very small. This is despite the new rule that says plaintiffs, if challenged, have to show that the publication they are complaining about has caused them “more then minor harm.” When publication is limited to a small number of people, that might be difficult, though the courts certainly take account of who the recipients are. A defamatory email to your boss might well be enough alone to get over the harm threshold.

Two recent cases suggest that the threshold is not very high, and that publications to limited audiences can cause serious harm. In one, the defendant sent two emails to a married couple, trying to warn them against a rival accountant, alleging sexual impropriety and professional misconduct. The misconduct allegation was exaggerated but not unfounded, but the allegation of sexual relationships with clients was wrong. The judge awarded $50,000.

In another, the defendant made two comments on a car dealer’s Facebook page, under a particular car listing, suggesting (falsely) that the car had been stolen. There were no other comments, and the only evidence that anyone had read it was from the person who appeared as the plaintiff’s McKenzie friend (a support person in a court case where the party is not represented by a lawyer). The judge was entitled to draw inferences about the extent of publication, but wasn’t prepared to infer that anyone else had read it. Still, the judge seemed to have no problem finding that the harm threshold was surmounted and awarded $20,000.

Topics: General | Comments Off on Defamation damages too…

Human Rights Review Tribunal serious about privacy damages

January 24, 2025

Damages for breaches of the Privacy Act used to be laughable. The very top award was $40,000 to someone whose treatment in an addiction facility was revealed to the media. Not only was it taking an age for the Human Rights Review Tribunal to resolve cases, the awards made it hardly worth the candle.

That changed in 2015 when the HRRT awarded $98,000 for humiliation over some photos of a cake. A credit union found out that Karen Hammond, an employee who had recently resigned, had celebrated her departure by having a few friends over, and one of them kindly brought a cake. The icing on the cake said “Fuck you…” and “cunt”. Hammond posted a photo on her Facebook page (which was not public). The union, Baywide, got wind of this, bullied another employee into accessing the woman’s Facebook page, took a copy, and sent it around employment agencies. Hammond struggled to get employment after that.

The HHRT said the time had come to reassess the levels of damages, and created three bands: up to $10,000 for less serious infringements; up to $50,000 for more serious ones; and more than that for the most serious category.

Cases usually involve someone wrongfully distributing private information (like Hammond). But the HRRT has held that it will also take seriously other rights created by the Privacy Act – rights about collection of information, even if it’s not distributed further.

Last month the HRRT awarded $60,000 to a man whose phone, USB stick and laptop, containing private information, were taken by his employer shortly before he was fired. (The laptop was owned by the company). What made it worse was the way the company lured him out of the office so it could nab his stuff, and how it failed to return his private information despite repeated requests.

This breached the company’s obligations to collect lawfully, fairly, and directly from the source of the information. The company argued that the employee’s behaviour was of concern and said what they found on the laptop justified the concern, but the HHRT said this did not provide any legal excuse for the breaches.

The HHRT has also been working on its backlog, and must now be regarded as a genuine avenue for redress in privacy cases.

Topics: General | Comments Off on Human Rights Review Tribunal serious about privacy damages

Not so qualified?

January 22, 2025

The defence of common law qualified privilege applies (to cut short a lot of legal jargon) when someone tells someone something in good faith, believing they need to know it. Think: telling the police that the neighbour is running methlab or dobbing in a colleague to the boss for stealing. If you honestly believe it’s true, and you only tell the person or people who need to know it, then you’re likely to have a defence to a defamation claim if it turns out you’re wrong.

But what if a lot of people need to know? Can you still use the defence?

One problem is that if you’re telling a lot of people, you may be publishing it generally, in which case, you’re in the territory of the new defence of “responsible communication in the public interest”. You’d have to show that publishing it was responsible, and that it was on a matter of public interest.

Maybe you can’t show one of those things. Might you still be able to use qualified privilege, on the grounds that the large group you sent it to all needed to know?

A recent case (Bains v Singh [2024] CA 581) gives the answer: yes. A message was posted on a Facebook page with 10,000 followers. The person it was about sued for defamation. Crucially, the followers were members of an ethnic group and had a common interest in their religious institutions and leaders, and the author frequently wrote about those things.

The Court of Appeal held that the new public interest defence does not gazump the ability to argue qualified privilege when the audience is quite large. In the past, this has stretched fairly far, including publication in a business newspaper, and it seems that this is still good law. But you’ll still have to argue that the audience has a proper interest in receiving the information.

Topics: General | Comments Off on Not so qualified?

Supreme Court weighs in on name suppression

May 16, 2024

Name suppression decisions can be tough sometimes. No matter your views on free speech, you have to be hard-hearted not to be torn by the tug of the competing arguments.

I think you can feel the Supreme Court wrestling with that in M v The King.

The case for suppression

The appellant’s offending happened when he was between the ages of 14 and 17. (There were two appellants, but I’m going to focus on this one. He was 18 by the time he was sentenced in the District Court).

Alcohol abuse played a part. He pleaded guilty. He was sentenced to a year on home detention. After his offending, it was discovered that he is autistic and has ADHD. He’s been in psychotherapy and alcohol and drug counselling. There was evidence that publication of his name would harm his mental health by creating stress and anxiety, exacerbated by his “cognitive thinking errors”. He was attacked on social media in a way the judges described as “fairly extreme (and disturbing)”. Some people were calling for vigilante justice. There were vigilante attacks at his home.

Corrections assessed him as at low risk of reoffending.

The suppression thresholds

The Court had to consider whether publication would cause him “extreme hardship”. In a nutshell, our name suppression laws automatically suppress the identities of child victims and witnesses, and sex victims, but defendants have to show “extreme hardship” before they can get name suppression. Others involved – other victims, family etc – have to show “undue hardship” to get suppression.

It sounds like he has a fair case, right?

Suppression and youth justice

In fact, I thought the Supreme Court was going to grant it. They held that our laws had to be interpreted consistently with the UN Convention of the Rights of the Child. Because his offending occurred when he was a youth, that means his best interests must be “a primary consideration” and given “powerful weight”. That in turn means his privacy should be respected, and it should be recognised that young people can be more impulsive, have greater capacity for rehabilitation, and may be affected by psychosocial, emotional and other external influences that can contribute to immature judgements.

The judges said “the reality is that if name suppression is not granted it will be very difficult for [him] to reintegrate himself into society unless he changes his name.”

But

And yet. They didn’t grant suppression. They didn’t find he would suffer “extreme hardship.”

The case against suppression

The case for naming him is also powerful. You’ll have noticed that I haven’t mentioned his crimes. They are bad. There were ten charges – including rape, sexual violation and indecent assault. One of the victims was 13 (though the court found this was consensual). Others were 14 or 15 and intoxicated.

Several of the victims themselves wanted him named. There’s a possibility that other victims might come forward. There’s also a strong public interest in people being named when they have committed serious crimes. They may repeat them. It is, anyway, part of being held accountable.

You might think he’d already caught a break with the sentencing – there were heavy discounts for his youth, guilty plea, mental health and remorse, so that a starting point of 7.5 years became that year-long home detention.

The Supreme Court emphasised that the “starting point” is open justice. It endorsed the two-stage approach taken by the Court of Appeal in name suppression cases. (Trainspotter point: the SC suggests, though does not actually hold, that appeals in suppression cases are evaluative not discretionary, so the appellate court can re-take the decision itself rather than look for errors of law or principle, a failure to consider a relevant matter or consideration of an irrelevant one, or a finding that is plainly wrong.)

How does the Bill of Rights fit in?

The SC also holds that the right to freedom of expression in the Bill of Rights Act is in play. Surely that’s right. It says it is “highly relevant to name suppression decisions.” Good. It also notes that the BORA right to a “fair and public hearing” is relevant. Well, sure, but it’s a bit odd to cite that provision – which is there to protect the defendant against abuses of justice in the dark – in a way that hurts the defendant.

More to the point: how, exactly, does the right to freedom of expression fit with name suppression decisions? What’s the mechanism? The BORA permits reasonable limitations that are demonstrably justified in a free and democratic society. Surely name suppression will sometimes qualify. When? How do we tell?

Infuriatingly, the Supreme Court doesn’t say. There’s no methodology. So I’m guessing judges will keep ignoring the right to free speech in suppression decisions, or just pay lip service. At best, it may be a thumb on the scales.

Reasoning for denying suppression

In the end, the SC found that public embarrassment goes with the territory when you’re convicted. His autism and ADHD were being managed. He had family support. The online hate was from people who already knew his identity and wasn’t as pervasive as in some other cases. The offences were serious. This wasn’t just a case of missing some social cues. The courts below had assessed risk of reoffending as, at best, closer to moderate.

So, name suppression was denied. As a result, he can be named on 14 June 2024, after the court gave him some time to prepare.

The lesson?

Whatever you may have read in the occasional media beat-up about name suppression, it’s usually not easy to get. This case underscores that. This case makes youth offending factors mandatory considerations, but not necessarily overriding ones. Embarrassment, effect on employment prospects, a degree of harm to mental health, youth… none of these will usually be enough to get name suppression.

Name suppression decisions are sometimes tough.

A warning?

The SC said “any commentary, in whatever medium, should be responsible” and hoped that it would not repeat “the inappropriate commentary that has featured, albeit infrequently, in social media to date.”

Of course, I agree. But just to be clear, the SC doesn’t have any say about that. They can’t punish speech for being “inappropriate”. It’s like what the SC said in Erceg v Erceg: the principle of open justice means “that media representatives should be free to provide fair and accurate reports of what occurs in court.” Actually, they’re free to provide unfair and inaccurate reports too. I’m not encouraging that! But it’s only in very rare situations that an unfair or inaccurate report of a court proceeding will cross the line into punishable contempt or defamation.

The courts are not the only body in the nation with the special right only to have truthful accounts published about them.

Topics: General | Comments Off on Supreme Court weighs in on name suppression

Media Council seeking new members

November 11, 2021

I’ve been asked to post the following ad. If you are pillar of the community type, and interested in both free speech and media accountability, this could be for you.

NEW ZEALAND MEDIA COUNCIL
Public Member Appointment

Do you have a passion for News and Current Affairs?
Do you have an interest in Media Standards?

The New Zealand Media Council is seeking applications from suitable candidates for appointment as a member of the Council representing the public. The appointee will be required to start in January 2022.
The Media Council provides the public with an independent forum for resolving complaints about the editorial content of most mainstream media – website and print, together with broadcasters’ online content.
The Council comprises 11 members, six representing the public and five nominated by the media industry and the journalist union E Tu.
The Council is based in Wellington and appointees will need to be available to attend meetings of the Council every six weeks, eight per year, where complaints will be considered and determined. Some meetings are convened on Zoom. Public members are paid a meeting fee and reimbursed for any travel.
There is approximately two day’s work preparing and attending each meeting.
Selection of public members is made by a panel which includes the Chief Ombudsman.
For further information on the Media Council see www.mediacouncil.org.nz
Applications, which should include a brief CV, close on November 24, 2021
Please email to info@mediacouncil.org.nz

Mary Major
Executive director

Topics: General | 87 Comments »

Climate action

July 7, 2021

This isn’t about media law. It is much more important.

Lawyers for Climate Action NZ is seeking judicial review of the Climate Change Commission’s recommendations. It argues that the recommended cuts are not enough to contribute to keeping warming to 1.5 degrees as we’ve pledged to do in the Paris Accord. It also alleges that the Commission’s accounting measures are flawed and make our carbon picture look rosier than it is.

This may be the most important piece of litigation in any of our lifetimes.

I’m a member of LCANZI. All its work is voluntary. LCANZI is seeking donations to help hire an administrator to help manage this and other climate change projects. I encourage you to chip in. I have.

 

For what it’s worth, here is my submission on the Commission’s draft advice. I figure it’s important for people to talk about this.

 

24 March 2021

 

Dr Rod Carr

Chairperson

Climate Change Commission

PO Box 24448

Wellington 6142

 

Dear Dr Carr,

 

I am a barrister, an adjunct law lecturer at VUW, and a journalist. I do not have any expertise in climate science, though I have read widely on the issue. I am a member of Lawyers for Climate Action. I am also on the legal working group for NZ’s Extinction Rebellion. Over the years, I have hardly been a poster child for carbon restraint, but I now walk and bike more, buy second-hand more, drive an electric car, eat little meat or dairy products, and seldom take flights.

I make this submission in my personal capacity.

I am alarmed about climate change. It seems to me the only sensible response to what the scientists are saying.

I am by nature an optimistic person. But I am pessimistic about our ability to make the radical changes necessary to avoid catastrophe. It seems to me that it will require a massive and immediate international effort to turn things around, involving great investment and great sacrifices. I see very little evidence of that happening on anywhere near the necessary scale.

I have read the Commission’s draft advice.  I am not the best person to offer analysis, but it strikes me overall as a thoughtful stab at a difficult task. However, I think there is a sense in which the Commission has sought to recommend as little as we can get away with, and to look to minimise harm at the expense of the rapid change necessary.

I do not think this will be enough. I also do not think it is fair, internationally or inter-generationally.

I am also concerned that it is not lawful, for the reasons set out in the submission of Lawyers for Climate Action.

I urge that the Commission recommend much more ambitious and speedy targets and actions. Again, I agree with the caps recommended by LFCA. I think there should be more emphasis on government investment in buses, trains, cycling and walking, on reducing waste, on reducing agricultural emissions (with support for farmers) and less dependence on offshore mitigation. I support a carbon tax.

I am not sure whether this is really your role, but I also think there must be much more emphasis on girding the country for this task and trying to get everybody on board. I’d like to see a country where we as a people are proud to take responsibility for the sacrifices that need to be made.

I am 53. I’m well-off and living in New Zealand, which is not facing the worst impacts of climate change. I figure I’m going to be dead before this really bites. I feel vaguely guilty for that. Climate change is not really my problem. But we need leaders to step up and make it my problem or the planet is doomed.

 

Yours faithfully,

 

Steven Price

Topics: General | 41 Comments »

Hate speech: a question

July 5, 2021

A question occurs to me that seems worth throwing into the debate.

An ambiguity

I think there’s an ambiguity in the proposed law. We don’t know the exact wording of the offence. It seems the government doesn’t have one. It’s not in the Cabinet paper or the discussion paper anyway. That makes it hard to analyse. But it seems to me that one question leaps off the pages of the discussion paper.

The discussion paper says:

It would be a crime to intentionally incite/stir up, maintain or normalise hatred…

(if it’s a threatening, abusive or insulting communication, including inciting violence, and is aimed at particular discriminated-against groups).

Let’s focus on the intent to incite, stir up, maintain or normalise hatred. My question is: does this require proof of any harm or likelihood of harm that is manifested in the real world? Or is it just a mental element?

In other words, is the proposed offence committed if it can be shown that what’s going on in my head is an intent to incite or normalise (etc) hatred?

Or does it also have to be proved that some sort of hatred has been incited or normalised?

Or – and this is a halfway house – that my speech has a tendency of some sort to incite or normalise hatred?

I don’t think this is clear in the proposal. Neither does an expert on criminal law I talked to.

You-already-know-this-bit-but-I-think-I-should-spell-it-out

Before I go through the possible interpretations of intentionally inciting hatred, I just want to remind any alarmable persons who happen to be reading that a prosecution would ALSO require (a) a threatening, abusive or insulting communication, (b) that is aimed at a particular listed group, (c) consent of the Attorney-General, and (d) a Bill of Rights analysis designed to ensure that any convictions can be demonstrably justified in a free and democratic society.

Possibility one: It’s all the in head

If the intentionally-inciting-or-normalising-hatred element of the crime is only about what the defendant intends, it’s arguably too wide. We are punishing someone for their thoughts when no social harm needs to be proved. Still, it might be thought that once you’ve shown someone has made some threatening, abusive or insulting speech against a group, and you can prove they intended to incite hatred, it stands to reason that this will probably have an effect on the audience, so maybe it’s right to criminalise it. This does seem to be what the Royal Commission had in mind.

Possibility two: You need to prove some real-world impact

On the other hand, if it requires proof that some hatred has been produced or normalised in the world, that might be a difficult task for a prosecutor. It won’t always be impossible: it’s possible that violence might erupt shortly after and as a result of the speech, or people might pile on in a way that demonstrates hatred has been stirred up. But often it will be tough to show that the levels of hatred in the world have been affected as a result of the speech. Anyway, it would be harder to prove than the existing law against racial hate speech.

Possibility three: The half-way house

The existing hate speech law  requires proof of likelihood of harm (that harm being contempt, hostility, ridicule or ill-will against racial or ethnic groups). That’s quite a high threshold, but doesn’t require evidence of harm in the world. What needs to be shown is “a real and substantial risk” of such harm. The Canadian Supreme Court (cited in a NZ case) said the question is “Would a reasonable person consider that the expression vilifying a protected group has the potential to lead to discrimination and other harmful effects?” So you can reason your way to a conclusion that the speech is likely to cause harm in the world without evidence that it has actually happened, evidence that might be very difficult to come by, even if the speech really has had a serious impact on some people’s hearts and minds.

I have to say, this seems like the sensible option to me. There’s just one problem. The Royal Commission recommended that this “likelihood” test be dumped and the government has followed its advice. So it’s hard to see how the government’s proposal can be interpreted to include some liklihood of external manifestation of hatred. (But not impossible to imagine. I could see the courts getting hold of this, and being reluctant to interpret the law as either possibility one or possibility two. They could read in some sort of tendency-to-create-hatred as implicit in the offence, or required by the Bill of Rights Act. After all, the courts read in a damages remedy in the Bill of Rights Act when Parliament deliberately left it out. But it’s not a good thing to leave this sort of thing up in the air).

Conclusion

This should be clarified. It’s easy to write a law so that it makes it clear which bits of the offence are in the head (mens rea) and which are in the world (actus reus). It probably won’t be ambiguous if and when a Hate Speech Bill is produced. But it would be helpful to have this point clarified during the public debate right now, so that we are all on the same page when we make our submissions on the discussion paper.

There’s an easy solution: the government could issue a draft of the actual wording of the reform its proposing. Or at least put out some sort of statement making clear what exactly it’s proposing here. I doubt it’s an exaggeration to say that some people’s position on the proposal will depend on which of these three possible interpretations is the real one.

I’m no criminal lawyer, but I wonder whether one possibility is to have a reverse onus – eg it’s a defence to establish on balance of probabilities that, in the particular circumstances of the case, no hatred has been likely to have been incited or normalised.

 

PS

I’ve just seen the government’s regulatory impact statement. It says this:

The Ministry intends to further assess the benefits and disadvantages of this element
following consultation. It could be argued that removing this objective element might limit
freedom of speech, honest opinion, art and debate by criminalising intent rather than
harmful effects or a risk of harm. Retaining this element also appears to align better with
guidance by the United Nations under the ICCPR. On the other hand, it would simplify
the test. This issue should be covered in the consultation.

so the Ministry was aware of the issue. And yet…. it’s not in the consultation.

 

Topics: Free speech theory, Hate speech | 48 Comments »

The case for hate speech laws

July 5, 2021

Graeme Edgeler has a terrific post making the case for hate speech laws. He is at best ambivalent about hate speech laws, and says he will also be putting up a post making the case against them.

This is where the debate should be. It’s dispiriting how far away from this the debate is.

Topics: Hate speech | 4 Comments »


« Previous Entries