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Our hate speech laws need to reflect and protect our increasingly diverse country

Distinguished Professor Paul Spoonley, Pro Vice-Chancellor in the College of Humanities and Social Sciences at Massey University, says in his briefing paper about the nature and extent of hate speech in the age of the Internet:

“The availability and use of online and digital technologies has increased the opportunities for one-to-one or one-to-many communication, including offensive/hate speech...It is therefore timely both to consider the nature of hate speech in New Zealand and to establish the extent and impacts of hate speech on New Zealanders.”

He notes that there is little systematic recording of the nature and extent of hate speech in New Zealand, partly because there is no agreed definition of what qualifies as hate speech, and there is no requirement for agencies to systematically collect hate crime or speech data. He goes on to say:

“Germany provides something of a test case for responding to hate speech although it needs to be acknowledged that because of a 20th century history of political and racial extremism, Germany has much stronger limitations on hate speech than most constituencies. Volksverhetzung, or the incitement to hatred, has been a criminal offence in Germany for some time but this was underscored in June 2017 with a new bill concerning hate speech on social media.

From 1 January 2018, a new German law puts the onus on technology companies to establish the difference between free speech and hate speech. The new law, commonly referred to as NetzDG, requires companies like Facebook and Twitter to remove “obviously illegal” hate speech from its sites within 24 hours of notification or they can be fined up to 50 million euro. As a result Facebook now has 1,200 reviewers based in Essen and Berlin and about 15,000 deletions are made each month in Germany.

In 2017, the UK also announced a new measure to act against hate speech online, and specifically, the Crown Prosecution Service guidelines were revised. These effectively expand the provisions for prosecuting those responsible for hate crimes online.”

In New Zealand, the Human Rights Act currently includes provisions that cover both civil and criminal liability for the incitement of racial disharmony. However, the threshold is extremely high and there is a profound scarcity of successful racial disharmony claims to the Human Rights Review Tribunal.

Racial disharmony provisions only apply to instances where hostility is stirred up amongst people other than those who are the subject of the hate. The expression of hatred in and of itself (or the effect of that hatred on the person or group it is directed towards) is not sufficient for the law to apply. The hate speech provisions in the Human Rights Act also apply only to colour, race, or ethnic or national origins and not religion. ‘Hate speech’ against religion, or even religious people, is not unlawful.

During the most recent universal periodic review, United Nations member states made specific recommendations for New Zealand to improve the human rights of LGBTQI communities including that the government "add gender identity, gender expression or sex characteristics as specifically prohibited grounds of discrimination in Article 21 of the Human Rights Act of 1993" and that “New Zealand amend the Human Rights Act of 1993 to explicitly prohibit discrimination on the basis of gender identity and intersex status".

Based on the aforementioned Netsafe research that showed people from LGBT communities experience high rates of online hate, these would be useful additions for keeping rainbow people safe on and offline.