Participation, Knowledge and Publication

This post is about the defamation case of Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 (8 September 2021). The issue was whether Fairfax was a publisher of comments made by third parties on its Facebook page for the purposes of defamation proceedings.

In essence the decision confirms that an organisation or person opening a site or post to comments by others may be liable for any defamation in the comments others then make. Larger organisations may be able to track, vet and remove problematic posts quickly, but for individuals and organisations without continuous site monitoring, their risk from third party posts might be more difficult to control or mitigate.

It should be noted that the case states the law as applicable in Australia. The New Zealand Courts have taken a different path. However, if the publication has taken place in Australia (under the holding in Dow Jones v Gutnick) an offshore organization or person operating a site where third party comments are posted could be subject to the jurisdiction of the Australian Courts.

Fairfax Publications, in addition to publishing newspapers, maintained a public Facebook page to which they posted news contents and maintained hyperlinks to other material on their site. They invited comment from members of the public who were Facebook users.

The respondent claimed that following the appellants posting about particular news stories referring to him, including posts concerning his incarceration in a juvenile justice detention centre in the Northern Territory, a number of third-party Facebook users responded with comments that were defamatory of him. He alleged that the appellants were liable as the publishers of those comments.

The question was whether the respondent, the plaintiff in the proceedings, had established the publication element of the cause of action of defamation against the defendant[s] in respect of each of the Facebook comments by third-party users. The appellants took the view that a negative answer to the separate question would result in dismissal of the proceedings.

The Facebook page used by the appellant was managed by a Page administrator, the person or persons authorised by the appellant to administer it in accordance with Facebook’s terms of use.

There was evidence before the primary judge, which was largely uncontentious, that an administrator could prevent, or block, the posting of comments by third parties through various means, although the Facebook platform did not allow all posts on a public Facebook page to be blocked.

Individual comments could be deleted after they were posted but this would not prevent publication. It was possible to “hide” most comments, through the application of a filter, which would prevent publication to all except the administrator, the third-party user who posted the comment and their Facebook “friends”.

Hidden comments could then be individually assessed by an administrator. If sufficient staff were allocated to perform this task, comments could be monitored and “un-hidden” if approved by an administrator.

The Court observed that the number of comments is an important aspect of the use of a public Facebook page, because comments increase the profile and popularity of the page, which in turn increases the readership of the digital newspaper or broadcast, and thus, the revenue from advertising on both the page and the digital newspaper or broadcast.

The argument for the appellants was that to be publishers they had to be instrumental to or a participant in the communication of the alleged defamatory matter. They argued that they did not make the defamatory comments available to the public, did not participate in their publication and merely administered the Facebook page on which third parties published material. In this way they were more closely equivalent to the supplier of paper to a newspaper owner or the supplier of a computer to an author.

They also argued that they were akin to the owner of premises upon which defamatory material had been posted or written – graffiti was given as an example – and in cases of this kind there had to be knowledge – an awareness – of the statements and allowing them to remain in place.

However, it was observed that in the Hong Kong case of Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 it had been held that internet platform providers which hosted a discussion forum were in a different position from the occupiers referred to in those cases. Unlike the occupiers, the providers had encouraged and facilitated postings by members of the forum and were therefore held to be participants in their publication from the outset.

Before the High Court it was argued for the appellants that the common law requires that the publication of defamatory matter be intentional. It is not sufficient that a defendant merely plays a passive instrumental role in the process of publication. To be a publisher a person must intend to communicate the matter complained of, which is to say the relevant words. This, it was argued, followed from the decisions of Webb v Bloch (1928) 41 CLR 331 at 363-4 and from Trkulja v Google LLC (2018) 263 CLR 149 at 163 [68].

The High Court rejected the suggestion that a deliberate act of allowing defamatory material to remain was good law. Following the rationale in Dow Jones v Gutnick (2002) 210 CLR 575 at 600 [26] it held that publication may therefore be understood as the process by which a defamatory statement or imputation is conveyed. A publisher’s liability does not depend upon their knowledge of the defamatory matter which is being communicated or their intention to communicate it. It depends on mere communication of the defamatory matter to a third person. As was held in Lee v Wilson & McKinnon (1934) 51 CLR 276 no question as to the knowledge or intention of the publisher arises.

The High Court revisited Trkulja  and confirmed that the correct meaning of publication is that any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher. A person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.

The time of participation in publication is critical. The High Court considered the line of cases commencing with Byrne v Deane [1937] 1 KB 818 which concerned the placing of an alleged defamatory verse on the wall of a golf club. The rules of the club required the consent of the Secretary to the posting of any notice in the club premises. The Court in that case noted that publication was a question of fact, depending on the circumstances of each case. Cases were referred to where persons who had taken no overt part in the publication of defamatory matter nevertheless adopted and promoted its reading so as to render themselves liable for its publication.

In Bryne v Deane there was evidence which tended to show that the actions of both defendants, as directors of the golf club, fell into this latter category. By electing to leave the alleged libel on the wall of the club, having had the power to remove it, they were taken to have consented to its continued publication to each member who saw it.

The High Court concluded that such cases do not establish a different rule for publication based on the intention of the occupiers. These cases involve the application of the general rule of publication to a particular set of circumstances where a person who has not participated in the primary act of publication may nevertheless become a publisher.

The time when the occupier becomes aware of the publication of the material marks the point from which the occupier’s conduct or inaction is assessed to determine whether they can be said to have participated in the continuing publication. Cases of this kind – such as Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366 (internet platform providers) and Murray v Wishart [2014] 3 NZLR 722 (hosts of a Facebook page) – are not useful to explain the involvement of others in publications in very different circumstances and were held not to be of assistance in this case.

It should be observed that the High Court decision was a majority one. Three judges (Kiefel CJ, Keane and Gleeson JJ)concurred in one set of reasons.

Two judges (Gageler and Gordon JJ) wrote a separate opinion. That opinion extensively reviewed many of the overseas authorities on the issue of publication.

The Judges stated

Murray v Wishart was a decision in which the New Zealand Court of Appeal held that an individual Internet user who was the administrator of a private Facebook page and who had no “actual knowledge” of the contents of third-party comments posted on the page was not liable in defamation. The Court of Appeal proceeded without reference to Webb v Bloch, and indeed without analysis of what constitutes publication at common law. Rather, the starting point for its analysis was that the issue of publication was to be determined by “strained analogy” with previously decided cases. It appeared to assume that either actual or constructive knowledge of the defamatory content was necessary for publication. Its ultimate conclusion that “the actual knowledge test should be the only test to determine whether a Facebook page host is a publisher” was reached having regard to the guarantee of freedom of expression in the New Zealand Bill of Rights Act 1990 (NZ). The reasoning does not reflect the common law of Australia.”

They also noted the decision of Oriental Press Group Ltd v Fevaworks Solutions Ltd, where the issue was not as to publication but as to whether the common law defence of innocent dissemination was available to the respondents, who administered a website which hosted an Internet discussion forum on which users posted defamatory matter. Before turning to resolve that issue, Ribeiro PJ said of the respondents:

“They were certainly publishers of those postings (and do not seek to argue otherwise) since they provided the platform for their dissemination, but the respondents were not aware of their content and realistically, in a many-to-many context, did not have the ability or opportunity to prevent their dissemination, having learned of them only after they had already been published by their originators.”

Such an observation would have to be obiter, albeit strong, given that publication was not the issue for decision.

Two other members of the High Court dissented from the finding (Edelman and Steward JJ) , Steward J referring with to the public meeting analogy in Murray v Wishart in that the actions of the appellant were insufficient to amount to being instrumental in the publication.

Edelman J did not hold that the appellants were not publishers but that what was needed to establish that they were publishers meant that it was necessary to establish publication in respect of each of the Facebook comments by third-party users by establishing that the Facebook comment has a connection to the subject matter posted by the defendant that is more than remote or tenuous.

Steward J considered that the respondent had to establish the publication element in relation to the third party comments which had been procured, provoked or conduced by posts made by the appellants on their respective Facebook pages. It should be noted that the dissenters were not prepared to hold that publication had not taken place. In some cases they felt that someone posting material online might do so in a way that is more culpable than a meeting-organiser and be justifiably considered a “publisher” – for example posting highly controversial material in the hope that algorithmic forces might increase readership and exposure.

In this respect the analogy of a public meeting may be of reduced relevance, given that there are the “dark forces” of algorithms that drive content in certain directions, thus altering the “content neutral” image of the public meeting.

Comment

The effect of the majority decision is that responsibility for publication of third party comments does not depend upon actual knowledge of the presence of the defamatory material. The knowledge element only becomes relevant in determining participation in continued publication.

As observed, the law in Australia differs from that in New Zealand. The Court of Appeal in Murray v Wishart has made it clear that an actual knowledge test is necessary for publication. A matter that is shared by both jurisdictions is that in the matter of publication the enquiry is a fact specific one.

Certainly the decision case has prompted change. Even before the High Court of Australia decision Facebook changed its comments functionality in 2021 to allow users greater control.

Concern has been expressed that the decision may alter the defamation landscape. Australian Courts have adopted a much more severe “plaintiff friendly” approach to definition of defamation elements – see Dow Jones v Gutnick, Duffy v Google [2015] SASC 170 and Trkulja v Google. Given the way in which the law has developed in New Zealand it may be unlikely that the distance in legal position will become any closer in the near future. But there could well be a change in focus if a more granular examination of the operation of the technology of the platform is carried out and it is that, rather than questionable analogies, that drives the decision.

The Content Regulatory System Review – An Overview

Lockdown has its benefits. For some time I have been asked whether or not I would contemplate a 5th edition of “internet.law.nz – selected issues.” After 4 editions including a revised 4th edition my inclination had been that I had written enough on the subject, but a review of the 4th edition together with a review of what I had written in other for a persuaded me that a 5th edition might be a possibility. Lockdown has given me the perfect opportunity to research and write in the comparative peace and solitude that accompanies Alert Level 4.

The approach that I propose will be different from what has gone before, although much of the material in earlier editions will be present. But the focus and the themes that I want to examine differ. I am interested in the regulatory structures that are being applied to the online environment and in particular I am interested in the area of content regulation. This involves a number of areas of law, not the least of which is media law and there is quite an overlap between the fields of media law and what could loosely be termed cyberlaw.

What I am trying to do is examine the law that it has developed, that is presently applicable and what shape it may likely have in the future. In this last objective I am often assisted by proposals that governments have put forward for discussion, or proposed legislation that is before the House.

In this piece I consider a review of content regulation. The proposal, which was announced on 8 June 2021, is extremely broad in scope and is intended to cover content regulation proposals and mechanisms in ALL media – an ambitious objective. What follows are my initial thoughts. I welcome, as always, feedback or comments in the hope that the finished product will be a vast improvement on what is presently before you.

The Proposals

A comprehensive review of content regulation in New Zealand was announced by Minister of Internal Affairs, Hon Jan Tinetti, on 8 June 2021. The review is managed by the Department of Internal Affairs, with support from the Ministry for Culture and Heritage. 

The review aims to create a new modern, flexible and coherent regulatory framework to mitigate the harmful impacts of content, regardless of how it is delivered.

The framework will still need to protect and enhance important democratic freedoms, including freedom of expression and freedom of the press.

Content is described as any communicated material (for example video, audio, images and text) that is publicly available, regardless of how it is communicated.

The need for the review arises from a recognition of media convergence. The review outline states that the ongoing evolution of digital media has resulted in significant and growing potential for New Zealanders to be exposed to harmful content. This was made evident by the livestreaming and subsequent uploading of the Christchurch terror attack video.

Our existing regulatory system was designed around a traditional idea of ‘analogue publication’, such as books, magazines and free-to-air TV, and does not have the flexibility to respond to many digital media types. As a result, it addresses harm in a shrinking proportion of the content consumed by New Zealanders and provides little protection at all for digital media types which pose the greatest risk for harmful content.

The increase in the potential for New Zealanders to be exposed to harmful content is compounded by the complexity of the regulatory system. Different rules apply for content hosted across media channels. This increases difficulty for New Zealanders when deciding what content is appropriate for them and their children and creates confusion on where to report harmful content. 

There is also an uneven playing field for media providers as some types of media are subject to complicated regulatory requirements and some to no regulations at all.

The introduction to the review notes that New Zealand’s current content regulatory system is made up of the Films, Videos, and Publications Classification Act 1993, the Broadcasting Act 1989 and voluntary self-regulation (including the New Zealand Media Council and Advertising Standards Authority). The Office of Film and Literature Classification and the Broadcasting Standards Authority are statutory regulators under their respective regimes. 

New Zealand’s content regulatory system seeks to prevent harm from exposure to damaging or illegal content. It does this through a combination of classifications and ratings to provide consumer information, and standards to reflect community values. These tools are designed to prevent harm from people viewing unwanted or unsuitable content, while protecting freedom of expression.

What is proposed is a broad, harm minimisation-focused review of New Zealand’s media content regulatory system which will contribute to the Government’s priority of supporting a socially cohesive New Zealand, in which all people feel safe, have equal access to opportunities and have their human rights protected, including the rights to freedom from discrimination and freedom of expression. 

The objective of social cohesion was one of the strong points made by the Royal Commission on the 15 March 2019 tragedy in Christchurch.

The review recognises that a broad review of the media content regulatory system has been considered by Ministers since 2008 but has never been undertaken. Instead piecemeal amendments to different frameworks within the system have been made to address discrete problems and gaps.

The problems posed by the Digital Paradigm and media convergence, coupled with the democratisation of media access has, in the view expressed in the briefing paper resulted in significant and growing potential for New Zealanders to be exposed to harmful media content. Our existing regulatory frameworks are based around the media channel or format by which content is made available and do not cover many digital media channels. This model does not reflect a contemporary approach where the same content is disseminated across many channels simultaneously. As a result, it provides protection for a decreasing proportion of media content that New Zealanders experience. This means that New Zealanders are now more easily and frequently exposed to content they might otherwise choose to avoid, including content that may pose harm to themselves, others, and society at large.

What is proposed is a harm-minimisation focused review of content regulation. This review will aim to create a new modern, flexible and coherent regulatory framework to mitigate the harmful impacts of media content, regardless of how it is delivered. The framework will still need to protect and enhance important democratic freedoms, including freedom of expression and freedom of the press. The threshold for justifying limitations on freedom of expression will remain appropriately high.

Given the emphasis on social cohesion it is not unexpected that the Review is part of the Government’s response to the March 2019 Christchurch terrorist attack, including the Christchurch Call and responding to the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain.

It is noted that in addition to the formal structures under the Films Videos and Publications Classification Act and the Broadcasting Act are voluntary self-regulatory structures such as the Media Council and the Advertising Standards Authority are the provisions of the Harmful Digital Communications Act and the Unsolicited Electronic Messages Act. These structures, it is suggested, are unable to respond to are coming from contemporary digital media content, for example social media. The internet has decentralised the production and dissemination of media content, and a significant proportion of that content is not captured by the existing regulatory system.

Examples of the harmful media content affecting New Zealanders are:

  • adult content that children can access, for example online pornography, explicit language, violent and sexually explicit content
  • violent extremist content, including material showing or promoting terrorism
  • child sexual exploitation material
  • disclosure of personal information that threatens someone’s privacy, promotion of self-harm
  • mis/disinformation
  • unwanted digital communication
  • racism and other discriminatory content
  • hate speech

What is proposed is a harm-minimisation focused review of content regulation, with the aim of creating a new modern, flexible and coherent regulatory framework to mitigate the harmful impacts of all media content. The regulatory framework will balance the need to reduce harm with protecting democratic freedoms, including freedom of expression and freedom of the press. The framework will allocate responsibilities between individuals, media content providers, and Government for reducing harm to individuals, society and institutions from interacting with media. The framework will be platform-neutral in its principles and objectives, however, it will need to enable different approaches to reaching these objectives, spanning Government, co-regulatory and self-regulatory approaches. It will also include a range of regulatory and non-regulatory responses.

The following principles are proposed to guide the review:

a. Responsibilities to ensure a safe and inclusive media content environment should be allocated between individuals, media content service providers (analogue, digital and online providers), and Government;

• Individuals should be empowered to keep themselves safe from harm when interacting with media content;

• Media content service providers should have responsibilities for minimising harms arising from their services;

• Government responses to protect individuals should be considered appropriate where the exercise of individual or corporate responsibility cannot be sufficient. For example:

• Where there is insufficient information available to consumers about the risk of harm;

• Where individuals are unable to control exposure to potentially harmful media content;

• Where there is an unacceptable risk of harm because of the nature of the media content and/or the circumstances of the interaction (e.g. children being harmed by media content interactions);

b. Interventions should be reasonable and able to be demonstrably justified in a free and democratic society. This includes:

  • Freedom of expression should be constrained only where, and to the extent, necessary to avoid greater harm to society
  • The freedom of the press should be protected
  • The impacts of regulations and compliance measures should be proportionate to the risk of harm;

c. Interventions should be adaptive and responsive to:

• Changes in technology and media;

• Emerging harms, and changes to the scale and severity of existing harms;

• Future changes in societal values and expectations;

d. Interventions should be appropriate to t he social and cultural needs of all New Zealanders and, in particular, should be consistent with:

• Government obligations flowing from te Tiriti o Waitangi;

• Recognition of and respect forte ao Maori and tikanga; and

e. Interventions should be designed to maximise opportunities for international coordination and cooperation.

It will be noted that the proposed review and the principles guiding it are wide-ranging. It seems that the objective may be the establishment of a single content regulatory system that will allow for individual responsibility in accessing content and media responsibility for ensuring a minimisation of harm but with a level of State intervention where the steps by individuals or media providers may be insufficient. The guiding principle seems to be that of harm.

At the same time there is a recognition of the democratic values of freedom of expression and freedom of the press. The wording of section 5 of the New Zealand Bill of Rights Act is employed – that interventions should be reasonable and demonstrably justified in a free and democratic society and that responses should be proportionate to the level of harm.

It is interesting to note that the proposed interventions should be flexible and able to adapt to changes in technology and media, the nature of harm and any future changes in societal values and expectations.

Commentary

In many respects the proposals in this outline seem to be those of an overly protective State, developing broad concepts of harm and “safety” as criteria for interference with robust and often confronting expression. It is quite clear that the existing law is sufficient to address concerns about expressions such as threats of physical harm. However, the concept of harm beyond that is rather elusive. The problem was addressed in the Harmful Digital Communications Act 2015 which defines harm as “serious emotional distress”. But a broader scope seems to be applied to harm in the context of this review and that is exemplified by the concept of social cohesion. In addition are some of the categories of content that must give rise to concern and that may well create a tension between freedom of expression on one hand and elements of social cohesion on the other. One example is that of misinformation or disinformation which seems to suggest that there is but one arbiter of accuracy of content that leaves little room for balanced discussion or opposing views. The arbiter of content could describe any opposing view as misinformation and thereby demonise, criminalise and ban the opposing view on the basis that opposition to the “party line” has an impact upon social cohesion.

A matter of concern for media law specialists as this review progresses must be the cumulative impact that content regulation initiatives may have on freedom of expression. I cite as examples proposals to address so-called “hate speech” and the Chief Censor’s report “The Edge of the Infodemic: Challenging Misinformation in Aotearoa.” These proposals, if enacted, will give legislative fiat to a biased form of expression without allowing for a contrary view and demonstrates a concerning level of misunderstanding about the nature of freedom of expression (including the imparting and receiving of ideas) in a free and democratic society.

As matters stand content regulatory systems in New Zealand as discussed have some common features.

  • There is an established set of principles and guidelines that govern the assessment of content.
  • There is a complaints procedure that – as far as media organisations are concerned – involves an approach to the media organisation prior to making a complaint to the regulatory body
  • There is a clear recognition of the importance of the freedom of expression and the role of a free press in a democratic society
  • That in respect to censorship the concept of “objectionable” is appropriately limiting given first that the material may be banned or restricted and second that there may be criminal liability arising from possession or distribution of objectionable material.
  • Guiding principles are based primarily upon the public interest. The Content Review focus on social cohesion is more than a mere re-expression of the public interest concept.

One thing is abundantly clear. The difficulty that regulatory systems have at the moment surrounds continuing technological innovation. To some extent the New Zealand Media Council recognises that and has adapted accordingly. Otherwise there is little wrong with the processes that are in place – at least in principle. If complaints procedures are seen to be unwieldy they can be simplified. The public interest has served as a good yardstick up until now. It has been well-considered, defined and applied. It would be unfortunate to muddy the media standards and public discourse with a standard based on social cohesiveness, whatever that may be. Fundamentally the existing regulatory structures achieve the necessary balance between freedom of expression on the one hand and the protection of the public from objectionable content on the other. Any greater interference than there is at present would be a retrograde step.

It is what it Is – The Science of Middle-earth

Much of the writing about Tolkien and his works focusses upon the literary aspects of his Middle-earth works. Therefore it is rather unusual to come across a book that describes itself as a new understanding of Tolkien and his world using scientific disciplines to examine Middle-earth.

The Science of Middle-earth (Roland LeHouq, Loic Mangin and Jean-Sebastien Steyer (eds) Pegasus Books 2021) provides an interesting, at time provocative and at times amusing look at Tolkien’s Middle-earth world. It is a compilation of essays that consider that scientific foundations of Middle-earth and its denizens. The book claims that Tolkien had an interest in aspects of science – cosmology, geography, metallurgy, botany and geology and without this knowledge he would have been unable to create the Middle-earth of the depth and breadth that he did. It is claimed, too, that Tolkien was aware of the way in which science could align itself with power, imposing its values in an imperialist manner.

Feanor in The Silmarillion, Celebrimbor of Eregion and the thinkers of Lorien combined a quest for knowledge with artistic creation. Tolkien said that

“the Elves represent the artistic, aesthetic and purely scientific aspects of the Humane nature raised to a higher level than is actually seen in Men..they have a devoted love of the physical world, and a desire to observe and understand it for its own sake.” (Tolkien to Michael Straits 1956).

The book is divided into thematic sections – each section gathering together a number of scientific studies and disciplines to demonstrate how these are deployed in Middle-earth. The sections are as follows:

World-building – addressing matters such as the sociology of Middle-earth, economics, families, power and politics, language, evolution and communication in Middle-earth and closes with philosophy in Middle-earth.

Anchoring in Space and Time, in which there are essays on archaeology, history and historiography in Middle-earth, a consideration of linguistics and a study of the mythology of corruption and dependence.

The section on “Spectacular Settings” includes studies of the plants, landscape and geography of Middle-earth including a consideration of the tectonic makeup of Arda, the subterranean worlds and the gemology of Middle-earth along with a consideration of Medieval-Fantastical metallurgy. The One Ring comes in for a careful examination in a consideration of the quality of invisibility it confers along with its complex chemical history and what would be required to make such a potent object.

The people of Middle-earth are considered in the section entitled “Remarkable Characters”. Here are examined the hobbits from a physical point of view including a study and how the rather larger feet of hobbits gives them certain characteristics, the recent discovery of a human ancestor in Indonesia who was nicknamed “hobbit” and how this impacted upon paleoanthropology, the physical decline and metamorphosis of Gollum, the eyesight and optical characteristics of the Elves, the relationship of Dwarves to hyenas and a consideration of whether an Ent is a plant or an animal and some of the “real-world” similarities that exist. Saruman’s Uruks are discussed in a context of genetic modification and the section closes with a phylogenetic approach to humanoids In Middle-earth (aided by some helpful diagrams).

The final section is entitled a Fantastical Bestiary and looks at what re referred to as mythotypes within the realm of beasts and then a consideration of ornithology and the way Tolkien treats birds – and especially the Great Eagles like Thorondor – the fantastical oliphaunts and their relationship to elephants, the nature of Wargs and their parallels in Scandinavian folklore, a careful study of Beorn and whether he was a Man-bear or a Bear-man (there is a difference) – spiders in Middle-earth referred to as arthropods, as well as the different types of dragon that make appearances in the Tolkien canon – it should be recalled that Glaurung could not fly whereas Smaug and Ancalagon the Black could and these evolutionary differences are considered. The horrible Monster in the Water outside the Mithril Gate of Moria is considered and the section closes with a discussion of Tolkien’s cryptozoological bestiary.

All of this provides for vert entertaining reading along with some thought-provoking observations. I do, however, have two problems with the approach adopted.

The first relates to reliance by many of the writers upon Peter Jackson’s movie adaptation of the Lord of the Rings. It must be remembered that these movies were Jackson’s imagining of Tolkien’s imagining and although in many case Jackson got it right, my own view is that if a writer is looking at Tolkien’s Middle-earth it must be based upon the materials that Tolkien created. Luckily we have a very large depth of material contained in the published Canon (The Hobbit, The Lord of the Rings and The Silmarillion) and the background materials and information provided in Unfinished Tales and in the multi-volume History of Middle-earth. There is more than enough material available from Tolkien’s pen that would not require resort to Jackson’s movies.

The second is the importation of certain physical and scientific realities into the analysis. For example the sections on the Ring focus upon the physical attributes of the Ring and overlook the high level of craftsmanship of Elves like Feanor and Celebrimbor and the fact that Sauron had demi-godlike qualities (he was a Maia) that allowed him to channel his power into an object in a way that is not possible given our current scientific knowledge.

I have always viewed Middle-earth as similar but not identical to our own – not perhaps an alternate reality but a parallel universe. In this respect my own view is that the scientific constraints imposed upon our physical existence need not necessarily apply to Middle-earth. There are similarities in that there are creation myths, the concept of the Fallen Angel and certain supernatural or metaphysical elements in both universes, but that the rules in Middle-earth differ from ours. I do not need a scientific rationale for the long-sightedness of the Elves other than that it is a reality in Middle-earth. Nor do I need an explanation of the One Ring based on the state of OUR knowledge rather than the realities of object creation within a Middle-earth universe.

So from time to time I felt dragged back into the reality of my universe and away from the Secondary World created by Tolkien. I must admit that some of the explanations and theories are quite amusing and for the Tolkien aficionado it may provide some hours of amusement.  But my own view is that as far as Middle-earth and its workings are concerned  – as is so often said these days – it is what it is.

The fault, dear Brutus, is not in social media/ But in ourselves


The title of this post is a paraphrase of a couple of lines from “Julius Caesar” Act 1 Scene iii Lines 140 – 141 – apologies to Will Shakespeare of Stratford.

This post is a companion piece to one that I wrote about misinformation and to which reference is made. Lest there be any doubt I am not advocating for misinformation or disinformation. I dislike both. I am concerned with objective fact and reasoned opinion in an effort to ascertain truth and have been all my life.

It is easy – perhaps a soft option – to lay the spread of misinformation at the feet of social media. After all, people post to social media and in a sense the information remains passive until someone else reads it. And therein lies the problem. In my last post I advocated a position based on the employment of common sense and critical faculties – qualities that we all possess.

In this piece I discuss the importance of understanding the medium as a prelude to considering the “responsibility” of social media for the dissemination of misinformation. Exponential dissemination, as I argue, is an essential characteristic of digital communications systems and impacts upon our information expectations

In an earlier post I observed that the target of the concerns about misinformation is “the Internet” – a generalized target that encompasses a world wide communications network. A more recent comment on disinformation attributes its spread to social media.

In a sense, both critiques are correct but they both focus on the content layer rather than upon the medium itself. And it is when we understand the nature of the medium we realise that in many respects it enables many behaviours, some of which are execrable. But the problem is that the cat is out of the bag, the djinni is out of the lamp – which ever metaphor you prefer.

What we are facing are paradigmatically different behaviours in the communications space from anything that has gone before. And because the paradigm is a different one from that to which we are accustomed, we yearn to push back, to return to things “the way they were”. And in saying this we hearken back to an earlier communications paradigm that was, as is the present paradigm, defined and underpinned by the media of communication.

When Marshall McLuhan cryptically said “The Medium is the Message” he was saying that in understanding the impact of the message we must first understand the impact of the medium or media of communication. And although we tend to focus upon what we see and hear – the content layer – the real game changer lies much deeper than that – within the medium itself. It is the medium that enables behaviours and in many respects and as a result of continued use impacts upon the values that validate those behaviours.

Every medium of communication possesses certain properties or affordances that are not immediately obvious. My starting point is the analytical framework developed by the historian Elizabeth Eisenstein in her seminal work The Printing Press as an Agent of Change.[1] In that work Eisenstein identified a number of qualities present in print technology that differentiated the communication of information in print from that communicated in manuscript. These qualities were not the obvious ones of machine based creation of content but focussed upon the way in which printed material was going to and did impact upon the intellectual activities of educated elites in Early-modern Europe. These qualities were beneath the content layer; not immediately apparent but vital in considering the way in which readers dealt with and related to information and ultimately had an impact upon their expectations of information and how, in turn, they themselves used print to communicate.

Using McLuhan’s suggestion and developing the way in which Eisenstein identified her underlying qualities of print technology, I have identified a number of different qualities[2], some of which overlap and some of which are complementary.

However, rather than merely identify these qualities I have developed a form of taxonomy or classes of qualities which are occupied by specific exemplars.[3]

For example, I have identified what I call Environmental Qualities. They arise from the context within which digital technologies develop and are descriptive of the nature of change within that context, and some of the underlying factors which drive that change. Because digital technologies primarily involve the development of software tools which operate on relatively standard computing equipment, the capital investment in hardware and manufacturing infrastructure is not present in the development of digital tools, although it certainly is in the development of the hardware that those tools require.

Thus the development of digital software can take place in any one of a number of informal locations where the only requirements are a power supply, a computer and a programmer or programmers. This lack of infrastructural requirements enables the development of software tools which can be deployed via the non-regulated environment of the Internet giving rise to the qualities of permissionless innovation and continuing disruptive change which are discussed in detail.

A second set of qualities I have identified as technical qualities. These are so classified because they underlie some of the technical aspects of the new digital technologies. Some of these qualities are present in a different form in the print paradigm. Eisenstein identified dissemination of content as a quality of print that was not present within the scribal paradigm. I have identified exponential dissemination as an example of a technical quality – the way in which the technology enables not only the spread of content as was enabled by print, but dissemination at a significantly accelerated rate with a greater reach than was enabled by physical dissemination.

Another of the qualities that I identify as a technical one is that of information persistence, summed up in the phrase “the document that does not die.” Once information has been released on to Internet platforms the author or original disseminator loses control of that content. Given the fact that as digital information travels through a multitude of servers, copies are made en route meaning that the information is potentially retrievable even although it may have been removed from its original source.

Other examples of “technical qualities” such as the way in which linear progress through information challenged by navigation via hypertext link in what I call the delinearisation of information; the dynamic nature of information and its malleability in digital format; the way in which seemingly limitless capacity allows for storage of a greater amount of information than was previously considered possible; the apparent non-coherence of digital information and the need for the intermediation of hardware and software to render it intelligible and the problem of obsolescence of information caused by loss arising not from deterioration of the medium but as a result of the unwillingness of software companies to support earlier iterations of software which enabled the creation of an earlier and now inaccessible version of the content. All are aspects of technical qualities that underpin the content of digital information.

The third category of qualities are what I call user associated qualities – qualities that arise in the behaviour of users in response to digital information technologies. Among these user associated qualities is the searchability of digital information and its associated availability and retrievability arising from the development of ever more sophisticated search algorithms and platforms, and the ability of users to participate in the creation of and use of content as a result of the interactive nature of digital technologies, in particular social media.

In some respects aspects of these qualities overlap – they do not stand alone. Indeed the searchability of information presents its own special difficulties. Trying to locate information on the Network has been a problem even before the Internet went commercial. There were search tools such as Gopher in the early days but the advent of sophisticated algorithm driven search tools such as Google have changed the landscape entirely.

Algorithms also select and promote posts and information on social media and associated platforms and frequently select information that is “high engagement”. The algorithms that curate content do so to drive increased engagement. Thus we have a merging of searchability and user participation. The problem is that this imperative of increased engagement seems to attract users who are confused and often gullible and who seek information that confirms their worst fears. For them, social media becomes an echo chamber. But although it is the content that they seek, the availability of the content arises from the inherent qualities of the medium

Thus, all these qualities, cumulatively, have an impact upon our “relationship” with and expectations of information and which have an influence on behaviour.  One form of behaviour is what may be called the online disinhibition effect. This inevitably leads to a consideration of the contentious issue of the effect that new technologies have upon the way that we think. It is suggested that the issue is not so much one of neuroplasticity advanced by Susan Greenfield[4] or “dumbing down” of attention spans as suggested by Nicholas Carr[5] but a slightly more nuanced view of the way that the medium and the various delivery systems redefine the use of information which informs the decisions that we make.[6]

Paradigmatically different ways of information communication and acquisition are going to change the way in which we use and respond to information. And we must recognise that change has happened, that some of our preconceived notions about information and its reliability must change, and that we must adapt our approaches. It is no good trying to hold on to past standards regarding information. They have morphed as a result of the new communications paradigm. It will be interesting to see how the proposed Content Regulatory System Review develops. The target is content, described by McLuhan as akin to  “the juicy piece of meat carried by the burglar to distract the watchdog of the mind” whereas the true target of the review should be the medium and the way that it is changing attitudes to content.

This rather lengthy discussion of the underlying nature of communications systems in the Digital Paradigm is really an introductory to a comment on a piece by Dr Jarrod Gilbert which appeared in the NZ Herald on 23 August.

The article deals with some of the more bizarre manifestations of behaviour and information that seem to beset us. Dr Gilbert acknowledges that this sort of thing is not new but that what is new is the ability for such views to spread quickly and widely – like a contagion as he put it, phraseology that would seem to be apt in these plague-ridden times – but he then lays the responsibility for this at the feet of social media. Social media, he says, provides the oxygen and then proceeds to look for the spark which, if I read him correctly, he attributes to disinformation.

We have to be careful with this word because it can get confused with its close cousin “misinformation”. Just to recap, I have discussed misinformation in an earlier post but it has been defined by the Infodemic Report discussed in that post as  “false information that people didn’t create with the intention to hurt others”. Disinformation, in the same report, has an element of malevolence to it – it is defined as false information created with the intention of harming a person, group, or organisation, or even a country.

The definition in the Oxford English Dictionary is less threatening that that appearing in the report but the dissemination of deliberately false information is common to both. The OED defines disinformation as:

“The dissemination of deliberately false information, esp. when supplied by a government or its agent to a foreign power or to the media, with the intention of influencing the policies or opinions of those who receive it; false information so supplied.”

Dr Gilbert then goes on to consider how bizarre ideas disseminated on social media spread so easily. One aspect is the authoritarian explainer personality whose commentary has an aspect of credibility even although there may be no basis for it. Another is the personality drawn to paranormal thinking or conspiracy theories. Once one conspiracy is believed it becomes easy to believe others.

Having considered the human element and the gullibility of audiences, Dr Gilbert turns his attention to social media and there is no doubt that the use of algorithms, as I have discussed above, enhances engagement which is an essential aspect of the business model of many social media platforms. The association of disinformation and social media is well known and deserves to be highlighted although, as I later suggest in this post, there is a sinister aspect to this within the context of an “authorized truth.” Another feature of social media is that it is not generally viewed as a trusted source of information. In a recent survey two thirds of those questioned expressed low trust in social media. So those about whom Dr Gilbert complains are in a minority and probably prefer the echo chamber that social media affords.

But are social media platforms the problem. I suggest that to say so is to look for the low hanging fruit. The problem is far more nuanced and complex than that. If we look at the underlying properties of the medium we find user participation and exponential dissemination enable the spread of ideas rather than heaping the blame on “social media.” These inherent qualities of digital communications systems would exist despite social media. It is just that social media have managed to “piggy-back” on these characteristics in developing business models.

As the title of this post suggests, with appropriate paraphrasing, the real fault is not with social media but with ourselves. The problems of misinformation and disinformation are not technical issues but are human issues – behavioural issues. It may well be, as I suggest, that behaviours have been modified by the properties of digital communications systems. But in many respects those systems are passive purveyors rather than active influencers. People are influencers, utilizing the enhanced communications opportunities provided by digital systems.


[1] Elizabeth Eisenstein The Printing Press as an Agent of Change  (Cambridge University Press, Cambridge, 1979) 2 Vols. Reference will be made to the 1 volume 1980 edition; Elizabeth Eisenstein, The Printing Revolution in Early Modern Europe (Cambridge University Press (Canto), Cambridge, 1993).

[2] Eisenstein identified six for print.

[3] I have discussed the qualities or affordances of digital technologies in more detail in my book Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017). The qualities that I identify (and which are summarized above) are:

Environmental Qualities:

                Continuing disruptive change

                Permissionless Innovation

Technical Qualities

                Delinearisation of information

                Information persistence or Endurance

                Dynamic Information

                Volume and capacity

                Exponential dissemination

                The non-coherence of digital information

                Format obsolescence

User Associated Qualities

                Availability, Searchability and Retrievability of Information

                Participation and interactivity

[4] Susan Greenfield “Modern Technology is Changing the Way our Brains Work, Says Neuroscientist” Mail Online, Science and Technology 15 May 2010 http://www.dailymail.co.uk/sciencetech/article-565207/Modern-technology-changing-way-brains-work-says-neuroscientist.html (last accessed 25 July 2016)

[5] Nicholas Carr The Shallows: How the Internet is changing the way we think, read and remember (Atlantic Books, London 2010); Nicholas Carr “Is Google Making Us Stupid: What the Internet is doing to our brains” Atlantic July/August 2008 On line edition http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/ (last accessed 25 July 2016)

[6] For a counter argument to that advanced by Greenfield and Carr see Aleks Krotoski Untangling the Web: What the Internet is doing to you (Faber, London, 2013) especially at pp.35 – 36. For a deeper discussion see Chapter 2 under the heading “The Internet and How we Think.”

[7] New Zealand Bill of Rights Act 1990 section 14.

Getting the Right Quotation

It is a matter of concern when the editor of New Zealand largest circulating newspaper makes an assertion about the source of a quote, and gets it wrong. In saying that I am not suggesting that there are similar shortcomings in other stories or articles, but I am sure that we are all familiar with comments that have been taken out of context or that are good for a soundbyte.

So what has prompted my ire on this subject. The Herald editorial for 21 August 2021 entitled “Lord, what a wonderful quest” opens with the following words

“With due acknowledgement to JRR Tolkien: “Deep in the land of Mordor, in the Fires of Mount Doom, the Dark Lord Sauron forged a master ring, and into this ring he poured his cruelty, his malice and his will to dominate all life.”

Since picking up on these opening words of the epic trilogy 20 years ago, New Zealand has been on a wondrous journey.”

(see https://www.nzherald.co.nz/nz/editorial-lord-what-a-wonderful-quest/2IDJR5MSKEQRZXYLL2EX7CVGI4/)

This assertion is patently incorrect. The first volume of “The Lord of the Rings” which is “The Fellowship of the Ring” opens with a foreword from Tolkien himself, followed by a prologue divided into 4 parts –  “Concerning Hobbits”, “Concerning Pipeweed”, “Of the Ordering of the Shire” and “Of the Finding of the Ring” together with a Note of Shire Records. The first chapter, proper, is entitled “A long-expected party” and commences with the words

“When Mr. Bilbo Baggins announced that he would shortly be celebrating his eleventy-first birthday with a party of special magnificence, there was much talk and excitement in Hobbiton”. No mention of the origins of the One Ring.

Indeed the origins of the Ring and its history begin to develop throughout the story. The genesis of the One Ring develops in “The Fellowship” – Chapter 2 – “The Shadow of the Past” as Gandalf tells Frodo

“In Eregion long ago many Elven-rings were made, magic rings as you call them, and they were, of course, of various kinds: some more potent and some less. The lesser rings were onl;y essays in the craft before it was full-grown, and to the Elven-smiths they were but trifles – yet still to my mind dangerous for mortals. But the Great Rings, the Rings of Power, they were perilous”

The making of the One Ring is not referred to at this stage in the story but the link with the Dark Lord Sauron is mentioned after Gandalf confirms that Frodo’s ring is indeed the One.

“The Enemy still lacks one thing to give him strength and knowledge to beat down all resistance, break the last defences, and cover all the lands in a second darkness. He lacks the One Ring.

The Three, fairest of all, the Elf-lords hid from him, and his hand never touched them or sullied them. Seven the Dwarf-kings possessed but three he has recovered, and the others the dragons have consumed. Nine he gave to Mortal Men, proud and great, and so ensnared them. Long ago they fell under the dominion of the One, and they became Ringwraiths, shadows under his great Shadow, his most terrible servants. Long ago. It is many a year since the Nine walked abroad”

The aspects of the One Ring and some of its qualities are revealed as the story progresses but it is not until “The Council of Elrond” (Book II, Chapter 2 of “The Fellowship of the Ring”) that we are told of the history of the Ring.

“Then all listened while Elrond in his clear voice spoke of Sauron and the Rings of Power, and their forging in the Second Age of the world long ago. A part of his tale was known to some there, but the full tale to none, and many eyes turned to Elrond in fear and wonder as he told of the Elven-smiths of Eregion and their friendship with Moria, and their eagerness for knowledge, by which Sauron ensnared them. For in that time he was not yet evil to behold, and they received his aid and grew mighty in craft, whereas he learned all their secrets, and betrayed them, and forged secretly in the Mountain of Fire the One Ring to be their master. But Celebrimbor was aware of him, and hid the Three which he had made, and there was war, and the land was laid waste, and the gate of Moria was shut”

So it is clear that “The Lord of the Rings” trilogy does not start with the words quoted as suggested in the editorial. Indeed the true origins of the Ring slowly develop until the revelations at the Council of Elrond – a significant and important chapter, for it is here that Tolkien’s new “hobbit story” transforms into an heroic epic.

There are other references to the origins of the Ring in “The Silmarillion” in the section entitled “Of the Rings of Power and the Third Age” and in “Unfinished Tales” in Part III,  Chapter 4 entitled “The Hunt for the Ring”. Tolkien tells of the making of the Ring in a letter to Milton Waldman (“The Letters of J R R Tolkien” Humphrey Carpenter (ed) at p. 152 – 153)

“The Elves of Eregion made Three supremely beautiful and powerful rings, almost solely of their own imagination , and directed to the preservation of beauty: they did not confer invisibility. But secretly in the subterranean Fire, in his own Black Land, Sauron made One Ring, the Ruling Ring that contained the powers of all the others, and controlled them, so that its wearer could see the thoughts of all those that used the lesser rings, could govern all that they did, and in the end could utterly enslave them…….

[Sauron] rules a growing empire from the great dark tower of Barad-Dur in Mordor, near to the Mountain of Fire, wielding the One Ring.

But to achieve this he had been obliged to let a great part of his own inherent power (a frequent and very significant motive in myth and fairy-story) pass into the One Ring”

But what is the source for the quotation attributed to Tolkien in the Herald editorial. It certainly has Tolkien’s “voice” and the facts contained in it accord with the information in “The Lord of the Rings”.

The quotation comes from the prologue to the Peter Jackson adaptation of “The Lord of the Rings” – “The Fellowship of the Ring”. The words are spoken by Galadriel – the words in brackets are in Elvish:

“(I amar prestar aen.)

The world is changed.

(Han matho ne nen.)

I feel it in the water.

(Han mathon ned cae.)

I feel it in the earth.

(A han noston ned gwilith.)

I smell it in the air.

Much that once was is lost, for none now live who remember it.

It began with the forging of the Great Rings. Three were given to the Elves, immortal, wisest and fairest of all beings. Seven to the Dwarf-Lords, great miners and craftsmen of the mountain halls. And nine, nine rings were gifted to the race of Men, who above all else desire power. For within these rings was bound the strength and the will to govern each race.

But they were all of them deceived, for another ring was made. In the land of Mordor, in the Fires of Mount Doom, the Dark Lord Sauron forged a master ring, and into this ring he poured his cruelty, his malice and his will to dominate all life.”

The sentence “In the land of Mordor” is as stated in the movie sound-track. The use of the word “Deep” does not appear in that source. An internet search on the phrase reveals a number of sources all of which repeat the same error.

All that to one side, the words quoted by the Herald editor are from the movie and certainly do not open Tolkien’s trilogy as it appears in print.

This may be seen to be an exercise in pedantry, and perhaps it is. Tolkien scholars (and I rank myself among them) are rather particular about their field of study and the attribution of sources, as is the case in any field of academic study, is important. I have not provided page numbers for the quotes in this piece if only because the number of printings of “The Lord of the Rings” means that pagination varies. I have adopted the system I used in my “The Song of Middle-earth – JRR Tolkien’s Themes Symbols and Myths” citing source and chapter number.

I do not expect a Herald editorial to provide footnotes. But is an accurate quotation and attribution too much to ask?

(Sources consulted in writing this post are J.R.R Tolkien “The Lord of the Rings”; J.R.R. Tolkien “The Silmarillion”; “The Letters of J R R Tolkien” Humphrey Carpenter (ed);J.R.R. Tolkien “Unfinished Tales” (Christopher Tolkien (ed)); Wayne G Hammond and Christina Scull “The Lord of the Rings – A Reader’s Companion”; David Harvey “The Song of Middle-earth: J.R.R. Tolkien’s Themes Symbols and Myths” “The Fellowship of the Ring” Extended DVD Edition – Peter Jackson Director.)

What is Truth? Misinformation and the Edge of the Infodemic – A Commentary

“And what is ‘truth’? Is truth unchanging law? We both have truths. Are mine the same as yours?”

Jesus Christ Superstar

I have given some thought about releasing this paper. The reason for my hesitation is that it could be misinterpreted as a support piece for misinformation. That is not its purpose. My primary concern arises from what I perceive as a shift towards a State-based determinator for truth and, as a corollary, that any perspective or opinion that does not conform to that “truth” is misinformation. In my view the issue of misinformation is a more nuanced one and this paper argues that the solution to dealing with misinformation should be in the hands of individuals who can make their own evaluations of the validity or otherwise of pieces of information before acting upon the. Some of the suggestions that have been made in the misinformation paper under discussion are extremely reasonable and sensible. What I am concerned about is the intrusion of the State into the area of belief and points of view. Freedom of thought (or conscience) has long been a cornerstone of liberal democracy.

Introduction

Censorship is a controversial issue in a modern democratic and liberal society, although it has taken place in one form or another over the centuries. This has included art censorship from the strategically placed drapes on the magnificent Michelangelo frescoes on the ceiling of the Sistine Chapel to the controversy surrounding the Mapplethorpe photographic exhibition in New Zealand, film censorship from All Quiet on the Western Front[1] to Baise-Moi[2] and book censorship such as James Joyce’s masterpiece Ulysses[3] and more recently in New Zealand with Ted Dawe’s Into the River.[4]

Censorship challenges freedom of expression by imposing minimum standards of socially acceptable speech on the contemporary community. Under s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights) everyone has the right to freedom of expression; a right as “wide as human thought and imagination”.[5] Censorship acts as an abrogation of that right, so how is freedom of expression under the Bill of Rights and censorship under the Act to be accommodated? Some guidance is available from the Court of Appeal in the case of Moonen v Film and Literature Board of Review[6].

Moonen held  that there is  a responsibility on the Classification Office and the Board of Review when carrying out their work to explain how a publication falls into the category of publications that Parliament has deemed objectionable. The Classification Office and the Board of Review must also demonstrate why classifying certain publications as objectionable is a demonstrably justified limitation on freedom of speech. Generally the Moonen approach is followed.

New Media Issues

But lately the Chief Censor, Mr. David Shanks, has been calling for a widening of his brief. At an Otago University conference about ‘Social Media and Democracy’ in March 2021, Mr. Shanks told the conference the way we regulate media is not fit for the future.

“We can be better than this. I think there’s some very obvious moves that we can do here to make the current regulatory system and framework more coherent for a digital environment,” he said.[7]

The “Misinformation” Study

As part of an overall review of regulatory structures surrounding harmful information dissemination, the Government released a discussion paper on hate speech and at the same time the Chief Censor released a paper entitled “The Edge of the Infodemic: Challenging Misinformation in Aotearoa” which in essence is a survey about how citizens are concerned about misinformation. The internet and social media are identified as key sources – while experts and government are trusted more than news media. 

The Chief Censor says it shows the need for urgent action. But the question must be asked – why? Do we need the government or some government agency to be the arbiter of truth? Are we so uncritical that we cannot discern misinformation from empirically based conclusions?

The concerns about new media are not new. Many of the criticisms of the Internet and social media levelled by the Chief Censor have been articulated in the past.  Speaking of newspapers Thomas Jefferson expressed an acidic concern that editors “fill their newspapers with falsehoods, calumnies and audacities”.[8]

What is seen as a problem seems to be a difficulty in accepting that as many as there are people there are opinions. One wonders whether the questions properly addressed the issues. The findings of the report must be concerning. New Zealanders tend to distrust online sources of information.

Only 12 percent had high trust in news and information from internet and social media users – and 83 percent think this group frequently spreads misinformation on purpose.

But 79 percent also said they get news or information from social media and also use it to verify information.

The report found New Zealanders have a relatively high level of trust in news and information from scientists, researchers or experts (78 percent) and government agencies and officials (64 percent).

Six out of 10 respondents reported high trust in New Zealand’s news media – a more favourable result than the responses recorded for overseas news media.

But these findings beg the question I have already raised. Are we talking about facts or are we talking about opinions. Even facts can be “spun” to fulfil a particular purpose and can be interpreted in a number of ways. The facts remain the same. The interpretations may differ. And this is important in a vibrant and developing society. The “truth” for one may not be a “truth” for another.

The concerns that the report advances have been derived from an extensive survey that has been conducted. The findings of the survey lead inexorably to the conclusion that “something must be done” and I would suggest that the “something” involves the control or monitoring of information. And it must be of concern that the self and statutorily described[9] censor is driving this.

So what does the report tell us. I state the findings and my observations in italics follow each one.

First, it is common for New Zealanders to see news and information they think is false or misleading. Opinions differ as to what counts as misinformation, but one topic identified as a source of misinformation surrounds Covid 19. Another concern is that this misinformation is influencing people’s views about things like politics, public health and environmental issues, and many see misinformation as an urgent and serious threat.

What is apparent from this concern is that misinformation is recognised. This would seem to suggest that those who contributed to the survey are still in possession of the reasoning and critical faculties and can distinguish valid information from rubbish. The volume of misinformation may drive a concern but what does it threaten. This question seems to be unanswered.

But arising from this is another more fundamental issue and one that I have already alluded to – what is misinformation. Is it a skewing of facts – something that politicians are skilled in although for them it is called “spin” – or is it a statement of opinion. One wonders how many statements of opinion are taken as fact, especially if the reader or listener or viewer agrees with the opinion.

Secondly New Zealanders tend to distrust online sources of information generally, and this is especially true of social media. Many New Zealanders think social media users and corporations often spread false and misleading information intentionally. At the same time, the internet is the most popular source of news and information, while also being a reference point to verify, fact check or confirm this information.

The first point is a valid one. Do not implicitly trust everything that you see online. With a medium like the Internet – and social media platforms – everyone has a voice. Whereas mainstream media could be selective, had verification duties and are subject to rules about balance and a disciplinary process such as the Broadcasting Standards Authority or the NZ Media Council, social media does not. Thus it follows that statements by individuals on social media platforms should at least be taken with a grain of salt and should be subject to critical scrutiny and verification.

Whether online or offline, most New Zealanders tend to trust information from more traditional sources like government officials, scientists and the New Zealand news media. However, the research shows that people with higher trust in online only sources of information – and who use these sources more often – are more likely to express belief in statements associated with misinformation.

This probably says more about the critical faculties of those who rely on online sources for their information. And this goes to a lack of development of intellectual rigour that goes back to the education system, together with a level of naivete that would suggest that too many people accept anything without question or without careful analysis. It is not the source of the information that is to blame. It is the uncritical stance of the reader that is the problem.

The report then goes on to widen the problem with some rather sweeping generalisations.

Misinformation is widespread and affects everyone. This is true regardless of age, gender, ethnicity or other characteristics.

Subject to defining misinformation (which I discuss below) there is no doubt that all facets of information, true or false are widespread. Does this affect everyone? If what is meant is “does everyone come into contact with misinformation” there is certainly that potential. But if the meaning of the word “affect” is to influence I would have some quibble about the suggestion that misinformation influences everyone. Once again this has more to do with the critical analysis of information, but I consider this conclusion to be overly broad

It’s relatively common for New Zealanders to express belief in at least some ideas that are linked to misinformation – ideas which are not backed by the best available evidence we have.

I would be very interested to see the evidence for this statement and once again it speaks more to the naivete and lack of critical rigour on the part of the audience. And, of course, even a bad idea may be worth consideration if only to analyse it and discard it. The problem I think lies in the use of the word “belief” which suggests something other than an evidence based or empirical conclusion

When people rely on misinformation to make important decisions it can have a harmful impact on the health and safety of our communities. It can also affect us on a personal level, contributing to anxiety, anger, and mistrust.

Agreed. But the issue is the reliance that is placed on misinformation and once again – at risk of repeating myself ad nauseum – much depends upon the critical faculties and analysis employed by the audience. If people choose to make important decisions without properly analysing the source of the evidence supporting those decisions then that is a matter for them.

People often take action themselves in response to misinformation – such as searching different sources to see if information is accurate, looking at more established news sources, or talking about it with people they trust.

New Zealanders also see this as a societal problem that requires more action. They have differing views on who should do this and how. Many think government, news media and experts have the biggest role in dealing with the spread of misinformation, but that individual internet users and social media corporations also have an important role.

Many New Zealanders see the Government as the solution to problems. Rather I agree that responsibility for ascertaining whether content is information or misinformation should the in the hands of the recipient. I agree that individual internet users and social media users have a role – but it is not for the social media corporations to vet content or carry out some moderating activity over content. I base this comment on the fact that Internet based information and indeed the communications paradigm it has introduced means that we must recognise that paradigm shift and consider regulatory solutions in light of it.

What is “Misinformation”?

The problem of “misinformation” and the concerns that are expressed in the report depend very much upon the definition of the term. The Report offers some brief definitions. There is a specific rider to the definitions offered which narrow the concept down to something that is potentially harmful. Other definitions are quite a bit wider.

The Report definitions are as follows:

Misinformation: false information that people didn’t create with the intention to hurt others.

Disinformation: false information created with the intention of harming a person, group, or organisation, or even a country.

Mal-information: true information used with ill intent.

The definitions set out are quite specific and share a similar characteristic and that is that the spread of the information (misinformation, disinformation or mal-information) is accompanied by a specific intention and that is to harm or hurt others[10].

The Report goes on to say

“Misinformation is nothing new, but there are increasing concerns worldwide about the prevalence of misinformation – especially online – and its potential to impact democracy, public health, violent extremism and other matters. We’ve seen how the spread of false and sometimes hostile misinformation and conspiracy theories continue to impact on our whānau and communities during the Covid-19 pandemic, and how extremist talking points and ideology can contribute to real-world violence such as the March 15 attacks in Christchurch.”

Misinformation is defined in the Oxford English dictionary as “false or erroneous information”, and as the report states, the existence of false or erroneous information is nothing new. Falsity implies that the communicator of the information is aware of the falsehood but perpetrates it nonetheless. Erroneous implies error or mistake which lacks the element of wilful deception.

Putting to one side the emotive reference to the March 15 attacks – and there is no evidence that the terrorist was influenced by misinformation – the concern that is expressed is that false, erroneous and sometimes hostile information and conspiracy theories have an impact. As it proceeds the Report seems to lose sight of the qualification that harm must be intended and seems to focus more upon the falsity or error of the information circulated.

Two issues arise from this. The first is that the recipient of information must be critical of the information received and subject it to analysis to determine whether it is “true” or “false”.

The second is that most information disseminated, especially across social medias platforms, is opinion or “point of view” which means that the disseminator is coming from a particular standpoint or is writing with a particular agenda. It would be incorrect for anyone to suggest that the opinion pieces in the New Zealand Herald by columnists such as Simon Wilson, Richard Prebble, Michael Cullen or Mike Hosking are anything else but that. They are interpretations of fact taken from a particular standpoint. It is up to the reader to determine whether first, the facts bare valid and secondly whether the opinion is therefore valid. Finally, if the answer to both questions is in the affirmative there is nothing to compel the reader to accept the opinion. The reader is free to disagree with it.

An associated issue arises and that is the guarantee of the freedom of information contained in section 14 of the New Zealand Bill of Rights Act 1990. The provisions of section 14 are wide. They refer to the imparting and receiving of information – thus widening the usual understanding of freedom of expression to be the imparting of information. It is significant too that section 14 does not qualify the word “information”. There is no suggestion that the information must be true or that it cannot be “misinformation.”

Information is that which informs. To inform someone is to impart learning or instruction, to teach or to impart knowledge of some particular fact or occurrence. The traditional meaning of information suggests an element of factual truth and thus misinformation is erroneous or incorrect information. One interpretation of section 14 is to use the traditional meaning of information which suggests an element of fact based truth. A wider interpretation would include material based on mistaken facts. And then, of course, there is the question of opinion which is a view of one person about a certain set of circumstances.

But in the field of information, misinformation, fact and truth there will always be disputes. Some will be trivial. Others will be significant. Some may be wrong headed. Others may be designed to mislead. Given these varieties of information, what is proposed that we should do about what is referred to in the report as the “infodemic.”

An Internal Inconsistency?

The Infodemic paper contains the following critical acknowledgement.

Misinformation is not in and of itself illegal – and it would be impractical and counterproductive to make it so. It should not be unlawful to express a view or belief that is wrong, or that is contrary to prevailing evidence and opinion.

There are certain types of misinformation with which the law should be involved such as information which promotes criminal or terrorist activity and may fall within the existing ambit of the Films Video and Publications Classification Act, the Human Rights Act or the Crimes Act.

These legal restrictions are perfectly legitimate. They are very limited and are justifiable limitations on the right of freedom of expression guaranteed by section 14 of the New Zealand Bill of Rights Act. But misinformation does not fall within their ambit, nor should it as acknowledged by the Report.

This then raises the issue – what is the problem? Is the raison d’etre for the paper to identify an issue and sound a warning. Or does it go further. The answer, in my opinion, lies in the latter. Realistically the paper recognises that misinformation will never be eliminated nor should it. But in keeping with Mr. Shanks concerns expressed in 2019, the real target for stemming the infodemic lies in dealing with the disseminators – and by that I mean not the individuals who spread misinformation but the digital platforms that enable wide dissemination.

Addressing the Problem

I shall outline the proposals advanced by the Infodemic paper but would offer a note of caution. Some of the proposed solutions are based on existing regulatory or content assessing models. They ignore some of the essential properties of digital systems which make regulation in the Digital Paradigm and completely different exercise from existing regulatory models.

I have discussed the problems of regulation in the Digital Paradigm elsewhere and in some detail[11]. Suffice to say that to engage in any form of content control in the Digital Paradigm is difficult given that the dissemination of content is inextricably entwined with the medium of distribution.

Marshall McLuhan’s aphorism “The Medium is the Message” states the problem, albeit somewhat opaquely. To attempt to control the message one must first understand the medium. This is often overlooked in discussions about regulation in the Digital Paradigm. It is something of an exercise in futility to attempt to apply the models or standards that are applied for what is essentially mainstream media regulation. And to treat online platforms, irrespective of their size and market dominance, in the same way as “analog” or mainstream media platforms ignores the fact that online platforms occupy a paradigmatically different communications space from mainstream media platforms like newspapers, radio and television.

With that cautionary observation I shall consider the proposals in the Infodemic paper.

The report offers five possible avenues for dealing with what it refers to as the Infodemic.

  1. Informing and empowering New Zealanders – this solution is expressed in the report as a means by which misinformation about Covid 19 and vaccinations may be countered. Of course, from a general perspective this is a wider issue than just misinformation and conspiracy theories about the pandemic. Many New Zealanders are concerned about the impact of misinformation across a broad range of topics, including the environment and racial tolerance.

Some of this is based on mistrust of accurate sources of information and it is suggested that steps should be taken to help those who are affected by misinformation and conspiracy theories.

This, of course, is based on the assumption that there is an empirical basis which suggests that alternative views are wrong and should not be believed. And this harks back to the quotation at the beginning of this piece. Are my “truths” the same as yours.

The concern that I have about this proposal is the suggestion that there is but one truth, one “authorised version” to which adherence must be given. It may be easy to prove that a Covid vaccine is effective on the basis of scientific analysis and empirical proof. It may be less easy to prove matters which travel in the realms of faith and belief. And the problem with “authorised versions” is that they become of “approved version” with the result that other “truths” may become sidelined and dismissed to the point where they become heretical.

  1. Education – this is a solution that I find appealing. Media literacy and critical thinking skills can help us sort fact from fiction and interpret information. These skills can also help build resilience in the community against misinformation.

A central government campaign could reach many people but is unlikely to influence people and communities who already have lower trust in government. And should it come from the government in any event – a government which may have its own political agenda?

Education in schools is also needed to empower and equip our young people to recognise and challenge misinformation. Our education system already aims to provide children and young people with the critical thinking skills necessary to navigate a complex world.

  1. Content Moderation and Industry Responsibility – Recent research suggests that misinformation travels through the internet much more rapidly than accurate information. This is one of the realities of internet based information. In the same way that the printing press enabled the increased dissemination of information so the Internet does this in an enhanced and exponential way.

The algorithms that select and promote posts and information on many social media and digital platforms often select information that is ‘high engagement’ – that is, information that attracts more comments, shares and likes. Misinformation can often be high engagement, as it can easily be more sensational, or generate stronger emotions. These algorithms, it should be observed, are also used by mainstream media who use online platforms and accounts for the “ranking” that reports may have on a news website.

Online platforms other than those used by mainstream media who may be subject to the New Zealand Media Council  are not generally subject to the same standards around accuracy, fairness and balance that newspapers, broadcast or other news media are.

However, as I have suggested above, it is a mistake to attribute the responsibilities of mainstream media platforms to online platforms. They are paradigmatically different.

The first point is that content that is broadcast or published in mainstream media goes through an editorial process. Content that is posted on social media does not, nor should it be the duty of the provider of the platform to moderate another person’s content that has been posted.

The second point is that content moderation is a difficult process in the digital paradigm given that essentially social media platforms handle large quantities of data that are later rendered into soe recognisable of comprehensible form. Of course, algorithms can and should be used to trap dangerous content that advocates violent harm or action.

It is suggested that there should be engagement with digital platforms in a co-ordinated way along with industry codes of practice which could result in a consistent set of expectations and approaches in New Zealand.

Once again this suggests a “one truth” solution which creates difficulties is a society with a plurality of opinions.

One suggestion is for users to “call out” and report misinformation, but much depends on how this is done. The development of the “cancel culture” regrettably is intolerant of different strands of opinion and I fear that “calling out” is not the way to go. Rather engagement in rational debate and proposing an alternative would allow for the marketplace of ideas to come into play and separate the wheat from the chaff.[12]

  1. Regulation and Policy

Once again the proposal seeks to compare mainstream media with a paradigmatically different information system that is the Internet.

The statement is made as follows:

“While most misinformation is not illegal, much of it would be in breach of industry standards concerning accuracy. Such standards apply to broadcast services (under the Broadcasting Act), print media (under the standards administered by the New Zealand Media Council) and advertising (under the Advertising Standards Authority). Most of the broadcast and industry self-regulatory models were not set up to address the challenges presented by the digital age such as misinformation shared on platforms like Facebook or YouTube.”

Then it is suggested that a consistent regulatory approach across non-digital and digital misinformation alike is needed.

If I understand it correctly what is being suggested is that the regulatory approach applicable to mainstream media, which developed in an entirely different paradigm from digital media, should be applied across the board.

This ignores that fact that most if not all of the content on digital media and especially social media is user generated. In fact social media allows everyone who has an internet connection to have a voice. Whether or not any attention is paid to that voice is another matter. But within a democratic society, this opportunity has never before been available. And if one looks, for example, at an autocratic state such as the Peoples Republic of China with its severe restraints on freedom of expression and its extreme regulation of Internet content, the question must be asked – is that the road that we wish to travel?

  1. Research and evaluation -The understanding of what needs to be researched and evaluated is becoming clearer, and this should be an ongoing process. The information environment will continue to rapidly evolve – often in ways no-one can predict. As new evidence emerges, interventions will change as well.

This solution seems to suggest that the reason for research and evaluation is to determine interventions and regulatory responses. This must be something of a concern in light of the comment earlier made that misinformation is not illegal and nor should it be.

Conclusion

There are two major issues that arise from the paper.

There is no doubt that misinformation can be problematical. It is, however, one of the attributes of a society that values diversity of opinions and point of view and that values and celebrates a plurality of beliefs.

Eroding Freedom of Expression?

In some respects it is difficult to discern the target in the misinformation paper. Clearly it has been inspired primarily by the conflicting information that has been swirling around about aspects of the Covid crisis. But there is more including references to the 15 March 2019 terror attacks and the various issues surrounding the introduction of 5G, QAnon and the United States polarised society and conspiracy theories.

But there seems to be a deeper issue and that surrounds calls that have been made to regulate the Internet or at least impose some restraints on the activities of social media platforms. Part of the problem with social media platforms is that they allow for a proliferation of a variety of opinions or interpretations of facts which may be unacceptable to many and downright opposed to the beliefs of others.

Governments and politicians, although they are great users of social media platforms, cannot abide a contrary message to their own. In a democracy such as New Zealand it is something with which they must live although there is little hesitation at nibbling away at the edges of expressions of contrary opinions.

Characterising them as “misinformation” is a start down the road of demonisation of these points of view. At the same time, following the 15 March massacre, the Prime Minister of New Zealand instituted the “Christchurch Call” – an attempt to marshall international support for some form of Internet regulation. No laws have been passed as yet and social media organisations, seeing which way the wind is blowing, have made certain concessions. But it is, in the minds of many, still not enough.

In New Zealand a review of media regulatory structures lies behind the “misinformation” study along with the ill-considered and contradictory proposals about “hate speech”. The assault on freedom of expression or contrarianism is not a frontal one – it is subtle and gradual but it is there nonetheless. It is my opinion that the real target of the “misinformation” study is not “misinformation” but rather the expression of contrary points of view – however misguided they might be. And that is a form of censorship and it is therefore not surprising that this move should come from the Chief Censor.

A Democratic Solution

It would be to tread a dangerous path to place the determination of “good information” and “bad information” in the hands of the government or a government organisation. Only the most extreme examples of misinformation which may do demonstrable harm such as objectionable material or terrorist information should be subject to that level of moderation. To add “misinformation” as a general category without precise definition to the sort of material that is objectionable under the Films, Videos and Publications Classification Act would be a retrograde and dangerous step.

There is already a form of content moderation in place, run through the Department of Internal Affairs which makes a filter available to Internet Service Providers to block certain content.[13]

Of the proposals suggested above it will be apparent that I favour as little interference with online platforms as possible, and I do not support anything more that minimal interference with content that is not demonstrably harmful and am of the view that what people wish to see as a “truth” should be left to the individual to make his or her own judgement.

The problem with “misinformation” has been heightened by the conflicting points of view surrounding the Covid crisis – indeed the paper itself picks up on this by describing the misinformation problem as an “infodemic” – the 2020 US Presidential election and some of the conspiracy theories that have been circulating courtesy of Qanon and the like.

But it is not a problem that warrants government or regulatory interference and indeed it should be noted that the Department of Internal Affairs review of media and online content regulation focusses upon content that is harmful.

Misinformation may misinform but much of it depends upon the reader or listener’s willingness to stand apart and subject the content to critical analysis. The problem, however, is that for many people they believe what they want to believe and their truths may not be those held by their neighbours.


[1] Chris Watson and Roy Shuker In the Public Good? Censorship in New Zealand (Dunmore Press, Palmerston North, 1998) at 35.

[2] Re Baise-Moi [2005] NZAR 214 (CA).

[3] United States v One Book Called “Ulysses” 5 F Supp 182 (SD NY 1933); United States v One Book Entitled Ulysses by James Joyce (Random House Inc, Claimant) 72 F 2d 705 (2d Cir 1934).

[4] Re Into the River Film and Literature Board of Review, 14 October 2015.

[5] Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [15].

[6] [2002] 2 NZLR 754 (CA)

[7] “Battle Against Online Harm beefs up censor’s power” Media watch 21 March 2021 https://www.rnz.co.nz/national/programmes/mediawatch/audio/2018788055/battle-against-online-harm-beefs-up-censor-s-power

[8] He also stated on another occasion “Were it left to me to decide whether we should have a government without newspapers, or newspaper without government, I should not hesitate a moment to prefer the latter”

[9] Films Videos and Publications Classification Act 1993 section 80(1).

[10] In some respects this resembles the types of actionable digital communication under the Harmful Digital Communications Act 2015. In both the civil and criminal spheres under the act there must be harm which is defined as serious emotional distress. The report does not go into specifics about what is required to hurt or harm others.

[11] See David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age” (Hart Publishing, Oxford 2017) esp. at Chapter 2.

[12] As at the time of writing it should be noted that a comprehensive review of media content regulation in New Zealand was announced by Minister of Internal Affairs, Hon Jan Tinetti, on 8 June 2021. The review is managed by the Department of Internal Affairs, with support from the Ministry for Culture and Heritage. The review aims to create a new modern, flexible and coherent regulatory framework to mitigate the harmful impacts of media content, regardless of how it is delivered.

The framework will still need to protect and enhance important democratic freedoms, including freedom of expression and freedom of the press.

It correctly observes “Our existing regulatory system was designed around a traditional idea of ‘analogue publication’, such as books, magazines and free-to-air TV, and does not have the flexibility to respond to many digital media types. As a result, it addresses harm in a shrinking proportion of the media content consumed by New Zealanders and provides little protection at all for digital media types which pose the greatest risk for harmful content.” See https://www.dia.govt.nz/media-and-online-content-regulation (Last accessed 9 July 2021)

[13] https://www.dia.govt.nz/Censorship-DCEFS (Last Accessed 9 July 2021)

“Hate Speech” Proposals – A Consideration

Abstract

This paper examines the Report of the Royal Commission of Inquiry into the 15 March 2019 terrorist attack in Christchurch, New Zealand and focusses on proposals to reconsider provisions of the existing law about “hate speech”. The paper considers the existing law contained within the Human Rights Act 1993 and then goes on the consider the critique of the existing law undertaken by the Commission. The paper also considers the Commissions proposals for a “hate speech” offence to be incorporated in the Crimes Act – a proposal which, in the opinion of this commentator, is too wide and does unnecessary violence to the freedom of expression. An alternative and more limited offence is proposed which fulfils the objectives stated by the Commission yet maintains an environment for the robust level of discourse so vital in a free and democratic society.

Introduction

The Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch mosques on 15 March 2019 is lengthy. It is divided into a number of parts. Part 9 deals with issues surrounding social cohesion and embracing diversity.

Social cohesion is seen as a way of preventing or countering extremism. Cohesive and resilient communities are better placed to resist and counter the risk of radicalisation and mobilisation to violent extremism and terrorism. Tolerant and, ideally, inclusive, societies are more able to address and prevent the polarisation and disenfranchisement that can contribute to a rise in extremism.[1]

Hate speech and hate crimes are seen as challenges to a socially cohesive and tolerant society and the Commission devotes Chapter 4 of Part 9 to the issue. The Commission points out that a hate crime is 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 that particular religion.[2]

It acknowledges that hate speech is a less precise term.[3] The Commission uses the expression hate speech to mean speech that expresses hostility towards, or contempt for, people who share a characteristic[4]. Legislation that creates hate speech liability (which can be civil or criminal) specifies what types of speech are captured and characteristics that are protected[5].

The Commission acknowledges that addressing and criminalising hate speech creates a significant tension with the freedom of expression and care is required in developing the legislative approach. There are a number of purposes and other tensions that the creation of a hate speech offence poses including:

  • a) the promotion of social cohesion;
  • b) the desirability of limiting speech that encourages hostility that may result in harms such as discrimination and abuse, fears of physical harm and actual violence;
  • c) the importance of freedom of expression; and
  • d) ensuring that the law can practically be enforced.[6]

The Commission observes[7] that there are five existing statutes that impose liability and provide remedies for hate speech. They are:

  • a) the Human Rights Act 1993;
  • b) the Summary Offences Act 1981;
  • c) the Harmful Digital Communications Act 2015;
  • d) the Broadcasting Act 1984; and
  • e) the Films, Videos, and Publications Classification Act 1993.

Although the Commission notes a link between hate speech and hate crime it correctly considers hate crime and hate speech as different legal concepts. However, they are linked by underlying commonalities and, in terms of their consequences, sit on the same spectrum of behaviours.[8] In this paper, however, I shall confine myself to a consideration of the Commission’s approach to hate speech.

In its recommendations the Commission suggests that the offence created by section 131 of the Human Rights Act 1993 be modified and incorporated into the Crimes Act. In this paper I shall consider this proposal, the rationale advanced for it and the problems that the Commission’s proposal may create if enacted. In brief I suggest that the proposal by the Commission is too wide and unnecessarily interferes with the freedom of expression. I conclude by advancing an alternative that will meet the objectives stated by the Commission and do as little violence to the freedom of expression as possible.

Human Rights Act Background

A substantial part of the discussion of hate speech centres upon two provisions in the Human Rights Act 1993[9]. Section 61 addresses racial disharmony and sections 131 which creates a criminal offence for speech that is used with “intent to excite” hostility (or other consequences). A prosecution for this offence can be brought only with the consent of the Attorney-General.

Section 61 provides

61 Racial disharmony

(1) It shall be unlawful for any person—

(a) to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or

(b) to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive,or insulting; or

(c) to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,—

being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.[10]

Section 61 is limited in its application  – “on the ground of the colour, race, or ethnic or national origins of that group of persons.”[11]

The question of race or ethnic or national origins was considered in the case of King-Ansell v Police[12] which, although it dealt with the equivalent of section 131 under the then Race Relations Act, is useful in its discussion of the wording of section 61 – colour, race, or ethnic or national origins of that group of persons which is replicated in section 131 . The issue was whether Jews fell within the scope of the Act or whether, as claimed by the appellant they were a religious group.

The Court held that religious discrimination was outside the scope of the Race Relations Act but that ethnic was to be given a meaning within this scope. The Court noted that the answer needed to ensure that the concept was interpreted in a broad and non-technical sense while also preventing a meaning which would take the operation of the act outside a broad interpretation of racial discrimination.

While it was commonly accepted usage in New Zealand that ‘ethnic’ is related to race and is also accepted as meaning common racial, cultural, religious or linguistic characteristics that would, according to Richmond P, render the Act too broad. He concluded that ‘ethnic’ should the taken to mean ‘pertaining to race or nation’, a proposition for which he finds support in Ealing LBC v. Race Relations Board.[13]

Considering expert testimony by anthropologist and sociologist Dr MacPherson, Richmond P concluded that while Dr MacPherson’s definition of ‘ethnic group’ is too wide for the Act, it did inform an appropriate definition and conclusion in relation to Jews. He concluded that the Race Relations Act covered groups of persons who have common ethnic origins, which include groups “marked off from the generality of our society by shared beliefs, customs and attitudes”.

“The ultimate genetic ancestry of any New Zealander is not susceptible to legal proof. Race is clearly used in its popular meaning. So are the other words. The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.”[14]

Richmond P noted that ethnic origin is therefore established by reference to shared customs, beliefs, traditions and characteristics derived from a common or presumed common past. A combination which gives them a ‘historically determined social identity based … on their belief as to their historical antecedents.’[15]

He concluded that ‘Jewishness’ is much more than just religion and therefore does fall into the category of an ethnic group.

However it is doubtful that this reasoning could extend to adherents of Islam.

The quality of the communication and whether it was likely to excite hostility was considered in the case of Wall v Fairfax.[16]In that case there was a complaint about two cartoons published around the food in school programme, that the complainant alleged were likely to promote racial disharmony. The case went on appeal from a decision of the Human Rights Review Tribunal.

In dismissing the appeal, the High Court held that the s 61 publishing prohibition applied only to expression which inspired enmity, extreme ill-will or was likely to result in a group being despised. An expression that was simply offensive or insulting was not likely to incite disharmony.

Section 61 focused on the nature of the inter-reaction between groups of citizens, not the response of the target group. It set a two-stage test: was the publication “insulting” and, if it was, was it “likely to excite hostility against” Maori and Pasifika or “likely to bring [Maori and Pasifika] into contempt”. The ordinary meaning of the words used in s 61 reinforced the conclusion that the behaviour targeted was at the “serious end of the continuum of meaning”.

The Court then went on to consider whether or not the publication fell within the ambit of the Act. Although offensive, the two publications were not likely to excite hostility or contempt at the level of abhorrence, delegitimisation and rejection that could realistically threaten racial disharmony in New Zealand. The key elements in assessing the effect of the publication were context and circumstance.

The relevant publications were editorial cartoons. Cartoons formed part of a rich tradition by which cartoonists expressed views which may differ markedly from those expressed more formally elsewhere in a newspaper. Cartoons had a “special licence to make exaggerated and comic criticisms of public figures and policies”. There were Press Council decisions upholding a cartoonist’s right to use hyperbole in the expression of strong, unpopular viewpoints even if they caused offence, and that was a view which resonated through many liberal democracies.

Cartoons could operate like a mirror reflecting back at the reader some of the more intolerant attitudes held in parts of the community. Care was needed before identifying a cartoon as unlawful. Canadian authorities had observed that in the normal course of events satire would not likely constitute hate speech.

The cartoons had satirical elements but their audience were not likely to be excited to hostility or brought to a position of contempt by the depictions when considered in that context. The cartoons were two contributions only, to a wide-ranging public debate about an important issue of public policy.

The effect of the publication was to enliven debate about the effectiveness of a food in schools programme, as well as wider issues about the realities of life in deprived communities and the depiction of Māori and Pasifika in the media.

The negative cartoon depictions of Māori and Pasifika were not likely to excite even persuadable people to hostility or feelings of contempt towards them. The “space” within which issues could be raised and debated had to be kept as broad as possible. Section 61 recognised that it was not in the interests of society to confine publications to those which did not shock, offend or disturb.[17]

The language in section 61 should be applied “only to relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised”.[18]

The Wall case is useful because it analyses the difference between offensiveness, shocking or disturbing speech which it considered was not captured by the Act and the level of seriousness of the speech to bring it within the scope of the legislation

I shall now turn to consider section 131.

Section 131 creates an offence of inciting racial disharmony. The section reads as follows:

131 Inciting racial disharmony

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $7,000 who, with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons,—

(a) publishes or distributes written matter which is threatening, abusive, or insulting, or broadcasts by means of radio or television words which are threatening, abusive, or insulting; or

(b) uses in any public place (as defined in section 2(1) of the Summary Offences Act 1981), or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting,—

being matter or words likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

Elements

In a prosecution under section 131, the prosecution is currently required to prove:

  1. a publication that is “threatening, abusive, or insulting”;

2. an intent to “excite hostility or ill-will against, or bring into contempt or ridicule” people sharing a protected characteristic; and

3. that the publication was “likely to excite hostility or ill-will against, or bring into contempt or ridicule” people sharing that protected characteristic.

The drafting of the section reflects the style of the time and appears rather complex.

The first element addresses the nature of the publication (s.131(1)(a) or the words used in a public place (s. 131(1)(b). The quality of the language of concern must be threatening, abusive or insulting. These words, in and of themselves, would not fall within the definition of hate speech. Threatening language involving possible physical consequences is already addressed in the Crimes Act or the Summary Offences Act. Insulting or abusive language unassociated with physical threat  may be offensive or disturbing but hardly warrant the intervention of the criminal law.

It is when the second element is considered that the nature of the speech is further refined. The use of the threatening, abusive words must be accompanied by a specific intent – that of exciting hostility or ill-will against, or bring into contempt or ridicule” people sharing a protected characteristic

Finally, there is the element of likelihood. Were the words used, accompanied by the specific intent likely to do what the speaker or publisher intended. This involves an objective evaluation of the words including the context within which the publication or use of the words under s.131(1)(b) took place.

The latter scenario is quite straight forward and involves a consideration of the context of the meeting or public forum at which the words were used. The situation under s. 131(1)(a) is slightly more problematic in that elements (a) and (b) may have been completed but in circumstances when the effect of the words on a third party may not have taken place. Thus the contextual element of likelihood of excitation of hostility may not be complete. An example may be given of the publication of words with a specific intent in a publication that may be distributed but not read or on a website that is not accessed. Rather akin to the unobserved tree that falls in a forest[19], such a communication is passive in nature. Only when there is an identifiable recipient of the communication is the circle commenced in section 131 closed.

The Commission concluded that the third element was not necessary. In a situation where the first two elements can be made out (a threatening, abusive or insulting publication and an intent to “excite hostility”), we see the third element as having little or no bearing on whether the conduct is sufficiently culpable to justify in a charge. It is thus unnecessary. On this analysis words published with a specific intent would be sufficient to create the offence even although there was either no audience nor readership. Thus the utterance plus intent would be sufficient to create the offence. This would significantly widen the scope of the offence.

Looking at it another way, the Royal Commission in collapsing the nature of the publication with the likelihood of what it might do overlooks the fact that publications may be threatening, abusive or insulting but do not go so far as to have the potential or the likelihood to excite hostility etc.

Even if I have the intention of exciting hostility or ill-will against people of a particular characteristic my publication may well be unlikely to achieve that goal or fulfil what I intended.

Thus in my view it is necessary that the element of objective assessment of the potential for the exciting of hostility or ill will be present if only to ensure that the intention is capable of fulfilment. Otherwise one may be convicted of merely publishing threatening or abusive material with an associated intent that may not be capable of being achieved.

Excite or “Stir Up”

The Commission commented on two other aspects of the section. One was the use of the word “excite”. It observed that the verb “excite” is used in a slightly unusual sense and suggests causation. This means that an “intent to excite” cannot be established without showing an intention to either cause “hostility or ill-will” that did not previously exist, or enhance or increase pre-existing “hostility or ill-will”. It logically follows that preaching hatred to the already converted would not breach section 131.

The Commission considered that the verb “excite” should be replaced with the words “stir up” which is used in corresponding legislation in the United Kingdom. The “preaching hatred to the converted” issue could be resolved by adding the verbs “maintain” and “normalise”. Neither of these proposals are controversial although some care would have to be taken. A person who was restating an existing belief about race, national or ethnic origins to a group of like-minded people could be prosecuted for merely stating that belief. Does such a restatement actually stir up hostility or would the words have to call for hostile action?

Much would also depend upon whether the maintaining or normalizing required a specific intention. In addition the potential for infiltration by investigators or other aspects of the surveillance state to prosecute the “preaching to the converted” could well arise.

The second aspect dealt with an extension of the protected characteristics currently in the Human Rights Act.

Protected Characteristics

The Commission suggests that religious belief should be a protected characteristic. It correctly notes:

There are distinct freedom of expression issues if sharing a particular religious belief system is treated as a protected characteristic. There is a strong tradition in New Zealand (as in many other countries) that religious belief systems are open to debate and that this can be vigorous. Strongly expressed challenges to a religious belief system may also amount to criticism of those who adhere to it. It is not easy to determine where to draw the line.[20]

It should be noted that even within the same belief system or religion there are divisions and subsets of belief. The Christian religion is made up of a number of denominations and even within denominations there may be differences and dispute.[21] Islam itself has a number of denominations the best known of which are the Shi’ia and Sunni.[22]

The Commission advanced the following reasons for the inclusion of religious belief as a protected characteristic.

a) under section 9(1)(h) of the Sentencing Act, “religion” is a protected characteristic;

b) in other jurisdictions, similar legislative provisions have been amended to include religion as a protected characteristic;

c) it would bring New Zealand into compliance with article 20(2) of the International Covenant on Civil and Political Rights

d) it is not logical that affiliation with Judaism and Sikhism are protected characteristics but affiliation with other religions such as Islam or Christianity are not;

e) the very clear overlap between Islamophobia and racism (in that many victims of Islamophobic harassment are people of colour); and

f) most significantly, the current realities of Islamophobia and the association between hate speech and terrorism.

In the UK legislation the vigorous debate that accompanies religious belief is reflected in section 29J of the Public Order Act 1986 (United Kingdom), which was enacted when “stirring up” religious hatred was introduced as an offence in England and Wales. This section provides:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

Could that be a line that could be drawn. The Commission thought not in that it would make prosecutions for stirring up religious hatred practically impossible. The Commission hopefully observed:

We consider that concerns about freedom of expression are met with a high threshold for liability, requiring the prosecution to establish an intention to stir up, maintain or normalise hatred towards members of the protected group and specifically criminalising explicit and implicit calls for violence against such a group.[23]

There are two issues that arise from this. The English exception recognizes the nature of disputation in matters of faith. As noted, vigorous disputation has been a characteristic of all religions and the disputes can become very heated. The English exception allows for expressions of antipathy towards other faiths. Within the Christian and Islam faiths the word infidel is used to describe an unbeliever. Historically that designation meant that the unbeliever may be killed without fear of consequence for murder in either the secular or spiritual context.

The second issue is more fundamental. The Commission recognizes this in referring to a high liability threshold. In my view this threshold – if applied – would have to be clearly defined. Any interference with freedom of expression must clearly set the boundaries of what is impermissible. Uncertainty will have a chilling effect on free expression simply because people will not be sure that they may express themselves without fear of prosecution.

The Courts have been robust in protecting freedom of expression – see Morse v Police[24]  – but a “wait and see what the Courts say” is hardly satisfactory as an approach to discovering the limitations on the freedom of expression, especially in such a sensitive and delicate area. The Commission was focussing upon the circumstances and context of the Christchurch massacre, but the law will go well beyond that immediate context and the reaction to it. Care must be taken not to allow the justifiable outrage against the action of a lone wolf terrorist to colour and unnecessarily limit the freedoms we presently enjoy.

Developing the New Offence

The Commission suggested that a “hate speech” offence should be removed from the Human Rights Act and elevated to a crime by inclusion in the Crimes Act. The location of the offence really makes little difference. What is significant is what the offence actually is and what the penalties may be. It could be argued that shifting the offence to the Crimes Act is largely symbolic.

The suggested offence, irrespective of placement, that is proposed reads as follows

Inciting racial or religious disharmony

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding three years who:

(a) with intent to stir up, maintain or normalise hatred against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons;

  • says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for violence against or is otherwise, threatening, abusive, or insulting to such group of persons.

The element relating to intention appearing in section 131 is maintained. The protected characteristic of religion is added. The publication element is maintained, along with an ability to assess the nature of the content.

It is interesting that it seemed necessary to include a territorial element in the offence. The target of the speech must be persons in New Zealand. This means that one would not commit an offence if they were in New Zealand and published material that included all of the elements of the offence save that it was directed to people in another country. I can understand the “social cohesion” principle that underlies the offence and that this might thus restrict it to New Zealand, but given the association between hate speech and terrorism, and given that terrorism is a phenomenon with global implications it is surprising that the Commission has seen fit to limit the application of the offence.

However subclause (a) is vague in that it refers to “hatred” and perhaps should be linked to the consequence of the speech in subclause (b). The requirement that the speech calls for violence against those with protected characteristics falls within the ambit of what I have earlier described as “dangerous speech”[25].

What is of concern is that even although the speech may not call for violence the scope and effect of the speech are significantly expanded by the additional alternative element of it being threatening, abusive or insulting. In my view and for reasons that I have expressed earlier in this paper, this will have a chilling effect upon the freedom of expression. The tenor of abusive or insulting could well result in a complaint by someone who was merely offended by the speech.

An Alternative Proposal

My suggestion is that the section could be recast to meet some of these objections and yet fulfil what the Commission was proposing. My proposal is that the section could read as follows:

Inciting racial or religious disharmony

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding three years who:

(a) with intent to stir up, maintain or normalise violence or hostility against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons;

(b) says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for or threatens violence or hostile action against or is otherwise, threatening, abusive, or insulting to such group of persons.

The changes suggested achieve the following objectives:

1.       The emotive and difficult to define concept of “hate” is removed and the “dangerousness” of the speech is emphasized

2.       Hostility as a term is used to replace “hate” because hostility is more capable of being resolved into action

3.       The quality of the published material and what it seeks to achieve is related to the concepts of violence and hostility in (a) but removes the qualities of threat, abuse or insult. The use of those terms in the proposed legislation would water down robust speech to virtually nothing and would go far beyond what is generally understood by “hate” speech. Language may be offensive, hurtful or insulting without necessarily setting out to stir up hostility or hostile action and robust debate must be encouraged as well as a need for audiences to be robust and resilient themselves.

The Religious Exception

I refer to section 29J of the Public Order Act 1986 (United Kingdom), which provides:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

I do not share the Commission’s view that such an exception would make the offence of inciting racial or religious disharmony – especially the latter – unworkable.

The exception goes to the quality of the discourse and recognises that religious debate can become passionate and heated. The exception does not go so far as to allow for the advocacy of violence or hostile action which are the targets of the alternative proposal that I have put forward. It could be argued that because my proposal targets consequences rather than content, an exception such as that appearing in section 28J is not required, in that section 29J merely states examples of freedom of expression which are likely to occur and have occurred over the centuries in religious debate. However, the inclusion of such an exception would provide protection for adherents of all religious faiths who wish to engage in the robust debate that often surrounds matters of belief.

Conclusion

It may well be said that in its proposals about “hate speech” the Commission has perhaps gone a little too far in the scope of the offence that it proposes. The suggested offence I have put forward sharpens the focus of the offence, removes the emotive concept of hate and maintains the ability for robust discussion and debate – vital aspects of the freedom of expression in a free and democratic society.

Ideally I would like to see the abandonment of the term “hate speech”. It has a sloganeering aspect to it and, as is so often the case with slogans, provides a form of shorthand for a much deeper and nuanced set of issues. It is for this reason that I have examined the Commission’s proposals in the depth that I have. It provides little profit from an intellectual or a policy perspective to debate a slogan like hate speech and its criminalisation without understanding what it really means from a legal point of view. This paper, hopefully, provides some clarification.


[1] The Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch mosques on 15 March 2019 (Wellington, 2020) p. 655 hereafter referred to as RC Report. https://christchurchattack.royalcommission.nz/the-report/ (Last accessed 26 December 2020)

[2] Ibid. p. 700

[3] I entirely agree and have written on the topic. See “Dangerous Speech – Some Legislative Proposals” available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496363 or https://theitcountreyjustice.wordpress.com/2020/11/29/dangerous-speech-some-legislative-proposals/

[4] Expressions of contempt for members of a group may be insulting, offensive or discriminatory, but speaking contemptuously of a group is a far cry from encouraging hostility towards them.

[5] RC Report p.700

[6] Ibid p. 701

[7] Ibid p. 701

[8] Ibid. p. 701

[9] And its predecessor the Race Relations Act

[10] The emphasis is mine.

[11] Section 131 is similarly limited

[12] [1979] 2 NZLR 531

[13] [1972] AC 342.

[14] King-Ansell v Police above at p. 542.

[15] Ibid p. 543.

[16] [2018] 2 NZLR 471

[17] My emphasis. This reasoning could apply to the Charlie Hebdo cartoons of the Prophet or to the highly satirical movie “Monty Python’s Life of Brian”.

[18] Wall v Fairfax above at para [56].

[19] “If a tree falls in a forest and no one is around to hear it, does it make a sound?” is a philosophical thought experiment that raises questions regarding observation and perception.

[20] RC Report p.710 para [49]

[21] For example In 1967, Professor Lloyd Geering’s writings on the resurrection of Jesus and the immortality of the soul, resulted in his being charged by the Presbyterian Church with “doctrinal error” and “disturbing the peace of the church” – which is more or less the same thing as a heresy charge

[22] Sunni-Shia  strife, especially in Iraq and Pakistan has led to violence and bloodshed.

[23] RC Report p. 710 para [51]

[24] [2011] NZSC 45

[25] See “Dangerous Speech – Some Legislative Proposals” available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496363 or https://theitcountreyjustice.wordpress.com/2020/11/29/dangerous-speech-some-legislative-proposals/

Censorship – Public and Private

Introduction

Censorship is the suppression of speech, public communication or other information. Censorship may be imposed by a Government or by private individuals. Censorship imposed by a Government is contentious in that it may be used for political purposes or to restrict the nature of information that the public may receive.

Censorship, by its very nature, creates a tension within a free and democratic society and challenges freedom of expression by imposing minimum standards of socially acceptable speech on the contemporary community. Under s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights) everyone has the right to freedom of expression; a right as “wide as human thought and imagination”.[1] Censorship acts as an abrogation of that right.

The censorship regime in New Zealand today is governed by the Films, Videos, and Publications Classification Act 1993 which set up a Classification Office to review and classify material submitted to it, and a Board of Review to which an appeal could be made.  Prior to its enactment there were three separate regimes with their own criteria: a Chief Censor of Films under the Films Act 1983, a Video Recordings Tribunal under the Video Recordings Act 1987 and the Indecent Publications Tribunal under the Indecent Publications Act 1963[2].

A Ministerial Inquiry in 1989 recommended the development of one comprehensive classification system for the material already covered by existing censorship laws and an extension of the scope of the law to include a wider range of media.[3] When the Bill was discussed in Parliament the Minister of Social Welfare emphasised that the focus of the Bill was the likelihood of harm. She considered it represented a major shift in its philosophy on censorship away from moral paternalism and moral indignation alone to the likely impact of material on the community and particularly young persons.[4] The Act was to provide better public access to the classification system. It also strengthened enforcement measures.

In this post I want to discuss two issues surrounding censorship that were highlighted by an article that appeared in the Sunday Star-Times for Sunday 10 January 2021. One of the issues raised by the article involves an example of the nature of censorship of a book – Into the River by Ted Dawes – which of itself created some controversy in 2014 – 2015. The history of the processes to which the book was subject merited a more detailed narrative than appeared in the newspaper article.

The other issue involves another form of possibly more contentious censorship – by private individuals who may restrict access to information within the commercial environment. The strictures imposed by law apply to the first issue and require a rigorous approach in considering whether information is to be censored. They do not apply to the second issue which involves decisions arising from personal choice which may (and often do) have commercial consequences. But the issue is whether those who place information in the public domain have any moral or ethical obligation to adhere the freedom of expression standards.[5]

Into the River

Books, unlike films or DVDs, do not need to be classified before being released, but can be submitted to the classification office by Internal Affairs, Customs, Police or a member of the public. Since the Act came into force over 90 books have been banned. The classification and reclassification of Into the River received unprecedented media attention both in New Zealand[6] and world wide.[7] Ultimately the book was classified four times.

Into the River by Ted Dawes,was a young adults book that won the Margaret Mahy children’s book of the year award in 2013. It was submitted to the Classification Office by the Department of Internal Affairs after complaints about its sexual content by members of the public.

The book is a coming of age story that traverses the fortunes of Te Arepa Santos, a young Māori boy from a fictional village on the East Coast of the North Island, who wins a scholarship to a boys’ boarding school in Auckland. It describes his attempts to adapt to a very different way of life. He experiences the bullying that goes with being the new boy and sees what happens when bullying goes too far. He makes friends, finds enemies, and discovers that his Māori identity is a disadvantage. There are two explicit sex scenes in the book and some reference to homosexuality, as well as words that would be considered as offensive. Along the way drug use and other criminal activity are featured. The book ends with his expulsion.[8]

In September 2013 the book was classified as unrestricted “M” by the Classification Office with a descriptive note “[c]ontains sex scenes, offensive language and drug use”. The Classification Office saw a “depth and wisdom” that took the story beyond the gratuitous. It was intended for a mature audience and there were “many other novels widely available without restriction in New Zealand with similar sexual descriptions of an equivalent nature. [9]

The decision was appealed by Family First New Zealand and in December 2013 it was classified R14 by a majority of the Board of Review. There was a strong dissenting decision by the President who would have classified it as R18.[10]  The majority considered that although this book did describe, depict or otherwise deal with matters such as sex, crime, cruelty and violence it did not do so such that the availability of the publication was likely to be injurious to the public good. Indeed, it considered that the matters were dealt with in a way that was likely to educate and inform young adults about the potentially negative consequences that can follow from involvement in casual sex, underage drinking, drug taking, crime, violence and bullying. Hence, the book served a useful social purpose in raising these issues which were important to young people, and creating an environment which allowed them to think more carefully about the choices they might make and the repercussions of these.[11] Nonetheless there were scenes in the book that were powerful and disturbing and could run a real risk of shocking and distressing young people hence an age restriction was appropriate.[12]

The R14 classification had not been used by the Board before and indeed it was the first time in 22 years that a book in New Zealand had been subject to a restriction. It was also one that was difficult to properly enforce, and it was almost inevitable that the restriction would cause problems particularly for teachers and libraries. A decision of the Review Board can be reconsidered if special circumstances exist and with the consent of the Chief Censor.[13] Auckland Libraries made an application for reconsideration. The Chief Censor granted leave.

On 14 August 2015 the book was reclassified by the Classification Office this time as Unrestricted. In doing so the Office was critical of the failure of the Board, both the majority and the minority, for failing to refer to freedom of expression in their decisions. In the opinion of the Classification Office an age restriction did not sit comfortably with the right to freedom of expression, indeed was inconsistent with it and was not reasonable or demonstrably justified.[14]

Family First sought and received the leave of the Secretary that the Board of Review should again review the classification. Family First also sought and received an interim restriction order making it illegal to sell or display the book; this was the first time one had been imposed on a book and was greeted with an outcry.[15] The order was granted by the President on the basis that the classification was a matter of wide public concern, and that the decision of the Classification Office had radically altered that of the Board of Review. He considered that the correct classification was one that would operate as a semi-precedent and exert a significant influence over the classification of publications that portrayed teenage sex and drug-taking.

Once again the Film and Literature Board of Review considered the matter and released a decision dated 14 October 2015. This time the book was classified Unrestricted by a majority of the Board of Review, given the greater information now available to it, with the President again delivering a dissenting opinion.[16]

It can be seen from this discussion that a careful process has been set in place with checks and balances that ensure that there is no unjustified or unreasonable interference with the freedom of expression. What is unusual about the Into the River story is that unilaterally the President banned the book – effective for a period of six weeks – which would have meant that the possession or distribution of the book might attract criminal consequences. Family First accused the board of succumbing to book industry pressure despite what he alleged was the book’s “highly offensive and gratuitous language, adult themes and graphic sexual content.”[17] However, despite those criticisms, the reasoning of the Board of Review is both available and clear and is an example of the operational process of the New Zealand censorship regime under the Films, Videos and Publications Classification Act 1993.

Private Censorship

The second issue raised by the article is an interesting one. It records that a Wellington bookseller has decided not to sell books by J K Rowling. The reasoning has nothing to do with the books themselves but because of views expressed by Rowling on another issue. It is not the function of this paper to consider the validity or otherwise of either position other than to observe that Rowling’s blog post that aroused such ire seems to be a well written, considered and reasoned exposition of her views.

However, concerns have been expressed that the actions of the bookseller somehow have implications for freedom of expression. These concerns cannot be sustained. The right of freedom of expression – to impart and receive information – involves the interaction between the State and the private individual. In essence the right of freedom of expression should have no interference from the State. That, of course, cannot be an absolute. The New Zealand Bill of Rights Act makes that clear. But if the State is going to interfere with the freedom of expression it can only do so in a manner consistent with the Bill of Rights Act. And that is what the censorship regime described in the first part of this paper, is all about.

The guarantee of freedom of expression does not extend to private organisations.  Assume that I run a bookstore which I own and which provides me with my livelihood. I decide which books I am going to sell and which I am not going to stock. If I want to sell books of a particular genre – say ancient history or science fiction but not fantasy, that is my choice. I am targeting a particular market and providing an opportunity for those who wish to purchase the books that I sell to come in through my doors, part with their cash and take out the book that I want.

I may make the choices about the books that I am going to stock for a number of reasons. I am probably going to sell books that are going to sell well. I am not going to stock books that are objectionable and banned pursuant to the Films Videos and Publications Classification Act. That would involve me in prosecution, the imposition of a substantial fine and possible imprisonment. Apart from the deterrent aspects of the law I would rather be seen as a law abiding trader.

But immediately it can be seen that there are limitations on the books that I may put on my shelves.

So what happens if for other reasons, apart from commercial ones, I choose not to stock certain works. This is the situation facing the Wellington bookseller. She chooses not to stock books written by a person with whose views she disagrees. She is quite entitled to do that. It is her business. She is not obliged to stock works by Rowling or any other author whose works she chooses not to stock.

The Stuff article records her as follows:

“As a small business one of the first things you have to do, I believe, is to figure out what your values are: how you’re going to treat your employees and your customers,” she said.

“I think the line for us is very clear. The line is where people are using their public platforms to promulgate misinformation, bigotry or hate speech.”

She is responding to the exercise of the freedom of expression by Rowling. By the way, I would not characterise the blog post as hate speech – and I have written on that topic elsewhere – and although her actions may have commercial consequences at least she has the courage to explain her reasons for making Rowling’s works unavailable.

However, Paula Morris has expressed some concern in the article. The article states:

“Excluding authors from bookshops is the small-scale version of what’s happening online, where cancel-culture has become a form of censorship”

I think we have to be careful here. In the broadest sense what the bookshop is doing is a form of what could loosely be described as the “cancel culture”. But there are other aspects of the book seller’s actions that remove it from steps that are taken to silence points of view.

At the risk of sounding like John Galt in Ayn Rand’s Atlas Shrugged the bookshop is a private enterprise that belongs to an individual who can run it as she sees fit, as long as she soes so with in the law. It may be that many may disagree with what she has done. Others may applaud her actions. But she is entitled to run her business as she sees fit.

Cancel Culture

Cancel culture refers to the popular practice of withdrawing support for (cancelling) public figures and companies after they have done or said something considered objectionable or offensive. Cancel culture is generally discussed as being performed on social media in the form of group shaming.

As a manifestation of the freedom of expression there can be little objectionable about the cancel culture as defined above. It is quite legitimate in Thomas Jefferson’s market place of ideas to challenge the ideas expressed by another. The problem with cancel culture is that it is more a form of an in personam rather than a challenge to the validity of the views or ideas themselves. Care must be taken not to stray into areas where there may be legal remedies available by way of an action for defamation or a for a remedy under the Harmful Digital Communications Act.

Of course the usual social media platforms like Facebook, Twitter, Instagram and the like are not the ideal fora for detailed, nuanced or rational debate. Hyperbole and faux outrage prevail and rarely is the substance of an idea carefully, rationally and critically debated. But that said, as I have suggested, it is perfectly legitimate for views to be expressed about the validity of ideas expressed by others.

The problem arises when the cancel culture extends to platform denial. Using my reasoning in support of the bookseller, if I own a hall or a venue I can decide what sort of activities are going to take place there. It is, after all, my property. If I decide I am not going to provide a platform for a supporter of a position with which I disagree, I am entitled to refuse to provide platform for the speaker. There are no freedom of expression issues here because once again the State is not involved in the restriction of expression.

The situation becomes a little more complex if I want to express a view using a platform owned by the City Council. The City Council may refuse to make a Council Hall available. Representatives of the Council may give a reason – that my political views do not align with theirs. It could be said that because the Hall is Council property then property rights prevail – rather like the bookseller example. The difference is that the Council is a public body and the Bill of Rights Act (and the provisions relating to Freedom of Expression) apply because the Act extends to “any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.”

So if the Council were to deny me a platform it would have to offer some justification for doing so and that justification would have to be one that amounts to a reasonable limitation of my right of freedom of expression.

The waters become a little more murky when we consider the position of a University. There have been cases of platform denial by Universities both overseas and in New Zealand. Apart from the traditional role of the University as a forum for debate – often vigorous and heated – it could be argued that the University fulfils a public function especially in light of the fact that substantial sums of taxpayer money are made available to Universities. In such a situation it could be argued that the guarantee of freedom of expression extends to Universities and, like the example of the Council, must provide a justification for the reasonable limitation of the rights of freedom of expression sought to be exercised on campus.

Conclusion

The issues in this paper are highly complex and nuanced. The ramifications of the “cancel culture” and “platform denial” will continue to reverberate for some time and it could be argued that the jury is not yet in on that aspect of the freedom of expression. And of course the role of social media platforms introduces another element. Are they private organisations and as such are like the bookseller? Or are they publishers? And what of the moderating roles that are undertaken. Does that cast upon social media platforms more nuanced and granular responsibilities. I think the days may be over when social media platforms can validly argue that they are no more nor less than common carriers.

But what I have tried to do is to sketch some broad aspects of the freedom of expression and the importance of differentiating freedom of expression as a right in the public as opposed to the private sphere.

The actions of the bookseller may well mean that strict freedom of expression adherents will apply their own “cancel culture” and seek out the works of J.K. Rowling elsewhere including via Amazon or the Book Depository. But that would merely be an exercise of their freedom of choice to refrain from dealing with a person or organization with whose views they strongly disagree.

And in the final analysis that is what democracy and freedom are all about.


[1] Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [15].

[2] For an overview of censorship in New Zealand see https://en.wikipedia.org/wiki/Censorship_in_New_Zealand

[3] Joanne Morris, Hilary Haines and Jack Shallcrass Pornography: Report of the Ministerial Committee of Inquiry into Pornography (Ministry of Justice, January 1989).

[4] (22 June 1993) 536 NZPD 13989 – Hon Jenny Shipley.

[5] It should be noted that the provisions of s.14 of the New Zealand Bill of Rights Act apply only to state actors.

[6] “Searched for banned book ‘Into the River’ increasing, say Trade Me” The New Zealand Herald (online ed, Auckland, 10 September 2015).

[7] Eleanor Ainge Roy “New Zealand bans award-winning teenage novel after outcry from Christian group” The Guardian (online ed, London, 7 September 2015); “New Zealand: Award-winning Into the River novel banned” (7 September 2015) BBC News <www.bbc.com>.

[8] See the detailed description of the plot in Re Into the River No 1 Office of Film and Literature Classification 1300727.000, 11 September 2013.

[9] Re Into the River No 1 Office of Film and Literature Classification 1300727, 11 September 2013.

[10] Re Into the River No 1 Film and Literature Board of Review, 17 December 2013.

[11] Re Into the River No 1 Film and Literature Board of Review, 17 23 December 2013 at [31].

[12] Re Into the River No 1 Film and Literature Board of Review,  23 December 2013 at [47].

[13] Films, Videos, and Publications Classification Act 1993, s 42.

[14] Re Into the River No 2 Office of Film and Literature Classification 1500261.000, 14 August 2015.

[15] See, for example, “Award-winning teen book Into the River banned in New Zealand” Newshub (online ed, New Zealand, 7 September 2015) and Eleanor Ainge Roy “New Zealand bans award-winning teenage novel after outcry from Christian group” The Guardian (online ed, London, 7 September 2015). It also led to a recommendation for a change in the legislation permitting the President to limit an interim restriction order on a publication by age, class of persons, or particular purpose: Films, Videos, and Publications Classification (Interim Restriction Order Classification) Amendment Bill 2016 (205-1).

[16] Re Into the River No 2 Film and Literature Board of Review, 14 October 2015.

[17] https://www.theguardian.com/books/2015/oct/14/ban-lifted-on-new-zealand-young-adult-novel-into-the-river

Dangerous Speech – Some Legislative Proposals

This post was first written in April 2019 and I withheld publication of it for some time. It was finally made available on the Social Science Research Network https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496363 and has attracted some interest. I understand that the paper has been used as a teaching tool in some law schools, in the context of a discussion on Terminiello v City of Chicago 337 US 1 (1949)

This paper considers steps that can be taken to legislate against hate speech. There is a companion paper – “Challenging Speech” – which considers some of the issues raised in this paper in a different content.

The first issue is the term “hate speech” itself and, in light of the proposals advanced, this emotive and largely meaningless term should be replaced with that of “dangerous speech” which more adequately encapsulates the nature of the harm that the law should address.

The existing criminal provisions relating to what I call communications offences are outlined. Proposals are advanced for an addition to the Crimes Act to fill what appears to be a gap in the communications offences and which should be available to both individuals and groups. A brief discussion then follows about section 61 of the Human Rights Act and section 22 of the Harmful Digital Communications Act. It is suggested that major changes to these pieces of legislation is unnecessary.

Communications offences inevitably involve a tension with the freedom of expression under the New Zealand Bill of Rights Act and the discussion demonstrates that the proposal advanced are a justifiable limitation on freedom of expression, but also emphasises that a diverse society must inevitably contain a diversity of opinion which should be freely expressed.  

Introduction

The Context

In the early afternoon of 15 March 2019 a gunman armed with semi-automatic military style weapons attacked two mosques in Christchurch where people had gathered to pray. There were 50 deaths. The alleged gunman was apprehended within about 30 minutes of the attacks. It was found that he had live streamed his actions via Facebook. The stream was viewed by a large number of Facebook members and was shared across Internet platforms.

It also transpired that the alleged gunman had sent a copy of his manifesto entitled “The Great Replacement: Towards a New Society” to a number of recipients using Internet based platforms. Copies of both the live stream and the manifesto have been deemed objectionable by the Chief Censor.[1]

In addition it appears that the alleged gunman participated in discussions on Internet platforms such as 4Chan and 8Chan which are known for some of their discussion threads advocating White Supremacy and Islamophobic tropes

The Reaction

There can be no doubt that what was perpetrated in Christchurch amounted to a hate crime. What has followed has been an outpouring of concern primarily at the fact that the stream of the killings was distributed via Facebook and more widely via the Internet.

The response by Facebook has been less than satisfactory although it would appear that in developing their Livestream facility they then were unable to monitor and control the traffic across it – a digital social media equivalent of Frankenstein’s creature.

However, the killings have focused attention on the wider issue of hate speech and the adequacy of the law to deal with this problem.

Whither “Hate” Speech

The problem with the term “hate speech” is that it is difficult, if not impossible, to define.

Any speech that advocates, incites and intends physical harm to another person must attract legal sanction. It is part of the duty of government to protect its citizens from physical harm.

In such a situation, it matters not that the person against whom the speech is directed is a member of a group or not. All citizens, regardless of any specific identifying characteristics are entitled to be protected from physical harm or from those who would advocate or incite it.

Certain speech may cause harm that is not physical. Such harm may be reputational, economic or psychological. The law provides a civil remedy for such harms.

At the other end of the spectrum – ignoring speech that is anodyne – is the speech that prompts the response “I am offended” – what has been described as the veto statement.[2] From an individual perspective this amounts to a perfectly valid statement of opinion. It may not address the particular argument or engage in any meaningful debate. If anything it is a statement of disengagement akin to “I don’t like what I am hearing.”

Veto Statements

The difficulty arises when such a veto statement claims offence to a group identity. Such groups could include the offended woman, the offended homosexual, the offended person of colour or some other categorization based on the characteristics of a particular group. The difficulty with such veto statements – characterizing a comment as “racist” is another form of veto of the argument – is that they legitimize the purely subjective act of taking offence, generally with negative consequences for others.

Should speech be limited, purely because it causes offence? There are many arguments against this proposition. That which protects people’s rights to say things I find objectionable or offensive is precisely what protects my right to object.  Do we want to live in a society that is so lacking in robustness that we are habitually ready to take offence? Do we want our children to be educated or socialized in this way? Do we desire our children to be treated as adults, or our adults to be treated as children? Should our role model be the thin-skinned individual who cries “I am offended” or those such as Mandela, Baldwin or Gandhi who share the theme that although something may be grossly offensive, it is beneath my dignity to take offence? Those who abuse me demean themselves.

It may well be that yet another veto statement is applied to the mix. What right does a white, privileged, middle-class old male – a member of a secure group – have to say this. It is my opinion that the marginalization of the “I’m offended” veto statement is at least to open the door to proper debate and disagreement.

Furthermore, the subjective taking of offence based on group identity ignores the fact that we live in a diverse and cosmopolitan society. The “I’m offended” veto statement discourages diversity and, in particular, diversity of opinion. One of the strengths of our society is its diversity and multi-cultural nature. Within this societal structure are a large number of different opinions. For members of one group to shut down the opinions of another on the basis of mere offence is counter to the diverse society that we celebrate.

The term “hate speech” is itself a veto statement and often an opposing view is labelled as “hate speech”. The problem with this approach seems to be that the listener hates what has been said and therefore considers the proposition must be “hate speech”. This is arrant nonsense. The fact that we may find a proposition hateful to our moral or philosophical sense merely allows us to choose not to listen further. But it does not mean that because I find a point of view hateful that it should be shut down. As Justice Holmes said in US v Schwimmer[3] “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

Our commitment to freedom of expression lies not in allowing others the freedom to say things with which we agree, but in allowing them the right to say things with which we absolutely disagree.

Finally, in considering the nature of the veto statement “I’m offended” or categorizing a comment as “hate speech” where lies the harm. Is anybody hurt? The harm in fact comes in trying to shut down the debate with the use of the veto statement.

Aspects of “Harm”

However, recent thinking has had a tendency to extend the concept of harm suffered by individuals. It is accepted that the law should target physical harm, but should it protect an individual from any sort of harm. Catherine MacKinnon has formulated a view, based on the work of J.L. Austin, that many words or sentiments are essentially indistinguishable from deeds and therefore, sexist or misogynistic language should be regarded as a form of violence.[4] This form of assaultive speech can be extended to be available to any group based of distinguishing characteristics or identity.

The emphasis is upon the subjectivity of the person offended. What offence there may be is in the sphere of feelings. It may follow from this that if I do not feel I have been offended then I have not been offended. If we reverse the proposition only the individual may judge whether or not they have been offended. I would suggest that this element of subjectivity is not the interest of the law.

The problem is that such an extension of potentially harmful speech becomes equated with “hate speech” and virtually encompasses any form of critical dialogue. To conflate offence with actual harm means that any sort of dialogue may be impossible.

To commit an offence of violence is to perform an action with objective, observable detrimental physical consequences, the seriousness of which requires the intervention of the law. To give offence is to perform an action – the making of a statement – the seriousness of which is in part dependant upon another person’s interpretation of it.

An example may be given by looking at Holocaust denial. Those who deny the Holocaust may insult the Jewish people. That may compound the injury that was caused by the event itself. But the insult is not identical to the injury. To suggest otherwise is to invite censorship. The denial of the Holocaust is patently absurd. But it needs to be debated as it was when Deborah Lipstadt challenged the assertions of David Irving. In an action brought by Irving for defamation his claims of Holocaust denial were examined and ultimately ridiculed.[5]

Jeremy Waldron is an advocate for limits on speech. He argues that since the aim of “hate speech” is to compromise the dignity of those at whom it is targeted it should be subject to restrictions.[6] Waldron argues that public order means more than an absence of violence but includes the peaceful order of civil society and a dignitary order of ordinary people interacting with one another in ordinary ways based upon an arms-length respect.

So what does Waldron mean by dignity. He relies upon the case of Beauharnais v Illinois[7] where the US Supreme Court upheld the constitutionality of a law prohibiting any material that portrayed “depravity, criminality, unchastity or lack of virtue of a class of citizens, of any race, colour, creed or religion.” On this basis Waldron suggests that those who attack the basic social standing and reputation of a group should be deemed to have trespassed upon that group’s dignity and be subject to prosecution. “Hate speech”, he argues, should be aimed at preventing attacks on dignity and not merely offensive viewpoints. Using this approach I could say that Christianity is an evil religion but I could not say Christians are evil people.

The problem with Waldron’s “identity” approach is that is that the dignity of the collective is put before the dignity of its individual members. This raises the difficulty of what may be called “groupthink”. If I think of myself primarily as a member of a group I have defined my identity by my affiliation rather than by myself. This group affiliation suggests a certain fatalism, that possibilities are exhausted, perhaps from birth, and that one cannot be changed. This runs directly against Martin Luther King’s famous statement where he rejected identity based on race but preferred an individual assessment.

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

The problem with the proposition that the state should protect its citizens against what Waldron calls “group defamation” is that it runs the risk of its citizens becoming infantalised, that in fact such an approach undermines their individual dignity by assuming that they cannot answer for themselves.

Rather than encouraging people to be thin-skinned, what is required in a world of increasingly intimate diversity is to learn how to be more thick-skinned and to recognize and celebrate the difference that lies in diversity. As Ronald Dworkin put it, no one has a right not to be offended and in fact we should not take offence too readily. In a free society I may be free to feel offended but should not use that offence to interfere with the freedoms of another.

Dangerous Speech

It will be by now apparent that my view is that “hate speech” is a term that should be avoided, although I accept that it is part of the lexicon, whether we like it or not. Perhaps it might be proper to focus upon the type of speech that society should consider to be unacceptable and that warrants the interference of law.

Any interference must be based on reasonableness and demonstrable justification, given that the right of freedom of expression under the Bill of Rights Act is the subject of interference. To warrant such interference I suggest that rather than use the term “hate speech” the threshold for the interference of the law could be termed “dangerous speech” – speech that presents a danger to an individual or group of individuals.

The intentional advocacy or inciting of physical harm may be classified as “dangerous speech” and justifies the intervention of the law. It is non-specific and available both to individuals and the groups identified in the Human Rights Act. In certain circumstances – where there is incitement to or advocacy of actual physical harm, the intervention of the criminal law is justified.

The law also deals with psychological harm of a special type – serious emotional distress. That is a test in the Harmful Digital Communications Act (HDCA). That legislation applies only to online speech. That may be a lesser form of “dangerous speech” but within the context of the provisions of section 22 HDCA such interference is justified. The elements of intention, actual serious emotional distress and the mixed subjective objective test provide safeguards that could be considered to be a proportionate interference with the freedom of expression and would harmonise the remedies presently available for online speech with that in the physical world.

There are a number of other provisions in the law that deal with forms of speech or communication harms. Some of these warrant discussion because they demonstrate the proper themes that the law should address.

Existing Communications Offences – a summary

The law has been ambivalent towards what could be called speech crimes. Earlier this year the crime of blasphemous libel was removed from the statute book. Sedition and offences similar to it were removed in 2008. Criminal libel was removed as long ago as 1993.

The Crimes Act 1961

At the same time the law has recognized that it must turn its face against those who would threaten to commit offences. Thus section 306 criminalises the actions of threatening to kill or do grievous bodily harm to any person or sends or causes to be received a letter or writing threatening to kill of cause grievous bodily harm. The offence requires knowledge of the contents of the communication.

A letter or writing threatening to destroy or damage any property or injure any animal where there is knowledge of the contents of the communication and it is done without lawful justification or excuse and without claim or right is criminalized by section 307.

It will be noted that the type of communication in section 306 may be oral or written but for a threat to damage property the threat must be in writing.

Section 307A is a complicated section.[8] It was added to the Act in 2003 and was part of a number of measures enacted to deal with terrorism after the September 11 2001 tragedy. It has received attention in one case since its enactment – that of Police v Joseph.[9]

Joseph was charged with a breach of s 307A(1)(b) of the Crimes Act 1961 in that he, without lawful justification or reasonable excuse and intending to cause a significant disruption to something that forms part of an infrastructure facility in New Zealand namely New Zealand Government buildings, did communicate information that he believed to be about an act namely causing explosions likely to cause major property damage.

Mr. Joseph, a secondary school student at the time, created a video clip that lasted a little over three minutes. He used his laptop and sent messages of threats to the New Zealand Government accompanied by some images that linked the language with terrorism, such as pictures of the aerial attack on the World Trade Centre and images of Osama Bin Laden. The message:[10]

•        threatened a terror attack on the New Zealand Government and New Zealand Government buildings.

•        claimed that large amounts of explosives had been placed in hidden locations on all buildings.

•        warned that New Zealand Government websites would be taken down.

•        threatened the hacking of New Zealand’s media websites.

•        threatened to disclose all Government secrets that have not been released to Wikileaks nor the public.

•        warned that obstruction would lead to harm.

The clip demanded that the New Zealand Government repeal or refrain from passing an amendment to the Copyright Act 1994. It was posted on 6 September 2010 and a deadline was set for 11 September 2010. The clip was attributed to the hacktavist group known as Anonymous.

The clip was posted to YouTube. It was not available to the public by means of a search. It was unlisted and could only be located by a person who was aware of the link to the particular clip.

The clip came to the attention of the Government Communications Security Bureau (GCSB) on 7 September 2010 who passed the information on to the Police Cybercrime Unit to commence an investigation. An initial communication from the GCSB on the morning of 7 September postulated that the clip could be a “crackpot random threat” and confirmed that its communication was “completely outside the Anonymous MO”.[11]

The site was quickly disabled and Mr. Joseph was spoken to by the Police. He made full admissions of his involvement.

The real issue at the trial was one of intent. The intention had to be a specific one. The Judge found that the intention of the defendant was to have his message seen and observed on the Internet and, although his behaviour in uploading the clip to YouTube in an Internet café and using an alias could be seen as pointing to an awareness of unlawful conduct it did not, however, point to proof of the intention to cause disruption of the level anticipated by the statute. It transpired that the defendant was aware that the clip would probably be seen by the authorities and also that he expected that it would be “taken down”.

The offence prescribed in section 308 does involve communication as well as active behavior. It criminalises the breaking or damaging or the threatening to break or damage any dwelling with a specific intention – to intimidate or to annoy. Annoyance is a relatively low level reaction to the behavior. A specific behavior – the discharging of firearms that alarms or intends to alarm a person in a dwelling house – again with the intention to intimidate or annoy – is provided for in section 308(2).

The Summary Offences Act

The Summary Offences Act contains the offence of intimidation in section 21. Intimidation may be by words or behavior. The “communication” aspect of intimidation is provided in section 21(1) which states:

Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated,—

  •  threatens to injure that other person or any member of his or her family, or to damage any of that person’s property;

Thus, there must be a specific intention – to frighten or intimidate – together with a communicative element – the threat to injure the target or a member of his or her family, or damage property.

In some respects section 21 represents a conflation of elements of section 307 and 308 of the Crimes Act together with a lesser harm threatened – that of injury – than appears in section 306 of that Act.

However, there is an additional offence which cannot be overlooked in this discussion and it is that of offensive behavior or language provided in section 4 of the Summary Offences Act.

The language of the section is as follows:

  •  Every person is liable to a fine not exceeding $1,000 who,—
  •  in or within view of any public place, behaves in an offensive or disorderly manner; or
  •  in any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person; or
  •  in or within hearing of a public place,—

(i)  uses any threatening or insulting words and is reckless whether any person is alarmed or insulted by those words; or

(ii) addresses any indecent or obscene words to any person.

  •  Every person is liable to a fine not exceeding $500 who, in or within hearing of any public place, uses any indecent or obscene words.
  •  In determining for the purposes of a prosecution under this section whether any words were indecent or obscene, the court shall have regard to all the circumstances pertaining at the material time, including whether the defendant had reasonable grounds for believing that the person to whom the words were addressed, or any person by whom they might be overheard, would not be offended.
  •  It is a defence in a prosecution under subsection (2) if the defendant proves that he had reasonable grounds for believing that his words would not be overheard.

In some respects the consequences of the speech suffered by the auditor (for the essence of the offence relies upon oral communication) resemble those provided in section 61 of the Human Rights Act.

Section 4 was considered by the Supreme Court in the case of Morse v Police.[12] Valerie Morse was convicted in the District Court of behaving in an offensive manner in a public place, after setting fire to the New Zealand flag at the Anzac Day dawn service in Wellington in 2007.

In the District Court, High Court and Court of Appeal offensive behavior was held to mean behaviour capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it in the circumstances. A tendency to disrupt public order was not required to constitute behaviour that was offensive. Notwithstanding the freedom of expression guaranteed by NZBORA, the behavior was held to be offensive within the context of the ANZAC observance.

The Supreme Court held that offensive behavior must be behaviour which gives rise to a disturbance of public order. Although agreed that disturbance of public order is a necessary element of offensive behaviour under s 4(1)(a), the Judges differed as to the meaning of “offensive” behaviour. The majority considered that offensive behaviour must be capable of wounding feelings or arousing real anger, resentment, disgust or outrage, objectively assessed, provided that it is to an extent which impacts on public order and is more than those subjected to it should have to tolerate. Furthermore it will be seen that a mixed subjective\objective test is present in that the anger, resentment, disgust or outrage must be measured objectively – how would a reasonable person in this situation respond.

It is important to note that in addition to the orality or behavioural quality of the communication – Anderson J referred to it as behavioural expression[13] –  it must take place in or within view of a public place. It falls within that part of the Summary Offences Act that is concerned with public order and conduct in public places. Finally, offensive behavior is behavior that does more than merely create offence.

Observations on Communications Offences

In some respects these various offences occupy points on a spectrum. Interestingly, the offence of offensive behavior has the greatest implications for freedom of expression or expressive behavior, in that the test incorporates a subjective one in the part of the observer. But it also carries the lightest penalty, and as a summary offence can be seen to be the least serious on the spectrum. The section could be applied in the case of oral or behavioural expression against individuals or groups based on colour, race, national or ethnic origin, religion, gender, disability or sexual orientation as long as the tests in Morse are met.

At the other end of the spectrum is section 307 dealing with threats to kill or cause grievous bodily harm which carries with it a maximum sentence of 7 years imprisonment. This section is applicable to all persons irrespective of colour, race, national or ethnic origin, religion, gender, disability or sexual orientation as are sections 307, 308, section 21 of the Summary Offences Act and section 22 of the Harmful Digital Communications Act which could all occupy intermediate points on the spectrum based on the elements of the offence and the consequences that may attend upon a conviction.

There are some common themes to sections 306, 307, 308 of the Crimes Act and section 21 of the Summary Offences Act.

First, there is the element of fear that may be caused by the behavior. Even although the issue of intimidation is not specifically an element of the offences under sections 306 and 307, there is a fear that the threat may be carried out.

Secondly there is a specific consequence prescribed – grievous bodily harm or damage to or destruction of property.

Thirdly there is the element of communication or communicative behavior that has the effect of “sending a message”.

These themes assist in the formulation of a speech-based offence that is a justifiable limitation on free speech, that recognizes that there should be some objectively measurable and identifiable harm that flows from the speech, but that does not stifle robust debate in a free and democratic society.

A Possible Solution

There is a change that could be made to the law which would address what appears to be something of a gulf between the type of harm contemplated by section 306 and lesser, yet just as significant harms.

I propose that the following language could cover the advocacy or intentional incitement of actual physical injury against individuals or groups. Injury is a lesser physical harm than grievous bodily harm and fills a gap between serious emotional distress present in the HDCA and the harm contemplated by section 306.

The language of the proposal is technology neutral. It could cover the use of words or communication either orally, in writing, electronically or otherwise. Although I dislike the use of the words “for the avoidance of doubt” in legislation for they imply a deficiency of clarity of language in the first place, there could be a definition of words or communication to include the use of electronic media.

The language of the proposal is as follows:

It is an offence to use words or communication that advocates or intends to incite actual physical injury against an individual or group of individuals based upon, in the case of a group, identifiable particular characteristics of that group

This proposal would achieve a number of objectives. It would capture speech or communications that cause or threaten to cause harm of a lesser nature than grievous bodily harm stated in section 306.

The proposal is based upon ascertaining an identifiable harm caused by the speech or communicative act. This enables the nature of the speech to be crystallised in an objective manner rather than the unclear, imprecise and potentially inconsistent use of the umbrella term “hate speech.”

The proposal would cover speech, words or communication across all media. It would establish a common threshold for words or communication below which an offence would be committed.

The proposal would cover any form of communicative act which was the term used by Anderson J in Morse and which the word “expression” used in section 14 of NZBORA encompasses.

The tension between freedom of expression and the limitations that may be imposed by law is acknowledged. It would probably need to be stated, although it should not be necessary, that in applying the provisions of the section the Court would have to have regard to the provisions of the New Zealand Bill of Rights Act 1990.

Other Legislative Initiatives

The Human Rights Act

There has been consideration of expanding other legislative avenues to address the problem of “dangerous” speech. The first avenue lies in the Human Rights Act which prohibits the incitement of disharmony on the basis of race, ethnicity, colour or national origins. One of the recent criticisms of the legislation is that it does not apply to incitement for reasons of religion, gender, disability or sexual orientation.[14]

Before considering whether such changes need to be made – a different consideration to whether they should be made – it is important to understand how the Human Rights Act works in practice. The Act prohibits a number of discriminatory practices in relation to various activities and services.[15] It also prohibits indirect discrimination which is an effects based form of activity.[16] Victimisation or less favourable treatment based on making certain disclosures is prohibited.[17] Discrimination in advertising along with provisions dealing with sexual or racial harassment are the subject of provisions.[18]

The existing provisions relating to racial disharmony as a form of discrimination and racial harassment are contained in section 61 and 63 of the Act.[19]

There are two tests under section 61. One is an examination of the content of the communication. Is it threatening, abusive or insulting? If that has been established the next test is to consider whether it is:

  1. Likely to excite hostility against or
  2. Bring into contempt

Any group of persons either in or coming to New Zealand on the ground of colour, race or ethnic or national origins.

These provisions could well apply to “dangerous speech”. Is it necessary, therefore, to extend the existing categories in section 61 to include religion, gender, disability or sexual orientation.

Religion

Clearly if one were to add religion, threatening, abusive or insulting language about adherents of the Islamic faith would fall within the first limb of the section 61(1) test. But is it necessary that religion be added? And should this be simply because a religious group was targeted?

The difficulty with including threatening, abusive or insulting language against groups based upon religion means that not only would Islamaphobic “hate speech” be caught, but so too would the anti-Christian, anti-West, anti “Crusader” rhetoric of radical Islamic jihadi groups be caught. Would the recent remarks by Winston Peters condemning the implementation of strict sharia law in Brunei that would allow the stoning of homosexuals and adulterers be considered speech that insults members of a religion?[20]

A further difficulty with religious-based speech is that often there are doctrinal differences that can lead to strong differences of opinion that are strongly voiced. Often the consequences for doctrinal heresy will be identified as having certain consequences in the afterlife. Doctrinal disputes, often expressed in strong terms, have been characteristics of religious discourse for centuries. Indeed the history of the development of the freedom of expression and the freedom of the press was often in the context of religious debate and dissent.

It may well be that to add a category of religion or religious groups will have unintended consequences and have the effect of stifling or chilling debate about religious belief.

An example of the difficulty that may arise with restrictions on religious speech may be demonstrated by the statement “God is dead.” This relatively innocuous statement may be insulting or abusive to members of theist groups who would find a fundamental aspect of their belief system challenged. For some groups such a statement may be an invitation to violence against the speaker. Yet the same statement could be insulting or abusive to atheists as well simply for the reason that for God to be dead presupposes the existence of God which challenges a fundamental aspect of atheist belief.

This example illustrates the danger of placing religious discourse into the unlawful categories of discrimination.

If it were to be determined that religious groups would be added to those covered by section 61, stronger wording relating to the consequences of speech should be applicable to such groups. Instead of merely “exciting hostility against” or “bring into contempt” based upon religious differences perhaps the wording should be “advocating and encouraging physical violence against..” .

This would have the effect of being a much stronger test than exists at present under section 61 and recognizes the importance of religious speech and doctrinal dispute.

Gender, Disability or Sexual Orientation

The Human Rights Act already has provisions relating to services-based discrimination on these additional grounds. The question is whether or not there is any demonstrated need to extend the categories protected under section 61 to these groups.

Under the current section 61 test, any threatening, abusive or insulting language directed towards or based upon gender, disability or sexual orientation could qualify as “hate speech” if the speech was likely to excite hostility against or bring into contempt a group of persons. The difficulty lies not so much with threatening language, which is generally clear and easy to determine, but with language which may be abusive or insulting.

Given the sensitivities that many have and the ease with which many are “offended” it could well be that a softer and less robust approach may be taken to what constitutes abusive or insulting language.

For this reason the test surrounding the effect of such speech needs to be abundantly clear. If the categories protected by section 61 are to be extended there must be a clear causative nexus between the speech and the exciting of hostility or the bringing into contempt. Alternatively the test could be strengthened as suggested above to replace the test of exciting hostility or bringing into contempt with “advocating and encouraging physical violence against..”

It should be observed that section 61 covers groups that fall within the protected categories. Individuals within those groups have remedies available to them under the provisions of the Harmful Digital Communications Act 2015.

The Harmful Digital Communications Act 2015

The first observation that must be made is that the Harmful Digital Communications Act 2015 (HDCA) is an example of Internet Exceptionalism in that it deals only with speech communicated via electronic means. It does not cover speech that may take place in a physical public place, by a paper pamphlet or other form of non-electronic communication.

The justification for such exceptionalism was considered by the Law Commission in the Ministerial Briefing Paper.[21] It was premised upon the fact that digital information is pervasive, its communication is not time limited and can take place at any time – thus extending the reach of the cyber-bully – and it is often shared among groups with consequent impact upon relationships. These are some of the properties of digital communications systems to which I have made reference elsewhere.[22]

A second important feature of the HDCA is that the remedies set out in the legislation are not available to groups. They are available only to individuals. Individuals are defined as “natural persons” and applications for civil remedies can only be made by an “affected individual” who alleges that he or she has suffered or will suffer harm as a result of a digital communication.[23] Under section 22 – the offence section – the victim of an offence is the individual who is the target of a posted digital communication.[24]

The HDCA provides remedies for harmful digital communications. A harmful digital communication is one which

  1. Is a digital communication communicated electronically and includes any text message, writing, photograph, picture, recording, or other matter[25]
  2. Causes harm – that is serious emotional distress

In addition there are ten communications principles[26]. Section 6(2) of the Act requires the Court to take these principles into account in performing functions or exercising powers under the Act.

For the purposes of a discussion about “dangerous speech” principles 2, 3, 8 and 10 are relevant. Principle 10 extends the categories present in section 61 of the Human Rights Act to include those discussed above.

The reason for the difference is that the consequences of a harmful digital communication are more of an individual and personal nature. Harm or serious emotional distress must be caused. This may warrant an application for an order pursuant to section 19 of the Act – what may be described as a civil enforcement order. A precondition to an application for any of the orders pursuant to section 19 is that the matter must be considered by the Approved Agency – presently Netsafe.[27] If Netsafe is unable to resolve the matter, then it is open to the affected individual to apply to the District Court.

The orders that are available are not punitive but remedial in nature. They include an order that the communication be taken down or access to it be disabled; that there be an opportunity for a reply or for an apology; that there be a form of restraining order so that the defendant is prohibited from re-posting the material or encouraging others to do so.

In addition orders may be made against online content hosts requiring them to take material down along with the disclosure of the details and particulars of a subscriber who may have posted a harmful digital communication. Internet Service Providers (described in the legislation as IPAPs) may be required to provide details of an anonymous subscriber to the Court.

It should be noted that the element of intending harm need not be present on the part of the person posting the electronic communication. In such a situation the material is measured against the communications principles along with evidence that the communication has caused serious emotional distress.

Section 22 – Causing harm by posting a digital communication

The issue of intentional causation of harm is covered by section 22 of the Act. A mixed subjective-objective test that is required for an assessment of content. The elements necessary for an offence under section 22 HDCA are as follows:

A person must post a digital communication with a specific intention – that it cause harm to a victim;

It must be proven that the posting of the communication would cause harm to an ordinary reasonable person in the position of the victim;

Finally, the communication must cause harm to the victim.

Harm is defined as serious emotional distress. In addition the Court may take a number of factors into account in determining whether a post may cause harm

  1.  the extremity of the language used:
  2.  the age and characteristics of the victim:
  3.  whether the digital communication was anonymous:
  4.  whether the digital communication was repeated:
  5.  the extent of circulation of the digital communication:
  6.  whether the digital communication is true or false:
  7.  the context in which the digital communication appeared.

The requirement that harm be intended as well as caused has been the subject of some criticism. If there has been an intention to cause harm, is it necessary that there be proof that harm was caused? Similarly, surely it is enough that harm was caused even if it were not intended?

As to the first proposition it must be remembered that section 22 criminalises a form of expression. The Law Commission was particularly concerned that the bar should be set high, given the New Zealand Bill of Rights Act 1990 provisions in section 14 regarding freedom of expression. If expression is to be criminalized the consequences of that expression must warrant the involvement of the criminal law and must be accompanied by the requisite mens rea or intention.

As to the second proposition, the unintended causation of harm is covered by the civil enforcement provisions of the legislation. To eliminate the element of intention would make the offence one of strict liability – an outcome reserved primarily for regulatory or public interest types of offence.

The Harmful Digital Communications Act and “Dangerous Speech”

Could the HDCA in its current form be deployed to deal with “dangerous speech”. The first thing to be remembered is that the remedies in the legislation are available to individuals. Thus if there were a post directed towards members of a group, an individual member of that group could consider proceedings.

Would that person be “a victim” within the meaning of section 22? It is important to note that the indefinite article is used rather than the definite one. Conceivably if a post were made about members of a group the collective would be the target of the communication and thus every individual member of that collective could make a complaint and claim to be a target of the communication under section 22(4).

To substantiate the complaint it would be necessary to prove that the communication caused serious emotional distress[28] which may arise from a cumulation of a number of factors.[29] Whether the communication fulfilled the subjective\objective test in section 22(1)(b) would, it is suggested, be clear if the communication amounted to “hate speech”, taking into account the communications principles, along with the factors that should be taken into account in section 22(2)((a) – (g). The issue of intention to cause harm could be discerned either directly or by inference from the nature of the language used in the communication.

In addition it is suggested that the civil remedies would also be available to a member of a group to whom “dangerous speech” was directed. Even although a group may be targeted, an individual member of the group would qualify as an affected individual if serious emotional distress were suffered. A consideration of the communications principles and whether or not the communication was in breach of those principles would be a relatively straightforward matter of interpretation.

The Harmful Digital Communications Act in Action

Although the principal target of the legislation was directed towards cyber-bullying by young people, most of the prosecutions under the Act have been within the context of relationship failures or breakdowns and often have involved the transmission of intimate images or videos – a form of what the English refer to as “revenge porn”. There have been a relatively large number of prosecutions under section 22 – something that was not anticipated by the Law Commission in its Briefing Paper.[30]

Information about the civil enforcement process is difficult to obtain. Although the Act is clear that decisions, including reasons, in proceedings must be published.[31] There are no decisions available on any website to my knowledge.

From my experience there are two issues that arise regarding the civil enforcement process. The first is the way the cases come before the Court. When the legislation was enacted the then Minister of Justice, Judith Collins, considered that the Law Commission recommendation that there be a Communications Tribunal to deal with civil enforcement applications was not necessary and that the jurisdiction under the legislation would form part of the normal civil work of the District Court.

Because of pressures on the District Court, civil work does not receive the highest priority and Harmful Digital Communications applications take their place as part of the ordinary business of the Court. This means that the purpose of the Act in providing a quick and efficient means of redress for victims is not being fulfilled. [32]  One case involving communications via Facebook in January of 2017 has been the subject of several part-heard hearings and has yet to be concluded. Even if the Harmful Digital Communications Act is not to be deployed to deal with “dangerous speech”, it is suggested that consideration be given to the establishment of a Communications Tribunal as suggested by the Law Communication so that hearings of applications can be fast-tracked.

The second issue surrounding the civil enforcement regime involves that of jurisdiction over off-shore online content hosts such as Facebook, Twitter, Instagram and the like. Although Facebook and Google have been cited as parties and have been served in New Zealand, they do not acknowledge the jurisdiction of the Court but nevertheless indicate a willingness to co-operate with requests made by the Court without submitting to the jurisdiction of the Court.

In my view the provisions of Subpart 3 of Part 6 of the District Court Rules would be applicable. These provisions allow service outside New Zealand as a means of establishing the jurisdiction of the New Zealand Courts. The provisions of Rule 6.23 relating to service without leave are not applicable and, as the law stands, the leave of the Court would have to be sought to serve an offshore online content host. This is a complex process that requires a number of matters to be addressed about a case before leave may be granted. Once leave has been granted there may be a protest to the jurisdiction by the online content host before the issue of jurisdiction could be established.

One possible change to the law might be an amendment to Rule 6.23 allowing service of proceedings under the HDCA without the leave of the Court. There would still be the possibility that there would be a protest to the jurisdiction but if that could be answered it would mean that the Courts would be able to properly make orders against offshore online content hosts.

Are Legislative Changes Necessary?

It will be clear by now that the law relating to “dangerous speech” in New Zealand does not require major widespread change or reform. What changes may be needed are relatively minor and maintain the important balance contained in the existing law between protecting citizens or groups from speech that is truly harmful and ensuring that the democratic right to freedom of expression is preserved.

The Importance of Freedom of Expression

The New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990 (NZBORA) provides at section 14

“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.”

This right is not absolute. It is subject to section 5 which provides “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Section 4 reinforces the concept of Parliamentary supremacy. If a specific piece of legislation conflicts or is inconsistent with NZBORA, the specific piece of legislation prevails. Thus, specific pieces of legislation which impose restrictions or limitations upon freedom of expression – such as the Human Rights Act 1993 and the Harmful Digital Communications Act 2015 – prevail although if an enactment can be given a meaning that is consistent with the rights and freedoms contained in NZBORA, that meaning shall be preferred to any other meaning.[33]

This then provides a test for considering limitations or restrictions on the rights under NZBORA. Limitations must be reasonable and must be demonstrably justified within the context of a free and democratic society.

Thus, when we consider legislation that may impinge upon or limit the freedom of expression the limitation must be

  1. Reasonable
  2. Demonstrably justified
  3. Yet recognizing that we live in a free and democratic society.

The justified limitations test contains within it a very real tension. On the one hand there is a limitation on a freedom. On the other there is a recognition of freedom in that we live in a free and democratic society. I would suggest that although NZBORA does not use this language, the emphasis upon a free and democratic society, and the requirement of reasonableness and demonstrable justification imports an element of necessity. Is the limitation of the freedom necessary?

The problem with freedom of expression is that it is elusive. What sort of limitations on the freedom of expression may be justified?

Freedom of Expression in Practice

The reality with freedom of expression is that it is most tested when we hear things with which we disagree. It is not limited to the comfortable space of agreeable ideas.

Salman Rushdie said that without the freedom to offend the freedom of expression is nothing. Many critics of current debates seem to conflate the freedom to express those ideas with the validity of those ideas, and their judgement on the latter means that they deny the freedom to express them.

The case of Redmond-Bate v DPP[34]  [1999] EWHC Admin 733 was about two women who were arrested for preaching on the steps of a church. Sedley LJ made the following comments:[35]

“I am unable to see any lawful basis for the arrest or therefore the conviction. PC Tennant had done precisely the right thing with the three youths and sent them on their way. There was no suggestion of highway obstruction. Nobody had to stop and listen. If they did so, they were as free to express the view that the preachers should be locked up or silenced as the appellant and her companions were to preach. Mr. Kealy for the prosecutor submitted that if there are two alternative sources of trouble, a constable can properly take steps against either. This is right, but only if both are threatening violence or behaving in a manner that might provoke violence. Mr. Kealy was prepared to accept that blame could not attach for a breach of the peace to a speaker so long as what she said was inoffensive. This will not do. Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy.”

One way of shutting down debate and the freedom of expression is to deny a venue, as we have seen in the unwise decision of Massey University Vice Chancellor Jan Thomas to deny Mr Don Brash a chance to speak on campus. The Auckland City did the same with the recent visit by speakers Lauren Southern and Stefan Molyneux.

Lord Justice Sir Stephen Sedley (who wrote the judgement in Redmond-Bate v DPP above) writing privately, commented on platform denial in this way:

” A great deal of potentially offensive speech takes place in controlled or controllable forums – schools, universities, newspapers, broadcast media – which are able to make and enforce their own rules. For these reasons it may be legitimate to criticise a periodical such as Charlie Hebdo for giving unjustified offence – for incivility, in other words – without for a moment wanting to see it or any similarly pungent periodical penalised or banned. Correspondingly, the “no platform” policies adopted by many tertiary institutions and supported in general by the National Union of Students are intended to protect minorities in the student body from insult or isolation. But the price of this, the stifling of unpopular or abrasive voices, is a high one, and it is arguable that it is healthier for these voices to be heard and challenged. Challenge of course brings its own problems: is it legitimate to shout a speaker down? But these are exactly the margins of civility which institutions need to think about and manage. They are not a justification for taking sides by denying unpopular or abrasive speakers a platform.”[36]

So the upshot of all this is that we should be careful in overreacting in efforts to control, monitor, stifle or censor speech with which we disagree but which may not cross the high threshold of “dangerous speech”. And certainly be careful in trying to hobble the Internet platforms and the ISPs. Because of the global distributed nature of the Internet it would be wrong for anyone to impose their local values upon a world wide communications network. The only justifiable solution would be one that involved international consensus and a recognition of the importance of freedom of expression.

Conclusion

The function of government is to protect its citizens from harm and to hold those who cause harm accountable. By the same token a free exchange of ideas is essential in a healthy and diverse democracy. In such a way diversity of opinion is as essential as the diversity of those who make up the community.

I have posited a solution that recognizes and upholds freedom of expression and yet recognizes that there is a threshold below which untrammeled freedom of expression can cause harm. It is when expression falls below that threshold that the interference of the law is justified,

I have based my proposal upon a term based upon an identifiable and objective consequence – speech which is dangerous – rather than the term “hate speech”. Indeed there are some who suggest that mature democracies should move beyond “hate speech” laws.[37] Ash suggests that it is impossible to reach a conclusive verdict upon the efficacy of “hate speech” laws and suggests that there is scant evidence that mature democracies with extensive hate speech laws manifest any less racism, sexism or other kinds of prejudice than those with few or no such laws.[38] Indeed, it has been suggested that the application of “hate speech” laws has been unpredictable and disproportionate. A further problem with “hate speech” is that they tend to encourage people to take offence rather than learn to live with the fact that there is a diversity of opinions, or ignore it or deal with it by speaking back – preferably with reasoned argument rather than veto statements.

It is for this reason that I have approached the problem from the perspective of objective, identifiable harm rather than wrestling with the very fluid concept of “hate speech.” For that I may be criticized for ducking the issue. The legal solution proposed is a suggested way of confronting the issue rather than ducking it. It preserves freedom of expression as an essential element of a healthy and functioning democracy yet recognizes that there are occasions when individuals and members of groups may be subjected to physical danger arising from forms of expression.

What is essential is that the debate should be conducted in a measured, objective and unemotive manner. Any interference with freedom of expression must be approached with a considerable degree of care. An approach based upon an objectively identifiable danger rather than an emotive concept such as “hate” provides a solution.


[1] Presumably on the grounds that they depict, promote or encourage crime or terrorism or that the publication is injurious to the public good. See the definition of objectionable in the Films Videos and Publications Classification Act 1993

[2] Timothy Garton Ash Free Speech: Ten Principles for a Connected World (Atlantic Books, London 2016) p. 211

[3] US v Schwimmer 279 US 644 (1929)

[4] Daphne Patai Heterophobia: sexual harassment and the future of feminism (Rowman and Littlefield, Lanham 1998).

[5] See Irving v Penguin Books Ltd [2000] EWHC  QB 115.

[6] Jeremy Waldron The Harm in Hate Speech (Harvard University Press, Cambridge 2012 p. 120.

[7] Beauharnais v Illinois 343 US 250 (1952).

[8] Section 307A reads as follows:

307A Threats of harm to people or property

(1)           Every one is liable to imprisonment for a term not exceeding 7 years if, without lawful justification or reasonable excuse, and intending to achieve the effect stated in subsection (2), he or she—

(a)           threatens to do an act likely to have 1 or more of the results described in subsection (3); or

(b)           communicates information—

(i)            that purports to be about an act likely to have 1 or more of the results described in subsection (3); and

(ii)           that he or she believes to be false.

(2)           The effect is causing a significant disruption of 1 or more of the following things:

(a)           the activities of the civilian population of New Zealand:

(b)           something that is or forms part of an infrastructure facility in New Zealand:

(c)           civil administration in New Zealand (whether administration undertaken by the Government of New Zealand or by institutions such as local authorities, District Health Boards, or boards of trustees of schools):

(d)           commercial activity in New Zealand (whether commercial activity in general or commercial activity of a particular kind).

(3)           The results are—

(a)           creating a risk to the health of 1 or more people:

(b)           causing major property damage:

(c)           causing major economic loss to 1 or more persons:

(d)           causing major damage to the national economy of New Zealand.

(4)           To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that a person has committed an offence against subsection (1).

[9] [2013] DCR 482. For a full discussion of this case see David Harvey Collisions in the Digital Paradigm: Law and rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) at p. 268 and following.

[10] Police v Joseph above at [2].

[11] Ibid at [7].

[12] [2011] NZSC 45.

[13] Ibid at para [123].

[14] See Human Rights Commission chief legal advisor Janet Bidois quoted in Michelle Duff “Hate crime law review fast-tracked following Christchurch mosque shootings” Stuff 30 March 2019. https://www.stuff.co.nz/national/christchurch-shooting/111661809/hate-crime-law-review-fasttracked-following-christchurch-mosque-shooting

[15] Human Rights Act 1993 sections 21 – 63.

[16] Ibid section 65.

[17] Ibid section 66

[18] Ibid sections 67 and 69.

[19] The provisions of section 61(1) state:

(1)           It shall be unlawful for any person—

(a)           to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or

(b)           to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or

(c)           to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,—

being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

It should be noted that Internet based publication is encompassed by the use of the words “or other electronic communication”.

[20] Derek Cheng “Winston Peters criticizes Brunei for imposing strict Sharia law” NZ Herald 31 March 2019 https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12217917

[21] New Zealand Law Commission Ministerial Briefing Paper Harmful Digital Communications:The adequacy of the current sanctions and remedies. (New Zealand Law Commission, Wellington, August 2012) https://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20MB3.pdf (last accessed 26 April 2019)

[22] See David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet (Hart Publishing, Oxford, 2017) especially at Chapter 2

[23] Harmful Digital Communications Act 2015 section 11.

[24] Harmful Digital Communications Act 2015 section 22(4).

[25] It may also include a consensual or non-consensual intimate video recording

[26] Harmful Digital Communications Act 2015 section 6. These principles are as follows:

Principle 1  A digital communication should not disclose sensitive personal facts about an individual.

Principle 2  A digital communication should not be threatening, intimidating, or menacing.

Principle 3  A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.

Principle 4 A digital communication should not be indecent or obscene.

Principle 5  A digital communication should not be used to harass an individual.

Principle 6  A digital communication should not make a false allegation.

Principle 7  A digital communication should not contain a matter that is published in breach of confidence.

Principle 8  A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.

Principle 9  A digital communication should not incite or encourage an individual to commit suicide.

Principle 10 A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

[27] http://netsafe.org.nz

[28] Harmful Digital Communications Act Section 22(1)(c)

[29] See Police v B [2017] NZHC 526.

[30] For some of the statistics on prosecutions under the Act see Nikki MacDonald “Revenge Porn: Is the Harmful Digital Communications Act Working?” 9 March 2019 https://www.stuff.co.nz/national/crime/110768981/revenge-porn-is-the-harmful-digital-communications-act-working

[31] Harmful Digital Communications Act Section 16(4)

[32] Harmful Digital Communications Act Section 3(b)

[33] See New Zealand Bill of Rights Act section 6. Note also that the Harmful Digital Communications Act provides at section 6 that in performing its functions or exercising powers under the Act the Approved Agency and the Courts must act consistently with the rights and freedoms provided in NZBORA.

[34] [1999] EWHC Admin 733.

[35] Ibid at  para [20].

[36] Stephen Sedley Law and the Whirligig of Time (Hart Publishing, Oxford, 2018) p. 176-177. The emphasis is mine.

[37] For example see Timothy Garton Ash Free Speech: Ten Principles for a Connected World (Atlantic, London 2016) especially at 219 and following.

[38] Ibid.

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A Century of Crisis?

Simon Wilson has written an interesting article about why he is afraid for New Zealand and the US. In it he revisits a number of themes that are dear to his heart and about which he writes frequently. This first part of a two part journalistic mini-series gathers together those themes under an umbrella of fear and concern that possesses Wilson and his world-view. Yet he holds out hope for the future and Part 2 will make an interesting read.

However there is a section in Part One where Wilson has either overlooked, forgotten or ignored history in developing the rhetoric of his polemic. He says:

THE WORLD has changed. We’re into the third decade of the 21st century and if it wasn’t clear from 9/11 and the GFC, it surely is now: this is the Century of Crisis.

The most recent crisis is Covid 19.

But does the first twenty years of the 21st Century present us with a more crisis ridden environment than any other. One has only to look back at the twentieth century which saw two global conflicts – World Wars 1 and 2 although Philipp Bobbit in his excellent “The Shield of Achilles” considers the inter-war period to be a pause in what was a continuing conflict. There was a global pandemic – Spanish flu.

There were a number of mini-crises leading up to World War 1 which characterized the last few years of the nineteenth and the first 14 years of the twentieth century. The Fashoda crisis of 1898, The Boer War which began in earnest in 1899 and ran into the next century, the various confrontations in Morocco, the Balkan Wars of 1912 – 1914. And these are only the problems facing Europe. There were rebellions in China, a war between Japan and Russia and finally the assassination in Sarajevo which was the spark that ignited the explosives of world conflict.

After the 1914 – 18 Conflict there were on-going crises – economic in the form of the problems facing Germany and finally the Great Depression – political especially in the form of the rise of fascism and the continuing crises involving Germany with the Occupation of the Rhineland, Aschluss, the Sudeten Crisis and finally the invasion of Poland which started (or revived) international warfare, not to mention the Spanish Civil War.

Following World War II there were a number of crises including the on-going Cold War, the Berlin Crisis of 1948 and 1961, the Soviet invasion of Hungary in 1958 and the suppression of Prague Spring in Czechoslovakia in 1968, the Cuban Missile Crisis of 1963, the Vietnam War, the economic crisis in 1987 – which hit New Zealand worse than many economies, the Asian financial crisis on the 1990’s  – and the Gulf War of 1990 – 91.

So to describe the present century as a Century of Crisis overlooks the historical record.

The reality is that EVERY century has its share of crises. Each poses its own challenges. We are not unique when the historical record is considered.

Perhaps instead of characterizing these first few years as indicative of a Century of Crisis they could be seen as heralds of yet another century of crises. What has happened so far hardly justifies the dignity of capitalisation which suggests a uniqueness that is not present.