Withdrawing the “Hate Speech” Amendment

February 10, 2023 The IT Countrey Justice "Hate Speech", Dangerous Speech, Freedom of Expression, Freedom of Speech

Earlier this week it was announced that the Govenment intended to witrhdraw the Human Rights (Religous) Amendment Bill. The Bill was designed to deal with what is generally referred to as “hate speech” against religous groups. The issue is now going to be referred to the Law Commission. The terms of reference for the Law Commission have yet to be released but I would imagine that they will be considerably wider than “hate speech” againts religous groups.

I made a submission the the Select Committee on the Bill. I thought that I would make it available via this medium, given that I have earlier posted on the subject of “hate speech” and freedom of expression.

The submission follows:

Summary of the Argument

My starting point is that this amendment is problematic and should not proceed in its current form.

In summary I consider that the amendment constitutes an unjustified interference with the freedom of expression guaranteed under the New Zealand Bill of Rights Act 1990 (section 14) and the right of a person guaranteed under the New Zealand Bill of Rights Act 1990 (section 15) to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

In addition, I submit that the proposed amendment is unduly discriminatory for it protects those who have a religious belief. It offers no protection for those who do not have such belief but who have an ethical belief. To be consistent, if the Legislature wishes to protect belief systems (whether religious or otherwise) there should be protection for those who subscribe to ethical belief systems.

Thirdly I submit that if there is to be protection for those who practice religious or ethical beliefs, there should be an exception similar to that which appears in section 29J of the Public Order Act 1986 (United Kingdom).

There are also some definitional difficulties. “Religious belief” is not defined whereas in the principal Act ethical belief is clearly defined. My suggestion (which I shall develop in the submission) is that the term “religious belief” should be substituted with “faith based belief”.

The term “harm” is not defined and should be clarified. At the moment the term is too wide and imprecise and could well result in an unjustified limitation on the freedom of expression.

Discussion

Bill of Rights Act Issues

The starting point for a discussion of this amendment is that it constitutes an interference with the freedom of expression as well as having an impact upon the freedom of religion guaranteed under the New Zealand Bill of Rights Act 1990 (NZBORA).

Any interference with the rights guaranteed under NZBORA should be limited to that which is absolutely necessary to protect a group from a clearly defined outcome.

The proposed amendment poses some difficulties insofar as the limitation of these rights is concerned. In a number of respects the two rights are entwined. The religious belief right involves the manifestation or witness of that belief coupled with the practice or teaching of that belief. This necessarily involves communication at which stage the freedom of expression right is engaged.

Because faith-based belief is strongly held, discussions surrounding doctrine or belief systems can become highly contentious and emotive. Care must be taken to ensure that the spirited nature of faith-based debate is not inhibited.

If there is to be a restriction of the NZBORA rights to which I have referred, those restrictions must be clearly expressed. As the proposal in the Bill stands this clarity is absent.

The extent of the restriction of a NZBORA right must be necessary. The following is a test for the scope of such necessity.

The Scope of Necessity

Without the requirement to comply with NZBORA, restrictions on expression could fall within what is referred to as the “harmful tendency test”.

This is based on a vague, general fear that the speech might indirectly contribute to some possible harm at some indefinite future time. This test is quite extensive in its effect and could allow the State to punish speech that contained ideas that it opposed or did not favour. That includes speech that criticized government policies or officials.

The provisions of NZBORA and the fact that a restriction on a right must be necessary demands a higher test. This stricter test is known as the “emergency” test. Under this test the State could punish speech only when it poses an emergency – that is when it directly, demonstrably and imminently causes certain specific, objectively ascertainable serious harms that cannot be averted other than by censorship. This would fulfil the necessity requirement for an abrogation of a NZBORA right.

The issue then is whether the language of the amendment falls with the emergency principle or whether it is more oriented towards a harmful tendency model.

I suggest that the language which makes unlawful excite hostility or ill will against or bring into contempt or ridicule a religious group does not contain the necessary element of immediacy of harm that would bring the speech within the “emergency” test and therefore demonstrates that the amendment falls within the “harmful tendency” test.

It is submitted that this is insufficient to warrant an abrogation of the rights under NZBORA guaranteed for section 14 and 15. The insufficiency of language is further demonstrated by a semantic analysis.

The words ‘excite hostility against’ or ‘bring into contempt’ any group (s.61) or threatening, abusive, or insulting and which are likely to ‘excite hostility or ill will against, or bring into contempt or ridicule’ (s.131) are imprecise.

The use of the word “hostility” is a part of this absence of precision. “Hostility” and its close relation “hatred” are powerful words.

The emotion of “hatred” or “hostility” is far deeper and more visceral than that which may be engendered by abusive or insulting speech. Abusive or insulting speech may be rude, uncouth, ill-mannered or offensive. It may prompt a reaction or a response from the person against whom it is directed. But it would be unlikely to be able to go so far as to stir up hostility towards a group of people based on a shared characteristic.

To engender the incitement of hatred or hostility the language used would have to be far stronger. For this reason it is my submission that the language must be such that it stirs up, maintains or normalizes violent 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 or that a person says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for or threatens violence or hostile action against such group of persons.

This emphasizes the importance of the speech engendering or threatening violence or hostile action. There must be an immediacy of harm or threat – what is referred to as the “emergency” principle – a clear and present danger arising from the speech.

It eliminates the slippery and emotive concept of hate or hostility and rather emphasizes the importance of characterizing the speech as dangerous. The emphasis is upon hostile speech because hostility is more capable of being resolved into action.

The quality of the published material and what it seeks to achieve is related to the concepts of violence and hostility but removes the qualities of threat, abuse or insult.

The use of those terms in any proposed legislation would water down robust speech to virtually nothing and would go far beyond what is generally understood by “hate” speech. As I have said, 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 “Religion” Problem

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 in the March 2019 terrorist attack? And if religious groups are to be added, extreme care must be taken not to unnecessarily abrogate the NZBORA rights contained in sections 14 and 15.

The difficulty with including threatening, abusive or insulting language against groups based upon religion means that not only would Islamaphobic “dangerous speech” be caught, but so too would the anti-Christian, anti-West, anti “Crusader” rhetoric of radical Islamic jihadi groups be caught.

Would the 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?^[1]

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.

A further example may be seen in statements of faith.

The Shema Yisrael provides an example of the potential for faith based disputation.

The Shema is the centrepiece of morning and evening Jewish prayers. It states as follows:

Sh’ma Yisrael Adonai Eloheinu Adonai Eḥad: “Hear, O Israel: the LORD is our God, the LORD is One.”

A further example could be taken from Islam’s Shahada “”Lā ʾIlāha ʾIllā Allah, Muḥammadun Rasūl Allah” – “There is no God but God and Muhammad is His Prophet”.

Both statements occupy a number of different levels of meaning.

First, to the devout Muslim or Jew it is a statement of belief and faith.

Secondly, to the devout Muslim or Jew it is a statement of fact – although that cannot be empirically proven and that qualification alone would challenge a devout Muslim.

Thirdly, it is a challenge to any other belief systems that if they hold that there is any other God but Allah or the LORD (Adonai), their belief is false. To many true believers in other religions that could amount to a serious and aggressive challenge.

Thus it can be seen that in a statement as seemingly innocent as the Shahada and the Shema Yisrael there are layers of meaning that could be considered abusive or insulting yet represent some of the fundamentals of muscular and vigorous religious debate.

These examples illustrate 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.

At the moment the test in the Human Rights Act is the “harmful tendency” test – an approach that is problematical in that there need be no immediacy of danger. This contrasts with the “immediacy” or “emergency” test which requires that the speech carry with it a threat of imminent danger of physical harm and which I have discussed above. This more stringent emergency test would bring the speech within a justifiable limitation of the s. 14 NZBORA guarantee of freedom of expression.

Those who advocate a “harmful tendency” test claim that although there may be no immediacy of harm, nevertheless repetition of the message may elevate the risk. In my view it would have to be proven that mere repetition removes the speech from the “viewpoint neutral harmful tendency” position to that of immediacy of harm.

For all the reasons above, I do not consider that it is necessary for religious groups to be included in sections 61 and 131 of the Human Rights Act.

In the event that it is decided that religious groups should be included in sections 61 and 131, I emphasise the necessity for precision in the language of the sections.

I am also of the view that to merely provide protection for religious groups is discriminatory in and of itself. I develop this in the next section of this submission.

The United Kingdom Position

The issue of restrictions on religious speech are the subject of a specific exception in the UK. 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.

The Christchurch Royal Commission’s view was that such an exception would make the offence of inciting racial or religious disharmony – especially the latter – unworkable.

It seems that the Royal Commission misunderstands the nuance behind the exception.

The UK exception goes not to the workability of the proposed amendment but rather to the quality of the discourse and recognises that religious debate can become passionate and heated which is a historical fact. Differences over belief systems have long prompted vigorous and highly charged discussion and language.

The exception does not go so far as to allow for the advocacy of violence or hostile action which would fulfil the immediacy or emergency test. It could be argued that because the immediacy test 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.

Definitional Difficulties

Excite Hostility

The language of the proposal adopts the “harmful tendency” approach to limiting the freedom of expression. This restricts expression based on an as yet undetermined potential for harm rather than actual or real threat of harm.

In this respect the use of the words “excite hostility” results in imprecision. I suggest the use of the word “incite” for the following reasons:

The verb “to incite” means to urge or spur on; to stir up, animate, instigate or stimulate to do something or towards some action.[2]

“Stirring up” could be said to be an action that precedes incitement, although it is included as part of the definition cited above. Incitement, however, goes further. It suggests that the inciter expects and intends some sort of action or response to the words that are being used.

Incitement goes beyond engendering an emotional response (which is what hatred or hostility is). It seeks the deployment of hatred or hostility towards some end which aligns with my proposal above that hatred or hostility should be considered within the context of threatened violence or hostile action.

If “incitement” or “stirring up” is not associated with an active consequence it would mean that the law is prohibiting the instigation of an emotion without an associated action.

It can be no offence to harbour an emotion or a belief that is so strongly held in a negative sense that it amounts to hatred or hostility. To do so would be to create a “thought crime”. The criminal law addresses behaviour. It does not address feelings. In the case of hatred or hostility it must be manifested in some form of behaviour or threatened behaviour.

It should be noted that the words “stir up” appear in corresponding legislation in the United Kingdom, rather than the word excite. The verb “excite” is used in a slightly unusual sense in section 131 of the Human Rights Act 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.

It will be seen from the above discussion that a greater degree of precision is required in the proposed language of the amendment.

Religious\Ethical Belief?

It should be noted that other prohibited areas of discrimination include ethical belief, which is defined as the lack of a religious belief, whether in respect of a particular religion or religions or all religions.

If the Legislature were to be serious and evenhanded about faith or non-faith based types of discrimination, ethical belief should have been included.

Although ethical belief is clearly defined, religious belief is not. What is religious belief. Does it mean theism in the broadest sense or a belief system surrounding a certain faith based credo such as Buddhism, Islam, Shintoism or Christianity. Religious belief, notwithstanding the definition, can and often does include ethical belief. Christianity has significant ethical underpinnings associated with a faith-based credo.

In my view, to be consistent in approach with definition, the term “religious belief” should be replaced with “faith-based belief”. This term is used in the explanatory statement and more correctly defines the nature of the belief and more clearly distinguishes it from “ethical belief”

Harm

The term “harm” is not defined and this should be clarified.

“Harm” is defined in the Harmful Digital Communications Act 2015 (HDCA) as meaning “serious emotional distress”. It should be noted that the HDCA provides remedies for individuals in the context of electronic communications. It is an example of “internet exceptionalism” for the nature of the wrongs specified in that legislation do not exist in the “real” or “kinetic” world.

Within that context there would be difficulties for faith-based groups to establish that harm had been caused to the group rather than to any individuals within the group. The responses of the various members of a group may vary widely to any perceived antagonistic statement.

This highlights the need for precision in the approach to be taken. The “emergency” test would mean an immediacy of threat of physical harm to a group or to members of a group based upon their faith.

As matters stand there is little if any evidence of an immediate threat. The Regulatory Impact Statement which points to a lack of evidence of the harm identified.

In my submission the term harm should be defined as “a realistic threat or danger of physical harm” which would clearly encompass the “emergency” test.

Conclusion

In conclusion I submit as follows:

The references to exciting hostility or causing harm should be redefined to for the abrogation of a NZBORA right
There should be a clear exception that would allow for spirited, robust and at time confrontation religious debate similar to the provisions of section 29J of the Public Order Act 1986 (United Kingdom)
It should be made clear that the protections proposed and available under sections 131 and 161 of the Human Rights Act should not only extend to religious belief but also to ethical belief as defined in the principal Act.

[1] 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

[2] Oxford English Dictionary 2^nd ed.

Religious “Hate Speech” under the Human Rights Act 1993

November 20, 2022 The IT Countrey Justice "Hate Speech", Dangerous Speech, Freedom of Expression, Freedom of Speech

Introduction

The Minister of Justice has released the long-awaited “hate speech” proposals. The press release dated 19 November 2022 states:

“Currently, under the Human Rights Act 1993, it is illegal to publish or distribute threatening, abusive, or insulting words likely to ‘excite hostility against’ or ‘bring into contempt’ any group on the grounds of colour, race, ethnic or national origins. Those grounds will now be extended, in both the civil (section 61) and criminal (section 131) provisions, to cover religious belief.”

This article considers the policy that has been announced and is a “first impression” overview of the proposal.

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.

Human Rights Act – Sections 61 and 131

The Act prohibits a number of discriminatory practices in relation to various activities and services.^[1] It also prohibits indirect discrimination which is an effects based form of activity.^[2] Victimisation or less favourable treatment based on making certain disclosures is prohibited.^[3] Discrimination in advertising along with provisions dealing with sexual or racial harassment are the subject of provisions.^[4]

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.[5]

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:

Likely to excite hostility against or
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.

Section 131 of the Human Rights Act 1993 creates the offence of inciting racial disharmony[6]. The unlawfulness of the communication in s.61 becomes an offence under s. 131. Pursuant to section 132 a prosecution for an offence under section 131 requires the approval of the Attorney-General.

These provisions could well apply to “dangerous speech” – a terms that I prefer to the emotionally overburdened term “hate speech”.

Is it necessary, therefore, to extend the existing categories in sections 61 and 131 to include religion.

Religion

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.

For some groups such a statement may be an invitation to violence against the speaker.

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

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.

At the moment the test in the Human Rights Act is what may be called a “harmful tendency” test – an approach that is problematical in that there need be no immediacy of danger. This contrasts with the “immediacy” or “emergency” test which requires that the speech carry with it a threat of imminent danger of physical harm. This more stringent test would bring the speech within a justifiable limitation of the s. 14 NZBORA guarantee of freedom of expression.

Those who advocate a “harmful tendency” test claim that although there may be no immediacy of harm, nevertheless repetition of the message may elevate the risk. In my view it would have to be proven that mere repetition removes the speech from the viewpoint neutral harmful tendency position to that of immediacy of harm.

The UK Approach

The issue of restrictions on religious speech are the subject of a specific exception in the UK. 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.

The Christchurch Royal Commission’s view was that such an exception would make the offence of inciting racial or religious disharmony – especially the latter – unworkable. This is correct if indeed it were deemed necessary to have religion included in the Human Rights Act categories. It seems that the Royal Commission was putting the cart before the horse.

The UK 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 which would fulfil the immediacy or emergency test. It could be argued that because the immediacy test 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

Towards the end of her press release the Minister made the following comment:

“Some of the debate on this topic over the last year been disappointing, and at times deliberately divisive and misleading, particularly in regard to the proposals that were out for consultation. This is not, and never has been, about the Government wanting to restrict free speech.”

There can be no doubt that this Government characterises dissent or a contrary view as misleading or misinformation. The Minister’s comment continues that hostility towards opposing views. To characterise debate as “disappointing” fails to recognise the importance of debate and the contending views that are present in the community.

Her last sentence is naïve in the extreme. The proposed amendment, while constituting a significant retreat from early pronouncements on the subject of “hate speech” is all about a restriction on freedom of expression – a concept that is wider than “freedom of speech”. People should not only be able to articulate a point of view. Others have a right to hear it.

Perhaps the Minister needs to be made aware of the fact that section 14 NZBORA guarantee not only protects the outward flow of communication – the act of communicating or articulating an idea – but the inward flow as well – the reception of a communication.

In my opinion the proposed change has not been justified and should not be the subject of an amendment to the Human Rights Act 1993.

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

[2] Ibid section 65.

[3] Ibid section 66

[4] Ibid sections 67 and 69.

[5] 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”.

[6] The provisions of section 131 state:

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,—
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
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.

For the purposes of this section, publishes or distributes and written matter have the meaning given to them in section 61.

[7] 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

THERE’S SOMETHING HAPPENING HERE?

November 13, 2022 The IT Countrey Justice Bill of Rights, Censorship, Disinformation, Freedom of Expression, Misinformation, Social Media

Introduction

Bruce Cotterill wrote an opinion piece for the New Zealand Herald. It was published on Saturday 5 November 2022. It was about free speech and entitled “Free speech – worth speaking up for.” It presented some important and compelling arguments in support of the importance and necessity of freedom of speech.

Mr Cotterill’s article attracted some comment. Even something as fundamentally important as freedom of speech is a contentious topic. Critics of advocates of free speech use the ability to express themselves freely in opposition. If it were not for free speech they would be unable to do so. That in itself demonstrates the vital importance of freedom of expression.

One critic of Mr Cotterill’s piece took him to task for conflating freedom of speech issues and disinformation. The reasoning is clear. There is a move afoot to point out and deal with disinformation. That in itself is a freedom of speech issue. No matter how wrong headed a point of view might be, if there is no immediacy of physical harm caused by the expression of the point of view, freedom of expression allows it to be communicated.

I should observe at this stage that rather than the term “Free speech” I prefer to use “freedom of expression.” There are two reasons for this.

The first is that is the term that is used in Section 14 of the New Zealand Bill of Rights Act 1990.

The second is that the right as expressed in section 14 recognises that freedom of expression is a two way street. There is the right to impart information and opinions of any kind in any form – what could be called the “outward flow”. There is also the right to seek and receive information and opinions of any kind in any form – what could be called the “inward flow”.

In the discussion that follows I go another step further than Mr Cotterill and conflate what is referred to generically as “hate speech” with disinformation. Both concepts have freedom of expression implications. My reasons for conflating the concepts will become clear in what follows.

My discussion commences with a prologue, highlighting some of the remarks made by the Primes Minister of New Zealand Ms Jacinda Ardern at the United Nations General Assembly.

These remarks set the stage for the discussion that follows. The starting point for that discussion is the announcement by the Minister of Justice Ms Kiri Allan that “hate speech” legislation – legislation that has had a gestation period that would rival that of a blue whale – will be enacted by the general election in 2023.

The discussion then moves to consider two documentaries that were screened on television during the week of 31 October 2022. One is entitled “Web of Chaos”. The other was the final episode of the series “A Question of Justice” and addresses hate crimes.

I then go on to make some observations about the climate of fear that has continued to develop in New Zealand, fed not only by documentaries such as “Fire and Fury” and “Web of Chaos” but also by some disturbing and sonorous remarks by the Director of the New Zealand Security Intelligence Service, Ms Rebecca Kitteridge.

Taken collectively these various events and pronouncements provide a backdrop against which a discussion of hate speech legislation, mis/disinformation and the tension with the freedom of expression is going to take place.

I pose a question – taken from the opening lines of a 1967 song by Buffalo Springfield entitled “For What its Worth” – “There’s something happening here?”

Prologue

On 23^rd September 2022 Prime Minister Ardern addressed the United Nations General Assembly. She spoke generally of the issues of the day before segueing into a discussion of the new weapons of war, referring to cyber-attacks, prolific disinformation and the manipulation of communities and societies.

The cyberattacks are easily understood. It was the second part that was concerning because the weapons to which Ms Ardern referred were words.

She quickly reassured her audience that “even those most light touch approaches to disinformation could be misinterpreted as being hostile to the values of free speech we value so highly”.

Yet within moments she retreated from that view when she posed the rhetorical question “How do you tackle climate change, if people do not believe it exists?”

The answer becomes clear when you line that comment up against the claim made during the height of the COVID pandemic that the Government was the sole source of truth. The answer is to shut down speech that is hostile to the received wisdom of the Government.

If there is to be a move towards further restrictions of speech – and this is in the wind following the announcement during the week of 30 October that the Minister of Justice will introduce “hate speech” legislation before the next election – who is to decide what speech should be restricted? When does opinion become misinformation? What is an accurate opinion as opposed to an inaccurate one? When does mis/disinformation become “hate speech?” If the law manages to shut down one side of an argument the community is the poorer for being unable to evaluate an alternative view.

Two Documentaries

On 1 November 2022, TV1 screened the documentary “Web of Chaos”. The following day, Prime screened the fourth instalment of the series “A Question of Justice” which addressed hate crimes.

I shall start my consideration of the documentaries by explaining why I conflate disinformation and hate speech.

The predominant theme of “Web of Chaos” is that of disinformation and the way that online networks have enabled its spread. Sadly, at no time is disinformation defined. This is curious because much of the documentary contains interviews or commentary from two academics involved in The Disinformation Project. One of these academics is Ms. Kate Hannah.

Ms. Hannah describes how people are drawn into mis/disinformation networks in in different ways. She refers to the “trad wife” viewpoint. She claims that white Christian pseudo-Celtic pseudo-Nordic ideology lies behind this viewpoint. They (presumably the “white Christian pseudo-Celtic pseudo-Nordic”) use Pinterest and Instagram to draw in other women who are interested in interior design, children’s clothing, knitting, healthy food for children.

From this innocent start people are drawn in towards a set of white nationalist ideas. Fair skinned children with braids is a danger signal according to Ms Hannah. She did not explain why this was the case.

She then referred to the association of these ideas with a toxic masculinity which had

”…very fixed ideas about gender roles, race, ethnic identity, national identity, nationalism and rights to things like free speech – very influenced by a totally US centric model.” (“Web of Chaos” at 21.5)

In essence these characteristics, according to Hannah, derive from US based alt-right perspectives.

If I understand Ms Hannah’s position disinformation is associated with extremist ideologies. These ideologies are nationalistic, white supremacist and far right.

This may be viewed alongside the material presented in the documentary by Professor Lisa Ellis, Political Philosopher, Otago University. She commented on some aspects leading to the rise of the Nazi’s in 1930’s Germany. The racist hatred of Nazis is reflected in some modern extremist organisations. Ms Hannah and Professor Ellis focus on the Far Right but similar racist hatred is expressed in other ideologies represented by Al Quaeda or ISIS.

The Stuff documentary “Fire and Fury” – which I have written about here – dealt with the rise of disinformation and the way in which that led to radical and violent action and extreme expressions of hatred especially towards politicians.

The very clear message from these sources is that disinformation and racial hatred or hate speech are two sides of the same coin. According to Ms Hannah they are inextricably intertwined. One inevitably leads to another. It seems that any discussion of disinformation ultimately ends up in a consideration of hate speech or extremist speech.

In her address to opening of New Zealand’s Hui on Countering Terrorism and Violent Extremism – He Whenua Taurikura the Ms Ardern made a similar association between disinformation and violent extremism. I discuss this in detail below.

It is for those reasons that I conflate disinformation and hate speech as both worthy of consideration in a discussion about freedom of expression.

1 November 2022 – Web of Chaos – TV 1

This TV programme was described as “A deep dive into the world of disinformation, exploring why it’s spreading at pace throughout Aotearoa and the world, with specialists warning of striking consequences for social cohesion and democracy.”

In many respects, both in the manner of presentation and the content presented it bore a close relationship to the “Fire and Fury” documentary put out by Stuff. It starts with a recognition of the way in which online platforms can enable communities but then rapidly descends into a critique of what is described as cultish behaviour.

Kate Hannah was joined by Dr. Sanjana Hattotuwa, also of the Disinformation Project and assisted by David Farrier, described as a journalist and podcaster. Farrier tracks the development of Internet communication from the early days of discussion groups to the current world of social media platforms and algorithm driven content.

A fair section of the programme focusses upon the Wellington Protests of February – March 2022, covering the same material as “Fire and Fury” and expressing similar concerns about perceptions of violent radicalism or extremism. A concern by Dr. Hattotuwa is that the Internet provides a means of communication and connection between previously isolated radicals. He describes it as the algorithmic amplification of psychosis.

Although it is not clearly explained there is ample evidence to establish that social media platforms use algorithms in the background. These algorithms are designed to track the search or interest patterns of a user and then provide more information of a similar type. The problem is that as the user follows a particular interest, more and more information associated with that interest will be provided. This can be troublesome if the users’ interests are oriented towards violence or extremism. More problematic is the situation where a user may hover around the edges of extremist content but be served up more and more content of that nature.

Both Dr Hattotuwa and Ms Hannah immerse themselves in the vast amount of what comprises misinformation, disinformation and radical extremism online.

Dr Hattotuwa subscribes to 130 Telegram channels and groups. He concedes he does not read everything that comes across his screen. Because of the way he organizes the information, he claims that he gets an insight into the mindset of the people who frequent the channels.

Dr Hattotuwa discussed what he calls toxic information and commentary including material directed about the Prime Minister. What was extraordinary was the suggestion that this toxic informational landscape was being used by 350,000 New Zealanders – all grooming and harvesting. Dr Hattotuwa emphasizes “It is here. It is amongst you” (“Web of Chaos” at 29.30). No evidence is offered to support either the numbers or the assertion.

Ms Hannah expressed concerns about death threats that she received and records the ritualistic washing of hands she undertakes before she examines archival material – a form of symbolic disengagement from reading unpleasant material. She does the same investigating information on the computer. Dr. Hattotuwa describes how he has two showers a day to symbolically wash away the detritus of the online material he has been viewing. These actions on the part of two individuals who are meant to be carrying out dispassionate and objective research is interesting if only for the level of subjectivity it introduces.

Marc Daalder – reporter on Technology and the Far Right which must be a clear indicator of other than an objective perspective – suggests that although there may not be funding of extreme groups in New Zealand the Internet allows the importation and availability of this material.

Ms Hannah suggests that groups are using New Zealand as a laboratory for disinformation strategies to see if they work.

The documentary offers no solutions other than to have Professor Ellis observe that today’s Digital Natives are less likely to be taken in by mis/disinformation and Conspiracy theories. She holds out some hope for the future.

What the documentary does do is to further enhance the aura of fear that was generated by the “Fire and Fury” piece, identifying what is perceived as a problem but leaving the door open as to solutions.

The conflation of disinformation with hate speech suggests that whatever proposals there may be for restricting or limiting hate speech should be applied equally to disinformation and possibly even misinformation. This would result in a significant limitation upon the freedom of expression.

Ms Hannah and Dr Hattotuwa expressed their views in the “Fire and Fury” documentary as well as the “Web of Chaos” documentary. They are entitled to express their views. My suggestion is that those views should be approached with caution. Although they may be able to point to evidence of what they describe as mis/disinformation, the way in which they interpret that evidence gives me some cause for concern.

Certainly they are neither dispassionate nor objective about their topic. This is evidenced by the reactions that they have to the content of the material that they view. They clearly are responding subjectively to it. They make value judgements rather than empirical or descriptive ones.

One astonishing connection was made by Ms Hannah to which I have referred above. In her discussion about connection between white nationalism and the slide towards extremism she said that an identifier of the groups of which she was critical involved the “advocacy of rights to things like free speech.” (My emphasis)

I trust Ms Hannah does not stand by that generalization. The implication is clear. If one is an advocate of rights such as free speech, one is a right-wing extremist, supporting white nationalism or white supremacy.

That conclusion cannot be supported by the facts. Those who advocate liberty are not extremists. Those who advocate freedom of expression are not far-right wing. For example, an examination of the Council of the Free Speech Union reveals some commentators who occupy a position on the Left of the political spectrum.

Ms Hannah’s sweeping generalisation does neither her argument nor her credibility any good. Dr Hattotuwa’s unsupported assertion that 350,000 subscribe to the toxic informational network does little for dispassionate analysis or objectivity.

Indeed, examples such as this cause one to examine with a greater critical lens, the assertions and validity of material that emanates from the Disinformation Project.

Indeed the whole tone of the “Web of Chaos” documentary had a whiff of hysteria to it. Suggestions of a far-Right conspiracy peddling disinformation with the objective of destroying democracy echo the themes underlying “Fire and Fury”.

This was my conclusion on that documentary

What the Fire and Fury documentary seeks to do is re-channel that fear to a form of opposition to and distrust of the contrarian movement. But after viewing the documentary I was left with an uncomfortable feeling. In all the talk about the weird conspiracy theories put about by the contrarians perhaps the underlying theme of the documentary is a conspiracy theory itself and it seemed to come from Kate Hannah who is one of the heads of the Disinformation Project. She implies that the real threat to democracy comes from a few people given to euphemistic language who make no secret of their views, who are openly all over social media, making no secret of their views and who are well known to Police and the Security Services. Do we really need to fear this vocal minority.

Perhaps Fire and Fury is an example of a mainstream media-based conspiracy theory based on fear and should be treated as such. Or perhaps it is rather a tale told by an idiot, full of Sound and Fury signifying nothing.

One writer described “Fire and Fury” as an example of agitprop. I am driven to agree. I ascribe the same word to the “Web of Chaos” documentary.

2 November 2022 – A Question of Justice – Hate Crimes

The documentary programme “A Question of Justice – Hate Crimes” was the fourth in a series which examined aspects of the New Zealand justice system. Earlier episodes focused on the role of victims in the system, the over-representation of Maori in the criminal justice system and whether there should be degrees of the crime of murder.

The style of the series was to take a case or a couple of cases as exemplars of a problem and then carry out an investigation focusing on the issues raised by those cases.

The episode on hate crimes focused on the Christchurch mosque attacks and the killing of Jae Hyeon Kim by white supremacists. The programme examined the nature of hate crimes and the proposals by the Royal Commission on the mosque attacks surrounding hate speech.

The documentary used an “investigative team” approach who reported back and developed an itemized set of problems or shortcomings and then examined possible solutions. Each episode focused on a certain case or cases.

The investigators themselves acted as reporters and were clearly neutral. Occasionally questions about shortcomings in the system might arise but these were stratagems for further lines of inquiry rather than criticism or advocacy for a particular point of view or outcome.

Documentary maker Bryan Bruce who leads the series said of the style of the show:

“I try not to go into any investigation with a ‘stance’. What I try to do is formulate questions that hopefully will get to the core of an issue. Then I talk to a whole lot of people wiser than me to try and find the answer”

Speaking of the first programme in the series about victims, Bruce observed:

“If I had to pick one thing that surprised me, it would be that I had always wrongly assumed the State prosecutes an offender to get justice for the victim. In fact, the prosecutor prosecutes the offender on behalf of the Crown and no one actually represents the victim in court… and that’s something I think we need to look at.”

Bruce stated that the overall purpose of the series was to use

“case studies to examine the law by which we are all bound. Viewers, I hope, will find it engaging but the purpose in making the series was not to produce sheer entertainment.”

The tone of the series was more that of the traditional documentary. It was generally dispassionate and objective and helped to identify problems and at time suggesting possible solutions without advocating any particular outcome.

In this respect the approach to hate speech differed from that of “Wed of Chaos” or “Fire and Fury”. In many respects the “Question of Justice” episode benefitted from a more measured and less emotional approach.

Rather than use dramatic footage and video tricks, it focused upon the nature of the problem and, although not specifically identifying it as such, the way in which the Royal Commission had addressed hate speech and the various tensions between freedom of expression and speech which incited hatred and violent action towards others. In this respect one was left with a sense that reason and objectivity predominated, and that some sense had been brought into the debate.

It would have been helpful if the documentary had detailed the solutions offered by the Royal Commission. I have written on the Royal Commission proposals here.

One of the matters that the Commission’s report was to abandon the use of the word “incite”. It suggested that the term “stirring up” was a better one. It described the way in which speech could potentially be transformed into action. However, the documentary closed by focusing on the term “incite”.

One thing that the documentary did not do was attempt to define “hate” or “hate speech”. In this respect it left and interpretative door wide open. It recognized the tension between freedom of expression and harmful speech. It acknowledged the difficulty in where to draw the line. But the wider association of “hate speech” and “disinformation” that has been touted by “Fire and Fury” and “Web of Chaos” remains.

31 October – 1 November 2022 New Zealand’s Hui on Countering Terrorism and Violent Extremism – He Whenua Taurikura

The focus of the hui was the prevention of terrorism and violent extremism. In her opening remarks, Prime Minister Ardern referred to threats to our security. Second and third on the list of the five top threats of most concern to New Zealanders was misinformation and hacking – a reprise of the concerns that she mentioned at the United Nations speech. She went on to say

“Greater efforts are needed to detect dis-information campaigns and networks, and disrupt them, while calling out those that sponsor this activity. We are committed to working with communities, media, academia, civil society, the private sector – especially our social media platforms to counter the threat of disinformation, and I will talk about this and the Christchurch Call in the second part of my speech today.”

In discussing the Christchurch Call, Ms Ardern said:

“There must always be space for radical ideas; these are valued and vital in Aotearoa New Zealand as a free, open, democratic and progressive society.”

A reiteration of her acknowledgement of the importance of freedom of expression that she made at the UN

“However, when dehumanising and hateful ideas are part of ideologies that include hate and intolerance toward specific groups or communities, promoting or enabling violence, these may indicate a path toward violent extremism.”

To deal with this problem she itemized the importance of research the problems arising from the online environment upon which we are dependent and the importance of the international effort – the Christchurch Call.

Using the collective power of national governments who have joined the call the objective is to bring pressure upon technology platforms to change the online and societal landscape.

Ms Ardern then went on to talk about the development of a Strategic Framework for Preventing and Countering Violent Extremism, which includes solutions and approaches developed by society for society. A prevention framework includes a fund for preventing and countering violent extremism. The fund, over three years, will provide grants to civil society and community organisations to support them to deliver initiatives for building resilience to violent extremism and radicalisation.

Finally she stressed the importance of talking about national security, and in this respect the hui was addressed by SIS Director Ms Rebecca Kitteridge.

Ms Kitteridge made the following statement:

“Recognising a potential warning sign and then alerting NZSIS or Police could be the vital piece in the puzzle that ultimately saves lives.”

To that end the SIS has published a guide called “Know the Signs” to help identify terrorists. The Guide is directed towards violent extremism rather than non-violent forms of extremism. Ms Kitteridge suggests that if a person sees something that is “off” or that worries or concerns, the suggestion is to consult the guide and try and work out if the person is on the road to perpetrating an attack.

The guide lists 50 signs from the very obvious (like writing messages on a weapon) to a person who is developing an “us versus them” world view. The SIS is monitoring some 40 – 50 potential terrorists but now a new suspicious class has emerged – those driven by politics. Ms Kitteridge suggests that this could be motivated by the measures that the Government took over COVID or other policies that are interpreted as infringing on rights – what Ms Kitteridge describes as a hot mess of ideologies and beliefs fuelled by conspiracy theories.

It is clear that the publication of the guide means that the SIS recognizes that it cannot do their work alone and that they need the help of the public.

In the introduction to the Guide Ms Kitteridge states:

“I am asking all New Zealanders to look out for concerning behaviours or activities that could be easily observed, and to report them. You may be uniquely placed to see the signs, and to help NZSIS to understand the true threat an individual poses.”

Paul Spoonley obviously buys into the SIS proposal but sees it as a first step. He sees a problem in upskilling people to understand what it is that they are seeing.

So citizens are being encouraged to monitor friends, family, neighbours and those around them, and must be watchful for the “signs”. They must be upskilled to recognize the “signs”. This air of suspicion is grounded upon fear. This has echoes of the “Red Scare” in the USA between 1917 and 1920. The Red Scare was the promotion of a widespread fear of a potential rise of communism, anarchism or other leftist ideologies by a society or state.

There was a second Red Scare in the USA from 1947 – 1957 associated with the rise of McCarthyism and the fear of Soviet espionage in US Government agencies and the “witch-hunts” that followed. Fear and suspicion characterized both of these periods. History is repeating itself but on these shores.

The Fear Factor

When the COVID pandemic hit, the Government was able to obtain compliance with a draconian suspension of our rights and liberties. It did this within a context of a climate of fear. The fear was that if the restrictions were not put in place people would contract COVID and die.

The fear factor was a part of the Government strategy through to the vaccination programme, the mandates that were imposed and through until the so-called “traffic-light” system.

It became apparent, after the numbers began to subside, that the fears of death had been overstated. The “fear factor” was received with skepticism on the part of the public which was prepared to assume risk and take their own measures to protect their health and well being.

Now the fear factor has shifted. The shift has been a gradual one. Instead of the fear of disease and death, what is being advanced is a fear of attacks upon democracy and our way of life – the scare tactics that were applied in the US with the fear of the Communist menace and infiltration.

This narrative began during the pandemic and was highlighted during the vaccine mandates. Those who resisted the mandates – the anti-vaxxers – were viewed as a contrarian threat to the Government line that emanated from “the podium of truth.”

This has morphed into a fear of the erosion of democracy arising from disinformation. The likelihood of terrorism in our own backyard. The need for vigilance. An insidious vaguely identified threat to our way of life.

This fear is magnified by messaging from our politicians. It is suggested that the election next year will be a different one as politicians – at least from the Government – are afraid of walking the streets and canvassing for votes as they once did. An air of hostility is abroad – or at least that is the narrative.

The cultivation of this atmosphere of fear enables the Government to justify erosions of liberty. One example of this will be to target “hate speech” and its close relative, disinformation. A fearful public will be more willing to accept interference with the freedom of expression if it may be seen to address a problem that will supposedly lessen or reduce the fear.

There is a wider issue arising from the climate of fear. I have already addressed it in some detail in an earlier post entitled “Fear Itself”. In that post I conclude with a consideration of the vested interest of mainstream media in promoting the “narrative of truth”. I said there:

Finally it is of interest to observe how vexed the mainstream news media get with the issue of mis/disinformation. Because the warnings emanating from the Disinformation Project, the Chief Censor’s Office and the University of Auckland Centre for Informed Futures, the news media are quick to fan the flames of fear and perhaps overdramatise the significance of the message. But perhaps there is an unstated interest that the news media might have in campaigning against mis/disinformation. In the past they have been the organs of reliable information and their editing and checking systems ensure this.

The Disinformation Project study indicates that on 10 February 2022 misinformation (as they define it) overtook NZ Media for the first time. Perhaps mainstream media has some territory to protect in the contest for the information audience and in fact what they are doing is campaigning strongly against the purveyors of mis/disinformation not to alert the public or perform some altruistic public interest goal but to do whatever they can to protect their own turf, their position as the purveyors of “truth” (despite significant column inches dedicated to “opinion”) and, not least, their advertising revenues and income streams.

I also made some observations on the fear factor engendered by the agitprop “Fire and Fury” documentary. In that piece I said:

It is a matter of comment in mainstream media that some of the leading lights of Voices for Democracy and other contrarian groups are putting themselves forward for election in the upcoming local body elections. Some of them have done so before. None of them have so far been elected. Yet there is concern about contrarians exercising their democratic right to stand for election. As I understand it the availability of democratic process does not depend on the quality of your beliefs, although those beliefs may cause rejection by the electorate.

So where does this leave us. Certainly during the early days of the Covid-19 Pandemic the Government was able to prey on public fears of the outbreak of plague and imminent death to justify lockdowns and to enable the acceptance of discriminatory treatment of citizens based on their vaccination status. The initial response was unplanned but necessary. But we are past that now

What the Fire and Fury documentary seeks to do is re-channel that fear to a form of opposition to and distrust of the contrarian movement. But after viewing the documentary I was left with an uncomfortable feeling. In all the talk about the weird conspiracy theories put about by the contrarians perhaps the underlying theme of the documentary is a conspiracy theory itself and it seemed to come from Kate Hannah who is one of the heads of the Disinformation Project. She implies that the real threat to democracy comes from a few people given to euphemistic language who make no secret of their views, who are openly all over social media, making no secret of their views and who are well known to Police and the Security Services. Do we really need to fear this vocal minority?

Perhaps “Fire and Fury” is an example of a mainstream media-based conspiracy theory based on fear and should be treated as such. Or perhaps it is rather a tale told by an idiot, full of Sound and Fury signifying nothing.

Conclusion – What it Is is Becoming Clear

The debate about so-called “hate” or “dangerous speech” must take place in a calm and objective environment. I realise that this is a sentiment based more on hope than reality, for the subject is an emotive one.

But the debate must not take place against a backdrop of fear which may mean that the solutions proposed are more extreme than the problem itself.

The growing panic on the part of some of misinformation and disinformation feeds into the wider landscape of concerns about “messaging” and, as I have argued, seems to have fed into the “hate speech” milieu with calls for regulation.

Comments like “disinformation corrodes the foundation of liberal democracy” – made by Ms Ardern – add to the scaremongering, softening up the populace so that they become pliable and amenable to greater restrictions on the freedom of expression and ultimately their liberty. It won’t just be about “hate speech.” The net will become incrementally and subtly wider to catch other forms of dissident and contrarian opinion.

Indeed, as Thomas Jefferson said “eternal vigilance is the price we pay for liberty” (1817) but perhaps not the form of vigilance suggested by Ms. Kitteridge.

We must be vigilant to ensure our liberty, and its foundation stone freedom of expression, is not further eroded.

_____________________________________________________________

Postscript

The title of this post is taken from the first line of a song recorded by Buffalo Springfield in 1966 entitled “For What its Worth”. The lyrics follow:

There’s something happening here

But what it is ain’t exactly clear

There’s a man with a gun over there

Telling me I got to beware

I think it’s time we stop

Children, what’s that sound?

Everybody look, what’s going down?

There’s battle lines being drawn

Nobody’s right if everybody’s wrong

Young people speaking their minds

Getting so much resistance from behind

It’s time we stop

Hey, what’s that sound?

Everybody look, what’s going down?

What a field day for the heat

A thousand people in the street

Singing songs and they carrying signs

Mostly say, “Hooray for our side”

It’s time we stop

Hey, what’s that sound?

Everybody look, what’s going down?

Paranoia strikes deep

Into your life it will creep

It starts when you’re always afraid

Step out of line, the men come and take you away

We better stop

Hey, what’s that sound?

Everybody look, what’s going down?

Eroding Freedom of Expression

October 18, 2022 The IT Countrey Justice Dangerous Speech, Democracy, Freedom of Expression, Liberty, Misinformation, Technology Regulation

Introduction

There is an ambivalence in New Zealand towards freedom of expression. Freedom of expression is guaranteed in the New Zealand Bill of Rights Act 1990. It guarantees not only the expression of information – the outward flow – but also the receipt of information – the inward flow.

The ambivalence has been growing. Freedom of expression has been pushed to the margins. Although, with a few exceptions, the Government has not actively or outwardly restricted freedom of expression it has nevertheless narrowed the scope of what may be considered acceptable.

The narrowing of scope has been led by the Prime Minister, Ms. Jacinda Ardern. Ms. Ardern is a trained communicator in that she holds a degree of Bachelor of Communication Studies (BCS) in politics and public relations.

Public relations is the practice of managing and disseminating information from an individual or an organization – in her case the Government – to the public in order to influence their perception. Ms. Ardern has done this very successfully. But in managing and disseminating the Government message she has been very careful to ensure that contrary views, criticism and contradiction are pushed to the sideline, so that those views are diminished and devalued and are of no account.

In this piece I trace the trajectory of the erosions of freedom of expression and the growth of ambivalence towards the expression of contrary opinions. I start with the Christchurch Call – perhaps a curious and non-contentious beginning but one that, as it has progressed, has chilling consequences for freedom of expression. I follow with the “sole source of truth” declaration and then embark upon an excursion into the validation of discrimination as an example of the blasé and contemptuous attitude of the Prime Minister to those who chose not to be vaccinated and who, by implication, express a contrarian perspective. I shall conclude with the latest example of Ms. Ardern’s erosion of the freedom of expression when she addressed no lesser a forum than the General Assembly of the United Nations.

The Christchurch Call

I have written elsewhere about some of the problems with the Christchurch Call. The call to regulate content online is a difficult one as I have pointed out elsewhere. I see this as a starting point for what appears to be an ambivalence or a relativistic approach towards freedom of expression.

The Christchurch Call is a community of over 120 governments, online service providers, and civil society organisations acting together to eliminate terrorist and violent extremist content online. With that objective there can be little dispute. The difficulty is that extremist content, abhorrent though it might be, should still be allowed a voice as long as it does not advocate imminent harm to people or property. For a discussion of assessing whether expression should be stifled or censored see here.

The Christchurch Call has noble goals but there are a number of concerning features about it.

It is government led – the principal drivers for the Call are national governments. Whilst preventing terrorism is necessary for the safety of civil society, such projects may develop “mission creep” and although there is a recognition of the importance of the freedom of expression, “extremism” or “extremist speech” are slippery concepts and depend very much upon the eye of the beholder and the ear of the listener.

As an example of the issue of “mission creep” the scope of the areas of concern for the Call are expanding to include algorithms, radicalization and gender. The targets of extremism have been expanded to women, LGBTQIA+ communities, youth, and intersectional communities – quite a reach beyond the terrorist lone wolf shooter or bomber and a clear indicator that what the Call is really about is “hate speech.” I have discussed whether “dangerous speech is a better term and how it should be dealt with here and here.

The Call seeks to achieve a “safer Internet” and has enlisted not only national governments but private organisations and some of the tech platforms.

The Call states that

“the future of the internet and the future of our free, open, societies are intertwined. As we look ahead our legacy must be a free, open, secure and interconnected global internet as a force for good, a place where human rights are promoted and upheld and where technology contributes to social mobility and empowerment for all.”

These are laudable goals but the subtext is one of overall control and more importantly overall control of a communications medium. And such control must necessarily impact upon freedom of expression.

The final paragraph of the 2022 Communique issued by Ms Jacinda Ardern and M. Emmanuel Macron is a chilling example of the possible “mission creep” to which reference has already been made.

“Ahead of the Paris Peace Forum, New Zealand, France, and other Call community members with an interest will consider some of these related issues – including disinformation, harassment, abuse, and hatred online, and issues affecting youth – to understand how we might apply what we have learned working on the Christchurch Call, where we can support and engage on related initiatives such as Tech for Democracy, the Summit for Democracy, the Freedom Online Coalition, the Declaration for the Future of the Internet, the Aqaba Process, the Global Partnership for Action on Gender Based Online Harassment and Abuse, the Global Partnership on Artificial Intelligence, and the International Call to Stand up for Children’s Rights Online, and where there is multistakeholder interest in new work programmes separate to the Call.”

Clearly the Call methodologies and approach are intended to expand to other areas and issues that are distinct and separate from the central goal of terrorism and extremist content that advocates violence.

This may not amount to a direct assault upon freedom of expression but it demonstrates the willingness with which State and Government actors and representatives are prepared to erode and whittle away freedom of expression from the margins. The use of generalized language such as “extremist” without a clear definition means that, as Humpty Dumpty said in Alice Through the Looking-Glass a word “ means just what I choose it to mean—neither more nor less.”

The Single Source of Truth

On 2^nd September 2020 the Prime Minister of New Zealand, Ms Jacinda Ardern said to the Parliament

“I want to send a clear message to the New Zealand public: we will share with you the most up-to-date information daily. You can trust us as a source of that information. You can trust the Director-General of Health. For that information, do feel free to visit at any time—to clarify any rumour you may hear—the covid19.govt.nz website. Otherwise dismiss anything else. We will continue to be your single source of truth. We will provide information frequently. We will share everything we can. Everything else you see – a grain of salt.”

Although this pronouncement was made in the context of information about the COVID-19 pandemic it is clear that it goes much further.

The levels of meaning that can be drawn from this are as follows:

You don’t need any other information – only ours
Don’t listen to anyone else on the topic – dismiss anything other than our messaging – take it with a grain of salt
We are the single source of truth – an echo of Orwell’s Ministry of Truth
If anyone else expresses a point of view dismiss it (effectively silencing contrary points of view)

This statement discourages any sort of debate, any sort of discourse. Although the freedom of expression protected by the Bill of Rights Act 1990 guarantees the right to impart and receive information, the suggestion that any other person may be able to contribute to the debate is eliminated and the right is negated by the suggestions that no other information is needed apart from that of the State whose pronouncements are “truth” and any dissent should be dismissed.

It is certainly dangerous to the governed in a democracy for any politician, let alone a Prime Minister, to declare that they, or their Government, are a single source of truth.

The Validation of Discrimination

Once the vaccination programme got underway in New Zealand Ms. Ardern endorsed the emergence of a de facto two-tier society.

During a video interview, the PM admitted that the then rules granted vaccinated citizens more freedoms. Asked by a journalist from the New Zealand Herald who asked:

“You’ve basically said, and you probably don’t see it like this, but two different classes of people if you’re vaccinated or unvaccinated. If you’re vaccinated you have all these rights.” Ardern responded enthusiastically, nodding along as she replied: “That is what it is.” She continued:

“If you are still unvaccinated, not only will you be more at risk of catching COVID-19, but many of the freedoms others enjoy will be out of reach. No one wants that to happen but we need to minimize the threat of the virus, which is now mainly spreading amongst unvaccinated people.”

This from a a self-proclaimed believer in the “values of human rights, social justice [and] equality”

What was concerning was that there were many who actually endorsed the two-tier approach, creating division and hostility against those who were unvaccinated or chose not to be. Animus against anti-vaxxers and contrarians began to grow.

Although this may not have a lot to do with freedom of expression the divisiveness that the two-tier approach caused had the effect of marginalizing anyone who expressed a contrary view.

Misinformation and Disinformation

Coincidentally there developed over the pandemic emergency a greater use of two terms – misinformation and disinformation. These became predominantly news media shorthand for any statements that departed from the received wisdom of the government.

Misinformation meant information that misled. Disinformation was false information that the disseminator intended to mislead – in other words lies. The problem was and still is that those words lack certainty. It seems that they mean what people using them want them to mean and consequently they have taken on a perjorative aspect.

In June 2021 the Classification Office, headed by the then Chief Censor Mr David Shanks, released a paper entitled “The Edge of the Infodemic: Challenging Misinformation in Aotearoa”. It argued that misinformation\disinformation (neither term defined in the paper) was a problem, that it came primarily from Internet based sources, that when people rely on misinformation to make important decisions it can have a harmful impact on the health and safety of communities and can also affect us on a personal level, contributing to anxiety, anger, and mistrust.

It argues that that we should be looking at solutions that work to increase access to good information; lower the volume of misinformation; improve resilience to misinformation; and build levels of trust and social cohesion that can serve as a counter to the more harmful effects.

That this document emerged from the Classifications Office is something of a concern. The Classifications Office is involved in the administration of the Films, Videos and Publications Classification Act 1993. That Act allows for censorship of films, videos, publications, and online content in certain limited and restricted circumstances.

It seemed to be part of a concerted effort on the part of the Classifications Office to expand the scope of censorship and information control currently enjoyed by the Classification Office – another example of “mission creep”.

One of the issues that features in the paper is the importance of social cohesion. At first glance this concept is unremarkable. It suggests societal togetherness in the pursuit of common goals.

The problem is in what lies beneath the term. I would suggest that what it really suggests is conformity not so much in behaviour but in thought. The term implies collective agreement or acceptance of a particular narrative – in this case the sole truth that flows from the State.

Thus any expression of disagreement or dissent is seen not only as an affront to the ”truth” propagated by the State but as an assault or an attempt to erode the monolithic structure of “social cohesiveness” or the complacent conformity that the State requires.

Lest it be thought that I am focusing on a single example – “The Edge of the Infodemic” paper – 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.” [1]

Before that, in October 2019 Mr Shanks claimed that an entirely new media regulator may be required.[2]

At the Otago University Conference were two representatives of the Disinformation Project – the Director, Ms. Kate Hannah and Dr. Sanjana Hattotuwa. The Disinformation Project has been observing and analysing open source, publicly available data related to Covid-19 mis- and disinformation on social media, mainstream media, and in physical and other digital forms of information and knowledge dissemination.

From August 2020, the Project expanded its brief (yet more “mission creep”) beyond Covid-19 to consider mis- and disinformation ecosystems in New Zealand, including the seed and spread of ‘dangerous speech’, hateful expression, and criminal behaviour. The scope of the study involved looking at global trends, themes, narratives, and actors who influence online harms in New Zealand.

Although the Disinformation Project is not a State Actor, its commentary and thrust is directed towards material that is considered harmful because it is contrary to the received wisdom that is a part of the Government message. In this way, perhaps unintentionally, the Disinformation Project becomes complicit in the Government as the sole source of truth narrative.

To further emphasise the role of the Disinformation Project, the focus seems to have shifted from mis/disinformation about COVID-19 issues into the wider political scene. Dr Hattotuwa of the Disinformation project in commenting on the role of Voice for Freedom observed that the group skilfully avoids attempts to regulate mis and disinformation and suggests that Voice for Freedom represents a threat to democracy[3] Clearly from this comment the Disinformation Project is suggesting that there should be some form of regulation of mis or disinformation. In the meantime, as Stephen Judd of Fighting Against Conspiracy Theories Aotearoa (FACT), commenting upon contrarian candidates for local body elections, suggests

“People who hold a set of beliefs about the legitimacy of our institutions, and who are conspiracy theorists and who hide that because they think it would harm their chances of being elected, aren’t operating in good faith.

“So, one of the best things we can do is provide more publicity and exposure to candidates because that ultimately is what leads the public to have a fair view of what they are about.”

Thus we have developing a number of strands that seem to be directed towards suppressing or marginalizing dissent or disagreement. Although the Disinformation Project casts a sinister shadow over the terms, and although the Classification Office may see misinformation and disinformation as having potential objectionable qualities, the reality is that every expression of disagreement or dissent, every expression of a contrary view or opinion, every expression of a challenge to the State message is a part of the normal discourse of society. Disagreement is a fundamental aspect of being human. We all have differing points of view, beliefs, values and standards. And it is part of the democratic tradition that we should be able to express those views.

Of course, associated with that is the fact that those who disagree with us must have the right to express that disagreement. And so the cacophony of debate and the exchange of points of view takes place.

It may be that some points of view are strongly contrarian. Some points of view may be wrong-headed or fly in the fact of reason. But they have a right to be expressed and the speakers have a right to be heard in the same way that those to whom they are speaking have a right not to listen.

The problem is that from the State’s point of view, disagreement and dissent are being treated as inimical to the interests of the State. No longer can dissent be tolerated. It is seen as a weapon of opposition – which it frequently is – but so much so that such opposition is characterized as a war with the State.

One of the justifications for the firm line that has been taken by the State arises from the events of February – March 2022 – the Wellington Protest.

The Wellington Protest

The Wellington Protest and the occupation of the grounds of Parliament House in February-March 2022 represented the culmination of a number of contrarian protests against COVID 19 restrictions that had been taking place over the preceding months. The occupation and its violent end have been well covered in the media and do not need rehearsing here. Many people supporting the protesters drifted on and off the site but once the protest had been dispersed it became a symbol for everything that was bad about mis/disinformation and the expression of contrarian views.

Stuff presented a documentary – Fire and Fury – which represented the protest and those involved in a very unfavourable light. I have already commented on the unbalanced approach taken by the documentary, and that it seems to be an example of agitprop but it demonstrates a lack of tolerance about contrarian speech that seems extraordinary for a news media outlet that should be presenting a more balanced view.

The contrarians would suggest that perhaps aided and assisted by a significant influx of Government money to support mainstream news media and guard against mis/disinformation that Stuff and its opinions have been bought and sold. I could not comment on that for I have no evidence to support such an assertion.

However, from the Stuff perspective, the Wellington Protest and the Fire and Fury documentary has become a weapon with which to beat contrarians. Thus those who were standing for local body positions recently who had attended the Protest were identified without more – no examination of their policies; no opportunity for them to provide an explanation for their actions; no evidence of any sort of balance at all. Yet the article making some of these assertions, together with another which identified those who were and were not successful in local body elections were anything but balanced and afforded the contrarians no opportunity to reply or comment.[4] Perhaps the reason for this is that the authors were wary that to ask for comment meant giving the contrarians a platform.

The Wellington protest added fuel to Ms. Ardern’s approach to freedom of expression. She claimed, without identifying any evidence, that there was foreign influence involved in the misinformation. She said:

As we go through a process of accessing what is it that has allowed the growth of misinformation in this country and how do we address that, we will be at pains to ensure that it never becomes an excuse for the violent acts that have happened.

This provides a backdrop to Ms. Ardern’s speech to the United Nations.

The War on Disagreement

The “war with the State” approach to dissent and to disagreement was epitomized by Ms. Ardern, speaking at the United Nations in September 2022.

At the U.N. General Assembly on Friday, Ms. Ardern announced a new initiative “to help improve research and understanding of how a person’s online experiences are curated by automated processes,” saying the work, done in partnership with companies and non-profits, will be “important in understanding more about mis- and disinformation online – A challenge that we must as leaders address.”

It cannot be co-incidental that there had been a meeting of the Christchurch Call participants in New York shortly before Ms. Ardern’s speech.

In the course of the speech she made reference to the way that contrary speech can inhibit or frustrate progress in the implementation of Government policy.

She asked:

“After all, how do you successfully end a war if people are led to believe the reason for its existence is not only legal but noble? How do you tackle climate change if people do not believe it exists? How do you ensure the human rights of others are upheld, when they are subjected to hateful and dangerous rhetoric and ideology?”

She then moved on the discuss how speech and contrarian speech can be used as a weapon. By characterizing the “weapon-like” qualities of speech she shifts the focus from speech as a means of communicating contentious ideas to speech as a contrarian weapon against established thinking or government objectives.

Of course, this characterization of speech demonizes the speaker. It suggests that rather than a means of resolving difference and reaching consensus – or even recognizing that Government policy may not be the desire of the governed – there is a war between contending ideas. And that implies that at the end of the war there must be a winner. As far as Ms. Ardern is concerned, that winner must be the State.

Such a perspective completely ignores that the fact that governments govern with the consent of the governed. If the majority of the governed do not consent, is it suggested then that they are at war with their government?

She then expanded on the “weapons of war” metaphor, at the same time criticizing those who engage in contrarian speech.

“The weapons may be different but the goals of those who perpetuate them is often the same. To cause chaos and reduce the ability of others to defend themselves. To disband communities. To collapse the collective strength of countries who work together,”

But debate is the answer to contrarian speech. If speech is a weapon that may be used in a disruptive sense, that disruption can be answered by counter speech. At least with speech there is an equality of arms, and Ms. Ardern, as a graduate in communications studies, would be and is well skilled in massaging the message.

But she chose a different path. Without explicitly saying so she suggested that there were methods of countering speech that were other than debate, and clearly the subtext of the remarks that follow is directed towards the suppression of contrarian speech.

“But we have an opportunity here to ensure that these particular weapons of war do not become an established part of warfare. In these times, I am acutely aware of how easy it is to feel disheartened. We are facing many battles on many fronts…But there is cause for optimism. Because for every new weapon we face, there is a new tool to overcome it. For every attempt to push the world into chaos, is a collective conviction to bring us back to order. We have the means; we just need the collective will.”

This is the language of authoritarianism although it is expressed in more mellow terms. Given Ms. Ardern’s communication credentials she is able to make authoritarianism look acceptable. But it is, nevertheless, typical of the mindset of the tyrant.

Ms. Ardern is possessed of a high sense of the righteousness of her cause. She does not debate ideas. She rejects them or refutes the premises of opposition without engaging in debate. She therefore avoids confronting the uncomfortable reality that she may be wrong. And by rejecting and refuting she adopts an air of superiority that views dissent as evil and, because it has become “weaponized” it is too dangerous to allow.

It is perhaps evidence of that sense of righteousness that Ms. Ardern went to the UN and called upon the General Assembly, looking for support for her cause. She called upon the nations present to exercise their collective power to deal with this new weapon of war – contrarian speech.

But deeper than that what Ms. Ardern is talking about is ideas. What she is concerned about, what has been “weaponized” is the way that those ideas have been expressed. Ideas that conform with hers are benign. Ideas that conflict with hers must be stamped out. The days of debate are over.

Her speech focused on the alleged scourge of “mis and disinformation online”.

We must tackle it, she said. She acknowledged some people are concerned that “even the most light touch approaches to disinformation” could come across as being “hostile to the values of free speech”.

She is certainly right there. Her approach is indeed hostile to the values of free speech.

When she moved into the “weapons of war” metaphor she was essentially saying that war is speech. Words wound. Ideas kill.

Politicians and those who support the “official position” and who wring their hands over “misinformation” or “disinformation” are usually just talking about beliefs they don’t like. Mis\disinformation are words that are rendered meaningless by misuse.

Ms. Ardern gave climate-change scepticism as an example of one of those “weapons of war” that can cause “chaos”. “How do you tackle climate change if people do not believe it exists?” she asked.

Those who critique climate-change alarmism, those who call into question the ecolobby’s claims that billions will die and Earth will burn if we don’t drastically cut our carbon emissions, is an entirely legitimate political endeavour, contrarian though it might be. However, in treating it as a species of Flat Earthism, as “disinformation”, the new elites seek to demonise dissenters, to treat people whose views differ to their own as the intellectual equivalent of warmongers.

Activists, whose hype about the end of the world could genuinely be labelled misinformation, are never branded with that shaming word. That’s because misinformation doesn’t really mean misinformation anymore. It means dissent. Deviate from the consensus on anything from climate change to Covid and you run the risk of being labelled an evil disinformant.

Indeed, one of the most striking things about Ms. Ardern’s speech was her claim that if the elites ignore “misinformation”, then “the norms we all value” will be in danger. But for her it is dissent that is the enemy. Ms.Ardern does not want a single voice raised against her.

This is the most common cry of the 21st-century authoritarian – that contrarian speech can have a destabilising and even life-threatening impact, especially if it concerns big crises like climate change or Covid-19.

So “climate deniers” are a threat to the future of the human race and thus may be legitimately silenced. “Lockdown deniers” threaten to encourage the spread of viral infection and thus may be legitimately gagged. The spectre of crisis is cynically used to clamp down on anyone who dissents from the new global consensus.

To see how authoritarian the desire to clamp down on “misinformation” can be, it is worth considering other world leaders who used the platform of the UN to call for tougher controls on speech. Muhammadu Buhari, the ruler of Nigeria, focused on his nation’s “many unsavoury experiences with hate speech and divisive disinformation” and joined the calls for a clampdown on the “scourge of disinformation and misinformation”. Russia’s Foreign Minister, Sergey Lavrov, bemoaned the “disinformation” against his nation. Those supporting Ms. Ardern for standing up to “fake news” are implicitly cheering Buhari and Lavrov, too. They are as one with her when it comes to chasing “misinformation” from the public sphere.

Freedom of expression isn’t only threatened by obvious strongmen – like the rulers of Nigeria or the theocratic leaders of Iran. Ms. Ardern’s UN speech exposed the iron fist of authoritarianism that lurks within the velvet glove of liberal kindness.

Conclusion

In this piece I have mapped a trajectory of gradual erosions of freedom of expression in New Zealand. It is the job of an historian to look at the evidence and interpret it. The evidence in the matter or erosions of freedom of expression in New Zealand starts with the Christchurch Call. The initial target was discrete although the widening of the scope to include extremist speech was modified by the word “violent”.

It was at this time concerns were expressed about “hate speech” although that particular project, signalled by the Government as a matter of concern, appears to be of lesser importance than it was following the events of March 2019 and the Royal Commission Report.

A shift in focus came with the “single source of truth” comments by Ms. Ardern. Although these were outwardly intended to inspire confidence in the truth of the Government messaging, it nevertheless marginalized expressions of contrary opinion and in that respect ramped up the anti-contrarian messaging, consigning it to a “non-truth” category.

The messaging about truth, “non-truth” and the issues of mis and disinformation were picked up by various agencies such as the Disinformation Project and elements of the mainstream news media, reinforcing the Government messaging about the potential damage to Government programmes and policies.

The Wellington Protest fuelled Ms Ardern’s speech at the UN which concludes this discussion and it tells two stories. The first is the chilling of freedom of expression. The second is evidence of the chilling of freedom of expression. International news reports have expressed concern and indeed outrage at Ms. Ardern’s hostile attack on freedom of expression[5]. Has there been such concern expressed here in New Zealand by a news media that is the beneficiary of many millions of Government funding? The rest is silence.

[1] “Battle Against Online Harm beefs up censor’s power” Mediawatch, 21 March 2021 https://www.rnz.co.nz/

national/programmes/mediawatch/audio/2018788055/battle-against-online-harm-beefs-up-censor-spower

(last accessed 3 July 2022).

[2] https://www.stuff.co.nz/technology/digital-living/116776465/chief-censor-david-shanks-says-an-entirely-new-media-regulator-may-be-needed

[3] Charles Mitchell and Andrew Vance “Around 3000 people are running for council, more than 200 have promoted false information or conspiracies” Stuff 8 October 2022 Around 3000 people are running for council, more than 200 have promoted false information or conspiracies | Stuff.co.nz

[4] Andrea Vance and Charlie Mitchell Stuff 9 October 2022 https://www.stuff.co.nz/national/politics/local-body-elections/130114188/fewer-than-a-dozen-disinformation-candidates-elected-to-councils

[5] Rita Panahi “’Fake Queen of Empathy’:Ardern’s UN speech described as ‘disturbing, dystopian and dangerous’” Sky News 3 October 2022 https://www.skynews.com.au/opinion/rita-panahi/fake-queen-of-empathy-arderns-un-speech-described-as-disturbing-dystopian-and-dangerous/video/b8a7865217f1325e59884dd9a23b4c7b

The Times view on Jacinda Ardern and Liberty: Unfree Speech – The Time 3 October 2022 https://www.thetimes.co.uk/article/the-times-view-on-jacinda-ardern-and-liberty-unfree-speech-bqnqzp7mt

“Woke Queen Ardern wages war on free speech” The Australian 3 October 2022 https://www.theaustralian.com.au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww.theaustralian.com.au%2Fcommentary%2Fwoke-queen-arderns-war-on-free-speech%2Fnews-story%2Fb221012efa2dde6ab6e332f5c85626b9&memtype=anonymous&mode=premium&v21=dynamic-groupa-control-noscore&V21spcbehaviour=append

“New Zealand PM Jacinda Ardern condemned for comparing free speech to ‘weapons of war’ at UN” New York Post 29 September 2022 https://nypost.com/2022/09/29/new-zealand-pm-condemned-for-calling-free-speech-weapons-of-war-at-un/

“New Zealand prime minister condemned for calling to regulate free speech as a ‘weapon of war’ at UN” Alexander Hall, Fox News 28 September 2022 https://www.foxnews.com/media/new-zealand-prime-minister-condemned-calling-regulate-free-speech-weapon-war-un

Testing Expression

September 15, 2022 The IT Countrey Justice Censorship, Dangerous Speech, Freedom of Expression

Introduction

There seems to be an ambivalence in New Zealand about freedom of expression. Although the right to communicate and receive information is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, the exercise of that right in certain circumstances is questioned. Indeed there seems to be a shift towards banning or censoring some manifestations of expression. In this piece I outline the approach that should be adopted to controversial speech, and the rare circumstances in which censorship – an extreme remedy – should be contemplated. The approach that I have developed owes much to the material in Professor Nadine Strossen’s excellent book “Hate: Why We Should Resist It With Free Speech Not Censorship”

The Approach

There are two major principles that must guide an assessment of whether or not an expression should be stifled, censored or punished. These principles are known as the emergency and viewpoint neutrality principle. They have developed in the United States but can operate as useful guidelines for an approach to the application of the freedom of expression guarantees in the New Zealand Bill of Rights Act 1990.

As freedom of expression jurisprudence developed in the United States of America, the Supreme Court held that a government could punish speech based on a feared “bad” or “harmful” tendency. This was based on a vague, general fear that the speech might indirectly contribute to some possible harm at some indefinite future time. This could be called the “harmful tendency” test. This test allowed the State to punish speech that contained ideas that it opposed or did not favour. That included speech that criticized government policies or officials.

The ”harmful tendency” approach was rejected by the US Supreme Court in the early twentieth century. It was replaced by a stricter test known as the “emergency” test. Under this test the State could punish speech only when it poses an emergency – that is when it directly, demonstrably and imminently causes certain specific, objectively ascertainable serious harms that cannot be averted other than by censorship. One of those other ways is by what has been described as “counterspeech”.

Counterspeech counters or responds to speech with a message that the speaker rejects. Counterspeech may address various audiences including the speaker and those who share the speaker’s views, the people whom the speech disparages and the general public. It may include denunciations and refutations of the message. It may provide support for persons who the speech disparages. It may include information that seeks to alter the views of the speaker and those who may be sympathetic to those views. If speech does not satisfy the emergency test, the proper response is counterspeech.

Speech should not be the subject of State interference solely because the message is unpleasant, discomforting, disfavoured or feared to be dangerous by the State. This is known as “content or viewpoint neutrality”. This approach prevents the State from regulating speech simply because the speech’s message, idea or viewpoint is unpleasant, discomforting, offensive, disfavoured or feared to be dangerous by government officials or community members. That approach – what could be called “viewpoint discriminatory” regulation – would attack individual liberty but also democratic principles. Officials could use it to suppress unpopular idea or information or manipulate public debate.

Censoring speech because it is disfavoured, no matter how deeply, violates the viewpoint neutrality principle. That principle is also violated when the State suppresses speech about public issues. This can include “hate speech” simply because its views might have a disturbing impact upon the emotions or psyches of some audience members. The State may not punish “hate speech” or speech with other messages simply because of its offensive, discomforting, disfavoured, disturbing or feared message.

Counterspeech is available to address such messages. Only when the speech crosses the threshold into the emergency test – that is when it directly, demonstrably and imminently causes certain specific, objectively ascertainable serious harms that cannot be averted by other than censorship – may the State intervene.

I referred to “hate speech” in the preceding paragraph. I have put it in quotation marks. This is because the term lacks specificity of meaning. Its generally understood core meaning is speech that expresses hateful or discriminatory views about certain groups that historically have been subject to discrimination such as people of colour, Jews, Muslims, women and LGBTQ persons, or about certain characteristics that have been the basis for discrimination such as race, gender, religion and sexual orientation. It is not speech that the listener hates to hear. Only when the speech crosses the threshold and satisfies the emergency test should the State intervene. It is for that reason that I prefer to refer to such speech as dangerous speech because it poses a clear and present danger of serious physical harm.

In New Zealand we have a number of State interventions in the area of speech regulation. These can be found in the Films, Videos and Publications Classification Act 1993, the Harmful Digital Communications Act 2015 and the various sections of the Crimes Act 1961 and the Summary Offences Act 1981 dealing with threatening language or behaviour.

Some of these pieces of legislation provide examples of the emergency test in action. For the provisions of the Harmful Digital Communications Act to be engaged serious emotional distress (harm) must be suffered. Criminal penalties are attracted if the person posting the digital material has the requisite intention to post the material with the associated intention of causing serious emotional distress. Thus actual harm is an element that engages legislative intervention. Mere offence or disfavour is not sufficient.

The declaring of material to be objectionable under the Films, Videos and Publications Classification Act 1993 leans towards a harmful tendency test. Material may be objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good. This definition suggests that the particular publication may be injurious to the public good – not as an imminent threat – but at some indefinite future time.

The Classification Office is careful to ensure that its determinations fall within the ambit of the categories expressed in the definition of objectionable. Recently, however, there have been a couple of examples where political expression – albeit abhorrent – has been classified as objectionable. However, unless the level of abhorrence comes within the statute it can be addressed by counterspeech.

One of the difficulties facing freedom of expression in New Zealand lies in the climate of fear that has generated over the period of the Covid pandemic. There has been fear about the consequences of the disease, fear if the various directives of the government are not complied with, and fear arising from the expression of contrary views.

Anti-vax sentiments have morphed into anti-government protests and those who express contrarian views have been accused of spreading misinformation and disinformation. All of these views are in the main disfavoured, disturbing or adding to the climate of fear. So much so that the former Chief Censor lent the weight of his office to a publication about misinformation and disinformation entitled the “The Edge of the Infodemic – Challenging Misinformation in Aotearoa”.

One wonders whether the Chief Censor of the time wished to see misinformation come within his ambit and be subject to classification or even being classed as objectionable. It is difficult to see how misinformation or disinformation could fall within the emergency test. Although it may be disfavoured, wrong-headed or disturbing it falls within the scope of viewpoint neutrality, best met with counterspeech.

The ”Harmful Tendency” In Action

A recent demonstration of the overreaction of the public to forms of expression, the rise of the harmful tendency approach and the belief that the State should intervene is chilling and concerning. Rather than addressing the problem with counterspeech or some such similar demonstration, citizens required the Police to investigate incidents involving the flying of flags.

In Wanaka the investigation involved a red flag with a white circle. Inside the circle was a three pointed icon. What could this have been? Some far-right white supremacist coven, perhaps. It was reported as a racist flag. But no. The flag in fact was a Klingon battle flag from the TV series Star Trek. The Police investigated nevertheless.

The second flag that was investigated was a little more confrontational. A flag was flying from a dwelling bearing the insignia of the gang Black Power along with the iconic clenched fist salute. It was what was written below the salute that caused concern. It was the “N” word but instead of ending “er” it just ended with “a”.

So concerned were the Police that they referred the flag to the Censor in an effort to have it declare objectionable. Quite properly the application was refused.

Although these cases may seem insignificant or trivial in themselves there is a deeper level of concern. Are we becoming too precious about taking offence? Are we leaning towards a “harmful tendency” position? Is the answer to something with which we disagree to complain to the authorities or try to shut it down? That is not what freedom of expression in a democratic society is all about.

That these sentiments seem to be surfacing should be no surprise. The Government holds itself out as the sole source of truth and any disagreement is cast as misinformation or disinformation. Some elements of the media demonise contrary opinions and there seems to be a developing trend to silence or cancel opposing points of view simply because they are perceived to be disagreeable or offensive, rather than engaging with the issue.

The reason that is advanced for failing to engage with the issue is that to do so merely gives oxygen to a contrary point of view, but only by discussion and challenge can the holders of contrary views understand and perhaps even accept they are wrong.

We need to be more robust in the way that we deal with views with which we disagree. We must remember that those expressing such views have as much right to express their sentiments as we have to express ours. And we must remember that the only time speech should be censored is if there is a clear, immediate and present danger that it may cause harm. If the ideas that are the subject of speech are controversial, offensive or disfavoured the remedy lies in debate or persuasion and not the intervention of the State.

Fire and Fury and….Fear

August 21, 2022August 21, 2022 The IT Countrey Justice Dangerous Speech, Freedom of Expression, Politics, Rule of Law, Technology Regulation

This is a commentary on a documentary that was released by Stuff and is part of a continuing examination of and commentary on the issue of mis/disinformation. The documentary – Fire and Fury – had the potential to be an informative and useful addition the the material swirling around current concerns about mis/disinformation. Sadly it did not fulfil that potential but rather was caught up in its own pre-determined view of the issue and those participating in it.

As I have earlier observed, I do not generally support the position advocated by those who express contrarian views. At the same time I would not wish their voices to be silenced. An exchange of ideas, although such a hope may be somewhat futile, is far preferable to the alternative which would be a form of censorship.

What follows is my view on the documentary and my reasons for suggesting that it does not fulfil its potential. It is entirely up to the reader whether or not these views find favour.

________________________________________________________________________________________________________

The Stuff documentary “Fire and Fury” is an interesting example of advocacy journalism. One commentator has described it as “agitprop”[1].

Because it originates from a mainstream media source there are certain constraints on its approach. One such constraint is the need for journalistic balance. Yet the introduction to the documentary and its accompanying material on the Stuff website suggests that balance and a portrayal of contesting views, leaving the reader or viewer to come to a conclusion, is not present.

The explanation of the project goes under the heading of opinion. The bias of the piece is clear from the title “Pushing Back Against the Monsters” although one would hope for some journalistic integrity in the piece. This is what it has to say:

You’ll recall the narrative driven (and accepted by many) during the Wellington protest that it was peaceful and had one objective: to end the mandates.

Scratching not too far beneath the surface, though, it was apparent there was an entirely different — and dangerous — agenda.

At Stuff Circuit our role is to investigate matters that are in the public interest, and two things happened around the time of the occupation that got our attention.

First, we saw talk in social media about making the country “ungovernable”. It sounded like a direct threat to democracy. What did it mean? Who were the people saying it and what was their intent?

Second, we started to see extreme violent language, death threats, and the normalising of language not previously used in everyday New Zealand: people talking very publicly about killing authority figures because they didn’t agree with their policies.

We wanted to understand where that had come from and how mainstream it was going; why your auntie or neighbour was putting this stuff on their Facebook page, oblivious and unquestioning as to its origins.

So far, so good. It is clear that this an investigative effort notwithstanding that the position of the authors started to become clear in the second paragraph (not to mention the title) when the suggestion of a “dangerous agenda” is made.

The focus of the documentary becomes clear and this, as described, is perfectly legitimate and clearly in the public interest.

Our focus in Fire and Fury is not the protest itself, but rather the key figures behind it. Who are they, where had they come from, what did they believe? Why were they so keen on the protest, what did they gain from it, and crucially, what do they want to happen next? The documentary explores how they had not come haphazardly to this moment: this seemingly disparate group of key figures is strategically interconnected, stronger together.

However, in the next paragraphs the focus shifts and the conclusions and directions of the documentary become clear. With the perjorative language that is used, it is unlikely that this will be an unbiassed account

Our decision to investigate led to months of being mired in online chat rooms and watching their mass-produced content: the most violent misogyny, racism, religious bigotry, transphobia, homophobia, online stalking and harassment.

And imbued throughout it all, conspiracy theories ranging from the QAnon-driven sinister cabal of paedophiles controlling the world, to the New World Order and the Great Reset Theory. That the pandemic is a guise for world depopulation and the establishment of a tyrannical global government. That the New Zealand government is engaged in democide: the destruction of its own people.

On and on it went. All of it sitting directly alongside and intertwined with disinformation about Covid, vaccines, and the pandemic response, combining to form a vast, dangerous, swirling, nonsensical, paranoid soup of toxicity.

Then there was the question of whether this material should be published. Was it going to give the contrarians (for that is what they are) yet another platform? That issue was dealt with in this way:

Our decision to investigate led to months of being mired in online chat rooms and watching their mass-produced content: the most violent misogyny, racism, religious bigotry, transphobia, homophobia, online stalking and harassment.

And imbued throughout it all, conspiracy theories ranging from the QAnon-driven sinister cabal of paedophiles controlling the world, to the New World Order and the Great Reset Theory. That the pandemic is a guise for world depopulation and the establishment of a tyrannical global government. That the New Zealand government is engaged in democide: the destruction of its own people.

On and on it went. All of it sitting directly alongside and intertwined with disinformation about Covid, vaccines, and the pandemic response, combining to form a vast, dangerous, swirling, nonsensical, paranoid soup of toxicity.

Then there was the question of whether this material should be published. Was it going to give the contrarians (for that is what they are) yet another platform? That issue was dealt with in this way:

But having decided to investigate, the question remained whether we should report what we were seeing. Why risk amplifying inflammatory and harmful material? Why risk making these people more influential than they would otherwise be? (Side note: it’s creepy watching some of them react when they have been in the news. They love it. They get off on it. It makes them feel important. Did we want to facilitate that?)

There were other reasons not to report, not least of which was the personal harassment which would inevitably come our way — as it does to anyone who works in this field — and has been directed at us (including death threats) for previous work. Massey University research of Stuff staff shows two thirds of our colleagues report experiencing actual violence or threats of violence related to their work — a figure far higher than that reported by journalists globally. (You’ll see in Fire and Fury how people have been provoked to hate journalists. There are real world consequences for that.)

The commentary continues with a consideration of not reporting on the findings of the investigation:

And there was one final question: What was the risk of not reporting?

The more we looked at the volume and scope of their material the more it became clear that not covering these people would not make them go away.

The lesson of history suggests that if you let far-right groups have the streets to themselves, they don’t just go home because there’s no one to fight. They’ll find someone to fight, someone to beat up. Any uncontested space, they’ll take over,” is how one journalist summed it up for Data & Society’s advice on reporting on extremists, antagonists, and manipulators.

One of the extraordinary comments in the immediately preceding passage refers to the “lesson of history”. Yet, as I shall demonstrate, a consideration of some of the historical material would suggest that some of the attitudes and approaches by the contrarians was not unique.

This piece is a review of some of the aspects of the Fire and Fury documentary. It is by no means a full review nor is it a critique. Some of the material in the documentary is important and vital – material that citizens should know so that they can be properly informed. But other aspects of the documentary display an absence of balance and almost a paternalistic and patronizing approach to the ability of citizens to make up their own minds.

I shall consider the way in which some of the material is presented, some of the production values underlying the documentary, an overall impression of the documentary and then the way in which history has a best been overlooked or at worst ignored in locating the views of contrarians. I shall discuss the very obvious bias that was displayed towards the end of the documentary and close my discussion with some observations of the impact of alternative (as opposed to mainstream) media on our expectations of information. The conclusion that I reach on the documentary may be surprising and indeed counter-intuitive – I shall leave that to the reader.

The points of view expressed in the production were of two types. The contrarian position was taken from social media posts and other internet-based sources. Significantly there were no interviews with any of the contrarian figures such as Claire Deeks and Chantelle Baker and certainly no discussions with Kelvyn Alps or Damien de Ment. In some respects this is understandable. Given the attitude of the contrarians to the media it is unlikely that they should want to engage. But at the same time those who discussed and critiqued the contrarian approach such as Khylee Quince, Kate Hannah, Ed Coper and others were interviewed and expressed their views in a calm and rational manner.

The way the opposing views were portrayed was interesting. The clips that were taken of the contrarian position were shrill, at times using the language of hyperbole and at other times were emotional and extreme. By contrast those who were interviewed were calm and rational although there were times when subjective views began to creep in.

Another issue arises in the way in which the contrarian position was portrayed. Rather than taking clips from social media platforms and portraying the points of view within that context, often the contrarian position was over-dramatised by superimposing the speaker on the backdrop of a large building, as if they were expressing their views not on a social media platform, but on a large sized electronic advertising billboard. The context became one of a city street scene with the contrarian view echoing through the canyon on buildings as if this was the means by which their views were communicated.

This portrayal misrepresented the medium of communication employed. Certainly it had dramatic effect but it was not a truthful nor realistic portrayal of how the message was communicated. In my view this was carrying creative license too far and again raised questions about the level of balance in the documentary.

The highlight of the documentary was the protest in the grounds of Parliament in March 2022. For some this must have been a disturbing experience to see, the ending was never going to be peaceful, and the violence of the ending cannot in any way be condoned. But once again the documentary used production techniques to lend a highly dramatic backdrop to the event – a backdrop that was not present at the time. Throughout the segment on the Parliamentary protest dark, sonorous, doom-laden music provides a soundtrack, no doubt to heighten the drama of the event. But this was not a drama. Although we are well used to background music in malls and other places, life does not have a musical soundtrack, and in my view to superimpose one – especially one as oppressive and dark as that used in the documentary – is taking a considerable production liberty.

I suppose that the makers of the documentary wanted to emphasise an atmosphere of Gotterdammerung but Richard Wagner’s Siegfried’s Funeral March is positively lyrical in comparison to the Parliamentary protest soundtrack.

Given the various production elements that I have discussed I viewed the piece with growing concern. This clearly was not a balanced objective “put both sides out there” piece of journalism, even although it purported to be that. In essence the writers and producers were paying lip-service (and not a lot of that) to journalistic standards.

During the Parliamentary Protest the journalists involved were on the ground filming and reporting on the event and gathering material which ended up in the documentary. They were challenged by the protesters and the indignant outrage of the journalists, who claimed that they were only doing their jobs, was clearly and unequivocally expressed. I am not sure if this arose from a journalistic attitude of entitlement or ignorance of what they were getting themselves into.

They were reporting on a group of people for whom distrust and scepticism of mainstream media is a significant article of belief. One of the problems in reporting on the contrarian position is that the mainstream media portrayal is largely unfavourable and merely cements in contrarian distrust. Indeed, there is even a point of view in mainstream media that suggests that by reporting on both sides of the protest, a platform is provided to a group that has been banned from Facebook for spreading misinformation.[2]

Another aspect of the problem faced by the media is the fact that the public interest journalism fund provides financial support for public interest journalism. So far, so good. A $55 million fund is available to support New Zealand’s media to continue to produce stories that keep New Zealanders informed and engaged, and support a healthy democracy. Again, so far so good.

The Cabinet paper supporting the fund sets out the difficulties that were faced by mainstream media organisations during the pandemic. But it is in paragraph 5 of the Cabinet paper that one of the objectives of the fund becomes clear. It states “The spread of misinformation related to COVID-19, particularly through social media channels, has sharpened public awareness of the importance of, and reliance on, a strong and independent media sector.”

As is so often the case in the current discussions on misinformation, the term is not defined but it is clear that there is a concern about the expression of contrarian views and that a viable and well-funded mainstream media may provide a counter to contrarian expression. Nothing wrong with a healthy debate, but a shadow is apparent when one considers the optics of the fund. From the contrarian position, the investment of $55 million in sustainable journalism is a means of controlling the message. The view is that of course mainstream media will report the government position favourably, if only to ensure that the cash keeps flowing. Although the presence of the funding may not lead to bias, it is the perception of bias that is the problem.

All of this is further complicated by the fact that the State sees itself as the sole source of truth. As the Prime Minister said to Parliament on 2 September 2020

“I want to send a clear message to the New Zealand public: we will share with you the most up-to-date information daily. You can trust us as a source of that information. You can trust the Director-General of Health. For that information, do feel free to visit at any time—to clarify any rumour you may hear—the covid19.govt.nz website. Otherwise dismiss anything else. We will continue to be your single source of truth. We will provide information frequently. We will share everything we can. Everything else you see – a grain of salt.”[3]

It is little wonder that the contrarians have a perception of bias by mainstream media. The facts can give rise to that inference, and although there is a body of literature to the contrary, in the minds of many, perception is reality. Interestingly enough I understand that Fire and Fury was a beneficiary of that fund. In the minds of the contrarians, QED.

There can be little doubt that mainstream media and its position the arbiters of “truth” has been threatened by the rise of the Internet and social media. In many respects the Internet potentially provides everyone with a platform and in that respect enhances and enables a level of freedom of expression – the reception and dissemination of information – to an extent that society has not seen before. That everyone potentially has a voice is a long sought aspect of democracy.

What follows from this is cacophony and the expression of many and varying viewpoints. Many of these viewpoints are personal opinions only. They may be based on an incomplete or incorrect factual basis but they may, nevertheless, be validly held.

And if some of these views challenge established points of view or perspectives, so be it. To have our viewpoints or opinions challenged is the price we pay for being able to express our viewpoints and challenge those of others.

“Democracy is built on the right to dissent, on the right for people to hold opposing positions. Our societies need freedom of expression to protect us from the worst atrocities that governments can visit on their citizens.”[4]

There are times when a contrarian position will give offence. Salman Rushdie has made a number of comments on the freedom of expression and offence. The starting point is that no one has a right not to be offended. It doesn’t appear in any international instruments on human rights. Rushdie’s view is that

” If you are offended it is your problem, and frankly lots of things offend lots of people.”

Then he locates offence within the context of the freedom of expression

“What is freedom of expression? Without the freedom to offend, it ceases to exist.”

One of the ironies that came out of the Fire and Fury documentary were the expressions of offence on the part of some of commentators including Dean of AUT Law School Khylee Quince who expressed her offence at some of the associations that were developing within the contrarian movement. I would have thought that Ms Quince would have been a little more objective in the expression of her views. Being offended is simply not a good enough argument in my view. Perhaps she should have expressed her disagreement accompanied by reasons.

Underlying the documentary is a concern at the way that social media platforms enable the expression of contrarian positions. Facebook, Twitter, Instagram and other “big tech” platforms have taken steps to address some of the more extreme positions adopted by contrarians but there are other platforms like Telegram and Gab that appear to be quite unregulated and not susceptible to control. These platforms are seen as breeding grounds for disinformation.

Part of the problem about communications technology is the way that it can alter and change our approaches to and our expectations of information. A clear example is in the way that the printing press was an agent of change in the way in which information was communicated and the way that it enabled the expression of contrarian views. Martin Luther’s 97 theses that sparked the Reformation were circulated throughout Germany within two weeks of Luther initiating the debate by pinning his theses to the church door in Wittenberg. His views were as contrarian as they possibly could be and the printing press enabled the dissemination of contrarian points of view and still does.

The underlying properties of internet-based communications technology enable, as I have said, everyone to have a platform and to express a point of view. As I have observed, this is cacophonous but it does mean that people are far more willing to express themselves, often quite pungently, knowing that there may be little consequence visited upon them. The communications technology has enabled this shift in behaviour. The technology enables it.

One of the commentators on Fire and Fury expressed the somewhat interesting point of view that people can be radicalized by over-exposure to extreme ideas. This is an extraordinarily patronizing perspective as well as being a very wide and all-consuming generalization. There can be little support for the view that a whole community is going to become radicalized if they watch Counterspin media too frequently. This does a disservice to the intelligence and common sense of the greater majority of the community.

There are some who have adopted extremist views. Some in the Fire and Fury documentary use extreme language, calling for extreme and violent consequences. How much these people were playing to the camera would need to be assessed and in some cases such expression may be fuelled by highly charged emotions and anger. Although the protest at Parliament ended violently if there had been a true undercurrent of revolutionary violence it would have happened.

We may decry the over-exuberant expression that we see on Internet platforms. Our concerns must be measured against a recognition of the importance of freedom of expression. But regrettably I do not see a return to polite conversation. Communications platforms have been with us for too long and our behaviours have become too ingrained for there to be any likelihood of change. Although this may be seen as a form of technological determinism, it must also be recognized as a reality.

The final point that I would like to make is about the lessons of history, referred to in the opening introduction to the documentary. Was the protest at Parliament that unusual in the overall scheme of things. Was the language of the protesters so extreme. In 1787 in (to our ears) an erudite letter from Thomas Jefferson to William Stephens Smith, Jefferson said

“And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”

This language is probably as extreme as some that was used in March 2022 and yet it is over 200 years old and written at a time when the American Revolution had been successfully achieved.

History is full of similar examples – the French Revolution, the 1830 Revolution in France, the European Revolutions of 1848, the anarchists, Socialists and Bolsheviks of the period leading up to the 1917 Revolution and the student protests in Europe on 1968.

More recently one only has to look at some of the messaging from Al-Quaeda and Islamic State to see that the rhetoric continues. In 2012 protesters erected a mock guillotine to “decapitate” leading politicians as a demonstration against the sale of state assets. In 2014 a musician sang about wanting to kill then then PM and violate his daughter.

In New Zealand certainly in my time some of the so-called radical movements such as the Progressive Youth Movement, Halt All Racist Tours and associated organisations in the mid-sixties, spurred on by perceived societal injustices and taking their lead from similar organisations in other countries, protested and occupied public facilities, but often the radical language of the time was offset by the trending peace, love and flowers of the hippies.

The violence that accompanied the Springbok Tour of 1981 was as bad in its way as the violence at the end of the Parliament Protest, and was just as frightening. But all of this seems to have been forgotten and overlooked by the authors and producers of Fire and Fury. The point I am trying to make is that this is not new.

Interestingly enough, one of the leading lights of the 1960’s protest movement went into politics and was elected Mayor of Waitakere and latterly Invercargill. It is a matter of comment in mainstream media that some of the leading lights of Voices for Democracy and other contrarian groups are putting themselves forward for election in the upcoming local body elections. Some of them have done so before. None of them have so far been elected. Yet there is concern about contrarians exercising their democratic right to stand for election. As I understand it the availability of democratic process does not depend on the quality of your beliefs, although those beliefs may cause rejection by the electorate.

So where does this leave us. Certainly during the early days of the Covid-19 Pandemic the Government was able to prey on public fears of the outbreak of plague and imminent death to justify lockdowns and to enable the acceptance of discriminatory treatment of citizens based on their vaccination status. The initial response was unplanned but necessary. But we are past that now

What the Fire and Fury documentary seeks to do is re-channel that fear to a form of opposition to and distrust of the contrarian movement. But after viewing the documentary I was left with an uncomfortable feeling. In all the talk about the weird conspiracy theories put about by the contrarians perhaps the underlying theme of the documentary is a conspiracy theory itself and it seemed to come from Kate Hannah who is one of the heads of the Disinformation Project. She implies that the real threat to democracy comes from a few people given to euphemistic language who make no secret of their views, who are openly all over social media, making no secret of their views and who are well known to Police and the Security Services. Do we really need to fear this vocal minority.

Perhaps Fire and Fury is an example of a mainstream media-based conspiracy theory based on fear and should be treated as such. Or perhaps it is rather a tale told by an idiot, full of Sound and Fury signifying nothing.

[1] Graham Adams “Fire and Fury is often funny – unintentionally” The Platform 18 August 2022 https://theplatform.kiwi/opinions/fire-and-fury-is-often-funny-unintentionally (Last accessed 19 August 2022)

[2] Madelaine Chapman “Giving a Voice to Voices for Freedom” The Spinoiff 2 March 2022 https://thespinoff.co.nz/politics/02-03-2022/giving-a-voice-to-voices-for-freedom

[3] Hansard Debates 2 September 2020 Oral Questions – Questions to Ministers – Question 1 https://www.parliament.nz/en/pb/hansard-debates/rhr/document/HansS_20200902_050580000/1-question-no-1-prime-minister

[4] Ben Okri “Authors on the Salman Rushdie attack: ‘A society cannot survive without free speech’” The Guardian 14 August 2022 https://www.theguardian.com/books/2022/aug/14/authors-on-the-salman-rushie-attack-a-society-cannot-survive-without-free-speech

Knowledge, Truth and Discourse

August 3, 2022August 7, 2022 The IT Countrey Justice Behaviour, Decency, Freedom of Expression, Misinformation, Politeness

The information landscape has become a rocky one. Trying to discern truth from half-truths from untruths, information from misinformation from disinformation has become a real challenge.

Two books examine and discuss the problem. One is by Ronald Collins and David Skover and is entitled The Death of Discourse[1]. It was first published in 1997 and a second edition was published in 2005. The second book is by Jonathan Rauch, published in 2022 and is entitled The Constitution of Knowledge – A Defense of Truth[2]. I recommend both books although they approach the topic in entirely different ways.

Death of Discourse looks at the modern use of the First Amendment to the US Constitution. It notes that much of our public talk resembles in character and form the distracting pleasures of Huxley’s Brave New World. We are deluged with the fact-free and amusing sound and click bite spectacles of television and other screens for our most important news and information. Our free speech system equates electronic self-amusement with enlightened civic education, the marketplace of items with the marketplace of ideas and passionate self-gratification with political realisation. In short, Collins and Skover consider that the eighteenth century Madisonian principles of discourse seem ill-suited, if not completely irrelevant, for our 21^st Century mass communication. It argues that discourse is dying yet everywhere (at least in liberal democracies) free speech thrives.

The Constitution of Knowledge in fact hearkens back to the Madisonian idea and agrees with the overall thesis of Collins and Skover that there is an epistemic crisis in that discerning truth from the morass of communicated information is difficult. Although the marketplace of ideas – a metaphor from the Enlightenment Age inhabited by Jefferson and Madison – should filter out those that are true and valid, conversations are mediated through institutions like journals and newspapers and social media platforms. Largely newspapers and journals rely on a network of rules and norms – truthfulness, fact-checking, the expertise of professionals like peer reviewers and editors. The whole structure sits on a shared understanding that there are right and wrong ways to make knowledge.

Rauch suggests that these shared foundational values are for knowledge what the US Constitution does for politics. These shared foundational values create a form of governing structure forcing social contestation onto peaceful and productive pathways. Collectively Rausch calls them the Constitution of Knowledge. And he points to recent events, particularly in the US which put pressure on the norms top which he refers. In science, journalism and usually in politics truthfulness is a civic norm and not a legal requirement. He cites President Donald Trump’s disdain for truth as an example of pressure on such norms emanating from the highest level.

I don’t intend to discuss Rauch’s book in great detail. I recommend the book to anyone who is interested in the nature and validation of knowledge as truth and who is interested in the discernment of reality from the mass of communicated chatter with which we are bombarded.

I shall, however, make a couple of points. Rauch, like Collins and Skover, takes the First Amendment to the US Constitution as his starting point. The Amendment reads

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I have highlighted the relevant language.

James Madison introduced 12 amendments to the First Congress in 1789. Ten of these would go on to become what we now consider to be the Bill of Rights. Based on the Virginia Declaration of Rights, the English Bill of Rights, the writings of the Enlightenment, and the rights defined in the Magna Carta, the Bill of Rights contains rights that many today consider to be fundamental to liberal democracies.

In New Zealand the freedom of expression is incorporated into section 14 of the New Zealand Bill of Rights Act 1990 and reads

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.

It will be noted that “speech” has been expanded to expression, and section 14 protects information flows in that not only is the right to impart information and opinions protected but the seeking and receiving of information is also protected.

In the minds of many the idea that obnoxious, misguided, seditious, blasphemous and bigoted expressions deserve not only to be tolerated but, of all things, protected is, in the opinion of Rausch, the single most counterintuitive social principle in all of human history.

Every human instinct cries out against it, and every generation discovers fresh reasons to oppose it. It is saved from the scrapheap of self-evident absurdity only by the fact that it is the single most successful social principle in all of human history.

Rauch is of the view that those of us who favour it, and also our children, and also their children and their children will need to get up every morning and explain and defend our counterintuitive social principle from scratch.

The Constitution of Knowledge, those norms and standards that underpin truthfulness and reliability, relies upon the full-hearted embrace and full-throated defense of its principles by ordinary members of the reality based community.

Rauch places reality front and centre of his thesis. Reality, he says, is that which is reliable and intractable and cannot be wished away. However, we have no direct access to the objective world independent of our minds and senses, and subjective certainty is no guarantee of truth.

When we think of reality, therefore, we think of it epistemically – as that of which we have objective knowledge. Reality becomes a set of propositions which have been validated in some way and have been shown to be at least conditionally true – unless they are later debunked. Some propositions reflect reality as we perceive in daily life – the sky is blue – water is wet. Other propositions like a physicist’s quantum equations, may be incomprehensible to intuition.

The problem comes in the validation of a proposition as reality. The only way is to submit the proposition to the reality based community. Otherwise a proposition may be validated by brute force, torture, oppression as history has taught us in the past. Or the proposition may be shared among a closed community who talk only to one another in which case it is submitted to something akin to a cult.

Rauch suggests that there are two core rules and any public conversation which obeys those rules will display the distinguishing characteristics of liberal science.

The rules are described as the Fallabilist Rule and the Empirical Rule.

The Fallabilist Rule holds that no one gets the final say. One may claim that a statement is established as knowledge only if it can be debunked, in principle, and only insofar as it withstands attempts to debunk it. Thus a speaker is entitled to claim that a statement is objectively true only insofar as it is checkable and has stood up to checking. This means that there may be an argument but the rule directs us as to how we behave. We must assume our own and everyone else’s fallibility and we must hunt out our own and others’ errors even if I am confident I am right. Put another way, if I put up an idea I must accept that it is liable to be challenged and I must accept that and be prepared to engage to validate my idea or accept that it may be modified.

The Empirical Rule holds that no one has personal authority. I may claim that a stament has been established as knowledge only insofar as the method used to check it gives the same result regardless of the identity of the checker and regardless of the source of the statement. A proposition must be capable of being something anyone can do and get the same result. In addition, no one proposing a hypothesis gets a free pass or special treatment because of who he or she may be or dependent upon whatever group to which he or she may belong. The fact that I might have a PhD in no way validates or provides any extra weight to my proposition. The proposition must stand on its own. Thus who I am does not count. The rule applies to everyone. If my method is valid only for me or my affinity group or people who believe as I do, the proposition cannot be checked and validated by everyone.

Applying the Rules

So let us put a proposition for examination to see if it complies with section 14 of the New Zealand Bill of Rights Act and Rauch’s two reality based rules.

On September 2nd 2020 the Prime Minister of New Zealand, Ms Jacinda Ardern said to the Parliament

“I want to send a clear message to the New Zealand public: we will share with you the most up-to-date information daily. You can trust us as a source of that information. You can trust the Director-General of Health. For that information, do feel free to visit at any time—to clarify any rumour you may hear—the covid19.govt.nz website. Otherwise dismiss anything else. We will continue to be your single source of truth. We will provide information frequently. We will share everything we can. Everything else you see – a grain of salt.”[3]

The New Zealand Bill of Rights Act.

The Prime Minister’s answer to the question is quite breath taking in its scope. Remembering that everyone has the freedom to impart or receive information, in essence she is saying as follows:

You don’t need any other information – only ours
Don’t listen to anyone else on the topic – dismiss anything other than our messaging – take it with a grain of salt
We are the single source of truth – an echo of Orwell’s Ministry of Truth
If anyone else expresses a point of view dismiss it (effectively silencing contrary points of view)

This has some pretty significant consequences for the nature of discourse. The Prime Minister is limiting discourse and the flow of information to a one-way stream – from the Government to the listeners. Everything else is rumour and should be dismissed. There can be no challenge to the Government’s position. The Government is the sole and single source of truth. In other words, disagree with the Government and you are not telling the truth.

The Fallabilist Rule

The Prime Minister’s answer to the question fails the fallibilist rule for challenging propositions. Remember, no one gets the final say. Yet the Prime Minister is saying that anything that the Government says is truth and uncontestable. It assumes that the Government’s statement of truth is infallible. It ignores the possibility of challenge and indeed suggests that if there is a challenge, it must be false or wrong or to be taken with a grain of salt. It denies the possibility of debate. It denies the possibility of checking because it assumes that there can be no other reality other than that expounded by the government. Such a position leads to atrophied thinking at best or outright error at worst.

The Empirical Rule

The answer to the question challenges the empirical rule on a number of fronts. First it urges listeners to trust the Government. Then it goes on to urge that the Government is the sole source of truth. Can the propositions advanced therefore be subjected to independent verification? In many respects the statement itself claims the weight of Government authority for the truth of the statement. The proposition, in that case, cannot stand on its own and cannot be independently verified. Indeed the challenge in the statement is implicit. Trust us – there is no need for independent verification. The suggestion that any challenge to the statement may be false, questionable or be taken with a grain of salt clearly is designed to discourage independent enquiry or embark on any sort of error checking. Perhaps the most outstanding breach of the empirical rule is that listeners should trust the Government without question. That is a breath taking example of the free pass based on status rather than critical examination.

Conclusion

The Fallabalist Rule and the Empirical Rule are starting points offered by Rauch in the quest for truth or reality within the framework of the Constitution of Knowledge. It is very much a book for our times. It not only examines methodologies for proper discourse and truth seeking but examines the effects upon reality and discourse of misinformation and disinformation (largely seen as tools of the political Right) and the impact of the cancel culture and the silencing of debate (largely seen as a tool of the political Left[4].) It also discusses the means by which proper analysis of topics of discourse may take place. Freedom of expression can be cacaphanous but working within the Constitution of Knowledge may assist in filtering out the noise and arriving at a sensible destination of reality and understanding.

Postscript

In accordance with the Rules of Discourse and the Knowledge Constitution discussed, the material in this article is subject to the Fallibilist Rule and the Empirical Rule.

[1] http://skoveronline.net/dod/index.htm (Last accessed 2 August 2022)

[2] https://www.brookings.edu/book/the-constitution-of-knowledge/ (Last accessed 2 August 2022)

[4] Indeed, the quotation examined above contains resonances of cancel culture – “dismiss anything else” “Everything else you see – a grain of salt”.

Media Safety? Responding to Tohatoha

July 26, 2022 The IT Countrey Justice Censorship, Digital Speech Harms, Freedom of Expression, Harmful Digital Communications, Law and Technology, Law Commission, New Media, Technology Regulation

On 25 July a new online safety code came into effect. It was drawn up and agreed between a number of online players such as Netsafe, NZTech, Meta (owner of Facebook, Instagram and WhatsApp), Google owner YouTube, Twitch-owner Amazon, Twitter and TikTok.

The Code obliges tech companies to actively reduce harmful content on relevant digital platforms and services in New Zealand as the country grapples with what Netsafe calls a 25 per cent increase in complaints about harmful content over the past year.

It has drawn criticism from InternetNZ and Tohatoha. One of the criticisms is that the Code is very much a work in progress. This cannot be seen as a problem. Any attempt to address harmful content on digital platforms in a dynamic and everchanging environment such as the Internet must be a continuing and developing task that organically morphs to deal with changes in the digital and content ecosystem.

However, there are other concerns surrounding the development of the Safety Code and the way in which it is to be funded and administered, the most concerning being what seems to be a conflict of interest.

As to the development of the Safety Code the concern is that consultation and the process of development was limited. It was conducted primarily through the agency of Netsafe who co-ordinated the development process. Accordingly there seems to have been little input from other agencies such as Tohatoha and InternetNZ, at least until the first draft was released in February 2022. Civil society organisations nor community representatives were not engaged to the same extent. The view is that online safety must be developed with the community at the forefront. The perception is that there was a “coziness” between Netsafe (who will appoint the Administrator) and the corporates.

This criticism is directed primarily at the legitimacy of the Online Safety Code. It suggests quite properly that there should have been wider involvement of the Online Community from the outset rather than being consulted from time to time. The Code would have greater acceptance had it been developed from the ground up with deep involvement by the wider community. Doubtless there were consultations and certainly a draft of the Code was released in February 2022 but that was a call for comment of a developed proposal rather than seeking detailed input on the devising of the proposal itself.

There should have been a greater level of engagement with the wider community in the development of the proposal if only to ensure that there would be consensus on what was ultimately devised and a level of acceptance of the legitimacy of the Code. As matters stand, those who were not deeply involved will be able to stand on the side-lines and criticise as indeed organisations like Tohatoha and InternetNZ are already doing. Given that situation the legitimacy of the Code, at least as far as the wider community is concerned, is questionable.

Another of the criticisms is associated with that of legitimacy and is directed to what is perceived as a conflict of interest.

The key conflict of interest is that NetSafe would be taking funding from the very organisations it is set up to regulate. In addition, the big platforms know that there is a government media regulation review underway. The Code is perceived as an attempt to undermine what should be the public process of the media regulation review which is conducted by Government and any legislation emanating from such review would go through the Select Committee process and the scrutiny of parliament, the media and the general public. The perception is that in developing the review as essentially a non-Government process NetSafe is undermining democratic processes, in collusion with tech platforms.

This criticism has a number of difficulties. Taken to its logical conclusion, it suggests that any form of industry regulation must be government-led. This ignores the various industries and interests that have developed their own methodologies for regulating their own operations in the wider and more public sense. After all, who better to develop a regulatory system than those who have an intimate knowledge of what is to be regulated and who can devise something workable. Involving government would be to add layers of complexity and an absence of specialist knowledge.

But to be fair, this is not the first time that a review of media regulatory structures has been proposed. In 2011 the New Zealand Law Commission released an Issues Paper entitled “The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age”. This was in response to a Government request for a review of the legal and regulatory environment in which New Zealand’s news media and other communicators are operating in the digital era. After a lengthy consultation period which was punctuated by a further paper recommending the enactment of Harmful Digital Communications legislation, in 2013 the final report was released.

What had happened over the lengthy consultation period was that those active in the digital space including mainstream media looked at the regulatory structures that were discussed by the Law Commission in the Issues Paper. There were existing regulatory bodies like the Advertising Standards Authority and the Press Council (which were industry funded and voluntary bodies) and the Broadcasting Standards Authority which was a Government Agency. There were no bodies that dealt specifically with the online space. It was clear to those involved in the dissemination of information online – mainstream media as well as bloggers and the alternative online media – that a regulatory model was on the way. To try and provide an alternative to a government led initiative the Online Media Standards Authority was set up. This was a private organisation, funded by the media itself. Membership was voluntary. It had a complaints process and the Tribunal hearing complaints was chaired by a retired High Court Judge. It dealt with complaints about online media on the same basis as the Press Council dealt with mainstream news organisations.

When the Law Commission report finally came out in 2013 it recommended a new converged standards body, folding the functions of the press council, the Broadcasting Standards Authority and the new formed Online Media Standards Authority (OMSA) into one standards body – the News Media Standards Authority or NMSA. This would be established to enforce standards across all publishers of news including linear and non-linear broadcasters, web publishers and the print media.

The NMSA and the regulatory model proposed by the Law Commission did not come to pass. As it happened OMSA recognised that in some respects its role was redundant, that there was a very low level of work for it and that it should merge with the Press Council which is what happened. The name of the new regulatory body – still voluntary, still funded by the media – is the New Zealand Media Council or NZMC. The members of the Council are drawn from a wide array and the Chair is the Hon Rayner Asher QC, a former High Court and Court of Appeal Judge.

This example demonstrates that there is nothing sinister in organisations establishing and funding their own regulatory structures, even when there is Government interest going on in the background. As I have suggested before, it is often preferable for an industry to regulate itself rather than submit to some “one size fits all” model proposed by Government.

This, then leads to some concerns that I have regarding the critique delivered by Tohatoha and endorsed by a number of other bodies including InternetNZ.

Tohatoha says

“In our view, this is a weak attempt to pre-empt regulation – in New Zealand and overseas – by promoting an industry-led model that avoids the real change and real accountability needed to protect communities, individuals and the health of our democracy, which is being subjected to enormous amounts of disinformation designed to increase hate and destroy social cohesion.”

The statement goes on to say

“We badly need regulation of online content developed through a government-led process. Only government has the legitimacy and resourcing needed to bring together the diverse voices needed to develop a regulatory framework that protects the rights of internet users, including freedom of expression and freedom from hate and harassment.”[1]

These statements must give cause for concern. The first concern is that it suggests that there should be regulation of content on the Internet. The second concern is that this should be through a government-led process. I have already commented on the problems that Government brings to the table in the field of regulation. For Government to be involved in the regulation of news media or indeed any medium that involves the communication of ideas is something that requires a great deal of care. Already Government is involved in a number of areas, such as the enactment of the Films, Videos and Publications Classification Act and the Harmful Digital Communications Act. In addition there is Government involvement in the broadcasting spectrum surrounding the licensing of frequencies under the Radicommunications Act 1989 (and regulations made thereunder) the Telecommunications Act 2001 and the Broadcasting Act 1989.

It seems to me that Tohatoha has overemphasized its advocacy role and overlooked the implications of what it is suggesting. It is clear that by suggesting regulation of content it means a form of control of content. There is another word for this and it is censorship. That a government should lead such regulatory (censorship) process is of even more concern.

Censorship has always been on the side of authoritarianism, conformity, ignorance and the status quo. Advocates for free speech have always been on the side of making societies more democratic, more diverse, more tolerant, more educated and more open to progress.[2]

Finally there is a concern about a loss of social cohesion. By this term what is really meant is a form of coerced conformity and as John Stuart Mill recognized, the most dire threat to freedom comes from social conformity which leads to a shortage of diversity – of inclination, interest, talent and opinion and makes eccentricity a reproach.

[1] https://www.tohatoha.org.nz/2022/07/statement-on-the-release-of-the-aotearoa-code-of-practice-for-online-safety-and-harms/

[2] Erwin Chemerinsky and Howard Gillman Free Speech on Campus (Yale University Press 2017) p. 27.

Regulating Misinformation

June 19, 2022 The IT Countrey Justice Freedom of Expression, Harmful Digital Communications, Law and Technology, Misinformation, Printing Press

Professor Uri Gal argues (Law News 17 June 2022; The Conversation 10 June 2022) that the time has come for legislative control of big high-tech companies. He observes that the policies of companies such as Meta (Facebook), Google and Twitter can affect the well-being of individuals and the country as a whole. He claims that concerns about the harm caused by misinformation on these platforms have been raised in relation to the Convid-19 pandemic, federal elections (in Australia) and climate change among other issues. He argues that legislative standards will hold these companies to account for harmful content on their platforms.

Professor Gal writes from an Australian standpoint. As it happens the yet to be enacted Online Privacy Bill (Aust) proposes to impose higher levels of regulation on online platforms and social media networks. In New Zealand the provisions of the Harmful Digital Communications Act 2015 provide relief for individuals who are harmed by electronic communications and provide for criminal penalties for those posting content with the intention of causing harm or those who post intimate images without consent.

Professor Gal’s issue seems to be with misinformation. At one point in his piece he poses the question “What is misinformation?” but fails to provide any definition.

The term “misinformation” is a curious one. It is frequently used in commentary, especially in the context of the Covid pandemic. It has been used in a number of official publications (The Edge of the Infodemic: Challenging Misinformation in Aotearoa New Zealand; Sustaining Aotearoa as a Cohesive Society). In those publications it has not been defined. It seems to be assumed that its meaning is understood. Yet the way in which it is used seems to suggest that it is a veto word and that the subject matter to which it refers is to be discounted as “misinformation” without further explanation.

The Disinformation Project has provided definitions of misinformation and disinformation in the paper “The murmuration of information disorders: Aotearoa New Zealand’s mis- and disinformation ecologies and the Parliament Protest”. Misinformation is defined as “false information that people didn’t create with the intent to hurt others”. The wording is clumsy. I think what is meant is “false information that people created without the intention to hurt others”. Interestingly nothing is said about dissemination but I assume that is a given.

Disinformation is defined as “false information created with the intention of harming a person, group, or organisation, or even a company”. The paper goes further and defines malinformation as “true information used with ill intent.” The source for these definitions is given as Jess Berentson-Shaw and Marianne Elliot, “Misinformation and Covid-19: A Briefing for Media,” (Wellington: The Workshop, 2020).

The definitions deployed by the Disinformation Project writers seem to focus upon the intention associated with the content associated with falseness of the information communicated. But then the waters are muddied with the addition of true information communicated with a particular intention. The law places high value on truth. For example it is an answer to defamation. I wonder therefore if the concerns of the Disinformation Project are more focused on the consequences of “mis-dis-mal-information” rather than its quality.

As I have said elsewhere the current drive against “misinformation” seems to me to be another attack of the freedom of expression and upon the ability to express views that may be contrary to those of the majority. A justification for this is often cited as the need for “social cohesion” – another term for blind conformity – but in reality it is really yet another manifestation of well-meaning but misguided “liberals” who know better than everyone else what is good for them. Of more concern must be the way in which “misinformation” is being perceived as a national security issue, attracting the attention and scrutiny of the current Government.

What is more concerning is the apparent drive to restrict the freedom of expression by defining certain forms of expression as harmful.

I have earlier suggested that the term “hate speech” should be abandoned for the more precise label of dangerous speech – speech that incites or encourages physical harm against a group or individual. In that way and with precision in definition any assault on the freedom of expression is limited.

The Harmful Digital Communications Act 2015 addresses harmful speech by way of electronic communication. Harm in that legislation is defined as serious emotional distress.

But can the broad and ill-defined term “misinformation” be the subject of regulation of legislation either directly or by attacking the platform upon which it appears?

Certainly, there have been frequent efforts by the State to control the medium of communication – the printing press and the trade associated with it were the subject of attack on frequent occasions. The State has interfered with other communications innovations such as radio and television so it is not surprising that there should be efforts affoot to address Internet based platforms.

Professor Gal, like many others, advocates legislating for informational standards focussing on misinformation or disinformation. This is an attack on freedom of expression. He and others who advocate similarly would do well to remember that there is a right to free expression, a presumption in favour of it and weighty considerations in terms of harms have to be advanced by those who seek to curtail it. Stifling contentious debate in favour of a “party” or “government” line by labelling the contrary view as misinformation or disinformation, in my opinion, is not good reason enough.

Suppressing Contentious Material – Misinformation – the new Seditious Libel

April 18, 2022 The IT Countrey Justice Censorship, Freedom of Expression, Misinformation

Abstract

This post is about the way in which contentious and and contraian views have been dealt with by the authorities. It argues that the terms “misinformation” and “disinformation” are convenient umbrella words to describe the expression of opinions that are other than “mainstream” and that are claimed to be harmful, false and injurious. In this respect the attitude and approach to contentious and contrarian views today echoes the attitude of the “Establishment” to similar contrarian views expressed in the late seventeenth and eighteenth centuries. In those days censorship of contrarian material was carried out primarily through the use of Licensing Acts which gave effective control of printed content to Government officials. After the Licensing Acts lapsed, and in the face of Jacobite conspiracies (both real and imagined) contrarian views were dealt with by charging the authors and printers with seditious libel. The penalties, as will be seen, could be very serious. It is my contention that “misinformation” and “disinformation” are the new seditious libel and the interest of the Government, government agencies, the Chief Censor and indeed the mainstream news media suggests that these views should be more than merely discouraged. The implications for freedom of expression are considerable.

In closing this abstract I wish to clearly state that I do not necessarily endorse the content of contrarian or contentious viewpoints but I do support the right of those who hold them to express them.

A Slice of History

After the Restoration of the Monarchy in England the later Stuarts were confronted with a problem. What was to be done about the business of printing. The reign of the Elizabeth I as well as Charles I saw concerted efforts by Star Chamber to regulate not only the content of what was printed but, in the reign of Charles I, how the business of printing was carried on. This did not stop the printing of material critical of the regime and contesting and contentious material in matters of politics and faith.

Attempts to regulate printing continued during Cromwell’s Commonwealth but it wasn’t until 1662 through until 1694 that a new programme for regulation of the press was put into effect. Star Chamber had gone and was not revived. On 10 June 1662 Parliament enacted the “Act for preventing the frequent Abuses in printing seditious, treasonable and unlicensed books and Pamphlets and for regulating of Printing and printing Presses.

The printing trade was strictly regulated and limited to the Master Printers of the Stationers Company of London and the printers of the two universities of Oxford and Cambridge. Those who manufactured type were limited as were the number of Master Printers at any one time.

Anything that was printed had to be licensed by official licensers who had their own specialities – law, history and the affairs of state, divinity, philosophy, science and art. The process of obtaining a license was detailed. Nevertheless, contentious material managed to get through the net despite the best efforts of Sir Roger Le’Estrange, the Surveyor of the Press and the King’s chief enforcer of print licensing. In spite of L’Estrange’s efforts probably no more than half the pamphlet literature which appear carried the official imprimatur. There continued to flow from the presses a stream of publications which in that day and age were considered seditious or offensive and frequently contained lively and vituperative political criticism.

In the seventeenth century both the government and the populace were inexperienced in either digesting the printed page or judging its effects. The reading public was not sufficiently aware of the fact that not all printed material is not necessarily authoritative and the government had not become accustomed to wide public discussion of its acts not had it discovered that unjust criticism often carries its own antidote[1].

The context is important in understanding the seventeenth century state of mind. A monarch had been executed – a serious matter at that time. Several political coteries had been supplanted during the Interregnum. The Oates and Ryehouse plots confirmed the suspicions by the people of Catholic and other conspiracies during the reign of Charles II. The Monmouth Rebellion challenged the established rules of succession. James II was ultimately deposed and forced to flee. After the Glorious Revolution of 1688 the fear of a Jacobite retaliation – the treatment of the regicides in 1660 turned even Charles II’s stomach and it was thought that a restored Jacobite monarchy would do the same – continued to disturb English statesmen down to and even after the establishment of the Hanoverian dynasty. Thus it seemed necessary to control and suppress contentious material.

L’Estrange supervised the suppression of contentious religious material in 1666 and was given elaborate instructions to apprehend the parties responsible for The Whore’s Petition in 1669. L’Estrange was an enthusiastic enforcer of the Statute as Surveyor of the Press especially between 1662 and 1666, and his influence and activity continued when he was appointed Licensor of the Press until 1679

In 1671 orders went out to round up all the unauthorized printers in London and from time to time it was necessary for the authorities to remind the Stationers Company of their obligations. Indeed, L’Estrange’s approach was that printing should be limited to a few trustworthy and reliable printers who were controlled not by the Stationers Company but by an officer of the Crown (L’Estrange himself). L’Estrange was adamant that the Stationers could not be trusted, that their interests were not those of the authorities and in the past they had failed to enforce the regulations

Enforcement was also in the hands of the Secretary of the King’s Council and the various messengers that he appointed. The Secretary was responsible for issuing permissions for searches and seizures which, during the eighteenth century, were successfully disputed most notably in the case of Entick v Carrington [1765] EWHC KB J98; 19 St Tr 1030.

The Regulation of Printing Act had to be renewed every so often although its renewal was opposed or resisted by the Stationers Company. Finally in 1698 the Act was not renewed. The new century saw a number of unsuccessful steps to revive the Act but the main purpose of the Act, the suppression of objectionable printing, had unsatisfactory results. No test had been devised to set out to determine which books could be classed as offensive. In addition, towards its demise the Act demonstrated that the officially appointed censors could not be trusted.

But that was not the end of the censorship or suppression of contentious material. The State had other means by which it could deal with the dissemination of unpopular or critical views. Contrarian opinion could be classified as seditious and not only the author but the printer could be pursued.

In the summer of 1705 a woman wearing what was described as a “vizard mask” delivered a package to David Edwards, a London printer, along with a coded means by which she could be contacted. The package contained an anonymous, illegal and highly contentious pamphlet entitled The Memorial of the Church of England. The argument in it proposed to topple the Government. But Edwards knew well that sedition sold well in the coffeehouses of the City and he set about printing and distributing the pamphlet.

Edwards had carried on his trade on the fringes of what could be considered the printing of contentious material. In the early 1690’s he had printed a Catholic Manual of Prayers and Christian Devotions which contained in it a prayer for exiled Jacobites – supporters of the deposed King James II. In 1695 Edwards’ premises were raided and a run of Catholic prayer books were seized. He managed to escape prosecution but it was after he printed a virulent piece of Jacobite propaganda called The Anti-Curse that he was charged with seditious libel, was fined and sentenced to stand in the pillory on three occasions.

Depending on the mood of the crowd this could be a serious punishment. On occasion it could be accompanied by having one’s ears nailed to the pillory or being pelted with everything from rotten vegetables to rocks by the crowd. When Daniel Defoe was pilloried for seditious libel in 1705 he wrote a poem declaring his innocence which moved the crowd in his favour.

We do not know what happened to Edwards. He kept his ears and remained silent and compliant but by 1699 he was publishing controversial pamphlets with considerable vigour. Even after the death of James II he continued to print pamphlets in support of the Jacobite cause and was known for these activities.

The Memorial which Edwards printed contained material that made suggestions about how one fixed a broken society. It argued that all faction, wickedness and conflict could be traced back to a split in religious loyalties. Society was divided because of the wildly contrary religious sects proclaiming their messages and “truths”. Toleration would make the problem worse. What was needed was the outlawing of what was “occasional conformity” which was a way that non-conformists could occasionally take communion and thus become eligible for public office, and the casting out of dissenters from society. Among the “pretended” members of the Church were Lord Godolphin, Queen Anne’s treasurer, the Duke of Marlborough and Robert Harley, one of the Queen’s Ministers.

The document was an explosive one and Edwards went to considerable lengths to distance himself from association with the document while still printing it. The title page of the work contains no name and provides no information and the ornamentation that he normally used did not appear.

When the publication hit the streets and coffeehouses Harley himself launched an investigation determined to track down not only the printer but also the author of the work. After publication Edwards was nowhere to be found. His wife was imprisoned and all copies of the pamphlet that could be found were burnt. The mysterious lady “in the vizard mask” who delivered the manuscript was never located and to this day the identity of the author is a mystery.

Harley’s political fortunes rose and fell but in 1711 he was enobled as the Earl of Oxford and Earl Mortimer and was Lord Treasurer until his downfall in 1714. Harley was a patron of the arts and left behind a collection of manuscripts containing Renaissance and Anglo-Saxon literature known as the Harleian Collection which is in the British Library.

Harley’s pursuit of the printer and author of the Memorial was driven by the desire to stamp out what was an incendiary and seditious publication and although the tools of print licensing and associated controls were no longer available, nevertheless the desire on the part of the authorities to suppress contentious content remained.

Even after the end of the Stuarts and the installation of the Hanoverians on the throne, the need to control the message by the authorities continued with increasing fervour. James II may have died but he had heirs and there had been, and continued to be, moves by the supporters of the Jacobites to install a Stuart heir on the throne. There was an attempt by James II’s son, the Old Pretender, to regain the throne in 1715 following the death of Queen Anne, and the Young Pretender, Bonnie Prince Charlie, attempted a Jacobite uprising in 1745 which met its end on Drummossie (Culloden) Moor.

In November 1719 John Mathews aged 18, a printer of Jacobite pamphlets, having been found guilty of treason, was dragged on a hurdle to Tyburn, hanged but cut down while still alive, disembowelled and quartered. He was the last printer to be executed in England but he was not the last victim of the censorship of contentious material. It has been suggested that Harley would not have approved of Mathew’s execution. Better that dissdent printers be persuaded to turn on their allies and discover further information for the State. Mathews, however, took his secrets to the gallows.

The persecution of those who propagated contentious views continued. In 1763 John Wilkes published a satirical pamphlet called “The North Briton.” His attacks on the Government in that publication, particularly in the 45th edition, led to his arrest under a general warrant. In January 1764 Wilkes was expelled from the House of Commons but the concern aroused by the general warrants affair led to them being no longer used for the arrest of persons.

Wilke’s publication also featured in the case of Entick v Carrington [1765] 19 St Tr 1030 which established the basis for the requirement of a search warrant to make lawful the entry of law enforcement officers upon private property.

On 11th November 1762 Carrington and three other named individuals entered a property in Grub Street, a well known area where printing took place, belonging to the Entick and spent four hours there searching all of the rooms, breaking open boxes and going through all of the claimant’s possessions.

They removed one hundred charts and one hundred pamphlets from the property. They were searching for copies of “The Monitor or The British Freeholder” which was similar to Wilkes’ The North Briton along with other seditious material believed to have been written by Entick. Entick sued Carrington and his associates in trespass

Carrington and his associates were acting under the orders of Lord Halifax who was Secretary of State. Halifax’s orders were described as a warrant but the Court, speaking through Lord Camden held that Halifax had no right under statute or the common law to issue any warrant in such wide terms.

Lord Camden said

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.

This attempt by the authorities to stifle Entick publishing contrarian views was unsuccessful.

What History Tells Us

What does this foray into the history of the censorship and various attacks on printers tells us.

First, there have always been contrarian views, and the printing press, like Internet platforms of today, enabled the dissemination of those views.

Secondly, the authorities recognized that not only should those who produced the content be brought to book, but those who enabled the wider distribution – the printers and booksellers – should be deterred and punished, in a similar vein to the cries that go up today about the regulation of Internet platforms

Thirdly, the contrarian views that were expressed were usually minority opinions and were frequently aimed at the establishment. They were also associated with suggestions of “conspiracies”.

In the seventeenth and early eighteenth centuries the authorities went after the printers – the equivalent although not precisely so of today’s platforms in that printers necessarily were aware of what it was that emerged from their presses even although they may not have supported it.

As I have noted, a particular context was the Jacobite threat and the fear of the re-establishment of a Catholic monarch in a state that was largely Protestant with associated fears of retributive persecution. It was a dangerous business to be a Catholic in England in the sixteenth and seventeenth centuries and although there were claims of toleration, the Titus Oates allegations about a Catholic conspiracy and the Gordon anti-papist riots in 1780 showed that toleration was, if anything, skin deep.

Today’s contrarians do not focus upon religious differences but their views run against the flow of the thinking of the majority. The suppression, condemnation or censorship of those views may not be met with the physical sanctions visited upon Mathews for treason, or upon Defoe or Edwards for seditious libel, although some might say that social media may provide a digital analogue for the pillory.

In addition there are other strategies available today to deal with contrarian views. One is to label them with the umbrella word of “misinformation”. Others use official and unofficial channels to demonise contrarians and their opinions.

Contentious Material and its Control Today

The main censorship vehicle in New Zealand is the Films, Videos and Publications Classification Act 1993 (FVPC).

This 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, a Video Recordings Tribunal under the Video Recordings Act and the Indecent Publication Tribunal under the Indecent Publications Act.

The primary focus of the FPVC Act is upon objectionable publications. Its purpose is to restrict or ban publications which might cause harm to the New Zealand public. A number of agencies are involved in the censorship regime. The Act itself is administered by the Ministry of Justice however the Department of Internal Affairs via its Censorship Compliance Unit is responsible for enforcing its provisions.^[2] Both the Police and Customs Office have important roles to play in the Act’s enforcement.^[3]

The classification system is central to the operation of the Act. For any material to be objectionable, it must first be classified as such.

The classification process is administered by the Office of Film and Literature Classification, the Classification Office, which is an independent Crown Entity^[4] headed by a Chief Censor and a Deputy Chief Censor.

The Classification Office is not responsible for all media. Broadcasting, for example is covered by other legislation.^[5] However, if a broadcaster wishes to show a film that has been cut or banned by the Classification Office the broadcaster must obtain a waiver from the Chief Censor to do so.^[6]

Special provisions were recently enacted to deal with the classification of streaming and on-demand media from providers such as Netflix, Neon and Disney.

The Annual Report from the Classifications Office for 2019/20 observes that there was a rise of violent and potentially extremist material submitted to the Office, which is handled by a specialist Countering Violent Extremism team.

Following the Christchurch terrorist attacks, it was noted that there was a shift in the ideological subject matter of potentially extremist material submitted – with a greater volume of material relating to white supremacy, the far-right, and online hate speech, compared to material related to Islamic fundamentalism.[7]

The Classification Office Annual Report for 2020-2021[8] observes a continuation of this trend. It states:

“there has also been a noticeable increase in publications that deal with violence and violent extremism. The Classification Office also expects to see an increase in such material submitted by the Department of Internal Affairs as their Countering Violent Extremism team becomes fully operational.”

In addition the Classification Office released a report entitled The Edge of the Infodemic: Challenging Misinformation in Aotearoa. It considered that given what it described as a wave of “misinformation” which the Report unhelpfully does not define the Office needed to better understand how New Zealanders felt about misinformation and what they think should be done. By doing so it is hoped to start a conversation about what better, more inclusive solutions might look like.

The Office hastens to point out that addressing misinformation doesn’t mean telling people what to think, or stifling debate with more censorship – but it claims New Zealanders want to know they can trust the news and information they’re getting, and government can work together with communities to combat misinformation. It suggests that there must be better ways for government, community, and online platforms to come together to prevent harm.

It suggested steps that can be taken to stop the spread of misinformation such as looking at the source of an article before sharing it, questioning the perspectives represented in it and feeling comfortable about discussing the content with another trusted person.

But having said that the issue of misinformation is not about telling people what to think or stifling debate. Research can support cross-government collaboration on potential policy and regulatory responses, including a broad media regulatory review, aid education initiatives, and develop information and resources for the public.

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,”[9]

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 the report referred to above – “The Edge of the Infodemic”[10] 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. It is quite clear that some of the concerns that have been raised about the development of “misinformation” coming as they have alongside moves by the government to address “hate speech” would suggest a shift in attitude towards the robust discussions that characterise a liberal democracy. Indeed there seems to be a general move towards the position that misinformation is in fact harmful content that should be the subject of some form of regulatory response.

Given that the meaning of objectionable is clearly set out in section 3 of the Films Videos and Publications Classification Act 1993 it seems that the Chief Censor is of the view that his powers should be extended beyond that meaning.

In an article by Kristin Hall of 1News dated 3 April 2022 entitled “Misinformation: How social media turned protest into a problem” Mr Shanks was asked to comment on the increase in “misinformation” since his Infodemic report. He commented that

“We’re seeing an increase in the number of bad actors who have learned how to use digital platforms to spread their distrust of public institutions and the media, that means they create followers who really only believe what they say.”

He claimed that the Government needed to push for tighter regulations of platforms that promote misinformation and then went on to cite the Christchurch terror attack.

Mr Shanks quite rightly deemed the live streamed video of that attack as objectionable. It clearly fell within the definition contained in section 3 of the Films Videos and Publications Classification Act 1993 in that it obviously promoted or encouraged criminal acts or acts of terrorism.

However, to equate that video with “misinformation” – a term that Mr Shanks has not defined and which clearly depends on its own circumstances – is in my view an overreach and it is to be hoped that Mr Shanks does not succeed in having objectionable content include the umbrella term “misinformation”.

In an article by Toby Manhire entitled “Inaction on NZ ‘Nuremberg’ site sparks calls for overhaul of system ‘not fit for purpose’” the author calls out the Domain Name Commissioner for failing to cancel the domain name Nuremberg NZ. The website lists, ranks and depicts New Zealand politicians, academics, scientists and journalists and promises “judgement day is here”. Manhire’s complaint is that the site has been left untroubled by New Zealand regulatory and enforcement agencies, a lack of action that, experts say, exposes shortcomings in the apparatus for responding to dangerous online activity.

In the article Manhire observes that the Chief Censor had not received any complaints about the site. Mr Shanks is quoted as saying

“We have been speaking with other agencies, who have been receiving complaints, and we are aware of the very serious concerns about it. The bar for an objectionable (banned) publication is necessarily very high, and our 1993 legislation is not well suited to responding to the kind of harms presented by websites of this kind. We are committed to working with other regulatory authorities to determine what we can do with the tools available.”

It is difficult to discern what it is about the site that Manhire considers to be dangerous or why the Chief Censor should consider the website to be harmful, It is a ridiculous and stupid form of publication at worst that gives a voice to those who wish to express a contrary opinion about certain named individuals. The site seems to be more aligned with elements of the “sovereign citizen” philosophy (I wouldn’t call it a movement) with which I am familiar having had to deal with such individuals in my Court.

Calls to limit the spread of misinformation are not restricted to the Chief Censor.

Stephen Judd of FACT Aotearoa – the Fight Against Conspiracy Theories – considers misinformation to be harmful and claims that some of those involved in misinformation are promoting “completely different media and information universes”. Mr Judd would like to see misinformation propagators’ accounts shut down and in Kirstin Hall’s article is quoted as saying

“”If people who are spreading misinformation are prevented from using mainstream platforms like Facebook, they may go elsewhere but the good thing about that is that they may be harder to find, which means they have to work harder to get a platform for their ideas. So even there that can have a real effect.”

The implications of such a statement for the freedom of expression are chilling. One wonders what Mr. Judd’s response would be if a similar suggestion were to be made about his platform.

Concerns about “misinformation” start at a Government level. At the end of the Parliament grounds occupation the Prime Minister commented “One day it will be our job to try to understand how a group of people could succumb to such wild and dangerous mis- and disinformation.”

When asked whether or not misinformation was a national security issue she did not respond to the question but went on to say “Government agencies are working together to look at how we can better combat the spread of mis- and disinformation and it’s very clear that it’s a whole-of-society approach that’s needed.”[11]

One hopes that in her deliberations the Prime Minister does not lose sight of the provisions of section 14 of the New Zealand Bill of Rights Act protecting the freedom of expression. Or perhaps her long tenure on the “podium of truth” means that she believes her own publicity. It is well known that politicians rarely answer “yes/no” questions with a yes or no and that “spin” is chapter one of the political playbook.

It is therefore encouraging that the head of the SIS Rebecca Kitteridge recognizes the importance of freedom of expression. She says the NZSIS is interested in disinformation when it engages violent extremism or is carried out by a foreign state. “Freedom of speech is a human right,” she says, so the security services step carefully.[12]

Rebecca Kitteridge said “indicators of violence” included someone with an unusual interest in a crowded place or symbolic location or who was seeking explosive material, firearms or knives without good reason[13]. One wonders if this will mean that an PhD student researching material for a thesis on the tools and methods of terrorism will come under the SIS microscope.

However, other Government agencies seem to have an interest in misinformation including the Government’s Combined Threat Assessment Group (CTAG)[14].

Although threats to life, limb and property are properly the concern of Government and law enforcement, and it is necessary that investigations of such threats are carried out it must be a matter of concern that often hyperbolistic chatter is being lumped under the heading of misinformation and that those who engage in such activity may be under suspicion.

Elements of mainstream media have joined in the calls to deal with what is perceived as a rising tide of misinformation. Both Stuff and the New Zealand Herald emphasise that they are trusted sources of information, thus setting themselves above alternative contrarian or contentious opinions which fall into the classification of misinformation.

New Zealand Herald Senior Reporter David Fisher appeared on the Herald Front Page podcast commenting on the dangerous online world of the man charged with threatening to kill the PM. After making some desultory comments about the accused, Fisher wisely steered the discussion away from a matter which was sub judice but went on to discuss at some length the extent of the mis/disinformation realm that was available on the platform Telegram.

Fisher gave an interesting and informative background to those who frequented some of the Telegram messaging streams and there is no doubt that there are some rather strongly expressed contentious and contrarian views expressed on the platform. However, as has been the case in the discourse about “misinformation” there is no attempt to either define the term or clearly state why it is that certain content amounts to misinformation.

Much of the material that is referred to by researchers in the field[15] who seem to be regular “go to” people for the mainstream media is lumped in under the generic term of misinformation but once again little effort is made to define the term or identify the content.

Fisher’s research is extensive and is documented in a couple of recent articles in the NZ Herald “Domestic Terrorism: NZ security agencies’ public guide as violent online talk increases” NZ Herald 9 April 2022 and “Violent talk and fake news: how extremism went mainstream” NZ Herald 9 April 2022. I am indebted to him for some of the material that I have used for this piece.

In his “Violent Talk” piece Fisher identifies some of those who are engaged in what he characterizes as “misinformation.” He refers to Voices of Freedom organisers Claire Deeks, Libby Johnson and Alia Bland and the venerable blogger Cameron Slater once known as Whale Oil with whom I once had dealings. He also refer to the somewhat hysterical Kelvyn Alps of the Counterspin website. In researching this piece I spent a couple of hours (time lost which I shall never recover) watching Mr Alps.

Anyone with a modicum of intelligence would recognize that Alps comes from a long line of angry anarchists (the stereotypes generated in many 19^th century cartoons come to mind although they had more hair atop than Mr Alps and their beards were more unkempt than Mr Alps neat goatee) who have nothing good to say about any form of authority (other than his own) and who spends his time propogating his rants.

To suggest that he might have any credibility in motivating the overthrow of the establishment is laughable. The fact that he seems to attract an audience (of which, statistically, I regret to say I am now one) is meaningless. He may have disciples and there may be a few poor souls who hang on his every word but I doubt they are going to blow up government buildings or take up a gun.[16]

I wonder if perhaps Mr Fisher overstates the case or has substituted the earlier fear that everyone had of COVID-19 for some other target – in this case those who propagate the undefined “misinformation”. This fear that is a subtext of recent news media interest in this phenomenon should not be allowed to grow into some form of New Zealand equivalent of the activities of Senator Joseph McCarthy and his communist witch hunt of 1950 – 54 which formed the inspiration for Henry Miller’s play The Crucible.

The personalisation of attacks upon those who express contentious or contrarian views is further evidenced by an article appearing in Stuff for 10 April 2022 by Kirsty Johnson about Sue Grey, a well known contrarian from Nelson who is also a lawyer. Johnson starts her article benignly enough in what may be characterized as a “profile piece” but then mounts an attack on her subject, observing that a complaint about professional misconduct to the New Zealand Law Society has been escalated to Lawyers and Conveyancers Disciplinary Tribunal.

There can be no doubt from the article that Ms Grey espouses some contentious and debateable causes which one is free to do in a liberal democracy but many of her views are systematically demolished. I don’t have much time for Kirsty Johnson’s journalism but in this case she at least has avoided the umbrella term of “misinformation” and clearly rebuts with evidence where it is that she says Ms Grey falls into error. That at least is refreshing in the current mainstream media campaign against “misinformation”.

In making these observations I am not unmindful of the importance of the freedom of the press and a journalist’s freedom of expression. However, I cannot avoid the thought that there may be an agenda involving carving out the informational space so that there is but one authoritative source – the mainstream media – for information and that there is no room for contrarian or contentious views. There are, of course, economic imperatives which drive this. In addition there is the matter of the unfortunate optics involving the availability of some $55 million from the Public Interest Journalism Fund managed by NZ On Air but emanating from Government cofferss for news media purposes, presumably to ensure the publication of truth.[17]

Misinformation – the new “seditious libel”

So what has changed since the seventeenth century in the way is which we deal with contrarians and their contentious views? It seems to me that the term “misinformation” is a modern equivalent of the charge of seditious libel that was employed by the later Stuarts to silence dissent or contrary or contentious viewpoints and one wonders whether or not we have made very much progress as a society. Are the Chief Censor, FACT Aotearoa, the Disinformation Project and elements of mainstream media the twenty-first century equivalents of Sir Roger L’Estrange? Is the fear of “violent extremism” the parallel to the fear of the Catholic Jacobites of the eighteenth century?

Misinformation seems to be used as a veto word which like other emotive terms such as racism or sexism are ways of avoiding any confrontation with the argument in much the same vein as the way in which the Prime Minister deflects an uncomfortable question by disagreeing with the premise of it.

I wonder too whether or not the concerns about misinformation are driven to a certain degree by an air of panic that in fact there are contrary and contentious opinions at large in the community and that they are being voiced and in some cases gaining traction.

The added difficulty is that there seems to be an assumption that citizens are unable to make up their own minds about the validity of certain content and that essentially the whole of society is gullible and needs to be protected from itself. This is no more than a form of, at best, patronizing paternalism driven by a high level of arrogance fostered by a strong belief that the few know what is best for the many.

What seems to be developing is a form of association between a contrary or contentious opinion which rapidly becomes associated with groups who are anti-vaccination. This in turn automatically translates to a suggestion that those who express contrary or contentious opinions are conspiracy theorists who have fallen into a rabbit hole. From there is it but a short leap of faith to the suggestion that those voicing contentious or contrary opinions are dangerous and may even be terrorists.

Some of the more extreme expressions of contentious or contrarian opinions may come close to committing an offence against existing laws and if that can be proven beyond a reasonable doubt then well and good. But to lump all those who express a contrary or contentious view together with the extremists is a gross generalisation and dead wrong.

What is of concern is that the current campaign – for that is what it is – against misinformation is directed against those who express a contrary view. It is almost as if a form of “group-think” is being encouraged and those who do not conform are eroding the peace order and good government of New Zealand. What such thinking ignores is the importance of freedom of expression in a democracy. Freedom of expression allows a cacophony of views – indeed it encourages it. Section 14 of the New Zealand Bill of Rights Act 1990 states that the freedom of expression is not only to impart information but to receive it. It says nothing about the quality of that information. To try and restrict of suppress contentious or contrarian views eliminates a vital element of our democracy.

Of course our government doesn’t want to be challenged. Of course they don’t like to be told they are wrong. Of course it is concerning if the facts are interpreted to arrive at a conclusion that differs from that of the mainstream. But that is the system that we have got and that we enjoy. Everyone has the same ability regardless of rank, office, position in society or background to freely express a point of view and the Internet – that democratiser of information – allows their voices to be heard. And for it to be suggested that the Government is the only arbiter of truth and that contesting premises may be dismissed is to start to travel an Orwellian path.

To conclude, the current drive against “misinformation” – today’s seditious libel – seems to me to be another attack of the freedom of expression and upon the ability to express views that may be contrary to those of the majority. A justification for this is often cited as the need for “social cohesion” – another term for blind conformity – but in reality it is really yet another manifestation of well-meaning but misguided, paternalistic and patronising “liberals” who know better than everyone else what is good for them.

[1] This form of patronizing paternalism persists today in the assumption that people cannot apply critical processes to the assessment of material emanating from Internet based platforms.

[2] For more detail see https://www.dia.govt.nz/Censorship-Our-Role

[3] See Films, Videos, and Publications Classification Act 1993, s 103 making every constable an Inspector of Publications and s 118A (3) (powers given to Customs officer).

[4] Films, Videos, and Publications Classification Act 1993, s 76.

[5] Broadcasting Act 1989.

[6] Broadcasting Act 1989, s 4(2).

[7] Classification Office Annual Report 2019 – 2020 p. 10 https://www.classificationoffice.govt.nz/assets/PDFs/2020-Classification-Office-Annual-Report.pdf (Last Accessed 30 August 2021)

[8] https://www.classificationoffice.govt.nz/documents/127/Annual_Report_-_Classification_Office_2021.pdf (Last Accessed 5 April 2022)

[9] 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

[10] https://www.classificationoffice.govt.nz/assets/PDFs/Classification-Office-Edge-of-the-Infodemic-Report.pdf (Last accessed 30 August 2021.

[11] David Fisher “Violent talk and fake news: how extremism went mainstream” NZ Herald 9 April 2022 Big Read: Violent talk and fake news – how extremism went mainstream – NZ Herald (Last accessed 10 April 2022)

[12] Quoted in David Fisher “Violent talk and fake news: how extremism went mainstream” NZ Herald 9 April 2022 Big Read: Violent talk and fake news – how extremism went mainstream – NZ Herald (Last accessed 10 April 2022).

[13] David Fisher “Domestic Terrorism: NZ security agencies’ public guide as violent online talk increases” NZ Herald 9 April 2022 Domestic terrorism: NZ security agencies’ public guide as violent online talk increases – NZ Herald (Last accessed 10 April 2022)

[14] It may be of interest that an earlier piece of mine about misinformation which appeared on my blog was accessed by no less a body than the Department of Prime Minister and Cabinet. I have not scanned my home for monitoring devices and have not seen people in overcoats and wearing slouch hats following me around the Westfield Mall in Newmarket or swimming in the lane next to me at the pool so I can only assume it was coincidence.

[15] Such as Stephen Judd’s FACT Aotearoa and Sanjana Hattotuwa of the Disinformation Project

[16] As an example of the over-reaction of the authorities to a message posted on the Internet threatening to blow up buildings if a law relating to copyright was enacted see Police v Joseph [2013] DCR 482.

[17] In this regard the line by Pilate in “Jesus Christ – Superstar” “we all have truths – are mine the same as yours” comes to mind.

Summary of the Argument

Discussion

Bill of Rights Act Issues

The Scope of Necessity

The “Religion” Problem

The United Kingdom Position

Definitional Difficulties

Excite Hostility

Religious\Ethical Belief?

Harm

Conclusion

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Introduction

Human Rights Act – Sections 61 and 131

Religion

The UK Approach

Conclusion

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Introduction

Prologue

Two Documentaries

1 November 2022 – Web of Chaos – TV 1

2 November 2022 – A Question of Justice – Hate Crimes

31 October – 1 November 2022 New Zealand’s Hui on Countering Terrorism and Violent Extremism – He Whenua Taurikura

The Fear Factor

Conclusion – What it Is is Becoming Clear

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Introduction

The Christchurch Call

The Single Source of Truth

The Validation of Discrimination

Misinformation and Disinformation

The Wellington Protest

The War on Disagreement

Conclusion

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A Slice of History

What History Tells Us

Contentious Material and its Control Today

Misinformation – the new “seditious libel”

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