Christchurch mosque shootings: Does New Zealand need hate speech laws after terror attacks?

The effects of the Christchurch terror attacks will be felt for years if not decades to come.

Our laws are already changing.

Prime Minister Jacinda Ardern last week banned military-style semi-automatic firearms - the type of weapon used by the alleged terrorist to kill 50 people at two mosques. New gun laws are expected to be passed through Parliament under urgency by April 11.

Now, academics, journalists and social commentators are considering what other legislation could be passed or revised to prevent another attack of the such enormity.

And hate speech appears to be the obvious choice.

Some in New Zealand, including former Race Relations Commissioner Dame Susan Devoy, have been calling for years for specific laws and hate crimes to be recorded by police.

In a column sent to the Herald last week she said a friend had contacted her about death threats by anonymous strangers.

"My friend's voice was trembling with fear. It is something I shall never ever forget," Devoy said.

Hate speech is an issue New Zealand has already grappled with in the past, including in 2005 when the United Kingdom drafted its own hate crime laws.

But church leaders, academics, broadcasters and conservative groups slammed any proposed laws here as a threat to freedom of expression and the democratic process.

Professor Paul Spoonley, a sociologist at Massey University, has studied hate speech and last year provided a briefing paper on the issue to several government agencies.

"I looked online to see how much hate speech there was and I was really surprised," he told the Herald.

"What struck me was how much hate speech was directed at Muslims."

Professor Paul Spoonley says new hate speech laws could be similar to those in Germany. Photo / Dean Purcell

He said there were obvious problems with New Zealand's current legislation, including in the Human Rights Act which is due to be reviewed this year.

Under section 61 of the act it is unlawful to publish, distribute or broadcast material which is threatening, abusive, or insulting and "likely to excite hostility against or bring into contempt" people based on their colour, race, or ethnic or national origins.

But the law does not specifically mention discrimination based on religion, sexual orientation, gender or disability.

Section 131, which is the criminal law equivalent of section 61, has a similar limitation.

Last week, Chief Human Rights Commissioner Paul Hunt questioned the scope of these sections during a presentation at the University of Otago.

"Why does the law prohibit the incitement of hostility against someone because of their race or colour - but not because of their religion - or their sexual orientation - or because they have a disability?" he said.

"It's not rocket science: every member of our community should feel safe. Nobody should be permitted to incite hostility because somebody else has a different religion – or because they have a partner of the same sex – or because they use a wheelchair."

Spoonley said section 61, and other legislation such the Harmful Digital Communications Act, also provide a mostly civil complaints based approach rather than criminal prosecution.

The last, and only recorded, time someone was prosecuted for hate speech in New Zealand was in the late 1970s against one of New Zealand's most notorious neo-Nazis.

Colin King-Ansell was prosecuted under the former Race Relations Act after distributing a brochure around Auckland with a photo of Adolf Hitler and a quote from the Bible.

He was jailed for three months but on appeal in 1979 paid only a $400 fine.

New Zealand Prime Minister Jacinda Ardern has already ensured New Zealand's gun laws will change after the Christchurch attacks. Photo / AP

And only one complaint under section 61 has ever been dealt with by New Zealand's courts.

Labour MP Louisa Wall claimed two newspaper cartoons were hate speech against Māori and Pasifika.

But in a landmark and precedent-setting High Court decision last year, a panel of three ruled free speech was too important and too delicate of a right for a court to restrict.

A year after the 2005 London Bombings the United Kingdom introduced the Racial and Religious Hatred Act, which was designed to stop racially and religiously-motivated attacks.

However, Spoonley said the leaders in hate speech laws have been Germany.

Legislation there includes a government agency, database and a "no tolerance approach to hate speech", Spoonley said.

If New Zealand was to introduce similar rules to the Germans, hate speech here would also need to be properly defined.

"We need a severity test and of course that severity test shouldn't be too low, we don't want to infringe on free speech," Spoonley said.

He added legislation would also need to address online platforms such as Facebook and chat forums like 4chan and 8chan, which the alleged Christchurch gunman was using.

Facebook has been heavily criticised for allowing a livestream of one of the shootings.

The livestream and the alleged gunman's manifesto have since been classified as objectionable by the Chief Censor's Office and it is now an offence to possess or distribute either.

Facebook has been heavily criticised for its lack of action to curb hate speech and objectionable material after the Christchurch attacks. Cartoon / Rod Emmerson

The punishment for hate speech breaches by such platforms, Spoonley said, would also need to be set.

"The Germans have made the requirements around hate speech very clear and the fines for any online platform which breach those requirements are enormous - millions and millions of euros."

However, with every law there are groups in society who will try to find the loophole.

Far-right groups operating on the internet are already trying to circumvent hate speech laws by talking in code, Spoonley said.

"There's quite an industry in trying to circulate your material online and avoid what a country like Germany is trying to do."

Professor Ursula Cheer of the University of Canterbury, whose research focus includes censorship, media law issues and the Bill of Rights, told the Herald a review of current legislation is now required but also warned of a "knee-jerk reaction".

"I would rather the Government looked at what's already there and decide whether any of that can be improved and made to work properly," she said.

Issues requiring scrutiny, she continued, included how current laws stand up to social media and modern society, while still maintaining a balance for free speech and the media.

The courts and "quite a lot of judges" are already wary of restricting freedom of expression, Cheer added.

"You can't reduce everyone in society to a child-like state," she said.

"Hostility has to be something really, really bad and contempt has to be a really strong emotional response like despising or vilifying a person. It's not enough to hurl a bit of abuse at someone or write a bit of abuse and post it online - although I'm sure in this case [the alleged Christchurch's terrorist's] manifesto went further than that and would've been pretty clear."

The alleged terrorist's "manifesto" and livestream have been classified as objectionable by the Chief Censor's Office. Photo / Mark Mitchell

Cheer said the fear of introducing restrictive hate speech laws included potentially curbing free speech, the right for people to protest and over-criminalising society.

"In America [free speech is] the most important right and it trumps everything, we don't quite take that approach, we take a balancing approach," which she explained was similar to the UK, Australia, and much of Europe.

"You think [with hate speech laws] that you are getting people who might be an anti-Islamist ... but you might also take in valid protest and discussion elsewhere."

The Human Rights Commission's chief legal adviser, Janet Anderson Bidois, said the commission has not advocated for any specific legal change but has drawn attention to anomalies in the current law, particularly section 61.

Bidois said the New Zealand legislative framework also does not, for the most part, impose much liability for hateful content upon online content hosts and social media platforms.

"This is an issue we need to look at, as a community, alongside the issue of the legislative frameworks governing hate speech," she said.

"Robust exchange of ideas is consistent with the concept of free speech and a democratic society.

"However, important human rights principles should not be used as weapons to infringe on the fundamental human rights of others – including the right to be safe and the right to be alive."