There are many limits on free speech in New Zealand
OPINION: To say we have free speech in New Zealand is nonsense. Freedom of speech is like freedom of movement – you can go wherever you want as long as you stay on the road.
In reality, the limits on free speech are legion. The only real question is where the line should be drawn between permitted and prohibited speech.
We accept that far more speech is (and should be) permitted than prohibited. At present the line is drawn erratically and there is little distinction of principle.
We don't really notice most of the restrictions on free expression which operate on an everyday basis.
Many protect commercial interests. The law of passing-off prohibits using the branding of a competitor. The Fair Trading Act protects from misleading conduct like false advertising – a provision most frequently used by one competitor against another to prevent them deceiving a buyer that a product is something it is not (wasn't there a Pantronic brand that disappeared?).
There are numerous other areas which regulate speech in commercial law, such as misrepresentation in contract and the tort of deceit (where you intentionally lie to someone to get them to take a certain action). Of course copyright is probably the most wide-ranging constraint – a prohibition on using words from an artistic work without permission of the owner.
The law of defamation is well known – it creates a civil claim for damage to reputation for untrue statements which are published. There are limited exceptions such as good faith statements on political matters, and of course the absolute privilege of MPs to say what they like in Parliament. In reality defamation is generally used by politicians, celebrities and businesspeople to protect their reputations.
Over time all these constraints which protect commercial interests by limiting speech have quietly expanded. A large part of the legal industry concerns itself with limiting the "free speech" rights of others to protect commercial interests.
That's not necessarily a bad thing, but there are two observations.
First, let's not pretend that we live in a world where the law lets us say whatever we want.
Second, there is very little discussion about the right balance between free speech and fettered speech when it comes to commercial interests.
There are other limits on free speech which protect more personal interests, but they are patchy.
At one extreme is the crime of threatening to kill. Threats of terrorist action like bombs or biological weapons are also a crime. The Harmful Digital Communications Act created the offence of intentionally "causing harm by posting a digital communication" in 2015. In that offence harm means causing "serious emotional distress".
Strangely, there is no prohibition on causing such distress by using another form of communication – so causing distress by snail mail or in person is permitted, even though in reality words in a written letter or delivered in person may be considerably more distressing.
Of a similar ilk is the summary offence of intimidation – which includes a threat to injure. Another little-known offence is that of disturbing meetings – though the $200 fine perhaps explains why it is rarely prosecuted.
And probably the least used of all provisions is the only genuine "hate speech" law in New Zealand, found in s131 of the Human Rights Act. It sets out the crime of "inciting racial disharmony" by using words which are threatening, abusive, or insulting.
The current justification for there being no prohibition on hateful or offensive speech is generally framed as a balance between harmful speech and the need for a robust and free exchange of ideas. The idea is that the ability to exchange and test ideas is a cornerstone of democracy (as indeed it is).
However it is hard to see how there is any value in protecting a tirade against a woman wearing the traditional Muslim hijab, or abuse aimed at participants in a gay pride parade. If the only intention underlying the speech is to offend or distress the subjects then the "fierce exchange of ideas" justification falls away.
Perhaps more difficult is speech presented in an overtly political context – such as the public meetings of Don Brash, Lauren Southern and Stefan Molyneux. Here the argument that speech of that nature is part of the free and fierce exchange of ideas essential to our democracy is much stronger. While there have been plenty of false starts and wrong turns, the progression of ideas does depend on free speech.
While Nazism and other reprehensible political theories have used the oxygen of free speech to spread, so have democracy, liberalism, trade unionism, and women's suffrage.
The progress of human thought has occurred largely through intellectual conflict. While it would be foolish and wholly inaccurate to think the defeat of fascism was achieved only through intellectual endeavour, the fact is the most objectionable ideas which underpinned it have eventually been demolished by modern thought.
On this basis it seems that little is to be gained by seeking to suppress the generic dissemination of hateful ideas. In light of this I believe the Southerns and Molyneuxs of this world are best permitted and then refuted or ignored. Weeds of that nature flourish in the dark and are best subjected to the sunlight where they will wither.
I suppose we should also consider those ill-considered statements made by celebrities. Personally I would relegate to the dustbin trivial statements like those of Israel Folau and Roseanne Barr – proclamations which gain traction only because they are profoundly ignorant and come from people with a large social media following.
Being a great rugby player or a funny comedian clearly does not qualify one to add to the sum of human knowledge of challenging moral and social issues. Those statements should be treated like those of any other bigot and dismissed with derision. The law has no part to play in punishing the narrow-mindedness and stupidity of celebrities.
Dr Duncan Webb is a former Professor of Law and partner at Lane Neave. He is now the MP for Christchurch Central.
- The Press