scholarly journals But names will never hurt me: Extending hate speech legislation to protect gender and sexual minorities in New Zealand

2021 ◽  
Author(s):  
◽  
Vanessa Haggie
Keyword(s):  
New Zealand ◽  
Sexual Minorities ◽  
Minority Groups ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Minority Group ◽  
Constitutional Rights ◽  
Definition Of ◽  
The Right ◽  
The Voice

<p>Hate speech legislation involves a fundamental conflict with the right to freedom of expression. However, it is a conflict that can be justified in a constitutional framework in which free speech is not paramount and can be balanced against other rights and freedoms. This paper discusses the concept of “hate speech” legislation, the conflict between freedom of expression and hate speech censorship, and ways in which these seemingly-incompatible concepts might be harmonised. It considers, drawing on legislation and case law from other jurisdictions, and in light of the Marriage (Definition of Marriage) Amendment Act 2013, the possibility of extending such legislation to protect gender and sexual minorities in New Zealand, and suggests a potential framework for such legislative change. Any provision concerning hate speech must avoid overreaching into the realm of free expression. As a result, ‘hate speech’ should be clearly defined and narrowly focussed in scope, as words or matter which “exposes or tends to expose to hatred or contempt” the minority group at which the protection is aimed. In New Zealand’s constitutional/rights framework, this limitation on freedom of expression can be justified as reasonable and appropriate. While hate speech legislation does create a conflict with freedom of expression, to protect hate speech at the risk of perpetuating harm, discrimination, marginalisation and silencing is not appropriate. It sends the message that the voice of hate speakers is worth more than that of minorities, and undervalues the dignity and social assurance of those minority groups as valued members of society.</p>

scholarly journals But names will never hurt me: Extending hate speech legislation to protect gender and sexual minorities in New Zealand

2021 ◽  
Author(s):  
◽  
Vanessa Haggie
Keyword(s):  
New Zealand ◽  
Sexual Minorities ◽  
Minority Groups ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Minority Group ◽  
Constitutional Rights ◽  
Definition Of ◽  
The Right ◽  
The Voice

<p>Hate speech legislation involves a fundamental conflict with the right to freedom of expression. However, it is a conflict that can be justified in a constitutional framework in which free speech is not paramount and can be balanced against other rights and freedoms. This paper discusses the concept of “hate speech” legislation, the conflict between freedom of expression and hate speech censorship, and ways in which these seemingly-incompatible concepts might be harmonised. It considers, drawing on legislation and case law from other jurisdictions, and in light of the Marriage (Definition of Marriage) Amendment Act 2013, the possibility of extending such legislation to protect gender and sexual minorities in New Zealand, and suggests a potential framework for such legislative change. Any provision concerning hate speech must avoid overreaching into the realm of free expression. As a result, ‘hate speech’ should be clearly defined and narrowly focussed in scope, as words or matter which “exposes or tends to expose to hatred or contempt” the minority group at which the protection is aimed. In New Zealand’s constitutional/rights framework, this limitation on freedom of expression can be justified as reasonable and appropriate. While hate speech legislation does create a conflict with freedom of expression, to protect hate speech at the risk of perpetuating harm, discrimination, marginalisation and silencing is not appropriate. It sends the message that the voice of hate speakers is worth more than that of minorities, and undervalues the dignity and social assurance of those minority groups as valued members of society.</p>

Does the Constitution Call for the Criminalisation of Hate Speech?

2017 ◽  
Vol 30 (2) ◽  
pp. 456-483
Author(s):  
Marelize Marais
Keyword(s):  
South African ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Constitutional Rights ◽  
South African Society ◽  
Constitutional Protection ◽  
Clear Cut ◽  
International Commitments ◽  
The Right ◽  
Legislative Measures

The clear-cut exclusion from constitutional protection of ‘hate speech’ contemplated by section 16(2)(c) of the Constitution is not per se concerned with the expression or promotion of hurtful or offensive discriminatory views, not even if intentionally aimed at disadvantaging the target group. Rather, it is concerned with the devastating human rights risk that irrational, cruel behaviour may be borne out of the hatred instilled in others by the inflammatory speech of reckless orators who advocate hatred. The article submits that existing legislative measures do not satisfactorily meet the responsibility to take necessary legislative measures to safeguard society against the realisation of this risk. It points out that while expression under section 16(2)(c) of the Constitution to a substantial extent falls within the ambit of existing criminal offences, in particular the common law offence of incitement to commit a crime, expression contemplated by section 16(2)(c) that incites others to inflict harm by means that do not constitute criminal offences, for instance, discrimination or the promotion of hatred, is prohibited under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, but not criminalised. Expression of this nature should be criminalised, but only when the inciting action or attitude will have the effect of victimising target groups to the extent that they are effectively prevented from exercising their constitutional rights, in particular their right to freedom of expression. An analysis of the Draft Prohibition of Hate Speech Bill, 2004 reveals that the Bill fails to provide appropriate protection. Taking into account the guarantees of the Constitution including the right to freedom of expression, international commitments, comparative law and, most significantly, relevant features of South African society, the conclusion is reached that the criminalisation of incitement to promote hatred on the grounds stipulated in section 16(2)(c), as well as on the additional grounds of sexual orientation and nationality, is indeed called for.

Governing Fake News: The Regulation of Social Media and the Right to Freedom of Expression in the Era of Emergency

2021 ◽  
pp. 1-41
Author(s):  
Donato VESE
Keyword(s):  
Social Media ◽  
Freedom Of Expression ◽  
Self Regulation ◽  
Public Law ◽  
Fake News ◽  
Human Right ◽  
Social Media Platforms ◽  
Definition Of ◽  
The Right ◽  
Media Censorship

Governments around the world are strictly regulating information on social media in the interests of addressing fake news. There is, however, a risk that the uncontrolled spread of information could increase the adverse effects of the COVID-19 health emergency through the influence of false and misleading news. Yet governments may well use health emergency regulation as a pretext for implementing draconian restrictions on the right to freedom of expression, as well as increasing social media censorship (ie chilling effects). This article seeks to challenge the stringent legislative and administrative measures governments have recently put in place in order to analyse their negative implications for the right to freedom of expression and to suggest different regulatory approaches in the context of public law. These controversial government policies are discussed in order to clarify why freedom of expression cannot be allowed to be jeopardised in the process of trying to manage fake news. Firstly, an analysis of the legal definition of fake news in academia is presented in order to establish the essential characteristics of the phenomenon (Section II). Secondly, the legislative and administrative measures implemented by governments at both international (Section III) and European Union (EU) levels (Section IV) are assessed, showing how they may undermine a core human right by curtailing freedom of expression. Then, starting from the premise of social media as a “watchdog” of democracy and moving on to the contention that fake news is a phenomenon of “mature” democracy, the article argues that public law already protects freedom of expression and ensures its effectiveness at the international and EU levels through some fundamental rules (Section V). There follows a discussion of the key regulatory approaches, and, as alternatives to government intervention, self-regulation and especially empowering users are proposed as strategies to effectively manage fake news by mitigating the risks of undue interference by regulators in the right to freedom of expression (Section VI). The article concludes by offering some remarks on the proposed solution and in particular by recommending the implementation of reliability ratings on social media platforms (Section VII).

scholarly journals Reconstructing the Contours of the Copyright Originality and Idea- Expression Doctrines Regarding the Right to Deny Access to Works

2014 ◽  
Vol 1 (4) ◽  
pp. 921-940
Author(s):  
Michael D. Murray
Keyword(s):  
First Amendment ◽  
Freedom Of Expression ◽  
Cultural Knowledge ◽  
Fair Use ◽  
Digital Revolution ◽  
Content Development ◽  
Proper Definition ◽  
Definition Of ◽  
Access To Knowledge ◽  
The Right

ccess to innovative scientific, literary, and artistic content has never been more important to the public than now, in the digital age. Thanks to the digital revolution carried out through such means as super-computational power at super-affordable prices, the Internet, broadband penetration, and contemporary computer science and technology, the global, national, and local public finds itself at the convergence of unprecedented scientific and cultural knowledge and content development, along with unprecedented means to distribute, communicate, and access that knowledge. This Article joins the conversation on the Access-to-Knowledge, Access-to- Medicine, and Access-to-Art movements by asserting that the copyright restrictions affecting knowledge, innovation, and original thought implicate copyright’s originality and idea-expression doctrines first and fair use doctrine second. The parallel conversation in copyright law that focuses on the proper definition of the contours of copyright as described in the U.S. Supreme Court’s most recent constitutional law cases on copyright—Feist, Eldred, Golan, and Kirtsaeng—interprets the originality and idea-expression doctrines as being necessary for the proper balance between copyright protection and First Amendment freedom of expression. This Article seeks to join together the two conversations by focusing attention on the right to access published works under both copyright and First Amendment law. Access to works is part and parcel of the copyright contours debate. It is a “first principles” question to be answered before the question of manipulation, appropriation, or fair use is contemplated. The original intent of the Copyright Clause and its need to accommodate the First Amendment freedom of expression support the construction of the contours of copyright to include a right to access knowledge and information. Therefore, the originality and idea-expression doctrines should be reconstructed to recognize that the right to deny access to published works is extremely limited if not non-existent within the properly constructed contours of copyright.

scholarly journals Censoring cyber-bullies: Is the Harmful Digital Communications Bill a justified limitation on the right to freedom of expression?

2021 ◽  
Author(s):  
◽  
Annie O'Connor
Keyword(s):  
New Zealand ◽  
Public Interest ◽  
Digital Communication ◽  
Freedom Of Expression ◽  
Digital Communications ◽  
Bill Of Rights ◽  
Criminal Offence ◽  
Online Abuse ◽  
The Right

<p>Harmful Digital Communications have become a pervasive and serious problem in New Zealand. The Harmful Digital Communications Bill aims to address this problem in a number of ways. This paper focuses on the civil enforcement regime and the criminal offence of causing harm by posting a digital communication established by the Bill. It considers these aspects of the Bill in light of the right to freedom of expression, and analyses whether they constitute a justified limitation on that right. By applying the New Zealand Bill of Rights Act 1990 section 5 analysis from Hansen v R, the paper discovers that the civil enforcement regime is a justified limitation, but the new criminal offence is not. The paper concludes that the inclusion of a public interest defence in the offence would allow it to effectively ameliorate the harm caused by online abuse without impinging on freedom of expression more than is reasonably necessary.</p>

Interconnected Rights

2020 ◽  
pp. 127-146
Author(s):  
Chaitanya Lakkimsetti
Keyword(s):  
Sexual Minority ◽  
Social Transformation ◽  
Sexual Minorities ◽  
Minority Groups ◽  
Constitutional Rights ◽  
Minority Politics ◽  
Challenges And Opportunities ◽  
And Gender ◽  
Constitutional Morality ◽  
Alliance Building

This final chapter focuses on the relationship between rights-based struggles and social transformation goals of sexual minorities. In September 2018, the Supreme Court of India reversed the Koushal judgment and declared Section 377 unconstitutional. This was a huge success for sexual minorities who rallied against the law for almost two decades and saw it as a symbol of state-sponsored homophobia. The two decades of sexual minority politics in India have not only foregrounded sexual orientation and gender identity as important constitutional rights but also strengthened the idea of constitutional morality. Constitutional morality, defined as respecting diversity and difference and protecting the most marginalized sections of the society, has helped sexual minorities to fight a growing populist morality that quintessentially defines India as Hindu and heteronormative. These successes also indicate that biopolitical mandates can be strategically used to fight popular morality and norms. In addition, by articulating sexual rights as interconnected with other social justice goals, sexual minorities in India also showcase the importance of intersectional struggles. The conclusion also touches upon challenges and opportunities for alliance building across sexual minority groups.

Introduction

2018 ◽  
pp. 1-27
Author(s):  
Anushka Singh
Keyword(s):  
Free Speech ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
University Of California ◽  
American Democracy ◽  
Mob Violence ◽  
A Chain ◽  
The Right ◽  
The University ◽  
Public Lecture

On 1 February 2017 at the University of California, Berkeley, USA, mob violence erupted on campus with 1,500 protesters demanding the cancellation of a public lecture by Milo Yiannopoulos, a British author notorious for his alleged racist and anti-Islamic views.1 Consequently, the event was cancelled triggering a chain of reactions on the desirability and limits of freedom of expression within American democracy. The Left-leaning intellectuals and politicians were accused of allowing the mob violence to become a riot on campus defending it in the name of protest against racism, fascism, and social injustice. In defending the rights of the protesters to not allow ‘illiberal’ or hate speech on campus, however, many claimed that the message conveyed was that only liberals had the right to free speech....

The Nature of Offence

2021 ◽  
pp. 7-34
Author(s):  
Nicholas Hatzis
Keyword(s):  
Free Speech ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Special Problem ◽  
Free Expression ◽  
Way Of Life ◽  
Narrow Definition ◽  
State Coercion ◽  
Definition Of ◽  
Offensive Speech

The experience of suffering offence relates to a constellation of unpleasant feelings stirred up when one’s expectations of being treated in a certain way are frustrated. This chapter explores how the nature of offence matters for the way the law responds to offensive conduct. Prohibiting speech which offends poses a special problem because it clashes with the free speech principle, i.e. the idea that there is something particularly important in being allowed to speak our minds, which sets free expression apart from a general liberty claim to choose a way of life. It is suggested that when deciding what should count as properly offensive for the purpose of exercising state coercion, only a very narrow definition of offensive speech is compatible with the values underlying freedom of expression. Then, offensive speech is distinguished from hate speech. As the two are morally different, it is inappropriate to borrow arguments from the hate speech debate to justify restrictions on offensive speech.

7. Freedom of religion and expression

2017 ◽  
Author(s):  
Bernadette Rainey
Keyword(s):  
Human Rights ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
European Convention ◽  
Freedom Of Religion ◽  
Essential Information ◽  
European Court ◽  
State Restriction ◽  
The Uk ◽  
The Right

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on freedom of religion and freedom of expression, which are classified as qualified rights, and examines Article 9 of the European Convention on Human Rights (ECHR), which explains the right to hold or not hold a belief as well as the right to manifest a belief. It also considers how the European Court of Human Rights (ECtHR) decides if there has been manifestation of belief, interpretation of Article 10 with respect to views that shock and disturb and some forms of hate speech, and state restriction of expression. The chapter concludes with a discussion of freedom of religion and expression in the UK.

scholarly journals Charlie Hebdo: Testing the Limits of Freedom of Expression

2017 ◽  
Vol 14 (1) ◽  
Author(s):  
Niaz A. Shah
Keyword(s):  
Public Space ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Criminal Code ◽  
European Convention ◽  
Muslim Community ◽  
The Public ◽  
Shared Space ◽  
The Right ◽  
Charlie Hebdo

AbstractThe right to freedom of expression is a qualified right: it allows expression that might ‘offend, shock or disturb’ but prohibits ‘insults’, ‘abusive attacks’ and ‘hate speech’. Applying the Convention test I argue that all cartoons of the Prophet Muhammad, which although might offend Muslims, are an acceptable form of expression in Western democracies except cartoon number two implying the Prophet Muhammad as a ‘terrorist’ which is ‘insulting’ and ‘an abusive attack’ on the Muslim community and Islam. In the post-9/11 circumstances, it may be viewed as a vehicle for instigating hatred against the Muslim community. By critiquing the inaction of Denmark and France, I argue that failure to prosecute Jyllands-Posten and Charlie Hebdo violates Articles 9(1) of the European Convention and the Danish Criminal Code and the French Freedom of Press Act 1881. Relying on ECtHR’s jurisprudence, I argue that the values of the Convention and democracy aim to nurture a society based on tolerance, social peace, non-discrimination and broad-mindedness. The public space is a shared space and no single group – religious and non-religious – can monopolise nor intimidate it.

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