law commission report on hate speech

| Socio-Legal Review

National law school of india university, bengaluru       issn no.: 0973-5216.

• Aug 10, 2017

Unpacking the Law Commission's Hate Speech Report

- Siddharth Narrain*

Introduction

The 267th Law Commission Report on Hate Speech, recently submitted to the Law Ministry, is a mixed bag. On the one hand, it has, for the first time, analysed hate speech in a detailed manner, focusing on global jurisprudence, Indian law, and putting forward a strong and reasoned argument on why hate speech should be regulated. On the other hand, its recommendations have a very narrow focus, suggesting criminal law amendments, specifically the introduction of new provisions in the Indian Penal Code (IPC), and amendments to their corresponding provisions in the Code of Criminal Procedure (CrPC). A number of legal commentators [1] have already responded to the amendments, raising important concerns on how the laws proposed by the Commission if enacted, will lower existing standards and free speech protections laid down by courts, and may be used to curb legitimate speech and dissent.

While I agree with these concerns, given the rampant misuse of existing IPC provisions such as sections 153A and 295A to target dissent and creative expression, I will focus on the main text of the report, which, in its attempt to reconcile concerns around liberty, equality, free speech and discrimination, puts forward very important legal distinctions that all of us must engage with.

Origins of the Report

The Law Commission’s Hate Speech report has its origins in the Supreme Court’s 2014 Pravasi Bhalai Sangathan judgment, [2] a case dealing with speech that targeted interstate migrant workers. The Supreme Court in that case observed that India had enough laws to deal with the issue at hand, but the problem was the non-implementation of these laws. The Court suggested that the Law Commission look into the matter, and specifically suggested that the Law Commission study the issue of hate speech in the lead up to elections, to enable the Election Commission to deal with this issue. The present Law Commission, headed by Justice B.S. Chauhan, one of the judges who authored the Pravasi Bhalai Sangathan judgment, took up this matter on priority, and has come up with this detailed report.

Findings and Recommendations of the Report

The most important aspect of the 267th Law Commission Report on Hate Speech is that it goes into a detailed discussion on hate speech itself, a theme that has not been discussed much in Indian legal texts. The Commission draws upon academic legal writing in India and in comparative jurisdictions to lay out a map of the global debates around hate speech, the range of existing Indian laws that could be understood as hate speech laws, and the underlying tension between the right to liberty and the right to equality when it comes to legislating hate speech.

The Commission lists a number of laws that would broadly have a bearing on hate speech. These include provisions from the Indian Penal Code, 1860 The Code of Criminal Procedure 1973, the Representation of People’s Act 1951, The Protection of Civil Rights Act 1955, The Religious Institution (Prevention of Misuse) Act 1988, The Cable Television Network Regulation Act 1995, and The Cinematograph Act 1952.

Crucially, the Commission lays down a framework for the principles that need to be applied while dealing with hate speech, drawing upon developments in European and international law. The Commission stresses on the three-part test – 1) Is the interference prescribed by law? 2) Is the interference proportional to the legitimate aim pursued? 3) Is the interference necessary in a democratic society? These principles of necessity, proportionality and the requirement of limitations to free speech being prescribed by law and having a legitimate aim, underlie the ICCPR understanding of the freedom of speech, and the decisions of the European Court of Human Rights.

Along with this, the Commission also draws upon international developments to lay down the parameters that need to be taken into account while considering whether speech amounts to hate speech or not. These include how extreme the speech is; the requirement of incitement; the status of the author of the speech; the status of the victim of the speech; the potentiality and context of the speech. Perhaps, the most important of these parameters is the emphasis on the incitement standard, which the Commission endorses strongly. The Commission cites both the Supreme Court decisions in Shreya Singhal , [3] which in the context of online speech, distinguished between ‘discussion’, ‘advocacy’, and ‘incitement’, and in Arup Bhuyan [4] where the court held that mere membership of a banned organisation is not sufficient to impute criminality and that it has to be shown that the person incited violence or created public disorder.

The Legal Distinctions

While the Commission recommends that elements of intent and incitement must be included in any formulation of hate speech legislation, it distinguishes between incitement to violence, and incitement to discrimination, recognising both of these as factors that contribute to identifying hate speech. According to the Commission, even if speech does not incite violence, but perpetrates discriminatory attitudes it could amount to hate speech. This move has been justified by the Commission’s view that liberty and equality are complementary and not antithetical to each other. The Commission draws on the work of legal scholars such as Jeremy Waldron, who have argued that while purely offensive speech or hurt sentiments should not be regulated, there is a class of speech amounting to more than just hurt sentiments but less than actual physical injury that should be regulated in democracies. This category is speech that impacts the dignity of groups, undermining the implicit assurance that citizens of a democracy, especially politically disenfranchised minorities and vulnerable groups are placed on the same footing as the majority. [5]

The example Commission uses to illustrate this is the exodus of around 50,000 persons belonging to the North East from cities such as Bengaluru and Pune in 2012. This exodus was the result of threatening SMSs, MMSs circulated at the time, and stray attacks on persons belonging to the North East in these cities. The Commission, however does not do justice to this example, and has not delved upon the specificities of speech on the internet, especially when it seems to be suggesting a broader understanding of incitement than the Shreya Singhal standard. There is a growing jurisprudence and global discussion around hate speech online, including the link to issues of intermediary liability, jurisdiction, and techno-legal developments, all of which would require a separate discussion, and could not possibly be covered in a general discussion on hate speech.

The internet and social media apart, the Commission is making an important intervention around the incitement to discrimination standard for hate speech. In his book, The Harm in Hate Speech Laws , [6] Waldron uses a telling illustration. He asks the reader to imagine a situation where a Muslim family in the United States, post the 9/11 attack, steps out of their home to see large billboards all over the city that are talk about the threat of Islamic fundamentalism, or is Islamophobic. Recent reports of billboards that are being put up in cities in Uttar Pradesh, warning Rohingya and Bangladeshi refugees to leave Jammu [7] or posters that appeared in a village in Bareilly district after the election results in the state asking Muslims to leave the area, [8] clearly show us that far from being an exceptional situation, is fast becoming the new normal. The tension here is between the criminalisation of a swathe of speech in a situation where hurt sentiment and offensive speech are constantly produced by various local actors, [9] and protecting the rights of vulnerable communities, ensuring that they are not scared into silence on the pretext of free speech.

The move to the incitement to discrimination standard is reflected in the framing of the proposed sections 153(C) and 505 (A) IPC, where the first part of the sections reflect an incitement to discrimination standard, and the second part reflect an incitement to violence standard. [10] By suggesting an incitement to discrimination standard in the context of online speech, the Commission fails to do is to address the specificities of the Indian context. There is only a passing reference to the gross misuse of the existing provisions of law such as sections 153A and 295A IPC to curb dissent and artistic license. For those who have followed the manner in which these laws have been used to drag people to court, and silence actors through the threat of litigation, this is a glaring omission. One of the main concerns of free speech advocates has been how to institute more procedural safeguards to protect speech. This concern is reflected in the Bombay High Court’s decision in the cartoonist Aseem Trivedi’s case [11] where the court suggested that certain safeguards be instituted to prevent the sedition law (section 124A IPC) from being misused. [12]

The amendments to the IPC that have been suggested in the report have expanded on the categories covered by the law, in line with a contemporary understanding of hate speech, including hate speech based on sexual orientation, gender identity, and disability. By doing this, the Commission has positioned these amendments as in tune with global developments on this front. However, this does not address the worry that these amendments, by themselves, will be unable to address the problem of hate speech, as the use of the law will be determined by those in power, and by political calculations.

We know for instance that the Chief Minister of Uttar Pradesh, Yogi Adityanath faces a number of hate speech charges including a provocative speech in January 2007 that was followed by incidents of communal violence. [13] (at the time was an elected MP from Gorakhpur). Now that he is Chief Minister a file seeking sanction for prosecution in a hate speech case against Adityanath has to be cleared by his government. [14] Meanwhile critics of the Chief Minister, who have made comments, or posted morphed images of him online, who are being charged with the same set of laws, by the Uttar Pradesh police. [15]

It is the dark irony of this situation that underlies my serious doubts on whether the amendments to the penal law suggested by the Commission were warranted, or can be viewed as a positive development. After all, hate speech laws are designed to be invoked by the government in power against those who violate the law, but the question is what happens when hate speech has the tacit support of those in power, or if it is the government itself that is producing hate speech?

*Siddharth Narrain is a Visiting Faculty at the School of Law, Governance and Citizenship, Ambedkar University, Delhi. He can be contacted at [email protected].

[1] See for instance, Aman Lekhi, The Law Commission’s Curious Recommendations on Hate Speech , Bloomberg Quint (April 08 2017), https://www.bloombergquint.com/opinion/2017/04/08/the-law-commissions-curious-recommendations-on-hate-speech; CCG, NLU Delhi, Reviewing the Law Commission’s Latest Hate Speech Recommendations , Legally India (14 April 2017), http://www.legallyindia.com/views/entry/reviewing-the-law-commission-s-latest-hate-speech-recommendations; Aditya Bapat, The Law Commission’s Recommendations on Hate Speech: Be Fearful and Alarmed , The Huffington Post (12 April 2017), http://www.huffingtonpost.in/aditya-bapat/the-law-commissions-recommendations-on-hate-speech-be-fearful-a/.

[2] Pravasi Bhalai Sangathan v. Union of India, AIR 2014 SC 1591.

[3] Shreya Singhal v. Union of India, AIR 2015 SC 1523.

[4] Arup Bhuyan v. State of Assam, (2011) 3 SCC 377.

[5] Law Commission of India, Report No. 267, Hate Speech 16 (March 2017).

[6] Jeremy Waldron, The Harm in Hate Speech (2012).

[7] Ashutosh Sharma, Quit Jammu: Billboards Target Rohingya, Bangladeshi Refugees , National Herald (7 February 2017), http://www.nationalheraldindia.com/news/2017/02/07/quit-jammu-billboards-target-rohingya-bangladeshi-refugees-to-throw-out-rohingyas-settled-for-decade-and-more.

[8] In This U.P. Village, Posters appeared Overnight asking Muslims to Leave , Huffington Post , 16 March 2017, http://www.huffingtonpost.in/2017/03/16/in-a-village-in-uttar-pradesh-posters-ask-muslims-to-leave-the_a_21897281/.

[9] William Mazzarella and Raminder Kaur, Censorship in South Asia: Cultural Regulation From Sedition to Seduction (2009).

[10] Prohibiting incitsement to hatred-

"153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe -

1. (a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

2. (b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence

shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.".

3. Insertion of new section after section 505. - In the Penal Code, after section 505, the following section shall be inserted, namely:- Causing fear, alarm, or provocation of violence in certain cases.

"505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe-

uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

(i) within the hearing or sight of a person, causing fear or alarm, or;

(ii) with the intent to provoke the use of unlawful violence,

against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both".

[11] Sanskar Marathe v. State of Maharashtra, 2015 CriLJ 3561.

[12] The Law Commission’s report clearly distinguishes between hate speech and sedition as two distinct spheres, which is important since these two categories are often collapsed in public discussion. While both these laws do have a common history, hate speech has to do with speech targeting other persons or communities while sedition deals with the citizen’s relationship with the state.

[13] Shahnawaz Alam , How the SP and BSP helped Yogi Adityanath get away with his hate speeches , Business Standard (30 March 2017), http://www.business-standard.com/elections/uttar-pradesh-assembly-elections-2017/how-sp-and-bsp-helped-yogi-adityanath-get-away-with-his-hate-speeches-117033000148_1.html.

[14] Maulshree Seth, On Yogi Govt Table, File on Yogi hate speech case , Indian Express (23 March 2017), http://indianexpress.com/article/india/yogi-adityanath-uttar-pradesh-govt-table-file-on-yogi-hate-speech-case-orakhpur-radhamohan-das-agarwal-4581333/.

[15] Vinit, 22-Year Old Arrested in Noida for Facebook Post on Yogi Adityanath , Hindustan Times (24 March 2017), http://www.hindustantimes.com/noida/22-year-old-arrested-in-greater-noida-for-facebook-post-on-uttar-pradesh-cm-adityanath/story-mT44NjypbLGuTLYCu3oirM.html.

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Current project status

The current status of this project is: Complete .

List of project stages:

• Pre-project
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• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

Reforms to hate crime laws to make them fairer, while also protecting freedom of expression

Download the report

Download a summary of the report

Download a Welsh summary of the report

Download an Easy Read summary of the report

The Problem

Hate crimes are acts of violence or hostility directed at people because of who they are. Hate crime laws in England and Wales have developed in various phases over the past two decades, and the law currently recognises five protected characteristics:

• sexual orientation
• transgender identity.

But the criminal law does not treat all of those protected characteristics equally. This means that someone who is assaulted based on disability is not afforded the same protection as someone who is assaulted because of their race.

Other major concerns include:

• The complexity and lack of clarity in the current laws which can make them hard to understand.
• Concerns about the particular challenges in prosecuting disability hate crimes

The Consultation paper

We published our consultation paper on 23 September 2020. We received nearly 2500 consultation responses, which have helped shape the final recommendations we have made.

These responses are available here .

In our final report published on 7 December 2021, we have made a number of recommendations for reform of hate crime laws. These include:

Levelling up the protection for disability and LGBT+ victims

Hate crime laws don’t protect all five protected characteristics to the same degree. For example, aggravated offences only apply in respect of racial and religious hostility whilst the stirring up offences don’t cover disability or transgender identity.

This current hierarchy of protection is widely seen as unfair and sends a distinctly negative message to victims of hate crimes on the basis of disability, sexual orientation and transgender identity. It also makes the laws needlessly complicated and is a cause of confusion.

The Law Commission has recommended that across the various hate crime laws (including aggravated offences and stirring up offences) all protected characteristics should be treated equally. This would provide much greater protection for victims of disability and LGBT+ hate crime in particular.

We have also recommended legal reforms to assist with prosecutions for exploitative forms of disability hate crime that lack obviously “hostile” features.

Tackling sex and gender abuse

The Law Commission has recommended that “sex or gender” should not be added to the protected characteristics for aggravated offences and enhanced sentencing as it would be ineffective at protecting women and girls and in some cases, counterproductive.

For example, if applied in the context of rape and domestic abuse it could make it more difficult to secure prosecutions and create unhelpful hierarchies of victims. However, if these contexts are excluded, it would make sex or gender very much the poor relation of hate crime characteristics, applicable only in certain, limited contexts.

However, the Commission has made a number of recommendations to provide greater protection:

• Extending the offence of stirring up hatred to cover stirring up hatred on the grounds of sex or gender. This would help to tackle the growing threat of extremist misogynist “incel” ideology, and its potential to lead to serious criminal offending.
• A government review of the need for a specific offence to tackle public sexual harassment, which would likely be more effective than adding sex or gender to hate crime laws.

Protecting freedom of expression

Whilst the Commission has recommended some extensions to hate crime legislation, we have coupled these with reforms to hate speech laws and new protections for freedom of expression to ensure that only the most egregious hate speech is criminalised.

In relation to the stirring up hatred offences, the Commission has recommended:

• Replacing the dwelling exemption with protection for private conversations to ensure they are exempted regardless of where they take place
• Explicit protection for “gender critical” views, criticism of foreign governments, and discussion of cultural practices, and immigration, asylum and citizenship policy
• A new protection for “neutral reporting” of inflammatory hate speech by third parties

Key questions about our final recommendations

We have produced answers to the key questions that we anticipate people may have about our final report. These are available here .

On 25 April 2023 the Government published a response to one of our recommendations . In it they accepted our view that sex or gender should not be added as a protected characteristic for the purposes of aggravated offences and enhanced sentencing. We continue to wait for the government’s response to our remaining recommendations.

If you have a question about the report, please email: [email protected]

Reports and related documents Open

Hate crime report.

• Hate crime laws: Final report PDF, 3 MB
• Hate crime: Final report summary PDF, 2 MB
• Hate crime: Easy Read report summary PDF, 26 MB
• Hate crime: Welsh report summary DOCX, 2 MB
• Hate crime: Impact assessment PDF, 590 KB
• Hate crime: Equality impact assessment PDF, 138 KB

Consultations and related documents Open

Hate crime consultation paper.

• Hate crime laws: A consultation paper PDF, 4 MB
• A summary of Hate crime laws: A consultation paper PDF, 5 MB
• Welsh version of the Hate crime summary paper PDF, 6 MB
• Easy Read version of the Hate crime summary paper PDF, 42 MB

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Hate Speech

Last updated on October 29, 2022 by ClearIAS Team

Numerous events, including ones that occurred in a religious setting and on online forums, have targeted minority communities. This has brought attention to problems with the implementation of legislation to curb hate speech. What are the laws related to hate speech in India? Are there any new legal precedents on this menace? To know more, read further. 

In Pravasi Bhalai Sangathan v. Union of India (2014) , the Supreme Court of India outlined its definition of hate speech as “an effort to marginalize individuals based on their membership in a group which seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society.”

Hate speech, according to the European Commission against Racism and Intolerance (ECRI), encompasses a wide range of expressions that encourage, incite, promote, or otherwise justify hatred, violence, or discrimination against an individual or a group of individuals for a number of different reasons.

The Law Commission of India’s 267th Report defines hate speech as an incitement to hatred directed principally towards a group of people who are identified by their race, ethnicity, gender, sexual orientation, or other characteristics.

Table of Contents

What are the legal provisions related to Hate Speech in India?

• Article 19(2) of the Constitution of India puts reasonable restrictions on the Freedom of Speech including public order, decency or morality, defamation, or incitement to an offense.
• Section 153(a) of the Indian Penal Code (IPC) punishes the promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. with imprisonment up to 3 years.
• Section 153(b) of IPC punishes assertions prejudicial to national integration (e.g., asserting that a class of persons cannot bear true faith and allegiance to the Constitution of India) with imprisonment of up to 3 years.
• Section 295(a) of IPC punishes deliberate and malicious acts, intended to outrage the religious feelings of any class by insulting its religion or religious beliefs with imprisonment for up to 3 years.
• Section 505(2) of IPC punishes statements creating or promoting enmity, hatred, or ill will between classes with imprisonment for up to 3 years.
• Section 8 of the Representation of People’s Act, 1951 (RPA) prevents a person convicted of the illegal use of the freedom of speech from contesting an election.
• Sections 123(3A) and 125 of the RPA b ar the promotion of animosity on the grounds of race, religion, community, caste, or language in reference to elections and include it under corrupt electoral practices.

Suggestions made by Law Commission

In its 267th report, the Law Commission of India proposed including the following two provisions:

• Section 153C covers  crimes committed when someone threatens someone with remarks meant to incite fear, hatred, or violence based on someone’s race, caste, religion, sex, gender identity, or other characteristics.
• Section 505A should be included and have provisions that make inciting fear, alarm, or violence a crime.

Interpretation of the Supreme Court related to Hate Speech

Following are the case laws wherein the Supreme court cleared its stand.

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Ramji Lal Modi Case( 1957)

A five-judge Supreme Court bench upheld the validity of Section 295(A) in this case.

While Article 19(2) permits reasonable restrictions on freedom of speech and expression for the sake of public order, the Supreme Court reasoned, a more severe type of blasphemy that is done with the intent to outrage the religious sensibilities of any group is punishable under Section 295(A).

Superintendent, Central Prison, Fatehgarh Vs Ram Manohar Lohia case (1960)

It was claimed that in order to invoke Section 295(A) of the IPC, a strong linkage must exist between the speech that was spoken and any public disorder that was brought about as a result of it.

In addition, it came to the conclusion in 2011 that only speech that amounted to “incitement to impending unlawful conduct” is punishable.

That is to say, a very high standard must be met before the state can use public disturbance as an excuse to censor expression.

S. Rangarajan Etc vs P. Jagjivan Ram

In this decision, the Court ruled that the right to free speech cannot be restricted unless the situation it creates is one that endangers the community or the public interest, and that threat cannot be imagined, remote, or improbable.

If the expression is taken, there must be a close connection.

Amish Devgan v. Union of India (2020)

According to the Supreme Court, “hate speech has no valid or redeeming motive other than hostility for a specific group.”

The Problem of over-criminalization of Hate Speech

In a dramatic and very personal turn of events in 2015, Indian novelist Perumal Murugan declared his creative “death,” pulled the entirety of his published works from circulation, and vowed never to write again.

This resulted from the violent backlash he received from religious and caste-based groups who claimed that his fifth book, “Madhorubagan” in Tamil, or “One Part Woman,” offended religious sensibilities, insulted the Kailasanathar temple, Lord Shiva, and female worshippers, among other allegations.

They also claimed that it appealed to prurient interest, among other things.

A Forward Approach

Many of the legal restrictions on hate speech that are in place today date back to the days before the Internet. Specialized law to control hate speech spread on the Internet and, notably, social media, is urgently needed.

It is possible to make reference to the Australian federal law known as the Criminal Code Amendment Act, 2019, which holds Internet service providers accountable if they know that any obscene or violent content—which is defined to include content that a reasonable man would find offensive—is accessible through the service they provide.

In the context of a “digital single market,” the European Union has also adopted a code of conduct to prevent the spread of hate speech. It calls for cooperative, autonomous, inclusive regulation that adheres to global best practices for content filtering and privacy rights while being tailored to local and cultural norms.

Actions usually performed in response to contemporary hate speech have a whack-a-mole effect, whereby the underlying desire to sow division or hatred among communities endures through digital or social media platforms irrespective arrest of the offenders.

By modifying the IPC and the Information Technology Act, it is crucial to implement precise and long-lasting legislative rules that prevent hate speech, especially that which is spread online and through social media.

In the end, only when hate speech is acknowledged as a justifiable limitation on free expression would this be feasible.

Click here to read more about the 100 Must-Know Acts Enacted by the Indian Parliament.

Article Written By: Jis John Sebastian 

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EXPLAINER | Hate speech and how Indian laws deal with it

NEW DELHI: The recent row over the alleged hate speech at the Dharam Sansad event and other incidents have sparked interest on how Indian laws deal with hate speech.

India prohibits hate speech through several sections of the Indian Penal Code, the Code of Criminal Procedure, and other laws which put limitations on the freedom of expression. Constitutionally, Article 19 gives all citizens the right to freedom of speech and expression but the said freedom of expression is subject to "reasonable restrictions" for preserving inter alia "public order, decency or morality".

Sections 153A, 153B, 295A, 298, 505 of the Indian Penal Code 1860 deal with speech or words that could create mischief, outrage religious beliefs or cause imputations to national integration.

The New Indian Express spoke to some lawyers to gain a fuller understanding.

"The legal position in India with regard to hate speech can only be termed as that of contradictory paradoxes and one of legal and judicial quandary. While there is no specific law against hate speech, there are specific provisions under the penal code and criminal procedure. However, when it comes to prosecution, the courts have taken a contradictory stand and most recently even gone to the extent of saying the speeches that clearly fall in violation of Section 295(A) of the Indian Penal Code if said with a smile cannot be tantamount to hate speech," advocate Salman Waris, Managing Partner of the Delhi-based law firm TechLegis Advocates & Solicitors said.

"In a Public Interest Litigation (PIL) filed by the Pravasi Bhalai Sangathan in 2013, the Supreme Court issued a notice to the central government on a petition seeking framing of guidelines to curb elected representatives from delivering hate speeches in pursuance of their political goals. However, in 2014, the Supreme Court dismissed a PIL by advocate ML Sharma seeking intervention by the court in directing the Election Commission to curb hate speeches. Dismissing the plea, the apex court said that it could not curb the fundamental right of the people to express themselves," he added.

Bharat Chugh, former Judge and an advocate at the Supreme Court of India says that there are limits to this right and as every right, this right also has a corresponding duty. Chugh explained the recent cases that dealt with alleged hate speeches.

He explains how the Uttarakhand High Court, while deciding the bail application of Jitendra Narayan Tyagi in the Haridwar hate speech case, looked into the far-reaching effect of hate speech and its possible impact on the society, rejected the bail application.

Chugh further refers to a recent case of TV journalist Amish Devgan where he had hosted and anchored a debate and several FIRs were filed against him for allegedly insulting a pious saint belonging to the Muslim community.

"...The court refused to quash the FIR but accepted the prayer of transferring all pending FIRs to P.S. Dargah, Ajmer, Rajasthan, where the first FIR was registered under Sections 153B, 295A, 298 Indian Penal Code and 66F of Information Technology Act, 2000. The Court had observed that in regards to hate speech, the actual utterance of words or something more than thought is required and in case of publication, mere thought would not be actionable," Chugh said.

He elaborated how after the case of Pravasi Bhali Sangathan, the Law Commission was requested to examine the issues related to 'hate speech' and to recommend parliament to curb the menace of 'hate speech'.

The law commission then went on to submit its 267th report titled 'Hate Speech' in March 2017 where Draft Amendment Bill titled Criminal Law (Amendment) Bill, 2017, was suggested to be incorporated into the existing penal law.

"The suggestions included the need of insertion of Section 153C which punishes threatening/ advocating hatred on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe and Section 505A which punishes uttering words etc. in public intentionally on grounds of religion, race caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe," he said.

"However, one could argue that for a law meant to protect hate speech, Section 153C does not go far enough because it requires the incitement or injury or alarm before an offence is made out under the provision. A hate speech law should ideally punish a person for merely uttering certain phrases regardless of whether it results in an injury. For example, under the SC/ST Act referred to above the mere utterance of certain phrases can result in a conviction if such words cause “enmity, hatred or ill-will” against the members of such castes or tribes. There is no requirement to prove harm or injury being caused to such persons," Prashant Reddy T, Hyderabad-based lawyer said.

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Experts & views, reviewing the law commission’s latest hate speech recommendations.

Introduction

The Law Commission has recently released a report on hate speech laws in India. The Supreme Court in Pravasi Bhalai vs. Union of India  asked the Law Commission to recommend changes to existing hate speech laws, and to “define the term hate speech”. The report discusses the history of hate speech jurisprudence in India and in certain other jurisdictions. In addition, it stresses upon the difficulty of defining hate speech and the lack of a concise definition. In the absence of such a definition, certain ‘identifying criterion’ have been mentioned, to detect instances of hate speech. It also discusses the theories of Jeremy Waldron (the ‘dignity’ principle) and makes a case for protecting the interests of minority communities by regulating speech. In this regard, two new sections for the IPC have been proposed. They are as follows:

(i) Prohibiting incitement to hatred-

“153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe –

(a)  uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

(b)  advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”.

(ii) Causing fear, alarm, or provocation of violence in certain cases.

“505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe-

uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

(i) within the hearing or sight of a person, causing fear or alarm, or;

(ii) with the intent to provoke the use of unlawful violence,

against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”.

The author is of the opinion that these recommended amendments are vague and broadly worded and could lead to a chilling effect and over-censorship. Here are a few reasons why the recommendations might not be compatible with free speech jurisprudence:

• Three – part test

Article 10 of the European Convention on Human Rights lays down three requirements that need be fulfilled to ensure that a restriction on free speech is warranted . The Law Commission report also discusses this test; it includes the necessity of a measure being ‘prescribed by law’, the need for a ‘legitimate aim’ and the test of ‘necessity and proportionality’.

Under the ‘prescribed by law’ standard, it is necessary for a restriction on free speech to be ‘clear and not ambiguous’ . For instance, a phrase like ‘fear or alarm’ (existing in Section 153A and Section 505) has been criticized for being ‘vague’ . Without defining or restricting this term, the public would not be aware of what constitutes ‘fear or alarm’ and would not know how to comply with the law. This standard has also been reiterated in Shreya Singhal vs. Union of India , where it was held that the ambiguously worded Section 66A could be problematic for innocent people since they would not be aware as to “which side of the line they fall” towards.

• Expanding scope to online offences?

The newly proposed sections also mention that any ‘gravely threatening words within the hearing or sight of a person’ would be penalized. Presumably, the phrase ‘within the sight or hearing of a person’ broadens the scope of this provision and could allow online speech to come under the ambit of the IPC. This phrase is similar to the wording of Section 5 (1) of the Criminal Justice (Public Order) Act, 1986 [1] in the United Kingdom, which penalizes “harassment, alarm or distress”. Even though the section does not explicitly mention that it would cover offences on the internet, it has been presumed to do so. [2]

Similarly, if the intent of the framers of Section 153C is to expand the scope to cover online offences, it might introduce the same issues as the omitted Section 66A of the IT Act did. Section 66A intended to penalize the transmission of information which was ‘menacing’ and also which promoted ‘hatred or ill will’. The over-breadth of the terms in the section led to scrapping it. Another reason for scrapping the section was the lowering of the ‘incitement’ threshold (discussed below). Even though the proposed Section 153C does not provide for as many grounds (hatred, ill will, annoyance, etc.), it does explicitly lower the threshold from ‘incitement’ to ‘fear or alarm’/’discrimination’.

• The standard of ‘hate speech’

  The report also advocates for penalizing the ‘fear or alarm’ caused by such speech, since it could potentially have the effect of ‘marginalizing a section of the society’. As mentioned above, it has been explicitly mentioned that the threshold of ‘incitement to violence’ should be lowered and factors like ‘incitement to discrimination’ should also be considered.

The Shreya Singhal judgment drew a distinction between ‘discussion, advocacy and incitement’, stating that a restriction justifiable under Article 19(1) (a) of the Constitution would have to amount to ‘incitement’ and not merely ‘discussion’ or ‘advocacy’. This distinction was drawn so that discussing or advocating ideas which could lead to problems with ‘public order’ or disturbing the ‘security of the state’ could be differentiated from ‘incitement’ which establishes more of a ‘causal connection’.

Similarly, if the words used contribute to causing ‘fear or alarm’, the threshold of ‘incitement’ would be lowered, and constitutionally protected speech could be censored.

Despite the shortcomings mentioned above, the report is positive in a few ways. It draws attention to important contemporary issues affecting minority communities and how speech is often used to mobilize communities against each other. It also relies on Jeremy Waldron’s ‘dignity principle’ to make a case for imposing differing hate speech standards to protect minority communities. In addition, the grounds for discrimination now include ‘tribe’ and ‘sexual orientation’ amongst others.

However, existing case laws, coupled with recent instances of censorship , could make the insertion of these provisions troubling. India’s relationship with free speech is already dire; the Press Freedom Index ranks the country at 133 (out of 180) and the Freedom on the Net Report states that India is ‘partly free’ in this regard. The Law Commission might need to reconsider the recommendations, for the sake of upholding free speech. Pravasi Bhalai called for sanctioning politicians speeches, but the recommendations made by the Law Commission might be far reaching and the effects could be chilling.

[1] Section 5- Harassment, alarm or distress. (1)A person is guilty of an offence if he— (a)uses threatening or abusive words or behaviour, or disorderly behaviour, or (b)displays any writing, sign or other visible representation which is threatening or abusive, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

[2] David Wall, Cybercrime: The Transformation of Crime in the Information Age, Page 123, Polity.

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A Response to the Law Commission’s Hate Crime Law Final Report

By Jon Garland , Jo Smith , Mark Walters and Irene Zempi

On December 7 th the Law Commission for England and Wales published its long awaited final report on hate crime laws. In 2018 the Government requested that the Commission look into whether the law should be expanded to include new characteristics (including gender or sex) and whether the current framework of legislation required amendment to improve its practical application. Over the past three years, the Commission received almost 2,000 consultation responses and it participated in extensive engagement activities with interest groups and academics.

It is no exaggeration to say that the expectations have been high. In particular, there have been growing calls for the law to include misogyny as a type of hate crime; with increased awareness of this type of prejudice-based conduct following campaigns against online abuse directed at women (including politicians ), the #MeToo movement, and more recently the murders of Sabina Nessa and Sarah Everard .

There have also, amongst other issues, been calls for additional characteristics (such as subcultural groups) to be included in hate crime law; for the stirring up offences to cover disability and transgender hatred; and for the football chanting offences to be extended to cover other forms of prejudice (such as homophobic chanting).

We make no bones about the fact that we are disappointed with the results of the Commission’s final report . Although they recommend that all five protected characteristics should be covered within the dual system of aggravated offences and enhanced sentencing regime, and that the stirring up of hatred offences should be expanded to include disability, transgender and gender or sex, beyond that not much will change. The result is a bloated report which circles in on itself recommending little more than what was already suggested by the Commission in its more limited review in 2014.

• THE REJECTION OF MISOGYNY AS HATE CRIME

During the consultation, the Law Commission considered the case for adding the characteristics of “gender” or “sex” to the list of protected characteristics set out under the Crime and Disorder Act 1998 and the Sentencing Act 2020. The Commission apply three criteria for deciding whether any additional characteristics should be recognised in hate crime laws – need, additional harm, suitability. Based on the evidence of the prevalence and harm caused by crimes that are motivated by or demonstrate hostility towards women, the Law Commission concluded in its consultation paper that there was a strong in-principle case for adding the characteristics of “gender or sex’’ to hate crime laws; with gender-specific carve outs (i.e. exclusions) for sexual offences, forced marriage, FGM and crimes committed in the domestic abuse context (due to suitability issues).

A key benefit of adding the characteristics of gender or sex to hate crime laws would be the symbolic, declaratory impact of recognising gender-based hostility and prejudice in law.  However, just over one month before the Commission published its final report, the Prime Minister announced that misogyny should not be included in law as a hate crime. In line with this, the Law Commission’s final report reversed its initial proposal and recommended that the characteristics of gender or sex be excluded from the list of protected characteristics. This, they argued, was due to practical problems associated with inclusion, including that the law would become overly complex if carve outs were enacted for misogyny hate crime but not for the other types. They go on to recommend that the Government carry out a further review on the possibility of introducing a new offence of public sexual harassment as a means of tackling misogyny-based offences outside of the hate crime framework.

We believe that this is a missed opportunity to create a framework of hate crime laws that operates to prevent all types of prejudice-based criminal conduct; as evidenced under the Commission’s own criteria. The failure to include gender or sex sends out a clear message that prejudice directed towards women is not considered worthy of the specific label of hate crime. It is also a missed opportunity for what some criminal law theorists refer to as educative deterrence .  This is where the law’s expressive function serves to “remoralize” society about the acceptability of  gender-based hostility. Exclusion additionally means that the lack of national data on misogyny-based hate crime will continue.

Conversely, the final report concluded that the provisions that criminalise stirring up hatred be extended to cover all five protected characteristics as well as sex or gender; thereby creating a more equal position in regard to “hate speech” offences. This recommendation came from a recognition of the rise of misogynistic hate speech, and the association between the growing presence of incel ideology online and misogynistic murders. Yet the high bar set for prosecuting stirring up offences means that few incidents of misogynistic abuse and incel ideology will be captured, and anonymity and jurisdictional issues associated with online speech mean that prosecution of such offences will be extremely difficult.

Ultimately the inclusion of gender or sex in the stirring up offences, and its exclusion from general hate crime provisions, will fail to stem the spread of misogynistic views and ideologies. It will also mean that having been tasked with creating “parity” in law for hate crime, the Commission will have created a new hierarchy of protected characteristics. It sends a message that as a society, we do not consider misogynistic hate crime as something we ought specifically to challenge.

2. THE INCLUDING OF A SPECIAL PROTECTION FOR CRITICAL VIEWS OF GENDER IDENTITY

Beyond the expansion of the stirring up hatred offences to cover gender or sex is the scope of the inclusion of transgender identity in the proposed legislation. Within the newly recommended provision, the Law Commission proposes a special protection to prevent prosecution for the view that “sex is binary and immutable, and the use of language which expresses this.” The Law Commission note that gender critical beliefs, expressed in the context of employment, have been held to be “worthy of respect in democratic society” – as per human right protections under Articles 9 and 10 European Convention on Human Rights. They conclude that in the context of hate speech a freedom of expression clause, expressly outlining that this is the case, is required to ensure that the law is not misapplied.

Freedom of expression is a fundamental right in a liberal democracy. We wholeheartedly agree that it be a protected in human rights law. However, the criminal law is not in the business of prescribing special types of speech for people to engage in. Its role is to proscribe conduct worthy of criminalisation, typically including defences to that proscribed conduct where the behaviour is justified or excused. The protection in law of a type of speech, relating to a specific topic and to a specific identity, reverses the normative position of the criminal law. In so doing, it will have the effect – not of telling the public what they ought not to do – but what they can do. It is an extraordinary recommendation for the Law Commission to make, and inconsistent with the manner in which the criminal law is traditionally structured.

Our concerns here are well expressed by the Gender Identity Research & Education Society in the Law Commission Report:

“We disagree…that people who express insulting or hateful views about trans people should be protected from prosecution under hate crime legislation under sections 29J and 29JA…We think it would be harmful to afford legal protection to people who engage in…the discussion or criticism of gender reassignment; treatment for gender dysphoria; provision of and access to single-sex facilities and activities” because this criticism effectively vilifies and dehumanises transgender people and encourages the public to do the same.” 

The lack of clarity in what is best described as a pre-emptive exemption risks the protection of harmful speech being much broader than simply expressing that ‘sex is binary and immutable’. Providing exemptions which allow the lived realities and rights of trans and non-binary individuals to be questioned and ‘debated’ has the potential to contribute to a climate of intolerance against trans and non-binary individuals. It sends the message, not that we condemn this speech, but that we condone and exceptionally protect it. If enacted we will be left with new criminal offences that not only fail to define what transgender hatred is, but which tell the public they can legitimately engage in offensive commentary that serves to deny the very existence of trans people. This gives rise to the question: will the new stirring up of hatred offences serve to protect or harm transgender people?

3. EXCLUDING OTHER CHARACTERISTICS IN LAW

Another important aspect of the Commission’s work was to examine whether ‘borderline’ types of victimisation – those that appear to resemble the officially recognised hate crimes in nature and impact but aren’t recognised as such – should be included under hate crime legislation. The Commission examined five of these cases, related to age, sex workers, alternative subcultures, homelessness and philosophical beliefs. Despite the Commission’s exhaustive work, and the weight of evidence garnered from the written and verbal testimonies of key stakeholders, none of these suggested ‘new strands’ was recommended to be included under hate legislation. While we do not have the space to debate each of the Commission’s decisions, what did surprise us was how the evidence was utilised to justify the Commission’s conclusions. Nowhere was this more apparent than in the discussion of alternative subcultures. While the Commission appeared to be persuaded by the nature, extent and impact of the problem, it nevertheless rejected the case. The Commission argued that the ‘non exhaustive’ nature of the definition of alternative subcultures may mean that certain ‘groups such as paedophiles or extremist groups could plausibly fall within [it]’ (p. 273), a rather weak argument especially given their willingness to prescribe specific exceptions in the stirring up of hatred offences. If there are concerns about a potentially loose definition of ‘alternative subcultures’, then why not create a workable definition that excludes spurious claims from inclusion?  We have already seen arguments claiming that paedophilia should be included in sexual orientation being quickly excluded by the courts (see e.g. R v B [2013] EWCA Crim 219).  We see no reason why the same would not apply to alternative subcultures. The Commission’s puzzling justification may be an indicator that it was searching for reasons – however tenuous they may be – for minimizing criminalisation.

Another part of the Commission’s remit was to examine the Football (Offences) Act 1991 to see if it should include not just racist chanting at football matches (as it currently does) but the other four recognised hate crime strands too. While there was plenty of evidence presented to the Commission about the levels and trends in abuse across all five hate crime strands at football (see Kick It Out’s 2019/20 annual report , for example, as the Commission did), somewhat surprisingly the Commission decided against including them. It argued that existing legislation, in the form of the 1986 Public Order Act, was sufficient to capture any offences committed under the other four non-included strands. Yet this is an old argument that opponents of hate crime laws have used against the introduction of such legislation for decades, and it seems rather counterintuitive that the Commission would expound it too. After all, as mentioned above, the Commission is recommending that all five characteristics should be covered by a single piece of aggravated offences legislation. It seems, therefore, that on the one hand the Commission is recommending the ‘equalising’ of the strands, yet on the other is maintaining inequalities between them, in the context of football – a rather confusing anomaly.

This blog has not been able to do justice to the vast array of issues that were covered by the Commission’s evaluation of hate crime law. However, it is suffice to say that many of the key changes that campaigners had worked to bring about have not been realised during this protracted review process. Although initially being receptive to the need for change, the Commission has resorted to a conservative vision of reform that focuses very much on maintaining the status quo; and with it a system of law that continues to neglect the harms of misogyny. In doing so, we believe that an important opportunity has been lost to make bold choices about how hate crime law can make an important contribution to addressing the myriad forms of hate that continue to blight communities throughout England and Wales.

2 comments on “ A Response to the Law Commission’s Hate Crime Law Final Report ”

The use of the word misogyny while excluding the word misandry in any discussion about gendered hate, is an excellent example of the bias against men in society. From my research, feminism and misandry are inseparable. From my research, men experience the majority of the miseries life has to offer and recieve a small fraction of the available compassion and empathy. In a word, gendermandering.

In my opinion, the shrill voices of the far right have appropriated the debate on hate speech and the current situation is one of gridlock. It seems to me entirely appropriately that no group in society should either live in fear or feel sterotyped or discriminated against within the framework of the law. This is why we really do need a proper framework, firstly to define general rights that apply to all individuals (irrespective of whether or not they are covered by designated characteristics) and specific rights for designated groups known to experience material discrimination. The notion that this somehow gets in the way of ‘free speech’ should be exposed for what it truly is: giving cover to those who perpetrate verbal, written or physical thuggery.

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Unpacking the Law Commissions Hate Speech Report

2017, Socio-Legal Review, NLSIU

Published in the Socio-Legal Review Forum, National Law School of India University, 10 August 2017

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Law Commission releases Report on Hate Speech[Read report]

The Law Commission has submitted its 267th report titled ‘Hate Speech’ to the Law Ministry. The major highlight of the Report is the recommendation for two amendments to the Indian Penal Code (IPC).

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Explained | What is ‘hate speech,’ and how is it treated in Indian law?

Do existing laws cover inflammatory and provocative talk should the provisions be made more stringent.

Updated - January 11, 2023 05:22 pm IST

Published - January 02, 2022 03:10 am IST

He is declaring and announcing something important. He is full of spirit, emotion, and clenching his fist while shouting with the loudspeaker.

The story so far : A recent religious conclave held in Haridwar witnessed inflammatory and provocative speeches by proponents of Hindutva, many of them leaders of religious organisations. Reports say many of the speakers called for organised violence against Muslims and hinted at a Myanmar-type ‘cleansing campaign’. There was a threat that if the government resisted the formation of a ‘Hindu Rashtra’, there will be an ‘1857-like’ revolt against the state. Political parties and concerned citizens have termed these as ‘hate speech’ and demanded legal action against those involved in the propagation of hate and violence.

What is ‘hate speech’?

There is no specific legal definition of ‘ hate speech’ . Provisions in law criminalise speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.

The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like ... Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”

In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.

How is it treated in Indian law?

Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.

Under Section 153A, ‘promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment. It attracts a five-year term if committed in a place of worship, or an assembly engaged in religious worship or religious ceremonies.

Section 505 of IPC makes it an offence to making “statements conducing to public mischief”. The statement, publication, report or rumour that is penalised under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquillity; or is intended to incite or incites any class or community to commit an offence against another class or community. This attracts a jail term of up to three years. Under 505(2), it is an offence to make statements creating or promoting enmity, hatred or ill-will between classes. Under subsection (3), the same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.

What has the Law Commission proposed?

The Law Commission has proposed that separate offences be added to the IPC to criminalise hate speech quite specifically instead of being subsumed in the existing sections concerning inflammatory acts and speeches. It has proposed that two new sections, Section 153C and Section 505A, be added.

Its draft says Section 153C should make it an offence if anyone (a) uses gravely threatening words, spoken or written or signs or visible representations, with the intention to cause fear or alarm; or (b) advocates hatred that causes incitement to violence, on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe. It proposes a two-year jail term for this and/or a fine of ₹5,000 or both.

Its draft for Section 505A proposes to criminalise words, or display of writing or signs that are gravely threatening or derogatory, within the hearing or sight of a person, causing fear or alarm or, with intent to provoke the use of unlawful violence against that person or another”. It proposes a prison term of up to one year and/or a fine up to ₹5,000 or both.

Similar proposals to add sections to the IPC to punish acts and statements that promote racial discrimination or amount to hate speech have been made by the M.P. Bezbaruah Committee and the T.K. Viswanathan Committee. At present, the Committee for Reforms in Criminal Laws, which is considering more comprehensive changes to criminal law, is examining the issue of having specific provisions to tackle hate speech.

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Make Your Note

Defining Hate Speech

• 26 May 2021
• GS Paper - 2
• Government Policies & Interventions

Why in News

As there is no clear definition of what constitutes a “ Hate Speech ” in the Indian Penal Code (IPC) , the Committee for Reforms in Criminal Laws constituted by the Union Home Ministry to suggest reforms to the British-era IPC, is attempting for the first time to define such speech.

• In general, it refers to words whose intent is to create hatred towards a particular group, that group may be a community, religion or race.This speech may or may not have meaning, but is likely to result in violence.
• The Bureau of Police Research and Development recently published a manual for investigating agencies on cyber harassment cases that defined hate speech as a language that denigrates, insults, threatens or targets an individual based on their identity and other traits (such as sexual orientation or disability or religion etc.).
• In the 267 th Report of the Law Commission of India , hate speech is stated as an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.
• In order to determine whether a particular instance of speech is a hate speech or not, the context of the speech plays an important role.
• Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
• The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.
• Sections 153A and 153B of the IPC: Punishes acts that cause enmity and hatred between two groups.
• Section 295A of the IPC: Deals with punishing acts which deliberately or with malicious intention outrage the religious feelings of a class of persons.
• Sections 505(1) and 505(2): Make the publication and circulation of content which may cause ill-will or hatred between different groups an offence.
• Section 8 of the Representation of People’s Act, 1951 (RPA) : Prevents a person convicted of the illegal use of the freedom of speech from contesting an election.
• Sections 123(3A) and 125 of the RPA: Bars the promotion of animosity on the grounds of race, religion, community, caste, or language in reference to elections and include it under corrupt electoral practices.
• It proposed inserting Sections 153 C (b) and Section 505 A in the IPC for incitement to commit an offence on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe.
• It proposed punishment of up to two years along with Rs. 5,000 fine.
• It proposed amendment to Section 153 C IPC (promoting or attempting to promote acts prejudicial to human dignity), punishable by five years and fine or both and Section 509 A IPC (word, gesture or act intended to insult member of a particular race), punishable by three years or fine or both.

Way Forward

• For a country like India with a massive population of diverse backgrounds and culture, subjects like hate speech become a complex issue to deal with as it is difficult to differentiate between free and hate speech.
• Several factors are to be considered while restraining speeches like the number of strong opinions, offensive to certain communities, the effect on the values of dignity, liberty, and equality. Certainly, there are laws for such atrocities but a major part of work is still left.
• Therefore giving a proper definition to hate speech would be the first step to deal with the menace and other initiatives such as spreading awareness amongst the public is the need of the hour.

4. Hate crime and hate speech

4.1 overview.

In this chapter we look at New Zealand’s laws addressing hate crime and hate speech and how New Zealand Police deal with reports of hate-motivated offending. We consider that aspects of New Zealand’s legal framework and New Zealand Police practice need to be improved. Our guiding principles are the protection of all sections of the New Zealand community and the promotion of social cohesion consistently with the values of a free and democratic society.

Developing appropriate legal responses to hate-motivated offending involves reasonably difficult legal issues. These include the impact of the New Zealand Bill of Rights Act 1990 on statutory interpretation, New Zealand’s international obligations, certain practicalities associated with how criminal trials are conducted and technical questions of legal drafting. These and other issues are discussed in our companion paper  Hate speech and hate crime related legislation . In this chapter we identify what we consider to be the key issues on which we base our recommendations (see Part 10: Recommendations ).

In everyday language, a hate crime means an offence that is motivated by the offender’s hostility to the victim as a member of a group that has a common characteristic, such as race, religion or sexual orientation. An example is an assault against a person wearing religious attire that was motivated by the offender’s hostility towards that particular religion. In legal language, hate crime has practically the same meaning except that the law creating a hate crime will define the relevant characteristics covered by the offence (these are usually called “protected characteristics”). 75 Since the conduct amounting to hate crime (for example an assault) is already illegal, it is easy to treat a hate motivation either as a factor that can be taken into account for sentencing purposes (which is New Zealand’s current approach) or as an element of a separately created hate-motivated offence.

Hate speech is a less precise term. In this report we will generally use the expression hate speech to mean speech that expresses hostility towards, or contempt for, people who share a characteristic. Legislation that creates hate speech liability (which can be civil or criminal) specifies what types of speech are captured and characteristics that are protected. In this chapter we are mainly concerned with the circumstances in which hate speech can, and should be, criminalised.

Unlike a hate crime, conduct criminalised by a hate speech offence – in this case, what has been said – is not independently illegal. The difference between legally criminalised hate speech and the vigorous exercise of the right to express opinions is not easy to capture in legislative language. As well, the more far reaching a law creating hate speech offences, the greater the potential for inconsistency with the right to freedom of expression under section 14 of the New Zealand Bill of Rights Act. Under section 5 of the New Zealand Bill of Rights Act, the right to freedom of expression may be:

… subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

There is considerable scope for argument and controversy as to what are “reasonable limits” to the right to freedom of expression.

Similar considerations apply, although not quite so intensely, to imposing civil liability for hate speech.

A decision to create hate speech offences has to balance a number of overlapping and conflicting considerations, including:

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

Language that detracts from social cohesion (such as jokes at the expense of marginalised communities), which was once not subject to much, if any, social sanction, is increasingly unacceptable in a democratic society. But it is highly debateable whether language that has a negative impact on social cohesion should, for this reason alone, be subject to criminal, as well as social, sanctions.

In New Zealand, there are five statutes that impose liability or provide remedies for hate speech. They are:

• the Human Rights Act 1993;
• the Summary Offences Act 1981;
• the Harmful Digital Communications Act 2015;
• the Broadcasting Act 1984; and
• the Films, Videos, and Publications Classification Act 1993.

We discuss all of them later in this chapter.

Although hate crime and hate speech are, at least for legal purposes, different concepts, they are linked by underlying commonalities and, in terms of their consequences, sit on the same spectrum of behaviours (see Part 2: Context ).

Research shows that there is a link between hate speech and hate crime. 76 A recent study investigated whether there is a link between hate speech online and hate crime offline. 77 Researchers collected Twitter and Police-recorded hate crime data over an eight-month period in London and built a series of statistical models to identify whether there is a significant association. 78 The results of the study indicated “a consistent positive association between Twitter hate speech targeting race and religion and offline racially and religiously aggravated offences in London”. 79 What this demonstrates is that “online hate victimisation is part of a wider process of harm that can begin on social media and then migrate to the physical world”. 80 The study notes that if “we are to explain hate crime as a process and not a discrete act, with victimisation ranging from hate speech through to violent victimisation, social media must form part of that understanding”. 81 There is value therefore in seeking to reduce hate speech online and offline, not only to prevent the direct harm it causes but also to limit escalation of hate speech to hate crime.

It is also plausible to see a link between hate crime and terrorism. Another recent study concluded:

Through the use of multiple data sources, this study uncovers the positive associations between hate crime and terrorism. In the context of intergroup conflict, there appears to be a continuum between the bias-motivated actions of non-extremists to the hate crimes and terrorist acts committed by far-rightists, with the presence of one type of activity seeing an escalation in the next type. As a result, it appears that hate crime and terrorism may be more akin to close cousins than distant relatives. 82

The rest of this chapter will cover:

• hate crime;
• sections 61 and 131 of the Human Rights Act;
• other laws addressing hate speech; and
• reporting and recording of hate-motivated offending.

4.2 Hate crime

The current law.

Leaving aside for the moment the offence created by section 131 of the Human Rights Act (which we discuss later in this chapter), there are no specific hate crime offences in New Zealand. This means that there are no offences in which a hate motivation is an element of the offence.

A hate motivation for an offence is, however, an aggravating factor under the Sentencing Act 2002 and can be taken into account by the judge who sentences the offender. Under section 9(1)(h), protected characteristics include any:

... an enduring … characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability … .

The acts of criminal harassment that were reported to us by Muslim communities predominantly involved assaults, offensive and threatening behaviour and intimidation. Assault can be prosecuted under either the Crimes Act or the Summary Offences Act. Offensive and threatening behaviour and intimidation can be prosecuted under the Summary Offences Act. A hate motivation for such harassment can be considered during sentencing as an aggravating factor (providing that the offender is prosecuted and convicted).

The Summary Offences Act has limitations. Apart from assaults, it applies only to conduct that occurs in a public place. As well, penalties for offences under the Summary Offences Act are low (for example, the maximum penalty for a conviction of offensive behaviour or language is a fine of $1000). Where the maximum penalty is a fine, taking a hate motivation into account during sentencing would not have much practical effect.

A hate motivation for offences is not recorded in charges and convictions, even if it is taken into account during sentencing. This means that recorded convictions do not capture the full blameworthiness (culpability) of the offenders. This limits the signalling effect of prosecution and conviction and means possible needs for rehabilitative interventions are not highlighted.

The creation of hate crime offences would provide a signal that hate-motivated offences are taken seriously and, for this reason, would be likely to result in increased reporting to New Zealand Police of such offences.

A model for change

New Zealand’s approach to hate crime – that a hate motivation can be taken into account at sentencing – is not unusual. Some overseas jurisdictions including Canada and some Australian states deal with hate-motivated offending in this way. 83

In England and Wales a different approach is taken. There, the significance of a hate motivation is also recognised by making that motivation an element of some offences. Where a hate motivation is an element of the offence, the maximum penalties are higher than for the underlying offence itself.

For example, under the Crime and Disorder Act 1998 (United Kingdom), the hate motivation element of the offences results in much higher penalties than for the underlying offences. The higher penalties reflect the culpability of hate-motivated offending. The hate-motivated element of offences ensures that the criminal records of offenders (which will record that element) reflect the seriousness of their offending. This is likely to have at least some deterrent effect and, perhaps more significantly, an effect on societal norms. 84

This model could be substantially replicated in New Zealand by creating new hate-motivated offences in the Summary Offences Act and the Crimes Act, being:

• hate-motivated offences for offensive behaviour and language, assault, wilful damage and intimidation that correspond with existing offences in the Summary Offences Act; and
• hate-motivated offences for assault, arson and intentional damage that correspond with existing offences in the Crimes Act.

4.3 Sections 61 and 131 of the Human Rights Act

The relevant international instruments.

Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination requires states to:

[D]eclare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origins. 85

The introduction to article 4 provides further explanation as to its purpose:

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights … .

Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination was implemented in New Zealand by the Race Relations Act 1971, section 25 of which introduced an offence of inciting racial hatred (corresponding to what is now section 131 of the Human Rights Act). And civil liability (broadly along the lines of what is now section 61 of the Human Rights Act) was introduced in section 9A of the Human Rights Commission Act 1977. Section 9A was repealed in 1989 but was in substance re-enacted as section 61 of the Human Rights Act.

Article 20 of the International Covenant on Civil and Political Rights provides: 86

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

New Zealand has entered a reservation to article 20:

The Government of New Zealand, having legislated in the areas of the advocacy of national and racial hatred and the exciting of hostility or ill will against any group of persons, and having regard to the right of freedom of speech, reserves the right not to introduce further legislation with regard to article 20.

Section 61(1) creates a civil liability for speech that is “likely to excite” hostility (or other consequences):

61  Racial disharmony

(1)  It shall be unlawful for any person—

• 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
• 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
• 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.

Section 131(1) creates a criminal offence for speech that is used with “intent to excite” hostility (or other consequences). A prosecution for this offence can be brought only with the consent of the Attorney-General. 87

131  Inciting racial disharmony

(1)   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.

The primary (although not the only) difference between the sections is that liability under section 131 depends on an “ intent to excite” hostility whereas liability under section 61 can be established where the speech used is “ likely to excite” such hostility.

Section 131 of the Human Rights Act may have some value as a statement of what is and is not acceptable behaviour in New Zealand, but it is not practicable to enforce. The position is similar under section 61. There has only been one prosecution under section 131 and two claims under section 61. These are discussed in detail in our companion paper: Hate speech and hate crime related legislation . Only one warrants particular mention in this chapter – the 2018 decision of the High Court in the Wall case. 88

The Wall case concerned newspaper cartoons relating to an announcement that government would fund the expansion of a free breakfast in schools programme. The central characters in the cartoons were Māori or Pasifika people, depicted as negligent parents preoccupied with alcohol, cigarettes and gambling at the expense of their children’s welfare. It was accepted by both parties in the Wall case that the cartoons were insulting. The issue, therefore, was whether the cartoons were likely to bring Māori or Pasifika people into contempt (or excite hostility against them). The High Court found that they were not, and dismissed the case.

In the Wall case, the complainant argued that, under section 61 of the Human Rights Act, it is unlawful to use language about a protected group that is “insulting” and is intended, and likely, to result in the protected group being brought into contempt or ridicule. This is a low threshold for civil liability and can be expected to result in considerable push-back on freedom of expression grounds.

In the Wall case, the High Court found that the language in section 61 (“hostility against or bring into contempt”) should be applied “only to relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised”.

The Wall case involved civil liability under section 61 but the same language appears in section 131. The requirement for the Attorney-General’s consent to bring a prosecution under section 131 of the Act should filter out prosecutions that have no merit. However, consent requirements of this kind are not a justification for overly broad offences – that is offences that are defined in a way that captures conduct not worthy of criminal prosecution.

Where prosecutions are brought, judges seeking to allow for freedom of expression will not find much assistance in the language of section 131. This results in the apparently low liability threshold being significantly increased by judicial interpretation but in ways that create considerable uncertainty. “Relatively egregious” (the standard adopted in the Wall case) is not a satisfactory test for the imposition of criminal liability.

Sharpening the focus of the statutory language

In the words “intent to excite hostility or ill-will”, the verb “excite” is used in a slightly unusual sense and suggests causation. This means that an “intent to excite” cannot be established without showing an intention to either cause “hostility or ill-will” that did not previously exist, or enhance or increase pre-existing “hostility or ill-will”. It logically follows that preaching hatred to the already converted would not breach section 131. This point too is discussed in the Wall case.

Section 131 of the Human Rights Act would be improved if the word “excite” were removed and replaced with a term like “stir up”, which is used in corresponding legislation in the United Kingdom. The “preaching hatred to the converted” issue could be resolved by adding the verbs, “maintain” and “normalise”.

As the Wall case illustrates, the words “excite hostility against or bring into contempt” set a liability threshold that is lower than the courts are prepared to accept for the purposes of civil liability under section 61 of the Human Rights Act. This is also the case with the corresponding language in section 131, “excite hostility or ill‑will against, or bring into contempt or ridicule”. A modified section 131 would be far more straight-forward to apply if “hostility”, “ill-will”, “contempt” and “ridicule” were replaced by a term like “hatred” as it implies extreme dislike or disgust, including an emotional aversion. If the offence was reframed in this way, it would not be subject to restrictive and imprecise interpretations by the courts (such as “relatively egregious”) and could be more easily relied on in appropriate cases.

This reframing would focus the offence on stirring up or provoking hatred of a group of persons defined by their protected characteristic.

Associated with the point just made, we consider that explicit and implicit calls for, or normalising of, violence should be expressly addressed in the offence. Such calls for, and normalising of, violence are towards the most damaging end of the continuum of harmful behaviour (see Part 2, chapter 5). At this end of the continuum, freedom of expression arguments are at their weakest and criminal sanctions are most obviously warranted.

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

• a publication that is “threatening, abusive, or insulting”;
• an intent to “excite hostility or ill-will against, or bring into contempt or ridicule” people sharing a protected characteristic; and
• that the publication was “likely to excite hostility or ill-will against, or bring into contempt or ridicule” people sharing that protected characteristic.

In a situation where the first two elements can be made out (a threatening, abusive or insulting publication and an intent to “excite hostility”), we see the third element as having little or no bearing on whether the conduct is sufficiently culpable to justify in a charge. It is thus unnecessary.

Protected characteristics

The protected characteristics provided for in sections 61 and 131 of the Human Rights Act do not include religious belief. As we discuss in our companion paper  Hate speech and hate crime related legislation , the general drift of court decisions and academic commentary is that Jews and Sikhs can be regarded as ethnic groups (and thus protected by section 131) but that this is not the case with followers of Islam or Christianity. Without seeking to challenge the reasoning of the particular court decisions, we consider that the resulting distinctions are not logical.

We consider that religious belief should be included in the characteristics protected under section 131, given that:

• under section 9(1)(h) of the Sentencing Act, “religion” is a protected characteristic;
• in other jurisdictions, similar legislative provisions have been amended to include religion as a protected characteristic; 89
• it would bring New Zealand into compliance with article 20(2) of the International Covenant on Civil and Political Rights which we have set out earlier in this chapter;
• it is not logical that affiliation with Judaism and Sikhism are protected characteristics but affiliation with other religions such as Islam or Christianity are not;
• the very clear overlap between Islamophobia and racism (in that many victims of Islamophobic harassment are people of colour); and
• most significantly, the current realities of Islamophobia and the association between hate speech and terrorism.

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

Concerns along these lines are reflected in section 29J of the Public Order Act 1986 (United Kingdom), which was enacted when “stirring up” religious hatred was introduced as an offence in England and Wales. This section provides:

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

This section has made prosecution for the offence for stirring up religious hatred practically impossible. 90 For this reason we do not support the introduction of an equivalent provision to New Zealand law. We consider that concerns about freedom of expression are met with a high threshold for liability, requiring the prosecution to establish an intention to stir up, maintain or normalise hatred towards members of the protected group and specifically criminalising explicit and implicit calls for violence against such a group.

Types of publication covered

Section 131 of the Human Rights Act applies only to the publication of “written matter” or words that are broadcast “by means of radio or television” or used in or near a public place or public meeting. So, unlike section 61 of the Human Rights Act, it does not apply to “electronic communications”. This is a significant gap in the scope of the offence that should be remedied. Indeed, we see no good reason why there should be restrictions based on how hate speech is communicated.

The location of section 131 and the current maximum penalty

The low maximum penalty (three months' imprisonment) for breaching section 131 of the Human Rights Act serves to diminish the signalling and standard-setting benefits of prosecution and conviction. In contrast, offences in the United Kingdom that are similar to section 131 carry a maximum term of imprisonment of seven years. 91 And in Canada, a person convicted of the offence similar to section 131 can receive a prison sentence of two years. 92

We note that if the penalty is as high as (or more than) two years’ imprisonment, this would result in those charged with such offences being entitled to choose trial by jury. The current case law results in liability depending on subjective conclusions on the part of the court based on the “relatively egregious” standard. This involves an impressionistic assessment ,which is never an ideal basis for imposing criminal law sanctions (because people should be able to know in advance with reasonable certainty whether something they intend to do is, or is not, against the law). As well, because this standard is not well suited to being applied by juries, an increase in penalty resulting in a right to choose trial by jury makes a reframing of the offence all the more desirable.

Including the offence in the Crimes Act rather than the Human Rights Act would enhance the signalling and standard-setting effects of an increased penalty, as the Crimes Act lists offences most commonly considered as serious crimes by New Zealanders. 

What a new offence might look like

A new provision inserted in the Crimes Act 1961, and worded broadly as follows would cover the points we have made:

Inciting racial or religious disharmony

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

• with intent to stir up, maintain or normalise hatred against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons; and
• says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for violence against or is otherwise, threatening, abusive, or insulting to such group of persons.

4.4 Other laws addressing hate speech 

As we have set out above, in addition to the Human Rights Act, there are four other New Zealand laws that address hate speech. They cover a wide range of conduct.

Summary Offences Act 1981

The Summary Offences Act creates offences involving offensive, threatening and insulting language and these apply, although are not limited to, situations where an offender threatens, insults or intimidate another person because of their race, colour, ethnicity or religion.

In recent years, flagrant hate-motivated speech has been prosecuted under the Summary Offences Act. Examples of such prosecutions are discussed in our companion paper: Hate speech and hate crime related legislation .

The Summary Offences Act applies only to conduct in a public place. It cannot, therefore, be used against hate speech online, even where a post is clearly directed at another individual or group and is visible to other people online.

Harmful Digital Communications Act 2015

The Harmful Digital Communications Act makes it an offence to post a digital communication with the intention to cause harm to a victim. 93 The penalty for the offence is imprisonment for up to two years or a maximum fine of $50,000. Harm is defined as serious emotional distress. 94 For these purposes, the victim is an individual “who is the target of the posted digital communication”. 95

The offence applies not only to one-to-one communications, but more broadly to online digital publishing. 96 That said, the requirement for a victim – which in turn requires the identification of a target – means the offence does not apply to communications that denigrate groups rather than particular individuals.

The Harmful Digital Communications Act requires “communications principles” 97 to be taken into account by those persons and agencies (including the courts) performing functions and exercising powers under the Act. 98 Principle 10 states:

A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability. 99

Broadcasting Act 1984

Section 4 of the Broadcasting Act requires broadcasters to maintain programme standards. Under the Act, four broadcasting codes of practice have been issued. 100 Each of these codes of practice sets out, or incorporates, a standard entitled “Discrimination and Denigration”. The standard requires broadcasters to protect sections of the community from verbal and other attacks and to foster a community commitment to equality. The standard applies to recognised sections of the community, which include sections identified by reference to religious belief and race.

Films, Videos, and Publications Classification Act 1993

The Films, Videos, and Publications Classification Act censors forms of expression that are “objectionable”. It is an offence, punishable by a maximum fine of $2,000, to be in possession of an objectionable publication and it is an offence, punishable by imprisonment of up to 10 years, to be in possession of a publication that the person knows (or has reasonable cause to believe) is objectionable. New Zealand Police have relied on this offence to prosecute people who, in other jurisdictions, might have been prosecuted for precursor terrorism offences of the kind discussed in Part 8, chapter 13.

Under section 3 of the Films, Videos, and Publications Classification Act, the primary test for whether a publication is objectionable is whether it:

… 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.

Publications that promote terrorism can, in some circumstances, be “objectionable”. The individual’s video of his terrorist attack and his manifesto were both deemed to be objectionable, and there have been subsequent prosecutions of people in New Zealand who have shared the video or excerpts from it. 101 That said, the way in which the definition deals with publications that promote terrorism is complex. As well, material that promotes terrorism was not, before 15 March 2019, a primary focus of those administrating the Films, Videos, and Publications Classification Act. 102

As we have mentioned, section 131 of the Human Rights Act represents an attempt to comply with article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination . If the focus of the section 131 offence is sharpened, it will not address all of the ideas and themes in article 4(a). For example, a stirring up racial hatred offence does not cover all incitement to racial discrimination.

The reality is that it would not be easy to create offences that both give full effect to the article 4 obligation and are consistent with the right to freedom of expression. Expanding the definition of “objectionable” to encompass propaganda of the kind envisaged by article 4 would be an alternative method of complying with article 4. This could be achieved by adding “racial superiority, racial hatred and racial discrimination” to “sex, horror, crime, cruelty, or violence” in section 3 of the Films, Videos, and Publications Classification Act. Such a change would invite freedom of expression arguments. However, the additional requirement under section 3 that the “publication is likely to be injurious to the public good” and other safeguards in the definition (discussed in our companion paper: Hate speech and hate crime related legislation ) would provide a reasonable basis for response to such arguments.

4.5 Reporting and recording of hate-motivated offending

A recurring theme in our discussions with communities, including Muslim communities, was the lack of data about hate-motivated offences and harmful harassment.

For some types of crime – and we think that this is the case with hate-motivated offending involving criminal harassment – the best assessments of the incidence of offending come from victimisation surveys. This is because, for such offending, many, perhaps most, victims do not make complaints. That means there is much offending that is not captured in recorded crime figures.

In the 2019 New Zealand Crime and Victims Survey , respondents were asked if they thought that incidents they had experienced were motivated by discrimination – that is, motivated by the offender’s attitude towards the victim’s race, sex, gender identity, sexual orientation, age, religion or disability. The survey found that:

• a quarter (25 percent) of all incidents and about one third (32 percent) of all personal offences were seen by the victim as motivated by discriminatory attitudes;
• sexual assault (82 percent), threats and damages (34 percent) and physical offences (assault and robbery) (34 percent) were the most common offence types to be considered by the victim as having been driven by discrimination; and
• almost a quarter (23 percent) of victims of Asian ethnicity felt that the incidents that happened to them were driven by discrimination towards their race, ethnicity or nationality, compared to 7 percent of victims overall . 103

Accurate recording of complaints of hate-motivated offences would provide some, but only limited, assistance in assessing the actual level of offending, as many such offences are not reported. It is nonetheless desirable. Unless hate motivations are recorded, they are unlikely to be brought to the attention of the sentencing judge to take into account during sentencing. Accurate recording enables linkages to be made between different events involving the same offender, the same victim or both. And recording, alongside data on how complaints are resolved, would provide a starting point for assessing the policing response. In turn, this would provide a basis for New Zealand Police to provide assurance to targeted communities that their complaints are being taken seriously.

Most Muslim individuals we spoke to who had been subjected to harmful harassment told us that they had not reported the incidents to New Zealand Police. Such incidents are very unpleasant but may be brief and may not necessarily reach a threshold where reporting the incident is a priority for the victim. In addition, reporting may be inhibited by difficulties in identifying the offender. This will be the case where the offender is not known to the victim and there is no straight-forward way of identifying them. Importantly, many of those we spoke to believed there was little point in reporting harassment to New Zealand Police. This was because they had experiences where such reporting had not produced tangible outcomes or knew of others who had reported harassment to New Zealand Police without result.

More systematic and complete recording of hate motivations for offending would likely enhance community trust in New Zealand Police and, in this way, increase reporting rates.

There have been calls for better records to be kept of hate-motivated offending complaints and official acknowledgements that such records are desirable. We note that recently the Foundation Against Islamophobia and Racism has established an online mechanism for recording hate-motivated offending in New Zealand based on the United Kingdom’s Tell MAMA (Measuring Anti-Muslim Attacks) model. 104

In recent years, New Zealand Police have made progress in this area. In October 2018, a supplementary hate crime flag was introduced into their Communications and Resource Deployment dispatch system, which is used to record incidents and manage initial response and resource deployment. Incident records are copied to the National Intelligence Application.

Additionally, frontline officers were instructed to record hate crime when recording incidents in the National Intelligence Application. And since August 2019, there has been a hate crime contributing flag in the National Intelligence Application. But reporting of hate motivations remains incomplete and somewhat inconsistent. In part at least, this is a result of limited training.

The creation of hate crime offences would facilitate the recording of complaints of hate-motivated offending. But the absence of such offences does not make the recording of such data impossible. It is possible for New Zealand Police to refine their recording systems to capture hate motivations more accurately and in readily searchable form. The effectiveness of such systems would be enhanced by training that assists New Zealand Police officers in:

• identifying bias indicators so that they can identify potential hate crimes when they perceive that an offence is hate-motivated;
• exploring perceptions of victims and witnesses so that they are in a position to record offences that are perceived by the victim (or any witnesses) to be hate-motivated; and
• recording such hate motivations in a way that facilitates the later use of section 9(1)(h) of the Sentencing Act.

These are issues that are recognised by New Zealand Police and work on them is continuing.

4.6 Concluding comments

We were told that New Zealand has become tolerant of harmful discriminatory expression in which ethnic and religious communities, including Muslim communities, are regularly subject to hate speech and hate crime online and offline.  

In December 2019, the Human Rights Commission published a report Kōrero Whakamauāhara: Hate Speech that provided an overview of the legal framework on hate speech. 105 The report includes definitions of hate speech and considers different legal approaches in New Zealand and around the world. It is intended as a resource to help New Zealanders have an informed, inclusive and respectful discussion about the complex and contentious issue of hate speech, as well as provide an accessible introduction to the subject in national and international law. 

There has been a tendency to see hate crime and hate speech as different phenomena and the recording of hate-motivated offending as a separate issue that can be left to be dealt with by New Zealand Police practice. As we have explained, we see them as related, sitting on a spectrum of harmful behaviours and as warranting systematic review and reform.

In this chapter we have explored the legal framework that protects freedom of expression and the circumstances in which that freedom may be restricted in order to prevent violence, abuse or discrimination. It explores the boundaries between freedom of expression, unlawful discrimination and harassment and hate speech.

We have explained why we consider that the current laws in relation to hate crime and hate speech neither appropriately capture the culpability of hate-motivated offending, nor provide a workable mechanism to deal with hate speech. We have also explained why current New Zealand Police practice in relation to recording hate-motivated offending requires further improvement. We make recommendations in Part 10: Recommendations that aim to effect change to our laws and practice.

75. See United Kingdom Law Commission Hate Crime: Background to our Review (March 2019) at page 5.

76. InternetNZ Online Hate and Offline Harm (8 May 2019); Matthew L Williams and others “Hate in the Machine: Anti-Black and Anti-Muslim Social Media Posts as Predictors of Offline Racially and Religiously Aggravated Crime” (2020) 60(1) British Journal of Criminology.

77. Matthew L Williams and others, footnote 76 above.

78. Matthew L Williams and others, footnote 76 above at page 94.

79. Matthew L Williams and others, footnote 76 above at page 111.

80. Matthew L Williams and others, footnote 76 above at page 114.

81. Matthew L Williams and others, footnote 76 above at page 112.

82. Colleen E Mills, Joshua D Freilich and Steven M Chermak “Extreme Hatred: Revisiting the Hate Crime and Terrorism Relationship to Determine Whether They Are ‘Close Cousins’ or ‘Distant Relatives’" (2017) 63(10) Crime & Delinquency .

83. See the Canadian Criminal Code RSC 1985 c C-46, section 718.2; Crimes (Sentencing Procedure) Act 1999 (New South Wales), section 21A(2)(h); Sentencing Act 1995 (Northern Territory), section 6A(e); and Sentencing Act 1991 (Victoria), section 5(2)(daaa).

84. As noted by John Ip “Debating New Zealand’s Hate Crime Legislation: Theory and Practice” (2005) 21 NZULR 575 at page 595 in the context of section 9(1)(h) of the Sentencing Act.

85. International Convention on the Elimination of All Forms of Racial Discrimination 660 UNTS 195 (opened for signature 21 December 1965, entered into force 4 January 1969).

86. United Nations  International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).

87. Human Rights Act 1993, section 132.

88. Wall v Fairfax New Zealand Ltd [2018] NZHC 104, [2018] 2 NZLR 47.

89. See, for example, New South Wales (Crimes Act 1900 (New South Wales), section 93Z); Victoria (Racial and Religious Tolerance Act 2001 (Victoria), sections 7–8 and 24–5; Queensland (Anti-Discrimination Act 1991 (Queensland) sections 124A and 131A; Northern Ireland (Public Order (Northern Ireland) Act 1987, section 8); and Ireland (Prohibition of Incitement to Racial Hatred Act 1989, section 1). In England and Wales there is an offence of stirring up racial hatred under section 29B of the Public Order Act (United Kingdom) but, the way in which it is defined renders resort to the offence largely impracticable, see above.

90. Section 29J, along with the offence of stirring up religious hatred being confined to language that is “threatening” rather than “threatening, abusive or insulting” (as is the case with section 131 of the Human Rights Act and its English equivalent in respect of racial hatred), has resulted in the offence of stirring up religious hatred becoming practically a dead letter.

91. See sections 18–23 and sections 29B–29G of the Public Order Act 1986 (United Kingdom).

92. See section 319.1 of the Canadian Criminal Code RSC 1985 c C-46.

93. Harmful Digital Communications Act 2015, section 22.

94. Harmful Digital Communications Act 2015, section 4.

95. Harmful Digital Communications Act 2015, section 22(4).

96. Harmful Digital Communications Act 2015, section 4; R v Partha Iyer [2016] NZDC 23957; Law Commission Harmful Digital Communications: The adequacy of the current sanctions and remedies (NZLC MB3, 2012) at page 7.

97. These communication principles are set out in the Harmful Digital Communications Act 2015, section 6(1).

98. Harmful Digital Communications Act 2015, section 6(2).

99. Harmful Digital Communications Act 2015, section 6(1).

100. The codes of practice are for radio, free-to-air television, paid television and election programmes in an election period.

101. Office of Film and Literature Classification Christchurch shooting video officially objectionable (20 March 2019); and Decision of Film and Literature Board of Review In the matter of an application under section 47(2)(e) by the Kiwi Party (Incorporated) for a review of the publication titled: The Great Replacement (12 August 2019).

102. This reflects evidence we received from the Department of Internal Affairs – whose Censorship Team in the Digital Safety Group is responsible for enforcing the provisions of the Films, Videos, and Publications Classification Act – that, before 15 March 2019, the overwhelming focus of their work was on child sexual exploitation.

103. Ministry of Justice The New Zealand Crime and Victims Survey: Key Findings, Cycle 2, October 2019-September 2019 (2020) https://www.justice.govt.nz/assets/Documents/Publications/NZCVS-Y2-A5-KeyFindings-v2.0-.pdf . Personal offences include theft and property damage, robbery and assault, fraud and deception, cybercrime, sexual assault and harassment and threatening behaviour.

104. Foundation against Islamophobia and Racism website http://islamophobia.co.nz/ ; TellMAMA Measuring Anti-Muslim Attacks website https://tellmamauk.org/ .

105. Human Rights Commission Kōrero Whakamauāhara: Hate Speech – An overview of the current legal framework (December 2019) https://www.hrc.co.nz/files/2915/7653/6167/Korero_Whakamauahara-_Hate_Speech_FINAL_13.12.2019.pdf .

Hate Speech: NIDCOM Addresses Allegations Of Bias Against Igbo, Says Canada’s Amaka Showed Lack Of Remorse While Austria’s Ugiagbe Apologised

NIDCOM urged Nigerians abroad to refrain from ethnic profiling and promote unity.

The Nigerians in Diaspora Commission (NIDCOM) has expressed concern over comments made by an ‘unidentifiable group’ calling itself "Igbos in Diaspora," accusing the Commission of bias in handling hate speech incidents. 

In response, NIDCOM urged Nigerians abroad to refrain from ethnic profiling and promote unity.

In a statement signed by Rahman Balogun, Director of Media, Public Relations, and Protocols Unit, NIDCOM addressed the allegations. 

"Ideally, we would have refrained from any response on such despicable rants, but we will just put a few facts in place," the statement said.

The group had accused NIDCOM Chairman/CEO Hon. Abike Dabiri-Erewa of delaying her response to comments by Mr. Kingsley Ugiagbe in Austria, compared to hate speech made by Amaka Patience Sonnberger in Canada. 

NIDCOM clarified that Ugiagbe's remarks were swiftly condemned by the Edo Association in Austria, which denounced and disassociated itself from his comments. 

"The Edo diaspora in Austria had immediately handled the issue with maturity, with Kingsley Ugiagbe tendering an apology and promising to be of good conduct going forward," NIDCOM noted.

The situation in Canada, however, was different, with Nigerian groups raising alarms and filing petitions after Amaka's hate speech, which she and her group showed no remorse for. 

"Amaka and her group bragged about the hate speech and wasn't apologetic," the statement read, prompting NIDCOM and the House of Representatives Committee on Diaspora to take official action.

NIDCOM also debunked a false report claiming involvement of the Canadian government, noting that Amaka remains on bail with restrictions. 

"We urge restraint on comments made on her behalf so it would not affect her negatively," the Commission added.

Dabiri-Erewa emphasized her commitment to engaging with all Nigerians in the diaspora, urging them to maintain unity. 

"Crime or bad behavior should not be ethnicised, and we encourage Nigerians abroad to continue to be good ambassadors of their country," she advised.

NIDCOM highlighted its ongoing efforts to assist Nigerians abroad, mentioning interventions in countries like Libya, Saudi Arabia, and Ghana. 

According to NIDCOM, it continues to work closely with the Senate and House Committees on Diaspora on issues affecting Nigerians in prisons, especially in Ethiopia and neighboring nations.

View the discussion thread.

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• Plea In SC Seeking Implementation...

Plea In SC Seeking Implementation Of Law Commission Report On Curbing Hate Speech [Read Petition]

Livelaw news network.

27 Feb 2020 7:09 AM GMT

BJP leader Ashwini Kumar Upadhyay has moved the Supreme Court seeking implementation of the 267th Report of the Law Commission of India, to curtail hate speech during election campaigns. In 2014, the Supreme Court observed that the implementation of existing laws would solve the problem of hate speech to a limited extent and therefore it asked the Law Commission to make recommendations...

BJP leader Ashwini Kumar Upadhyay has moved the Supreme Court seeking implementation of the 267 th Report of the Law Commission of India, to curtail hate speech during election campaigns.

In 2014, the Supreme Court observed that the implementation of existing laws would solve the problem of hate speech to a limited extent and therefore it asked the Law Commission to make recommendations to the Parliament to strengthen the Election Commission to curb the menace of 'hate speeches' during electoral campaigns. Thereafter, a Report was submitted by the Commission on March 23, 2017, which the Petitioner points out has not been implemented till date.

As per the Petitioner, political rivalry and electoral campaigns are often painted in hate speech. Candidates often appeal on the grounds of religion, race, caste, community or language etc. and promote feelings of enmity between different classes. Therefore, he has asserted that is necessary to take appropriate steps to implement the recommendations of the Law Commission Report.

" not only in Parliament and State Assembly Elections, even in local body elections; hate speech is made to support particular party and candidate, which is against the basic dictum of a 'sovereign socialist secular democratic republic' like ours.

…The injury caused to the public is large because hate speech severely affects fraternity, dignity of individual, unity and national integration. Hate speech has potential of provoking individuals & society to commit acts of terrorism, genocides, ethnic cleansing etc. Offensive speech has real and devastating effects on people's lives and risks their health and safety. It is harmful and divisive for communities and hampers social progress. Hate speech also offends fundamental rights guaranteed under Article 19 and 21, " the plea read.

He submitted that the Report suggests certain reforms that will empower the Election Commission to take stringent action against a delinquent candidate, indulging in hate speech. As of now, he pointed out, even though hate speech during elections is classified as 'corrupt practices' under Section 123 RPA, the same is actionable only through an Election Petition and Election Commission of India cannot order an investigation.

Moreover, he said, there is no provision to challenge the corrupt practice of candidates, who lost the election. Thus, the appeal on the grounds of religion, race, caste, community or language etc. and promotion of feelings of enmity between different classes cannot be questioned even by way of election petition, in such cases.

He asserted that even the Goswami Committee on Electoral Reform in its Report in 1990 had suggested empowering the Election Commission to prosecute any person who commits an electoral offence.

In this backdrop, Upadhyay has prayed that the Government of India be directed to take appropriate steps to implement the recommendations of Law Commission Report No-267.

The Petitioner will be represented by Advocate Ashwani Kumar Dubey.

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