Freedom of Expression

What is Freedom of Expression?

Freedom of expression has a special status as a human right because we need it to promote and protect all human rights. It embraces free speech, the sanctity of an individual’s opinion, a free press, the transmission and receipt of ideas and information, the freedom of expression in art and other forms, the ability to receive ideas from elsewhere, and even the right to silence. We value freedom of expression because of what it means for us and what it helps us to attain (Rishworth, forthcoming).

Freedom of expression is one of a number of mutually supporting rights (including freedom of thought, of association and of assembly, and the right to vote) and is integral to other civil and political rights, such as the right to justice, and the right to take part in public affairs. Equally, the right to freedom of expression impacts on social and cultural rights such as the right to education. 

Debate about freedom of expression is both wide reaching and constantly evolving in response to the development of the human mind, technological innovation and a globalised media, community practices and standards, and political and judicial responses. What is more constant is the fundamental idea that freedom of expression is designed to protect and enhance democratic ideals.

Three overlapping arguments have historically been used to advance the right to freedom of expression: the search for truth; democratic self-government; and automony and self-fulfilment.

Search for Truth

The argument based on the search for truth is John Stuart Mill’s idea that open discussion, with competing arguments and ideas, results in the discovery of truth. When all ideas have been freely heard ‘the jury of public opinion will deliver its verdict and pick the version of truth it prefers’ (Hargreaves, 2002, p.302). The metaphor of a ‘market place’ of ideas, which is linked with the search for the truth, has been a powerful influence in applying constitutional guarantees of freedom of expression in many countries.

Democratic self-government

This argument for freedom of expression sees communication as a conduit for democratic government. As Lord Steyn said: ‘the free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice in the country.’[1] The democratic rationale has been prominently used in many major court decisions recently in United States, Australia, United Kingdom and New Zealand. For example, cases involving former Prime Minister David Lange in both Australia and New Zealand recognised that the democratic rationale for freedom of expression requires a limitation on defamation laws so that freedom of speech about public and elected officials is not chilled by potential liability.[2]

Autonomy and self-fulfilment

This argument states that freedom of expression is desirable as an end in itself, not because it assists in truth-finding nor in pursuing democracy, but because it sustains the autonomy and self-fulfilment of individuals in society. This is the reason why art and literature are routinely protected under the umbrella of freedom of expression.

Another argument that supports the right to freedom of expression, though negatively expressed, is that censorship and suppression are ‘themselves intrinsically evil, and will always tend to do more harm than good’ (Hargreaves, 2002, p.306).

Freedom of expression has always been subject to limitations. Each of the arguments for freedom of expression accommodates some restrictions. For example, while the search for truth has permitted tolerance for offensive and unsettling ideas, perjury and false advertising are penalised. There may, too, be restrictions on the ‘time, manner and place’ of expression; for example, the time of screening of adult-only movies on public television. The autonomy argument similarly permits restrictions in the interests of the autonomy of others, and ‘the democratic rationale can permit restrictions in the cause of maintaining a democracy’ (Rishworth, forthcoming).

International context - Ki ngā kaupapa o te ao

The most significant legal source of the right to freedom of expression is set out in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which states that:

1. Everyone shall have the right to hold opinions without interference
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities.

It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

• For respect of the reputation or rights of others;
• For the protection of national security or of public order, or of public health or morals.

What does Article 19 mean?

Paragraph 1 is a right to which the Covenant permits no exception or restriction and underlines that freedom of opinion is of a different character because it is a private matter. ‘Everyone’ means natural and legal persons, including public servants, teachers, members of the defence forces and so on.

The right to freedom of expression in paragraph 2 is the freedom to communicate opinions, information and ideas without interference, no matter what the content. Content neutrality, the idea that expression should not be restricted because of its message, ideas, subject matter or content, is a bedrock principle. This right protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. The New Zealand High Court says freedom of expression guarantees ‘everyone [the right] to express their thoughts, opinions and beliefs however unpopular, distasteful or contrary to the general opinion or to the particular opinion of others in the community.’[3]

The dual aspect of freedom of expression acknowledges both individual rights, that no one be arbitrarily restricted in expression, and implies a collective right to receive any information whatsoever and have access to the thoughts expressed by others (Jayawickrama, 2002). Expression need not be in words and may include symbolic expression, including actions and physical conduct (Rishworth, Huscroft, Optican & Mahoney, 2003).

The freedom to seek information means a person has a right of access to information, subject only to prescribed limitations, and the freedom to receive information basically prohibits a Government from restricting that freedom. The freedom to impart or convey opinions to others implies that the right to express includes dissemination, such as by newspapers or the mass media. ‘Information and ideas of all kinds’ embraces pluralism of thought and tolerance for unwelcome as well as new and challenging ideas. The words ‘other media’ include radio, television, the Internet, mobile telephony, theatres and movies, and envisage future media developments. 

Paragraph 3 expressly stresses that the exercise of the right to freedom of expression in paragraph 2 carries with it special duties and responsibilities. For this reason certain restrictions on the right are permitted that may relate either to the interests of other persons or to those of the community as a whole. 

However, in a General Comment on Article 19 the Office of the United Nations High Commissioner for Human Rights states that, when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. The necessity for any restrictions must be convincingly established and narrowly interpreted.

Related instruments and international law

Other international instruments relevant to the right to freedom of expression include The United Nations Convention on the Rights of the Child (UNCROC), which uses almost the same words as the ICCPR, but specifically in relation to children (Article 13). Similarly, the Convention on the Elimination of Racial Discrimination (CERD, Article 5(d)(viii)), also recognises the significance of freedom of expression.

Both these Conventions refer, too, to limitations on the right to freedom of expression, indicating that certain categories of expression such as pornography and speech inciting racial violence are more likely to be subject to reasonable limitations than others, such as political or social speech. 

Article 17(e) of UNCROC urges the encouragement of the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind Article 13 and 18 concerning parental responsibilities.

In 2002, New Zealand signed the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, which seeks to criminalise the production, dissemination, possession and advertising of child pornography. This was a response to international concern about the growing availability of child pornography on the internet and other evolving technologies.

Racial incitement is specifically addressed in CERD, which requires that States declare as an offence punishable by law all dissemination of ideas based on racial superiority or hatred, and all 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 origin. 

The Committee on the Elimination of Racial Discrimination (CRD), created by CERD, has said that the prohibition of dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression.

While the significance of the right to freedom of expression has been treated differently in national jurisdictions, there is a broad consensus that emerges from the international human rights framework: while some restrictions on expression (not opinion) are proper, there is a core to freedom of expression that should not be restricted at all (Rishworth, forthcoming). Bills of rights generally affirm these basic principles.

New Zealand context - Ki ngā kaupapa o Aotearoa

The right to freedom of expression is enshrined in the New Zealand Bill of Rights Act 1990 (BoRA), which states in section 14:

Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form.

The Court of Appeal in Moonen v Film and Literature Board of Review[4] said that the right is ‘as wide as human thought and imagination’. 

Section 5 provides for limits on freedom of expression, as with other rights:

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 

In the General Comment on Article 19 it was stated that it is ‘the interplay between the principle of freedom of expression and such limitations and restrictions which determines the actual scope of the individual’s rights’ (OHCHR, 1983).

Several pieces of legislation, aimed at promoting racial harmony, defending public morals, enhancing social responsibility, protecting children, and protecting individual privacy and reputation, limit the scope of freedom of expression in New Zealand. 

How is it decided that these are ‘reasonable limitations’? The Court of Appeal, in Moonen v Film and Literature Board of Review, interpreted the test in section 5 of the BoRA to mean that the restriction on free speech must be proportionate to the objective sought to be achieved; the restriction must be rationally connected to the objective; and the restriction must impair the right to freedom of expression to the least possible extent. The Court said, ‘a sledge hammer should not be used to crack a nut.’[5]

Because of the breadth of freedom of expression, the remaining part of the chapter concentrates on the balancing of rights and responsibilities in four major areas: hate expression; censorship and sexually explicit expression; freedom of the press; and privacy. Legislation, policy and practice relating to these areas are referred to. Quotes from stakeholders featured in the chapter are taken from interviews conducted by Dr Susan Fountaine of Massey University.

Hate Expression

New Zealand, like many other countries, has legislated to give effect to Article 20 of ICCPR, which requires State parties to ban ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’. The United Nations Human Rights Committee has expressed the view that the prohibitions required by Article 20 are ‘fully compatible with the right of freedom of expression as contained in Article 19’ (CCPR General Comment 11, 1983), but Article 20 does not relieve the State parties of the obligation to protect freedom of expression to the fullest extent possible.

Rishworth (forthcoming) discusses a number of reasons for racial disharmony laws that limit freedom of expression. These include avoiding harm. He states:

It is possible to trace genocide and acts of violence against racial and ethnic groups back to the development of attitudes in the community. And if the development of attitudes is targeted as a ‘harm’ to be avoided because it makes people more susceptible to incitements to violence, or more tolerant of violence being perpetrated by the state on racial groups, then the harm avoidance rationale can be invoked to justify some speech restrictions.

A second reason is that of discouraging discrimination. This rationale in favour of regulating race-related expression suggests that speech that vilifies promotes negative stereotypes and attitudes, so that people view those vilified as loathsome and unworthy and deserving of discrimination. 

The psychic injury rationale suggests people should be spared the psychological harm and alienation that might follow racist remarks. The harm is not so much in the attitudes engendered in others, as in the erosion of self-worth in the victims, their withdrawal from society and resultant inequality. Regulation that limits speech about race is also symbolic, sending positive messages of inclusion and concern to ethnic minorities and demonstrating a legislative commitment to eradicating racism.

Legislative Provision

There are two provisions in the Human Rights Act 1993 (HRA) that limit freedom of expression about race. Section 61 prohibits expression that is threatening, abusive, or insulting, and considered likely to excite hostility against or bring into contempt a person or group of persons on the ground of their colour, race or ethnic or national origins. It is the effect of what was said that counts, not whether the person did or did not intend to excite hostility. Although intention is irrelevant, the views of the ‘very sensitive’ are not considered to be the appropriate yardstick to decide whether something is insulting (Skelton v Sunday Star Times[6]). There is an exception for the media. It is not unlawful to publish a report that accurately conveys the intention of the person who used the words.

Section 131 establishes a criminal offence similar to section 61 but with the additional words ‘with intent to excite hostility or ill will against, or bring into contempt or ridicule’. Incitement to racial disharmony has been a criminal offence since the enactment of the Race Relations Act 1971.

The provisions permit punishment of a person for statements they have made because of what other people might be led, as a result, to think about still another group of people, or racial or ethnic group. 

The Application

Of the HRA and its predecessor sections have rarely been used. It requires the consent of the Attorney-General to prosecute. The Nazi pamphlet case, King-Ansell v Police[7] in 1979, is the only reported prosecution under a predecessor section in the Race Relations Act 1971.

Section 61 has had the most difficult history of any of the provisions of the HRA. From 1977 to 1989, section 9A of the Race Relations Act also made it unlawful to use words that were considered likely to cause racial disharmony, regardless of the intention of the person who used the words. It was repealed in 1989 as a result of a number of problems that were identified in the wake of the ‘Kill a White’ case, as the provision applied to public areas only, and a marae where the comments were made was not considered a public place. 

The present section 61 differs in a number of significant respects from its predecessor. While extending its scope to private as well as public places, it narrows the offence by removing the reference to exciting ill-will or bringing groups of persons into ridicule. The change, recognising the need to protect freedom of expression, raised the threshold at which the Human Rights Commission could intervene.

Latest figures show annual complaints of racial disharmony to the Human Rights Commission have tripled. In 2002 the Commission received 1,013 complaints in total, of which 70 alleged racial disharmony. In 2003, there were 1,441 total complaints, of which 210 were of alleged racial disharmony. After assessing the racial disharmony complaints, the Commission declined to pursue any of them through the formal complaints process. The Commission has offered mediation and taken other action in a number of these cases. Its decisions have been based on the high threshold in section 61, particularly when the impact of the BoRA is considered in relation to the words used. 

In letters sent back to complainants the Commission stated that the offensiveness of a race-related comment is not sufficient on its own. The comment must also be a probable cause of ethnic hostility or contempt. The vast majority of comments that are complained about are unlikely to contribute to serious ethnic unrest. In some cases where the comments were broadcast on radio or television, complainants are referred to the Broadcasting Standards Authority.

‘Hostility’ and ‘contempt’ are not clear-cut terms, and the Commission’s interpretation of them must be consistent with the right to freedom of expression set out in the BoRA. For example, comments such as broadcaster Paul Holmes’ use of the term ‘cheeky darkie’ to describe United Nations Secretary-General Kofi Annan offended many New Zealanders, but it was not considered likely to cause serious ethnic tension or unrest. 

Case Study: The Holmes’ ‘Cheeky Darkie’ Debate 

In 2003, on his morning radio show, broadcaster Paul Holmes called UN Secretary-General Kofi Annan a ‘cheeky darkie’ and said the world would not be told what to do by someone from Ghana. He later went on to make disparaging remarks about women journalists. The ensuing public debate gave some insight into New Zealanders’ attitudes towards free expression and social responsibility in the media. For example, the Nelson Mail published 63 letters on the topic in one edition, which were relatively evenly divided into pro- and anti-Holmes viewpoints. Supporters of Holmes defended his right to say what he wanted, referring to the sanctity of free expression, or argued that his comments were merely tongue in cheek, and lamented the growth of political correctness. Detractors denied it was a light-hearted and inconsequential comment and said it reflected unacceptable behaviour by a high-profile public figure. 

The broadcaster (The Radio Network Ltd) reacted quickly to public complaints about Holmes’ comments and took a number of actions, including airing two apologies and meeting with the Race Relations Commissioner. The Broadcasting Standards Authority (BSA) agreed that Holmes’ comments were unacceptable and breached broadcast standards, but was satisfied with the broadcaster’s actions and did not uphold public complaints that further action should be taken. 

Racial disharmony complaints often concern statements made publicly about Māori-Pakeha relations and immigration, and comments made by national and local politicians or other public figures regarding minority communities. Most of the statements about which people complain to the Human Rights Commission have been publicly disseminated in newspapers, on radio (including talkback) and on television. The majority of complainants first find out about the statements from other media (for example, a newspaper report on remarks broadcast earlier on radio, or vice versa). Other media that feature in small numbers of racial complaints include advertising, shop displays, websites (including message boards and chat rooms) and direct mail flyers.

There is a legitimate public issue about the efficacy of section 61 if racial disharmony complaints seldom reach the threshold at which the Commission may intervene. Overseas and historical experience do not necessarily provide guidance. As Kathleen Mahoney (1994) points out, the modern issues raised by hate speech are very different from those faced by fledgling democracies in the seventeenth and eighteenth centuries when the rationales for free speech were developed. New Zealand, too, has a very different experience from many other developed parts of the world, particularly Europe, where new hate expression laws deal with more extreme expressions of hate speech and xenophobia. Grant Huscroft (1995) refers to this uniqueness in a discussion about racial disharmony and public and political debate:

Once it is recognised that discussion and tension in Māori-Pakeha relations is a permanent feature of New Zealand political life, the futility of attempts to regulate political expression becomes apparent. On the Māori side, it is not surprising to find that long held grievances often result in emotive language that may well be racist in tone, at least as far as non-Māori are concerned. Its use may be deliberately provocative, in order to draw attention to the claim made, or it may be honestly felt … By the same token, however, it has to be accepted that feelings are equally strong amongst Pakeha New Zealanders, and that Māori claims may engender strong responses which Māori consider racially defamatory. These responses may also be deliberately provocative, to express strong disapproval of a particular claim, or they may simply be an emotional response. The case for regulating this sort of expression is as weak as the case for regulating radical Māori expression (p.200).

However, there are some important reasons for retaining section 61. First, New Zealand is not immune from global patterns of migration, religious intolerance and xenophobia, nor from border-defying high and low technologies and market-driven media. While the high threshold of section 61 is criticised by those who favour stronger regulation of hate speech, it can also be regarded as a precautionary boundary fence around freedom of speech in the event of future racial hatred. Second, New Zealand, as a modern democracy respecting equality, biculturalism, and multiculturalism, accepts as a fundamental principle that legislative protection and Government regulation are required to protect the vulnerable. As Mahoney (1994) suggests, to use freedom of expression as a philosophy to permit disadvantaged or vulnerable groups to be seriously harmed by more powerful groups misunderstands the proper role of Government and its commitment to ICCPR. 

Widening the Scope of Hate Speech?

Currently, grounds of discrimination that are not race-related have no equivalents to the law against racial disharmony in the HRA. The legislation’s anti-hate provisions apply only to vilification on the grounds of race, ethnic or national origins and colour. Despite this, people make complaints about vilification on grounds other than race including religious belief, which some view as closely tied to ethnicity, and sexual orientation.

The Human Rights Commission has argued for a broadening of the legislation classifying films, videos and publications beyond sex, horror, crime, cruelty or violence to address vilification of people, whether or not they are also involved in sex or violence. The Commission submitted to the 2001 Inquiry into the Operation of the Films, Videos and Publications Classification Act that the focus of censorship law had shifted to an approach:

characterised not by a focus on morality and particular subjects (such as sex) per se but rather by a focus on the type and extent of any harm which might be caused. If it is not harmful, the modern view would hold, there is no case for censorship. Conversely if it is harmful (enough) there is a case for censorship. 

A harms-analysis approach to censorship suggests that the vilification of vulnerable groups should be liable to classification because it ‘causes actual harm to members of those groups, to those groups as a collective and, by extension, to society as a whole’.

The issue of what constitutes harm has been examined by the Supreme Court of Canada, which stated that hate propaganda is not merely offensive, but constitutes a serious attack on psychological and emotional health.[8] Societal freedom is undermined because such expressions create discord among groups and foster an atmosphere conducive to violence and discrimination. In this line of thinking hate speech is not merely an expression of intention to act in the future. It is an end in itself and a practice of discrimination.

In a 2004 submission to the select committee considering the Films, Videos and Publications Classification Amendment Bill, the Human Rights Commission said that section 61 and section 131 of the HRA were too blunt as legislative instruments to encompass the harmful, often incremental, processes of marginalisation and discrimination of hate speech. Furthermore, the Office of Film and Literature Classification (OFLC) was a more suitable and experienced body with expertise in weighing the balance between freedom of expression and the potential for harm.

Promotion of racial Harmony

Freedom of expression implies a positive role for the media, in particular, to promote racial harmony through the airing of plural voices, through the promotion of tolerance, and through the provision of information that aids public understanding. Serious concerns, though, have been raised by Māori and Pacific peoples’ commentators about the mono-cultural bias of the mainstream news media.

For Pacific journalist Tapu Misa, the important issue is how the media report race and ethnicity, rather than whether they should address them. She argues that, when reporting crime statistics that show disproportionate numbers of young Pacific peoples as offenders, the media should contextualise and scrutinise the social conditions that contribute to the trend rather than present statistics in a ‘gleeful’ way as evidence of inferiority. She also believes that the media have an obligation to critically examine, rather than simply reproduce, comments made by news sources, particularly when the comments could be construed as racist or homophobic. 

Racial disharmony laws come into effect after publication. This is because restraint before publishing has traditionally been regarded as seriously inconsistent with freedom of expression. Censorship, on the other hand, operates on the basis that certain publications, those deemed objectionable, should not be published at all, or restricted to adults only (R18 films, for example).

Censorship and sexually explicit expression

Arguments about the restraint of sexual expression are as old as sex itself. What is newer, though, is the increasing pervasiveness of the media in all aspects of society and the changed rationale for censorship. Censorship ‘occurs whenever particular words, images, sounds and ideas are suppressed or muted’ (Watson & Shuker, 1998, p.12).

The media

The ubiquity of the modern media, their creative and technological convergence and intersection with all aspects of society have increased debate about their power and effects. A measure of that debate is the amount of research that examine the link between television and violence – estimated at over 4,000 research studies (Working Group: TV Violence Project, 2004). Divisions between private and public life have eroded, electronic news and information is instant, and the internet has both positive and negative implications for the right to freedom of expression. Twenty years ago, for example, before the information society, it was inconceivable that organisations would need to develop ethical codes for employees about the misuse of work computers to access internet-based child pornography. Children, too, are increasingly targeted by advertising in globally competitive and commercial media. 

In a 2001 study of the future of digital television in New Zealand, Paul Norris and Brian Pauling said, ‘many nations are addressing the double-sided coin of risking either too heavy handed and unwieldy regulation or too little regulation and the consequent total domination of market forces’ (p.125). 

Traditionally, distinctions have been drawn between the censorship of films and printed matter. Pre-publication restraint on newspapers would be a gross fetter on the liberty of the press. Films, videos and DVDs, on the other hand, combine visual imagery and text, and are deemed to have a different impact, arousing emotions and feelings and catering for unselective mass audiences (Jayawickrama, 2002). Whether this distinction will survive the rapid evolution of media technology is debatable. 

Rationale for censorship

The changed rationale for censorship has moved the debate from moral imperatives to a discussion of ‘harm’. For example, the ICCPR refers to the ‘protection’ of ‘morals’. But the most comprehensive censorship legislation in New Zealand, the Films, Videos and Publications Classification Act 1993 (FVPC Act), is promoted as balancing the need to protect and encourage freedom of expression and the need to limit any social harm caused by the availability of material that is injurious to the public good.[9] Chief Censor Bill Hastings said the FVPC Act does not mention morality, and that the ‘concept of an enforceable public morality has been largely superseded by widespread agreement that the modern State has no place in the bedrooms of the nation. Rather, the role of the State is to protect the public good from injury. Morality has become a private matter.’[10]

International feminists Catharine MacKinnon (1984) and Andrea Dworkin influenced the change in emphasis of censorship legislation in many countries by arguing that pornography was not a moral issue but should be regulated because of the harm it inflicted on women and children. Deciding what counts as ‘harm’ is itself a moral issue. New Zealand’s censorship regime covers most media, allowing censorship of ‘objectionable’ publications that deal not only with sexual matters but also with crime, horror, cruelty and violence in a manner considered likely to be injurious to be the public good. Changing social perceptions, values and audience expectations also affect debate about censorship. 

Films, Videos, and Publications Classification Act 1993 and its application

The censorship legislation establishes two categories of publication. Under section 3(2) of the FVPC Act, publications that promote or support, or tend to promote or support, exploitation of children and young people for sexual purposes, the use of violence to coerce sex, sex with the body of a dead person, bestiality, torture, extreme violence or cruelty and various forms of degrading conduct are banned, regardless of artistic merit or otherwise socially redeeming features. The law aims at a limited range of publications only.

Under section 3(3), publications are assessed as being objectionable, and therefore censored or classified as restricted in some way, against a widened number of criteria that also include exploitation of children’s nudity and promotion of criminal terrorism. Section 3(3)(e) refers to publications that represent (whether directly or by implication) that members of any particular class of the public are inherently inferior to other members of the public by reason of any characteristic that is a prohibited ground of discrimination of the Human Rights Act.

The word publication is broadly defined and covers any printed, recorded or stored image or text; it includes films, videos, books, magazines, posters and computer discs. In 2002–2003, the OFLC classified 1,223 publications and banned 165 (14 percent). Over half were computer image and text files sourced from the internet and came from Crown enforcement activity and mandatory court referrals. A total of 60 of the banned publications under section 3(2) promoted sexual exploitation of children and young people. Of the 12 publications banned under section 3(3), seven were do-it-yourself drug books promoting criminal activity and the rest were four DVDs and one video depicting degrading, dehumanising or demeaning behaviour. A total of 552 publications were classified as R18, and the majority of these were DVDs and videos. Publications restricted to R16 represented 21 percent (260) of classifications. While Film Festival offerings traditionally provoke complaints from morally conservative groups such as the Society for the Protection of Community Standards, they form only a tiny proportion of the publications submitted for classification.

Balancing rights?

Two recent censorship cases demonstrate the ongoing tensions between the right to freedom of expression and the notion of social harm. 

Moonen v Film and Literature Board of Review affirms the BoRA and is influencing the way regulators and policy makers think about the right to freedom of expression in New Zealand. The relationship between freedom of expression and censorship in section 3(2) was discussed in this case. The Court of Appeal held that the High Court approach that the right to freedom of expression was irrelevant to the operation of section 3(2) was wrong, and that an approach consistent with the BoRA was required in considering the correct meaning of the words ‘promotes or supports’ in the censorship legislation. The meaning put on the words should impinge as little as possible on freedom of expression. Huscroft (2003) says that it remains to be seen whether the application of the BoRA will have a significant impact with respect to section 3(2), but that it is clearly highly relevant to the exercise of discretion under section 3(3).

The Living Word case, on the other hand, has polarised opinion. The case illustrates the difficulties that arise in the interpretation of censorship legislation in relation to what has been called the ‘subject-matter gateway’. The Chief Censor says the Court of Appeal’s interpretation of section 3 in Living Word Distributors v Human Rights Action Group (Wellington)[11] continues to affect the operation of the classification system.

He cites three examples that could not be appropriately restricted: 

1. A trailer for the feature film Crackerjack, which contained offensive language
2. Secretly filmed video footage of boys changing into their togs at a Papatoetoe public swimming pool, taken by their teacher
3. A website offering biblical support for the proposition that homosexuality was ‘an abominable and death-worthy crime’.

An alternative viewpoint (Rishworth, forthcoming) is that the Living Word case did not expose but rather closed a loophole that was beginning to be exploited, and that invasion of privacy and other remedies are available.

In the Living Word case, the High Court upheld a Film and Literature Board of Review classification of two Christian videos as objectionable, and therefore banned them because they represented homosexuals and bisexuals as inferior. The two videos contained views that homosexual sex was sinful and that discrimination on the basis of sexual orientation should be allowed. The Court of Appeal, in overturning the decision, held that the FVPC Act applied to publications that dealt with the specified matters of sex, horror, crime, cruelty or violence and not to matters of opinion or attitude. This was not a case of competing rights being balanced, the right to freedom of expression versus the right to freedom from discrimination, because the State was not discriminating against anyone. Rather, freedom of expression was the only right at issue and it had been infringed in the interests of promoting equality among private persons (Huscroft, 2003). A Mediawatch commentary about the Living Word videos notes that a State that silences fundamental Christians can just as easily curb the views of homosexual rights groups (Hate Speech, 2003). However, a commentator on the GayNZ website noted the power differential in the exercise of the right to freedom of expression. Majority opinion often prevailed and the reality is that many minority groups are not robust or wealthy enough to fight back (Hatred on Screen, 2001). 

At a more general level, Fountaine (forthcoming) suggests that, in dealing with hate speech, differences in the ability of individuals and groups to respond and take part in debate needs to be considered in the context of wider human rights and the State’s role to protect its citizens from discrimination.

Where the appropriate boundaries lie between the public’s right to read, view, see and hear publications in private and the State’s legitimate interest in regulating the content will probably never be universally agreed upon.

The media and freedom of expression

Freedom of expression as it relates to the news media has been assiduously defended and promoted for centuries by both the public and the press itself. For example, the media’s concern was summed up in an editorial on World Press Freedom Day. [K&A1] The Dominion Post said:

The cumulative chilling effect of defamation laws, privacy czars, race relations legislation and government agencies, or MPs who would limit the media’s ability to report opinion and news events, can result in slow death by a thousand pin pricks (p.14).

There is a long-established democratic principle that the news be independent, and be seen as independent, from the State. This principle applies even when the media are State-owned. David Innes of the Radio Broadcasters’ Association said media industries have two reasons for desiring a high level of free expression: democratically, a range of opinions is important in newsgathering and talkback radio; and commercially, for ‘selfish’ or personal interest in terms of audience ratings. 

Limitations on the media’s right to freedom of expression

Legislation

A number of statutes limit the media’s right to freedom of expression in New Zealand. One of the most significant is the Broadcasting Act 1989, which provides for the maintenance of programme standards and covers state-owned Radio New Zealand and Television New Zealand, privately-owned television such as CanWest’s TV3 and its radio stations, other privately-owned radio, subscription television such as Sky, and Māori broadcasting (including iwi radio and the Māori Television Service). 

Section 4 of the Broadcasting Act refers to the broadcaster’s responsibility for maintaining, in its programmes and their presentation, standards that are consistent with:

1. The observation of good taste and decency
2. The maintenance of law and order
3. The privacy of the individual
4. The principle of balance when controversial issues of public importance are discussed
5. Any approved code of broadcasting practice applying to programmes.

The Act establishes a complaints regime by which broadcasters themselves take responsibility for their own codes of practice, which are signed off by the regulator, the Broadcasting Standards Authority (BSA). Members of the public who believe a broadcast has breached one of the codes must first complain formally in writing to the broadcaster within 20 days of the broadcast. Only if the complainant is dissatisfied with the broadcaster’s decision or action can the matter be referred to the BSA. Under section 21(e) of the Act, the BSA has the function of encouraging broadcasters to develop codes of practice that cover:

1. The protection of children
2. The portrayal of violence
3. Fair and accurate programmes
4. Safeguards against the portrayal of people in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs
5. Restrictions on liquor promotion
6. Appropriate warnings and classifications.

A similar high threshold to section 61 of the HRA, that of encouraging denigration or discrimination, is contained in the Broadcasting Act. However, the broadcasting statute has widened the categories to include religion. Religion is also addressed in Article 19 of ICCPR, which refers to legislation that restricts incitement to religious discrimination and violence (Rishworth, forthcoming). 

Because of some high profile decisions, such as upheld complaints against the Rock radio station on grounds of good taste and decency, and against TV3 in respect of fairness and balance in the Corngate case, the BSA has recently been criticised by broadcasters who would prefer to self-regulate. Clare Bradley, legal counsel for TV3, suggests that any upholding by the BSA of a breach of broadcasting standards introduces a ‘very real chilling effect on news production’. David Edmunds, TVNZ’s complaints manager, believes the BSA decisions contribute to a risk-averse news environment. He says it is part of his job to be there for journalists who want to check points with him. News workers come in and say, 

the BSA did something or rather so many months ago and now I want to do this, can I do it? Obviously they're feeling inhibited in what they can do.

Media law expert Ursula Cheer sees it differently.

I think [the BSA]’s absolutely essential. Of course the media don’t agree with that, they hate it … I believe in freedom of expression with responsibility. I think any freedom goes hand-in-hand with responsibility; it’s the flipside of the coin. So I do think it’s compatible within a Bill of Rights and a rights-based legal system that you have a balancing exercise.

A group examining television violence in New Zealand that included broadcasters, regulators, academic and viewers’ representatives among its members concluded that the level of violence on New Zealand television had increased. In addition to the overall high inclusion of violent content, there were some disturbing violent promotional trailers for upcoming programmes (Report to the Minister of Broadcasting of the Working Group: TV Violence Project, 2004). The emerging roles of women as both perpetrators and victims of violence, and children as victims of violence, were of concern. The group proposed a model of precautionary risk management to reduce television violence. The model envisages more attention given to those groups vulnerable to the influence of television violence, strategies to allow viewers to monitor the amount of violence experienced, and investigation into ways of reducing the role that television violence plays in promoting antisocial and violent behaviour. The report proposed extending the responsibility of the BSA to give it an educative function that will complement its existing quasi-judicial role. Broadcasters gave the report a lukewarm reception, but the industry is looking further at the issue.

Self-regulation

By contrast with broadcasting, the print news media are self-regulating, through their own ethics body, the Press Council. The Press Council places great importance on the need to protect free expression, arguing that:

Freedom of expression and freedom of the media are inextricably bound. The print media is jealous in guarding freedom of expression not just for publishers’ sake, but, more importantly, in the public interest (cited in Tully & Elsaka, 2002, p.153) 

However, while the industry identifies the Press Council as an upholder of the best journalistic standards and ethics (e.g., Taken for granted, 2003), it has been criticised for superficial consideration of the responsibilities that accompany free expression. The Council’s long-awaited statement of principles is variously described as inadequate, superficial and ambiguous in the way it deals with reporting children and diversity (Tully & Elsaka, 2002). The Council has also been accused of inconsistency in the way it uses ‘free expression’ as a justification for rejecting complaints. In a commentary on the Mediawatch programme, it was noted that the Press Council upholds only about seven percent of the complaints it receives, leading to the observation that ‘the Press Council is doing a fine job of upholding the freedom of the press. The trouble is, it’s not much chop at upholding complaints’ (Complaints to the Press Council, 2002). Urging the Press Council to be more proactive, Tully and Elsaka (2002) state:

Effective self-regulation requires a genuine commitment to balancing freedom and responsibility, the will to monitor and respond to changes in journalism practice and the media environment, and a proactive policy toward initiating reform rather than merely reacting to political pressure (p.151).

Contemporary views on the media’s right to freedom of expression

Perhaps inevitably, journalists and broadcasters believe more than other commentators that the right to freedom of expression in New Zealand is under threat.

Gavin Ellis, editor of the New Zealand Herald and chair of the Press Freedom Committee, says there is no single overriding threat but ‘an erosion of freedom by a multiplicity of small steps’. Regulation is only part of the problem, he believes:

There is also a growing sense that there are some areas that are no-go areas. Now these are not governed by any form of regulation but by social convention and as a result people are loath to enter into discussion or debate on those issues. Such things as the Holocaust … I don’t for one moment agree with those people who deny the Holocaust but by the same token I disagree with those who say that you can have no other view than the accepted, ‘official’ view on the Holocaust.

However, three journalism educators are more comfortable with the balance between freedom of expression and self-imposed or regulatory limitations. Former editor and academic Jim Tucker thinks New Zealand has struck a good balance between free expression and regulation, and doesn’t believe press freedom is under any real threat:

I think the media can look after itself. I tell my students I don’t believe there’s any piece of legislation that prevents them from doing their job, if they do it properly. We’re in a healthy position. I think that we have equally powerful forces that play this out.

Canterbury University’s Jim Tully is also fairly comfortable with the existing balance, but believes there has been a lessening of the media’s ability to fulfil their democratic function since State sector reform in the mid 1980s, when many former public organisations in various sectors such as health, electricity and ports were open to media accountability. Journalists have had to use the Official Information Act more frequently to penetrate the resultant climate of secrecy, which has resulted in ‘the public and the media being increasingly excluded from that watchdog and scrutinising role,’ Tully says. 

Like others, Paul Norris, who heads New Zealand’s School of Broadcasting, does not see defamation as a significant curb on free expression:

I start from the view that freedom of expression is not absolute. There will have to be, in any civilised society, some restraints on freedom of expression and defamation seems to me to be one legitimate restraint, as indeed is contempt. Privacy is a bit more complicated.

Norris sees the Official Information Act as a vital tool and says the Ombudsmen’s decisions need to be carefully monitored to check whether the Act is delivering on the promise of open government. However, he believes New Zealand has a strong international reputation for freedom of the press.

Media law Professor John Burrows identifies four challenges for the media in terms of the right to freedom of expression:

• Whether journalistic protection in terms of defamation established in the Lange cases extends beyond politicians to other public figures
• Privacy rules need to be very tightly defined and there needs to be clarity about what interests are being served – TV3’s Clare Bradley goes further and identifies the threat of celebrity ‘brand protection’ where celebrities like the All Blacks control their photographs and images in a way that avoids news media scrutiny, as a future challenge
• The trend towards companies and government departments pleading commercial sensitivity in a bid to cover up issues
• If the internet is abused and boundaries pushed the Government may be forced to regulate, in a move that could affect all media. 

The issue of internet regulation is unresolved worldwide, because the medium is seen as ‘anarchic’ and because it defies national boundaries. Its speed of distribution, the potential for anonymity of sourcing and its irrecoverable nature make it inherently unsuited for post-publication regulation. Internet Safety Group Director Liz Butterfield sees the ability of internet users to manage their risk of being exposed to offensive or harmful material as an issue important in terms of freedom of expression. She lists the ways children, in particular, can be harmed through unsolicited email, cyber-bullying, hate speech sites, invasion of privacy and pornography. Both Butterfield and Peter Macauley of Internet NZ support well-resourced education for parents and children, the development of ‘social codes’ to govern behaviour on the internet, and international consensus for action on pornography.

There was general agreement among stakeholders that there is a lack of public discussion about the right to freedom of expression in New Zealand. Gavin Ellis says that the media are a strong avenue but on the whole do not do a good job. Newspapers could do more, talkback radio is good in principle (but does not always provide rational debate) and television is woefully inadequate, he believes. Catherine Austin of the OFLC suspects that the public perception is one of limited accountability, of public powerlessness, linked to confusion over concurrent jurisdictions, the time and money it takes to complain about issues, and the lack of guaranteed outcomes from inquiries and complaints. Media lawyer Ursula Cheer believes one result of the BoRA is that New Zealanders are getting better at debating the issues. Jim Tully suggests that new technologies such as the internet might prompt consistent and ongoing debate because of the challenges they pose.

Privacy

Privacy rights are important and diverse, but only a brief discussion of how they intersect with freedom of expression and the media is possible in the context of this paper.

Four interrelated developments are impacting on privacy. They are:

1. Technologies such as long lens photography, digital manipulation, and audio and video surveillance mean intrusion is possible in both private and public realms without trespass
2. The boundaries between public and private life have all but collapsed, and those with a public status or celebrities who court publicity are deemed to have less reasonable expectation of privacy 
3. Increasing media aggression corresponds with global commercialism and market competition and manifests itself in boundary-pushing journalism
4. The State, broadcasters and the public have a degree of consensus that children are in a special position, and their vulnerability should be a prime concern.

There is no express right to privacy in the NZ Bill of Rights Act 1990 despite Article 17 of ICCPR, which states: ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family home or correspondence, nor to unlawful attacks on his honour or reputation. Everyone has the right to the protection of the law against such interference and attacks.’ The same right of privacy is specifically applied to children in the United Nations Convention on the Rights of the Child (UNCROC).

When a celebrity broadcaster sought unsuccessfully to restrict publication of photographs of his baby children, the Court of Appeal President, Justice Gault, said: ‘we do not accept the omission from the Bill of Rights Act can be taken as legislative rejection of privacy as an internationally recognised fundamental right.’[12]

The Privacy Act 1993 exempts the news media from its operations when information is collected for news activities, including editorial opinion and current affairs. Tucker (1997) suggests society and the media have an odd pact over privacy:

Journalists are ‘allowed’ to intrude on individuals’ private lives, so long as the benefits for everyone are apparent. When they’re not, society reacts by withdrawing part of the traditional sanction. Television, with its spectacular capacity for showing distress and indignity, has never been fully trusted with the sanction (p.17).

Broadcasters are not exempt from all privacy restrictions in their reporting. Section 4 of the Broadcasting Act states that every broadcaster is responsible for maintaining standards consistent with the ‘privacy of the individual’.

The Act itself is silent on what constitutes privacy, but a series of privacy principles have been drawn up. These include:

1. The protection of privacy against public disclosure of private facts, where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities
2. Some kinds of public facts can become private again because of the passage of time
3. Protection against intentional interference in the nature of prying with an individual’s solitude or seclusion. This does not cover photographs taken in a public place
4. Protection against a broadcaster using the airwaves to deal with a private dispute
5. Protection against broadcaster disclosure, without consent, of names, addresses and telephone numbers of identifiable people (subject to the ‘public interest’ defence)
6. The idea that someone who has consented to an invasion of privacy cannot later claim a breach of privacy.

The principles also state that ‘children’s vulnerability must be of prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interests of the child.’

There is now a growing body of decisions from the BSA, as the regulator, relating to privacy and children’s interests. In a recent case involving a television documentary about child prostitution in Fiji, the Judge said:

TV3’s absolutist stance – that freedom of expression trumps all – is simply not right. A balancing of interests is required. The restriction on freedom of speech effected by the Authority’s [BSA’s] decision is minor compared with the competing need for protection of children.[13]

In the Hosking case, however, the Commonwealth Press Union submitted that while freedom of expression was an important right guaranteed under BoRA, by contrast there was no express right to privacy in BoRA. Freedom of expression should not therefore be restrained unless the exercise of that freedom threatens the very conscience of a citizen, and his or her ability to move freely within the community and be safe from harm. 

In general, the media oppose privacy restrictions because they believe the issues involved are best dealt with by education and self-regulation, that they impose their own ethical judgements and guidelines, and because the public good generally outweighs an individual’s rights. Privacy legislation is seen as creating a culture that inhibits the media’s watchdog role and therefore disadvantages the public.

Currently in New Zealand, privacy is emerging as a common law tort through a series of High Court and Court of Appeal cases. The Court of Appeal in the Hosking case suggests this evolving process should not be interrupted.
Justices Gault and Blanchard said there was a case for a right of action for breach of privacy through publicising private and personal information, on the basis that:

• It was consistent with New Zealand’s ICCPR and UNCROC obligations 
• The BSA had demonstrated its workability 
• It allowed for the accommodation of children’s interests 
• It allowed for competing values to be reconciled. 

Privacy protection is in transition, and this is likely to accommodate technological development, changes in media behaviour, societal attitudes, values and practices. Reconciling the right to freedom of expression and the right to protection of privacy remains a significant challenge. 

Conclusions - Ngā whakamutunga

Media expert John Burrows describes the right to freedom of expression as a ‘terribly difficult balance’:

If you don’t regulate enough, unquestionably people can be hurt. If you’re too free, you can damage society, you can damage individuals. At the other end, if you’re too regulated and too restricted, the public aren’t given the information they need. It is the most difficult area in the whole of the law to get right. There are just so many cross currents, so many important interests in it, that to strike the correct balance that will please everybody is virtually impossible.

Where New Zealand does well - Ngā mahi pai e oti nei i Aotearoa

• New Zealand has ratified ICCPR Article 19, the right to freedom of opinion and expression, and legislated domestically for freedom of expression in section 14 of the BoRA.
• The BoRA has had the positive effect of progressively influencing the legislature, the judiciary, policy-making and public thinking about the importance of freedom of expression in a modern democracy and has ensured a higher profile for this fundamental human right.
• Through sections 61 and 131 of the HRA, New Zealand has legislated to give effect to Article 20 of the ICCPR, which requires legislation prohibiting advocacy of racial hatred that constitutes incitement to discrimination, hostility or violence.

Despite the high threshold at which it takes effect:

1. Provides a precautionary framework for serious racial hatred and xenophobia, should these occur in New Zealand in the future
2. Demonstrates the commitment of the legislature to vulnerable and disadvantaged groups and their protection from serious harm.
3. New Zealand has a strong international reputation for freedom of the press. One expression of this is the light-handed regulatory regime for broadcasting, the self-regulation of the print media, and the absence of specific regulatory constraints on the internet. This and other self-imposed restraints on the grounds of social responsibility lead many stakeholders to conclude New Zealand has it ‘about right’ in relation to striking a balance between freedom of expression and social responsibility and the protection of vulnerable and disadvantaged groups.

Where we need to do better - Kia piki ake te pai i roto i enei wahanga

• Few media and public opportunities exist for both informed stakeholders and members of the public to freely debate, in an informed and constructive manner, the modern tensions between the right to freedom of expression and social responsibility (for example, the impact of hate speech).
• While education about the right to freedom of expression is widely seen as important to protecting it while balancing the rights of vulnerable groups such as children, it is currently poorly coordinated, resourced, presented and disseminated.

Understanding would be improved by:

• Information in non-legal language about the importance of the BoRA
• Public education opportunities to develop strategies for exercising a right of reply
• Journalist and newsroom training aimed at improving news media coverage of Māori, Pacific peoples and ethnic minorities
• Greater inclusion in the primary and secondary curricula of media literacy opportunities
• Development of individual protection and responsibilities in relation to the internet
• Industry, Government and public commitment to the precautionary model in relation to television violence
• Continuing public education about the use of complaints mechanisms, including section 61 of the HRA, that relate to aspects of freedom of expression.

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