We should follow other countries’ lead on hate speech by changing 18C

Section 18C goes further than the laws of many other democracies by applying to ‘offensive’ and ‘insulting’ speech. AAP/Lukas Coch

The Parliamentary Joint Committee on Human Rights has held the first public hearing of its inquiry into Section 18C of the Racial Discrimination Act: the law that makes it unlawful to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity.

Although there has been a great deal of debate about 18C, surprisingly little has been said about how other democratic countries deal with hate speech. Looking at the laws of other democracies can help us better understand our own – what is unusual, what works well, and what may need to be changed.

Most democracies recognise that hate speech laws are important to protect the dignity of minority groups and maintain a successful multicultural society. But 18C also goes further by applying to “offensive” and “insulting” speech.

Changing these words to “vilify”, as Human Rights Commission head Gillian Triggs has suggested, would make 18C clearer and bring it more in line with the laws of other democracies. It would also be a minor change that would allow 18C to continue its important work in curbing hateful acts.

Lessons from abroad

Among other democracies, the US is unusual in allowing for very limited restrictions on hate speech. The First Amendment to the US Constitution says:

Congress shall make no law … abridging the freedom of speech.

The US Supreme Court has held that the law may prohibit “fighting words” – or words that are likely to incite “imminent lawless action” – but can’t go further than that. This standard is far less restrictive of free expression than 18C.

The Supreme Court has also held that even where the law prohibits “fighting words”, it cannot discriminate between different viewpoints by protecting particular groups against “imminent lawless action”.

So, the law cannot – for example – prohibit racist fighting words without also prohibiting non-racist fighting words; either all fighting words should be prohibited or none at all. The state must remain neutral between competing ideas, even if some of these ideas are racist.

Applying this approach, the US Supreme Court overturned the conviction of a Klu Klux Klan member who had called for the return of African-Americans to Africa and Jews to Israel, and the conviction of a group of teenagers who had placed a burning cross in the yard of an African-American family.

However, very few democracies have followed the lead of the US on this issue. Most democracies recognise that the state can take sides in the contest of ideas and promote the values of respect and tolerance through hate speech laws.

In Canada, for example, the law prohibits public statements that wilfully promote hatred towards identifiable groups – a standard that is also less restrictive of free expression than 18C.

Canada’s Supreme Court upheld this law in a case where a school teacher had promoted hatred of Jews in his lessons. The court said the law’s purpose was to:

… bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons.

Likewise, in the UK the law prohibits “threatening, abusive, or insulting” words or behaviour. The reference to “insulting” words might sound like 18C, but the law also says the person must intend to “stir up racial hatred”, or it must be likely that “racial hatred” will be “stirred up”. These words make the law less restrictive of free expression than 18C.

Germany goes further than many democracies in limiting free expression by, for example, prohibiting the display of Nazi flags and badges. But even the German hate speech law does not apply to expression that is merely offensive. Instead, it refers to attacks on the:

… human dignity of others by insulting, maliciously degrading or defaming parts of the population …

Is 18C too broad?

From this snapshot, it is clear 18C is an unusual provision. Most hate speech laws do not apply to “offensive” or even “insulting” expression.

But 18C is also unusual in dealing with hate speech through the civil law rather than the criminal law. This means someone who breaches the law may have to apologise or pay damages, but doesn’t commit a crime.

In contrast, the laws in comparable countries outlined above are criminal laws. There are also exceptions to 18C, in Section 18D.

The reason why hate speech laws don’t normally apply to “offensive” or even “insulting” speech is because democracies recognise that offence and insult are sometimes part of political debate. In a democracy, ideas should be open to challenge, even deeply-held ideas on sensitive issues. We should be concerned about laws that inhibit frank discussion, whether they are civil or criminal in nature.

Australia’s Federal Court has recognised this by interpreting 18C so that it applies only to:

… profound and serious effects, not be likened to mere slights.

This seems to strike to a good balance between free expression and the protection of minorities.

Some might say the Federal Court’s interpretation of 18C means that no change is necessary. But the law should be clear, especially when it is as controversial as 18C.

A minor change, substituting “vilify” for “offend” and “insult”, would bring 18C more in line with the laws in other democracies without undermining its effectiveness.