List of Relevant Laws Impacting Free Speech (New Zealand) (2015-2022)
There is little direct regulation of public disinformation outside regulation of broadcast media through Standards imposed under the Broadcasting Act 1989 (https://www.legislation.govt.nz/act/public/1989/0025/latest/DLM155365.html), and enforced by the Broadcasting Standards Authority (https://www.bsa.govt.nz/).
The Standards (https://www.bsa.govt.nz/broadcasting-standards/broadcasting-code-book-2022/the-codebook/) impose civil obligations on radio and television media around accuracy and fairness in news reporting. These are enforceable through a complaints mechanism to the Government-appointed Broadcasting Standards Authority, which has the power to direct corrections or order financial penalties. Non-broadcast media are covered only by voluntary industry organisations, largely the New Zealand Media Council. (https://www.mediacouncil.org.nz/) The Broadcasting Standards Authority also has the power to rule on the accuracy of election advertisements that air on radio and television. (https://www.bsa.govt.nz/broadcasting-standards/election-code/) Other advertising is only covered by a voluntary industry regulator, the Advertising Standards Authority. (https://www.asa.co.nz/)
A criminal offence added to the Electoral Act 1993 in 2002 (https://www.legislation.govt.nz/act/public/1993/0087/latest/DLM310074.html) prohibits publishing false information with the intention of influencing voters at a parliamentary election, but only on election day itself, and during the two days preceding election day. The law was amended in 2017 (https://www.legislation.govt.nz/act/public/2017/0009/latest/DLM6963343.html) to confirm that it only applies to material first published during that short window, not to information published before then but still publicly available. There have been no known prosecutions.
In New Zealand, defamation is a civil only process, largely governed by case law. There have been legislative refinements of aspects of the Defamation Act 1992 (https://www.legislation.govt.nz/act/public/1992/0105/latest/DLM280687.html), but Courts have the primary role in developing new defences, and adapting defamation following the enactment of the New Zealand Bill of Rights Act 1990 (https://legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html) and its guarantee of freedom of expression.
The cost of both bringing and defending defamation proceedings means that the law is not used that frequently, but the threat of being subject to defamation proceedings is a major concern for news media when considering publishing allegations about individuals with the financial resources to pursue court action. New Zealand lacks any form of anti-SLAPP law which would protect individuals against lawsuits commenced with the aim of suppressing public criticism.
New Zealand Courts have followed other common law jurisdictions and adopted various privacy torts, including one prohibiting publishing private information about individuals, where the publication of the information would be offensive to the ordinary person. There have been relatively few claims in the approximately 20 years since the Court first recognised the ability to bring a claim, but it is clear that public interest in publication is a defence.
Regulation of online content
The Films Videos and Publications Classification Act 1993 (https://legislation.govt.nz/act/public/1993/0094/latest/DLM312895.html) creates the Chief Censor as head of the Office of Film and Literature Classification which has the power to ban or age restrict content. Historically responsible for the rating of films and videos, its role also covers all online content, and it has a large role in classifying images and video of child sexual exploitation for prosecution. Concerns over imagery of child sexual exploitation have seen maximum sentences for possession of objectionable (banned) publications increase from fine-only offences when the law was passed to 10 years’ imprisonment. The offences do not distinguish between images of child sexual exploitation and other banned images. The law is also used to criminalise terrorist-related content, including video of terrorist attacks and support for terrorism.
The Harmful Digital Communications Act 2015 (https://legislation.govt.nz/act/public/2015/0063/latest/DLM5711810.html) regulates targeted online speech, allowing people to obtain civil relief, including financial compensation, the publication of corrections, and take-down orders to remove online content that breach communication principles set out in the legislation (https://legislation.govt.nz/act/public/2015/0063/latest/DLM5711838.html). In applying these principles, Courts are required to act consistently with freedom of expression.
The legislation also creates a criminal offence of intentionally causing serious emotional distress through electronic publication, which has been most widely applied to prosecute non-consensual publication of consensually obtained intimate images (so-called revenge porn), but which is not limited to this. Amendments in 2002 (https://legislation.govt.nz/act/public/2022/0003/latest/LMS368115.html) sought to make revenge porn easier to prosecute.
Incitement of Hatred
The Human Rights Act 1993 (https://legislation.govt.nz/act/public/1993/0082/latest/DLM304212.html) provides for both civil and criminal consequences for hate speech. Although wide in their terms, Courts have limited their application to only a very limited category of the worst speech. Both the criminal offence and civil processes only cover racial and ethnic disharmony, and not other forms of incitement (in particular, they do not cover incitement on the basis of religion). Both are rarely used, with one successful prosecution for the criminal offence since it was created (and one further unsuccessful prosecution under predecessor legislation).
Broader hate speech is more frequently prosecuted under general laws around offensive and insulting language including the Summary Offences Act 1981 (https://legislation.govt.nz/act/public/1981/0113/latest/DLM53348.html), the scope of which has been limited to an extent by Court decisions.
There have been several proposals to amend hate speech laws, but none have resulted in change.
Regulation of Election-Related Speech
The Electoral Act 1993 (https://legislation.govt.nz/act/public/1993/0087/latest/DLM307519.html) imposes spending limits on election-related advertising during the three months preceding parliamentary elections. These apply to candidates and parties contesting the election, and also to others seeking to influence votes. Similar, but slightly less restrictive rules also apply to local elections under the Local Electoral Act 2001 (https://legislation.govt.nz/act/public/2001/0035/latest/DLM93301.html).
The Broadcasting Act 1989 (https://legislation.govt.nz/act/public/1989/0025/latest/DLM158148.html) imposes additional restrictions on radio and television advertising during Parliamentary elections. Courts have limited the effect of some of the more restrictive aspects of this. In 2015 and 2016, Courts ruled that “Planet Key” (a satirical song directed at then Prime Minister John Key) was not banned (https://www.rnz.co.nz/news/political/316128/ruling-against-‘planet-key’-ban-upheld) as an “election programme” under the Broadcasting Act.
Many restrictive aspects of the Broadcasting Act remain: it provides substantial sums of public money to established political parties to purchase air time, while banning less established parties from spending their own money to achieve the same levels of airtime.
Reporting Around Suicide
The Coroners Act 2006 (https://www.legislation.govt.nz/act/public/2006/0038/latest/whole.html) creates a criminal offence of describing a death a suicide or reporting the manner of death where the death may have been self-inflicted without prior permission from a Coroner. Following amendments in 2016, (https://www.legislation.govt.nz/act/public/2016/0029/latest/DLM6223504.html) deaths may now be described as a “suspected suicide” without permission, but descriptions of the manner of such a death is still prohibited. No-one has been prosecuted under this offence, but the process for obtaining permission, even where the manner of death is clearly a matter of public interest (one notable example was an apparent “suicide-by-cop”) can be fraught and has occasionally been lengthy. Both news media and authorities such as Police ignore the restriction when discussing relevant cases in the public interest.
The Criminal Procedure Act 2011 (https://legislation.govt.nz/act/public/2011/0081/latest/DLM3359962.html) provides a range of powers to Courts to restrict publication around criminal trials, including banning the publication of names of criminal defendants and discussion of evidence, although this is not exercised in most cases (~92% of cases have no suppression at all, and when there is suppression of names or facts of a case, it is usually only temporary) (https://www.justice.govt.nz/assets/UgEda1-Justice-Statistics-data-tables-notes-and-trends-jun2022-v1.0.pdf). Young people before the Courts (under 18) usually have automatic suppression, as do a range of others involved, including victims of certain crimes such as sexual offending. Victims may apply to have name suppression revoked if or once they become adults to allow their names to be published, but this is not automatic, and some victims have been refused permission to have their own name suppression lifted.
Highly restrictive rules apply to reporting in some other contexts, including under the Family Court Act 1980 (https://legislation.govt.nz/act/public/1980/0161/latest/DLM42254.html) and the Juries Act 1981 (https://legislation.govt.nz/act/public/1981/0023/latest/DLM44099.html).
The Contempt of Court Act 2019 (https://legislation.govt.nz/act/public/2019/0044/latest/LMS238628.html) restricts publication of information which may undermine a fair trial, and permits Courts to order websites, including news media, to take down information to preserve trial rights. It also provides a criminal offence of publishing false statements about judges and courts in order to undermine public confidence in the judiciary.