Scotsman Mark Meechan trained his girlfriend’s pug to respond with a Nazi salute to phrases such as “Heil Hitler”, and “gas the Jews”. He filmed the process of training the dog and posted it on YouTube — as a joke. The clip received over three million views. Meechan was convicted on a charge of being “grossly offensive” under s 127 the UK Communications Act 2003. He is facing a maximum penalty of six months imprisonment.

At trial, Sheriff O’Carroll found that the video was grossly offensive as it was “anti-Semitic and racist in nature” and was aggravated by religious prejudice. Mr Meechan says he only intended for the video to be circulated to a few friends, in order to annoy his girlfriend.

The issue here is a fundamental one: “how should freedom of speech be reconciled with the prohibition on hate speech?”

The right to freedom of expression and thought is one of the most important and fundamental rights. It is a cornerstone of modern society. But it comes with a very important corollary. Critically, if you believe in the right of freedom of speech than you must also believe in a person’s right to say something that is “grossly offensive”. You can’t have one without the other.

However, section 127 of the UK Communications Act appears to limit the right of freedom of expression.

At trial, the prosecution submitted that context and intention were irrelevant in assessing the offensiveness of a Nazi pug. The Judge agreed. The case deals with humour and offence — both concepts which are subjective and which will change over time.

In the UK there is other legislation which specifically targets hate speech. But could a similar case take place in New Zealand?

Currently in NZ we do not have specific hate speech legislation as such, although we do have the Harmful Digital Communications Act 2015. This Act covers communication where there is an identifiable victim but would not cover hate speech. Section 22 requires the following elements of an offence:

a) The person posting a digital communication with the intention that it cause harm to the victim; and

b) posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and

c) posting the communication causes harm to the victim.

This legislation is intended to cover extreme scenarios such as revenge porn, not satire. Crucially, the Act requires the intention by the person posting it to cause harm to the victim.

In this case of the Nazi Pug, there is no identifiable specific victim. This means that there is no “ordinary reasonable person” who can be considered as being in the position of the victim, and also that no actual harm occurred.

The right to freedom of speech and expression is one of the most important and fundamental rights in New Zealand society, but it is not an absolute right. Section 14 of the New Zealand Bill of Rights Act provides the right to free speech and expression. On the other hand, section 61 of the Human Rights Act deals with behaviour involving publishing threatening, abusive or insulting words that would excite hostility to any group of persons on the basis of colour, race or ethnic origins.

While some may see this clip as having satirical value, the clip may not be to everyone’s taste.

Let’s ask the lawyers’ question: “Where do you draw the line?” Nazis have long been the target of comedian’s sketches. Take Monty Python’s Ministry of Silly Walks, or the fictional musical Springtime for Hitler, as depicted in Mel Brooks’ “The Producers” for example.

Context is essential. The intention of the person posting the information and the context surrounding the posting are highly relevant — not just simply the words that they say, or the specific act of communication. In the present case, there was no racist intent. Indeed, if any anything the clip should be considered anti-Nazi.

Bruce Hall, Thomas Harré and Craig Tuck

LawAid International