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I guarantee cyberbullying bill will be abused - Part Two

The last line in Minister Collins’ press release on the Harmful Digital Communications (HDC) Bill caught my eye, “It also future-proofs the laws against technological advances, to ensure they remain relevant.” Given the inability of anyone to predict how online technologies will change in the future, looking at if and how the HDC Bill achieves this ambitious goal should be of interest.
The civil and criminal laws being future-proofed by the HDC Bill are the Crimes Act, Harassment Act, Human Rights Act, and Privacy Act.
(This is my second look at the HDC Bill with more to come. In the first one, I welcomed safe harbours for online content hosts but hopefully showed how it will lead to massive abuse by people. I am generally supportive of the need for a new law as a package of measures to reduce harm from digital communications to young adults but believe there are some flaws in the HDC Bill that need to be addressed.)
Future-proofing provisions
As far as I can make out, there are no explicit provisions in the HDC Bill that provide future-proofing of the civil and criminal laws being amended. A search of the Bill for the words “future” and “future proof” doesn’t find anything. A similar search on the Ministry of Justice’s disclosure statement and regulatory impact statement yielded no results.
Reading the words used to amend the four laws also doesn’t demonstrate any way these laws are being future-proofed against technology advances. “Updates” or “consequential amendments” to these laws to reflect Government policy seems to be a more accurate description.
At best, it may be argued that future-proofing arises from using general terms such as “electronic communications” rather than referring to any specific technologies.
Very real issue
The question of how the four laws being amended and the HDC Bill itself are future-proofed is a very real issue.
It’s not so much about looking at claims in a press release but the recognition that making laws that remain relevant and appropriate in the face of rapidly changing technologies is necessary but challenging. Very few laws, with the principles-based approach of the Privacy Act being a notable exception, have successfully managed this.
Consider what happened with copyright infringement online. The initial model was centralised file storage of infringing material. Infringing material could be uploaded once and then distributed globally as perfect copies at near zero cost.
Laws focussed on preventing access to allegedly infringing material by giving the “victims” (copyright owners) a quick and easy way to get the material removed by the file hosting service. Safe harbour provisions for the latter were also enacted.
Things changed rapidly to a peer-to-peer distribution model, aided by the efficiency and decentralised nature of the BitTorrent protocol. Now there was no centralised storage entity which could be forced to take down material. More laws then had to be made, such as our 3 strikes law, directed at penalising people rather than removing access to material.
Something similar is happening with social media and digital communications.
The WhatsApp test
The popularity of social communication apps like WhatsApp leaves little doubt that peer-to-peer social networks are a definite technology trend. These apps allow people to use their smartphones to quickly and easily communicate with closed social groups.
Already, in several Asian countries the likes of KakaoTalk (South Korea), Weixin/WeChat (China) and LINE (Japan) have attracted tens or hundreds of millions of users. Interest in these and others in the US is also rapidly expanding.
An article in the Guardian Teenagers say goodbye to Facebook and hello to messenger apps is a great explanation of what’s happening. It notes that Facebook itself said it was already seeing a “decrease in daily users, specifically among teens” as they shift out from where their parents now hang out. Importantly, these messaging apps are becoming the new social networks.
Inevitably, people are abusing these new social networks and consequent harm follows. For example, ten boys were recently arrested for abuse via Snapchat. Both young adults and parents need to surface the bullying due to the closed nature of such social groups. This is similar to but far harder than more familiar peer-to-peer communications that the HDC Bill targets such as text messaging and emails.
Against this, the new civil enforcement regime in the HDC Bill (Approved Agency and District Court) is heavily biased towards the centralised model of stored abusive material such as blogs and Facebook. Undoubtedly this is where the majority of the harm is currently, as exemplified by the Roast Busters case.
Peer-to-peer digital communications, without a centralised storage point, make the relatively straightforward remedy of take downs irrelevant. Harm is harder to detect, harder to address, and harder to prevent. Far more work is required in each case and will typically require hard discussions with several people. It also increases the chances that young adults are going to be hauled in front of the District Courts in increasing numbers.
This is a stark reminder that harm is caused by people and their actions. The law is important, and a new law welcome, but the actual harm minimisation is going to take far more than simply shooting off take down notices.
Making laws that remain relevant and appropriate in the face of rapidly changing technologies is necessary but challenging. The claim that the four laws being amended by the HDC Bill, as well as the HDC Bill itself, is future-proofed against technology changes is suspect.
Peer-to-peer digital communications, without a centralised storage point, make the relatively straightforward remedy of take downs irrelevant. The new civil enforcement regime in the HDC Bill is heavily biased towards this model and is likely to be heavily challenged in detection, addressing, and preventing harm in emerging, new social networks.
Former State Services Commission strategy & innovation manager and InternetNZ chief executive Vikram Kumar is CEO of Mega. He posts at Internet Ganesha.