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The Law Commission says the government should introduce sweeping new measures to fight cyber-bullying – including anew Communications Tribunal that would have the power to name-and-shame online offenders, and force ISPs or websites to take down content.
It is also proposing a new electronic communications offence for those aged 14 and over.
Amendments to the Harassment Act, Human Rights Act, Privacy Act and Crimes Act will be required if Justice Minister Judith Collins accepts all of the Commission's recommendations.
Project leader Professor John Burrows says overseas jurisdictions, including the United Kingdom, Australia and some states in America were moving to criminalise communication causing serious distress and mental harm.
"We are recommending New Zealand follow this lead and criminalise 'grossly offensive' digital communications when they cause serious mental or emotional distress,” Prof Burrows says.
At the moment it is an offence to incite someone to suicide if they ultimately take their own life. Prof Burrows wants the act of incitement, regardless of its outcome, to be an offence.
In May, Ms Collins asked the Commission to fast-track work in the area. The move was in response to growing concerns from police, coroners and teachers about the impact of personal attacks made over the internet, the minister says.
Today, the Commission released its briefing paper for Ms Collins, “Harmful Digital Communications: The adequacy of the current sanctions and remedies” (RAW DATA: Read the full briefing; PDF).
ISPs must reveal online bully’s identity
In its briefing paper, the Commission says in the case of online remarks made by an online bully, its proposed Communications Tribunal “would have the power to require Internet Service Providers and other intermediaries to reveal the person’s identity.”
It goes on:
Once notified, anyone subject to an order would have the opportunity to defend the proposed action. In some egregious cases the Tribunal may decide to make the identity of an offender publicly known as a form of deterrence.
In cases where the author could not be located an ISP or web administrator may be required to remove or amend the offending content.
The Commission also wants mandatory anti-bullying and anti-cyberbullying programmes in schools.
Prof Burrows says the name-and-shame sanctions and take-down sanctions would be a last resort.
Not convinced measures necessary
However, they still rankle with pressure group Tech Liberty.
“While it is true the internet has allowed people to be nasty to each other on a wider scale than before, we are still not convinced that new laws are needed,” Tech Liberty founder and Council for Civil Liberties executive committee member Thomas Beagle says.
“This is especially true when the Commission believes that the law should forbid offensive speech that has only got as far as causing someone 'significant emotional distress', a rather low bar when adolescents or other excitable people are involved.”
Mr Beagle is also concerned “when it is proposed to make something illegal on the internet that wouldn't be illegal if it was published in some other way. Does it really make sense that the same message might be legal on a billboard in the middle of Auckland but illegal if it was then posted to the Trademe Forums? Our civil liberties don't just disappear when using the internet."
Doomed; threat to freedom of expression
The Tech Liberty founder calls the Law Commission's proposals a "significant threat to freedom of expression."
He says te Communications Tribunal - which would consist of one or more District Court judges - will have its work cut out given the complexities of issuing a take-down notice against an ISP, and the related problems of identifying an anonymous offender, and establishing jurisdiction over a website (many are hosted in the US, or elsewhere overseas."
These collective problems make the proposals doomed to failure, Mr Beagle maintains. (Read his full opinion piece here.)
The Law Commission recommends that "mediation, persuation and negotiation" be attempted through an "approved agency" before legal sanctions are applied.
It recommends that agency be Netsafe - the internet safety education non-profit backed by government and industry funding.
Netsafe CEO Martin Cocker said the review was about finding an internet age solution to an internet age problem.
“Jurisdictional and technological challenges mean that aggressive enforcement of many cyber offences is often costly and ineffective," Mr Cocker said.
"A greater number of victims of harmful digital communications will access meaningful resolutions through a system that can resolve issues quickly and cheaply.”
The report said law changes would not work in isolation. Community education and the cooperation IT industry was crucial if there was to be any meaningful change, Mr Cocker said.
Labour ICT spokeswoman Clare Curran said her party was still assessing the report.
"We are fully supportive of the work Netsafe does, and are committed to finding workable solutions to help protect people online, " Ms Curran said.
“But at the same time, we must guard against heavy-handed attempts at online regulation. Historically, the internet has proved hard to control through legislation and we must proceed carefully."
Late last night, the Tech Liberty website revealed key details of the Law Commission's report, which was embargoed until 6am this morning.
"Someone leaked it to us," Mr Beagle said after being challenged by a rep from another media outlet.
"We're happy to publish any other leaks that we find credible."