Law Commission wants name-and-shame, take-down measures against cyberbullies

Justice Minister Judith Collins

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.)

Netsafe role
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."

Embargo breach
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."

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15 Comments & Questions

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Typical hi brow and bureacrats reaction and recommendations that would best be ignored. Bullying is as old as man and the means to control, restrict and penalise are equally basic and commonsense.
The ability of those in any authority be they police, parents, teachers and bosses to deal with bullying in any environment has been hamstrung by very PC rules that are now so common. A bit of back to basics is all that is needed.

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Gawd what is this country coming to? What a bunch of silly, namby-pamby proposals. Policing random meaningless b*tchslaps on the Internet will be expensive and ultimately futile ... like regulating "carbon" in the atmosphere.

There are many more layers to the Internet than trumped up bureaucrats like the Law Commission and Judith 'bullygirl?" Collins will ever be able to fathom .... and they want to attempt to regulate it? Recipe for disaster of costly unintended consequences, petty abuse and general chilling economic effect of the one bright spot in the economy. I thought National was all for personal responsibility and free markets? What's with all this velvet-glove facism stuff from Collins?

Leave the damned Internet alone! If you don't like what you read, stop reading it! Better still turned the computer off, no-one is forcing you to use it ... last time I looked. If you can't understand it, do not regulate it. Idiots.

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Everybody has a right to use the internet, and everybody should be able to use it free from attacks by cowards.
Every bully is a stinking yellow coward, the solution is, jump on them, HARD.

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We don't need new nanny state laws for this. We already have laws which cover harrasssment, defamation and slander. That should be enough. It shouldn't be an offence just to offend someone. It's called freedom of speech and we should fight to keep that. This would be overkill. You should be ashamed Nanny Key if you allow this. No-one condones bullying but it's not a criminal offence unless someone is physically hurt or defamed. PC gone mad. No new law! Professor Burrows should be ashamed too and know better.

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Just make sure the law also includes:

A name and shame list of those who mistakenly name and shame others;

A name and shame list of those who falsely accuse someone of cyberbullying;

I'm sure we can come up with a few more name and shame lists like the people who proposed this idea.

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As ever the Law Commission recommends increased bureaucracy and more criminalisation.

It is high time we had an effective counterweight to it from the private sector.

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Law Commission? Who the hell are they? Some outfit trolling about to find new business to create for lawyers.

So glad that at a time when NZ is fast spiraling downwards out of the OECD that the government has time for b.s like this together with gay marriage and MMP tinkering.

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Interesting that the UN also wants to control the web/net and censor anything deemed too individualistic...anti-collective...non PC...factual... from their hoped for Hive Mind:

http://www.bbc.com/news/technology-19106420

Another anti-freedom move by the sheeple-wranglers to ensure that facts don't get in the way of a soft-totalitarian gambit...all gussied up as an anti-bullying measure. Pure Hegelian dialectical incrementalism...

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If someone is a $^%&$*&^% %$^&%$&^$#, surely I can tell them they are. At what point is it debate versus bullying? And the last people who should get to decide this are our police and politicians.

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I am starting to feel like I am living in Russia or China

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Yes defamation and harassment law may be able to help people in these situations but the reality is that going to court over these kinds of issues is not an option for the kinds of people who this proposal is targeted. Of course having a tribunal such as this does create risks of abuse of its procedures but as long as their power was relatively constrained I think the benefits could outweigh the negatives.

Steven price has some interesting opinions on this issue http://www.nzlawyermagazine.co.nz/CurrentIssue/Issue184/184C3/tabid/4298...

Judge Harvey (Who is an expert on internet law) has also done some commentary on Steven prices proposals.

http://theitcountreyjustice.wordpress.com/2012/06/05/dealing-with-speech...

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For harrassment all it takes is a complaint to the police. Doesn't cost. Threats of harm etc are already offences, so again complain to police. I think what this commission is trying to do is make it an offence to offend someone. The hate speech type thing. Is the thin end of the wedge for freedom of speech. USe the laws we already have. Schools have rules against bullying already as do workplaces. This is just another gravy train for the lawyers and do-goooder sticky beaks in our society who think they know what is best for everyone else.

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You don't really know how the Inter-tubes work do you ... I mean really truly?

There's a free wheeling anything you want drugs bazaar http://en.wikipedia.org/wiki/Silk_Road and crypto-currency http://bitcoin.org/ that bureaucrats like the Law commission are already well "in-over-their-heads" ... you really think it will be cost effective policing to stop some hacker punks from putting up offensive material?

It's height of arrogance (and border-line insane imo) thinking you can regulate something you don't understand. Go ask the people who designed TOR
https://www.torproject.org/
if they think this could ever work cost effectively. Also smells a tad like jobs-worth govt IT and contract lawyers making work for the make-works.

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Typical National government nanny state

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The Law Commission is not the Government.

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