JOHN EDWARDS: Cyber-bullying bill lacks protection for personal expression
This has been reported as the "cyber-bullying" report, and has generated a bit of commentary on the desirability of legislating against hurtful speech.
The Law Commission has drafted a Bill for the Government called the Communications (New Media) Bill. At 39 clauses, its pretty short, and nearly half of those sections will be split out to become Privacy Act, Harassment Act, Summary Offences Act, Crimes Act and Human Rights Amendment Bills.
Yes the idea of prohibiting and punishing speech which causes emotional distress is there, and critics are right to be wary of such a vague intrusion into online discourse.
But there hasn't been much discussion of the mechanics. There's the "approved agency" (which looks very much like the "insert "NetSafe" here" clause). When designated, the approved agency will help resolve problems and disputes, liaise with schools and ISPs. This might include requesting take-downs of offensive material. Ultimately they can refer matters to the tribunal.
The tribunal will be chaired by a District Court Judge, and make any one or more of the following orders:
(a) an order requiring that material specified in the order be taken down from any electronic media.
(b) an order to cease publishing the same, or substantially similar, communications in the future.
(c) an order not to encourage any other person to engage in similar communications with the complainant.
(d) a declaration that a communication breaches a communication principle.
(e) an order requiring that a factually incorrect statement in a communication be corrected.
(f) an order that the complainant be given a right of reply.
(g) an order to apologise to the complainant.
(h) an order requiring that the author of a particular communication be identified.
Those orders can be made against the defendant, and ISP, a "website host", or any other person.
In carrying out its functions the agency and tribunal will have to take into account 10 "Communication principles". What are these?
A communication should not disclose sensitive personal facts about an individual.
A communication should not be threatening, intimidating, or menacing.
A communication should not be grossly offensive to a reasonable person in the complainant’s position.
A communication should not be indecent or obscene.
A communication should not be part of a pattern of conduct that constitutes harassment.
A communication should not make a false allegation.
A communication should not contain a matter that is published in breach of confidence.
A communication should not incite or encourage anyone to send a message to a person with the intention of causing that person harm.
A communication should not incite or encourage another person to commit suicide.
A communication should not denigrate a person by reason of his or her colour, race, ethnic or national origins, religion, ethical belief, gender, sexual orientation, or disability.
I was pretty surprised that they did not begin with a positive statement of freedom of expression, as guaranteed under the NZ Bill of Rights Act. Sure, later in the BIll it says that the Tribunal needs to take freedom of expression into account, but isn't it a bit strange to have 10 completely negative principles? Every one of them tells of something a communication "should not" do.
Lets look at each one.
Principle 1 is not new, in that it repeats the fundamental principle in the Privacy Act. But it goes way further. First, the Privacy Act does not apply to the news media "in relation to their news gathering and dissemination activities". Secondly, later on the Bill significantly reduces the Privacy Act exemption from information held in ones personal, domestic or family capacity. Thirdly, the Bill also later waters down the "publicly available publication" exemption from the prohibition on using or disclosing personal information. Under current law, if I disclose personal information contained in a publicly available publication, it cannot be a breach of the Privacy Act. Under the Bill, you could be liable for disclosing material from a publicly available publication unless you can prove that "in the circumstances of the case it would not be unfair or unreasonable to use the information".
It is hard to argue against Principle 2's prohibition against threatening intimidating or menancing communications. That proposal simply updates existing law to reach modern communications. But aren't those offences that are the domain of the Police?
Principle 3's subjective "grossly offensive" test could force a rethink of Hell Pizza's marketing strategy, but what else might it catch?
Principle 4's prohibition on indecent or obscene communications simply aligns communications with a range of other publications, and does not really materially change the landscape.
Likewise, Principle 5 ensures that harassing communications are subject to the same sanctions as other forms of harassment.
Principle 6 pretty much reprises defamation (without the troublesome need to prove the subject's reputation or standing in the community has been harmed as a result).
Principle 7 codifies the common law against breach of confidence, and might in fact afford a more accessible remedy than the court proceedings now required.
Principle 8 extends the prohibition against causing "harm" to those who incite another to send a harmful message. It requires an intention to cause on the part of the inciter to cause the harm to the third party, so is quite a high threshold, and therefore not necessarily objectionable. However what does it mean that this is a "principle". To me, a prohibition against an intentional act, is either an offence, or it is not. It seems an odd construction.
Few would argue against Principle 9's prohibition against incitement to suicide. But again, should or need something so obviously criminal be described as a mere "principle"? Should such complaints about content be the subejct of "resolution", and subjected to the jurisdiction of a tribunal, or referred directly to the Police?
Principle 10 too, brings into the realm of "communications" the restrictions already present in the Human Rights Act.
The Tribunal will be able to make rulings where it finds these principles have been breached, and that the breach has caused or is likely to cause significant harm.
Lots more analysis will be required of how these principles are enforced against ISPs website maintainers and bloggers however I suspect KiwiBlog, WhaleOil, and others whose online presence generates content and comments which sometimes crosses the line from robust might well be pondering the cost of moderating and monitoring, to avoid the cost of interventions by the Tribunal and "approved agency", and wondering whether this might have a chilling effect on their and their audience's freedom of speech.
The Government will respond to the Law Commission's recommendations, and then we can all tell the Select Committee whether they've got the balance right.
Based on experience from a range of other complaint based organisations, my pick would be that the "approved agency" and Tribunal will have an enormous caseload, very quickly.
And the complainants will include the group intended by the policy makers, the vulnerable and their families and advocates.
But they will have to fight their way past the axe grinders, the lobby groups and political interests presented with a new, cheap, and readily accessible forum for advancing their grievances and personal hobby horses.
John Edwards is a Wellington-based barrister. His specialities include information and privacy law. More: www.johnedwards.co.nz