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Law Commission – Harmful Digital Communications

Posted on August 14, 2012

The Law Commission has released Harmful Digital Communications (PDF) - the rushed report into the "adequacy of current sanctions and remedies". According to the summary they are proposing:

  1. The creation of a new criminal offence that targets digital communications which are "grossly offensive or of an indence, obscene or menacing character and which cause harm". Harm is said to include physical fear, humiliation, mental and emotional distress.
  2. The establishment of a Communications Tribunal that will be able to respond to complaints and provide "speedy, efficient and cheap access to remedies such as takeown orders and cease & desist notices." It is also envisioned that Netsafe would take a larger role in being a first port of call for people seeking help.
  3. Amendments to the Harassment Act, Human Rights Act, Privacy Act and Crimes Act to ensure that the provisions of these laws can be applied to digital communications.
  4. New requirements for NZ schools to work harder at stopping bullying of all kinds.

The last two of these seem innocuous so our response will concentrate on the first two.

New "digital communications" offence

While it is undoubtedly true that 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.

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. (The Commission acknowledges that this goes beyond the current bounds of NZ criminal and civil law.)

We are 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? As we say in our founding principles, "We believe that our civil liberties don't just disappear when using the internet."

It seems like that the new law will mainly be used as just another threat/weapon by people already engaged in internet battles.

All in all, we view this proposed new law with suspicion and fear that it will limit freedom of expression and cause more problems than it solves.

Establishment of a Communications Tribunal

It is always a concern when a new body with the power to censor is created, epecially when it is envisioned that it should be "speedy, efficient and cheap". When you realise that it's going to be tasked with censoring communications on the global internet, you have to wonder just what they were thinking.

Even reading the summary paper you get the feeling that the Law Commission doesn't think the Communications Tribunal is going to do much good, citing problems with identifying people and establishing jurisdiction overseas. Obviously it's only really going to have jurisdiction in New Zealand and this is just going to drive people's nastiness offshore.

Furthermore, the Tribunal will consist of one of a number of selected District Court judges, and they're going to have the power to order ISPs and web administrators to take down content. This can be significantly more difficult than it sounds and seems like a significant threat to freedom of expression, especially in those cases where the original author cannot be found therefore cannot defend themselves.

The Communications Tribunal seems to be a "at least we tried" measure, doomed to failure in all but a very narrow range of cases. We question whether it is worth doing at all.


We look forward to reading the full report and the proposed legislation and giving a fuller response when this is available.

About Thomas Beagle

Co-founder and spokesperson for Tech Liberty
Comments (6) Trackbacks (0)
  1. Is there going to be any consultation / RFC?

  2. They have to be smoking something. They can’t be serious!

    If they’re serious, then I can get a story about Colin Craig taken off all the news sites as well as the protect marriage websites TAKEN DOWN because they harm me (emotionally).

    That’s complete bullshit! There’s no way even though I disagree with what those crazy religious idiots are saying that I should be allowed to get what they’re saying down!

    That means that they (the religious crazies above) can then go can get say, gaynz.com taken taken down or any gay support websites or any websites criticizing their religions taken down!

  3. Yes we don’t want anything rushed with takedown and due process followed. Look with the Mars rover NASA got its own video on You Tube taken down http://arstechnica.com/tech-policy/2012/08/as-curiosity-touches-down-on-mars-video-is-taken-down-from-youtube/

  4. I have two main concerns:
    1. that the main proposal to cover expression which is extremely harmful seems like a high bar, but isn’t in a society which is already overly-sensitive – it will entice people to exaggerate the effects of online disagreements.
    2. that lowering the bar to cover communication which causes “serious distress and mental harm” will not be a “last resort” but will quickly be turned into the first one.
    The “mini-harassment court” will allow people to quasi-legalise their personality disputes. It will be like a Family Court for unrelated people who have even fewer reasons for incivility. It extends the arm of the law to cover people being emotionally crappy to each other and having strongly expressed disagreements, rather than requiring them to harden up or sort it out themselves.
    The Commission has recommended new laws that attempt to bind in law, and sanitise, the intractable complexities of disagreeing with each other. It won’t lead to civil conduct of disagreements, it will restrict expression of disagreements.

  5. Just want to give my thanks to Tech Liberty continuing to track and report on these kinds of issues. :-)

    I’ve blogged some views about this communications tribunal, most which is already covered here already:
    http://www.jethrocarr.com/2012/08/22/communications-tribunal-no-thanks/

    The involvement of NetSafe does concern me a bit, their organisation appears to be primarily focused around education of the educational sector and novice-average consumers, and I think the real threat there is that their organisation is going to have such a strong inherent bias of focused on stopping cyberbullying and protecting people, that they’re going blindly steamroll over our rights to free speech and due process.


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