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.