The Law Commission has proposed the creation of a Communications Tribunal that will be able to respond to complaints about internet speech and provide "speedy, efficient and cheap access to remedies such as takeown orders and cease & desist notices." The Tribunal would be made up of one of a number of selected District Court judges, with the optional assistance of a technical expert where required.
We were curious to see how what powers the proposed Bill would give the Communications Tribunal and how that would compare to the other tribunals mentioned in the report.
A future article will discuss the types of complaints that the Tribunal will deal with and the principles they are to use when doing so.
What powers would this Communications Tribunal have?
Once a complaint has been made and accepted by the Tribunal, they have certain investigatory powers:
- require any person to provide any document, information or things
- require any person (including the defendant) to give evidence.
Once the Tribunal has made the decision ("...with as little formality and technicality, and as speedily as is permitted...") it can order one or more of the following:
- remove any material from any online media
- forbid anyone from republishing or encouraging others to republish the same or similar material
- demand a correction, an apology or the right of reply
- publicly identify the author of a particular communication.
If the demand to produce/give evidence or any of these orders are disobeyed it would be punishable by up to 3 months jail and/or a $5000 fine.
Compared to other tribunals
In the Ministerial Briefing, they compare the Communications Tribunal to other tribunals such as the Tenancy Tribunal, Human Rights Review Tribunal and the Disputes Tribunal.
Firstly, we note that there is a major difference between the Tenancy and Dispute Tribunals (where the tribunal is arbitrating an existing agreement between two parties) and the Communications and Human Rights Review Tribunals where there is no pre-existing agreement between the people involved. This means that we think the Human Rights Review Tribunal is a better subject for comparison.
Secondly, disobeying any orders from the other tribunals does not result in a jail sentence but rather fines of between $1500 and $5000. The ability to back its decisions with a threatened 3 month jail sentence is is a major difference in the powers of the Communications Tribunal.
Thirdly, the laws for the other tribunals are much more detailed as to how they are to perform their work. There are procedures, clarifications of who can appear and when, oath-taking, rights of appearance and notification, etc, etc. The proposed Bill is either unfinished or the Law Commission really does seem to want hearings to be a quick and dirty affair, something that may not be appropriate when talking about issues that have important Bill of Rights implications.
Fourthly, the other tribunals do have some powers to order evidence and testimony - but legally privileged information is protected and the Human Rights Review Tribunal is subject to the Evidence Act.
Is there any defence/appeal?
There is no requirement for the defendant to be heard or to have a chance to put their case forward. (Lawyer John Edwards counters this by saying that the Tribunal's requirement to comply with the principles of natural justice would require that affected parties be given an opportunity to be heard.)
The complainant can appeal a decision to an Appeal Tribunal (made up of two District Court judges).
The defendant has no opportunity to appeal any decision, nor do other possible targets of an order (the ISP, webhost or 'any other person').
The Communications Tribunal would have very broad powers over internet content. Breaching one of their orders will result in a serious fine of up to $5000 or jail time of up to three months. This contrasts with the report stating that it would be "protective, rather than punitive" and would "not have powers to impose criminal sanctions". If you refuse to follow the orders (possibly because you believe they are unfair, breach your freedom of expression, or because it's technically impossible) you'll find that punitive criminal sanctions quickly follow.
The Law Commission repeatedly mentions that the Tribunal should be "speedy" and "efficient" with "little formality". The proposed Bill is very light on detail when it comes to the nitty gritty of running a Tribunal - presumably with the thought that this would just slow them down. They seem to be of the view that the Tribunal must react in "internet time" without quite realising that a result in days or even hours probably won't be good enough to avoid harm to the complainant.
The cases coming before the Tribunal are not always going to be easy, with internet flamewars and inter-clique battles typically leading to bad behaviour from all of the parties that will need to be unpicked properly to make a fair decision.
This lack of process and protection for the rights of the defendant to a fair hearing (including the right to silence) will surely lead to bad decisions that fail to take into account the principles of natural justice.
Moreover, the Tribunal is dealing with a very serious matter, the right to freedom of expression as guaranteed by the NZ Bill of Rights. This is not some petty dispute over who pays for the repairs to a car or whether the oven was cleaned properly on vacating a flat. The level of formality and respect to the rights of the participants is very different between the Communications Tribunal and the more directly comparable Human Rights Review Tribunal.
We believe that, even before you consider the grounds for complaining to the Communications Tribunal and the principles it will follow to make decisions, there are some serious problems with the Tribunal as conceived by the Law Commission. The proposed remedies are too expansive, the penalties for disobeying too harsh and the unseemly haste that will go into making a decision is not appropriate.
This post has been corrected on 22/8/2012 to clarify that only the complainant, not the defendant, can appeal an order of the Tribunal.