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Useful links re the Law Commission’s Digital Harms report

Posted on September 10, 2012

A summary of articles and other information about the Law Commissions Harmful Digital Communications report (PDF) and the associated Communications (New Media) Bill (PDF).

Please send any updates or other useful links and we'll incorporate them. Last updated: 10/9/2012.

Tech Liberty

Lawyer Steven Price

Lawyer John Edwards

Stephen Bell at Computerworld

Mike O'Donnell from Trademe at Stuff

David Farrar at Kiwiblog

Chris Barton at NZ Herald

Media 3

Richard Boock at Stuff

Netsafe

InternetNZ

Police Minister Judith Collins

What’s wrong with the Communications (New Media) Bill and can it be fixed?

Posted on September 2, 2012

The Law Commission's proposed Communications (New Media) Bill (PDF) is the result of their report on Harmful Digital Communications. They are proposing:

  • The creation of a new criminal offence that targets digital communications which are "grossly offensive or of an indecent, obscene or menacing character and which cause harm". Harm is said to include physical fear, humiliation, mental and emotional distress.
  • The establishment of an Agency (i.e. Netsafe) that will be able to assist and advise people suffering from unpleasant digital communications.
  • 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."
  • 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.
  • New requirements for NZ schools to work harder at stopping bullying of all kinds.

While sympathetic to the aims, we have some serious questions about the law and the thinking that lies behind it. This article discusses some of the problems that we see, talks about ways to resolve them and asks whether the problems are too great for some parts to be worth pursuing. We have arranged our arguments thematically and finish with our conclusions and recommendations.

Powers of the proposed Communications Tribunal

Posted on August 20, 2012

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').

Conclusion

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.

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.