Tech Liberty NZ Defending civil liberties in the digital age

Submission: Harmful Digital Communications Bill

Posted on February 21, 2014

Text of the Tech Liberty submission to the Justice and Electoral Select Committee concerning the Harmful Digital Communications Bill. (Or download PDF of original version with footnotes.)

Summary

We believe that this Bill is based on false premises about the nature of freedom of expression and the differences between digital and non-digital speech. We see the Bill as being a well-meaning but misguided threat to the civil liberties of New Zealanders. We fear that the Bill will be ineffective in too many cases where it might be needed most, while being too effective in the cases which are most problematic to civil liberties.

We support the establishment of an agency to assist those harmed by harmful communications and believe that this will go a long way to resolving the types of situations that can be resolved.

We believe that the court proceedings are unfair and unlikely to be of much use. We support the discretion and guidelines given to the court in making a judgement, but believe that the procedures of the court need to better take into account the requirements for a fair trial.

The safe harbour provisions for online content hosts are unreasonable. While online content hosts do need protection from liability, the suggested mechanism amounts to a way that any person can get material taken down that they don’t like for any trivial reason. This section needs to be completely rethought in the context of overseas experiences to ensure that freedom of expression is properly protected.

The new offence of causing harm is poorly conceived and criminalises many communications that are of value to society. If not removed in its entirety, defences and an overriding Bill of Rights veto should be added.

We have also made comments on the changes to the Harassment and Crimes Acts.

Anti cyber-bullying proposal marches on

Posted on April 4, 2013

A cabinet paper (PDF) shows that the Government has accepted most of the Law Commission's proposals to control and punish cyber-bullying and other 'digital harms'. This includes:

  • Clarification of existing laws such as the Harassment Act to explicitly say that they apply to modern communications technology.
  • Establishment of an agency (probably NetSafe) that will provide non-coercive mediation of online issues.
  • More encouragement of anti-bullying measures in schools.
  • New criminal offences for "using a communications device with the intention to cause harm" and "incitement to suicide".
  • Establishment of a new regime with wide ranging censorship powers for controlling online speech, including new tighter standards for what speech is acceptable online.

One significant change is that the paper rejects the establishment of a separate Communications Tribunal (staffed by District Court judges with specialist knowledge in this area) in favour of passing it to the District Court as a whole. This would seem a step backwards in many ways as we question whether the average District Court judge is up to the task of understanding the technology involved.

Our response

Read our response to the Law Commission's original proposals: What's Wrong with the Communications (New Media) Bill and can it be fixed?

Many of these problems remain in the current proposal.

From a civil liberties point of view, the most serious concerns are around the idea that online speech should be held to a different and significantly higher standard than offline speech, a position we strongly object to. There is also a concern around why harming someone via online communication is seen as so much worse than other forms - it would make more sense to us to concentrate on the extent of the harm caused, not the means by which it was delivered.

From a purely practical point of view, when we consider the wide-ranging use of anonymity and foreign services on the internet, combined with the speed at which many situations blow up online, we still question how much good these proposals will be able to do.

Other Reactions

Our page listing reactions to the initial report.

No Right Turn reports that the proposal is the return of the offence of criminal libel:

Back in the dark ages, when spousal rape was legal and homosexuality was a crime, there was a criminal offence in this country of "criminal libel". Publishing material "designed to insult any person or likely to injure his reputation by exposing him to hatred, contempt and ridicule" wasn't just a matter for defamation lawyers; it was a crime punishable by two years imprisonment. The law was clearly incompatible with the Bill of Rights Act (not to mention with modern ideas about defamation being a tort), and so it was repealed in 1992. Now Judith Collins wants to bring it back - but only on the internet.

Lawyer Steven Price points out some of the hurdles you'll have to get over to actually use the new new censorship regime and then questions the wisdom of handing over decision making around some complex technical and Bill of Rights issues to the next District Court judge off the bench.

Blogger David Farrar generally favours the proposal but questions the communications principles.

InternetNZ points out that the proposal has some worrying flaws.

Do New Zealanders want web-based email services to be subject to take-down orders? Do people understand that such orders, as outlined in the Cabinet paper, could be based on lower legal standards than is the case today – and could be imposed on people without them being part of the Court’s proceedings?

Vikram Kumar worries that the proposals will cause collateral damage to the NZ internet.

NZ Herald editorial in favour.

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.

New Media submission opposes media regulation

Posted on March 13, 2012

Tech Liberty made a submission to the Media Regulation review run by the Law Commission. The summary of our submission is as follows:

We recognise that "big media" still has a lot of influence in New Zealand but that this influence is declining as the internet gives people the ability to:

  • self-publish ("little media")
  • share and distribute self-published articles
  • publicly critique the work of big media.

This change can be seen in the way that online media such as blogs used to be very reactive to work published in newspapers and TV, but now newspapers and TV are increasingly picking up stories from blogs and other forms of social media.

Much of the rest of the review was about how the media should be regulated but we believe that the need for greater media regulation has not been established.

Defining news media

The review suggests that regulation could be a trade-off for official recognition of news media, and spends a lot of time discussing who would be included in the definition of "news media". We believe any definition would either be so broad as to be useless or so narrow that it would miss out many people and publications that arguably should be covered. This is especially true as journalism continues to develop and change in the internet age.

Special privileges for news media

The review suggests that we need a definition because some laws refer to the news media to bestow special privileges. Our preference is that these privileges should be extended to all citizens (e.g. replace the media "fair dealing" section in the Copyright Act with a more general "fair dealing/fair use" provision for all people) or should be available to all people when they are acting as a journalist.

Furthermore, any organisation that wish to include/exclude "news media" can make their own determinations as to who that is rather then relying on a government mandated definition.

External regulation

We do not believe that there is a need for an external regulator. Indeed, as the internet gives people the means to publicly criticise the output of big media, the need for a regulator is reduced compared to the days when only a very limited number of media companies could get their views out (due to limited airwaves or the need to own a printing press).

Current regulation is also generally quite ineffectual. The original message still goes out and then any correction is ignored as the issue is no longer "news". Regulation tends to be after the fact score-keeping at best.

Any publishing company or journalist who wishes to be taken seriously has the ability to form a group and create their own code of ethics and regulator. The Press Council is an example of this and we do not see why other media groups who wish to be taken seriously could not do the same.

Finally, if there was a regulator our view was that it should be in the form of an Ombudsman with the ability to make morally rather than legally binding decisions.

Malicious speech online

The second part of the review was about harmful speech online.

We agreed that malicious speech online can be a problem just as it is when face to face Furthermore, the nature of the internet means that the malicious speech can both spread further and remain available longer.

We believe that the law is limited in what it can do about people being nasty to each other, either online or in person. Even if current law could deal with these issues, the international nature of the internet and the inevitable jurisdiction issues would mean that only a small proportion of problems could be resolved.

That said, many of the more contentious issues will be conducted by people who know each other well and probably even live in the same area. The law should be able to deal with issues of harassment using existing laws (possibly with the tweaks identified by the Commission to ensure that online communications are definitely covered).

We reject the idea that speech online should be held to a higher standard than any other form of speech.

We do support the creation of a new crime of "malicious online impersonation" with the caveat that it must be very careful not to include obvious cases of parody and other forms of non-serious impersonation.

No ISP responsibility

We oppose any attempt to make ISPs responsible for taking down or blocking information either hosted on their network or available through it. This is because ISPs typically have no visibility or control over the material that their customers might store on servers hosted with the ISP. Typically an ISP will only have one option - passing the request on to the publisher or turning off the entire site. Closing down an entire site would seem a gross over-reaction to the content of one offending post or comment.

It does seem appropriate to us that an ISP might have a responsibility to pass on a takedown message to the site owner (similar to the copyright legislation) or, upon presentation of a suitable court order, reveal the identity of the site owner so that legal action can be taken.

Kiwicon – The government is your friend

Posted on November 7, 2011

The government is your friend and wants you to be happy.

This is the transcript of a speech given by Thomas Beagle at Kiwicon in Wellington on November 6th, 2011.

Internet Name Suppression Workshop

Posted on February 3, 2011

InternetNZ hosted a workshop about name suppression in the digital age.

The following notes were made at the session. They give a general idea of what was discussed but should not be taken as definitive or complete.

Government looking at further regulation of speech on the Internet

Posted on October 14, 2010

Justice Minister Simon Power claims that "new media" on the Internet is a "wild west" that lacks professional or ethical standards. He says:

Issues I’m concerned about include how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders, and re-publication of a libel.

He has asked the Law Commission to review whether current regulations are good enough. This is the same Law Commission that believes that ISPs (Internet Service Providers) should have a responsibility to close down websites and shutdown webservers if they are hosting material that might be in breach of a suppression order.

The report will focus on whether the two existing industry bodies, the Broadcasting Standards Authority and Press Council, could be used to regulate "new media", and whether existing criminal and civil remedies and penalties are appropriate.

These is no mention in the press release of the freedom of expression guaranteed to New Zealanders in the Bill of Rights Act. Nor is there any recognition that many forms of old media such as leaflets, posters and books are also unregulated.

An issues paper is expected by December 2012.