The Law Commission has published Harmful Digital Communications: The adequacy of the current sanctions and remedies.
This proposal will be considered by the Government and in some form a law change is highly likely. There are significant issues for Internet users. I recommend peopel read through the paper. Their recommendations:
- The creation of a new criminal offence tailored for digital communication.
- Amendments to the Harassment Act 1997, the Human Rights Act 1993, the Privacy Act 1993 and the Crimes Act 1961 to ensure that the provisions of these Acts can be readily applied to digital communications.
- The establishment of a Communications Tribunal to provide citizens harmed by digital communications with speedy, efficient and cheap access to remedies such as takedown orders and “cease and desist” notices.
- New legal requirements for all New Zealand schools to help combat bullying of all kinds, including cyber-bullying.
From their report:
This report is primarily about the laws to which we are all accountable when we communicate. Its recommendations are not aimed at censorship. Nor are they about criminalising speech which offends people simply because it may be abusive, nasty, vulgar, untrue or inflammatory.
That is good. However I do have some fears about how this boundary may get shifted over time.
Types of digital communications covered by the offence would include comments on websites, message boards and blogs, and in the social media (e.g. Facebook and Twitter), and also emails and texts.
Hence, why people should read the report.
Under our proposed amendments it would be an offence to publish intimate photographs or recordings of another person without their consent. We also recommend that the laws about online sexual grooming be tightened.
I support that.
We recommend that it become an offence to incite a person to commit suicide, irrespective of whether or not the person does so.
The Tribunal we propose would comprise a District Court judge supported (where necessary) by an expert internet adviser. There would be a number of judges designated to act.
If there is to be a Tribunal (and I have some reservations), I’m glad it will comprise a Judge, as they will be acquainted with the balancing if rights more than a lay commissioner might be.
The Tribunal’s jurisdiction would be protective, rather than punitive or compensatory. It would not have any powers to impose criminal sanctions. It would be limited instead to providing civil remedies, such as takedowns and cease and desist orders. In some cases it might also require apologies, right of reply, corrections or retractions. We do not propose that it have any power to award monetary compensation.
That sounds good, but what is implicit, not explicit, that a failure to comply would be contempt of court and see someone fined or jailed for non compliance eventually. I have reservations about someone being forced to take down material they stand by and are prepared to face legal consequences of.
The Tribunal would be a solution of last resort and the threshold for obtaining a remedy would be high. Complainants would have to demonstrate that the communication complained about had caused significant harm, including distress, humiliation or mental harm.
Distress can be rather subjective.
Among the other factors the Tribunal would have to take into account would be: the nature and purpose of the communication and whether it was the type of speech requiring high protection, such as political speech; the truth or falsity of the statement; the context in which it was expressed; and the conduct of the complainant – including the extent to which that conduct may have contributed to the harm suffered.
I am glad to see this, as one concern I have is political activists trying to use the Tribunal to silence critics.
We recommend that NetSafe be given statutory recognition as an “approved agency” responsible for triaging and, where possible, mediating complaints before they reach the Tribunal.
I support this. Netsafe do an excellent job, Mediation is preferable to arbitration.
Tags: Law Commission