Communication Principles

August 17th, 2012 at 1:00 pm by David Farrar

Lawyer John Edwards blogs on the proposed draft bill by the to deal with harmful online communications. I share some of his concerns. A key issue is the ten principles in the bill:

  1. A communication should not disclose sensitive personal facts about an individual.
  2. A communication should not be threatening, intimidating, or menacing.
  3. A communication should not be grossly offensive to a reasonable person in the complainant’s position.
  4. A communication should not be indecent or obscene.
  5. A communication should not be part of a pattern of conduct that constitutes harassment.
  6. A communication should not make a false allegation.
  7. A communication should not contain a matter that is published in breach of confidence.
  8. A communication should not incite or encourage anyone to send a message to a person with the intention of causing that person harm.
  9. A communication should not incite or encourage another person to commit suicide.
  10. A communication should not denigrate a person by reason of his or her colour, race, ethnic or national origins, religion, ethical belief, gender, sexual orientation, or disability.

Principles 2, 5, 8 and 9 are fairly uncontroversial to me. The others can be challenging.

Edwards blogs on principle 1:

Thirdly, the Bill also later waters down the “publicly available publication” exemption from the prohibition on using or disclosing personal information.  Under current law, if I disclose personal information contained in a publicly available publication, it cannot be a breach of the Privacy Act.  Under the Bill, you could be liable for disclosing material from a publicly available publication …

And principle 3:

subjective “grossly offensive” test could force a rethink of Hell Pizza’s marketing strategy, but what else might it catch?

I don’t like this at all. If people are offended by what I say, then they should not read it. A blog is not like a billboard you are forced to walk pass, or a TV ad displayed during the news.

Principle 4:

prohibition on indecent or obscene communications simply aligns communications with a range of other publications, and does not really materially change the landscape.

I still think if an Internet publication breaches NZ law, then the correct response is to prosecute them for it, not have a Tribunal do a take down notice.

I can maybe accept takedown notices for content that targets an individual. But takedown notices for stuff which is merely arguably against community standards as expressed in the law I have an issue with.

Principle 6:

pretty much reprises defamation (without the troublesome need to prove the subject’s reputation or standing in the community has been harmed as a result).

Which is rather important.

Principle 7:

codifies the common law against breach of confidence, and might in fact afford a more accessible remedy than the court proceedings now required.

But what i someone sends me a massively abusive e-mail, yet says it is confidential. Does that mean I can’t expose their abuse?

Principle 10:

I prefer vilify to denigrate. If someone is a scientologist, should they be able to get a takedown notice against me if I say only morons are scientologists, so you must be a moron if you believe in Lord Xenu?

There are some real harms done, especially to youth, by cyber-bullying. But we have to be careful that any measures do not over-reach, and I remain concerned that these do. The challenge is not to just oppose – but to constructively propose improvements to make the proposal acceptable.

On the issue of the proposed bill though, I did like this piece from Trans-tasman:

At the same time came a crackdown on cyber bullying, launched by Justice Minister Judith Collins. This is a rare case of politicians reaching across the political divide to help opponents.

One of the first beneficiaries of the crackdown will be Labour’s David Cunliffe, who has been bombarded with texts saying “U R stink & evry1 h8s U” and the like from @WainuiBiker and @SonOfBobGrant.

Heh.

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7 Responses to “Communication Principles”

  1. southtop (262 comments) says:

    I sometimes wonder what we mere peasants would do without the Law Commission

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  2. insider (1,000 comments) says:

    “I don’t like this at all. If people are offended by what I say, then they should not read it. A blog is not like a billboard you are forced to walk pass, or a TV ad displayed during the news.”

    Judge Harvey said similar in the recent Flannagan Brown SPerling judgment on an anti harassment order request. He basically said that if you go looking for offence you can’t really claim to be offended. “But the static or passive blog post cannot, in my view be causative of distress and it cannot be said to be so if a person accesses the material by their own act of choice.”

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  3. BigFish (132 comments) says:

    Number 10 – I have a big problem with the idea of not denigrating based on their own ethical beliefs.
    If a person has ethical beliefs based on what most people believe are flawed morals, what then?
    For example, shouldn’t you be challenged if you believe an honour killing is moral and right treatment for an unfaithful woman?
    To me those kind of ethics should not be unchallenged.

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  4. wat dabney (3,672 comments) says:

    The Eradication of Freedom of Speech Act 2012.

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  5. Reid (15,954 comments) says:

    Judith Collins is listening to her husband a bit too closely here. You clearly can’t restrict freedom of speech principles in order to prevent a problem which arises because immature children are not as capable as adults of understanding where the limits are, and should be, in civilised discourse.

    Robust discourse is a basic part of adult communication. It should not be limited so everyone on the blog sounds like Pete George. Imagine how fucking boring that would be, after 30, 10, 5 a single second of such. The internet would be broken, and nothing would ever be the same ever again. Sorry Pete I don’t mean to criticise you personally of course, it’s just you don’t exactly set the blog on fire, that’s all, albeit your points are well reasoned and insightful.

    “Stop Collins by calling her a complete bitch, online” is my suggestion for a slogan to fight this vicious assault on human rights and basic freedoms.

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  6. nasska (10,680 comments) says:

    This was predictable.

    The problem: School kids being bullied, some to the point where the social media was being used to wreck their lives & drive a few to suicide.

    The answer: Jackbooted legislation designed to curtail debate & hand control of all electronic media to the government of the day in the sneakiest most underhand way possible.

    If this bill is not pruned drastically then it will be used to curtail anything that might, just possibly hurt someone’s feelings….mostly those of our delicate & sensitive politicians.

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  7. Kea (11,878 comments) says:

    This is a direct attack on freedom of expression. Most of it is based on how someone claims to “feel”. It is subjective drivel.

    If this law was passed, someone would only need to claim they are “offended” in order to silence others. I also doubt it will achieve the stated goals. I predict no reduction in youth suicide rates, if it were passed.

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