Police co-operation

September 20th, 2015 at 2:00 pm by David Farrar

Stuff reports:

A Danish man has been arrested in his home country following allegations he launched a “persistent online attack” targeting an Auckland schoolgirl. 

Police said the 24-year-old was charged with posting private photos online and hacking private computers. 

He was caught in the city of Vejle, in Denmark, and will appear in a Danish court. 

The arrest was the result of a joint investigation between New Zealand Police, the Danish National Cyber Crime Centre and South-East Jutland Police. 

Good to see the Police forces working together on a case like this. He may have thought he could do what he did with impunity as he was in Denmark and his victim in New Zealand.

The man will appear in the Court of Kolding Town in a closed hearing where a pre-trial detention will be requested, the statement said.

Serious stuff if he may be held in jail until the trial.

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The Harmful Digital Communications Act

June 30th, 2015 at 3:00 pm by David Farrar

This afternoon Parliament will pass into law the Harmful Digital Communications Act. If I was an MP, I’d vote against the bill.

In saying that I recognise a significant amount of good will come from this bill. I also recognise that Amy Adams has made improvements to it, which have mollified some of the concerns people have had with the bill, which is why Labour and NZ First are now supporting it. In fact ACT is the only party against – David Seymour explains why here.

Here’s the good aspects to the new law:

  • The approved agency (will be Netsafe who are very good) will get legal standing, and be able to far more effectively mediate cases with Facebook, Google etc where real harm is happening – especially cyberbullying of teens
  • Specifics behaviours which are despicable such as encouraging someone to kill themselves, posting revenge porn etc will face criminal sanctions
  • Has an extensive safe harbour for intermediaries such as Kiwiblog and Trade Me, so that we’re not liable for content generated by others on our sites, so long as we pass complaints on promptly
  • Rather than me having to judge if a comment is harrassing, threatening etc, I can allow the Approved Agency to mediate, or the District Court to rule

The bad aspects include:

  • The 10 communication principles are too wide, and principle No 10 especially could lead to severe restrictions for online speech, with the principle being used to stifle legitimate criticism
  • The timelines for the safe harbour are very tight
  • A few dedicated trolls could make life hell for content hosts by constantly taking them to court, especially as there is no filing fee
  • Different legal standards now apply to offline and online speech

The Press editorial is opposed:

The purpose of the statute is high-minded enough.  It is designed to deter, prevent and mitigate harm to individuals by digital communications. But the thresholds set by the new statute are perilously low and potentially pose a  threat to freedom of speech. …

Both the agency and the District Court must  decide matters according to “communication principles” contained in the new statute.  Some of these are ludicrously wide.  One, for example, prohibits  digital communications that make a false allegation.  As those with experience of defamation law know, that can be an area of endless argument, and the new statute has none of the safeguards provided by two centuries of development of defamation law.  A similar risk arises from the prohibition on a communication that may be “grossly offensive to a reasonable person in the position of the affected individual”. It does not take much imagination to see how that provision could be used by a deeply religious person to resurrect blasphemy laws that have largely (and properly in a secular society) fallen into disuse.   

A complainant will not be able to obtain any redress unless he or she can show that the offending digital communication has caused  harm. But harm has also been given an alarmingly expansive definition by the statute. It is defined as anything that causes a complainant “serious emotional distress”, a disconcertingly subjective notion. 

The statute requires any decisions to be consistent with rights and freedoms contained in the New Zealand Bill of Rights Act. It is odd the new statute should state this explicitly because those provisions should apply anyway. Presumably it was in recognition of the fact that the new statute potentially threatens those rights and freedoms.

The BORA reference should mean that the court only orders material to be removed in extreme circumstances. But until we have several cases go through the system, we don’t know what sort of approach will be taken.

As I said, there are good aspects to this law. It will help a number of people considerably. But as with The Press I fear the communication principles are too wide, and it will result in people ironically being bullied by others using the law for exercising their free speech online.


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Harmful Digital Communications goes to committee stage

March 25th, 2015 at 10:00 am by David Farrar

Stuff reports:

A new law to stamp out cyber bullying has passed through another parliamentary stage.

MPs debated the second reading of the Harmful Digital Communications bill on Tuesday night. It will create a new offence of sending messages or posting material to cause harm, punishable by up to two years in jail or a $2000 fine. 

Inciting someone to commit suicide will carry a maximum three-year jail sentence.

National and support partners United Future, ACT and the Maori Party voted for the legislation. 

But the bill has critics – including Labour and NZ First. There are concerns the new law will limit free speech, and may criminalise teenagers with harsh penalties.

The law also goes much further than proposals in Australia and the UK, which are less punitive.

Labour’s Clare Curran says she supports the intent of the bill – and cyber bullying is “horrible.”

But the legislation is poorly drafted and there was no input from young people, she added.  Labour are willing to work with Justice Minister Amy Adams with any amendments at the next committee stages.

United Future leader Peter Dunne said he had raised “major concerns” about the bill with Adams and cannot guarantee his support at the next Parliamentary stage.

He said there may be some amendments from the Government which will allay fears, but won’t confirm his vote until he has seen them.

“I have given no commitment to support the Bill beyond the second reading, in view of the concerns that have been expressed, and pending the government’s response to those concerns,” he said.

His concerns centred on “criminalisation and law of unintended consequences…concerns about scope of coverage, and enforceability.”

The bill as currently drafted is quite flawed, and I hope the Government does make changes at the committee stage.

The bill addresses a very real problem, but sometimes the cure can be worse than the problem.


The cyber bullying law

May 28th, 2014 at 6:48 am by David Farrar

Stuff reports:

Cyber bullies could be jailed for up to two years for sending messages or posting material that causes harm, following recommendations from a parliamentary committee.

Internet providers will also be forced to reveal the identity of an offending anonymous poster, under order from the District Court.

School principals will also be permitted to ask a court to take down malicious or nasty content on behalf of a student.

The Government introduced a bill last year to tackle online abuse. Parliament’s justice and electoral select committee has now reported back with a raft of amendments to toughen up the legislation – which Justice Minister Judith Collins has accepted.

The committee wants the higher maximum penalty for the new offence of “causing harm by posting a digital communication” to be raised from three months in jail, or a $2000 fine, to two years in jail. This would bring the sentence in line with other harassment offences.

I have mixed feelings on the law. It will provide relief to some victims of cyber bullying, and that is a good thing. There is some nasty stuff happening on line.

But I am concerned that the definition of harm, based on 10 principles, is too wide and it may be used to try and stifle free speech and merely robust opinion. Already one NZ First MP on Twitter has been threatening journalists with complaints under the new law.

MPs also believe the author of material subject to a complaint be given 48 hours to respond.

There is one good aspect to the new law, and it is giving a fair degree of protection to content hosts like Kiwiblog. I’ll explain how it will work.

If someone complains that something I have personally written is causing an individual harm, then I’ll consider the complaint and either delete or amend what I have said – or reject the complaint and it may go through to the Approved Agency and then District Court for a decision.

But what if there is a complaint about what a commenter has written? I don’t want to be liable for that. The law as drafted proposed that hosts like myself be immune from liability so long as we remove the comment written by someone else upon receiving a complaint. The trouble with that is it means that I have to make a decision on what might not be a clear cut case, and that I’ll be incentivised to remove comments upon receiving complaints just to be safe.

The revised law allows me to avoid getting dragged in. If a complaint is received, then I need to pass it onto the author (commenter) within 48 hours and they have a further 48 hours to respond. If they wish their comments to remain, and are happy to accept liability for them – then the case will become a dispute between the complainant and the author/commenter – and generally leave me out of it. That is a very good thing – and may also apply to other areas such as defamation.

The 48 hours timeframe is too tight though, and I think it should be say three working days. I’m often out of touch for 48 hours or more.

So some good and some not so good in the bill.


Enough real abuse that TVNZ staff don’t need to make more up

February 27th, 2014 at 9:00 am by David Farrar

Stuff reports:

Television New Zealand has apologised for a Breakfast stunt after discovering two of their staff had made up abusive messages to them that were read on air.

The programme two days ago had eight staff read out messages of abuse in the wake of the weekend death in Sydney of television presenter Charlotte Dawson.

But this morning the programme apologised saying that broadcaster Peter Williams and Seven Sharp reporter Dean Butler had made up their messages.

In an on-air statement the show said the two had misunderstood what they had been told to do, and believed it was a “light hearted parody.” The other messages were genuine, Breakfast said.

“TVNZ is taking this matter very seriously and will be dealing with it appropriately,” Breakfast said.

Williams and Butler have had their parody messages removed from on-line.

The message read out by Williams, now known to be made up, said: “My mother always told me that people who talk slowly think slowly. You talk slowly, Peter Williams.”

Butler’s said: “Don’t take this the wrong way but I hope someone punches you.”

In the genuine messages reporter Brooke Dobson was told to “shave off” a moustache, Seven Sharp co-host Toni Street was criticised for her “disgusting flabby arm skin” and co-host Jesse Mulligan was labelled “thick as a plank”.

That is a huge fail. Even if one generously accepts it was a misunderstanding, then it was a huge communications failure for a broadcaster that is meant to be good at communications. There is some real hideous abuse of those with a high profile, and highlighting it was a great idea. But having two of them as invented undermines both what they did, but also the two staffers involved.

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Online abuse

February 26th, 2014 at 10:00 am by David Farrar

In the US Jimmy Kimmel has an excellent segment on his show where well known Americans read out incredibly nasty tweets that others have said about them. I thought it was quite a good way to shame some of the more awful abusers out there.

In the wake of the Charlotte Dawson suicide, TVNZ Breakfast did similar with various staff reading out incredibly horrible things that people have said about them.  I recommend people look at the video and consider if any of those making those comments would dare to do so to their face.

This has led to quite a few other media staff tweeting or facebooking some of the more vile things said about them. Some are almost comical (Kerre Woodham being called a communist lesbian) to some that are so nasty that you wonder about the mental stability of the person saying them. The worst was the young journalist who had someone comment on her blog:

“If you ever get pregnant, I hope your husband shoves a coat hanger up your vagina and aborts it”

She actually knows where the person who said it works. If it was me, I’d expose them to the world.

It’s very easy to get worked up about people in politics or the media. I can do it myself. But there is no excuse for saying such vile things. It says far more about the person who says it, than the target.

If some good comes from Charlotte’s very sad death, it might be that people pause for a few seconds and don’t say anything online about someone that they would not be prepared to say under their own name, to their face.



April 4th, 2013 at 1:00 pm by David Farrar

Judith Collins has announced:

  • Creating a new civil enforcement regime that includes setting up or appointing an approved agency as the first port of call for complaints.
  • Allowing people to take serious complaints to the District Court, which will be able to issue sanctions such as take-down orders and cease-and-desist notices.
  • Making it an offence to send messages and post material online that is grossly offensive, indecent, obscene, menacing or knowingly false, punishable by up to 3 months imprisonment or a $2,000 fine.
  • Creating a new offence of incitement to commit suicide, even in situations when a person does not attempt to take their own life, punishable by up to 3 years imprisonment.
  • Amending the Harassment, Privacy and Human Rights Acts to ensure they are up-to-date for digital communications. In some cases, existing laws were written before cell phones, instant messaging devices and social networking websites became common communication channels.

This is mainly based on the Law Commission report, but with a key difference.

The Commission recommended a specialist Communications Tribunal, instead of the District Court. I think it is better to have it as part of the District Court, as there is less concern about scope creep.

I have no issue with the proposed law changes above, however one area remains a concern:

The FAQ says: The Government proposes adopting the 10 statutory principles recommended by the Law Commission, which are based on criminal and civil law and regulatory rules.

This is the area which concerns me the most. The principles are:

  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.

I blogged last year on a legal analysis of the principles, and I think some are too wide-reaching.

I would encourage people to read the proposed law when it is introduced, and make sure they submit to select committee.

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The cyber-bullying law

September 6th, 2012 at 3:00 pm by David Farrar

Chris Barton writes at NZ Herald:

In its rushed proposals to stomp out cyber bullying, the Law Commission has blundered in haste.

Instead of refining our existing laws to ensure they reach into cyberspace, it’s proposing a whole new offence “causing harm by means of communication device.”

No, it doesn’t mean causing grievous bodily harm by taking to someone with your iPhone. The proposed offence aims to make it illegal to send “a message or other matter” – whether by text, Twitter, email or Facebook that is “grossly offensive; or of an indecent, obscene, or menacing character; or knowingly false”. To make the criminal charge stick you’d also have to show that the sender was out to cause substantial emotional distress to someone else.

I have some concerns with the proposed law also. But it is worth noting the law does not create a new criminal offence, or charge. It proposed a tribunal that could order material removed.

“We are prepared to accept that a case can be made out for making the very worst of deliberately harmful speech illegal,” says Tech Liberty, which has argued against aspects of the proposals. “However, we see no reason why this illegality should only be limited to electronic communications. Surely a poison-pen letter delivered to the letter box can be as harmful as an email or a text message on a phone.”

Making separate laws for the internet and the real world ushers in a dangerous precedent and sets up the prospect of two different legal realms.

This is one of the issue. Something done offline and online should be treated the same. Arguably you could extend the gambit of the proposed Communications Tribunal to include offline harmful speech also. Or you could narrow it to only target speech which is currently covered by our laws.

The proposed law is under consideration by the Government, and could even be introduced to Parliament later this year. There are potentially very significant ramifications for Internet users.

To help inform debate, and to try and improve the proposed law, InternetNZ has organised two half day workshops on the proposed law. The agenda is here and details are:

  • Wellington, Mon 17 Sep, 1 pm – 5 pm, Civic Suites, Wellington Town Hall
  • Auckland, Tue 18 Sep, 1 pm – 5 pm, Limelight Room, Aotea Centre

If you wish to attend, you can RSVP to rsvp@internetnz.net.nz. They are free to attend.

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