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 They are free to attend.

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