Kiwiblog

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.

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.