Communication Principles

Lawyer John Edwards blogs on the proposed draft bill by the Law Commission 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.


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