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Defending the Law Commission
By Steven | August 29, 2012
The Law Commission’s brainchild is being bullied online. It has recommended the creation of a tribunal to hear claims of digital harrassment, privacy invasion, intimidation, bullying and defamation. Not surprisingly, perhaps, it’s now being attacked by netizens as a terrible threat to free speech. Also not surprisingly, many of these people do not seem to have read the Law Commission’s actual proposal, which answers many of the criticisms. There are also some thoughtful criticisms from sensible people.
There’s certainly room for debate about this proposal. I have some concerns about it myself, though overall I support it. (In fact, the Law Commission draws to some extent on some suggestions I made here). But if we accept that there are real harms being done to people here – many of them children – then what’s really needed is constructive dialogue about how to address them. The Law Commission spends two chapters marshalling the evidence of harm and explaining why existing remedies aren’t adequate to address it. If you think a tribunal with powers to issue take-down notices is a dumb idea, then what’s your alternative? Just putting up with photos of a kid being bullied being posted on Facebook?
I want to deal with some of the objections I see as misguided before dealing with my own (much better directed!) concerns, in a later post.
“It’s a general censorship body”! For some people, the tribunal seems to loom as something of a censorship juggernaut, bestriding NZ’s internet landscape pulverising innocent articles and comments. For example, Idiot/Savant from NoRightTurn asserts that the proposal is simply a “heckler’s veto”, meaning that anyone merely has to object in order to have something removed. That’s vastly overstating its likely impact. To get yourself a take-down order from the communications tribunal, you’re going to have to do all of the following things:
1. Show that one of the 10 principles has been breached (eg someone’s published a false allegation, a private fact, a threat, etc: these are designed to reflect the existing law);
2. Show that this breach has caused you – the victim – “significant harm”;
3. Show that you’ve pursued all reasonable other avenues first (this is in the Law Commission’s report, but not explicitly in the draft legislation);
4. Show that you’ve referred the matter to an “approved agency” (the Law Commission recommends Netsafe) first, and it has considered exercising its functions first. These include investigation and mediation. The tribunal is likely to take into account the agency’s determination and the reasons for it;
5. Convince the tribunal (a District Court judge) that a take-down order is appropriate. It is discretionary. The tribunal must weigh up things like the public interest in the communication, its truth, the good faith motives behind it, the robustness of the forum, a lack of evident harm, the limitation of circulation, the contribution of the victim to the harm — factors that, if present, will make your application a hard sell;
6. Convince the tribunal that a take-down notice is a demonstrably justified restriction on the right to freedom of expression contained in the NZ Bill of Rights Act.
The person you’re complaining against will be given the right to argue against any such order before it’s made and (I’m sure) the right to appeal against it (this too is absent from the draft legislation, which only gives appeal rights to the complainant – this looks like a simple oversight to me). You will not get the right to seek damages. You will not be able to complain against mainstream media.
“The Law Commission hasn’t made out a case for this tribunal.” This is the main criticism of barrister John Edwards on Russell Brown’s Media3 programme on Saturday. He thinks there isn’t enough evidence of harm, and quotes the Law Commission saying:
We note that the paucity of quantitative national data on cyber-related communication harms creates challenges for policy makers.
But he doesn’t refer to the 20 pages of evidence assembled by the Commission it its briefing (chapter 2), and all the evidence amassed in its earlier report. That includes a string of particular examples and a series of surveys consistently revealing that at least 10% of people have suffered harrassment or bullying online. Nor does he refer to the Commission’s lengthy (and I think pretty compelling) discussion of why existing avenues of legal recourse are ineffective. The Commission’s conclusion is that at least some of the incidents are so bad that:
Irrespective of the quantum of the problem, in our view, this potential to cause significant harm, some of it indeed devastating, demands an effective legal remedy.
“I’d like some mechanism for more speech, not less” This criticism comes from Thomas Beagle from TechLiberty, also on Media3. I incline to the view that the internet is not lacking in mechanisms for more speech. Anyway, presumably Thomas would be much in favour of the tribunal’s power to order a right of reply. The mere existence of that power could be expected to incentivise more-speech responses. But there are plenty of situations (threats, publication of private facts or confidential material, many types of bullying) where “more speech” isn’t really the appropriate answer.
Quick memo to Russell Brown: Couldn’t you find someone in favour of the tribunal for Media3? Why two opponents? After all, the proposal is supported by the Privacy Commissioner, the Human Rights Commission, the police, Netsafe, Trade Me, the Post-Primary Teachers’ Association, and most of the submitters including the members of the Auckland law faculty on the Equal Justice Project. Also: me. It would have made for a better discussion.
“We shouldn’t protect people from hurt feelings”. Too late, I’m afraid. Unless perhaps, you’d like to do away with the law of defamation and privacy and intentional infliction of emotional distress, the Privacy Act, the Harrassment Act, the Domestic Protection Act and laws concerning threats. And maybe you would. Maybe you’d also like to ignore the growing acceptance that psychological harms can be as damaging as physical ones.
But perhaps your objection is simply that the threshold has been set too low. If so, bear in mind the things that need to be proved, listed above. It’s not about “stopping people from ever getting upset”. If you’re still unconvinced, I’m up for a debate about it. Let’s see your re-draft.
The Law Commission doesn’t seem to be suggesting remedies for anything not already covered by the law, so why bother? Graeme Edgeler, step up to the plate. Graeme referred to two examples given in the Law Commission’s paper: two older guys coerced a drunken 16-year-old into performing sexual acts that they then recorded on a cell-phone, showed people, and talked about on Facebook; and young people being threatened in texts including pictures of mutilated bodies and said:
if someone could point out how a Communications Tribunal could possibly help in either of the scenarios described, it would be appreciated
But as Graeme surely knows, the power of courts to grant an injunction to restrain a crime is not clear (and very rarely exercised), and their power to restrain torts, or threatened ones, is expensive and unlikely to be exercised at an interim stage. That’s the gap the Law Commission is looking to fill here. In both these cases, but particularly the first, the tribunal could have made an order for the material to be taken off-line (Facebook would almost certainly have complied, as would any relevant ISP), or not distributed further. At present, the police and the courts don’t have this power.
To be fair, Graeme seems to backtrack shortly afterward, when he says:
There are clearly circumstances in which a low level Communications Tribunal will enable people to obtain a solution to a problem that they could not have obtained otherwise.
However using factual scenarios from the past where people have been (or could have been) prosecuted and in some cases actually ended up in prison as a reason to change the law is unlikely to win converts.
But this still misses the point. No doubt the 16-year-old would have been delighted to have an avenue to have this removed early. Prosecution isn’t what this remedy is about. The point of the Law Commission’s proposal is to reflect what’s already in the law and provide an effective, timely and cheap remedy for breaches.
“The horse has bolted”. This is Thomas Beagle again, and multitudes of others. If something is published online, they say, the harm is done. Russell Brown rightly rejects this. True, harm arises immediately something is posted online and may be very damaging if word spreads quickly. What’s more, the material may never go away. It may migrate overseas. But it can be made much harder to find, and it can be removed from sites that give it the most currency and credibility. I mean, really: if images of your daughter being sexually violated were posted on Facebook, and there was some opportunity to have them removed, would you be saying “oh well, the horse has bolted”?
“The police can deal with it.” The police say they can’t. They certainly can’t deal with tort issues (defamation, breach of confidence). They can try to persuade people to take things down, and they can charge them with offences, but they have no general power to force people to remove anything. Frankly, I’m a bit concerned that they seem to try to do so anyway. “In Netsafe’s experience,” the Law Commission says (para 5.8), “the majority of interventions by the law usually occur on an informal, ad hoc basis and involve police officers contacting the alleged offenders and requesting that the threats of harm desist”. I can certainly imagine situations where this would be entirely appropriate. I can also imagine others where police were leaning on someone to remove something, having an incomplete view of the facts, a limited understanding of the law, and an inflated sense of their own righteousness and power. Perhaps one salutary effect of a new tribunal would be to ensure that these sorts of requests were channeled to the agency and tribunal where they could be dealt with in a consistent and principled way.
There are criminal penalties! This too is a concern of Thomas Beagle’s. He’s right that it’s an offence to disobey a tribunal order. It’s hard to see how it could be otherwise. Are defendants supposed to be able to ignore a take-down notice with impunity? But this is different to making the principles they’re enforcing criminal offences. It’s not an offence, for example, to make a false allegation, or disclose a sensitive personal fact. It only becomes an offence if the process above is followed, and order is made, and the defendant fails to act on it.
Education is the answer. This emerged from the Media3 discussion, and all seemed to agree on it. We can be educated into being responsible digital citizens. I’m not opposed to anything that tries to help people understand the harms people can suffer from irresponsible communications, and tries to encourage them to behave civilly. But it’s surely pie in the sky to think this is the complete answer. People will be evil. And when they are, we need to act against the harm, not pretend that we might be able to convince the next generation of people not to be evil.
It doesn’t properly protect free speech, especially free political speech. I think it probably does. The tribunal must have regard to the importance of freedom of expression. It must consider “the extent to which the communication is in the public interest” and its content, purpose and context. And although it’s not expressly spelled out (I think it should be), the NZ Bill of Rights Act applies to the tribunal. There is little doubt that political speech will receive particular protection under these provisions.
It’s a licence for lawyers to print money. I doubt this. I suspect most people will be unrepresented, as is the case with the Press Council and Broadcasting Standards Authority. The tribunal is required to act with as little formality and technicality, and as speedily, as it reasonably can. It is designed to be accessible to unrepresented litigants.
I don’t think the tribunal proposal is perfect. I think there are a few tweaks that should be made, and then it will still be imperfect. But the question is, will it do more good than harm? And I think it will.
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