The Harmful Digital Communications Bill is aimed at cyber-bullying. It would create a complaints system based around a set of ten “Communication Principles”.
These say, for example, that digital communications should not disclose sensitive private facts, incite suicide, make false allegations, make threats, or be grossly offensive.
A complainant must first go to an agency that would provide advice, information and support, and try to resolve the problem informally.
If this doesn’t work, the complainant can apply to court for a variety of orders, including a take-down order, a right of reply, and an order unmasking an anonymous author (damages cannot be ordered). Orders can also be made against online content hosts.
Is this Draconian? Some say it is unjustified and will lead to online censorship at the whim of thousands of disgruntled complainants.
I don’t think so. There is plenty of evidence that digital harassment is a problem, and a unique one.
The Law Commission conducted research, finding that one in ten New Zealanders have experienced harmful communications on the internet.
Perhaps one in five high school students have suffered cyber-bullying. This is sometimes very serious indeed and in NZ and overseas has been a factor in suicides.
The nature of such bullying – it can be easy to start, instantly and widely accessible, searchable, and difficult to remove – means it presents challenges that we haven’t seen before.
Existing remedies are inadequate. It can be argued that our existing laws are sufficient to tackle the various problems.
The law of defamation, privacy and breach of confidence, the powers of the Privacy Commissioner, the Harassment Act, other laws governing threats and incitement, cover much of the territory of this Bill. But that does not solve the problem.
The remedies under these laws are not always accessible, sufficient or available. What is needed is a quick and cheap method of obtaining an injunction or take-down order when truly damaging material is posted online. These laws don’t provide it.
In some cases (such as in criminal cases) there is no take-down power. Nor can the Privacy Commissioner issue take-down notices.
In some cases (such as the torts of defamation and privacy and the Harassment Act) the victim needs thousands of dollars to take a civil action.
In any event, the case law sets extremely high thresholds before injunctions can be granted. The law and procedures are arcane. Costs spiral. Delays are rife.
The Bill addresses the remedies gap. The principles at the heart of the Bill are designed to reflect the current law. I think they largely do so, when read in conjunction with the limiting factors set out in the Bill (discussed below).
What is significantly new are the remedies. The main ones are resolution by the agency, and a new court process for obtaining orders for take-down, cease-and-desist, and unmasking anonymous posters.
The agency offers crucial support for complainants. Complainants are often faced with digital material harming them now, but have little in the way of resources or knowledge of the law and its processes.
The agency would offer what complainants need most, information and support. It would try to reach resolution on complainants’ behalf – get the bullying stopped and/or the harmful material removed. It would establish and capitalise on relationships with Facebook and Twitter. It would be savvy about the law and have experience with these issues.
Particularly for young people, this may be an enormous benefit, even if it doesn’t work all the time.
The Bill contains protections to ensure the powers are not misused.
I think there are sufficient protections in the Act to stop any unjustified uses of the law to attack legitimate speech. The coercive powers in the complaints regime are limited.
The biggest gun in the Bill is the take-down order. That cannot be used unless the complainant has first tried to resolve the complaint through the agency, which can’t compel anyone to do anything.
Before the court can make an order, the breach of the principles must be serious or repeated. The harm must be “serious emotional distress”. No order can be made unless it is demonstrably justified under the Bill of Rights Act.
It must be made by a judge, who must apply the principles of natural justice. And the judge will have to consider a range of sensible contextual factors including whether the communication was true, whether it was in the public interest, the conduct of the parties, and vulnerability of the victim. There is a right of appeal.
Certainly, it is possible that this law may be misused. There may be a torrent of complainants. Many of the disputes are likely to be complicated, emotion-laden, intractable. Complainants may complain about each other.
District Court judges hearing urgent applications are not necessarily well-equipped to engage with nuanced free speech issues.
But at the end of this day, we need to think about the cellphone footage of a drunken 16-year-old being sexually abused that someone thinks is funny to post online.
Do we just hope she can afford to hire a lawyer to navigate our privacy tort laws and get an injunction in the High Court?
*Steven Price is a Wellington barrister specialising in media law. He is the author of Media Minefield, a guide to media regulation in NZ and writes the Media Law Journal blog.
This article was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.