In May 2012, in response to rising concerns about the impact of cyber-bullying on young people, the responsible Minister asked the New Zealand Law Commission to fast-track the part of the project dealing with the adequacy of the sanctions and remedies for dealing with harmful digital communications. On 15 August 2012 the Law Commission set out its final recommendations a Ministerial Briefing Paper, Harmful Digital Communications: The adequacy of the current sanctions and remedies [pdf]. This was accompanied by a draft bill [pdf].
The Law Commission’s key recommendations are:
- The creation of a new criminal offence tailored for digital communication to target digital communications which are “grossly offensive or of an indecent, obscene or menacing character” and which cause harm. Types of digital communications covered by the offence would include comments on websites, message boards and blogs, and in the social media (e.g. Facebook and Twitter), and also emails and texts.
- The establishment of a specialist Communications Tribunal to provide citizens harmed by digital communications with speedy, efficient and cheap access to remedies such as takedown orders and “cease and desist” notices.
The Tribunal’s jurisdiction would be protective, rather than punitive or compensatory. It would not have any powers to impose criminal sanctions. It would be limited instead to providing civil remedies, such as takedowns and cease and desist orders. In some cases it might also require apologies, right of reply, corrections or retractions. We do not propose that it have any power to award monetary compensation.
The draft Communications (New Media) Bill sets out an interesting list of “Communication principles” which, it is proposed, every agency or tribunal performing functions under the act must take into account. These are as follows:
A communication should not disclose sensitive personal facts about an individual.
A communication should not be threatening, intimidating, or menacing.
A communication should not be grossly offensive to a reasonable person in the complainant’s position.
A communication should not be indecent or obscene.
A communication should not be part of a pattern of conduct that constitutes harassment.
A communication should not make a false allegation.
A communication should not contain a matter that is published in breach of confidence.
A communication should not incite or encourage anyone to send a message to a person with the intention of causing that person harm.
A communication should not incite or encourage another person to commit suicide.
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.