By Steven | September 2, 2012
A few days ago I sallied forth to defend the Law Commission’s proposal to establish a communications tribunal for digital harms against its critics. Today, I join their ranks. A little bit.
But first, let’s be clear about what the Law Commission is expecting from its plan. It will not be a panacea. It will not be able to magic away most people’s digital beefs with each other. It may be stymied by digital harms originating overseas. Most of the tiffs between people (and I accept that those involved see them as mortal combat rather than tiffs) will not reach the threshold for the exercise of the tribunal’s powers. The people most likely to be disappointed by the tribunal, I expect, will be complainants. That is, most people will be disappointed that it does not stifle enough speech.
Swamped with complaints?
John Edwards worries that the new tribunal will be deluged with claims:
And the complainants will include the group intended by the policy makers, the vulnerable and their families and advocates, but they will have to fight their way past the axe grinders, the lobby groups and political interests presented with a new, cheap, and readily accessible forum for advancing their grievances and personal hobby horses.
I think he’s right. But we should remember that these claims must go first to an authorised agency, which hopefully will resolve some through providing information or warnings, or via mediation. The agency will also be able to dismiss vexatious claims. I am inclined to think there should be a minimal fee (say $50) to try to curb the temptation for particular people to launch multiple claims, and to provide a threshold of seriousness for complainants. There could be provision for this to be waived in appropriate cases. We might also bear in mind that many complaints may be very easy to determine: someone maliciously posting provably inaccurate material or naked girlfriend photos, for example.
Still, there is a good chance that the tribunal will be very busy, and that a good chunk of its caseload will be complicated.
The communication principles
Here they are:
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.
These generally seem pretty sensible to me, and very closely related to existing laws. But I have some issues. For example, what exactly is “indecent or obscene”? This principle is not really related to the offences the Law Commission links it to: sexual grooming and covert filming. How does it relate to the definition of what’s objectionable in our censorship legislation? I need to remember though, that the Law Commission’s proposal is talking about significant harms to complainants that arise though the publication of indecent or obscene material. It’s not about indecency or obscenity per se.
Should the false allegation principle be restricted to allegations that affect someone’s reputation? Perhaps that’s implicit in the requirement for personal harm.
Is principle 8 too wide? What about calling for boycotts for example? I suspect the answer here is that the contextual factors and free expression right that the tribunal need to consider will invariably trump any such complaint. The same goes for whistleblowers concerned about principle 7.
Problems for the agency?
I am worried that the agency seems to be overburdened with functions, some of which may be in tension with one another. I am as much as fan of NetSafe as the next guy, but isn’t it a bit tricky to be the outfit that assesses complaints, investigates them, and requests take-downs? This from a group that’s essentially a lobby group whose task has been to go to bat for a bullied punter? Can it fairly hold the balance between complainants and defendants? (Why aren’t they called “respondents”?) What if - as seems likely - two people regard themselves as victims of each other’s communications?
Does the agency have any obligations of natural justice, as the tribunal does? It is supposed to “take account of” the communication principles (against threatening communications, false allegations, disclosure of private facts, etc). But what exactly does this mean? Can it act in situations where those principles aren’t contravened? Is it required to take into account the contextual factors that apply to the tribunal (truth or falsity, spread, purpose, victim vulnerability) etc? The tribunal is required, in exercising its functions, to “have regard to the importance of freedom of expression”. But the agency isn’t. Why not? Doesn’t it have to do so, pursuant to the Bill of Rights, anyway?
At the very least, the agency (or agencies? is there anyone other than Netsafe who might do this?) will have to be well resourced…
When can the tribunal hear cases?
The draft legislation provides that one of the functions of the agency will be to certify that it has recommended the referral of a complaint to the tribunal, where it seems sufficiently serious and it’s urgent or incapable of being resolved. But are these the only complaints that get to the tribunal? It seems not. A disgruntled complainant seems to be able to refer the complaint to the tribunal even without this certification, as long as the agency “has considered the complaint and determined what action (if any) to take”. It may have determined not to take any action, or even to reject the complaint as trivial of vexatious or not made in good faith. (The tribunal seems not to have the power to reject complaints on this basis, which I hope is an oversight).
Perhaps the tribunal should only be given powers to hear cases certified by the agency as appropriate (this seems to be the Law Commission’s intent: see para 5.44). That may overcome the deluge problem. There could be a process for a complainant rejected by the agency to seek leave to bring a case to the tribunal.
Powers of the tribunal
I think the tribunal (and agency) need to have some powers and functions relating to threats to publish material online. If a vengeful ex-boyfriend threatens to post naked photos of the girlfriend who spurned him, the tribunal should have the power to prevent it, even if it’s not up online. That would go some way to addressing the concerns of those who insist that the harm is done once the material is online and it’s futile to do anything after that.
Again, it seems odd to me that the tribunal is required to “take account of” the listed communication principles. Later on, it’s provided that the tribunal can’t make an order unless one of the principles has been breached (causing the complainant significant harm). These different roles of the communication principles seem in tension.
John Edwards has raised the concern that the law doesn’t require the complainant to show that they’ve been targeted by the offending publication. I’ve suggested that this concern is overstated, in part because the complainant does have to show that s/he is a “victim”. But there could be more clarity about what this means.
In its paper, the Commission insists that the threshold for a successful complaint is high, and “much of the material coming before the tribunal is likely to be of such as kind that it would clearly cause real distress to any reasonable person in the position of the applicant”. But this objective element hasn’t made it into the draft legisation.
The Law Commission suggests that in cases of defamation (that is, the communication principle dealing with “false allegations”), it should be for the defendant to prove truth. That’s the rule in proper defamation cases. Two problems here. One is that the draft statute doesn’t seem to require it. The other is that I don’t think it should. How do you prove a “false allegation” without proving that it’s false? The complainant should bear the burden of proof here. I’m not sure it can be said that it is demonstrably justified to order material down (or a correction, apology, declaration, etc) if it hasn’t been shown under this head that an allegation is false. This tribunal process shares some features of an application to a court for an interim injunction. The courts steadfastly refuse to grant such injunctions in defamation cases unless the plaintiff can show that a defence of truth could plainly not succeed. What’s more, if the complainant doesn’t need to prove falsity, then all that’s required to breach the principle is… that an “allegation” has been made. That’s pretty much everything on the internet.
I’m overstating this concern a little myself. I think the Law Commission would say that anyone complaining under this head would at least have to bring forward some evidence of inaccuracy, and truth or falsity is a factor for the tribunal to consider, and defendants ought to be required to front up with their evidence for the claim they made. They point out that otherwise, there would be a “misalignment” with the law of defamation. But lots of these communication principles are to some extent misaligned with law. And defamation law itself can be said to be misaligned with other laws requiring proof of fault and harm before a remedy is applied.
Also, I don’t think the tribunal should have power to order someone to apologise. It smacks of the schoolyard. (Admittedly, so does much internet speech). But forcing an obviously insincere apology doesn’t get anyone anywhere. I would have said that it could not be justified under the Bill of Rights, except for the High Court case that found that the BSA has this power and that it doesn’t breach the BORA.
Imbalance between complainants and defendants
At the moment, only complainants can appeal tribunal orders. Surely a defendant, who might have been compelled to remove something or correct it or apologise for it, should have a right of appeal too. Similarly, it’s only the complainant who can request a formal hearing about a complaint if the matter reaches the tribunal. Why can’t the defendant ask for a formal hearing?
And why can neither of the parties apply for evidential orders requiring the other to produce information or documents or give evidence? It’s only the agency or tribunal (of its own motion) who can do so.
Absence of rules?
Thomas Beagles worries about the absence of rules about things like the administration of oaths, etc, that he sees in the legislation dealing with the Human Rights Review Tribunal. I share some of those concerns. Do the privileges against self-incrimination or legal professional privilege apply to orders to turn over material, for example? What if the tribunal orders a blogger to reveal a confidential source? What are the time limits for complaints? But overall, the provisions creating the BSA in the Broadcasting Act do not contain a great deal of detail, and seem to have worked fairly well.
Exclusion of mainstream media
Mainstream media are excluded if they have some complaints system for dealing with ethical breaches. Fine, but I think they should only be excluded from the proposal if they have some equivalent body with power to make them remove things from their websites. At present, neither the Press Council nor the BSA do.
Bill of Rights justification
In the comments thread on my post entitled “Defending the Law Commission”, John Edwards takes a swipe at me for giving the Law Commission’s proposals a free pass under the Bill of Rights. He notes that I usually spend a lot of ink criticising people for not properly applying the Bill of Rights. He doesn’t think the Commission sufficiently took account of the free speech issues. I’ll reproduce my response here:
I agree that their BORA analysis might have been better. But there are several powerful answers to this objection. One is that the entire paper is structured around demonstrating that the proposed restriction is justified and that other alternatives are inadequate. It does this explicitly in a BORA framework. The Canadian courts have said that what’s required here is a sensible reasoning process, not slam-dunk evidence.
Another is that the Tribunal will be required to comply with the BORA: that is, any orders it makes must be demonstrably justified. Any order it makes could be reviewed on that basis. In that sense, this proposal is simply not inconsistent with the BORA.
And if, as you contend, the Tribunal is doing no more than policing what the law already allows, and is unnecessary for that reason, then what is it that you think it proposes to do that requires extra justification? On your reasoning, it must surely be demonstrably justified to better enforce existing laws.
Finally, I am not sure how the Law Commission would go about the analysis you propose, beyond what they have done (which I think is a lot). How do you measure its potential impact on online speech? They did, after all, signal their proposal in advance and invite submissions from interested parties, which they have taken into account.
You suggest a wait and see approach. How do you answer the concerns of almost every official and lobby group involved in this area that the existing tools to enforce the law are not adequate?
I stand by all that. But as noted, I do have some Bill of Rights concerns. First, as discussed above, I don’t think the Law Commission has really dealt with the inconsistency between the courts’ powerful reluctance (on free speech grounds) to grant injunctions in defamation cases - and even privacy cases, actually - and the tribunal’s more readily invocable injunction powers. I don’t think this concern is insurmountable, and I think part of the answer is that the courts have been setting the bar too high (there are indications that they may be lowering it in the UK). But I don’t think there was enough ink on this.
Second, I don’t think the proposal has sufficiently grappled with the issues involved in unmasking the defendants. There is a line of jurisprudence in the US about the value of anonymous speech and the chilling effect of processes that allow anonymous speakers to be unmasked. The US courts are increasingly factoring this in when asked to order identities to be revealed. That approach is open to the tribunal under the Commission’s proposal (and I rather think anonymity is used more often as a sheild for malicious attacks rather than a facilitator of contribution to public debate), but I would have expected something more than a brief reference to it (para 5.72).
More significantly, there’s not enough attention paid for my liking to the need to ensure that the defendant is appraised of the complaint and given every opportunity to argue against any order that might be made, including the opportunity to make arguments anonymously. The rules ought to expressly require that the defendant also get an opportunity to argue before any order is made unmasking him or her, whether it be to the tribunal, the complainant or the world at large. The requirement that the tribunal act consistently with “the principles of natural justice” seems to do a lot of work in the legisation, because there are no procedures backing this up. What’s more, the tribunal can make orders against people who aren’t even defendants (if the defendant has been encouraging them to engage in offensive communications toward the complaint). Do those people get a chance to argue the toss?
And even in the briefing paper itself, the best the Commission can say is that “the opportunity for the defendant to be heard would usually be a requirement of natural justice.” I’d like to see procedures set out that required, even for urgent injunctions, that the tribunal bends over backwards to get word to the defendant first. Even the courts in granting such injunctions facilitate informal appearances at the last minute by opposing lawyers.
Third, I think it’s odd that the tribunal must merely “take into account the importance of freedom of expression.” Some cases require more than this. Under the Bill of Rights no order can be made restricting free speech that cannot be shown to be reasonable and demonstably justified in a free and democratic society. Why not use that language here? (In addition, why not add in some more factors to bolster this protection, such as contextual factors like “the extent to which the statement is opinion, or contributes to a debate of public importance? I’m not sure that simply including “public interest” as a factor does all this work).
Fourth, I wonder whether the Commission has been too hasty in its consideration of whether its aims can be achieved by alternative, less restrictive means. John Edwards would argue that the suite of new offences proposed by the Law Commission might be enough to do the trick by themselves. I’m not sure about that: the new offences are generally not accompanied by any mechanisms allowing for take-down orders where they are doing most harm. But one remedy does provide for this: the Harrassment Act. If, as the Commission suggests, the definition of harrassment is extended to include one-off instances of posting damaging material on the internet, then that triggers the Act’s injunctive powers. That would take care of most of the harms we’re talking about here. The Law Commission says that it’s a remedy that still requires legal formality and expense. That’s true. It also says that a tribunal would develop expertise that your run-of-the-mill District Court judge wouldn’t have. True too. And maybe that’s enough to justify a more accessible tribunal right there. But are those differences enough that a new tribunal is “demonstrably justified”?
At the end of the day, I agree with the Law Commission. I ask myself: if I had to be responsible for either (a) the harms that will be caused to people from damaging material that is posted or remains online due to the absence of a tribunal like the one the Law Commission proposes, or (b) the harms that are caused to the rights of free speech of those forced to remove material by over-reaching tribunal orders… which would I choose?
I’d choose (b).
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