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« Gobsmacked | Main | Come on NZ Herald, make a clean breast of it »

Defending the Law Commission again

By Steven | September 7, 2012

The NZ Herald’s Chris Barton takes a swipe at the Law Commission’s proposals to create a communications tribunal and a new criminal offence of using a communications device to send grossly offensive material designed to harm someone. I think the way he makes his criticisms is a bit unfair.

He says the Commission’s new offence is illogical as a way to deal with bullying, because it only deals with cyber-bullying and not real-world bullying, which is just as harmful:

The problem with the Commission’s formulations stem from its research. Noting there was a paucity of “quantitative national data on cyber-related communication harms,” it commissioned an independent study which suggested “as many as one in ten New Zealanders has some personal experience of harmful communication on the internet.” Once again its focus is too narrow. How, for example, does that compare with actual bullying at our schools?

In fact, the Commission (after traversing extensive survey evidence on the extent of cyber-bullying of adolescents) goes right on to talk about actual bullying:

These rates were significantly lower, however, than rates of reported physical aggression. 68.3 per cent of participating students reported some form of physical aggression (the use of physical presence or indirect bodily force towards another person or their personal possessions to intentionally cause harassment, intimidation, humiliation or provocation) against them in the last year. Even higher were reported rates of relational aggression (receiving behaviour from their peers that involved disparaging and manipulating actions, embarrassing comments and disclosures, exclusion and indirect harassment) with 90.8 per cent of students reporting some form of this being used against them in the past year. [Para 2.34]

The Commission is very clear that the problem of adolescent bullying goes well beyond cyber-bullying. Cyber-bullying is a subset of bullying, it notes. The two often go together.

Before we swing in and attack the Law Commission for only solving half the problem we should bear a couple of things in mind.

First, it was only asked to tackle cyber-bullying. Its brief is about digital harms. In fact this itself is a subset of its wider terms of reference relating to digitial media generally. The government asked it to fast-track this part of its report. If anything, it’s the bit about encouraging schools to develop general policies about bullying which go beyond its remit, though given that the Commission insists that those policies should include proposals to combat cyber-bullying and seem pretty sensible, it doesn’t seem too outrageous to me. Anyway, this gives lie to Barton’s claim that “Bullying is not, as the commission would have us believe, a problem that only needs to be addressed online”.

Second, the Commission never suggests that its recommendations would end the scourge of bullying entirely. What’s more, it’s disingenous at best to claim, as Barton does, that the Law Commission says that:

Cyber bullying is bad and must be stomped out with new laws, but real bullying at school is not so bad and more research is needed.

In fact, the recommendations the Law Commission makes about new and amended offences and the creation of a communications tribunal would tackle bullying in schools, given that cyber bullying and physical bullying often go hand in hand. (And I wonder whether Chris Barton might consider refraining from suggesting that cyber-bullying isn’t “real”, even though we might see what he’s trying to get at.)

Third, the Commission spelled out in quite some detail (Chris Barton refers to some of its reasoning) why it’s desirable to have in place a special law to deal with cyber-bullying, both as a crime and as a ground for a complaint to a communications tribunal. Cyber-bullying as a method of bullying is unique: no other form of harrassment is so easy to create and distribute, so easy for others to find, so difficult to have removed, so quick to spread, so capable of coming at a youngster from all directions at once. Why not have some tools designed to deal with this particular way of bullying? If bullying at school started to be accompanied by kids bringing guns to school and shooting one another, would Chris Barton criticise the Law Commission for recommending the installation of metal detectors, on the grounds that this doesn’t solve the whole problem?

Fourth, other countries, including the UK and Australia, already have similar criminal laws, as the Commission discusses. The UK’s laws in fact are wider (but still limited to electronic communications).

Fifth, its proposals were mooted in an issues paper last year. They have attracted widespread support from submitters, including the Police, Trade Me, Netsafe, and the Privacy Commissioner.

Finally, if you’re concerned that the law draws a silly line between, for example, bullying letters and bullying texts, then one ready solution is to make the sending of bullying letters, that are grossly offensive and designed to cause significant emotional distress, an offence too. In fact, that’s pretty close to what the Harassment Act already does.

Topics: Internet issues |

4 Responses to “Defending the Law Commission again”

  1. Thomas Beagle Says:
    September 8th, 2012 at 1:33 pm

    “First, it was only asked to tackle cyber-bullying. Its brief is about digital harms. ”

    As arguments go, I’m not sure if “they gave the wrong answer because they were asked the wrong question” is a particularly good one.

  2. Steven Says:
    September 9th, 2012 at 10:35 am

    Except that I don’t think it was the wrong answer, and if its wrongness depends on the criticism that the Commission didn’t answer a question that they weren’t asked to address, then that doesn’t strike me as a particularly good criticism.

  3. Lynne Pope Says:
    September 11th, 2012 at 4:45 am

    “In fact, that’s pretty close to what the Harassment Act already does.”

    Has the Harassment Act ever been used in a case involving digital harms?

    My concern about the Law Commission’s proposals comes down to two things - a focus on digital harms (and particularly on children) as per their brief, resulting in proposed new laws when there is little evidence that existing laws have been used to address such cases; and
    - jurisdiction issues.

    For the first, it seems to me (an non-lawyer) that the Harassment, Privacy, and Telecommunications Acts already cover a lot of the issues arising from bullying, both digital and not. Updating the Telecommunications Act 2001 to encompass electronic transmissions beyond just voice could strengthen that.

    Amendments to the Telecommunications Act, seems to this non-lawyer, to be a no-brainer, especially since I imagine a large percentage of adolescents would be using the internet from smartphones.

    There seems to be an assumption that cyber-bullying happens primarily between New Zealanders. I’d love to know on what basis this assumption is made. From my quick read through the documents I fail to see any provision for involving police in other countries or for the issuance of takedown orders for offending content. For that matter, I don’t see any mention of ongoing takedown orders - as we know, once something is on a site it can never completely disappear. Does the Internet Archive respond to takedown orders? The U.S. Library of Congress does not. Does the National Library of New Zealand?

    Unfortunately, I can’t travel inter-city to get to the workshop & maybe some of my concerns will be discussed there. As it is, with only a quick perusal of the proposal, I feel it is proposing bad law and potentially bad quasi-judicial process. Why is the Internet being treated as a special case? Serious distress or mental harm can just as easily be inflicted via text messaging, phone calls, letters and faxes. Why should a threat on social media, for example, be treated differently to the same threat being delivered by graffiti on a fence?

    In the absence of being able to attend the workshop I’m going to be eagerly awaiting your response ;)

  4. Steven Says:
    September 11th, 2012 at 9:52 am

    Yes, the Harrassment Act has been used for digital harms, but with mixed success and the process is still quite legalistic, expensive and cumbersome.

    What amendments do you propose for the Telecommunications Act? The Law Commission didn’t suggest any, and in fact was rather concerned about the reach of the offences in it.

    There is no assumption that cyber bullying happens only between NZers, just that the cyber-bullying that happens here is our concern. The Commission accepts, as it must, that there will be limited capacity to do anything about harms originating overseas, but notes that some of the bigger and more responsible overseas sites are likely to respond to our courts’ takedown notices.

    There is mention of ongoing takedown orders: see cl 16(1)(b).

    The Law Commission spends most of a chapter explaining why the internet is a special case, which I summarised above. Its proposals include the regulation of text messages.

    I have to say, I think there are fair criticisms to be made of the Law Commission’s proposals. But I think it’s rather unfair to swing in and smack them before you’ve read the Commission’s report.

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