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 |
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