By Steven | April 4, 2013
Justice Minister Judith Collins has (by and large) accepted the Law Commission’s recommendations to better protect victims of cyber-harrassment. (I have explained and defended and critiqued and defended again the Law Commission’s proposals elsewhere).
Note that this is not the same as the Law Commission’s recently confirmed plan to set up a one-stop regulator for the news media (discussed here and in subsequent posts). That only applies to news and current affairs and it only applies to those who voluntarily sign up. The new cyber-bullying civil remedies, by contrast, apply to everyone except the news media who sign up to that regulator. And the new criminal reforms apply to everyone, fullstop.
I think these reforms are justified. The Law Commission has made a good case that there’s plenty of cyber-bullying going on, and some of it is very harmful indeed. Most of the criminal law changes are about tweaking the law to ensure that it can apply online. The new civil remedy, which includes take-down orders made by judges, is beset by protections for free speech, so it ought not to be used except where strictly justified. To get a take-down order, you’ll have to do all of the following:
– show that someone has caused you digital harm, which can include significant emotional distress
– show that they’ve done so by breaching one of ten principles, designed to reflect existing law (eg they’ve disclosed sensitive personal facts about you, or has been intimidating or threatening)
– take your complaint to an approved agency (which might be Netsafe), who can give you advice, and perhaps try to resolve the complaint by mediation
– (it seems) obtain Netsafe’s certification that its attempts to resolve the situation have failed and the case is appropriate to go before a judge
– convince a judge that one or more of the principles have been breached, causing you harm
– convince a judge that the context of the digital communication and the surrounding circumstances do not tell against a remedy
– convince a judge that the Bill of Rights guarantee of free speech does not tell against a remedy
If you can do all that, you may get a take-down order, or a right of reply, or a correction, but you won’t be able to get damages. And the person concerned may appeal. So there are sufficient protections, I think, against abuse. Still, I expect there to be wails of protest from free speech absolutists, who are unlikely to draw attention to the protections I’ve just set out, and may not even be aware of them.
I still have some concerns, and they’re mostly set out in my critique of the Law Commission’s report.
But some are new. The biggest difference between the Law Commission’s recommendations and the government’s plan is the dumping of the separate Communications Tribunal. Instead, District Court judges are to be given powers to hear these cases and make these orders. What’s that you say? Is our entire body of district court judges tech-savvy enough, and alive enough to the nuances of the Bill of Rights, to handle these cases? How many of them have, for example, visited Facebook or read a tweet? The Law Commission proposed a panel of specialist judges with this interest and skill (come in: David Harvey) to head the tribunal. No problem, says the government. “It is envisaged that in assigning cases account would be taken of a particular judge’s interest, understanding and expertise in media law. This would allow greater expertise in the subject matter to be developed over time.”
It’s true that the judiciary do engage in a bit of horses-for-courses when assigning cases for hearing. But I doubt this is the answer here. For a start, this is up to the judiciary. Are the regulations going to tell judges how they are supposed to assign their cases? I think that’s opening a can of constitutional worms and I bet they avoid it. Besides, many of these cases are going to be urgent. And they could come in at any time, in any part of the country. Often, there won’t be time to track down an expert judge. So I worry that we’re going to get decisions by some judges who can barely work their email and who have never had to deal with the Bill of Right’s free speech clause before. I am sceptical about the development of greater expertise in a specialist subset of judges.
I also have a question about the new offence of using a communications device with intention to cause harm. The government’s press release says that this offence is about sending or posting messages that are grossly offensive, indecent, obscene, menacing or knowingly false. And that’s what the Law Commission talks about. But para 116 of the Cabinet paper talks of people “using technology to control their partners, including tracking and monitoring of their partners’ movements by reading text messages and internet search histories, and reviewing GPS usage.” It suggests the new offence of using a communications device with intent to cause harm will “go some way to protect” such people. That implies that the offence (whose wording has not been finalised) isn’t just about sending and posting messages. It may be about accessing information too. Now, I’m not sure whether this is what the government intends to do. I’m not even sure it would be terrible. But it’s not what the Law Commission was talking about and seems to warrant a bit more thought and debate.
Then there’s the bit about the Bill of Rights. Under the proposal, the court is supposed to “take account” people’s right to freedom of expression. I’ve assumed that this means that they must properly apply the Bill of Rights. But that’s more than “taking account” of the right to free speech. It means complying with that right, unless any particular restriction is demonstrably justified under section 5 of the Bill of Rights. So I’m suspicious of this language of “taking account” which on one reading may imply something less. But the Bill of Rights applies to the courts and must surely apply to the public functions of the approved agency. So I’m hoping there’s nothing in this point.
And I’m still worried about the mechanics of unmasking anonymous posters and ensuring that those who might be subject to take-down orders (including third parties) or unmasking orders get a proper chance to argue the toss before the order is made. To some extent, the devil will be in the details. The government has left a lot of work to the drafters of the legal framework.
Incidentally, that legal framework will be contained in regulations. That strikes me as a little bit odd. The government is creating a new remedies regime, and conferring extra juridiction upon the courts. The Law Commission was envisaging a statute. The advantage of regulations is that they can be easily changed without full Parliamentary rigmarole and scrutiny. The disadvantage of regulations is that they can be easily changed without full Parliamentary rigmarole and scrutiny. I would hope that at least the essential foundations of this new law will be set out in a statute.
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