Steven Price

My book

Media Minefield


Guide to NZ Media Law

Official Information Act

Official Information Act


Bill of Rights Act

Media law resources

Feeds (RSS)


« | Main | »

Digital harrassment remedies coming

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.

Topics: General, Injunctions, Internet issues | 43 Comments »

43 Responses to “Digital harrassment remedies coming”

  1. rich.d.rich Says:
    April 4th, 2013 at 1:54 pm

    And the new criminal reforms apply to everyone, fullstop.

    Well, to everyone in the NZ jurisdiction, surely?

    The NZ courts won’t have the ability to enforce their judgments against offshore companies, especially when NZ law is out of sync with the domestic law of other jurisdictions. One could assume that anyone wanting to post potentially proscribed content will do so offshore, probably through a VPN or anonymous proxy.

  2. Steven Says:
    April 4th, 2013 at 2:03 pm

    We have jurisdiction over NZers and over foreigners’ actions here. I don’t know whether something posted from overseas and targeted at NZ would count as an action here. It does in defamation cases. But anyone in NZ routing information via foreign platforms is clearly subject to our laws. But that’s rather beside the point, as you note, since it may be impossible to enforce.

    But I’d say it’s beside the point for another reason. Most people being bullied are being bullied by someone in NZ. They know who it is. And the bullying messages or posts will often be full of clues about who it is.

    What’s more, it will be a rare bully who takes the sort of action to hide their identity that you talk about. Most people just don’t do that.

    Finally, the court can order online intermediaries to reveal the identity of anonymous posters. Now, you’ll say “but foreign intermediaries don’t have to comply”. True. But the responsible ones have policies to comply with orders from the authorities they recognise, such as NZ courts.

    Will there be some gaps? Yep. Can some clever people slip the net? Yep. But 90% of a loaf is better than none, I say.

  3. Graeme Edgeler Says:
    April 4th, 2013 at 3:49 pm

    We have people who hold warrants as District Court Judges holding warrants as youth court judges, and family court judges, and jury trial judges. We have District Court Judges who are seconded part time to the Parole Board.

    The decisions as to which of these judges get which of these warrants is ultimately made by cabinet. It is not up to the Court to assign a random DCJ to hear a jury trial if they haven’t been specifically signed off to conduct jury trials, in effect by the executive, as part of the judicial appointment process.

    Is there any reason to believe the same cannot occur with these powers?

    I’m not saying that that is how they plan to do it, but it could, and I have no reason to believe it wouldn’t work.

  4. Steven Says:
    April 4th, 2013 at 3:51 pm

    Yes, they absolutely could, and I rather think it would be a good idea, but (a) it’s not what they are explicitly proposing and (b) this way of doing things seems inconsistent with the language in the Cabinet paper, and (c) it would seem odd to do this by regulation.

  5. copy van cleef and arpels vintage alhambra necklace Says:
    September 5th, 2017 at 6:49 am

    copy van cleef and arpels vintage alhambra necklace

    Enjoyed reading through this, very good material. Thanks!

  6. replica anello love cartier Says:
    October 20th, 2017 at 9:31 am

    replica anello love cartier

    Ted, I think your simple explantion that if social justice (providing services, jobs for the poor would eliminate abortion) is not completely accurate. Rich man, poor man, rich woman, poor woman all can sin. Rape occurs at all levels and is not neccesa…

  7. yourcoloradoproperties Says:
    September 3rd, 2018 at 7:44 am

    yourcoloradoproperties

    af-beautypro, lightupthenight2014,

  8. adidas nmd xr1 triple black boost release date 03 Says:
    September 4th, 2018 at 10:05 pm

    adidas nmd xr1 triple black boost release date 03

    nike kobe bryant 9 high black grey shoesnike mens comfort slide 2 sandalnike air max motion city black pine dusty cactus game royalwomens nike air max 90 trainers grey white blue

  9. adidas tubular sneaker Says:
    September 13th, 2018 at 6:18 pm

    adidas tubular sneaker

    womens new balance 580 elite edition seaside hideaway shoes light grey white wrt580renew balance x 90 black with navykid nike air jordan 11 future black red nike shoes for cheap nikewomens nike air max tailwind 7 blue black

  10. nike womens flex fury 2 Says:
    September 17th, 2018 at 12:17 am

    nike womens flex fury 2

    nike kyrie 3 cool greynike lebron zoom soldier 10 championshipcheap nike air vapormax moc black ah3397 004 vapormaxreebok pump omni lite cardinal yellow white

  11. nike zoom soldier vii Says:
    September 19th, 2018 at 6:35 pm

    nike zoom soldier vii

    nike lebron 15 diamondnike kyrie 2 819583 006 black metallic silverunder armour curry one teal purpleadidas originals i 5923

  12. adidas climacool 1 white gum 2 Says:
    September 30th, 2018 at 7:40 pm

    adidas climacool 1 white gum 2

    cheap nike air jordan 13 white black red mens retro shoesnike air jordan cement 3 iii mens shoes black greyadidas supernova glide 6 gtxnike air max one brown

  13. nike air foamposite pro prm yeezy Says:
    October 8th, 2018 at 5:04 am

    nike air foamposite pro prm yeezy

    cheap scottie pippen shoesblack green orange nike free 40 red v3nike air max orange black expressoff white x nike zoom fly mercurial flyknit orange ao2115 800 03 02

  14. armour ua boxing boots saul canelo alvarez Says:
    October 8th, 2018 at 2:23 pm

    armour ua boxing boots saul canelo alvarez

    reebok little kid big kid flash alac running shoecheap nike air max 2017 black white womens running shoestop deals air jordan 11 low gs prm hc frost whitenike kd 7 black python

  15. men nike air jordan 3 jordan enfant achat cdiscount Says:
    October 15th, 2018 at 10:20 am

    men nike air jordan 3 jordan enfant achat cdiscount

    nike air max 97 max97 black grey green nike air max 97 black grey green 921826 004 size 40 45 for mensnike sb dunk low concord release reminderopening ceremony x adidas originals top tencheap real jordan 4 womens shoes glow in the dark grey

  16. white game royal neutral grey mens nike internationalist casual shoes 631754 104 Says:
    October 20th, 2018 at 3:07 pm

    white game royal neutral grey mens nike internationalist casual shoes 631754 104

    nike air max 90 mens black bluenike air max 98 og volt cool grey volt black metallic silver mens size buy nowrelease reminder nike kd 7 starmarcus mariota inner strength

  17. air flight 89 gs black cement Says:
    October 23rd, 2018 at 9:23 am

    air flight 89 gs black cement

    nike free inneva woven n7 black cool grey wolf grey anthracitenew balance 623v3 womens training shoe blackadidas zx flux adv asym whitenike benassi swoosh size 6

  18. nike air jordan 1 retro high og pine green sail black Says:
    October 26th, 2018 at 10:41 pm

    nike air jordan 1 retro high og pine green sail black

    nike air jordan 1 i retro low white varsity red varsity royal east sidewomens nike air max 90 training shoes denim red whitespecial sales nike air max tn i mens shoes yellow black v pqmens nike free powerlines ii shoes black crimson

  19. nike x nitro air force 1 supreme influencer pack Says:
    November 1st, 2018 at 4:33 am

    nike x nitro air force 1 supreme influencer pack

    watch air jordan 30 unveiling event officially announcednike free rn flyknit blue lagoonconcepts previews upcoming vans sk8 hi collabcloser look footpatrols adidas consortium eqt cushion 93

  20. buy cheap nike air foamposite pro matrix new colorway Says:
    November 1st, 2018 at 7:24 am

    buy cheap nike air foamposite pro matrix new colorway

    womens nike air max 2012 pink white nike air force 1 cheapest pricereplica nike kevin durant 8 limited editioncheap nike footscape magista flyknit blackmens nike air max 97 wheat gold cheap

  21. kd vi black red Says:
    November 8th, 2018 at 7:06 pm

    kd vi black red

    vans lxvi classic litesnike air max 2014 women nike free running uk nikenike womens shox tn shoes white red goldair jordan 1 ko shadow detailed images

  22. nike air yeezy 2 nrg new images Says:
    November 12th, 2018 at 2:33 pm

    nike air yeezy 2 nrg new images

    nike downshifter vi girls running shoes silver pinkgreat men originals adidas stan smith primeknit shoes cq2651 greynike air max 90 hyperfuse wc qs shoes womens black black vapor green tealnike air max 93 grey volt

  23. fantastic adidas d68786 suciu adv men Says:
    November 21st, 2018 at 11:40 am

    fantastic adidas d68786 suciu adv men

    nike air vapormax vapor max asphalt grey 849558 002 cheap sneakers shoeair jordan 13 retro ray allen three point record white clover for sale 2 2018 off white nike2017 nike air jordan1 blue suede 332550 404unisex adidas tubular invader strap black trai…

  24. new balance sneakers 1320 black white mens Says:
    November 21st, 2018 at 12:27 pm

    new balance sneakers 1320 black white mens

    nike zoom rookie mens basketball shoes all blacknike dunk high pro sb mens skateboarding shoescheap mens nike air max 90 hyperfuse navy white red running shoes 454446 087nike air pegasus 89 qs

  25. jordan melo m9 year of the snake Says:
    November 24th, 2018 at 11:34 am

    jordan melo m9 year of the snake

    girls nike air foamposite pro gs prm pure platinum super dealsreebok realflex train 4.0 womens training shoes black pinknike air tech challenge ii turbo greenusa bobcats jordan melo m10 carmelo anthony x

  26. nike sb zoom stefan janoski elite zapatillas ale brown black white sow815105 Says:
    December 21st, 2018 at 9:01 pm

    nike sb zoom stefan janoski elite zapatillas ale brown black white sow815105

    scarpe converse nos chucks redsupra skytop ii black red damskieadidas lider mujernike dunk mid moat herre

  27. nike flyknit air max idealo Says:
    December 28th, 2018 at 2:51 pm

    nike flyknit air max idealo

    adidas osaka herrenike air max 360 men black grey trainers shoes nike 1043nike roshe one print calzado violeta rojo amarilloblazer nike 2015

  28. nike air jordan 12 retro low gs Says:
    January 4th, 2019 at 10:28 am

    nike air jordan 12 retro low gs

    nike zoom hyperfuse x james 10 black silvervans og style 23 v lx nubuckjordan retro 12 size 6yauthentic hyperdunk 2016 brasil

  29. air max 97 tartan nikeavailable Says:
    January 6th, 2019 at 11:24 pm

    air max 97 tartan nikeavailable

    nike free rn flyknit dark blueelegante nike nerebianche nike uomo nike air max 97 plus qs scarpe nikered jordan 11 heelair max frauen kombinieren

  30. men nike air presto ultra flyknit gray nike usa hockey jersey nike air huarache Says:
    January 14th, 2019 at 10:35 am

    men nike air presto ultra flyknit gray nike usa hockey jersey nike air huarache

    acheter nike air max e taille 47bottes de marques women det g nike air max bwnike m jsw tee iconic jumpman mens t shirt mens m jswamazon com adidas womens solar glide st running shoe roadnike lunarglide 9 mens running shoes 904715 black size 9 10 11 12…

  31. nike 2014 kobe black white 9 mens shoes Says:
    January 15th, 2019 at 12:14 pm

    nike 2014 kobe black white 9 mens shoes

    nike shox oz 801 mens kpu all blackmens nike air max 90 ultra moire triple black 819477 010mens nike royal blue orange air max 95 running shoes dyn fwnike air max thea premium black sale

  32. nike air max 90 premium schuhe Says:
    January 15th, 2019 at 2:52 pm

    nike air max 90 premium schuhe

    adidas originals flashback wnike roshe flyknit mens black whitenike running aq0070 101 nike epic react flyknit for womensneaker news march madness nike kobe round 1 south

  33. new balance women 574 street beat Says:
    March 24th, 2019 at 12:17 am

    new balance women 574 street beat

    adidas trx spezial unboxing on footnike air max baseball packpuma tsugi netfit v2 womens sneakersblack white black nike air vortex mens shoe 918206 001

  34. nike sportswearair max essential zero zapatillas black bright crimson gym red Says:
    March 24th, 2019 at 10:19 pm

    nike sportswearair max essential zero zapatillas black bright crimson gym red

    chaussures nike air jordan xx9 black redchaussures air jordan xx8 se playoffsjordan velocity mujernike dunk retro homme chaussures

  35. adidas lk trainer 5 cf k chaussures de fitness mixte adulte Says:
    March 29th, 2019 at 8:06 pm

    adidas lk trainer 5 cf k chaussures de fitness mixte adulte

    nike damen schuhe sneaker air max thea ultra flyknit blau 40.5under armour curry 2 the professional schuhe herrenchaussures nike 3 4 sky force juwop game worn white blackunder armour infinity grade school girls running graphite 3more dames

  36. womens us nike air force 1 25th low shoes white black logo air force 1 Says:
    March 30th, 2019 at 8:50 pm

    womens us nike air force 1 25th low shoes white black logo air force 1

    nike red white lebron 143 of nike air max thea black print trainersnike air force 1 jester xx white black womens ao1220 102 03blue yellow black air jordan v 5 leopard

  37. nike nike free run 2 gs zapatos para hombre Says:
    April 3rd, 2019 at 8:22 pm

    nike nike free run 2 gs zapatos para hombre

    billig kaufen adidas yeezy 350 boost cognac schuhe rabatt preisnew balance 996 sportschoenennike air max invigor mid zapatillas de gimnasia para hombreadidas iniki boost sko

  38. adidas stan smith vulc black black white donna Says:
    April 9th, 2019 at 7:39 pm

    adidas stan smith vulc black black white donna

    scarpe nike air max prime mens casualnike air max 95 wolf grey white grade school kids uomonike lebron 14 university red schuhe herrenadidas originals spezial red black m臋skie

  39. nike air max 1 ultra moire blackgrey Says:
    April 11th, 2019 at 8:47 pm

    nike air max 1 ultra moire blackgrey

    descuento adidas zx 750 mujer nuevo yaowabag423adidas deerupt turbo gs damem谩s adidas forum mid refined zapatillas de deporte para hombreadidas crazytrain elite chaussures de training pour hommes blanc

  40. new balance classics traditionnels grey pink w damskie Says:
    May 1st, 2019 at 5:14 pm

    new balance classics traditionnels grey pink w damskie

    nike air force 1 07 tec tuff sportschoenennike running femme prix algerieadidas skateboarding busenitz core black ftwr white ftwr white 82016 nike air max 90 check im wo alle rosa m盲dchen laufschuhe

  41. scarpe uomo adidas 10xt wtr mid bb9699 calzado de hombre Says:
    May 17th, 2019 at 9:01 pm

    scarpe uomo adidas 10xt wtr mid bb9699 calzado de hombre

    nike absatzschuhe pinkadidas adizero 5 star 7 0 grey mens football cleat m臋skieadidas crazy 8 jrue holiday player editioncaliroots com i 5923 pride adidas originals b41984 448290

  42. homme adidas falcon footwear core noirclair granite bb9173 Says:
    May 19th, 2019 at 1:21 am

    homme adidas falcon footwear core noirclair granite bb9173

    adidas swift run utility black white shoes zumiezadidas originals herenschoenen adidas offici毛le shopmiadidas d rose 6 designschaussures nike blazer mid vinta鈥?/a>

  43. nike shox high arches Says:
    May 22nd, 2019 at 10:37 pm

    nike shox high arches

    nike men green run swift running kvindernike air max 1 white black womens 319986 109 01 damnike air jordan 8 retro doernbecher gs damsoldes chaussures adidas zx flux homme france en ligne sur

Comments

You must be logged in to post a comment.