Chapter 7 - Free speech abuses: quantifying the harms and assessing the remedies

Introduction

The large majority of New Zealanders publishing on the internet will not be within the regulatory system we have proposed for the news media. In essence they will be able to exercise complete freedom of speech, within the limits of the law. They can, without fear of any regulator, be inaccurate in their facts, unbalanced in their coverage and extreme in their opinions. The public can rely on them, or not, as they see fit. They would not be recognised as “news media” for the purposes of the statutory privileges.

But, as noted in chapter 6, even though they would be beyond the reach of any regulator, these other publishers will remain subject to the law. They will be liable to the same consequences as the established media for wrongs such as defamation, contempt of court, publication of a suppressed name, breach of copyright, etc.

Before the advent of the web, the risk of causing harm to others through the exercise of free speech was most commonly a question that concerned the news media rather than ordinary citizens. However, now that everyone has the ability to publish, these risks – and potential liabilities – are much more widely shared.

The idea of restraining, or delaying free speech, in order to protect other human rights is an anathema to many internet users. Free speech values and an abhorrence of censorship have been hardwired into the architecture of the internet and are deeply embedded in its culture. When attacked, these values are often fiercely defended.

However, censorship is not the only enemy of free speech. Those who exercise their free speech to intimidate, bully, denigrate and harass others on the internet lessen the credibility of free speech arguments. Even though the web provides those who are harmed by abusive speech the opportunity to exercise their right of reply, not all have the courage or the standing to exercise it. In effect, those who exercise their free speech rights to cause harm may inhibit others from participating freely in this vital new public domain. The practical anonymity afforded abusers, and the lack of real-life consequences can create an environment where such abusive behaviour can thrive.221

The law imposes constraints on certain types of speech and in some circumstances provides remedies for those harmed by others’ speech. However most of these laws were drafted in the pre-digital era and questions now arise as to how effective they remain. These questions have given rise to the third leg of our terms of reference, which requires us to consider:

  • whether the existing criminal and civil remedies for wrongs such as defamation, harassment, breach of confidence and privacy are effective in the new media environment and if not whether alternative remedies may be available.

In order to address this question we must first understand the nature and scope of the problem of speech abuses on the internet. To assist us we approached a number of organisations for feedback on the nature and scope of the issues they were confronting with respect to internet harms. Among these were New Zealand Police, the Solicitor General’s Office, the Privacy Commissioner, the Human Rights Commission, and NetSafe, an independent multi-stakeholder organisation which promotes the safe use of the internet in New Zealand.222 We also approached Facebook, Google and Trade Me for information about their own internal systems for managing speech abuses.

We outline below the scope of the problem associated with abusive and harmful speech on the internet, and review the various forms of legal redress available to the public when publishing causes real harm.

We then discuss the weaknesses and the gaps that appear to exist in the current law with respect to harmful communications in the digital era, foreshadowing areas where we believe there may be merit in amendments, or the creation of new offences. We also consider the problems encountered by those seeking to access and enforce the law with respect to internet-based offending.

Finally we consider the alternative remedies available to those who are the victims of online speech abuses, namely the self-regulatory systems put in place by the corporations which control the global internet properties where hundreds of thousands New Zealanders congregate each day – corporations such as Yahoo, Google and Facebook.223

Internet experts advise that anonymity on the internet is, in most cases, more perception than reality. IP numbers are associated with material posted on the internet making it possible to trace the originator of most content. While anonymising tools are available they are not easy to use.

NetSafe was established in 1998 as an independent non-profit organisation committed to improving community understanding of the internet and how to enhance safety and security online. It works with a range of governmental and non-governmental organisations including its core strategic partners, the Ministry of Education, the Ministry of Economic Development and InternetNZ, a non-profit open membership organisation whose aim is to promote and protect the internet in New Zealand.  

Analysis of New Zealanders’ online habits by digital media measurement company comScore show that social media sites consume the lion’s share of the time we spend online. In May 2011 96% of all New Zealand internet users visited a social media site and 79 % visited Facebook. (By comparison, Myspace and Twitter’s reach was only 8.2% and 8.5% of the potential online population.) The average time spent on Facebook by users in May was 310.9 minutes – compared with 133.6 minutes on Trade Me; 163 on Google sites; 36 minutes on Fairfax news sites and 30.2 minutes on APN News and Media sites. Google’s dominance in the New Zealand search market is even greater than Facebook’s: of the 2.6 million unique searches carried out by New Zealand internet users in May, 90% involved searches performed on Google owned properties (YouTube and Google Maps included).