Chapter 7 - Free speech abuses: quantifying the harms and assessing the remedies
Limitations of the law
The challenges of applying the law in cyberspace
Existing criminal and civil law is clearly capable of dealing with many of the types of harmful communication which we discussed in the early part of this chapter. Although many of the laws pre-date the internet, their provisions are often expressed in general terms flexible enough to encompass any form of communication. We have given examples above of successful civil actions and prosecutions. They show that, contrary to some assertions, the internet is not beyond the reach of the law. Effective legal interventions of this kind have a deterrent value.
But the current law is not always capable of addressing some of the new and potentially more damaging ways of using communication to harm others. The obstacles include the difficulties the public can experience accessing the law, including the cost of bringing legal proceedings; the adequacy of investigative resources and tools; problems in the way in which offences are defined; and possible gaps in the types of offences currently included in the statute book.
The difficulties of accessing help in dealing with cyber offending and the sense of powerlessness associated with this has emerged as a recurrent theme in our research and in the feedback we received from the agencies we approached for information.
Many citizens are unaware of the range of criminal offences which may apply to harmful and offensive online speech. Moreover, for those who have suffered real harms, the cost and complexity of pursuing civil action creates a high barrier for most citizens when considering how to respond to attacks on reputation or other damaging behaviour on the internet.
NetSafe told us said it was common for people approaching them for assistance to be distressed at the lack of redress available to them:
Complainants are surprised that there may be nothing Police can do, no mandate for any other agency to intervene, and civil action is very expensive and commonly out of reach for most people. There is a high level of abuse and offensive material which is not necessarily criminal.
The anecdotal feedback we received from police also appeared to indicate that some front-line police experienced a level of frustration at not always having the investigative tools, (including, at times, easy access to internet sites such as Facebook or Bebo from work computers) nor the appropriately defined offences to fit some types of damaging online behaviour.
Resource constraints are also clearly a problem when responding to what may be considered lower level offending such as cyber-bullying or harassment.
Problems of coverage of the law
In our brief outline of the law applying to communications, we noted some limitations in the coverage of the law. In summary, they fall into two categories.
- Some prohibitions, perhaps because they were passed into law before the internet age, do not obviously cover the more modern forms of communication. In some cases their expression clearly does extend so far; in other cases it is ambiguous whether it does or not.
- There are also arguably some gaps in the current law, and types of offensive conduct for which there appears to be no legal sanction or remedy at present.
We believe that amendments to legislation would be desirable to address both these deficiencies. In the next chapter on law reform we shall explain the deficiencies in more detail, and propose amendments.
Sometimes, even if the law clearly has been broken, there may be problems enforcing it. The fact that the internet has no geographical boundaries and that once published, information can be stored and accessed from a practically limitless number of places making it difficult, if not impossible, to remove, are among the challenges posed. In the next chapter we consider whether there are possible solutions to some of the enforcement problems discussed below, but for the moment we simply briefly outline some of the practical questions facing enforcement agencies.
Who are the possible defendants?
If an infringing publication has taken place, who can be held accountable, and against whom will criminal sanctions or civil remedies lie? Possible defendants are any media company responsible for the publication; the editor of the relevant publication (if there is one); the individual who wrote and/or uploaded the item in question; the host of the website on which the item has appeared; and (possibly) the internet service provider (ISP). The current law is complex and unclear. The answer may well be different for the purpose of different rules. It depends on the way the law defines the particular offence or civil wrong – whether, for example, intention or negligence is required; on whether in a particular case the defendant had knowledge of the infringement; on the laws of agency (where a company is concerned); and on what amounts to “publication” for the purposes of the particular rule in question.
The responsibility of ISPs is a particularly important issue. We shall return to it in the next chapter.
Who is the main perpetrator?
Anonymity is often thought to be a feature of the new communication environment, making it difficult to trace an individual who may be responsible for an illegal publication. Yet we understand it is in fact forensically possible to trace most communications to their source. There are some legal tools to compel this – for example, in the criminal jurisdiction, a police officer executing a search warrant can require information necessary to access data from a computer.311
In the civil jurisdiction in Canada, it has been held that a court can administer interrogatories requiring an ISP to disclose the identity of a specific internet protocol address subscriber, although this should be done only if the party seeking such information has been unable to obtain the information in other ways.312 A House of Lords decision provides an alternative route to this end by holding that a defendant which has through no fault of its own become involved in the tort of another can come under a duty to assist the plaintiff by disclosing the identity of the wrongdoer.313 Proceedings have recently been instituted in the UK against Twitter on this basis.314 So there are ways of tracking law-breakers, although the path is not always easy, and the tools not always available. That is particularly so if the organisation holding such information is out of the jurisdiction. But, as we shall show in the next section, a number of responsible website hosts will respond to requests to co-operate with law enforcement agencies.
There can be jurisdictional issues in both the criminal and civil areas. As far as offences are concerned, even though the server hosting a website may be out of New Zealand, it is publication in New Zealand that constitutes the offence here. As Judge Harvey has put it:315
In the present case the availability of the material from a server located in San Antonio, Texas in the United States has little relevance. The evidence before me is that the material was able to be read and comprehended in New Zealand (thus constituting a publication) and the material was uploaded on the Whaleoil blog by Mr Slater present in New Zealand at the time. Thus acts necessary for publication – the creation of the material, the posting of the material and the availability of the material to be comprehended by readers in New Zealand – all took place within the jurisdiction.
If the person who posted the material is in New Zealand he or she is subject to the jurisdiction of the New Zealand courts. That was the position of Cameron Slater, who was fined for publishing on his website the identity of a person whose name was suppressed, even though the server was located overseas. But if the person who posted the material is resident out of New Zealand, there is in practical reality nothing much that can be done in relation to that person. As far as the civil jurisdiction is concerned, there is authority that, at least in theory, a defamation on a website hosted overseas can be defamatory in New Zealand if it is received and read here.316 It is the actual communication to a reader that matters. Action can be commenced in New Zealand against the overseas publisher. However, courts retain a discretion to strike out such proceedings if New Zealand is not the most convenient forum and there are indications that they may not be slow to exercise it.317 Such a proceeding is not a realistic option in most cases.
Then there is the difficulty of spread. Once published, a piece of information can “go viral”; it may be taken up and repeated by others. It is not unusual for a suppressed name which has appeared on a website to spread rapidly via other websites and media such as Twitter. In the UK recently the suppressed name of a football player became the subject of a multitude of “Tweets”. While in theory every repetition constitutes a separate offence for which every person involved could be prosecuted, the practical realities are obviously such that that is unlikely to happen. But that is not to say that there might not be some prosecutions. If the names of offenders can be obtained from Twitter, there is no reason why one or two persons (perhaps the initiator of the swarm of publications, or a person who has incited others to publish, or someone who has offended frequently, or the host of a particularly prominent website) could not be singled out for enforcement measures. A test case of that kind might well have a chilling effect on others. Recently in the UK the Attorney-General said that individuals who had breached an injunction by “tweeting” the name of the footballer in question could be prosecuted: “I will take action if I think that my intervention is necessary in the public interest.”318
No doubt such a prosecution cannot erase the harm already done, nor can it guarantee that the same conduct will not be repeated by others. But this does not mean that suppression orders are a waste of time. They serve to limit, if not entirely contain, the availability of the offending information. Moreover they do serve to keep matter out of the mainstream media, which remains many citizens’ source of information.
Exactly the same is true of publications which constitute civil wrongs such as defamation. If a defamatory statement is repeated or passed on by many people via Twitter, in theory the aggrieved individual could sue them all, but the lack of realism in such a procedure is obvious. It would certainly be possible to choose one transgressor as defendant, but the originator of such a communication will quite often be a private individual who is not “worth the powder and shot”. So while in principle defamation affords a powerful means of redress to an aggrieved person, the practical difficulties in the new digital age are obvious. Yet sometimes the threat of legal action may serve to contain publication, and, perhaps more importantly, may serve to deter the mainstream media picking up the story from the social media. Eady J has put this point, which we have already made in relation to the criminal law:319
It is fairly obvious that wall to wall excoriation in national newspapers, whether tabloid or broadsheet, is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the Internet … to those however many who take the trouble to look it up. For so long as the court is in a position to prevent some of that intrusion or distress … it may be appropriate to maintain the degree of protection.
The law can achieve some measure of control over the new forms of communication. There have been, and continue to be, successful court actions against persons who have engaged in unlawful conduct, be it defamation, breach of privacy, contempt of court, or various criminal offences. The law is not powerless. But its enforcement does pose greater challenges than have traditionally existed. Only so much can be done to change those practicalities of enforcement, but in the next chapter we explore possible reforms.