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

 

The harms

In many respects damaging behaviour that occurs on the internet mirrors off-line behaviours. Harassment, defamation, hate speech, invasions of privacy – all these abuses of free speech predated the internet.

However, as discussed in chapter 1 of this Issues Paper, the architecture of the internet has introduced significant new dimensions to these problems, in many cases amplifying their harmful consequences and forcing us to rethink what might constitute an effective remedy.

For example, the ease with which even the most amateur internet users can capture, manipulate and disseminate personal information about others for malicious purposes, is a new and unique function of the platforms and technologies associated with web 2.0. Social media sites do more than simply replicate the dynamics of the school playground or workplace lunch room. They provide an unprecedented vehicle for the viral distribution of gossip and information, enabling malevolent users to target a victim’s social network simultaneously. Moreover, damaging content can be difficult, if not impossible, to completely eradicate.

The advent of powerful search engine technology has blurred the parameters between the public and the private spheres of life.

Searching on a person’s name can instantly retrieve damaging or misleading content which, in the absence of a web browser, would be invisible to all but the handful of individuals disseminating it.

Practical anonymity can encourage abusive speech and at the same time shelter the abuser from any consequences of their actions. “Flaming”, a term used to describe the posting of inflammatory and abusive comments on the internet, has become a common feature of internet discussions, as has the practice of adopting multiple internet identities (or avatars).

Harmful content can continue to cause damage long after the original publication. Online “reputation management” has become an industry in its own right, manipulating search engines to bury damaging content. In the course of our research we were told that the work involved in replacing one or two damaging articles that appear on the first page of a Google search results page could cost approximately $2,250.224

But to date, those without money, technical know-how, or personal or professional influence, have had to come to terms with the power of web browsers to define their online persona.

Estimating the number of New Zealanders who have suffered significant harm either individually or professionally as a consequence of abusive publishing presents real difficulties. Each day New Zealanders undertake a great variety of online activities from banking and retailing to social networking and entertainment. In each of these spheres they risk exposure to a range of potential harms, from identity theft and fraud to reputational damage or exposure to offensive material. The absence of any central repository for recording adverse events makes it difficult to estimate how frequent and how serious these events are.225

The following summarises the information we received from New Zealand Police, the Human Rights Commission, the Office of the Privacy Commissioner and NetSafe with respect to harms caused by internet publishing.

New Zealand Police response

The anecdotal evidence provided to us suggested police were being asked to respond to a broad range of offending, not all of which met the threshold of a criminal offence – or indeed constituted any sort of offence under our current laws. Examples provided to us as part of an informal survey of district officers included:226

  • investigations into online breaches of court orders, including name suppressions and publication of suppressed evidence on social media sites, blogs, and message boards;
  • investigations into instances of alleged harassment, cyber-bullying and threatening behaviour;
  • investigations into identity theft and malicious impersonation;
  • investigations into alleged sexual predation/grooming;
  • investigations into the malicious use of the internet to disseminate offensive or damaging information;
  • investigations in response to threatened suicides publicised online.

One example of malicious publishing provided to us involved the peers of a young person who had committed suicide posting offensive and denigrating messages about the deceased on a social media site:227

We had a number of juveniles that were committing suicide and then some of their ‘so called’ friends would post nasty comments that hurt the family.  I was able to get Bebo to close down the site to any further posting and remove the nasty ones.

Police have also occasionally become involved in instances where the internet has been used to threaten or intimidate. In 2007 police protection was provided to a dozen social workers who were named in threatening and derogatory posts on the CYFSWatch website.228 In 2010 police investigated a case in which a Dunedin man published death threats against another person on Facebook, and most recently, in September 2011, an 18-year-old was charged after threatening the government in a video posted on YouTube.229 In November 2011 an 18-year-old male pleaded guilty in the Christchurch District Court to two charges of making an objectionable publication after he used his cellphone to make an intimate video of a female acquaintance. The existence of the video became wildly known among the victim's peer group and on social media networks.230

There was also evidence to suggest that social media were being used by parties involved in family court cases, including custody disputes and sexual abuse investigations, with one officer reporting a case where Facebook postings by family members on opposite sides of a sexual abuse allegation led to a formal complaint after the identity of the alleged abuser was revealed. A similar case was brought to the attention of the Blenheim District Court in September 2011 when the lawyer acting for a man facing multiple sex charges said his client, who had name suppression, was “outed” on Facebook by the families of his teenage victims.231

A Crown Law analysis of 28 investigations into alleged breaches of court orders over the past two years reinforced the claim that many complaints arose in the context of Family Court cases, with suppressed details allegedly being published in a variety of media, including websites and social media sites.232

Privacy and Human Rights complaints

A sample of internet related complaints and enquiries fielded by the Privacy Commissioner’s office over a two year period between 2009 – 2011 indicated that a significant proportion involved the misuse of personal information in the context of family or personal relationship conflicts, including for example the posting of incriminating photographs on social networking sites.

Under section 56 of the Privacy Act information collected or held in connection with a person’s personal affairs is exempt from the Act and so in many of these cases the Commission has been forced to decline jurisdiction.233

Other common complaints involved instances where a person believed their privacy may have been breached after an employer or work colleague had discovered incriminating or inflammatory content on the complainant’s Facebook page, resulting in some form of disciplinary action. The Commission told us that people often mistakenly believed such content was private despite the fact it may be available to a wide circle of friends and acquaintances within the Facebook community.234 In other instances people sought the Commission’s assistance when false Facebook pages were set up in an individual’s name and were used to embarrass or otherwise harm the complainant.

Complaints were also upheld in two instances where individuals had legitimately obtained sensitive personal information under the Official Information Act but had then gone on to breach the Privacy Act by publishing the information on their own websites. In one instance the publication revealed sensitive financial information and in another identified children who were allegedly the victims of a crime.

The Commission had also faced a claim that publishing damaging personal information on a person’s website was covered by the “news” exemption. However in the Commission’s view the exemption did not apply to the website in question.

The Human Rights Commission is another forum for complaints about internet publishing which may breach New Zealand laws.235

A survey of internet-related complaints handled by the Commission between January 2008 and June 2011 found 110 complaints relating to potentially discriminatory content on websites; 30 of these related to content hosted on New Zealand sites and the remainder on overseas sites – predominantly Facebook.

Almost all of the 33 complaints regarding overseas sites received between January and June 2011 related to a homophobic US website linking the Christchurch earthquake to sin. Race-related complaints comprised the majority of other complaints over the whole survey period. The Commission considered it was unable to accept jurisdiction over these complaints because the content was hosted overseas.

The majority of complaints about New Zealand hosted content were also race-related but over 40% were resolved at the inquiry stage. Of those that were referred for investigation the majority did not reach the threshold to be progressed.

While this complaints analysis might suggest that racial harassment and abuse is not a major issue for New Zealanders operating on the internet, this was not the conclusion reached by researchers at Victoria University’s Centre of Applied Cross-Cultural Research who analysed the online commentary following a number of high profile controversies involving broadcaster Paul Henry and politician Hone Harawira in 2010.236

The centre’s deputy director Professor James Liu told us he was disturbed and discouraged by the levels of hatred, obscenity and violence implicit in much of the commentary that accompanied video clips of these broadcasts hosted on YouTube.

He believed the anonymity of the comment functions provided on sites like YouTube and the lack of effective monitoring of hate speech raised real risks for the standards of public discourse around race issues. The fact that these commentaries were easily accessible to young people increased the cause for concern.

 

NetSafe

As part of its work promoting cyber-safety, NetSafe staff provides an advisory service to members of the public dealing with internet issues which may or may not be unlawful, but which nonetheless cause significant distress and sometimes harm to the individual. It is one of the few avenues available to the public when dealing with issues such as hate speech, harm to reputation and various forms of online harassment.

Between April 2009 and June 2011 NetSafe logged 1,279 inquiries from members of the public dealing with a range of internet issues. Text and cyber-bullying accounted for a significant proportion of these, together with incidents involving the misuse of social networking sites to victimise, harass, defame or intimidate individuals.237

Cyber-bullying and harassment took a variety of forms including emails, texts, phone messages, blog sites, and forums. NetSafe told us that in some cases compromised Internet accounts were used to send out malicious rumours and false information to the contacts of the person concerned.

A significant proportion of complaints and inquiries related to the misuse of social networking sites. These sites were used to launch attacks on people’s reputations, spread damaging and degrading rumours, publish invasive and distressing photographs and harass individuals. Sometimes the offender would set up a false profile page on a social networking site or in dating or pornography sites to disseminate the damaging content.

NetSafe provided us with a number of anonymised examples of the type of harms reported by members of the public to them. Among these were the following scenarios:

  • In 2011 NetSafe began to receive complaints from parents and schools concerned about the proliferation of anonymous Facebook pages used to publish derogatory and often sexually explicit rumours about students. NetSafe told us the first of these gossip pages to come to their attention included “extremely derogatory” comments about students and ultimately is thought to have played some part in the suicide of a young girl. The parent who approached NetSafe for help had tried unsuccessfully to have the pages taken down by Facebook. In this instance NetSafe used a recently established personal contact with Facebook to have the sites removed. Since that time a number of similar sites have emerged, including one focused on pupils from four top Auckland high schools. Facebook pages can only be set up by Facebook account holders and so it should be possible to identify those responsible for establishing these pages. NetSafe passed on to the Law Commission Facebook’s response to its queries regarding these malicious gossip sites:

Our team has begun an investigation of the persons responsible for creating these accounts and will take action on those in line with our terms.  While we cannot release the details of these investigations, you can rest assured that there will be action taken against persons who engage in this sort of abusive behavior, as we have no tolerance for bullying. 

  • The establishment of fake Facebook pages for malicious purposes also features prominently in complaints dealt with by NetSafe. One such example provided to us involved a prison inmate who was alerted to the fact that someone had set up a fake profile page publishing personal details which placed both him and his family at risk. His partner was unable to have the site taken down and the prisoner himself had no access to the internet and was unable to report the abuse. NetSafe eventually succeeded in doing so but only a month after the page was first published.
  • In another case the principal of a South Island secondary school told us of a year-long and as yet unsuccessful battle to remove a fake Facebook page purporting to belong to a teacher. The site originally included lewd comments which were both distressing and damaging to the teacher concerned but despite repeated reports to Facebook, the page remained. Police advised there was no law against impersonating another person unless there was some pecuniary gain and no crime had been committed. The principal commented to us that their inability to engage with a real human being associated with Facebook left them feel as if they were “shouting into space”. He told us the incident was not isolated.
  • Another recent example of malicious impersonation involved a professional woman whose job required her to maintain a strong online profile but who found her profile had been linked to a pornography site in such a way that when her name was “googled” it was indexed to an item which said “Hottest Whore” and sent searchers directly to the pornographic site. This had caused immense distress to the woman and her family.
  • NetSafe also provided examples of threatening, abusive and malicious postings made using email, websites, forums, blogs and mobile telephones. Personal information obtained in one context could often be used to harass a person in numerous different ways as illustrated by this complainant:

someone is stalking me and my family. They are sending me mail in the post, they have got a phone sim and text….they got all my kids private info and are putting it up on fake Facebook pages, they have included my neighbour and old boss and a current colleague – it’s sexually explicit and harassment and stalking. There have been threats but we have no idea who is doing it. …the police know but say there is nothing they can do to trace this person.

NetSafe has also participated in recent government-led discussions about the ways in which the internet is impacting on New Zealand’s long standing problem of youth suicide and self-harm. The impact that both traditional and new media can play in either ameliorating, or exacerbating, the problem is a matter of on-going debate in this country.

The Coroners Act 2006 imposes tight restrictions on the publication of detailed accounts of individual suicides in the belief that such publicity can in some circumstances contribute to copy-cat suicides and can lead both to the normalization and glamorisation of suicidal behaviours. In addition the Ministry of Health has developed Suicide Reporting Guidelines for the news media. These guidelines are currently under review after the Chief Coroner, Neil MacLean, questioned whether there may be benefit in more open public discussion about the problem. One of the points raised by the news media in the context of this review was that the current legislative restrictions were being substantially undermined by suicide discussions in social medal networks.

A preliminary report on the issues prepared for the Prime Minister John Key in November 2010 by the Ministerial Committee on Suicide Prevention noted the complex and only partially understood impacts of the internet on self-harming behaviours:238

On the positive side, the internet can provide support, information and a community for those contemplating suicide or who are self-harming. On the negative side, cyber-bullying is an increasing issue, as are websites that encourage suicide and give information on ways to commit suicide.

The report noted that while there was little empirical research into the effects of social networking sites on rates of self-harm, “the evidence appears to building of a link between memorial pages and suicide contagion.”239

Revised suicide reporting guidelines were due for release at the time of writing.

International experience

A recent study on cyberstalking undertaken by researchers at Bedford University in England, supported by Britain’s Crown Prosecution Service, found cyber stalking was now more common than physical harassment. Perpetrators often targeted total strangers rather than people with whom they had some past association such as former partners. Nearly 40% of the victims were men and most were aged between 20-39.240

One of the report’s co-authors, psychologist Dr Emma Short, told the Guardian there was lack of understanding of the impacts of online harassment and that in a third of the cases surveyed the victims had experienced clinically observable psychological harm.241

The survey found incidents where people had received death threats and victims were made to believe the perpetrator knew how to physically reach them and their family. Others had suffered serious reputational damage and psychological distress after the perpetrator used social media to circulate false allegations about them.

One example highlighted in the Guardian report involved the online harassment of a 47-year-old woman and her family which involved the perpetrator harvesting information about the family from the internet, including the children’s social media postings, to create a sense that they were under surveillance. He also posted allegations about the couple, including a claim they were paedophiles and had been involved in drug dealing. Despite the menacing and sustained nature of the harassment the couple failed to get any assistance from the police until the perpetrator, who was a casual acquaintance, caused physical damage to the couple’s car.

Variants of this type of behaviour have been reported around the world including the well documented case of female students at Yale Law School who were eventually forced to sue those responsible for a sustained anonymous campaign of sexual harassment launched by a group of young males on the college admissions webforum.242

An article on the online site of Wired magazine backgrounding the events which gave rise to the damages lawsuit explained how harms caused by the original postings had been amplified by the web:243

The Jane Doe plaintiffs contend that the postings about them became etched into the first page of search engine results on their names, costing them prestigious jobs, infecting their relationships with friends and family, and even forcing one to stop going to the gym for fear of stalkers.

In other cases people have impersonated an individual online, setting up false accounts on pornography or dating sites and impersonating them in chat rooms or on message boards in order to incriminate them or set them up as sexual targets.

In another well documented American case a man whose advances had been rebuffed by a female acquaintance set up bogus accounts in her name and impersonated her in online chat rooms and email, suggesting she fantasised about being raped. He published her physical address and phone numbers, including details about her home security system. On at least six occasions men arrived at the woman’s door in response to the supposed invitation to rape her.244

Although we are not aware of any official statistics recording the prevalence of cyberstalking in New Zealand the information provided to us by NetSafe suggests that many of the incidents they are responding to, including online impersonation and smear campaigns, are designed to intimidate and cause psychological distress. It is also evident from reviewing a number of the school-related gossip sites that female students are frequently targeted in a sexually derogatory manner.

Alongside these intrusive and threatening online behaviours, there are now daily reports in the world’s media of a range of harms associated with online publishing. These include claims of reputational damage to individuals and businesses; privacy breaches; a range of threats to trial processes, including publication of suppressed evidence and prejudicial behaviour by jurors.

Increasingly these cases involve ordinary citizens using social media rather than the news media.

In a landmark case in Britain a 25-year-old man received an 18 week custodial sentence and a five-year “anti-social behaviour order” prohibiting him from using social media after he pleaded guilty to sending malicious communications relating to the deaths of teenagers, including a girl who had been hit by a train.245

The case, which bears some resemblance to the incident reported to us by New Zealand police involving offensive messages left on the memorial page of a teen who had committed suicide, involved the offender not only posting offensive comments on the dead teen’s Facebook tribute pages but also creating a You Tube video where he superimposed the dead girl’s face on the front of a train engine.

Information provided to the Law Commission in confidence by a New Zealand search engine optimisation company.

Computer security company Symantec has published a number of surveys on cybercrime based on interviews with 20,000 adults in 24 countries including New Zealand. The 2011 Norton Cyber Report estimated that cybercrime, which included financial scams, viruses and malware as well as identity theft and harassment cost New Zealanders NZ$625.5 million in 2010-2011.

This summary drew on preliminary feedback to the Law Commission’s review provided to police legal advisers by district police. (March 2011).

Ibid.

The original site was closed by Google following a complaint from the Ministry of Social Development but the offending content was then posted on mirror sites.

Andrea Warrington “Teen charged over internet video threats.” The New Zealand Herald (New Zealand, 20 September 2011). Rachel Taylor "Dunedin arrest after Facebook death threat" Otago Daily Times (New Zealand, 23 June 2010) < www.odt.co.nz >. The 17-year-old Dunedin man investigated over the Facebook threats was convicted and sentenced in the Dunedin District Court to 100 hours community work < www.odt.co.nz >. 

David Clarkson "Girl forced to move after sex act filmed" Christchurch Court News, 25 November 2011, < www.courtnews.co.nz >.

“Facebook ID defied court order” Marlborough Express (New Zealand, 2 September 2011).

Crown Law emphasised that some complaints were quickly resolved informally and did not result in a formal investigation. The 28 complaints investigated resulted in a variety of actions including contempt proceedings, referral to the police and the removal of the offending content.

As part of the Law Commission’s 2011 review of that Act we recommended that section 56 be amended to provide that this exemption would no longer apply where the collection, use or disclosure of personal information would be highly offensive to an objective reasonable person.

The Privacy Commission’s 2010 UMR survey, Individual Privacy & Personal Information, UMR Omnibus Results March 2010 found that 57% of those surveyed believed that Facebook and other social media sites were private spaces – < www.privacy.org.nz >.

Section 61 of the Human Rights Act 1993 prohibits publications which are “threatening, abusive, or insulting” and “likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.” 

James H. Liu, Caren August, Anne Waapu and Arama Rata Racism in New Zealand Through the Lenses of Controversy Provided by Social Media on Paul Henry and Hone Harawira, (2011) School of Psychology, Centre of Applied Cross-Cultural Research, Victoria University of Wellington < www.diversityissues >.

As well as its advisory and educative roles NetSafe has worked with the New Zealand Police, the Privacy Commissioner and the Department of Internal Affairs to provide internet users with a destination site for reporting incidents on the web which may involve law breaking. The site, called the ORB, provides nine different avenues for lodging online complaints including: internet scams or frauds; privacy breaches; child pornography and exploitation; computer system attacks; objectionable material and online trading issues. The site has been operating for a year and in that time the “child alert” link had been used 101 times to access the Department of Internal Affair’s Censorship Compliance Unit to the presence of possible child sexual exploitation on the web; 69 times to access the specialist New Zealand police team focused on tracking online child exploitation in New Zealand; 25 times to report objectionable material to the Department of Internal Affair’s censorship team and 30 times to report possible privacy breaches to the Privacy Commissioner.

Ministerial Committee on Suicide Prevention Review of the restrictions on the media reporting of suicides (prepared for the Prime Minister, Rt Hon John Key, November 2010) at [21]< www.moh.govt.nz >.

Ibid at para [7].

This finding contrasts with other research which has found women much more likely to be the victims of cyberstalking than men. Although there are no official statistics on the incidence of cyberstalking, the British Crime Survey estimates up to 5 million people experience cyberstalking each year in the UK.

Karen McVeigh “Cyberstalking ‘now more common’ than face-to-face stalking” Guardian (United Kingdom, 8 April 2011) < www.guardian.co.uk >.

Ryan Singel “Yale Students’ Lawsuit Unmasks Anonymous Trolls, Opens Pandora’s Box” Wired 30 July 2008 < www.wired.com >. For a full discussion of online harassment see for example Martha C. Nussbaum “Objectification and Internet Misogyny” Saul Levmore and Martha C Nussbaum (eds) The Offensive Internet: privacy, speech and reputation (Harvard University Press, 2010) at 68.

Ibid, < www.wired.com >.

In April 1999 the offender pleaded guilty to three counts of solicitation for sexual assault and one count of stalking: Joanna Lee Mishler, “Cyberstalking: Can Communication via the Internet Constitute a Credible Threat and Should an Internet Service Provider be Liable if it does?” (2000) 17 Computer and High Technology Law Journal at 115.

See “Internet Troll Jailed After Mocking Teenagers” (2011) Guardian < www.guardian.co.uk/uk/2011/sep/13/internet-troll-jailed-mocking-teenagers >. The defendant was charged with two counts under the Communications Act 2003 (UK) – < www.thelawpages.com/court-cases/Sean-Duffy-7443-1.law >. Section 127 of that Act provides:

“Improper use of public electronic communications network:

(1)A person is guilty of an offence if he–

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) causes any such message or matter to be so sent.

(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he–

(a) sends by means of a public electronic communications network, a message that he knows to be false,

(b) causes such a message to be sent; or

(c) persistently makes use of a public electronic communications network.

(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).”