Chapter 8 - Free speech abuses: options for reform

A Commissioner

If the disadvantages of establishing a tribunal are deemed to outweigh the advantages, another option is to establish an independent commissioner to whom members of the public can turn for information and assistance.

Many of the concerns expressed about the harms caused by social media and the internet can be traced back to the fact that there is no clearly accessible central place to take complaints, concerns or questions about material published on the internet. As noted in chapter 7, people can be left feeling that they are “shouting into space.” One response to this is to provide a portal for information and assistance.

The role of this person would be to provide information and where possible assist in resolving problems in an informal manner, for example through mediation. Where appropriate, he or she could also make recommendations to responsible authorities and individuals with the aim of preventing problems or improving the existing situation. In cases of serious harm, the commissioner may refer a complainant to the police. In other cases, many of the harms that we have discussed could be resolved informally by a person with some authority contacting a website administrator to draw their attention to objectionable material, identifying the harm the post is causing, or how it may be in breach of the law.

As we noted in the preceding chapter, the law already addresses a significant proportion of the harms that are occurring as a result of speech abuses on the internet, but often those affected – and the perpetrators themselves – may be unaware of the nature of the offence and the potential remedy. A key function of the commissioner would be to assist citizens access the law.

To be effective, a commissioner would need some limited powers of investigation and inquiry, but we do not envisage he or she would have powers of enforcement. Any matters that required enforcement powers should be left to the police or other authorities. The advantage of a dedicated commissioner is that over time he or she would be able to establish relationships with social media networks and internet entities that may enable issues to be addressed more effectively – so that complainants are shouting to a listener, rather than into space. The feedback we received from Facebook suggests that they are responsive to approaches from authoritative bodies when there is clear evidence of behaviour which contravenes domestic law and or their own terms and conditions.

The commissioner’s role would also provide an early warning system for website administrators who may not be aware that there is objectionable material somewhere on their site.

One proposal is that the commissioner’s role could be attached to the Human Rights Commission. The Commission already has a number of Commissioners focused specifically on areas such as race relations, disability and equality employment opportunities. In its work resolving complaints, the Commission is accustomed to balancing free speech issues against other human rights questions.

Attaching the Commissioner to a well-established entity would also be cost-effective and help with public awareness of the availability of this possible route for seeking assistance. We would welcome feedback on that proposal.