Chapter 8 - Free speech abuses: options for reform
A lower level Tribunal?
As we have seen there is already an armoury of legal rules which control the harmful use of communications. We have proposed ways in which that legal armoury might be enhanced and strengthened to render it more fit for purpose in the internet age. The courts have significant powers in relation to unlawful communications. They include criminal sanctions, and civil remedies such as damages and injunctions. We have asked in the last section whether there should be a further power to make take-down orders against channels of communication such as ISPs even though they themselves may not be legally responsible for the item in question.
It is the courts which impose the sanctions and remedies. But courts are heavy machinery. Individuals may have neither the means nor the will to pursue transgressors through the court system. We ask in this section whether there is room in New Zealand for a Communications Tribunal at a level lower than the court system, which could administer speedy, efficient and relatively cheap justice to those who have been significantly damaged by communications in media of all kinds.
In its 2008 Issues Paper Tribunals in New Zealand,347 the Law Commission traced the long history of tribunals, and examined the rationale for their establishment. Tribunals can be set up for different reasons and to fulfil different ends. Many are for the purpose of reviewing and appealing administrative decisions, others are for regulating and disciplining members of professions. However, most relevant in the present context, others exercise the function of administering justice between citizens by resolving disputes and awarding remedies. This last group exercise a purely judicial function, and perform a task which might otherwise be done by a court. They are, in fact, mini courts. In New Zealand they include the Disputes Tribunal, the Copyright Tribunal, the Employment Relations Authority, the Motor Vehicle Disputes Tribunal, the Human Rights Review Tribunal, the Tenancy Tribunal, and the Weathertight Homes Tribunal.
There are several main justifications for setting up tribunals of this kind. First, they enhance public access to justice. They are less expensive for litigants: the filing fee is low, or even non-existent. They usually operate with less formal procedures than a court, and can receive evidence which might not be admissible in court. To this extent they are less “intimidatory” than a court.
Secondly, because their jurisdiction is limited in subject-matter they can dispose of cases more quickly than a court. Speed and efficiency are hallmarks of a good tribunal system.
Thirdly, they enable the development in each tribunal of subject-matter expertise. An expert, specialist, subject-matter tribunal is not only likely to make better decisions: it is also likely to dispose of cases more efficiently, and its decisions are likely to be more consistent.
A Communications Tribunal
We think a Communications Tribunal would exhibit all these advantages. We said in the previous section that while the law is capable of providing remedies for many types of harmful conduct, it is often unrealistic for an individual to bring court proceedings, or even to lay a complaint with the police. A tribunal could administer quick and efficient justice in a more informal manner than can the courts. Sometimes it could operate by telephone or video conference. Often speed can matter: a complainant may want offensive material taken down quickly. The comment was strongly made to us in consultations that “there really needs to be a way for people to get faster takedowns across the board”.
It would also constitute a single, well publicised and accessible point of entry for those wanting a remedy for harmful media communication. Currently some parties may contact police, others NetSafe, others a website host (if they have the knowledge); others may not know where to start. The simplicity of a single “one stop shop” with easy access has attractions.
The tribunal would develop considerable expertise not just in media law, but also in modern communications technology. That combination of two areas of specialist knowledge does not often coexist in one individual. The tribunal would become experienced in the balancing exercise required by the Bill of Rights Act; this has proved a challenge for some courts, let alone lay tribunals. It is crucial in this area that proper weight be given to freedom of expression, and that only truly harmful communications be constrained. This developed expertise should enable consistency of decision-making, and thus earn public confidence.
Features of a Communications Tribunal
Breaches of the law
The tribunal must not become a censorship body. It would only accept jurisdiction over cases which it determined amounted to a breach of the law. It would effectively be a surrogate court.
However this is not to say that the tribunal should only have jurisdiction in established civil causes of action such as defamation or invasion of privacy. We noted earlier that sometimes criminal offences have no counterpart in the civil system. We envisage that the tribunal would also have jurisdiction where the victim has incurred demonstrable harm as the result of a commission of a criminal offence. The purpose would be to redress such harm and prevent its recurrence. If, for example, it were to be determined that behaviour in the social media constituted the offence of intimidation, the tribunal might make orders to repair the damage to the victim, or to cease the conduct in question. To put it another way, it could enforce a kind of generalised tort of breach of statutory duty.
We repeat that the tribunal would have jurisdiction to make orders only when the law had been broken. To allow a jurisdiction to make orders merely on the ground that conduct had caused harm, whether through a breach of the law or not, would in our view be insufficiently precise. It would not comply with the requirement in the Bill of Rights Act that any limitation on the right of freedom of expression must be “prescribed by law”. It could confer too great a discretion.
Yet once it had determined that the law had been broken, the tribunal would only have power to make orders where that breach of the law had resulted in demonstrable harm, or where harm was demonstrably likely to result. That harm might be financial, or might be psychological harm such as distress, intimidation, humiliation or fear for safety.
The required harm would need to be defined, and the threshold would need to be reasonably high, to avoid the tribunal being flooded with insubstantial complaints: some citizens are more anxious than others, and some parents are more than usually protective of their children. The threshold for invoking the power to make orders would need to be set at the level of “objectionable to the reasonable person”. That test, or variants of it, is becoming familiar at common law.348 There would need to be a filtering mechanism to dispose of complaints which did not meet that threshold.
We envisage that the Crown could not be a complainant before the tribunal. The tribunal’s purpose would be to redress harm to individuals in their personal capacity. In appropriate cases, particularly where there had been defamation or malicious falsehood, bodies corporate might also have access.
Another question is whether complainants to the tribunal would need to be personally affected. In general we think they should, but parents and guardians should be able to lay complaints on behalf of children in their care. Class actions also require consideration, particularly in the area of inciting racial disharmony: the relevant provisions of the Human Rights Act 1993 are expressly targeted at the protection of groups.
The tribunal’s jurisdiction would not involve imposing criminal sanctions. Only a court should be able to enter convictions and impose sanctions such as fines or imprisonment. We envisage the tribunal as a means by which individuals harmed by breaches of the law are able to obtain redress in their own right.
The remedial powers available to the tribunal would include the award of monetary compensation; the legislation should desirably impose a monetary limit.349 It would also have power to order publication of an apology or correction; to order that a right of reply be granted; to order that the defendant cease the conduct in question (a type of injunction); and to make take-down orders against either the perpetrator or an innocent avenue of communication such as an ISP. It might also make a declaration that statements made about the victim are untrue. It may well be that the take-down order would be a favoured remedy, although it would need to be granted with care, and after full consideration of the Bill of Rights Act’s guarantee of freedom of expression. Failure to comply with an order would be an offence.
The practical difficulty of tracing the originator of an offensive communication might impact on the tribunal’s jurisdiction just as it does in other contexts. In some cases, therefore, a request, or order, against an ISP or website host may be the only practical solution. But if the tribunal believes the originator of the material should be pursued, consideration should be given to whether the tribunal should have power to require an ISP (or IPAP) to disclose the details of an account holder, as the District Court can presently do under the new Copyright legislation.350
Those subject to the tribunal
Anyone publishing in any media, including bloggers, website publishers and users of the various social media platforms, would be subject to the tribunal. The tribunal would in fact be a “communications” tribunal rather than a media tribunal in the traditional sense. Its role would be to provide redress to citizens for harmful communications which are in breach of the law.
The news media itself would also be subject to the tribunal, although we think it likely that complainants would often go to the independent news regulator in the first instance. However in cases where the news media had broken the law there would be nothing to preclude citizens from seeking remedies from the Tribunal.
Over a period of time the tribunal would build up a body of precedent. Its decisions should be reported, and be accessible online. In this way it would be more than an instant dispute resolution service: it would have an enduring value in the legal system, and establish some baselines about the boundaries of harmful conduct. But if its decisions were inconsistent with high authority the latter would obviously prevail.
There should be a right of appeal against determinations of the tribunal. It would need to be determined to which court that appeal should lie – District Court or High Court. We tend to the latter. It would also need to be decided whether the appeal should be on the merits, or on a question of law only. Our present preference is the former: the shady boundaries of “question of law” have proved problematic in other contexts.351
We acknowledge that some problems will need resolution. None of them, we think, are intractable.
First, we said earlier that the tribunal would have jurisdiction not just over torts and other civil wrongs, but also over breaches of the criminal law which have resulted in harm to an individual. Consideration would need to be given to the relationship between the criminal law and the tribunal’s decision. If the police have charged a person with an offence, could the tribunal hear a complaint against that person and make (say) a take-down order or an order for compensation in advance of the outcome of the criminal proceedings? Could the tribunal in a particularly serious case suggest that the matter be referred to the police? If later criminal proceedings resulted in an acquittal, would there need to be a reconsideration of the tribunal order? Given the differing purposes of the two types of proceeding these questions may not be as difficult of resolution as might at first appear.
Secondly, there will be boundary issues between the tribunal and other tribunals or regulators. If, for example, an organ of the new media publishes material which is in serious breach of an individual’s privacy, should it be the Privacy Commissioner or the new tribunal that deals with it? Should the complainant have a choice or should the legislation clearly provide that it is to be one or the other? There is nothing necessarily wrong with choice: for example there are instances now where a person aggrieved by a breach of privacy can elect to proceed via the Privacy Commissioner or via the court in a tort action. But it may have to be decided whether, if choice might lead to inconsistent streams of authority, a single route might be better.
The “news media” under the jurisdiction of the regulator that we propose would also be subject to the proposed media tribunal. The regulator would enforce a code of ethics; the tribunal would enforce the law. Yet in a few cases there could be overlap: for example a false statement which breached the code requirement of accuracy but was also defamatory at law. In this circumstance there would seem to be no particular problem with allowing the individual a choice: in fact it exists now in relation to both the Press Council and the Broadcasting Standards Authority.
However these boundary issues, however they may be resolved, do create the potential for confusion. There might be misunderstandings about the respective roles of the regulator and the tribunal. There would need to be carefully prepared public information about this.
A further question is whether an aggrieved individual should, in the case of an established civil cause of action such as defamation or invasion of privacy, retain the right to bring proceedings in the court – High Court or District Court – rather than use the tribunal. We think so. While tribunal proceedings will usually be an attractive option for a claimant, he or she should not be deprived of his or her right of access to the courts.
This raises the issue of how the new tribunal might deal with defamation cases. Many have wished for a long time that there was a simple and effective way of addressing defamation. The proposed tribunal might provide an arena for this. That is an attractive possibility. Defamation still remains one of the most complex, time-consuming and expensive of all legal proceedings. In some ways that can have its benefits, as Steven Price has recently pointed out.352 The very existence of such heavy machinery can mean that settlements are easier to obtain in the early stages. But if the plaintiff elects to take the tribunal track it may be that the procedures would not be as simple as they had hoped. That is likely to be the case if the defendant pleads truth or honest opinion, in which case argument would have to be heard on both sides.
The new process would be likely to work well only if the inaccuracy was clear and manifest, and there was no clear defence. But those are the very cases that are likely to be settled now, or to be disposed of under the summary judgment procedure. Provisions introduced into our Defamation Act in 1992 to provide for offer of amends and the publication of correction statements have done little to ease the way of this ponderous tort. Nevertheless in such clear cases access to the proposed tribunal may provide a quick route to a remedy, in particular a take-down order. Speed will be a major advantage of the proposed tribunal. This is an area, however, where consideration of freedom of expression will have to be very carefully regarded.
We are attracted to the idea of a Communications Tribunal. It could provide a speedy and streamlined route to justice which nonetheless achieves a proper balance between freedom of expression and redress for the harm which some communications can cause.
There is resistance to setting up new tribunals unless the case for them is made out very clearly. They cost money, and a proliferation of tribunals can lead to fragmentation. It is to a degree speculative how many cases the new tribunal would get, although from the evidence we have provided in the previous chapter we do think the proposed tribunal would attract a reasonable volume of work.
Possibly its functions could be performed by an existing tribunal such as the Human Rights Review Tribunal. We are inclined to think not: there would be a degree of specialisation required, and a streamlining of process, which would make that solution less than optimal. The best solution may be to appoint a District Court Judge to chair the tribunal.
We seek views on our proposal for a Communications Tribunal.