Summary and preliminary proposals

 

Part 2: Speech harms: the adequacy of the current legal sanctions and remedies

51.The large majority of New Zealanders publishing on the internet would not come within the ambit of the new regulatory system we propose. In essence they will be able to exercise complete freedom of speech. 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. 

52.But, even though they would be beyond the reach of any news 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 – just as they are now.

53.However, not everyone who publishes on the internet is aware of or respects the existing legal constraints on speech. Added to this, the internet and its associated technologies create novel ways of causing harm through speech abuses – and creates numerous challenges for those seeking to enforce the law or obtain remedies.

54.In chapters 7–8 of this Issues Paper we address these issues and the third leg of our terms of reference:

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 might be available.

55.Except in the area of cyber-bullying, there is little empirical research available about the size and nature of the problems associated with speech abuses on the internet in New Zealand. The public consultation following the release of this Issues Paper will hopefully provide a better understanding of the issues.

56.In chapter 7 of this paper we draw on information from a number of public and independent organisations, including New Zealand Police, the offices of the Privacy Commissioner and the Human Rights Commission and the internet safety organisation NetSafe, to provide a preliminary assessment of the level of harms. We also sought the views of Trade Me, Facebook and Google regarding the scope of the problem and the efficacy of their community monitoring and reporting tools with respect to managing speech abuses on message boards and social media sites. 

57.Our preliminary conclusion is that the existing and potential harms are significant, particularly for young people whose lives are increasingly enmeshed in social media.

58.Our preliminary proposals involve a combination of legislative amendments and alternative complaints procedures. The law, even when better tailored, can only go so far.  For some people the machinery of the courts and the criminal justice system presents too large a hurdle to pursue a prosecution, while taking civil legal action for wrongs such as reputational damage or privacy breaches is beyond the financial reach of most citizens.

59.Our first set of proposals is aimed at ensuring the types of serious speech harms arising from digital communication are covered by appropriate offences and that existing speech laws can be readily applied in the digital environment. We propose to:

  • review the statute book to ensure all provisions imposing controls on communication are expressed widely enough to fulfil the purpose intended in the particular legislation in the digital environment;
  • consider introducing a new offence of maliciously impersonating another person. As we discuss in chapter 7, real harm can result from malicious impersonation on the web and currently there is no legal remedy unless the impersonation constitutes an element of fraud; 
  • amend the Harassment Act 1997 to remove any doubt that its provisions can be applied to cyber-bullying and other forms of online intimidation, by extending its definitions to all forms of electronic communication and material published on websites;
  • clarify whether the offences relating to the misuse of a “telephone device” in the Telecommunications Act 2001 should be extended to computers and review whether the threshold for an offence is suitable for application to internet communications;
  • amend the Human Rights Act 1993 to remove any doubt that provisions barring publications “likely to excite hostility against or bring into contempt” any group of persons “on the ground of the colour, race, or ethnic or national origins of that group of persons”  includes all forms of digital publishing;
  • consider amending the sections of the Human Rights Act which address sexual and racial harassment to reflect the importance of cyberspace as a “public place” from which people should not be excluded as a consequence of significant and harmful sexual or racial harassment by others.

60.In addition to these proposals, the Law Commission has previously recommended a number of changes to the Privacy Act 1993 which would address some of the gaps we have found in this review. As well as those changes, we also consider there may be merit in making it an offence, in some circumstances, to publish   intimate photographs even when they were taken with the subject’s consent.

61.Finally, incitement to commit a crime is an offence even if the crime is not committed. Yet incitement to commit suicide is not an offence unless the person actually does so, or attempts to do so. Given the distress such incitements may cause in themselves, let alone the possibly devastating outcome, we think there is a strong case for making incitement to suicide criminal.  

A Communications Tribunal or Commissioner?

62.Law reform alone will only go so far in addressing harmful speech in the digital era. We recognise the courts are heavy machinery for many people. A distressed victim or a young person may not wish to give evidence in court. Pursuing a civil remedy in court may be expensive, time consuming and distressing. 

63.In many cases, those who have been the victim of harassment or bullying or whose reputations have been unjustifiably damaged, simply wish for the activity to stop or for the offending material to be removed. And yet often, as we discuss in chapter 7, these people feel they have no avenue of complaint or means of redress.

64.In the final chapter of this report we put forward for discussion two alternative options for new mechanisms for dealing with harms arising from speech abuses.

Communications Tribunal

65.The first proposal outlined is a Communications Tribunal that would operate at a level lower than the court system and which could administer speedy, efficient and relatively cheap justice to those who have been significantly damaged by unlawful communications.

66.The Tribunal would only deal with cases which it judges would have met the threshold of a breach of the law. It should not be a port of call for those with insubstantial complaints.

67.Harm must have resulted or be demonstrably likely to result. That harm might be financial, or might be psychological harm such as distress, intimidation, humiliation or fear for safety. 

68.It would not have the power to impose criminal sanctions. Only the courts should be able to enter convictions and impose criminal sanctions such as fines and imprisonment.

69.Sanctions and remedies available to the Tribunal would include the ability to award monetary compensation up to a prescribed level; 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. Failure to comply with an order would be an offence. 

A Communications Commissioner

70.The second option we put forward for discussion is the establishment of a Communications Commissioner, possibly attached to the Human Rights Commission.

71.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.

72.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.

73.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 to access the law. 

74.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. However we believe the role would have the independence and authority to liaise effectively with publishers. 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.

75.We welcome public feedback on these proposals and the questions outlined on page 17.