Legal Beagle by Graeme Edgeler


The Ray Avery case; or just because you don't like a law doesn't mean it was badly drafted

Businessman Ray Avery recently invoked the Harmful Digital Communication Act to make a complaint to Netsafe arising from a series of investigative pieces about him appearing on the website Newsroom.

It is important to note that Avery didn’t complain that Newsroom committed a criminal breach of the Act, rather, he said that by publishing its journalism, Newsroom had breached some of the Act’s “communication principles”, in that he says it harassed him, and contained false allegations.

Netsafe, as an “approved agency” under the Harmful Digital Communications Act, forwarded the complaint on, waited for a response, and then decided to do nothing beyond letting Avery know what his options were. The agency reportedly advised Newsroom that the law was:

not clear about how to treat HDC complaints as they apply to media, and there is limited case law from which to form our advice …

Therefore we are not recommending you take any further action. We have recommended to Sir Ray Avery that if he wishes to pursue this complaint he has the option of applying to the District Court.

Recommendations are all an approved agency can really do anyway – cooperation with an approved agency is entirely voluntary. It doesn’t make binding decisions or issue rulings. Its role is intended to be limited to offering advice, and acting as a go between.

The response to this has been odd.

The idea that someone emailing Netsafe is a threat to free speech is ridiculous. And, despite the flaws in the Harmful Digital Communications Act, the idea that someone might make a complaint that appears to have no real basis isn’t a threat either. There are people who legitimately think that mis-gendering someone is genocide. However rude or offensive it may be, it isn’t genocide, but the idea that someone might make a complaint about that isn’t a reason not to have laws against actual genocide.

I am not a big fan of the Harmful Digital Communication Act, but I recognise that most of my concerns are, in reality, unlikely to play out. I would, of course, prefer to avoid the risk. But my major area of concern is with the criminal offence the act creates, not the civil processes.

Netsafe’s response as reported by Newsroom was that they were unsure how to act with complaints around news media. This echoes observations from, for example, Prime Minister Jacinda Ardern (as reported by Newsroom) that:

Asked whether she felt it was possible for a media outlet to cyberbully an individual or organisation through news coverage, Ardern responded: “That is not my understanding of the intent of the bill or the act.”

Gavin Ellis, Radio New Zealand’s Media commentator has said the Act:

was never designed for this purpose; it was designed to prevent cyber bullying and making false accusations about people on social media … revealing sensitive personal facts on social media and so on. It was never designed as a form of complaint mechanism against the media generally.

I believe I can clear this up.

The Harmful Digital Communications Act covers the news media.

People who complain that they have suffered serious emotional distress as a result of the online publication of material can complain about the cause of that distress under the Act, whether the cause of that harm was a facebook post, or a news story. News media are not exempt.

This is not unclear drafting, or an unintended consequence of loose legislative language.

And this is absolutely the intention of the Act.

The Harmful Digital Communications Act was the result of a long process, starting with a Law Commission Review. The Law Commission looked into whether news media should be exempt from this regulation (.pdf). It recommended that:

The news media would not be subject to the Tribunal except in cases where the news media outlet responsible for publishing the offending content was not subject to one of the established regulatory bodies – the Broadcasting Standards Authority or the Press Council or any regulator which may replace them.

The Government was well aware of this recommendation, it just chose not to follow it.

It was matter of contention at the Select Committee, Television New Zealand (.pdf), Fairfax (.pdf), the New Zealand Press Council (.pdf), APN New Zealand (.pdf), Mediaworks (.pdf), and the Media Freedom Committee (.pdf) all made submissions on the bill recommending that news media should be exempt.

This was a matter that was of high interest to the Select Committee, so much so that they sought and obtained interim advice from the Ministry of Justice on this question, which it later expanded (.pdf):

32. While the news media has its own complaints systems, it is not clear whether those systems are designed to enforce concepts or standards that align with the principles in the Bill.
33. For instance, the Online Media Standards Authority, the Press Council and the Broadcast Standards Authority each have regimes that focus on, among other things, accuracy, balance and fairness. However, these three regimes do not apply identical standards, raising the possibility that different sectors of the news media are regulated using different standards. In addition, the way news is delivered has fundamentally changed; many of the traditional safeguards that guided the content of news are now outdated in today’s 24-7 news cycle.
34. Many of the media standards currently in place apply largely the media’s traditional role as an originator of content (eg, publishing factual stories or opinion pieces regarding current events). However, even the biggest media organisations are presenting the news in increasingly interactive ways, for instance, by soliciting reader input, permitting comments, operating live chats and facilitating message boards. It is not clear that these secondary activities are sufficiently covered by existing regulatory regimes.
35. In light of the above limitations, there are good reasons for the media to be included in the Bill. The Bill contains sufficient flexibility and safeguards to ensure it can be applied to news media without having a chilling effect on freedom of expression:
35.1. First, it is highly unlikely that “traditional” media activities would violate the principles and also cause harm to a person. The media have themselves noted they have experience in dealing with sensitive matters and guidelines for publishing;
35.2. Second, where media outlets are involved in non-media activities (eg, reader published content, comments, and message boards), they should bear the same responsibility for managing that content as
private hosts (eg, Trade Me);
35.3. Third, the Agency under the Bill does not have coercive powers, and so cannot order any person or organisation to do anything;
35.4. Fourth, the Bill requires the court to balance critical freedom of expression issues in the context of a particular situation. In the unlikely event that the media is responsible for a digital communication which causes a person to suffer harm, there is an explicit public interest test that a court must apply, which will be of particular importance in any case involving the media.
36. If a harmful digital communication is so egregious that it breaches a principle, causes harm, and its seriousness outweighs the public interest in it, then it is entirely appropriate that it be subject to the Bill.
37. We note the concerns of the media that their involvement in complaints with the Agency may result in greater time and effort for what may be frivolous or vexatious complaints; but, that it no different to any other person or organisation who is subject to the Bill.

This was not a drafting error.

Just because you are a member of the news media, does not mean you can publish revenge porn, or any other material likely to cause serious emotional harm. This was a deliberate decision, based on the Ministry of Justice’s view, supported by Parliament, that legitimate journalism was protected.

And there are strong arguments that it is, at least in relation to the civil regime. We’ve already noted that Netsafe, the authorised agency, has no coercive powers. Instead if you want to force someone to take something down, you have to go to the District Court, and before that Court makes any orders under the act, there are some things it has to do:

(5) In deciding whether or not to make an order, and the form of an order, the court must take into account the following:

(a) the content of the communication and the level of harm caused or likely to be caused by it:

(b) the purpose of the communicator, in particular whether the communication was intended to cause harm:

(c) the occasion, context, and subject matter of the communication:

(d) the extent to which the communication has spread beyond the original parties to the communication:

(e) the age and vulnerability of the affected individual:

(f) the truth or falsity of the statement:

(g) whether the communication is in the public interest:

(h) the conduct of the defendant, including any attempt by the defendant to minimise the harm caused:

(i) the conduct of the affected individual or complainant:

(j) the technical and operational practicalities, and the costs, of an order:

(k) the appropriate individual or other person who should be subject to the order.

(6) In doing anything under this section, the court must act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990.

If, in the balance, something claimed to be legitimate journalism can’t win once a Court has looked at this, I wonder whether we need to assess whether it is, in fact, journalism. And if the District Court does order something taken down, is that really a greater impingement on media freedom than an injunction ordering the same made in the High Court in a privacy or defamation claim?

Now, there are problems with the act. The criminal offence (not in play in the Avery case, as of yet) does not reflect the same nuanced approach I’ve detailed above. But it’s not clear to me what problems there are in the civil regime (other than the safe harbour almost hilariously over-protecting freedom of speech).

For one, I consider that the inclusion of news media isn’t a weakness, it’s a strength.

I’m probably the strongest supporter of freedom of the press and freedom of speech that I know, and I’m not saying I support the Harmful Digital Communications Act in its current form, but I absolutely do not support an exemption for news media from this form of regulation.

I have a couple of reasons: the principled one is that I do not believe there should be statements that can lawfully be made by on a newspaper website, that would be unlawful if made by someone else.

I accept that there are a few very specific areas where recognised news media will have additional rights (one that comes to mind is the right of news media to remain in court during the public excluded parts of criminal proceedings, such as the evidence of complainants in sexual cases; another might be, if a register of name suppression is ever created, this couldn’t work if everyone could access it), but these types of rights do not affect what can be published. It should not be lawful for news media to publish material it would be illegal for me to publish.

The pragmatic reason is that if the media is in with the rest of us, the chance of good precedent in the application of the Harmful Digital Communications Act greatly increases. Courts will be more careful in applying the act if their rulings can affect freedom of the press. If there are problems with the act, they should be fixed for everyone, not just the news media.

The criminal offence? Well, it would be good if the explicit invocations of public interest were included there too. The examples usually given by people concerned with the law (which includes me), are around the exposure of serious offending, say political corruption, or sexual violation). I could easily argue that publicising someone’s long history of sexual abuse must be intended to cause them serious emotional harm. How could it not?

The law shouldn’t be written in a way that could preclude public interest journalism. But in reality, I just don’t think that’s how it would play out. New Zealand Courts are pretty good at avoiding the excesses that could result from expansive interpretation of criminal offences – contrast the approach in the United Kingdom to its offensive language laws to that taken by our courts. I expect the same would apply here. There isn’t an explicit defence that the serious emotional distress that might be caused by a digital communication is justified, but in these sorts of circumstances, I’m pretty confident the Courts would ultimately say there was one. But pretty confident isn’t good enough, so I encourage a law change to fix this.

There are probably even problems with the civil regime in the act – although the Avery matter doesn’t appear to have raised any yet. And it’s possible that a complaint will work its way through the Courts and result in law different to that described above. Courts do sometimes unnecessarily complicate things. The District Court decision in the Elvis Teddy case is a masterpiece in the clear application of simple law, that every Court above determined to make more and more unclear.

But unless something changes, a law change to deal with complaints like Ray Avery’s isn’t needed.

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