Hard News: Media3: Where harm might fall
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There are actually some clear practical differences. It’s vastly easier to go to an outdoor advertising company and complain you’re being defamed on a billboard than to remonstrate with a vindictive internet commenter. And a billboard doesn’t replicate all over town the way an offensive communication might replicate across the internet.
There’s two points I’d like to make in response to this paragraph:
1. It’s not just defamation. It’s also other communications that cause significant emotional distress to the recipient (even if they’re not aimed at them). i.e. it might be perfectly legal on the billboard but could still be taken down online by order of the Comms Tribunal.
After all they also include “denigrating people by reason of his or her religion or ethical beliefs”.
2. A billboard may not replicate – but if something has “replicated across the internet” do you think that there is any chance that any orders of the Comms Tribunal will be able to take it down?
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Okay, this is troubling. From a newly-updated post on the TechLiberty site:
There is no requirement for the defendant to be heard or to have a chance to put their case forward.
The complainant can appeal a decision to an Appeal Tribunal (made up of two District Court judges).
The defendant has no opportunity to appeal any decision, nor do other possible targets of an order (the ISP, webhost or 'any other person').
They're pretty much setting things up for vexatious use of the Tribunal by the looks of this.
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Re Principle #10. That sounds like I can get any anti-equal marriage blogs/posts/websites taken down because they cause me emotional harm and spread falsehoods about gay people.
While this would be AWESOME in one way, it completely violates these peoples rights to free speech and my right to call these people idiots and point out why they're wrong.
(It also stops everyone else from reading their crap and drawing the hopefully correct conclusions that people like this are crazy nutjobs) -
One case study that definitely comes to mind is the Andrew Shirvell case. The ex-Michigan Assistant Attorney-General was basically kicked out of his post, for misusing First Amendment rights to wilfully harass, and make shit up about, the openly gay University of Michigan students association president.
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They're pretty much setting things up for vexatious use of the Tribunal by the looks of this.
And that's what I'm primarily concerned about. Complaints, even vexatious ones, are hassle. They require time, attention, and possibly money and lawyers, to defend. And that applies regardless of the merits. We've already seen a bullying culture emerge among the sewer commenters; they may see this as a weapon to shut down dissenting voices.
On top of that, we have the troubling precedent from the UK of a man prosecuted under similar "offense on the internet" laws for criticising that country's involvement in Afghanistan, which was deemed "grossly offensive" to The Powers That Be (and Right-Thinking Britons). In theory, the UK has free speech protections as strong as ours, through their Human Rights Act. But the cost of High Court judicial review to correct a poor Tribunal decision is prohibitive, which makes those protections effectively a nullity.
Basically, the Law Commission is proposing establishing a heckler's veto here. And that's just not a good idea.
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John Edwards, in reply to
"There is no requirement for the defendant to be heard or to have a chance to put their case forward."
Actually the Bill does require that the Tribunal comply with the principles of natural justice, which would require that affected parties be given an opportunity to be heard.
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While we're talking about principle 10 - "A communication should not denigrate a person by reason of his or her colour, race, ethnic or national origins, religion, ethical belief, gender, sexual orientation, or disability."
I believe that the Human Rights Act s21 covers discrimination based on those (as well as age, family status, political opinion and employment status).
However, when it comes to limiting speech, it seems to only cover (s61) "words 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."
Does anyone know if there is any other part of the Human Rights Act or any other Act that limits denigrating speech based on religion, ethical belief, gender, sexual orientation or disability?
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Sacha, in reply to
Broadcasting standards (no reference but someone will know)?
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Thomas Beagle, in reply to
Interesting comment about the Tribunal being required to comply with the "principles of natural justice" - but how strong is that requirement?
I would have thought that being able to defend yourself from accusations was important enough that it should have been mentioned explicitly (with possible exceptions when the defendant can't be identified and so on).
Do you believe that the principles of natural justice also guarantee a right to an appeal? What else can we read into it?
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Graeme Edgeler, in reply to
Actually the Bill does require that the Tribunal comply with the principles of natural justice, which would require that affected parties be given an opportunity to be heard.
+1. There's also s 27 of the NZ Bill of Rights Act.
But the no appeal for defendants bit is exceedingly odd.
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Graeme Edgeler, in reply to
Do you believe that the principles of natural justice also guarantee a right to an appeal?
No.
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Lilith __, in reply to
the Law Commission is proposing establishing a heckler's veto here. And that's just not a good idea.
The other thing that strikes me as problematic is the sheer volume of argument on the internet. Even if you restrict the field to NZ-based sites (not sure how they're planning to do this, as it's perfectly legal to get DNS and hosting offshore), how on earth could anybody keep track of all the offensive things being said? And wouldn't the Tribunal immediately get clogged up with gazillions of complaints?
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It does sound like it would be very prone to vexatious use.
Being of a more mischievous bent, I’d be inclined to:
a) try and submit the first complaint in the form of “First!”
b) submit a complaint that the notices of tribunal decisions cause me emotional harm with their offensive limiting of speech*, and ask for them to be removed.ETA: * alternately argue that freedom of speech is a principle of my religious beliefs
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the proposed 10 Communications Principles :
Principle 1
A communication should not disclose sensitive personal facts about an individual.
Principle 2
A communication should not be threatening, intimidating, or menacing.
Principle 5
A communication should not be part of a pattern of conduct that constitutes
harassment.Principle 7
A communication should not contain a matter that is published in breach of confidence.
<cough> Paula Bennett.
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Angus Robertson, in reply to
Basically, the Law Commission is proposing establishing a heckler's veto here. And that's just not a good idea.
Unless you are a lawyer. It looks likely such legislation will afford many lawyers the opportunity to make a lot of money.
It is vague, it is reliant upon the subjectivity of "hurt feelings", it requires action against nebulous entities, has problems of jurisdiction. Each and every case will drag on for years and provide endless opportunity for lawyers to fleece the system.
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People behave in may ways that one might consider less than desirable.
I personally have a virulent objection to the unnecessary use of horns in the Mt Vic tunnel. Oh, and to people claiming superior knowledge of a wide variety of topics with no ascertainable basis. Not to mention dressing in a replica of your favourite footballer/cyclist/wrestlers uniform when out and about in public.
However, I don't think those things should be proscribed with the full force of law. Society is better if we confine that to truly serious matters. We already have far too many attempts at social control enshrined in our laws, with limited, but often negative effect.
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Kumara Republic, in reply to
And that’s what I’m primarily concerned about. Complaints, even vexatious ones, are hassle. They require time, attention, and possibly money and lawyers, to defend. And that applies regardless of the merits. We’ve already seen a bullying culture emerge among the sewer commenters; they may see this as a weapon to shut down dissenting voices.
And they have the nerve to whinge about PC gone mad. Anti-PC really is the new PC.
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Lilith __, in reply to
they have the nerve to whinge about PC gone mad. Anti-PC really is the new PC.
Too much policing of speech can be very stifling. It can be just as bullying as some of the hatey trolls.
I'm not at all defending the scum who won't get out of the sewer; but I'm sure we all know places on the internet that nobody can say anything without getting policed as subtly offensive or exclusionary. It's exhausting.
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Kumara Republic, in reply to
Too much policing of speech can be very stifling. It can be just as bullying as some of the hatey trolls.
Agreed. Censorship isn't the way to deal with trolls - it only plays into their hands. What might work, though, is to expose them and blow their cover, and see if they're prepared to say the same things as their real selves.
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Lilith __, in reply to
expose them and blow their cover, and see if they’re prepared to say the same things as their real selves.
That never stopped Cameron Slater.
Personally, I don't think pseudonyms/pen names are the problem. You and I and plenty of others here use them here on PAS, yet we mostly behave ourselves. I think the difference is the stable community here, where regulars want to be respected and so deal respectfully with others. Our esteemed host sets the tone, but we're the ones who maintain it.
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Bart Janssen, in reply to
I don't think those things should be proscribed
The problem is "I". What one person thinks is worth proscribing is always different from what another person thinks is worth proscribing. You might think it a waste of good police time but I might find it important enough.
Essentially this is the very thing we have a parliament of representatives to define for society.
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Bart Janssen, in reply to
What might work, though, is to expose them and blow their cover
Like Lilith I don't think that is necessarily true.
However, I do think it highlights something interesting.
For the most part this community is civil, polite and caring of each other - we each have bad days but we apologise and forgive.
For the most part that is true out in the real world* as well.
So when you find internet communities where that is very much not the case, I think that, as well as setting up laws and tribunals, it is well worthwhile exploring why the behaviour becomes and continues to be bullying or offensive.
I don't know the answer, but I suspect it is related to the fact that all our methods of learning appropriate social behaviour relate to the real world and perhaps are not adapted well to the online world. In other words our methods of raising our children don't work for online communities.
Perhaps the solution is looking at other ways to teach social behaviour in addition to merely legislating punishment for bad behaviour (whatever that ends up being).
* For the purposes of discussion only I will postulate the existence of this thing called a "real world".
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Principle 7: A communication should not contain a matter that is published in breach of confidence.
Does this have any impact in relation to "whsitleblower" laws ?
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Russell Brown, in reply to
People behave in may ways that one might consider less than desirable.
I personally have a virulent objection to the unnecessary use of horns in the Mt Vic tunnel. Oh, and to people claiming superior knowledge of a wide variety of topics with no ascertainable basis. Not to mention dressing in a replica of your favourite footballer/cyclist/wrestlers uniform when out and about in public.
However, I don’t think those things should be proscribed with the full force of law.
No one does. And I’m not sure if drawing flippant equivalences is a useful form of argument.
According to John Burrows, the real cases brought to the review’s attention included the case of a teenager unable to stop pictures of her being sexually violated distributed electronically, and actual threats accompanied by pictures of mutilated bodies . It’s a more realistic discussion if you actually consider real harms.
I’m not comfortable with what the Commission has come up with. But I wasn’t too keen on Thomas’s dismissive use of the word “excitable” either. In at least a proportion of cases, real, lasting harm is caused to people. In others, we need to ask if it’s fair to require individuals to undergo the ordeal and huge expense of defamation proceedings in order to have clearly defamatory material stopped.
My view is that the finding-of-fact role is the most useful role a Tribunal could play, and one less likely to result in perverse outcomes. You could certainly argue that in the paper as it stands, the cure might be worse than the disease. But that’s not the same as there being no problem to consider.
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Russell Brown, in reply to
Principle 7: A communication should not contain a matter that is published in breach of confidence.
Does this have any impact in relation to “whsitleblower” laws ?
That's a very good question.
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