Hard News: Media3: Where harm might fall
117 Responses
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I am so conflicted about this. I mean, those communication principles are very close to our harassment guidelines at Bardic Web - though ours contain explicit provisions for communications which are less than grossly offensive, but which become distressing through repetition. That's often how harassment works: every individual statement is just a bit dodgy, but you're finding them in your message box every day.
But when we have a complaint, when we do dispute resolution, it's a lot of work, talking to both parties, getting all the background and copies of all the communications we have (keep your chat logs, please keep your chat logs...), and then all getting together and trying to decide whether the offence or distress was "reasonable", whether the offender knew the communication was going to cause distress, or could reasonably be expected to know, trying to parse intent - because yes, we get a few malicious complaints. And our decisions are always informed by how much we know about the people involved. Who has a history of being a cock?
I just don't see how you take so many of these important factors into account on a large scale, with people you don't know. It is so hard to get this stuff right, a lot of the time.
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Emma Hart, in reply to
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.
I'm not sure if this is true. It's harder to "read" people on line, to work out what's appropriate, when a joke isn't funny, when someone's having a bad day, etc, but the underlying principles of Not Being a Cock are the same. The usefulness of being able to calmly say, "What you just said upset me," and being able to say, "Sorry, I fucked that up," are pretty much universal.
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Bart Janssen, in reply to
I just don’t see how you take so many of these important factors into account on a large scale, with people you don’t know.
That seems to me to be the greatest weakness for a tribunal. Just too damn hard to get all the information and make the right judgement.
I'm all for a tribunal to work at that end of the problem, but I really think the long term solution is elsewhere.
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Bart Janssen, in reply to
I’m not sure if this is true.
I disagree, respectfully and politely of course. I've seen behaviour in online environment that the same people would never consider in the real world. I know that's true because I've known some of the people in the real world and they just don't behave that way.
So somehow they know good behaviour in the real world but don't know good behaviour online. Or for some reason see online as different in some way.
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One case I’ve been thinking about is that of Kay Goodger, a civil servant who was the subject of a series of false claims in a swivel-eyed Investigate magazine story about an alleged feminist-communist conspiracy to destroy the New Zealand family.
The Herald retracted its publication of the same claims, but Wishart’s swill is still on the internet for anyone to find. It clearly wasn’t worth Goodger’s while to take defamation action, but it seems unfair to her that false, high-Googling claims about her remain on the internet.
I tried to address this by firmly walking Wishart through his falsehoods in a Kiwiblog thread, which hopefully did some good. But you’ll note that Wishart’s response was to start issuing defamation threats against me. You’d have to guess the likes of him might be eager users of a Tribunal when they’re criticsed.
So … it’s complicated*.
*And anyone who says different is clearly an evil piece of work who is proven to fellate goats ;-)
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Russell Brown, in reply to
That’s often how harassment works: every individual statement is just a bit dodgy, but you’re finding them in your message box every day.
That’s essentially Martin Cocker of Netsafe’s response to the “billboard” argument:
It is very difficult to put up billboards everywhere somebody goes. It is extremely easy to follow people with technology. You can text them, blog about them, post to social media, share pictures and constantly bombard them. All for free from the comfort of your armchair.
That persistent harassment is what makes digital bullying different from traditional bullying. It also differentiates online abuse from billboard based abuse.
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Graeme Edgeler, in reply to
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.
Pictures of someone being sexually violated being shared on the Internet in such a manner are likely to be seen as encouraging rape. Distribution of these would be criminal, and punishable by 10 years' imprisonment. The Office of Film and Literature Classification, the Police, Customs, and the Department of Internal Affairs are fully equipped, to the best of my knowledge, to deal with objectionable publications which are online.
The making of threats of mutilation are similarly proscribed by the Crimes Act, and are punishable by 7 years' imprisonment. The Police, especially once the Search and Surveillance Act enters into force, are more than capable of prosecuting such crimes.
And now having looked at the reports descriptions of these events, if someone could point out how a Communications Tribunal could possibly help in either of the scenarios described, it would be appreciated.
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Bart Janssen, in reply to
It is very difficult to put up billboards everywhere somebody goes. It is extremely easy to follow people with technology.
There's another very important difference as Martin Cocker points out
Assume a harmful billboard was put up. The person being targeting would almost certainly receive support from other members of the community. This stops the victim feeling as isolated, reduces the bully’s power, and reduces the harm.
With a billboard the victim is not isolated. With internet harm, the victim can feel very much isolated from any support. That isolation in itself can be as much part of the harm as the bullying.
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Russell Brown, in reply to
And now having looked at the reports descriptions of these events, if someone could point out how a Communications Tribunal could possibly help in either of the scenarios described, it would be appreciated.
I’d guess they’d be the domain of the proposed new offence rather than the Tribunal. But what about less extreme but still very harmful acts of communications bullying? Can they be dealt with adeqately under existing law? Genuinely just asking.
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Graeme Edgeler, in reply to
But what about less extreme but still very harmful acts of communications bullying? Can they be dealt with adeqately under existing law? Genuinely just asking.
Happy to help. Would you like to pull a scenario or two from the Briefing Paper for me to address?
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Another thing to ponder: I think many of us thought the Press Council’s findings with respect to complaints about (lack of) accuracy and discrimination in North & South’s infamous Asian immigration story were a victory for the truth.
Given that there was essentially no penalty, what would be so different about a Communications Tribunal making similar findings about an internet publication? (Actually, given that the PC is actually bound to consider the response of the publisher, what the LawComm proposes would be very different.) Would it be better if there was a Blogger’s Code of Conduct, as has been mooted at times?
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Russell Brown, in reply to
Happy to help. Would you like to pull a scenario or two from the Briefing Paper for me to address?
Going for a bike ride. Will try later.
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Thomas Beagle, in reply to
To my mind the thrust of the Communications Tribunal seems to be more towards takedowns and forbidding of further similar communications rather than findings of fact or similar responses.
There's also a strong punitive element, with anyone disobeying such an order being up for a criminal conviction with a fine of up to $5000 and a jail term of up to three months.
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Graeme Edgeler, in reply to
Going for a bike ride. Will try later.
Although I can largely answer now. There are clearly circumstances in which a low level Communications Tribunal will enable people to obtain a solution to a problem that they could not have obtained otherwise.
However using factual scenarios from the past where people have been (or could have been) prosecuted and in some cases actually ended up in prison as a reason to change the law is unlikely to win converts.
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Rich of Observationz, in reply to
EDIT: I missed Graeme making exactly the same point upthread...
a teenager unable to stop pictures of her being sexually violated distributed electronically
Which would be objectionable material under s.3.2.b of the Films and Video Classification Act, and s1.a if she was under age. That's a serious offence already.
, and actual threats accompanied by pictures of mutilated bodies
s.306.1 and/or 2 of the Crimes Act. Seven years in jail.
As far as I'm aware, nowhere in any NZ law does it say "except on the Internet". So we have offences, we have elaborate mechanisms of enforcement. If the police and other regulators are failing to conduct adequate investigations, that's a matter for improvement in their systems, not new offences.
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Russell Brown, in reply to
As far as I’m aware, nowhere in any NZ law does it say “except on the Internet”. So we have offences, we have elaborate mechanisms of enforcement. If the police and other regulators are failing to conduct adequate investigations, that’s a matter for improvement in their systems, not new offences.
Fair enough, although my point in quoting Burrows on those cases was that there are real-world, non-facetious experiences not well served by quips about horns in the Mt Vic tunnel. I’d rather the discussion included an acknowledgement that vulnerable people do suffer harm from bullying.
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Graeme Edgeler, in reply to
As far as I’m aware, nowhere in any NZ law does it say “except on the Internet”.
Not in those terms, but there are clearly laws you might think should apply to the Internet which do not, for example, the offence of "misuse of a telephone device". Why should something be illegal if sent as a phone or text message but not in an email?
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vulnerable people do suffer harm from bullying
Yes, I know. Like many, I had a fairly horrible childhood.
I don't however think if we had had the cops round the school on a weekly basis and the bullies arrested and charged, it would necessarily have worked. (If you locked up all the 8-15 year olds who did something culpable, I reckon you'd probably be looking at finding room in some sort of Borstal for 20-30% of the school population).
My point is that people are often not nice. There is a threshold at which this becomes criminal. This shouldn't (and can't) be set too low. In general (and I'm willing to accept a need for some tweaking) the laws and criminal court procedures we already have set that level appropriately.
I don't believe that there is a type of offending that is serious enough to be proscribed, but not so serious that those accused aren't entitled to a proper court procedure.
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Angus Robertson, in reply to
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.
Unless the pro-religious sites got in first and accused you of hating on a religion or culture.
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Idiot Savant, in reply to
Not in those terms, but there are clearly laws you might think should apply to the Internet which do not, for example, the offence of "misuse of a telephone device". Why should something be illegal if sent as a phone or text message but not in an email?
Though as the Law Commisison points out, it probably shouldn't be an offence at all. Which rather undermines the rest of their argument.
(Oh, as for what happens when you apply such laws to the internet, you get people prosecuted for criticising the war in Afghanistan because doing so is "grossly offensive" or annoying to those who want it to continue. I'll tolerate inconsistency to avoid such abuses, thanks)
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Rich of Observationz, in reply to
Yeah, but as I say, that's really a drafting fix. (Does a 'telephone device' include a modem? What's the difference between SMS and email - both are computerised messaging systems?)
I remember when (in the UK, maybe elsewhere) 'phone phreakers' were charged with 'theft of electricity'.
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Kyhwana, in reply to
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.
I think that depends who you ask. Digital Natives have already adapted social rules to the 'net and while they might be different from IRL ones, they are there.
The problem is when you have Kids These Days jumping online now without these rules or already established etiquette (depending on the places you go) and flailing about wildly :P
You also have a choice of where to go and who to reply to in most cases online -
Kyhwana, in reply to
Unless the pro-religious sites got in first and accused you of hating on a religion or culture.
Then I counter attack and get their stuff taken down as well :P
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Principle 3 -- A communication should not be grossly offensive to a reasonable person in the complainant’s position.
So this would proscribe the internet equivalent of flag-burning? Notwithstanding Morse v Police.
Principle 7 -- A communication should not contain a matter that is published in breach of confidence.
Does Trevor Mallard have an expectation of confidence in relation to the right-wing talking point he posted on Facebook, then deleted?
A communication should not denigrate a person by reason of his or her ... religion, ....
So calling the Associate Education Minister out for his belief in creationism would be illegal, then.
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Russell Brown, in reply to
My point is that people are often not nice. There is a threshold at which this becomes criminal. This shouldn’t (and can’t) be set too low. In general (and I’m willing to accept a need for some tweaking) the laws and criminal court procedures we already have set that level appropriately.
I think we need to separate the criminal offence part from what, if anything, the Tribunal should do, which doesn't include criminal prosecution.
I don't accept the idea that once something's on the internet, it's game-over-and-nothing-to-be-done -- if I did I'd never bother removing or annotating false or damaging material from blogs or discussions,. But I am willing to do that, precisely because it limits harm.
Clearly, it's different where a statutory tribunal does the removal or annotation, especially if it needs to compel someone else to do it. But if harm can be limited by the removal of damaging material, it seems reasonable to consider when that would be appropriate.
This is far less of a problem for people with the money and sophistication to employ a lawyer. I know a woman who was subject to claims about her sexual behaviour by Cameron Slater. I gather he removed the material after a brisk communication with respect to legal action. But not everyone is in a position to stare down the likes of Slater like that.
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