Thank you for explaining that. Much appreciated.
Thanks Graeme, really useful analysis!
I'm not speaking for my employer or anyone else here, though my day job has me keeping half an eye on this to see if the law is striking a reasonable balance, or causing particular problems. My personal view is that we don't know yet, but in this case the events so far seem consistent with the framework playing out as intended, and in a way that protects free expression online. We'll learn more if it goes to court and gets a formal response in that venue.
You usefully explain the assessment of harmful communications in civil claims. I'd add that the remedies for civil complaints are procedural, for example offering an apology, right of reply, or removal of content (hopefully the image conveys that). Remedies sought and given will have implications for free expression. For example, does a right of reply enhance free expression, limit it, or a bit of both?
As I understand it, breaching a court order is the only way to get a monetary penalty in relation to a civil complaint. That's different, as you point out, from the criminal provisions. My understanding is that the Police have mainly brought criminal charges in relation to sharing of intimate images of people, particularly in relationship breakdown situations. That's not the stereotype of "cyberbullying", but does seem to be the kind of thing the Act is meant to offer a response to.
In the background here, as elsewhere, may be lurking disagreement on approaches to free expression. Forums where "anything goes" might serve the loud or rude, but thereby discourage others from seeking, receiving, and imparting information. Different lenses on free expression might mean people are talking past each other in some of these conversations.
Hi Graeme (like James, speaking for myself etc etc).
In relation the criminal side of things, I agree it's strange that s22 (criminal harm offence) doesn't have an express reference to NZBORA when it'll often be a more important consideration there than in the civil jurisdiction under s19.
I think you get there in these media situations though with the combination of section 22(2)(g) where the court has to take into account the context in which the digital communication appeared plus the overriding section 6(2):
In performing functions or exercising powers under this Act, the Approved Agency and courts must—
(b) act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990. [Emphasis added].
They could (should) probably have left out any further reference to NZBORA in either s 19 or s22 since s6(2) covers all situations. I expect the inconsistency was a consequence of adding the NZBORA override at the last minute.
In relation the criminal side of things, I agree it’s strange that s22 (criminal harm offence) doesn’t have an express reference to NZBORA when it’ll often be a more important consideration there than in the civil jurisdiction under s19.
I don’t think it's strange. Courts are always required to act consistently with the Bill of Rights. It’s strange when they include it, as though a Court doesn’t have to act consistently with the Bill of Rights when it’s considering a charge of offensive language! I considered that maybe it was explicitly included because of doubt that the approved agency might not be covered, as it doesn’t really exercise any state powers.
As for defences, I agree we’ll probably get there, and that Courts will allow a defence of publication in the public interest, but, for example, it strikes me as highly odd that to get civil relief you have to establish a breach of one of the communication principles in the act, but that doesn’t apply to the criminal offence. If you intend to cause harm in which way which breaches none of the principles in the act, you can still be criminally liable, even though the victim could not obtain a take down order.