Speaker by Various Artists


Censorship is not the only enemy of free speech

by The Law Commission

This is the third and last of our series of blog posts from the Law Commission, which continues to seek feedback on and discussion of its Review of Regulatory Gaps and the New Media issues paper. It follows on from the posts Who are the media? and Who guards the guardians?. You are warmly invited to engage in discussion of this post and the previous two (which remain live). Note the disclaimer at the bottom of the posts.


Robust communication has been a hallmark of the internet since its inception. Free speech values and an abhorrence of censorship are central to its culture.

However, censorship is not the only enemy of free speech. Those who exercise their free speech to intimidate, bully, denigrate and harass others on the internet lessen the credibility of free speech arguments. In effect, those who exercise their free speech rights to cause harm may inhibit others from participating freely in this vital new public domain. The practical anonymity afforded abusers, and the lack of real-life consequences can create an environment where such abusive behaviour can thrive.

But cyberspace is not the “wild west” as sometimes alleged. User-generated content online is subject to the same legal constraints as offline communication. In addition many content hosts and publishing platforms have highly developed systems which empower users to self-moderate within the context of agreed community standards. The read/write culture of the web provides unprecedented opportunities for rebuttal and counter argument.

The third leg of our terms of reference (view summary document) required us to look at the type of problems which are emerging within the web environment, including issues like cyber-bullying, harassment and defamation in social media, and ask whether the law can be better adapted to this new publishing environment and whether the courts are the best forum for resolving these sorts of disputes between free speech and rights to privacy, reputation etc.

The advice we received in the course of our preliminary consultation suggested that the legal constraints and remedies that were designed for the pre-digital era were not always well suited to the challenges of the new publishing environment. (view chapter 7 at 7.37) Similarly, consumer education and advice organisation NetSafe, told us that user reporting systems are not always providing appropriate or effective remedies for people who are experiencing significant harms as a result of malicious communications.  And even though the web provides those who are harmed by abusive speech the opportunity to exercise their right of reply, not all have the courage or the standing to exercise it.

In chapter 8 of our Issues Paper we put forward a two-pronged approach to dealing with these problems.

The first prong involves reviewing the statute book to ensure 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. With respect to enforcement we ask whether there should be a statutory power in the courts to make take-down or cease-and-desist orders, and whether such a power should be available against avenues of communication such as ISPs or website hosts even though they themselves are not legally parties to the wrong doing.

Such a power would need to be carefully circumscribed and qualified and would only be exercised in cases where there had been a breach of the law; where that breach had caused, or was likely to cause, demonstrable distress, humiliation or harm; and after proper consideration of whether the order was a justified limitation on the Bill of Rights Act guarantee of freedom of expression.

We emphasise that we are not proposing that ISPs should be legally responsible for anything which they transmit in the sense that they could incur sanctions. Nor are we suggesting that website hosts should be liable to greater legal responsibility than they were before. The proposal is simply that they could be subject to a court order to remove illegal material. (view Chapter 8 at 8.36)

However we recognise that law reform will only go so far in addressing harmful speech in the digital era. 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. 

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.

In chapter 8 of our Issues Paper we put forward for discussion two alternative options for new mechanisms for dealing with harms arising from speech abuses:

  • 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.

The Tribunal would only deal with cases where it determined there had been a breach of the law. It should not be a port of call for those with insubstantial complaints.

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. 

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.

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. 

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

The Commissioner’s role would of this person would be to provide information and where possible assist in resolving problems in an informal manner, for example through mediation.

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 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.

We are interested in your views of the strengths and weaknesses of these various preliminary proposals, and in particular your responses to the following questions posed in the Issues Paper:

  • How serious a problem do you think speech abuses are on the internet? E.g. cyber-bullying and harassment, harms to reputation or invasions of privacy. (View chapter 7)
  • How effective are the non-legislative remedies that operate within online communities, including the systems of online reporting employed by social media sites such as Facebook? (View chapter 7 at 7.144)
  • Do you think the law is currently able to deal adequately with these sorts of damaging speech when they occur on the internet? (View chapter 7.60)
  • Do you think there is merit in giving the courts the power to issue take- down orders in cases of serious harm arising from illegal conduct?
  • Do you support the idea of an alternative tribunal able to provide speedy and efficient remedies for those who have been harmed by an offence on line? (View chapter 8 at 8.43)



This discussion is being advertised across several new media websites - guests to Public Address are very welcome but please refer to the ruleshere.

This discussion is part of the Law commission’s consultation on their issues paper “The News Media meets ‘New Media’ : rights, responsibilities and regulation in the digital age. I.E. your comments below may be taken into account when the Law Commission writes its final report on Media Regulation issues. The discussion will be moderated, however this moderation will be in accordance with the normal rules of moderation in this forum.

 Several other things follow from this:

 1. The Law Commission may participate in the discussion.  Any comments it makes in this forum should be regarded as provisional as the Commission will not finalise its policies and recommendations to government until it tables its final report which is expected at the end of 2012.

 2.  Parts or all of this discussion may be archived as part of the official record of this Issues Paper Consultation (Practically this means that  if you change your mind on something then you are encouraged to say so and explain why - otherwise your initial view may be interpreted as a kind of submission).;

3.  This discussion may be subject to the Official Information Act - and certainly any remarks made by the Law Commission will be; The Law Commission encourages all participants to also make formal submissions to the Law Commission here.  If you form an opinion on these issues as a result of reading the discussion in this thread then please share that with the Commission directly if you wish.

 - The Law Commission and Russell Brown (Host and publisher of Public Address)

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