Legislating for E-Manners – Deficiencies and unintended consequences of the Harmful Digital Communications Bill

Cyber bullyingThis is a precis of InternetNZ member Stephanie Panzic's dissertation on the Harmful Digital Communications Bill. It is designed to stimulate discussion - it does not represent InternetNZ's position.

The problem of cyber-harm

New Zealanders suffering from harm caused by digital communications are lacking an obvious and efficient means of redress. A number of nuances to digital communication make it difficult for traditional law to combat this new cause of harm, including its anonymity, ease of dissemination, the inability of victims to ‘walk away,’ and the relative permanence of online information.

A Law Commission Ministerial Briefing Paper found that individuals were not protected from harmful digital communication to the threshold desired. It also found that the digital environment is giving rise to novel causes of harm, requiring amendments to existing legislation.

The Government’s response

The Government’s response to the Law Commission’s report is the Harmful Digital Communications Bill (HDC). Its stated purposes are to deter, prevent, and mitigate harm caused to individuals by digital communications; and to provide victims of harmful digital communications with a quick and efficient means of redress.

The Bill purports to achieve these aims through a civil enforcement regime, and a new criminal offence. It also amends the Crimes Act 1961, Harassment Act 1997, Human Rights Act 1993 and Privacy Act 1993 in order to better tailor them to the developing digital world. 

The Bill provides for a system whereby complaints about harmful digital communications are first considered by an “Approved Agency”, and adjudged against a series of communications principles, which do not have parallel legal status offline.  

The Approved Agency and certain other parties (e.g. the Police, Coroner, and school principals) can send the complaint to the District Court, and the Bill sets out a wide variety of orders that the court may make against a defendant, online content host or another person. 

The Bill also introduces a new criminal offence of causing harm by posting a digital communication, which carries the penalty of imprisonment for up to three months or a fine of up to $2,000. The offence is committed by posting, or attempting to post, a digital communication with the intention to cause harm

Issues with the Bill

Unfortunately the Bill contains a number of deficiencies which make it unlikely to satisfy its objectives, and the Government’s response provides no funding for education to deter or prevent harm. Instead of creating an efficient system by which victims can obtain remedies, the Bill provides regulation that may displace existing law and result in a large number of unintended consequences.

The fact that Parliament is trying to improve the safety of New Zealanders online is commendable. However, this Bill is an attempt at a “quick fix” which will not provide a meaningful and efficient remedy, and which creates an unnecessarily onerous environment for free speech on the internet and an unjustifiable workload for the judiciary.

Deficiencies

It is questionable if new legislation is required to deal with online issues. The existing legal remedies for harmful digital communication seem adequate with minor amendments to existing legislation.

What is lacking is knowledge of, and speedy application of, existing legal remedies. Interestingly, the reason why the Law Commission recommended an Approved Agency instead of new legislation, was because they favoured new, more flexible and quicker principles that could be applied outside the courts.

The way that the Bill describes its civil enforcement regime is confusing and misses out important information. It is also silent as to the mechanism by which a complaint commences.

The Approved Agency’s statutory powers of referral to the District Court are poorly conceived. An application to the court is primarily left to the individual, which is likely to be a significant barrier for many complainants.

The Bill intends the Approved Agency to act as a filter for the District Court.  However, gaps in its provision mean that legitimate complaints may fall through the gaps. Furthermore, because application to the courts is left in the hands of the complainant, illegitimate complaints can still reach the District Court.

Overreach

While the issues with the Bill render it ineffective at dealing with cyber-harm, there are also serious issues with the Bill over-reaching, and failing to protect the rights and freedoms of individuals and online content hosts.

The lack of defences in the Bill is a key cause of this danger. The Bill does not include any of the defences available under the current, equivalent laws. This includes truth, satire, political opinion, public interest, consent, honest opinion and lawful purpose.

The Bill has the potential to criminalise children for behaviour which is dealt with informally and through education offline.

The complaints process is poorly drafted and may cause legitimate complaints to fall through the gaps, while frivolous or vexatious complaints reach the District Court. The regime also unnecessarily replicates existing law without providing for any of its defences.

Unintended consequences

Overall, the Harmful Digital Communications Bill is too far-reaching and may result in a number of unintended consequences, including:

  • Displacement of existing legal principles: the Bill is not interrelate to current law, creating the potential to displace existing legal principles. 
  • A right to be forgotten: the Bill could be responsible for introducing a controversial “right to be forgotten.”
  • Indirect and unexpected harm: for example, where a digital communication is intended for a recipient(s) who will not suffer harm, but is accidentally seen by someone who does. Or where a digital communication is intended for person B, who is not expected to suffer harm but does.
  • Unknowingly false allegations: intent is not addressed in the Bill, so the intention or knowledge of the defendant is considered irrelevant.
  • Ridiculously false allegations: the Bill fails to adequately acknowledge false allegations that no reasonable person would believe.
  • Political satire: the Bill is likely to make it far easier for easily offended people to attack satirical content about them.
  • Robust debate and protest: the Bill may be used to defeat protest of robust debate.
  • Revoked consent: if someone is willing for the content to be transmitted, but later regrets it, they could seek redress from the Bill.
  • Whistle blowing: the Bill omits a public interest defence used by whistle-blowers who are breaching confidence tort.
  • Social and political campaigns: news articles with graphic images could be considered to breach the Bill’s principles.
  • The Safe Harbour: there is no threshold for complaining under the safe harbour provision, meaning online content hosts must facilitate the complaint and counter-notice procedure whether or not the subject matter of the complaint deserves a remedy. 
  • Forced breach of terms and conditions: the requirement to leave specified content up on receipt of a counter-notice can prevent content hosts from removing content which is in breach of its terms and conditions.
  • Criminalisation of children: the Bill has the potential to criminalise behaviour by children as young as 14, that if offline would be dealt with by schools and parents through discipline and education. 

Education, awareness, and self-regulation

Parliament should reconsider the purpose of this Bill, and look at other, better options that can deal with harmful digital communications that avoid the consequences and deficiencies of the current Bill. This could include implementing the Law Commission’s recommendations that the emphasis be on education on and awareness of existing remedy, and facilitated self-regulation through the support of an Approved Agency.

Self-regulation and the Approved Agency

The Law Commission Paper called for a body with the power to provide non-legal remedies, which would be implemented far faster than action taken through the courts, and could effectively deal with the overwhelming majority of instances of harmful digital communications. The nature of digital technology means that significant damage may be done before remedies can be obtained via the courts. “Legal time” and “internet time” are very different things. The Approved Agency of the Harmful Digital Communications Bill would be apt for this function.

Education and awareness

Rather than seeking resolution through a single, all-encompassing piece of legislation, awareness of existing legal remedies for dealing with harmful digital communication could be improved through educating the public about their options when facing harm online, and providing them with a one-stop source of advice for how to use existing legislation to protect themselves.

An important first line of defence against harmful digital communications is educating people about their rights and responsibilities in cyberspace. A perfect repertoire of remedies is little use if people do not know what conduct is permissible on the internet and what to do if faced with harmful communication, and anti-bullying programmes have been found to be both practical, and effective.

There is a risk that the legislation will distract from dealing with the underlying behaviour and from concentrating on supporting young people in becoming positive digital citizens. Whether or not a civil enforcement regime is adopted, an all-encompassing approach needs to be employed to tackle harmful digital communications. Viewing harmful digital communication in a purely legal frame ignores other important contributing factors.  

To read the full dissertation, click here.