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Special treatment for harmful digital messages 'worldwide trend'

Stephen Bell | April 9, 2013
There is case for treating digital messages differently from those of other media when it comes to cyberbullying says InternetNZ policy lead Susan Chalmers.

"In addition," the paper says, "the courts can take a long time to reach a remedy. It is also often unrealistic for some people to take civil proceedings or lay a complaint with police. These individuals may not have the means or inclination to pursue someone through the courts. Often the material has already done the damage and the person would just like it removed."

The broad nature of the communications principles proposed by the Law Commission and endorsed by Cabinet, such as 'a communication should not make a false allegation' means "a lower threshold" for online communications than has hitherto been applied, Chalmers says.

"I technically see a residual threat to freedom of speech. But most of the speech you'll be dealing with under this regime will be ugly, hateful speech that deserves a lower degree of protection than political speech, for example, which the Law Commission specifically noted in its paper.

"The most important thing is for any legislation to build in adequate safeguards for fundamental rights," she says.

Concerns flagged

Chalmers, on behalf of InternetNZ, flags "serious concerns" with the proposals in the Cabinet Paper requesting action by "an ISP, or other appropriate internet entity like Facebook, or Google" to take down or modify a harmful communication and/or to disclose the identity of the perpetrator to the court, which may decide to "remove anonymity".

This proposal conflates very different kinds of organisation, Chalmers says. "Your traditional ISP like Telecom or Vodafone is one type of internet intermediary. Facebook is another. Search engines are yet another. They are quite different businesses, capable of different roles in the proposed scheme.

"While the Cabinet paper reflects a general understanding that there are different types of 'internet entities', it appears to assume that they're all capable of helping in the same way - of taking down content, when that is not the case.

"It is important to clearly understand the detail of the internet environment before legislating for it," Chalmers says. "For this legislation to be workable, it needs to be crystal clear on who, exactly, they want to involve in taking down harmful content and how they expect that to be done."

"Done right, New Zealand law in this area could become a model for other countries to follow," says Chalmers.

"Done wrong, the problems it will create for society could grow to become just as concerning as the problem of harmful digital communications it is trying to solve."

 

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