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 )
Submissions on the Law Commission's preliminary proposals on media regulation can be made at http://www.lawcom.govt.nz
Submissions close on March 12 2012. Enquiries to newmedia@lawcom.govt.nz
