There is case for treating digital messages differently from those of other media when it comes to cyberbullying says InternetNZ policy lead Susan Chalmers.
The case for technological neutrality in law has been energetically made in online discussion among InternetNZ's membership, following government moves towards a regime for deterring "cyberbullying".
"On one side, cyberbullying is a very unique, internet-enabled form of abuse deserving of a targeted response," Chalmers says. "On the other, bullying is bullying no matter the environment, so it should be dealt with under existing laws, keeping the internet free from unnecessary regulation.
"This online/offline duality gives a useful debate, but we're only having it because we've lived in a world without internet. When it comes to law that touches the internet, we should think about the generations that will have to follow it in the future and near-future, not the past or present," she says.
Real time harm
"There is a worldwide trend of transformation in judicial systems to deal 'in real time' with the internet, it's the direction in which we're headed, and New Zealand has the agility and the opportunity to be able to create something that alleviates the harm of cyberbullying without hurting the internet or its intermediaries, weakening fundamental rights or invading the average person's privacy.
"This is no simple task - there is much work to be done on the proposal to make it right and we sincerely hope to work with officials, the Minister [Judith Collins] and the Select Committee to ensure the finest possible balance is struck."
In broad accordance with the recommendations of the Law Commission in a ministerial briefing paper, Cabinet has agreed to a two-stage procedure for dealing with harmful digital communications. It sees a new civil enforcement regime including an "approved agency" as the first port of call for complaints of harm.
If this body cannot come up with a solution acceptable to the victim and the alleged perpetrator, it will be able to refer serious complaints to the District Court, which will be able to issue sanctions such as take-down orders and cease-and-desist notices.
Unique form of harassment
"The internet has provided a forum for a unique form of harassment that is easy to create and distribute and difficult to remove," says a Cabinet Paper on the proposed regime to Cabinet's Social Policy Committee..
"What differentiates harmful digital communications and bullying from their offline counterparts is the:
potential viral nature of the harassment;
ubiquity and ease of access to technology in modern life;
ease of dissemination to a global audience;
persistence of the information and the great difficulty in removing it; and
facility for anonymity.
"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."