Cross-Examination: Harmful Digital Communications Bill

Cross-Examination: Harmful Digital Communications Bill

Cross-Examination is a blog series about current legal issues in New Zealand produced by EJP Communications volunteers.

Linda Gu

It is often said that alongside the transformation of societal values, it is necessary for the law to reflect the shifts in attitudes. In the midst of an age where technology pervades many aspects of everyday life in minuscule and significant ways, the law struggles to match these changes. The development of technology provides a unique environment for easy creation, access and distribution of digital communication. In a sense, harmful behaviour has broken physical confinements and ventured beyond geographical limitations. The law as it currently stands is inadequate in dealing with cases of cyber bullying where the threshold for criminality is not met, yet harm is caused.This type of harm is most prominent in the younger generation. International studies have found that there is a correlation between adolescent bullying and harmful online behaviour. Moreover, various bodies such as the police and Post Primary Teachers’ Association (PPTA) are concerned regarding the contribution of communication technology abuse to truancy, school failure and adolescent problems. [1] But harm is not limited to this age group only.  In a New Zealand context, the Law Commission in their finding stated that one in ten New Zealanders were, at some stage, a victim of harassment or bullying online. [2] What was more alarming was that, nearly half of the victims were unaware of how to find help.These concerns of society at large, contributed to the genesis of the Harmful Digital Communications Bill, which was introduced to Parliament in November 2013. Over 70 submissions were made during the consultation period as it passed through the Select Committee in December 2013. The Select Committee report was released in June 2014.The purpose of the bill is to “mitigate harm caused to individuals by digital communications and to provide victims of harmful digital communications with a quick and efficient means of redress”. [3] What is included within “digital communication” one may ask. According to clause 4 of the Harmful Digital Communications Bill, digital communication is any form of electronic communications including test message, writing, photography, picture, recording and any other matter electronically communicated. In order for conviction, the threshold of harm that must be reached is serious emotional distress.[4]The proposed approach is establishing a double-tiered civil enforcement regime. This would provide redress in a fast and cost-efficient way, by allowing access to remedies such as orders for taking down the content and identifying the anonymous offender. Procedurally, an Approved Agency will be appointed. It will, through negotiation, mediation and persuasion attempt to resolve complaints at the first instance. This tier does not involve formal court action. However, cases that are unresolved or more serious will be forwarded on to the District Court. This is the second tier. From a practical point of view, a two-tiered regime provides for a fine balance between the cost and delay associated with formal court action and procedures, and the need for a cost and time efficient way of easily seeking redress and accessing remedial pathways.On the other hand, public concern boil over whether trivial cases will flood the court system, when the real issue and focus should be placed upon education and increasing awareness of other more immediate remedies through digital platforms. In addressing this concern, the Justice and Electoral Committee in their report recommended that District Court proceedings should only be allowed where a threat of a breach of the Bill’s communication principles is breached. The Labour Party minority view stated in the Justice and Electoral Committee report also noted a number of concerns and is not without merit. These include: the need for “further consultation, the impact of new criminal sanctions on young people and the lack of awareness and representation by younger people on the impact of a new online cyber-abuse law” . [5]Another concern is related to the importance of freedom of expression. However, the Law Commission’s ministerial briefing [6] highlighted that the bill is not aimed at censorship and there is a balance to be struck between the rights of freedom of expression and the justifiable limits. These justifications reflect the core of society – what is acceptable and what crosses the line. Crown Counsel in advising the Attorney-General saw no inconsistencies between the Harmful Digital Communications Bill and the New Zealand Bill of Rights Act 1990.The result of online harassment and harm through digital communication most prominently manifests itself through media coverage of teen and celebrity suicide. The death of Charlotte Dawson, former TV personality and a victim of vicious social media harassment, inspired many to sign petition for legislative change in Australia - “Charlotte’s Law". This push for legislative change is gaining much momentum overseas, and is similar to what New Zealand's Harmful Digital Communications Bill proposes - allowing more control over cyber bullying and other harmful behaviour.Less in the spotlight, perhaps, is the harm that ordinary individuals receive on a smaller scale. Harm in this sense tends to be brushed off or left unnoticed by the public and victims are encouraged to “laugh it off”. It is at the extreme end of the spectrum such as death that is fervently pursued after by the media. Nonetheless, helpless individuals should not be left to bear the cost of gaps in the law.Admittedly, is encouraging to see initiative from Parliament, acknowledging and addressing the lack of access to justice of individuals in relation to a societal wide problem that is only growing in size as technology advances. As other nations struggle and grapple with similar cyber sphere challenges, their legislature has yet to react with appropriate changes in the law. Legislation of this form relating to digital communications is potentially world leading.The bill is currently awaiting its second hearing and it is expected that the bill will not face much opposition in the House and should be passed by the end of the year. However, one is eager to see the fruits of the bill after enactment and what impacts, if any, it will have on the untamed “wild west” - the Internet. We hope questions of the bill’s potential limitation on the freedom of speech and the possibilities of “meritless cases”[7] flooding the District Court will be considered before the enactment of the bill and look forward to the results of the bill’s second hearing.   The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information. [1] Grant Hammond, Geoff McLay & Wayne Mapp Harmful Digital Communications: The adequacy of the current sanctions and remedies (Law Commission, August 2012).[2] The Law Commission commissioned independent research company Big Picture to undertake research into a number of issues as part of the Law Commission’s review.[3] Harmful Digital Communications Bill 2013 (168 – 2), cl 3.[4] Harmful Digital Communications Bill 2013 (168 – 2), cl 4.[5] Justice and Electoral Committee Harmful Digital Communications Bill (27 May 2014).[6] Grant Hammond, Geoff McLay & Wayne Mapp Harmful Digital Communications: The adequacy of the current sanctions and remedies (Law Commission, August 2012).[7] Issac Davison “Judges warn cyber-bully law will flood courts” The New Zealand Herald (Online ed, Auckland, 29 March 2014).