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Preventing Cyber-bullying: New Zealand Leading the Way?

About The Author

Yasmin Daswani (Former Writer)

Yasmin is currently a third year law student at Durham University. Yasmin aspires to be a solicitor and is currently interested in criminal and family law. Outside of her studies, Yasmin is a passionate sportswoman; she is part of her university waterpolo team.

Discussion about online abuse was prevalent in the news in July last year when Caroline Criado-Perez, who successfully campaigned for a woman’s face to be depicted on banknotes, became the subject of sustained harassment on the social media site Twitter. Criado-Perez received rape and death threats. In the same week other prominent women received similar abuse from self-proclaimed “trolls” via the social networking site. In August last year cyber-bullying gained further media attention when 14-year-old Hannah Smith committed suicide after suffering bullying on the anonymous social media site ask.fm. More recently there has been growing concern over how to tackle the growing problem of "revenge porn". 

Yet this type of online bullying is not solely confined to the UK. In New Zealand, as in other countries, there is a growing concern about new forms of communication being used to cause harm to others.

New Zealand’s current laws

Under various provisions in the Crimes Act 1961, it is an offence to threaten to kill or cause grievous bodily harm, to destroy property, or to do an act likely to create a risk to the health of one or more people with intent to cause serious disruption. Similarly, the Summary Offences Act 1981 contains an offence of ‘intimidation’, which is committed by a person who, with intent to frighten or intimidate the other person, threatens to injure that person or any member of his or her family.

These provisions were used following a 15-year-old girl’s suicide after she received threatening texts from an ex-boyfriend’s wife. Hayley-Ann Fenton died in July 2009 after intentionally taking her father’s medication, four days after her 27-year-old boyfriend, Pelesasa Tuimala, ended their relationship via text message. Elima Tuimala was Pelesasa’s estranged wife who ‘viciously bullied’ Hayley. Yet Elima was given a mere nine-month suspended sentence for intimidating Hayley. This tragic story demonstrates the inadequacy of the current law in responding to cases involving cyber-bullying.

The Telecommunications Act 2001 prohibits the use of a telephone to intentionally offend someone by using ‘profane, indecent of obscene language’. The act also makes it an offence to use the telephone for the purpose of disturbing, annoying or irritating any person, whether by making silent phone calls or by spitefully transmitting communications with the intention of offending the recipient.

Thus in 2012, this offence was used to prosecute Liam Ryan-Morris who sent text messages threatening to put naked pictures of a woman on Facebook if she did not go out with him.

The Legal issues

Much of the present law in New Zealand was settled long before the advent of new forms of communication, and those who framed the law could not have had foresight of the developments in social media. Despite this, the law is expressed in technology-neutral terminology that can be adapted to a new environment.

Yet while the existing criminal and civil law can deal with many types of harmful digital communications, in practice the remedies under these laws are not always accessible, sufficient or available. Stephen Price suggests that a quick and cheap solution could be a method of obtaining an injunction or a “take down” order when truly damaging material is posted online. 

The main issue with the current situation is that the existing remedies do not work within “internet time”. Over the Internet, information can be uploaded and distributed globally within minutes. In the controversial Roast Busters scandal, a group of young men boasted about getting young girls drunk and having sex with them. The young men then proceeded to publish defamatory material about the girls via social media. Whilst there was public outcry at the actions of the young men, the damage had already been done by the time the case was resolved. In criminal cases there is no "take down" power, and in some cases (such as the torts of defamation and privacy and the Harassment Act 1997) the victim needs thousands of dollars to take civil action. Even in cases where an injunction is given, significant damage may already have been done in the time that it takes to bring civil proceedings to a hearing.

A solution?

Following the Roast Busters scandal, Justice Minister Judith Collins introduced the Harmful Digital Communications Bill (HDC Bill) to provide a quick, effective and proportionate response to the harm caused by digital communications. The Bill creates a complaints system based around ten communication principles.  These principles state, for example, that digital communications should not be threatening, menacing or intimidating; should not be indecent or obscene and should not cause harm to another individual or incite another individual to commit suicide.

Under the Bill, a complainant must first go to an Approved Agency, which will try to resolve the problem informally through negotiation, mediation and through giving advice. This step is an attempt to keep cases out of court, particularly cases involving young people as either the victims or perpetrators of harmful digital communications.

If this fails, the complainant can apply to the court for a number of civil orders. The remedies, in particular, are ground-breaking: the court can make an order requiring that the harmful content be taken down, that the defendant cease the conduct concerned and that a correction or apology be published.  These remedies are better equipped to deal with perpetrators who are able to quickly disseminate information, as it gives victims a quick method of redress.

The most serious cases will be dealt with through new criminal offences of “posting a digital communication with intent to cause harm” (punishable by 3 months imprisonment) or “inciting a person to commit suicide” (punishable by 3 years imprisonment).

The government has also included a “safe harbor” provision in s. 20 of the HDC Bill for third parties who host online content.  It clarifies that a host (such as Twitter or Facebook) cannot be taken to court for the comments on their website unless they have been notified by the complainant that the comments are in breach of the law and do not remove it within a reasonable time.

On the 27th May 2014 the HDC Bill received approval from a Select Committee and will be set down for its second reading, however a date for this has not yet been released.

Criticisms

These reforms have been described by some as 'ground-breaking', however others have argued that the reforms are draconian and could lead to online censorship.

Chris Barton argues that the Law Commission has ‘blundered in haste’. Barton believes that the Commission has failed to address the endemic issue of bullying as a whole and instead have drawn a superficial distinction between bullying in the real world and bullying online. Yet Barton fails to realise that the phenomenon of cyber-bullying creates unique challenges, primarily because it can spread faster and further than usual bullying and the traces can be difficult to remove. Additionally, victims of cyber-bullying often find online messages more menacing, as there are no face-to-face cues to help them understand the person’s intention.

Tech Liberty offers a more convincing critique of the HDC Bill, which focuses on three particular areas of concern. Firstly, Tech Liberty argues that s. 19 of the Bill is broadly defined and may capture communications that are of real value to society.  S. 19 states that:

(1) A person commits an offence if—

(a) The person posts a digital communication with the intention that it cause harm to a victim; and

(b) Posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and

(c) Posting the communication causes harm to the victim.

This provision contravenes international law insofar as it fails to recognise that some harmful communications have value to society. The UN Special Rapporteur has specifically stated that criminalising defamation violates freedom of expression and is an unnecessary and disproportionate measure. 

An example given by Tech Liberty is if a person takes a photo of a politician receiving a bribe, and decides to post it to the Internet. The communication would fulfil the three requirements, even though it may have been accurate and in the public interest to be made aware of such activities. This proposed measure would be unacceptable when compared to the news stories that regularly expose the actions of political figures, and, therefore, the application to digital communications could create difficulties.

Secondly, Tech Liberty criticises the effect of s. 20 on small companies and blogs. Since most small bloggers do not have a legal department or the means to defend themselves in court, they will be more inclined to take down any reported content immediately so that they can escape any potential liability. Consequently, the safe harbour provision under s. 20 has the potential to affect freedom of expression guaranteed by the New Zealand Bill of Rights Act 1990.

Thirdly, Tech Liberty express a worry that the HDC Bill will be ineffective in situations where it is needed the most: such as when harms are committed overseas. Jurisdictional difficulties will make it extremely difficult, if not impossible, to resolve harmful digital communications, as overseas websites will be under no obligation to respond to orders from the Approved Agency or District Court.  

Some suggested changes

The HDC Bill was fast-tracked due to a growing public concern about the harm resulting from the misuse of new communication technologies, and this has meant that the Bill has been drafted hastily. Section 19 and 20 of the Bill, in particular, require careful consideration as they potentially conflict with basic rights protecting the freedom of expression. Accordingly, it is suggested that further research and consultation would be beneficial to these provisions in order to clarify their applicability and proportionality.

Besides these two provisions, there are several protections in the Bill preventing unjustified use of the law to attack legitimate speech. The complainant is not able to apply for any of the remedies unless they have first tried to resolve the complaint through the Approved Agency.  Additionally the breach of the principles must be serious or repeated and the harm caused must amount to ‘serious emotional distress’. No order can be made unless it is demonstrably justified under the Bill of Rights Act, and once deemed justified it must be made by a judge, who will have to consider a range of sensible contextual factors under clause 17(4), including: whether the communication was true, whether it was in the public interest, the conduct of the parties, and the vulnerability of the victim. Finally, there is a right of appeal. The inclusion of a stringent threshold goes some way to ensuring proportionality between the prevention of cyber-bullying and the protection of freedom of expression.

The Bill provides great progress for the previous remedies gap whilst additionally, through the Approved Agency, providing crucial support for complainants who have little knowledge of the law and its processes. Particularly for young people, having an Agency that can reach a resolution on their behalf, stopping the bullying and ensuring the removal of the harmful content, will be hugely beneficial. The Bill is a significant and innovative development in an attempt to tackle cyber-bullying. Whilst the UK is currently attempting to understand how to prevent cyber-bullying with existing laws, New Zealand appears to be ‘leading the way’ with its proposed legislation to deal with cyber-bullying.

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Tagged: Criminal Law, Defamation, Discrimination, International Law

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