Red flags raised over 'Cyberbullying Bill'

It is aimed at combating harmful digital communications, but those attending an InternetNZ workshop on the Communications (New Media) Bill are concerned it may interfere with free speech.

More popularly known as "the Cyberbullying Bill", it presents two challenges which are strikingly parallel to the Copyright (Infringing File Sharing) legislation, according to delegates at the Wellington workshop last week. First, how can it be enforced in an internationally connected environment where anonymity is technically easy? And, if ISPs and hosting sites are to be asked to take down or block offending content, who will compensate them for the costs incurred?

It's easy to mute scepticism by characterising the proposal as "the Cyberbullying Bill", says InternetNZ technical policy advisor Andy Linton. In reality, it has potentially wider consequences in terms of restricting speech on the internet. "Do I think cyberbullying is a terrible thing? Of course," he told the workshop. "But do I want to give up my civil liberties because someone else is doing something wrong? No I damned well don't."

The vast majority of the action taken under the measure may be straightforward and above criticism, he says; "but it's the corner cases you have to watch for."

InternetNZ CEO Vikram Kumar criticises facile descriptions of the electronic communications environment as a separate realm called cyberspace. "That's just wrong," he told the workshop. "We live here in the real world, with real harms and we need real remedies."

The proposed legislation covers a wide swathe of electronic media including text messages, websites, blog postings and other comment on the internet and social media. Text messages are clearly an important tool for cyberbullying but cannot be dealt with in the same way as web traffic, Kumar points out; concepts such as an 'ISP' are meaningless in the text-messaging world.

The Bill sets up an "approved agency" to initially vet complaints -- a function likely to be taken on by NetSafe. If a complaint is judged sufficiently serious and remains unresolved, it can be taken to a tribunal -- usually one District Court judge, chosen from a panel.

The draft Bill proposes the tribunal can make orders not only to take down an original offending communication but to forbid anyone else from repeating it.

"We could be asking Twitter to monitor millions of tweets in real time," says Kumar. "Is that possible? When I look at the volume and the jurisdictional issues, I have to say I don't think it is."

Other speakers pointed out that the administrators of overseas-based arenas where much potentially harmful content is posted, such as Facebook and YouTube, are assiduous in taking down such content in response to a complaint if they judge it has contravened their terms of service; perhaps, it was suggested, they are already doing a large part of the work envisaged in the draft Bill.

Cyberbullying is a subset of bullying in general, said several speakers, and to attack electronic communications specifically only deals with part of the problem.

"We have to make sure that by concentrating on electronic communications we're not losing sight of the real world of bullying and harmful speech," says blogger David Farrar.

Thomas Beagle of TechLiberty says limits on freedom of speech are not to be taken lightly; the Bill of Rights Act says speech should only be limited in ways that can be justified in a free and democratic society. The burden of proof is on those who would limit those rights to demonstrate that the suggested measures meet that high threshold, he says.

Although some measures, such as those relating to harassment, can be regarded as extensions to existing law, some go beyond its boundaries, Beagle says. For example, the Bill expands the concept of illegal "denigration" beyond those contained in the Human Rights Act to, for example, criticising someone's religion or ethical belief.

There is an "upside" for managers of sites where controversial comment is likely to be made, says Farrar; "instead of mediating between squabbling parties on the blog, I'd love to be able to refer them to an official body," he says.

The first workshop, in Wellington set out 18 points that delegates see as needing further elaboration. These include the timeframe allowed to elapse between the comment and the complaint; the extent of measures to exclude 'frivolous and vexatious' complaints; the definition of an ISP; the status of comments made by professional media organisations; right of appeal for the defendant; the definition of "significant emotional harm"; the conflict of perceived urgency of action with legal due process; and methods for measuring the practical success of the legislation in stemming harm.

These questions will be considered by InternetNZ in arriving at its own submission on the draft Bill.

Cabinet approval sought by year's end

Justice Minister Judith Collins says if Cabinet accepts the Law Commission's recommendations as expressed in its report and in the draft Communications (New Media) Bill, a new Bill text will be created to be put to Parliament. This is likely to happen by early next year.

"The government is carefully considering the Law Commission's report and draft Bill, drafted by the Parliamentary Counsel Office to aid discussion," says Collins.

When the government's response is written, the minister will seek Cabinet approval of the response "by the end of the year", she says.

"If Cabinet agrees to implement the Law Commission's recommendations, a Bill will be drafted."

Concerns were expressed at the Wellington workshop that the perceived urgency of a cyberbullying remedy might lead to legislation being "fast-tracked" with omission or shortening of some of the usual stages.

"I expect the legislation will go through the usual Parliamentary process, including consideration by a Select Committee," Collins says.

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