18 June 1815 – Waterloo – Losers, Victors and Law

On Sunday June 18, 1815 – 197 years ago – the reign of the Emperor Napoleon I came to an end in one of the most significant battles in history.

Bonaparte, a remarkable military genius and political survivor (some would say opportunist) was crowned (or rather crowned himself) Emperor of France on Sunday December 30, 1804 to the strains of Nicolas Roze’s “Vivat”

The event was immortalised by the most notable artist of the Revolutionary and Napoleonic period, Jaques-Louis David in his monumental “Coronation of Napoleon” – as much a propaganda piece as a record (but many of David’s paintings fulfilled that role). When I saw this enormous painting it was exhibited at Versailles.

The Coronation of Napoleon

Tim Blanning in a review of Alan Forrest’s biography of Napoleon (History Today June 2012 p. 57 – 58) observes that Napoleon’s

“(W}ars killed over a million Frenchmen and double that number of other Europeans and ended in his total defeat, not once but twice. He condemned his adopted country to at least a century of social and economic backwardness, while his fomer enemies across the Channel and across the Rhine powered ahead on all fronts. In particular, his destruction of the Holy Roman Empire – arguably the most damaging own goal in European history – paved the way for German Unification and the invasions of 1870, 1914 and 1940. He himself was an unprincipled opportunist, plundering both France and the rest of Europe to enrich his family and himself. Betraying the revolution that brought him to power, he established a military dictatorship, indulging himself in a luxurious lifestyle that was a grotesque parody of the old regime.”

Forrest concludes that “Throughout his career, Napoleon demonstrated an insatiable desire to project his chosen image, to reserve his place in history.” The monumental coronation painting by David is an example.

Bonaparte’s ability to publicise a victory was as important as the victory itself. He made sure that it was his version of events that reached the public first. The skirmish at the Bridge at Lodi on 10 May 1796 became an epochal triumph and throughout his career and even afterwards on St Helena he managed to create a myth of extraordinary power and durability.

But the strength of his armies and the power of the columns advancing to the strains of the Pas de Charge were not a myth as he stormed from victory to victory – from Arcola and Rivoli to the Pyramids, Marengo to Ulm, Austerlitz and Jena.

The martial music of the time and some of the “mythologising” portrayals of Napoleon can be seen and heard in the following clips.

Pas de Charge\La victoire est a nous

Pour l’Empereur

The myth continued with the repatriation of his remains to the Hotel des Invalides by Louis Phillipe in 1840 and continued as his nephew Louis Napoleon traded on his uncle’s reputation and was crowned Napoleon III.

Tombeau Napoleon – Napoleon’s Tomb – L’Hotel des Invalides – Paris
L’Hotel des Invalides

But the reality of Napoleon’s reign ended at Waterloo. There was no way that even he could spin the devtasting defeat, although, as is so often the case with military campaigns, if things had happened differently after Quartre Bras and Ligny, there may have been a final victory for Napoleon to mythologise. Crushing the defeat might have been but his antogonist, Arthur Wellesley, Duke of Wellington described the victory as a “near run thing”. In fact when questioned years later as to what he considered his finest accomplishment on the battlefield, Wellington answered Assaye – a battle fought in India in the Second Anglo-Maratha War on 23 September 1803.

The Iron Duke
Aspley House – The Duke of Wellington’s London Residence – Hyde Park Corner

But there were other victors of Waterloo. The Rothschilds were among them. One story goes that the financier, Nathan Rothschild ran one of the best intelligence networks in Europe. He understood the importance and power of information. In The Rothschilds: A Family Portrait. Frederic Morton recounts the story thus:

To the Rothschilds, [England’s] chief financial agents, Waterloo brought a many million pound scoop. 
“[After the battle}… a Rothschild agent … jumped into a boat at Ostend … Nathan Rothschild … let his eye fly over the lead paragraphs. A moment later he was on his way to London (beating Wellington’s envoy by many hours) to tell the government that Napoleon had been crushed: but his news was not believed, because the government had just heard of the English defeat at Quatre Bras. Then he proceeded to the Stock Exchange.
Another man in his position would have sunk his work into consols, already weak because of Quatre Bras. But this was Nathan Rothschild. He leaned against “his” pillar. He did not invest. He sold. He dumped consols.
…Consols dropped still more. “Rothschild knows,” the whisper rippled through the ‘Change. “Waterloo is lost.”
Nathan kept on selling … consols plummeted—until, a split second before it was too late, Nathan suddenly bought a giant parcel for a song. Moments afterwards the great news broke, to send consols soaring.
We cannot guess the number of hopes and savings wiped out by this engineered panic.”

The only problem with that story is that it is not completely true. The  legend originated in an anti-Semitic French pamphlet in 1846, was embellished by John Reeves in 1887 in The Rothschilds: the Financial Rulers of Nations and then repeated in other later popular accounts, such as that of Morton. Many of the alleged facts stated are incorrect. For example, it has been shown that the size of the market in government bonds at the time would not have enabled a scenario producing a profit of anything near one million pounds.

Historian Niall Ferguson agrees that the Rothschilds’ couriers did get to London first and alerted the family to Napoleon’s defeat, but argues that since the family had been banking on a protracted military campaign, the losses arising from the disruption to their business more than offset any short-term gains in bonds after Waterloo. Rothschild capital did soar, but over a much longer period: Nathan’s breakthrough had been prior to Waterloo, when he negotiated a deal to supply cash to Wellington’s army. The family made huge profits over a number of years from this governmental financing by adopting a high-risk strategy involving exchange-rate transactions, bond-price speculations, and commissions.

But although Wellington managed to stop the threat that Napoleon posed to the peace of Europe, perhaps one of the Emperor’s most enduring legacy remain.

The Napoleonic Code—or Code Napoléon (originally, the Code civil des français)—is the French civil code, established under Napoleon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified.

It was drafted rapidly by a commission of four eminent jurists and entered into force on March 21, 1804. The Code, with its stress on clearly written and accessible law, was a major step in replacing the previous patchwork of feudal laws. Historian Robert Holtman regards it as one of the few documents that have influenced the whole world.  It was the first modern legal code to be adopted with a pan-European scope and it strongly influenced the law of many of the countries formed during and after the Napoleonic Wars.

An interesting legacy that remains, notwithstanding Napoleon’s defeat.


There is an excellent exhibition currently at the National Gallery of Victoria titled Napoleon – Revolution to Empire. The exhibition covers the pre-Revolutionary period in art and culture, traversing through the Revolution, the Terror and Napoleon’s rise through the Italian and Egyptian campaigns through to the Directory and to the Coronation and the Empire beyond. If one had any doubt about Napoleons ability for self-promotion and propaganda a few minutes in the Empire section will dispel them entirely. Present are items that he gave his generals and favourites and other examples of the development of the cult of the Emperor.

And there, in a display on its own, is a copy of the 1810 edition of the Code Napoleon. But sadly, cameras could not be used in the exhibition.

Napoleon – Revolution to Empire – National Gallery of Victoria
Napoleon – Revolution to Empire Exhibition

Magna Carta – 797 Years On

Magna Carta 1215 at Salisbury Cathedral

Section 3 of the New Zealand Imperial Laws Application Act 1988 provides that “The Imperial enactments listed in Schedule 1  are hereby declared to be part of the laws of New Zealand.” Casting the eye over Schedule 1, one sees a reference to (1297) 25 Edw 1 (Magna Carta) c.29

Chapter 29 – although it is more like a clause – reads

 Imprisonment, etc contrary to law. Administration of justice

 NO freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or               free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.

The word “condemn” in the context of the clause means “deal with”. That is the only part of Magna Carta that survives as part of the law of New Zealand, and perhaps it is the most recognised one dealing as it does with the concept of a judgment of his peers – which later came to be interpreted as trial by jury – or by the law of the land.

But Magna Carta was not, as it has been argued over the centuries, the first Charter of English Liberty. Far from it. A careful reading of Magna Carta reveals that it deals with a number of issues, primarily about land and entitlements, not of ordinary Englishmen (if there was such a person in 1215) but of the Church and the nobility. Clause 1 confirms the liberties and entitlements of the Church. In the 1297 version clause 1 also states: ” We furthermore grant and give to all the freemen of our realm for ourselves and our heirs in perpetuity the liberties written below to have and to hold to them and their heirs from us and our heirs in perpetuity.” The use of the word “freemen” is important. Serfs were not included. The Charter was not of universal application.

It seems no accident that the enactment of Magna Carta in the reign of Edward I had the title ” The Great Charter of the Liberties of England, and of the Liberties of the Forest”. But despite the lofty title, reading on the subject matter deals with the rights of earls and barons and succession, and the powers of the Crown and its officers to undertake certain actions. Looking through the document one gets the impression that it was designed to deal with a number of complaints about the way that the country was being run by King John. For example it seems that there may have been some inaccuracies in the standard weights and measures that were being used (Clause 25). The sittings of the county court were prescribed (Clause 35). These and other clauses were designed to place restrictions on what were perceived as the arbitrary use of Royal power contrary to accepted custom and the expectations of the land-owning nobility.

1215 saw an open baron’s rebellion against the King, which probably would have proceeded through to John’s deposition had there been an obvious adult successor – but there was not. John’s nephew, Arthur of Brittany, the son of his brother Geoffrey, had died in mysterious circumstances. Louis of France as the husband of Henry II’s granddaughter, had a tenuous claim, and although  the English had been ruled by the Angevin Plantagenet family at war, the country had been at war with the French for thirty years. So the barons based their revolt on John’s oppressive government and ongoing popular dissatisfaction with the Crown particularly flowing from a lengthy dispute that the King had with the Church which resulted in the country being placed under Papal Interdict.

In January 1215, the barons made an oath that they would “stand fast for the liberty of the church and the realm”, and they demanded that King John confirm the Charter of Liberties – a Charter issued by Henry I in 1100 in which certain limitations upon Royal power were accepted.

During negotiations between January and June 1215, a document was produced, which historians have termed ‘The Unknown Charter of Liberties’, seven of the articles of which would later appear in the ‘Articles of the Barons’ and the Runnymede Charter. In May, King John offered to submit issues to a committee of arbitration with Pope Innocent III as the supreme arbiter, but the barons continued in their defiance. With the support of Prince Louis the French Heir and of King Alexander II of the Scots, they entered London in force on 10 June 1215, with the city showing its sympathy with their cause by opening its gates to them. They, and many of the moderates not in overt rebellion, forced King John to agree to a document later known as the ‘Articles of the Barons’, to which his Great Seal was attached in the meadow at Runnymede on 15 June 1215. In return, the barons renewed their oaths of fealty to King John on 19 June 1215, which is when the document Magna Carta was created.

One of the magnates who was instrumental in bringing about the settlement – for that was what Magna Carta really was – was William Marshal, Earl of Pembroke. Marshal was a paragon of chivalry, a faithful knight and undeafeated champion in the lists. He served three Plantagenet Kings – Henry II, Richard I and John – and was Regent following John’s death and before Henry III could take the throne. Marshal’s tomb is in the Temple Chapel in London, in the grounds of the Inner Temple Inn of Court, and it is probably significant that many of the negotiations leading up the Magna Carta took place in this very location.

Temple Chapel – Inner Temple – Exterior
Temple Chapel – Interior
William Marshal – Tomb at Temple Chapel

An excellent overview of Magna Carta and its history, and the part that Marshal played has been written by the Lord Chief Justice of England and Wales, Lord Judge. His article addresses some of the misconceptions surrounding Magna Carta, the events leading up to 15 June and what happened subsequently, because John was released from his promises by the Pope, and disharmony in the kingdom continued. The article follows:

For a reassessment of the reign of John there is a recent article in History Today (February 2012) entitled “Good King John”  by Graham E. Seel which can be found here

The advent of the printing press, the first information technology, saw Magna Carta in print as law printers and compilers took advantage of the new information technology to record and preserve legal information beyond manuscript texts and lawyers’ notebooks. Robert Redman printed The boke of Magna Carta with divers other statutes in 1534. Richard Tottell, a leading law printer in the sixteenth century and holder of the patent giving him the monopoly to print common law books, printed Magna Charta cum statuis quae antiqua vocantur in 1556. Magna Carta featured in William Rastell’s A Collection of all the statutes from the beginning of Magna Carta until the yere of our Lord 1557, a book printed by Totell in 1559 and which was subsequently reprinted and updated.

Ferdinando Pulton (1536 – 1618), a compiler of statutes, published five works including A kalendar, or table, comprehending the effect of all the statutes that have been made an put into print, beginning with Magna Charta, enacted in anno 9. H3. Although he was a Catholic he was admitted to the Bar in 1609 and was a supporter of Elizabeth I and James I. His interest in  the strict execution of the criminal law allowed him to retain the critical support of James and Thomas Egerton, Baron Ellesmere, the lord chancellor. He wrote in his prefaces that the purpose of publishing the law was to educate the people in it. He believed that the criminal law must be firmly implemented and that knowledge of it would deter unlawful acts and his book De Pace Regnis is his recognised treatise on the “great and generall offences of the realme.”

Magna Carta was also the subject of Readings – oral lectures or expositions of statute law given at the Inns of Court – and one by Robert Brooke was printed in 1641

Magna Carta has been used for many and varied purposes. Edward Coke was a particular advocate of its use in the contest between the King, the Law and Parliament in the early Stuart period, and he refers to Magna Carta with reverence.  As he proclaimed to Parliament in 1628, “I know that prerogative is part of the law….but sovereign power is no parliamentary word: in my opinion, it weakens Magna Carta … Magna Carta is such a fellow that he will have no sovereign”

When Charles I warned the Commons that he would veto any bill that did more than reconfirm Magna Carta, Coke took the opportunity to make new law out of the greatest medieval statute. The result was the Petition of Right, something more than a list of grievances, if less than an actual bill of rights. After a stand-off the king came to Westminster and assented to the petition, ‘soit droit fait comme est desiré’—words acceptable to show royal assent, as Coke told the Commons.

In Coke’s Second Part of the Institutes, he glosses the meaning of the Great Charter of 1215 and elaborated in considerable detail the foundation upon which “English liberties” rested. The Second Institutes was not published until 1642, some 8 years after his death, but  in time to become part of the intellectual ammunition used by opponents of the Monarchy during the English civil war and revolution during the 1640s and 1650s. His commentary on C. 29 held that the clause was the “root” from which sprang many “branches” of English law regarding individual liberty.

Lord Judge makes reference to Kipling’s poem, The Reeds of Runnymede which mythologises Magna Carta. The entire poem follows.

What Say the Reeds at Runnymede

At Runnymede, at Runnymede,
What say the reeds at Runnymede?
The lissom reeds that give and take,
That bend so far, but never break,
They keep the sleepy Thames awake
With tales of John at Runnymede.

At Runnymede, at Runnymede,
Oh, hear the reeds at Runnymede:
‘You musn’t sell, delay, deny,
A freeman’s right or liberty.
It wakes the stubborn Englishry,
We saw ’em roused at Runnymede!

When through our ranks the Barons came,
With little thought of praise or blame,
But resolute to play the game,
They lumbered up to Runnymede;
And there they launched in solid line
The first attack on Right Divine,
The curt uncompromising “Sign!’
They settled John at Runnymede.

At Runnymede, at Runnymede,
Your rights were won at Runnymede!
No freeman shall be fined or bound,
Or dispossessed of freehold ground,
Except by lawful judgment found
And passed upon him by his peers.
Forget not, after all these years,
The Charter signed at Runnymede.’

And still when mob or Monarch lays
Too rude a hand on English ways,
The whisper wakes, the shudder plays,
Across the reeds at Runnymede.
And Thames, that knows the moods of kings,
And crowds and priests and suchlike things,
Rolls deep and dreadful as he brings
Their warning down from Runnymede!

Kipling had an idealised view of English liberties and justice. The mytholgising of Magna Carta perhaps tells us as much about how the Charter has developed within the context of the history of law and justice as anything else. We can complain that what Kipling has idealised is not, historically, what it was about. Rather Kipling tells us what Magna Carta has become. One of my fondest memories of law school was in 1966 when Lord Denning was in New Zealand for a Law Conference. He gave a lecture to us law students and covered Magna Carta, quoting the last verse in his beautiful soft Hampshire accent. It is a memory which has stayed.

Kipling’s poem Norman and Saxons expresses the importance of fair dealing with a conquered race, but his image of the Saxon embodies many of what could be described as “English virtues”and concepts of justice and how it may be achieved.

Norman and Saxon

AD 1100

“My son,” said the Norman Baron, “I am dying, and you will be heir
To all the broad acres in England that William gave me for share
When he conquered the Saxon at Hastings, and a nice little handful it is.
But before you go over to rule it I want you to understand this:–

“The Saxon is not like us Normans. His manners are not so polite.
But he never means anything serious till he talks about justice and right.
When he stands like an ox in the furrow – with his sullen set eyes on your own,
And grumbles, ‘This isn’t fair dealing,’ my son, leave the Saxon alone.

“You can horsewhip your Gascony archers, or torture your Picardy spears;
But don’t try that game on the Saxon; you’ll have the whole brood round your ears.
From the richest old Thane in the county to the poorest chained serf in the field,
They’ll be at you and on you like hornets, and, if you are wise, you will yield.

“But first you must master their language, their dialect, proverbs and songs.
Don’t trust any clerk to interpret when they come with the tale of their wrongs.
Let them know that you know what they’re saying; let them feel that you know what to say.
Yes, even when you want to go hunting, hear ’em out if it takes you all day.

They’ll drink every hour of the daylight and poach every hour of the dark.
It’s the sport not the rabbits they’re after (we’ve plenty of game in the park).
Don’t hang them or cut off their fingers. That’s wasteful as well as unkind,
For a hard-bitten, South-country poacher makes the best man- at-arms you can find.

“Appear with your wife and the children at their weddings and funerals and feasts.
Be polite but not friendly to Bishops; be good to all poor parish priests.
Say ‘we,’ ‘us’ and ‘ours’ when you’re talking, instead of ‘you fellows’ and ‘I.’
Don’t ride over seeds; keep your temper; and never you tell ’em a lie!”

From a “revisionist” point of view one wonders whether or not that poem was a coded message to the adminstrators of Empire. It was in fact written for C.R.L. Fletcher’s “A History of England” published in 1911 – a book which, incidentally, contained “The Reeds of Runnymede.”

So Magna Carta occupies various roles. The historian has a particular view of what it actually was but over the centuries it has been used and has developed in potency, especially in the early seventeenth century. Today it may be said to be a symbol of the importance of limiting unbridled power and of ensuring proper justice and fair dealing. The fact that the clause which emphasises the importance of the rule of law and legal process, and the importance of the obligation on the part of a ruler to ensure justice still remains as part of our law  points to its continued significance and value in the twenty-first century

The Countrey Justice – 15 June 2012

Using Digital Tools to Give Reasons

The delivery of reasons for decisions by Judges has been an essential part of the common law and the development of precedent. In the past there were arguments advanced why Judges should not give reasons. Sir Edward Coke made these observations

And in troth, wrote Sir Edward, if Judges should set down the reasons and causes of their Judgments within every record, that immense labor should withdraw them from the very necessary services of the commonweath, and their Records should grow to be elephantini libri of infinite length and in time opinion lose somewhat of their present authority and reverence

One wonders what Sir Edward would have thought of the modern law library.

William Hudson in his Treatise on Star Chamber suggested that ego was a reason why Judges might give reasons, making them seem wiser than they were. But times have changed and our books and databases are full of the reasons why Judges come to certain conclusions.

Originally, at least in England, these decisions were given orally from the Bench. Later in both time and practice, the decisions were recorded by law reporters and published in print. And the decisions, naturally, were in text and that is the situation down to today. Judges use words to express their reasons and on occasion attend courses on judgment writing so that their decisions may be articulated with greater structure and clarity.

But the digital age gives us more tools with which we may advance reasons for a conclusion. A couple of years ago I was faced with a case which involved the interpretation not of words but of television advertisements. There were competing interpretations as to the meaning of the advertisements. One interpretation would have the result that the advertisements breached the law.

Reducing the advertisements to words failed to convey the impact of the advertisement. The message lay not only in the words, but in the way in which images and music were used, the way in which skillful use of camera and editing created atmosphere and tension. Now whilst words could well convey some of the essence of the advertisement, something was lacking.

And so I created a digital version of the decision that I wrote for the case which included embedded video of the advertisements and released the decision which was also made available in hard copy and which contained links to copies of the advertisements which I posted to YouTube. Rick Shera got hold of the decision and blogged on the topic, including a copy of the decision.

The next year, 2011, I was invited to present a paper on the topic of the Digital Decision at the National Center for State Courts Courts Technology Conference (CTC2011) in Long Beach, California.

The Long Beach Convention Center

A copy of the program may be found here. A copy of my presentation may be found here.

But there were other issues that related to using multimedia tools in the process of articulating a decision. What about things like authentication, reliability, changing formats, legacy software, codecs and the like.

The article that follows is the paper that sits behind my CTC presentation and  analyses and considers the rationale for the Digital Decision and addresses some of the issues surrounding the use of them. Suffice to say that the use of such decisions will not be appropriate in every case, but this paper may help dispel some of the fears or reluctance surrounding the creation and use of such a decision. I hope that you will find it interesting and informative.

Dealing With Speech Harms – A Commentary on Steven Price’s Answer to the Law Commission.

Late last year the Law Commission released its “News Media meets New Media”  issues paper. The paper addressed two major issues – first, the state of media regulation in an environment of media convergence, and secondly, how to address what could broadly be defined as “internet speech harms” – the Law Commission refers to them as “speech harms” but in the context of the internet and modern communications systems such as smartphones.

The Commission’s suggestions in respect of the latter suggested two possible alternatives – a Communications Commissioner which may be seen as an “advisory” position, and a Communications Tribunal which would provide a limited range of remedies for “internet speech harms”

On 1 May 2012 – a date selected purely for convenience than for any political significance – the Legal Research Foundation held a half-day seminar to investigate and discuss the Law Commission’s Issues Paper (although the time limit for public submission had expired). At the seminar Steven Price unveiled his suggestions for dealing with “internet harms” which were subsequently written up in the New Zealand Lawyer Magazine.

This post considers Steven’s proposal. It does not address some of the broader issues like defining “internet speech harms” or whether it is necessary to adopt a regulatory framework to address them. That is a much wider – and more contentious – debate. I just want to consider Steven’s proposal as it stands.

Broadly speaking Steven’s proposal is to merge the two alternative proposals of the Law Commission into one – a Communications Commissioner who would have an educative and screening function for complaints relating to “internet speech harms” and an associated Communications Tribunal which would address complaints of “internet speech harms” and what should be done to remedy them. It should be emphasized that the proposals would run parallel to existing statutory or common law remedies.

It sounds like a good idea so I shall have a look at Steven’s proposal in a little more detail.

Steven first has a look at the nature of a complaint.

A claimant would have to provide evidence of four things:

1.     Material is published online in relation to the claimant (who must be a natural person)

2.     The ongoing availability of the material is causing the claimant significant harm

3.     The claimant has made reasonable attempts to have it removed, but has failed;

4.     The material features one or more of the following characteristics:

(a) It is false or misleading;
(b) It contains sensitive personal information (including an image);
(c) It breaches an obligation of confidentiality;
(d) It denigrates the claimant by reason of race, religion, sexual orientation, etcetera;
(e) It claims, without authority, to represent the claimant;
(f) It encourages others to abuse the claimant.

The first thing is that the proposal relates only to natural persons and not to companies or corporations. Presumably these “people” will only be able to avail themselves of ordinary legal remedies. The Law Commission was of the view that the purpose of the Tribunal would be to redress harm to individuals in their personal capacity.

I can understand the limitation and the desire to keep it simple, but the damage that may be suffered by a company – large or small – as the result of a sustained attack by a dissatisfied or disgruntled customer utilizing a variety of social media can result in harm or loss. If the Law Commission proposals are to provide a speedy and effective remedy that is in tune with “internet time” and the often viral nature of information on the Internet, it seems that corporations may well be disadvantaged by not having access to the remedies suggested.

It should be noted that items 1-4 are conjunctive – that is that they all have to be established, where as the characteristics that need to be established are disjunctive in that a complainant need prove only one (or more).

Internet characteristics are recognized – the pervasive nature of the information (on-going availability) – and the requirement for some earlier attempts to resolve the harm is sensible, in that complaint cannot be the remedy of first resort.

Steven then goes on to consider the steps that the Tribunal could take, along with other factors that might need to be taken into account but it must be remembered that the Tribunal should be the last port of call for a remedy. Thus his suggestions for the role of the Commission should precede that discussion.

I have in mind a two-stage process, with a role for a Communications Commissioner at the beginning.

A complaint would be lodged (with a small filing fee, I think). The Commissioner would check that the four elements discussed above were covered, and would filter frivolous or vexatious complaints. He or she would have a duty to try to ensure the respondent is provided with details of the claim (perhaps via an ISP) and given information about how a response can be made (perhaps even anonymously).

The Commissioner could then decide to take a range of actions:

  • Provide information to the parties;
  • Help the complainant deal with social media organisations;
  • Merely warn the respondent of laws that may apply;
  • Try to mediate/settle;
  • Intervene on behalf of the complainant;
  • Refer the case to the Tribunal;
  • Refer it to the Tribunal for fast-track consideration.

So the Tribunal would only come into play if the Commissioner was unsuccessful. It too would be required to seek and consider the respondent’s response (if possible). It could make interim orders in very serious cases after fast-track consideration, perhaps applying a higher threshold.

The “filtering” role of the Commission is essential. These powers should be clearly defined, especially the power to deal with vexatious, frivolous or minor complaints. The rejection of these complaints by the Commission would not deprive a complainant of ordinary legal remedies – just the Commission-Tribunal process.

Should there be some kind of appeal or review in the event that there was nota reference to the Tribunal or that the complaint was dismissed or not acted upon. This is a difficult one – it probably needs careful consideration. My tentative view – and I emphasise that it is tentative – is that with the availability of other remedies a complainant could pursue those rather than have an appeal right. Alternatively a complainant could have the right to come back to the Commission for a “reconsideration” or rehearing but backed by further evidence or information which may justify the Commission taking further steps. But consideration of the principle of finality in litigation must apply in this as in any other forum.

What is important is that there should be no direct access to the Tribunal. The Commission is seen as an important and necessary first step.

So what happens when the Tribunal comes into play. Procedure is always an important consideration and behind all these proposals is the necessity for speedy but fair resolution of complaints, mindful of “internet time”.

 The consideration of the complaint would usually be done on the papers, fairly informally, perhaps with provision for a hearing in rare cases. The Broadcasting Standards Authority has operated successfully this way. The Tribunal could make final orders after an exchange of submissions. I wouldn’t be inclined to give it power to order damages. Let the Courts handle that.

Not only the Broadcasting Commission uses a “hearing on the papers” process. A similar procedure is available in the Domain Name Dispute Resolution Service and in the complaints to the Copyright Tribunal under the file sharing provisions of the Copyright Act.

I agree entirely with the suggestion that damages be left to the Courts. The way I see it the Tribunal would have limited powers as far as remedies are concerned, and these would be in keeping with the speedy “internet time” resolution of disputes

Having said that I wonder if it may not be an idea to build in some time limitations within which complaints are to be made, and some time limit guidelines for the decision-making\action process. This would necessarily require proper resourcing for the Commission\Tribunal both in terms of funding, expertise and personnel.

So what should the Tribunal consider before taking action?

[t]he Tribunal would have a discretion to make a take-down order. But it could only do so after considering a range of statutory factors, and only if it concludes that a take-down order is demonstrably justified. (That last bit is intended to magic away the obvious clash with the New Zealand Bill of Rights Act 1990).

What are the factors? Well, for a start, obvious ones like the degree of harm likely to be caused, the breadth, nature, and understanding of the likely audience, whether an order would be futile, and the importance of the right to freedom of expression, including anonymous expression, and the inherent dangers of censorship.

I’d also throw in a series of other factors designed to reflect the principles of the law, but avoid their complexity. So the Tribunal would have to factor in, where relevant:

  • The extent to which the material is accurate;
  • The extent to which the material is recognisable as opinion;
  • The extent to which the material is recognisable as humour or satire;
  • The extent to which the material contributes to a discussion of a matter of importance to its audience;
  • Whether a right of reply has been offered, whether it has been taken up, and whether it is likely to be effective in addressing the harm.

These factors are designed to reflect defamation defences; different factors may need to apply in privacy cases, for example.

I’ll come back to the take-down order because there are a few problems there.

I think in addition to Steven’s criteria there should be those that the Commission has to consider. “In the law, context is everything” as Lord Steyn said in R v Secretary of the Home Department Ex Parte Davis, [2001] UKHL 26; [2001] AC 532  para [28] and although Steven’s criteria are contextual, the full picture should be considered. Steven properly emphasizes the importance of the freedom of expression and the dangers of censorship, and the provisions of the New Zealand Bill of Rights Act 1990 must act as an umbrella over all these proceedings. If there is to be an abrogation of the freedom of expression it must be properly and rigorously justified. We must remember the nature of freedom of expression so eloquently stated in the title of a book by Anthony Lewis about freedom of thought and expression Freedom for the Thought that We Hate – and we must be alert for indirect censorship – a problem pointedly discussed in Nick Cohen’s You Can’t Read This Book. At the same time we must be alert to the issue of harm – John Stuart Mill categorized it as “actual harm” in On Liberty.

One way of assessing the nature of harmful speech is contained in the Harassment Act 1997. The definition of a specified act for the purposes of harassment contained in s.4 contains a number of  specific examples, all of which have a physical aspect to them. S. 4(1)(f) provides that a specified act may be

acting in any other way—

(i) that causes that person (person A) to fear for his or her safety; and

(ii) that would cause a reasonable person in person A’s particular circumstances to fear for his or her safety.

There is a two stage test in this definition. One is a subjective one – it looks upon the behavior as causing the particular person to fear for his nor her safety. Thus one aspect of the test is to look at the behavior from the victim’s point of view. The second limb of the test contains an objective test that is measured by context. The test must be that of a reasonable person – that is the objective aspect – in A’s particular circumstances – that is the contextual aspect of the definition.

It should be noted that harassment is based upon fear for safety, at least as far as s.4(1)(f) is concerned. The other more specific types of behavior do not contain such a test.

Now Steven suggests that the harm be “significant harm” that possesses certain characteristics. Perhaps that assessment of harm could based upon a mixed subjective\objective test as is the case in harassment, which may provide at least a model for further consideration. In that way, together with a Bill of Rights Act consideration of the exercise of rights in a free and democratic society, significantly harmful speech or expression can be properly measured. In many respects, the tests proposed by Steven go a considerable way to meeting these requirements.

Now what about the “take-down”. That is probably the most serious interference with freedom of expression but in the Internet environment it has a few problems. Steven expresses the issue in this way

The Tribunal would probably need powers to make take-down orders against website hosts and ISPs where the respondent can’t be found or won’t comply, suppress the names of claimants on occasion, order disclosure of the respondent’s identity where necessary, make declarations of inaccuracy, and order rights of reply. We’d probably want a provision that the evidence and outcome at the Tribunal couldn’t be used in court proceedings.

Assume the respondent doesn’t comply with a take-down order and fails to remove the harmful content. Is there going to be a remedy in contempt? Assume the respondent is off-shore – what enforcement powers would the Tribunal have? Assume the ISP AND the respondent are off-shore – is a “blocking order contemplated? (I don’t think so, but I imagine the question will be asked). Or are these going to fall into a recognized area where the Tribunal’s writ may not extend.

I like the ideas about disclosure of identity of the respondent in the case of anonymous harmful speech (name and shame) and the ability to correct errors or order a right of reply. I know that the “right of reply” remedy is one that David Farrar finds attractive, especially in the context of defamation and the fact that the participatory qualities of the internet allow such interchange to take place. And I think that the use in other court proceedings of evidence placed before the Tribunal should be prohibited, especially given the specialist nature of the Tribunal and the limited powers that it may have.

Steven also suggests that

There should be a right of appeal on the merits. And it should be an offence to disobey a take-down notice, to repost the material, or to post something substantially similar.

And he is very frank about the shortcomings of his proposal

[my] plan suffers from some of the same defects as the Law Commission’s one as to the dangers of parallel proceedings. And my plan too creates a fairly complex task for the Tribunal. In addition, it presents greater danger of abuse. The Tribunal has a very broad discretion to censor online material. My proposal plainly authorises suppression beyond the edges of current laws.

I don’t see the problem with parallel proceedings given that the Commission\Tribunal proposal provides a speedy mechanism for limited relief. Problems may arise if, for example, Courts are given take-down powers or the other remedies that the Commission\Tribunal path would have available to them. But there are a number of essential requirements for an effective solution to speedy remedies for “internet speech harms”.

The proposals would have to be properly resourced, as I have already suggested. The early effective performance of the Commission\Tribunal would have to be established to give the new remedies any form of credibility and that will require special skill in providing those who suffer internet speech harms with some relief or remedy whilst keeping the “digital natives” satisfied that their freedom of expression in cyberspace is not being  unduly fettered. Therein lies the real challenge.

Disclosure of interest: I am a member of the Council of the Legal Research Foundation and was one of the organisers for the Legal Research Foundation seminar on the New Media and invited Steven Price to participate. I have also consulted with the Law Commission on the “News Media meets New Media” Issues paper and have made a submission on it.

The IT Countrey Justice

5 June 2012