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

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