Linking and the Law – Part 3

Linking and the Law

PART 3

 

8.            Linking and Publication – Ramifications for Defamation

There have been a number of cases that address the issue of whether or not posting a link can amount to publication for the purposes of defamation. It is not surprising that there is some divergence of opinion between Courts, and in essence the conclusion can be summed up with the phrase “it depends”.

A number of recent cases have involved Google. The important thing to remember is that not all the cases involving Google involve linking. One of the important English cases (Tamiz v Google[62]) deals with comments placed on a blog hosted by Google, and whether Google is a publisher for the purposes of defamation. The Australian cases of Trkulja v Google[63] and Trkulja v Yahoo[64] involve the return of search results (particularly involving illustrations the juxtaposition of which resulted in defamation by innuendo. Google’s general position is that it is a content neutral provider. Although this may be correct from a technological point of view, the matter becomes a little more complex when the way in which search results are displayed depends upon search algorithms developed by Google programmers and used in the delivery of search results. The issue of snippet – the brief record of the contents of the relevant web-page – and whether or not they can be defamatory was the issue in Metropolitan International Schools Ltd. v. Designtechnica Corpn.,[65] which held that despite the presence of this brief information, Google was not a publisher, although Abbot JA  in A v Google opined that it was arguable that Google was a publisher for the purposes of dismissing an application by Google for summary judgement striking out a claim for defamation. He left open the possibility “to hold that a search engine is a publisher but with access to the defence of innocent dissemination”.  Part of that determination may involve asking whether the automatic search result process contains a “stamp of human intervention”.

Curiously enough none of the cases referred to above carry any discussion of liability for simply providing a link to defamatory material. In all the cases there has been a deeper issue about services that are provided by Google, or the manner in which search results are displayed. However, the case of Crookes v Newton,[66] a decision of the Supreme Court of Canada provides authority at the highest level for the treatment of links in defamation proceedings. Indeed, the finding of the Court on links could well provide guidance in other areas of law. Before embarking upon that discussion there is an early New Zealand case that requires consideration.

The case of International Telephone Link Pty Ltd v IDG Communications Ltd[67]  involved an application to strike out a claim for defamation regarding references in an article to a website which was created by a third party.

The article in question contained a summary of a number of allegations against the plaintiff that had been made by a Mr Leng on a website that he had created “as a warning to others”. At the end of the article was the URL for Mr Leng’s website.[68] The plaintiff claimed that the defendant republished the website publication by making reference to it. It should be emphasised that the article contained a report or summary of the allegations that the plaintiff considered defamatory.

Counsel for the defendant argued:

1. That the defendants cannot be regarded as having communicated the contents of the Website to anyone; a person does not communicate words nor convey their meaning by identifying where they can be found.

2. The defendants did not cause nor participate in the creation of the Website and are therefore not parties to the publication inherent in that creation.

3. That the references to the website were to the entirety of the site, although only portions thereof were defamatory.

Master Kennedy-Grant swiftly rejected the third submission, observing that few documents are defamatory in their entirety It therefore does not matter that the Website is not defamatory in its entirety. [Pge 5 (2)] The second submission was deemed to be irrelevant. He then went on to identify the crucial issue as whether it is arguable that the references to the website in the article were sufficient communication of the defamatory contents of the website to constitute publication of those contents and referred to a number of cases from the late nineteenth and early twentieth century.

The cases relied upon by the Judge involved circumstances where attention was drawn to the existence of defamatory content. In Hird v Wood[69] a person who sat near a placard which allegedly defamed the plaintiffs and pointed to it was held to have published the contents of the placard, even though it was not shown that he had written or been a party to the writing of the offending words. In Lawrence v Newberry[70] a letter which was published in a newspaper referred readers of the letter to a speech that contained defamatory content. In Hird v Wood, there was an immediacy about what happened. In Lawrence v Newberry a curious person would have to obtain a copy of the text to the speech. Master Kennedy-Grant observed:

There does not seem to me any difference in principle between what had to happen in Lawrence v Newberry for the publishee to receive the information intended to be conveyed and what had to happen in this case. A hundred years ago the reader in question would have picked up a back number of The Times or gone to the reading room of the local library; today he or she would log onto the Net and access the Website.

He referred to other cases where there was held to be “publication by reference” and concluded:

(a) the authorities referred to by counsel favour the view that, even where there is a lack of immediacy between the reference and the possibility of reading the material referred to, there can be publication; and

(b) the question of whether there has been adoption or approval or repetition of the material referred to is essentially a question of fact and, as such, fit for determination at trial.

Significantly there was no discussion of the nature of a link as a means of referencing potentially defamatory content and the thrust of the rationale was based upon publication by reference. The Judge was unconcerned about the nature of the reference or how it was provided. All that was need was for attention to be drawn to the referred defamatory content.

One point of distinction in this case was the fact that there had been a summary of the defamatory content in the body of the article which appeared in Computerworld magazine. The decision does not make it clear that the article appeared in an on-line version of the magazine. But the provision of the information provides a context to the provision of the link to a website where the actual details of the defamatory content may be found. It is not as thought the link existed in isolation, but provided a reference point for further information.

8.1          Crookes v Newton[71]

A similar situation arose in the case of Crookes v Newton.

It is settled law that to succeed in a defamation action, a plaintiff must first prove that defamatory words were published. Crookes v Newton holds that a hyperlink, by itself, is not publication of the content to which it refers. Publication will only occur if the hyperlink is presented in a way that repeats the defamatory content.

The facts in that case were these.

The appellant Crookes brought numerous defamation actions against various individuals and organizations alleging that he had been defamed in several articles on the internet. After those actions were commenced, the respondent Newton posted an article on his website which commented on the implications of the plaintiff’s defamation suits for operators of internet forums. The respondent’s article included hyperlinks to websites containing some of the allegedly defamatory articles that were the subject of the plaintiff’s actions. However, the respondent’s article did not reproduce or comment on the content in those articles.

The appellant discovered the respondent’s article and advised him to remove the hyperlinks. When the respondent refused, the appellant brought an action seeking damages for defamation on the basis that the hyperlinks constituted publication of the allegedly defamatory articles. There was evidence that the respondent’s article had been viewed 1,788 times, but no evidence as to how many times, if any, the hyperlinks in the article had been followed.

The Court[72] began by considering the development of the publication rule. The scope of the rule was wide indeed. In one case a person whose role was to manually operate a printing press was found liable for defamatory words contained in the publication, despite being unaware of its contents. The rigour of the publication rule was ameliorated by the “innocent dissemination” defence, allowing booksellers and librarians to avoid liability if they had no actual knowledge of alleged libel, were not aware of circumstances that would give cause to suspect a libel, and were not negligent in failing to discover the libel.

The majority then went on to consider the nature of a hypertext links as a means of publication and returned to first principles.“To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it.  Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant.  Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.

The functionality of hyperlinks as a form of “publication” was then considered:

Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”.  Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content.  They both require some act on the part of a third party before he or she gains access to the content.  The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral.  Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.

A hyperlink, by itself, should never be seen as “publication” of the content to which it refers.  When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.

Thus the Court is saying that hyperlinks are essentially content neutral references to material that hyperlinkers

a) have not created and

b) do not control.

Although a hyperlink communicates that information exists and may facilitate the transfer of information, it does not, by itself, communicate information. But the Court went on to consider a significantly wider issue – that of the internet itself.

The Internet cannot, in short, provide access to information without hyperlinks.  Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.  The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control.  Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning.  Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.[73]

However, this did not mean that there was a blanket defence available for those who hyperlinked to defamatory material. A hyperlink will constitute publication if it “presents content from the hyperlinked material in a way that actually repeats the defamatory content.” This might occur, for example, where a person inserts a hyperlink in text that repeats the defamatory content in the hyperlinked material. In these cases, the hyperlink would be more than a reference; it would be an expression of defamatory meaning.  However, this had not occurred in the present case, and the majority dismissed the appeal.

McLachlin C.J.C. and Fish J., whilst in substantial agreement with the majority, held that “a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” A hyperlinker should be liable for linked defamatory content if the surrounding context communicates agreement with the linked content. In such cases, the hyperlink “ceases to be a mere reference and the content to which it refers becomes part of the published text itself.”

Deschamps J agreed with the outcome but differed considerably in approach. A blanket exclusion of all references from the scope of the publication rule erroneously treats all references alike. Deschamps J considered that the majority’s approach “disregards the fact that references vary greatly in how they make defamatory information available to readers and, consequently, in the harm they cause to reputations.” She proposed a solution that was nuanced and fact specific. A hyperlink would constitute publication if the plaintiff established two elements:

a) that the defendant “performed a deliberate act that made defamatory material readily available to a third party in a comprehensible form,” and

b) that “a third party received and understood the defamatory material.”

As to the first element, the burden would be upon the plaintiff to establish that the defendant played more than a passive instrumental role in making the information available. There would need to be reference to numerous factors bearing on the ease with which the referenced information could be accessed.

To establish the second element, plaintiffs would need to adduce direct evidence that a third party had received and understood the defamatory material, or convince the court to draw an inference to that effect based on the totality of the circumstances.

The difficulty with this approach, and with the contextual approach suggested by McLachlin CJ and Fish J is that it would erode the “bright line” rule proposed by the majority and which provides certainty in this area. Deschamps J’s approach is fact driven, whereas the contextual approach is dependent on the presence of indicia of “adoption or endorsement,” the scope of which is inherently uncertain. If the “bright line” rule provided by the majority were not present the proposals of the minority could have the effect of potentially inhibiting the use of hyperlinks to contentious material thus inhibiting the internet as a medium for free expression. This concern possibly encouraged the majority to establish their rule.

A further difficulty that follows from the minority approach is that it would shift the weight of litigation onto defendants in this difficult area. Although this is already the case with defamation as a “strict liability” tort  the effect of the minority approach would be to lower the threshold of proof for a plaintiff.  Internet users would be placed in the position of having to justify their conduct by reaching for the protection of a defence – and defamation proceedings are costly and beyond the resources of most. Although the wide availability of defences for hyperlinkers may, as Deschamps J. suggests, “dissuade overeager litigants from having a chilling effect on hyperlinking,” it would not deter plaintiffs who wish to stifle criticism by issuing gagging writs and intimidating defendants through costly litigation.

However, despite the welcome statement of the “bright line” rule by the majority, the case is not closed on hyperlinking. The Court expressly left open the question of whether the same principles apply to embedded or automatic hyperlinks. These hyperlinks automatically display referenced material with little or no prompting from the reader. They are distinguishable from the user-activated hyperlinks in Crookes. User activated links require users to click on the hyperlink in order to access content.

The Court declined to comment on the legal implications of automatic or embedded hyperlinks.  It seems that they would constitute publication, according to the majority’s because they make third party content appear as part of the website that the hyperlinker controls. The third party material that is “linked-to” becomes a part of the users site and thereby constitutes publication by the user.

8.2       Concluding Thoughts on Crookes v Newton

The cases suggest as a starting point that links can be content neutral, and that their use may not have any legal implications nor attract liability if the material linked-to may be contentious. If the link acts as a reference point for “further reading or discussion” its function is clearly neutral.

The situation becomes different if the link goes beyond as reference point and adopts material in the linked-to site, or uses the site as an endorsement for the views expressed. This accords with the view of the majority in Crookes v Newton and was the situation in the case of International Telephone Link Pty Ltd v IDG Communications Ltd where the nature of material linked-to was coloured by the commentary published by the defendant.

Although Kaplan J seemed to focus more on the “electronic civil diosobedience” motive of the defendants in Universal City Studios v Reimerdes and Corley there can be little doubt that the use of links was anything but “content neutral” and was coloured by the commentary and actions of the defendants. It is for this reason that the differentiation between the defendants and an informational organ such as the LA Times becomes clear. In such a case the link has a referencing or “for further information” quality rather than the encouragement of an unlawful act.

Thus, although the “contextual” approach of McLachlin CJ and Fish J was that of a minority, nevertheless it cannot be denied that there is a contextual element that pervades the use of links. Although the decision of the majority provides welcome clarification, it is not absolute. The technologists may see links as mere code that enables internet navigation, and thereby is content neutral. The law sees it in a more nuanced way.

9.            The European View – Svensson v Retreiver Sverige AB

Linking, in the context of copyright infringement, has come under scrutiny in Europe. Under EU copyright laws, authors have the exclusive right to control the “communication to the public”  and “the making available to the public” of their works, whilst performers, producers and others also have exclusive right to control the “making available to the public” of their works. It is generally an infringement of those rights if others communicate or make available content without permission from rights holders to do so. The general approach is that the rights around the ‘communication to the public’ are said to “cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting” and “should not cover any other acts”.

In the case of Svensson v Retreiver Sverige AB[74] The Court of Justice of the European Union (CJEU) has been asked to provide a ruling on how that EU law applies in the case of hyperlinks. The issue is whether  anyone, other than the holder of copyright in a certain work ,who supplies a clickable link to the work on his website, communicates the work to the public. The Swedish court has also asked whether the answer to that question changes if access to the content is restricted in some way or by the way the content is displayed after a link is clicked on.

The case  began when a Swedish journalist, Svensson, wrote an article which was published by a Swedish newspaper in print and on the paper’s website. An e-commerce company, Retriever Sverige AB, ran a subscription service which gave its customers access to newspaper articles.

Svensson sued Retriever Sverige AB for “equitable remuneration”, alleging that Retriever had made his article available to Retriever subscribers through the search and alert functions on its website. He stated that this came within the copyright-relevant acts of either a communication to the public or the public performance of a work. Whatever the situation, Retriever needed his consent and he had not granted it.

Retriever denied any liability. One of its key arguments was that the linking mechanisms did not constitute copyright-relevant acts, and there was therefore no infringement of copyright law. The fact that a Retriever customer had to log in to Retriever’s website and then fill in a search term was also relevant.

The European Copyright Society[75] in a submission to the Court has argued that the act of hyperlinking to copyright material without permission ought not to constitute outright infringement. In an 18 page submission[76] the Society argues[77]:

“Clearly, hyperlinking involves some sort of act – an intervention. But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic ‘transmission’ of the work, or placing the work into an electronic network or system from which it can be accessed. This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work. As Abella J explained, speaking for the majority of the Supreme Court of Canada (in a case concerning hyperlinks and defamation):

‘Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not….

Hyperlinks … share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.’

The Society provided a very strong and technologically correct statement on the function of a link within the context of transmission and communication of a work.

“(a) Hyperlinks are not communications because establishing a hyperlink does not amount to “transmission” of  a work, and such transmission is a prerequisite for “communication”

(b) Even if transmission is not necessary for there to be a “communication”, the rights of the copyright owner apply only to communication to the public “of the work”, and whatever a hyperlink provides, it is not “of a work””[78]

In addition, the Society argued that  the CJEU should generally uphold that hyperlinking does not constitute a communication to the public of copyrighted content regardless of the ‘framing’ given to the content when it appears after a hyperlink has been clicked on.

“In so far as there might be technical differences in some cases where the work is made available from the server of a person providing a hyperlink, it is our view that, even were there an act of communication or making available, such a communication or making available is not “to the public” because it is not to a “new” public – it is a public which already had the possibility of access to the material from the web. Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation.”[79]

Reference was also made to domestic court cases from Germany and Norway which are consistent with the views advanced by the European Copyright Society.

In Paperboy,[80] the German Bundesgerichtshof found that the “paperboy search engine” which searched newspaper websites and provided search results including hyperlinks, did not thereby infringe. The Court considered whether hyperlinking was “communication” under German law and under Article 3 of the Information Society Directive, 2001/29, concluding that there was no infringement. It observed:

[42] A person who sets a hyperlink to a website with a work protected under copyright law which has been made available to the public by the copyright owner, does not commit an act of exploitation under copyright law by doing so but only refers to the work in a manner which facilitates the access already provided …. He neither keeps the protected work on demand, nor does he transmit it himself following the demand by third parties. Not he, but the person who has put the work on the internet, decides whether the work remains available to the public. If the web page containing the protected work is deleted after the setting of the hyperlink, the hyperlink misses. Access to the work is only made possible through the hyperlink and therefore the work literally is made available to a user, who does not already know the URL as the precise name of the source of the webpage on the internet. This is however no different to a reference to a print or to a website in the footnote of a publication. 

[43] The Information Society Directive, …., has not changed the assessment of hyperlinks, as are in question here, under copyright law … According to Art.3(1) of the Information Society Directive Member States are obliged to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, including the making available to the public of their works in such a way that members of the public may access them from a place and a time individually chosen by them. This provision refers to the use of works in their communication to the public. The setting of hyperlinks is not a communication in this sense; it enables neither the (further) keeping available of the work nor the on-demand transmission of the work to the user.

In Napster.no[81], the Supreme Court of Norway held that the posting on a website (in this case, http://www.napster.no) of hyperlinks that led to unlawfully uploaded MP3 files did not necessarily constitute an act of making the files available to the public. It stated:

“[44] There has been no dispute that those uploading the music files carried out illegal copying and made the works publicly available. If the linking is regarded as making works publicly available, this will concern linking to both lawfully and unlawfully disclosed material. The conception of what constitutes making works publicly available must be the same in both cases…

[45] The appellants claim that the linking involved an independent and immediate access to the music. A [the respondent] for his part has  pointed out that the links only contained an address to a webpage and  that, by clicking on the link, the music file would be stored temporarily on the user’s own computer. Not until such storage took place would the user be able to play the music file or download it for later use.

[46] In my opinion, it is not decisive whether [direct/deep links] or [superficial links – links to the main page of the website] are involved, nor whether the user technically is “located” on his/her own computer, on napster.no, or has “moved” to the website to which the link leads. What must be decisive is how the technique functions – whether and how access is given.

[47] It cannot be doubted that simply making a website address known by rendering it on the internet is not making a work publicly available. This must be the case independent of whether the address concerns lawfully or unlawfully posted material…”

The European Copyright Society also referred to the case of Perfect 10 v Google Inc.,[82] a decision of the 9th Circuit Court of Appeals.

10.          Perfect 10 v Google – Moving Away from Reimerdes & Corley

The factual background was as follows:

Perfect 10 marketed and sold copyrighted images of nude models. Among other enterprises, it operated a subscription website on the Internet. Subscribers paid a monthly fee to view Perfect 10 images in a “members’ area” of the site. Subscribers had to use a password to log into the members’ area. Google did not include these password-protected images from the members’ area in Google’s index or database. Perfect 10 also licensed Fonestarz Media Limited to sell and distribute Perfect 10’s reduced-size copyrighted images for download and use on cell phones.

Some website publishers republished Perfect 10’s images on the Internet without authorization. Once this occurred, Google’s search engine automatically indexed the webpages containing these images and provided thumbnail versions of images in response to user inquiries. When a user clicked on the thumbnail image returned by Google’s search engine, the user’s browser accessed the third-party webpage and in-line links to the full-sized infringing image stored on the website publisher’s computer. This image appeared, in its original context, on the lower portion of the window on the user’s computer screen framed by information from Google’s web-page.

Perfect 10 sued Google claiming that the latter’s “Google Image search” infringed Perfect 10’s copyrighted photographs of nude models, when it provided users of the search engine with thumbnail versions of Perfect 10’s images, accompanied by hyperlinks to the website publisher’s page.

The Court commenced by examining the operation of Google’s search engine and the way in which searches were returned and the operation of the links that were provided to such returns. It observed that there was no dispute that Google’s computers stored thumbnail versions of Perfect 10’s copyrighted images and communicated copies of the thumbnails to Google users. However, it also noted that Google did not display a full sized infringing image when Google framed in-line linked images that appear on a user’s computer screen.

“Because Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any “material objects … in which a work is fixed … and from which the work can be perceived, reproduced, or otherwise communicated” and thus cannot communicate a copy.”[83]

The Court went on to look at the way that the technology operated:

“Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause in-fringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen. Google may facilitate the user’s access to infringing images. However, such assistance raises only contributory liability issues, see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 929-30, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005), Napster, 239 F.3d at 1019, and does not constitute direct infringement of the copyright owner’s display rights.”

It was for that reason that the Court concluded that

“Google’s search engine communicates HTML instructions that tell a user’s browser where to find full-size images on a website publisher’s computer, but Google does not itself distribute copies of the infringing photographs. It is the website publisher’s computer that distributes copies of the images by transmitting the photographic image electronically to the user’s computer.”[84]

This case is useful in that it considers the nature of the technology in arriving at its conclusion. However, unlike Crookes v Newton which attempted to lay down some bright line rules about links and their general function within the legal framework, the decision in Perfect 10 is fact specific. Whilst, within the factual matrix of the case, Google was not liable for direct infringement, there was still the problem of assisting third-party websites in distributing their infringing copies of photographs to a worldwide market and assisting worldwide audience of users to access infringing materials, for purpose of Perfect 10’s contributory infringement claim.

In addition, the decision seems to be a step away from Judge Kaplan’s approach in Reimerdes & Corley which relied on the “functional equivalence” approach. The Court in Perfect 10 effectively adopted a content neutrality approach to the issue of direct infringement, focussing especially upon the nature of the code and the HTML instructions which they held were not equivalent to showing a copy. Applying the approach in Reimerdes & Corley that would amount to a “distinction without a difference” but the more recent cases seem to demonstrate a shift away from such a rationale to a more nuanced understanding of links and their use as a coded reference point.[85]

Return to Svensson

Which brings us back to Svensson and the recent decision of the Court of Justice of the European Union (CJEU). This decision could be viewed as a compromise. It contains some relief to those who link to content, but at the some time hedges that around with exceptions. Regrettably the decisions seems to take little account of the technological underpinning of hyperlinking, nor that fact that links are in essence neutral. AT the same time it must be remembered that the decision relates to EU copyright law and therefore cannot be said to contain rules of universal application.

In summary the Court held as follows:

      1. A clickable direct link to a copyright work made freely available on the internet with the authority of the copyright holder does not infringe.
      2. It makes no difference to that if a user clicking on the link is given the impression that the work is on the linking site.
      3. However, it seems that a clickable link will (unless saved by any applicable copyright exceptions) infringe if the copyright holder has not itself authorised the work to be made freely available on the internet.
      4. If the work is initially made available on the internet with restrictions so that only the site’s subscribers can access it, then a link that circumvents those restrictions will infringe (again subject to any applicable exceptions and further discussion below).
      5. The same is true where the work is no longer available on the site on which it was initially communicated, or where it was initially freely available and subsequently restricted, while being accessible on another site without the copyright holder’s authorisation.

Within the context of copyright law, if material is made freely available on the Internet by the copyright holder, there are no infringement implications. Linking to the content, assuming that a link amounts to an act of communication, does not constitute infringement. The Court said: “the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public, as referred to in that provision.”

Graham Smith on his Cyberleagle blog makes the following comment:

“Taken at its face, that could suggest that a link to any freely available work does not infringe, regardless of whether the copyright holder initially authorised the work to be made freely available on the internet. That would broadly legitimise most links. But if that is right it is difficult to understand the numerous references in the judgment to whether the copyright holders authorised the initial communication to the public on the internet, and the potential audience contemplated when they did so.  It seems likely that the operative part should instead be understood to mean:
“…the provision on a website of clickable links to works freely available on another website, in circumstances where the copyright holder has authorised such works to be made freely available at [that]/ [an] internet location, does not constitute an ‘act of communication to the public’ … .”
The alternatives ‘that’/‘an’ reflect the possible uncertainty about the effect of the judgment on links to unauthorised copies where the copyright holder has authorised the work to be freely available at some other location on the internet.”

The situation begins to get complex if the copyright holder has not authorised the placing of the material on the Internet.. Once again there is little contentious in this proposition. The placing of material on the Internet without the authorisation of the copyright holder (and making it available) involves acts of infringement unless one can fall within exceptions or claim a permitted act. The issue seems to become a little more complex, but in reality it is not, if the content is place on the Internet with the approval of the copyright holder but is subject to restrictions which are subsequently circumvented. Clealry, unless one can fall within exceptions or establish a permitted use, there ar infringement implications in providing such material.

There are a couple of observations that must be made about the CJEU decision. The first is that it is not a decision about the implications of hypertext links. There is no discussion about the technology or implications of hypertext links. In that respect the decision is a little disappointing. Secondly, what the decision IS about is the nature communication within the context of copyright law. It is, therefore,  a decision about copyright.

A factor which complicates the issue of communication is whether or not there has been communication to a “new public”. Laurence Eastham at the Society for Computers and the Law makes the following observations:

“The Court points out, however, that the communication must be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders at the time the initial communication was authorised. According to the Court, there is no such ‘new public’ in the case of the site operated by Retriever Sverige. As the works offered on the site of theGöteborgs-Posten were freely accessible, the users of Retriever Sverige’s site must be deemed to be part of the public already taken into account by the journalists at the time the publication of the articles on the Göteborgs-Posten was authorised. That finding is not called into question by the fact that the internet users who click on the link have the impression that the work is appearing on Retriever Sverige’s site, whereas in fact it comes from the Göteborgs-Posten.

The Court concludes from this that the owner of a web site, such as that of Retriever Sverige, may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.

The position would be different, however, in a situation where the hyperlink permits users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, since in that situation, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication.”

So is Svensson a helpful decision. The general reaction is positive. Iain Connor makes the following assessment:

 “On the whole, this is a good decision for rights holders and consumers alike. It makes clear that you can provide links to content freely available on the web but that you need permission from the copyright holder in all other circumstances and so it puts rights holders in control of their business model.”

“The slight wrinkle is that where content is freely available, the decision appears to allow it to be ‘framed’ on a third party website,” he said. “However, it should be possible to manage the framing issue by robust website terms and conditions and other legal means such as the author’s right not to have his work falsely attributed to another.”

By focussing on communication, the Court avoided the thorny issue of the function and essential meaning of hypertext links. This was probably by design. By restricting their decision strictly to the ambit of the questions posed by the national court, the CJEU adopted a narrow focus the the issue, restricting the decision to the questions at hand and further restricting the decision to the strict framework of copyright law. The issues have been addressed strictly within that context and the content neutrality (or partiality) of hypertext links need not, therefore, have been considered.

11.             Linking — issues arising

The cases that have been decided on the issue of linking do not establish with any degree of clarity that the provision of a link in all cases will automatically result in a copyright infringement. The mere provision of a link does not mean that a copy is made. Rather like a signpost, it directs a user to a particular site from which information may be obtained. The link itself does not involve copying material from another website.

Thus the mere provision of a link should not incur any direct liability for copyright infringement of website material. The work that is at the destination of the link is neither displayed nor communicated. The user is merely told where the work may be found.

When the site is accessed and temporary copies have been made into RAM, the matter is one between the copyright owner and the browser. Claims for secondary infringement against intermediaries will be futile.[86] The mere provision of a link without more does not implicate the link provider. It seems to have been the case in Universal City Studios v Reimerdes[87] and RIAA v Napster[88] to pursue the provider of the links or the operator of the Napster server using US contributory infringement theory as an expedient rather than pursue the millions of unidentified direct infringers. However, in the absence of any issues of contributory infringement, encouragement or interference with property rights that are inherent in framing and deep linking, the link provider commits no infringement.

Browsing webpages, if it is to be a “functional equivalent” of anything, may be the equivalent of reading a book in an environment akin to a public library. It thus falls outside the acts restricted by copyright, and there is no basis for secondary liability claims.

It may also be argued that anyone who places material on the internet without effective restrictions grants an implied licence to an internet user to make copies of the material and to any other website operator who links to it. The vast scope of the internet makes contractual solutions — agreements between owners of linking and linked-to sites — almost impossible.[89]

In this context, one must question whether the issue of implied licences is appropriate for issues involving copyright.[90]

First, it is unclear that an implied licence could apply in the case of a deep link that circumvents the main page and the advertising placed on it. It could be argued that the owner of a website grants a licence to browse the site, but in the way the creator of the website intended and designed it. However, one commentator suggested that the argument of an implied licence is still tenable even in the event of linking to deep pages in a website.[91]

Secondly, the use of web linking agreements that explicitly state that permission is required can avoid the argument for an implied licence. Such web agreements are becoming more common, and the implied licence then cannot work against the clearly expressed will of the copyright owner, as agreed with the author of the linking site.

However, even the defenders of these kinds of agreements recognise that the suggestion of a contract being necessary to link to a website seems contradictory to the ethos of the internet, and suggest that, for normal links, these kinds of agreements are unnecessary. One can link without permission and without having to give notice to the copyright owner.

Web linking agreements, according to this view, should still be useful for embedded links and especially for frames, and as a precautionary measure taken by the operator of a commercial website that wants to be sure that it will not face liability for the links that it is providing.

In addition, some owners have attempted to negate implied licence by inserting “Terms of Use” that explicitly deny the existence of implied licence to link, but these disclaimers are often inconspicuous, and may be considered unenforceable.

Thirdly, the implied licence doctrine is an aspect of contract law, essentially an estoppel doctrine, and it does not fit well with the traditional copyright law, because such a factual contract would not seem to arise between strangers who do not have a previous relation, legal or de facto.

Finally, in the case of copyrighted materials posted on webpages without the consent or the knowledge of the owner, it is clear that this argument cannot work because the implied licence is based on the premise that the owner knew that his or her material would be available on the internet.

In terms of copyright law, fair dealing is a far more satisfactory solution. It is clear that some form of statutory amendment would be required to the New Zealand Copyright Act 1994 because to attempt to apply the fair dealing provisions of that legislation[92] to webpages may strain the language of the statute.

Under the fair use defence in the US there is no infringement if the use is fair, even if the use violates one of the copyright owner’s exclusive rights. Four factors are considered in determining whether a use is fair:

1.   the purpose and character of the use, including whether such use is for a commercial nature or is for non-profit educational purposes;

2.   the nature of the copyrighted work;

3.   the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4.   the effect of the use upon the potential market for or value of the copyrighted work.[93]

The purposes and character of linking are closely related to the purpose of the internet, which is to provide information freely to the public in an accessible manner. Where the nature of the linked page is commercial or non-fictional and where the linked page is a small and insubstantial part of the plaintiff’s work, in the absence of a commercial or profit-making use, browsing should qualify as fair use. As far as the fourth requirement is concerned, linking could be said to be an advantage.

In the context of the world wide web the link expands the potential market of the linked site, because more people are able to easily find and access the site. Even if accessing a website through a link does make a copy of the whole work, this factor does not have to be decisive in the majority of cases and fair use can be successfully invoked.

So far the issue of simple linking has been considered. It is clear that the cases outlined recognise that different considerations apply to deep linking and framing that involves the diversion past a normal entry point to a website (along with any notices, terms or conditions of use, advertising and the like) to material of value to the user, or, in the case of framing, the apparent appropriation of another user’s material and inclusion as part of another, unrelated site.

The cases on deep linking demonstrate that a deep link potentially prejudices the linked-to site by circumventing advertising material and possibly prejudicing the linked-to site’s income, especially if advertising revenue is based on the number of times the page containing the advertising is accessed. Although the objective in providing a deep link may be to provide relevant information (which is the major purpose of the internet) nevertheless there is an expectation on the part of a site owner that access to the site will be reached via a home or starting page.

However, given the nature of the internet as an information-disseminating medium, and the essentially “public nature” of information available on the internet, and the fact that it is potentially available for world wide distribution and access, and given that in essence a link is no more and no less than a signpost, it is suggested that it need not follow as a matter of course that a deep link should be seen as a copyright infringement. Rather, greater value should be placed on the availability of information than on the fact that access to that information has been other than through a home page. As additional factors, the person or organisation behind the linked-to site:

•    knows the nature of the web and that the link is a means of access and navigation;

•    is taking advantage of the tremendous reach that the web offers; and

•    has available certain technological means of restricting access to parts of the site.[94]

Given the third factor, it would be a simple matter to establish copyright infringement if a person linking to the site used some sort of “hack” or “software solution” to gain access to the deep-linked material by circumventing the means employed to restrict access.

Another option is to place a higher burden of proof on a person alleging infringement by deep linking in terms either of standard of proof or of the criteria to be established to prove infringement. Among such criteria could be actual (as opposed to potential) damage or provable loss of revenue or patronage as an ingredient of the infringement rather than the quasi-strict liability copyright law approach that deems unauthorised copying to be infringement.

Framing creates another situation in terms of intellectual property. Framing is a function of software, having been introduced as a feature of Netscape 2. It is now widespread within browser software. Many sites require that for a user to access them, a frames-capable browser should be used. Unlike linking, however, framing is not a fundamental part of the architecture of the world wide web. In addition, framing is far closer to traditional print-based copyright theory than linking in that framing may give the impression that the web material framed in the window of site A belongs to and is a part of site A rather than in fact belonging to site B. In effect, framing without attribution is a clear appropriation of site B’s material and can be protected by ordinary copyright principles. To avoid such difficulties, many websites open a linked-to site in a completely new window, thus identifying the linked-to material by name and by URL.

12.             The Threat to the Web

The challenging of links based on copyright theory raises a greater issue as far as the internet is concerned. This goes to the heart of the function of the world wide web, the architecture and environment of the internet and the way in which, if at all, such fundamental aspects of the new technology are going to be regulated or governed.

Linking is what gives the web its awesome power. It is an attraction for ordinary people who wish to obtain information quickly and easily without having to understand the mysteries of code or remember complex address parameters or details. Linking is an indispensable tool that allows internet users to benefit from information that is located on the web. To establish that a mere link or mere browsing infringes copyright would be the equivalent of killing the world wide web, which represents the internet to the majority of computer users.

Linking seems to have attracted the attention of copyright specialists because it provides a means by which potential infringements may take place by directing users to copyrighted material. Thus, although the link is merely what could be classified as an intermediate step in the process of potential infringement, it seems to have assumed a significance that goes beyond what it really is. Further, it gives copyright owners a convenient target — the owner of the linking site — rather than the ultimate consumer, and even then there may be some doubt as to whether there has in fact been an infringement by the mere accessing of a webpage without more.

Linking holds no mystery. A link is merely a line of code that allows a step to be taken. Tim Berners-Lee, who developed the world wide web at the European Organisation for Nuclear Research (CERN),[95] puts the matter as “the intention in the design of the web was that normal links should simply be references, with no implied meaning”.[96]

The contents of the linked document may contain meaning and often do but the link itself does not. A recommendation to go to a particular site followed by a link, or even the embedding of a hypertext reference (HREF) within the recommendation does not add any extra meaning to the link.

A useful analogy for a link is to treat it as a card index system in the library that directs a researcher or library user to a particular location within the shelves of the library. The library card carries no more information than is necessary to enable the user to satisfy him or her that the book is the one that is sought and to locate it.[97] A hypertext link does not even go this far. It only contains the information about the location of the information on the destination site and makes that site available to the computer user.

However, it is, as has already been stated, an essential part of the architecture of the internet. This then raises a question that relates to the way in which the law applies to the internet, and touches on an even deeper issue that is the purpose of law itself.

The purpose of the law is to regulate the behaviour of individuals within society. One of the areas that the law has been unable to regulate is the environment within which individuals operate. That environment is governed by what we may refer to as the “laws of nature” or the “laws of science”. It is, if you like, the architecture within which society operates.

Similarly with the internet — inherent within what has been called cyberspace is a fundamental architecture or system within which we may operate and without which the internet or parts of it cannot function. An example may be found in the TCP\IP protocol that allows different computers to communicate with one another. Another is the system of IP numbers that are assigned to machines on the internet. Although we may set rules for the assignation of IP numbers[98] the internet simply will not function without these two essential aspects of the internet environment or its architecture. This environment or architecture is not a part of nature such as is the real world environment. It is created by human beings. However, that architecture sets the metes and bounds of the internet or cyberspace and receives its expression in code.

The world wide web built on existing internet protocols and added another dimension to the internet. However, what the world wide web actually is and its limitations are governed by the code that makes it operate. Part of that system of operations is hypertext linking, activated in code by the term HREF. Linking cannot take place without the HREF expression. Thus linking is an essential part of the architecture and the environment of the world wide web. To attempt to limit or regulate its use is rather like a Judge trying to slow the growth of a tree by judicial decree.

Lest it is suggested that it is not the architecture that is being regulated but the way in which people behave — that is, utilise the architecture — we must return to first principles and see what the HREF expression does. Unlike a mechanical creation, which may be used for good or ill, HREF allows only one thing and that is a hypertext link — a means of locating a page and bringing it into a user’s computer. To attempt to legislate or regulate what is an essential part of the web does violence to the environment within which the internet user may expect to operate. Indeed, the most extreme view might be that for the purposes of ensuring that internet users have certainty in terms of the lawfulness of their activities within the environment, the law should not concern itself with issues of the use of basic and necessary parts of the internet by using copyright theory to limit the use of these fundamental operators. The real issue should be with the use that the ultimate user may make of copyrighted material. If that causes copyright owners a problem in terms of detection and enforcement so be it. Back-door methods should not be used which do violence to the internet environment and simultaneously to legal principle.

In a sense the code or the architecture of the internet limits the way in which the law can be applied to regulate or govern it. In a sense the code and the architecture that it provides imposes its own regulatory metes and bounds not only in terms of what may or may not be done, but in terms of the boundaries of any regulatory or governance system that may be imposed upon it by the law, either as pronounced by the Courts or by legislative bodies.

If, however, linking activity is going to be the subject of regulation under, say, principles of copyright, the effect upon the internet will be dramatic.[99]

First, the internet will cease to be the free information environment that it was originally conceived to be. Freedom of navigation for information on the internet will become restricted in the same way that “real space” is. The freedom that users enjoy to link to content on similar subjects whereby a collection of links on, say, copyright law are all brought together, may be compromised or indeed become impossible. Not only would the free information environment be restricted but the utility of the internet as a source of information would be hampered.

Secondly, the internet could become divided into a number of information “zones” of open and closed areas. Distinctions between sources of information may be made on a number of criteria, among them pricing considerations, the willingness of a user to provide information about himself or herself, the willingness of a user to accept additional information on products or services, whether the site is a commercial site or a non-commercial one and so on. In some respects this is already taking place. For example, when the New York Times Cyberlaw Journal existed online it was often linked to from legal sites. However, a visitor to that site for the first time was unable to access it until he or she registered, and that registration was specific to the particular machine. Thus, if the user wished to access the Cyberlaw Journal from another machine, the registration information (user name and password) had to be re-entered. The New York Times Cyberlaw Journal was free of charge, but the mechanism prevented casual access to the site by deep linking.

Other technological solutions may be available such as requiring a password to gain access, or building dynamic webpages that only appear when the user uses a certain program. There may be feasibility issues for commercial sites who would try to obtain as big a reach as possible that would mitigate this solution, although it may be satisfactory for non-commercial sites. The irony is that the complaints about deep linking arise mainly from commercial sites, whereas non-commercial sites are generally more attuned to the “information wants to be free” ethic that underpinned the early internet.

It is possible to program webpages to reject linking from unwelcome sources or users. In a sense this is a logical and acceptable solution, for it puts control of access to the site in the hands of the site owner. This enables the owner to obtain the exposure that is required while at the same time preventing unwelcome links, such as in the case of Havana House Cigars in New Zealand. Framing may also be prevented in that the frame may be “dissolved” thus enabling the user to see the entire page from its source and not as a part of another site.

There is no doubt that there will be further litigation about links and in the near future there will be some considered and possibly definitive solutions. However, those solutions will further obscure this complex area. Decisions emanating from the US will have to resolve apparent conflicts between the Digital Millennium Copyright Act and the Constitution of the US, in particular the First Amendment. With legislation in Australia in force another outcome may well be presented, for Australia has no constitutional equivalent to the US Constitution or its Amendments.[100]

Thus it is likely that there will be a jigsaw of rules and regulations limited by territorial jurisdictions and applicable in some areas and not in others. The casualties in the resolution of these conflicts will be the law, which, when territorially based will be unable to provide consistency and certainty for an environment that does not know borders, and tragically the internet itself.

13.             Conclusion

There are those such as Goldsmith[101] who call for internet regulation and a system of governance. There are others, such as John Perry Barlow,[102] who see the internet as the last frontier for freedom, and who quail at any form of intrusion by the law.

It is necessary to remember that the internet is primarily a means of conveying information. It is not without reason that many emphasise the internet as an important component of the so-called “knowledge economy”. Issues of technology convergence and the use of the internet for business and commerce mean that necessarily the law has a place in the digital environment. In many cases existing legal rules govern these relationships. In some cases, new solutions will have to be devised. Information that is available in a book that can be borrowed from a public library should not be proscribed merely because that same information is available online and can be obtained by clicking on a hypertext link. By the same token, information available on the internet should not be proscribed merely because it is there, especially if it is legitimately available from another source.

What will require care is to ensure that the digital environment receives the same treatment as the “real world” and that restrictions and inhibitors on activities and relationships that are not present in the real world seem to become available in or intrude on the online environment.


[62] [2013] EWCA Civ 68

[63] [2012] VSC 533

[64] [2012] VSC 88

[65] [2009] EWHC 1765

[66] [2011] SCC 47

[67] H C Auckland, 19 January 1998, CP 344/97 Master Kennedy-Grant

[68] The domain name of which was the subject of litigation – see NZ Post v Leng [1999] 3 NZLR 219

[69] (1894) 38 SJ 234 (CA).

[70] (1891) 64 LT 797

[71] [2011] SCC 47

[72] By a majority decision comprising Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ.

[73] At para [36]

[74] Reference for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 18 October 2012 – Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retreiver Sverige AB http://curia.europa.eu/juris/document/document.jsf?text=&docid=130286&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1258343 (last accessed 19 March 2013).

[75] The European Copyright Society is a year-old group of academics and scholars that it has said seek to “promote their views of the overall public interest”. The group’s opinion on the issues before the CJEU was formed by 17 academics from across Europe, including Professor Lionel Bently from Cambridge, Professor Graeme B Dinwoodie of Oxford University and Professor Martin Kretschmer, the director of CREATe at the University of Glasgow.

[76] Opinion on the reference to the CJEU in Case C-466/12 Svensson – 15 February 2013 http://www.ivir.nl/news/European_Copyright_Society_Opinion_on_Svensson.pdf (last accessed 19 March 2013).

[77] Ibid. paras [35 – 36].

[78] Ibid. para [6 (a) – (b)]. The argument is developed later in the submission by a careful analysis of CJEU cases on the notion of communication and the significance of transmission – see paras [23 – 26]

[79] Ibid. para [55].

[80] Case I ZR 259/00 (17 July 2003) [2005] ECDR (7) 67, 77,

[81] (2006) IIC 120 (27 January 2005)

[82] 487 F. 3d 701 (2007)

[83] Ibid. p. 717

[84] Ibid. p. 718

[85] Having said that it must be noted that Perfect 10  was a decision of the 9th Circuit whereas Reimerdes & Corley was a decision of the 2nd Circuit. The matter will only be definitively resolved by accord between the decisions of the Circuits or a decision of the Supreme Court of the United States.

[86]      In Europe this exclusion was embodied in art 5.1 of the Proposal for a Directive on Copyright and Related Rights in the Information Society, approved 10 December 1997.

[87]      111 F Supp 2d 294 (SDNY 2000), 273 F 3d 429 (2d Cir NY 2001).

[88]      114 F2d 896, 239 F3d 1004.

[89]      P Jakab “Framing Technology and Link Liability” Internet Law Symposium (1998) Pace Law Review 23–25; On contractual solutions see, “Weblinking agreements, Contracting Strategies and Model Provisions” (1997) Section of Business Law American Bar Association; M Luria “Controlling Web Advertising: Spamming, Linking, Framing and Privacy” (1997) 14/1 The Computer Lawyer, 10–22.

[90]      Although it is far more apposite to patent law. Indeed, the defence of implied licence in the US is an affirmative one and it cannot automatically be asserted that it is available. In order to determine whether such an implied non-exclusive licence exists, every objective fact concerning the transaction should be examined to determine whether it supports such a finding. Several objective inquiries can be made in this regard, including an assessment of whether the delivery of the copyrighted material was without warning that its further use would constitute copyright infringement. See Edward A Cavazos and Coe F Miles, “Copyright on the WWW: Linking and Liability” 4 Richmond Jnl of Law and Technology (1997) para 40 and following http://law.richmond.edu/jolt/v4i2/index.html (last accessed 21 March 2013).

[91]      Maureen O’Rourke, “Fencing Cyberspace: Drawing Borders in a Virtual World”, 82 Minn L Rev 609, 660.

[92]      Part 3, ss 40–93.

[93]      USCS 107.

[94]      Special log-in, registration, provision of information for the payment of a fee or a technological way of ensuring that access to the “deep-linked” page is only possible by way of the entry page.

[95]      http://public.web.cern.ch/Public/Welcome.html (last accessed 21 March 2013).

[96]      Tim Berners-Lee, “Links and Law” http://www.w3.org./DesignIssues/LinkLaw (last accessed 21 March 2013).

[97]      The analogy of a referencing system was used in Crookes v Newton [2011] SCC 47

[98]      One of the functions of ICANN.

[99]      The Copyright Amendment (Digital Agenda) Act 2000 (Australia) which substantially amends the Copyright Act 1968 provides that copyrighted subject-matter is not infringed by making a temporary reproduction or copy of the subject-matter as part of the technical process of making or receiving a communication, provided that the making of the communication is not an infringement of copyright (ss 43A and 111A). Although this substantially clarifies the position as far as incidental copying associated with online activity is concerned, the legislation remained silent on the issue of hyperlinks. There is no relevant Australian case law on the issue although an early draft of the Digital Agenda Bill suggested that one of the objects of the legislation was to relieve uncertainty as to whether practices such as internet browsing and hyperlinks violated the Copyright Act. However, the matter has been left to the Courts. See Maree Sainsbury, “The Copyright Act in the Digital Age” 11 Jnl Law and Information Science 182.

[100]     For an example of conflicting outcomes between Australia and England see Sony Computer Entertainment v Owen [2002] WL 346974 (Ch D), [2002] EWHC 45 and Sony Computer Entertainment v Stevens (2002) FCA 906 (26 July 2002).

[101]     “Against Cyberanarchy” 65 U Chicago LR 1205.

[102]     “A Declaration of Independence of Cyberspace”, 8 February 1996, https://projects.eff.org/~barlow/Declaration-Final.html  (last accessed 21 March 2013).

On-Line Speech Harms

A Sketch of Issues to be Considered in Legislating for the Digital Paradigm

This is a paper that was presented to the Bullying, Young People and the Law Symposium held under the auspices of the Allanah and Madeline Foundation in Melbourne 18 – 19 July 2013. It was part of a New Zealand contribution to the symposium by Cate Brett of the Law Commission, Martin Cocker of Netsafe and the author. The presentation accompanying this paper may be found here.

Introduction

This paper argues that legislating for behaviour in the digital environment raises unique issues. Whereas legislating for the physical world has certain architectural and physical constraints, such constraints may not be present in the digital space, or may be so paradigmatically different that new considerations need to be employed. This paper considers firstly the qualities and properties of digital technologies that provide challenges for conventional legal processes. It then goes on to consider the New Zealand Law Commission proposals to deal with on-line speech harms and any limitations on the effectiveness of those provisions. It concludes with some thoughts about the application of values developed within one paradigm to those who live in another.

The Digital Paradigm

Mark Prensky, an American educator, spoke of the issues confronting education in the digital paradigm. He suggested that there was a growing culture of people who had grown up knowing nothing but the Internet, digital devices and seeking out information on-line. This group he called “Digital Natives” – those born after 1990. He contrasted this class with “Digital Immigrants” – those who had developed the information seeking and uses before the advent of the Internet. Digital Immigrants used digital communications systems but their thought processes were not as committed to them as Digital Natives. Although they could speak the same language as the Digital Natives, they had a different accent that derived from an earlier information paradigm.

Digital Immigrants have an approach to information that is based upon sequential thinking, single tasking and limited resources to enable communication, all underpinned by the fixity of text. For the Digital Immigrant text represents finality. A book is not to be reworked, and the authority of a text depends upon its finality.[1] Information is presented within textual constraints that originate in the Print Paradigm.

Digital Natives inhabit a different information space. Everything is “multi” – multi-resource, multi-media, multi-tasking, parallel thinking. Information for the Digital Native may in its first instantiation be text but it lacks the fixity of text, relying rather on the dynamic, fluid, shifting qualities of the digital environment. Text does not mean finality. Text is malleable, copyable, moveable and text, like all other forms of information in the digital space, is there to be shared.

In the final analysis, the fundamental differences between Digital Immigrants and Digital Natives can be reduced to one fundamental proposition – it’s all about how we process information. For Digital Natives the information resources are almost without limitation and the Digital Native mind shifts effortlessly between text, web-page hypertext links, YouTube clips, Facebook walls, flikr and Tumblr, the terse, abbreviated tweet or text message and all of it not on a desktop or a laptop but a handheld smartphone.

But there is more to this discussion than the content that media convergence enabled by digital technologies provides.  Content, as McLuhan said, is  “the juicy piece of meat carried by the burglar to distract the watchdog of the mind.” [2] It is as important to understand how it is that digital information technologies work. We need to understand the underlying qualities or properties of digital technologies to understand the way in which they drive our information uses, activities and behaviours. Permit me a brief digression while I offer an example.

Information Technology Properties – The Printing Press

In her seminal work on the printing press – The Printing Press as an Agent of Change – Elisabeth Eisenstein identified six fundamental qualities that the print technology introduced that dramatically challenged the way in which the scribal culture produced texts.   These particular qualities were the enablers that underpinned the distribution of content that enhanced the developing Renaissance, that spread Luther’s ninety-seven arguments around Germany in the space of two weeks from the day that they were nailed on the Church door at Wittenberg, and allowed for the wide communication of scientific information that enabled experiment, comment, development and what we now know as the Scientific Revolution.

And it also happened in my own field the law.  Within 300 years of the introduction of the printing press by Gutenberg the oral-memorial customary- based ever-changing law had to be recorded in a book for it to exist.

It would be fair to remark that Eisenstein’s approach was and still is contentious. But what is important is her identification of the paradigmatic differences between the scribal and print cultures based upon the properties or qualities of the new technologies. These qualities were responsible for the shift in the way that intellectuals and scholars approached information.

There were six features or qualities of print that significantly differentiated the new technology from scribal texts.

a) dissemination

b) standardisation

c) reorganization

d) data collection

e) fixity and preservation

f) amplification and reinforcement.

For example, dissemination of information was increased by printed texts not solely by volume but by way of availability, dispersal to different locations and cost. Dissemination allowed a greater spread of legal material to diverse locations, bringing legal information to a wider audience. The impact upon the accessibility of knowledge was enhanced by the greater availability of texts and, in time, by the development of clearer and more accessible typefaces.

Standardisation of texts, although not as is understood by modern scholars, was enabled by print. Every text from a print run had an identical or standardised content. Every copy had identical pagination and layout along with identical information about the publisher and the date of publication. Standardised content allowed for a standardised discourse. In the scribal process errors could be perpetuated by copying, and frequently in the course of that process additional ones occurred. However, the omission of one word by a compositor was a “standardised” error that did not occur in the scribal culture but that had a different impact and could be “cured” by the insertion of an “errata” note before the book was sold. Yet standardisation itself was not an absolute and the printing of “errata” was not the complete answer to the problem of error. Interaction on the part of the reader was required to insert the “errata” at the correct place in the text.

In certain cases print could not only perpetuate error but it could be used actively to mislead or disseminate falsehood. The doubtful provenance of The Compleate Copyholder attributed to Sir Edward Coke is an example.[3] Standardisation, as a quality of print identified by Eisenstein, must be viewed in light of these qualifications.

Print allowed greater flexibility in the organization and reorganization of material and its presentation. Material was able to be better ordered using print than in manuscript codices. Innovations such as tables, catalogues, indices and cross-referencing material within the text were characteristics of print. Indexing, cross-referencing and ordering of material were seized upon by jurists and law printers.

Print provided an ability to access improved or updated editions with greater ease than in the scribal milieu by the collection, exchange and circulation of data among users, along with the error trapping to which reference has been made. This is not to say that print contained fewer errors than manuscripts. Print accelerated the error making process that was present in the scribal culture. At the same time dissemination made the errors more obvious as they were observed by more readers. Print created networks of correspondents and solicited criticism of each edition. The ability to set up a system of error-trapping, albeit informal, along with corrections in subsequent editions was a significant advantage attributed to print by the philosopher, David Hume, who commented that “The Power which Printing gives us of continually improving and correcting our Works in successive editions appears to me the chief advantage of that art.”[4]

Fixity and preservation are connected with standardisation. Fixity sets a text in place and time. Preservation, especially as a result of large volumes, allows the subsequent availability of that information to a wide audience. Any written record does this, but the volume of material available and the ability to disseminate enhanced the existing properties of the written record. For the lawyer, the property of fixity had a significant impact.

Fixity and the preservative power of print enabled legal edicts to become more available and more irrevocable. In the scribal period Magna Carta was published (proclaimed) bi-annually in every shire. However, by 1237 there was confusion as to which “Charter” was involved. In 1533, by looking at the “Tabula” of Rastell’s Grete Abregement of the Statutys a reader could see how often it had been confirmed in successive Royal statutes. It could no longer be said that the signing of a proclamation or decree was following “immemorial custom”. The printed version fixed “custom” in place and time. In the same way, a printed document could be referred to in the future as providing evidence of an example which a subsequent ruler or judge could adopt and follow. As precedents increased in permanence, the more difficult it was to vary an established “custom”. Thus fixity or preservation may describe a quality inherent in print as well as a further intellectual element that print imposed by its presence.

Although Eisenstein’s work was directed more towards the changing intellectual environment and activity that followed the advent of printing and printed materials, it should not be assumed that printing impacted only upon intellectual elites. Sixteenth and seventeenth century individuals were not as ignorant of their letters as may be thought. There are two aspects of literacy that must be considered. One is the ability to write; the other being the ability to read. Reading was taught before writing and it is likely that more people could read a broadside ballad than could sign their names. Writing was taught to those who remained in school from the ages of seven or eight, whereas reading was taught to those who attended up until the age of six and then were removed from school to join the labour force. Print made information more available to ordinary people who could read.

Another thing that we have got to remember is that media work on two levels. The first is that a medium is a technology that enables communication and the tools that we have to access media content are the associated delivery technologies.

The second level, and this is important is that a medium has an associated set of protocols or social and cultural practices including the values associated with information – that have grown up around the technology. Delivery systems are just machines but the second level generates and dictates behaviour.[5]

Eisenstein’s argument is that when we go beneath the delivery system and look at the qualities or the properties of a new information technology, we are considering what shapes and forms the basis for the changes in behaviour and in social and cultural practices. The qualities of a paradigmatically different information technology fundamentally change the way that we approach and deal with information. In many cases the change will be slow and imperceptible. Adaptation is usually a gradual process. Sometimes subconsciously the changes in the way that we approach information changes our intellectual habits. Textual analysis had been an intellectual activity since information was recorded in textual form. I contend that the development of principles of statutory interpretation, a specialised form of textual analysis, followed Thomas Cromwell’s dissemination and promulgation of the Reformation statutes, complete with preambles, in print.[6]

From all this it would be fair to ask –  what’s the difference? What’s changed? All we’ve got is a bunch of machinery that allows us to do what we have always done which is to read and watch movies and do the same things that we did with radio or the television – the only thing is that it’s all been brought together – there has been a convergence of the various delivery systems.    And on the surface that’s perfectly correct because what you are talking about there is content.  You’re talking about the material that’s delivered rather than looking at the delivery system.

The Medium Is….

Once there is a recognition of the fact that there are properties that underlie an information technology that influence the way in which we address content, and that will govern or moderate information activities,  we begin to understand what Marshall McLuhan meant by his aphorism “The Medium is the Message.” Understanding the medium and the way it governs and moderates information activities allows us to understand the impact of the digital communications technologies – a convergence of everything that has gone before and the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

The Properties of Digital Communications Technologies

Many of the properties that Eisenstein identified for print are present in digital technologies. Every new information technology – and this has been the case from the printing press onwards – has its own particular properties or qualities that significantly differentiate it from other earlier information technologies.

The properties that I identify are not an exclusive list. The identification of the properties or qualities of digital information technologies is very much a work in progress. But these are the ones that occur to me. Some of them have already been reflected in the discussion that has preceded and I give a very brief description of what each property means. A more detailed analysis has yet to be developed.

  • Persistence – summed up in the phrase “the document that does not die” – that once information is on the Internet it is more likely than not to remain there.

 Continuing change or what you could refer to as the disruptive element – continuing disruptive change is a characteristic of the digital space – the idea of a “breathing space” between times of accelerated change no longer exists. This quality is linked to “permissionless innovation” below.

 Delinearisation of Information – in essence, the effect of hypertext links that allow and enable thinking to follow other than a strictly logical sequence, but to branch of into related (sometimes tenuously related) areas of information

 Dynamic information – the ability to cut, paste, alter, change and modify text once it has been placed in digital format – exemplified by the ability of on-line newspapers to update stories or significantly alter them as new information comes to hand

 Dissociative enablement,  – the ability to sit behind a screen and say and do things that one would never contemplate face to face or in “meat space”

Permissionless innovation – you don’t need to ask to put a new tool or protocol on the Internet. Sir Tim Berners-Lee didn’t need anyone’s permission to bolt the World Wide Web onto the Internet; nor did Mark Zuckerberg with Facebook, Sergey Brin and Larry Page with Google, Jeff Bezos with Amazon or Jack Dorsey with Twitter. If you build it they will come sums up this quality.

Availability – information comes to the user. The print paradigm localised book based information in a library or a bookshop. The Internet brings directly information into the home.

Participation – this is a very wide concept which includes information and file sharing as well as the ability to comment on blog sites, post photos on Facebook, engage in Twitter exchanges, participate in IRC chatrooms and break new stories via a blog.

Searchability  is related to the next quality but is the first step in the information recovery process – a common feature of the Internet before it went commercial and thereafter has been to make some sense of the vast amount of information that is available. Thus from Gopher to Google the quest for making information available has been a constant, and it enables users to find what they are looking for.

Retrievability – and once the successful search has been carried out, the information is available and can be readily and immediately obtained – associated with information availability above.

This means that the information expectations of Digital Natives have been shaped and moulded by these qualities. Their uses and expectations of what happens in the on-line world are quite different to those of their parents (Digital Immigrants) or those of my generation (Digital Aliens). Thus any solution to on-line problems must be premised upon an understanding of the technology and the way that it shapes behaviours and values underlying those behaviours. The solution must also recognise another McLuhan aphorism – we shape our tools and thereafter our tools shape us.[7]

This of course gives rise to the question of whether or not the internet changes us forever.  Underlying this theory is the concept of neuroplasticity – the ability of the brain to adapt to and learn from new stimuli.   The concept of neuroplasticity was picked up by Nicholas Carr in his book The Shallows: How the Internet is changing the way we think, read and remember.[8]  His book, based upon an earlier article that appeared in the Atlantic, has as it thesis that the internet is responsible for the dumbing down of society based upon the way in which our minds respond both to the wealth of information and its availability.

The neuroplasticity argument is picked up by Susan Greenfield[9] who believes the web is an instant gratification engine, reinforcing behaviours and neuronal connections that are making adults more childlike and kids hungry for information that is presented in a super simplistic way but in fact reduces their understanding of it.  Greenfield is of the view that the web spoon feeds us things to capture our attention. This means we are learning to constantly seek out material that stimulates us and our plastic minds are being rewarded by our “quick click” behaviour.  We want new interactive experiences and we want them now.

This view is disputed by Aleks Krotoski[10] who firstly observed that there is no evidential support for Greenfield’s propositions which pre-suppose that once we used the web we will forever online and never log off again.  According to Greenfield, says Krotoski, we become connected to our computers and other devices in a co-dependent exclusive almost biological way ignoring where how and why we are connecting.  Krotoski, for example, disputes internet addiction, internet use disorder or neurological rewiring.

In some respects Carr and Greenfield are using the “low hanging fruit” of technological fear[11] to advance their propositions.  Krotoski’s rejection of those views is, on the other hand, a little too absolute and in my view the answer lies somewhere in between.  The issue is a little more nuanced than whether or not the Internet is dumbing us down or whether or not there is any evidence of that.

My argument is that the impact of the internet lies in the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

This may not seem to be as significant as Carr’s rewiring or Greenfields neuroplasticity but it is, in my view, just as important.  Our decision making is based upon information.  Although some of our activity could be termed responses to stimuli, or indeed it might be instinctive, most of the stimuli to which we respond can in fact be defined as information – if not all of it.  The information that we obtain when crossing the road comes from our senses and sight and hearing but in many other of our activities we require information upon we which may deliberate and to which we respond in making decision about what we are going to do, buy and so on.

And paradigmatically different ways of information acquisition are going to change the way in which we use and respond to information. There are other changes that are taking place that arise from some of the fundamental qualities that underline new digital communications technologies – and all communication technologies have these particular properties or qualities underlying them and which attach to them; from the printing press through to the wireless through to the radio through to television and into the digital paradigm.  It is just that digital systems are so fundamentally different in the way in which they operate and in their pervasive nature that they usher in a new paradigm.[12]

Looking at Solutions

Thus if we seek a solution to some of the problems that involve Internet-based behaviour we must recognise these qualities and impacts of the digital communications technologies that underlie these behaviours. For example any solution must recognise:

    • The time factor – in “internet time” information moves faster than it does in the real world
    • Information is dynamic and spreads “virally”
    • “Dissociative enablement” means that people are going to behave differently when operating from the apparent anonymity of a private room or space and from behind a computer screen
    • Any remedy is going to be partial – given that information on the internet is going to remain in some shape or form (the quality of persistence or “the document that does not die”)
    • Normal civil and political rights including a robust recognition of freedom of speech and expression and that the internet is neutral.
    • Restrictions on a free and open internet must be minimal.

The New Zealand Solution

The New Zealand solution set out in the Digital Speech Harms paper from the Law Commission takes a two-pronged approach. One involves the creation of a new offence. The other involves a fast-track solution of a civil nature involving the creation of a Communications Tribunal.

A New Offence

The Law Commission considers that causing harm by the use of a communications device should be criminalised. The first thing that must be recognised is that the use of communications device is not criminalised, nor may this be seen as an attempt to regulate the Internet. What is being addressed is a behaviour involving the use of a communications device that causes harm to another.

The proposed language of the offence is as follows:

Causing harm by means of communication device

(1) A person (person A) commits an offence if person A sends or causes to be sent to another person (person B) by means of any communication device a message or other matter that is—

 (a) grossly offensive; or

 (b) of an indecent, obscene, or menacing character; or

 (c) knowingly false.

 (2) The prosecution must establish that—

 (a) person A either—

 (i) intended to cause person B substantial emotional distress; or

 (ii) knew that the message or other matter would cause person B substantial emotional distress; and

 (b) the message or other matter is one that would cause substantial emotional distress to someone in person B’s position; and

 (c) person B in fact saw the message or other matter in any electronic media.

 (3) It is not necessary for the prosecution to establish that the message or other matter was directed specifically at person B.

(4) In determining whether a message or other matter is grossly offensive, the court may take into account any factors it considers relevant, including—

 (a) the extremity of the language used:

 (b) the age and characteristics of the victim:

 (c) whether the message or other matter was anonymous:

 (d) whether the message or other matter was repeated:

 (e) the extent of circulation of the message or other matter:

 (f) whether the message or other matter is true or false:

 (g) the context in which the message or other matter appeared.

 (5) A person who commits an offence against this section is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.

(6) In this section, communication device means a device that enables any message or other matter to be communicated electronically.

The message set out in subsection (1) has to pass a very high threshold. Similarly the intention test in subsection (2) is high and the criteria in subparagraphs (a) – (c) are conjunctive. Each one must be proven to the criminal standard. Subsection (4) sets out matters that a Court may take into account, but these criteria are not exclusive.

One matter that must be taken into account is that the section would have to be interpreted and applied in accordance with the provisions of the New Zealand Bill of Rights Act 1990 (NZBORA). Now the section as it stands criminalises a certain quality of speech, thus engaging a consideration of the freedom of expression right guaranteed by s. 14 of NZBORA. That must take into account issues of a justified limitation upon the freedom of expression right. In my view the application of NZBORA would necessarily result in a very cautious approach by a Court. The evidence of the offending would have to be clear and unequivocal and could not really apply to a trivial matter.

A problem that arises with prosecutions for such an offence is the nature of the legal process which rarely matches “Internet time” and the fact that the section does not allow for the removal of any offending material, thus allowing the persistence of the information. The section addresses the behaviour but the message may still remain, preserved on the Internet.

The Communications Tribunal

The proposal for a Communications Tribunal, and for the powers and remedies that Tribunal may bring to play could well address some of the qualities of the digital environment, and possibly more effectively than a criminal prosecution, which, in my view, would be reserved only for the most extreme cases.

The Communications Tribunal

a) would have a limited jurisdiction

b) could provide limited and specific remedies

c) would deal with content and not criminality

d) would operate “on the papers”

e) would be a remedy of last resort after a filtering process has been carried out by the Approved Agency

 

Communications Principles

On the face of it, the Communications Tribunal has some significant powers which, at first glimpse, interfere dramatically with freedom of expression. The approach by the Tribunal must be within the context of Communications Principles proposed by the Law Commission. These are:

Principle 1

A communication should not disclose sensitive personal facts about an individual.

Principle 2

A communication should not be threatening, intimidating, or menacing.

Principle 3

A communication should not be grossly offensive to a reasonable person in the complainant’s position.

Principle 4

A communication should not be indecent or obscene.

Principle 5

A communication should not be part of a pattern of conduct that constitutes harassment.

Principle 6

A communication should not make a false allegation.

Principle 7

A communication should not contain a matter that is published in breach of confidence.

Principle 8

A communication should not incite or encourage anyone to send a message to a person with the intention of causing that person harm

Principle 9

A communication should not incite or encourage another person to commit suicide.

Principle 10

A communication should not denigrate a person by reason of his or her colour, race, ethnic or national origins, religion, ethical belief, gender, sexual orientation, or disability.

Matters that the Tribunal Would Have to Consider

In considering an application for relief the Tribunal would have to take into account the following:

(a) the content of the communication, its offensive nature, and the level of harm caused by it:

(b) the purpose of the communicator in communicating it:

(c) the occasion, context, and subject-matter of the communication:

(d) the extent to which the communication has spread beyond the original communicator and recipient:

(e) the age and vulnerability of the complainant:

(f) the truth or falsity of the statement:

(g) the extent to which the communication is of public interest:

(h) the conduct of the defendant, including any attempt by the defendant to minimise the harm caused:

(i) the conduct of the complainant, including the extent to which that conduct has contributed to the harm suffered.

The Law Commission also emphasised that in exercising its functions, the Tribunal should have regard to the important of freedom of expression. Thus an analysis pursuant to the provisions of NZBORA would have to be undertaken.

The Orders that the Tribunal Might Make

(a) an order requiring that material specified in the order be taken down from any electronic media:

(b) an order to cease publishing the same, or substantially similar, communications in the future:

(c) an order not to encourage any other person to engage in similar communications with the complainant:

(d) a declaration that a communication breaches a communication principle:

(e) an order requiring that a factually incorrect statement in a communication be corrected:

(f) an order that the complainant be given a right of reply:

(g) an order to apologise to the complainant:

(h) an order requiring that the author of a particular communication be identified.

These orders or parts of them may apply to the following:

(a) the defendant:

(b) an internet service provider:

(c) a website host:

(d) any other person, if the Tribunal considers that the defendant is encouraging, or has encouraged, the other person to engage in offensive communication towards the complainant.

Transparency would be ensured in that the Tribunal must publish its decisions and the reasons for them. This is necessary because if there are to be interferences with freedom of expression the reasons for such interference and the extent thereof should be published and made known to counter any suggestion of secret interference with freedom of speech.

As proposed the Communications Tribunal would have the following advantages in dealing with on-line speech harms and at the same time recognise some of the disruptive qualities of the digital paradigm:

a)  it would deal only with the most serious types of on-line speech harm, in that the Approved Agency would filter and deal with the majority of complaints.

b) It would provide a relatively swift response which would accord with “internet time” and at least attempt to mitigate some of the damage that could be done if the material in question was or going or was likely to go viral. Having said that, the persistence quality of information on the Internet may well provide an element of frustration, but responding to the source of the speech harm is a significant first step.

c) it would have an “on the papers” hearing which would obviate the need for conducting a full hearing with parties present, and which would have to fit in around other Court work. This said, with modern technology such as Skype it is possible that a “distributed hearing” where the participants would be other than in the Court building may be possible. New Zealand has specific legislation that allows this.[13]

d) it could provide a remedy by way of a take-down order but it should be noted that power would have to be exercised having regard to the freedom of expression provisions in NZBORA, and the correct analysis based on a proportional approach would have to be undertaken.

e) an order of the Tribunal would constitute a Court order which would receive recognition from providers such as Google or Facebook and thereby the removal of offending content could be expedited.

The Present State of the Play

The report has been received by the Minister.

She has indicated that the recommendation for a Communications Tribunal will not be adopted.

The proposed jurisdiction of the Communications Tribunal will be assumed by the District Court

Some of the issues that may arise and should be addressed as the policy develops into a Bill might include

a) lack of specialist expertise in the field of digital communications law on the Bench and the need for specialised training

b) potential procedural delays if Communications complaints are subsumed as part of the normal Court process – a “fast track” may need to be considered

c) variation or possible lack of consistency in the application of principles and the types of orders that may be made

d) whether or not a process may be developed which will take into account the qualities and realities of the digital paradigm and which recognise that the nature of Internet based communication is fundamentally different and potentially far more damaging than conventional bullying “speech”.

One thing is clear and it is that the activities of the Court in this area will be carefully scrutinised by lawyers, free speech advocates, Internet freedom advocates and the community in general.

A Cautionary Conclusion

There are some who follow the view of Edmund Burke – that each generation has a duty to succeeding generations. Because politics amounts to an intergenerational contract between one generation and the next, politicians should feel entrusted with the conservation of the past for future generations.

The problem is this – in a changing communications paradigm should digital immigrants tell digital natives how to live their lives in the digital environment?

The IT Countrey Justice

July 2013


[1] Ronald Collins and David Skover The Death of Discourse (Caroline Academic Press, Durham N.C. 2005)  p. xix. For a more detailed discussion of the difference between fixed and digital texts see Ronald Collins and David Skover “Paratexts” (1992) 44 Stanford Law Review 509.

[2] Marshall McLuhan Understanding Media: The Extensions of Man Critical Edition W Terrence Gordon (ed)(Gingko Press, Berkeley Ca 2003)

[3]The Compleate Copyholder (T. Coates for W Cooke, London,1641) Wing C4912.

[4] Cited by J.A. Cochrane Dr Johnson’s Printer: The Life of William Strahan (Routledge and K Paul, London, 1964) p.19 at n.2.

[5] Lisa Gitelman “Introduction: Media as Historical Subjects: in Always Already New: Media, History and the Data of Culture (MIT Press, Cambridge, 2008) p. 7.

[6] This is a very bald assertion. The argument is a little more nuanced and involves a consideration of the use of the printing press by Cromwell, the significant increase in legislative activity during the course of the English Reformation, the political and legal purpose of statutory preambles, the advantages of an authoritative source of law in printed form for governing authorities, all facilitated by underpinning qualities of print such as standardisation, fixity and dissemination.

[7] Marshall McLuhan Understanding Media: The Extensions of Man  above n. 2.

[8] (Atlantic Books, London 2010). See also Nicholas Car “Is Google Making Us Stupid” Atlantic Magazine 1 July 2008 http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/  (last accessed 31 May 2013)

[9] See especially Susan Greenfield “Living On-line is Changing Our Brains” New Scientist, 3 August 2011 http://www.newscientist.com/article/mg21128236.400-susan-greenfield-living-online-is-changing-our-brains.html (last accessed 31 May 2013) For this and for her assertions of “internet addiction” she has she has been criticised by Dr. Ben Goldacre for claiming that technology has adverse effects on the human brain, without having published any research, and retracting some claims when challenged. Goldacre suggested that “A scientist with enduring concerns about a serious widespread risk would normally set out their concerns clearly, to other scientists, in a scientific paper”  Ben Goldacre, “Serious Claims Belong in a Serious Scientific Paper” The Guardian 21 October 2011 http://www.guardian.co.uk/commentisfree/2011/oct/21/bad-science-publishing-claims (last accessed 31 May 2013)

 

[10]Untangling the Web: What the Internet is Doing to You  (Faber, London 2013). Presentation by Aleks Krotoski at the Writers and Readers Festival, Auckland 19 May 2013. Personal discussion between the author and Aleks Krotoski 19 May 2013.

[11] Sometimes referred to as “The Frankenstein Complex”

[12] See above for some of the qualities of digital information technologies.

[13] The Courts (Remote Participation) Act 2010

The Medium is the Message: Twitter and YouTube Prosecutions

The Medium is the Message:[1] When are Digital Communications Harmful?

Introduction

The case of Paul Chambers v DPP has excited interest in the Internet community. It has become a flag bearer case for freedom of speech on the internet, for a demonstration of the unwillingness of legal institutions to understand the nature of humour but more importantly it is a case about the collision between content using a mass distribution system where the traditional one to many model utilised by monolithic media organisations has been usurped by a “many to many” model where user generated content is potentially available to all, and how that content should be interpreted in the context of law.  In New Zealand there was a similar case, that of Police v Joseph, which involved a message communicated by means of a video posted to YouTube. This case note considers both cases  and demonstrates that these cases and others involving the Internet suggest  that the medium is as important as the message, and the medium, although in the background in terms of matters of interpretation, may assume a role that overtakes the message.

Twitter Bandit – courtesy UK Human Rights Blog

Chambers v DPP

The statutory and factual setting

Paul Chambers was charged with sending by a public electronic communication network a message of a “menacing character” contrary to s.127(1)(a) and (3) of the Communications Act 2003. Section 127 of the Act addresses the problem of the unlawful use of the public electronic communications network and provides:

 “(1) A person is guilty of an offence if he –

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) causes any such message or matter to be so sent.

(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he –

(a) sends by means of a public electronic communications network, a message that he knows to be false,

(b) causes such a message to be sent; or

(c) persistently makes use of a public electronic communications network.

(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both. …[2]

 Chambers, a well educated young man of good character, wished to make a trip to Ireland in January 2010. He was a subscriber to Twitter, and the person whom he was visiting was someone he had “met” through that Internet platform.

On 6 January 2010, following an alert on “Twitter”, Mr. Chambers became aware of adverse weather conditions causing problems at Doncaster, Robin Hood Airport. Some two hours later, when he heard that the airport had closed, he posted the following message:

“Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!”

The message was posted on a public time line and was available to be read by Mr. Chambers’ “followers” who numbered some 600. Nothing happened. None of Mr. Chambers’ followers seem to have been disturbed by the message.

Some 5 days later a duty manager responsible for security at Robin Hood airport conducted a search of Twitter postings about Robin Hood airport and came across Mr. Chambers’ 6 January message. He did not know whether the “tweet” was a joke or not, but as even a joke could cause major disruption it had to be investigated. Accordingly he referred the “tweet” to his manager, Mr Armson.

Mr Armson was responsible for deciding whether any perceived threat to the airport should be graded as “credible” or “non-credible”. If “credible”, it was to be referred immediately to the Ministry of Defence, but if “non­credible”, as a matter of standard practice it was to be reported to the airport police. Mr Armson examined the appellant’s “tweet”. He regarded it as “non-credible”, not least because it featured the appellant’s name and, as he noted, Mr. Chambers was due to fly from the airport in the near future. Nevertheless in accordance with airport procedure he passed this “tweet” to the airport police. The airport police themselves took no action, presumably for exactly the same reason, but they decided to refer the matter on to the South Yorkshire police.

The South Yorkshire police arrested Mr. Chambers, while he was at work, two days later, on 13 January on suspicion of involvement in a bomb hoax. It was now seven days since the offending message was “tweeted”. Mr. Chambers was interviewed under caution. When interviewed, and indeed in his evidence, the appellant repeatedly asserted that this “tweet” was a joke or meant to be a joke and not intended to be menacing. He said that he did not see any risk at all that it would be regarded as menacing, and that if he had, he would not have posted it. In interview he was asked whether some people might get a bit jumpy and responded “yah. Hmm mmm”.

On 10 February 2010, when the police investigation was completed, one of the investigating officers recorded the following observation on the South Yorkshire Police Crime Management System:

“Male detained re making threats to Doncaster Robin Hood Airport. The male in question has been bailed and his phone/computer has been seized – there is no evidence at this stage to suggest that there is anything other than a foolish comment posted on “Twitter” as a joke for only his close friends to see.”

 The police sought the advice of the Crown Prosecution Service. As a result Mr. Chambers was charged with the offence and was convicted in the Magistrates Court. He appealed to the Crown Court. The appeal was dismissed. On the basis of these facts the Crown Court was “satisfied” that the message in question was “menacing per se”.  The lower Court took the view “that an ordinary person seeing the “tweet” would see it in that way and be alarmed. The airport staff did see it and were sufficiently concerned to report it”.

The Crown Court went on to hold “that the required mens rea … is that the person sending the message must have intended the message to be menacing, or be aware that it might be taken to be so …” The court was satisfied that Mr. Chambers was, at the very least, aware that his message was of a menacing character.  Mr. Chambers then appealed to the Divisional Court, which is part of the High Court of England and Wales.

The Medium – Content and delivery – a public communications network

The Court spent some time considering the nature of Twitter. This was necessary in light of a contention on the part of Chambers that the message was not sent by a public electronic communications network.

The manner in which the Court defined the medium had an impact upon the way in which it considered the message.

“Twitter”, it said, “enables its users to post messages (of no more than 140 characters) on the “Twitter” interne and other sites. Such messages are called “tweets”. “Tweets” include expressions of opinion, assertions of fact, gossip, jokes (bad ones as well as good ones), descriptions of what the user is or has been doing, or where he has been, or intends to go. Effectively it may communicate any information at all that the user wishes to send, and for some users, at any rate, it represents no more and no less than conversation without speech.

Those who use “Twitter” can be “followed” by other users and “Twitter” users often enter into conversations or dialogues with other “Twitter” users. Depending on how a user posts his “tweets”, they can become available for others to read. A “public time line” of a user shows the most recent “tweets”. Unless they are addressed as a direct message to another “Twitter” user or users, in which case the message will only be seen by the user posting the “tweet”, and the specific user or users to whom it is addressed, the followers of a “Twitter” user are able to access his or her messages. Accordingly most “tweets” remain visible to the user and his/her followers for a short while, until they are replaced by more recently posted “tweets”. As every “Twitter” user appreciates or should appreciate, it is possible for non-followers to access these “public time lines” and they, too, can then read the messages. It is also possible for non-users to use the “Twitter” search facility to find “tweets” of possible interest to them.”[3]

It was argued that the “tweet” was found by means of a subsequent search, and so should be treated as no more than “content” created and published on a social media platform rather than a message sent by means of a communications network. It seems that there was an attempt to differentiate between a message in dynamic form – one that was part of a rolling “conversation” or contemporaneous posting – and content in latent form – a form of data stored and available for reference. However, Chambers’ counsel, John Cooper QC, had to accept that a message on public “Twitter” is accessible to all who have access to the internet, and therefore, by inference, to the public, or to that vast section of the public which included anyone who chose to access a timeline consisting of any of the posted key words by use of a search engine. The Court adopted the approach of the Crown Court which held:

“The “Twitter” website although privately owned cannot, as we understand it, operate save through the internet, which is plainly a public electronic network provided for the public and paid for by the public through the various service providers we are all familiar with … The internet is widely available to the public and funded by the public and without it facilities such as “Twitter” would not exist. The fact that it is a private company in our view is irrelevant; the mechanism by which it was sent was a public electronic network and within the statutory definition … “Twitter”, as we all know is widely used by individuals and organisations to disseminate and receive information. In our judgment, it is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful”

The potential  (as opposed to actual) recipients were the public as a whole and the Court held that it was immaterial that Chambers intended that the message should be available to a limited class of people such as his followers who would take the remark as intended and be neither fearful nor apprehensive when they read it.[4] The Court held whether one reads the “tweet” at a time when it was read as “content” rather than “message” – that is at the time when it was posted – it was indeed “a message” sent by an electronic communications service for the purposes of s.127(1). Accordingly “Twitter” fell within its ambit. The latency or dynamism of the message mattered not.

The Message -“menacing” and the importance of context and approach.

The Court noted that the charge could not be proven unless the content of the message was  of a menacing character. The Court held that the message should

  “create a sense of apprehension or fear in the person who receives or reads it. However unless it does so, it is difficult to see how it can sensibly be described as a message of a menacing character. So, if the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably expected to see it, falls outside this provision, for the very simple reason that the message lacks menace.” [5]

 The Court went on to consider not only the impression that may be left with the reader but the context of the message. Counsel for the respondent emphasised the current climate of terrorism and threats to national security from possible terrorist attacks – something with which Britain has been living since the Irish troubles in the 1970’s and afterwards. The Court said that indeed was relevant to context but there were a number of other factors as well.

The offence was not one which was directed at the inconvenience caused by the message – a matter that is relevant in a consideration of the provisions of s 307A(l)(b) of the Crimes Act 1961.[6] Other contextual factors that the Court took into account in concluding that the message did not represent a threat, terrorist or otherwise, were[7]:

    •  It was posted on “Twitter” for widespread reading by his followers drawing attention to himself and his predicament
    •  It was not sent to anyone at the airport or anyone responsible for airport security, or any form of public security but rather was an expression of frustration that the airport was closed
    •  The language and punctuation were inconsistent with the writer intending it to be as a serious warning. The double exclamation marks provided an example
    •  The sender of the message identified himself – something that was unusual in terrorist messages.
    •  There was ample time for the threat to be reported and extinguished given the large number of followers who were recipients of the tweet.
    •  None of those who read the message during the first few days thought anything of it. These included the airport security people and the Police. It was when the matter came into the hands of the Crown Prosecution Service that it was given a serious interpretation.[8]
    •  No weight appeared to have been given  by the Crown Court to the lack of urgency which characterised the approach of the authorities.

The Divisional Court considered that disproportionate weight was placed by the lower Court on the response of Chambers in interview to how “some” people might react, without recognising that the care needed to approach such a widely phrased question in context. The response was part of the interview as a whole, when looking back at what Mr. Chambers  admitted he had done and his assertions that it was a joke. The question based on what “some” people might think embraced everyone, included those who might lack reasonable fortitude. This entirely equivocal response added nothing which supported the contention that the message was of a menacing character.

Thus, it was not open to the lower Court to conclude that the message was of a menacing character.

Mens Rea

Although it was not necessary to do so, the Court briefly considered the issue of mens rea which was a matter which was not necessarily determined from the content of the message itself.  Notwithstanding Lord Bingham’s comments in  DPP v Collins where he said

 “a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender. The same will be true where facts known to the sender of the message about an intended recipient render the message peculiarly offensive to that recipient, or likely to be so, whether or not the message in fact reaches the recipient”.[9]

 The Divisional Court observed:

 “We agree with the submission by Mr Robert Smith QC that the mental element of the offence is satisfied if the offender is proved to have intended that the message should be of a menacing character (the most serious form of the offence) or alternatively, if he is proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it. We would merely emphasise that even expressed in these terms, the mental element of the offence is directed exclusively to the state of the mind of the offender, and that if he may have intended the message as a joke, even if a poor joke in bad taste, it is unlikely that the mens rea required before conviction for the offence of sending a message of a menacing character will be established.”[10]

  Commentary

Is this a case about freedom of expression or the way in which expression should be approached in determining whether or not it is harmful?

One of the questions which the Court considered was whether the conviction amounted to a breach of Mr Chambers’ Article 10 right to freedom of expression- both whether there was interference, and if so, whether the interference was justified.

The Court approached its task with regard to the need to read the legislation in question in a way which is compatible with the European Convention on Human Rights (something required of it by section 3 of the Human Rights Act 1998) and bearing  the right to freedom of expression in Article 10  in mind. The Internet and its platforms make dissemination of content and its persistence more readily possible and accessible than ever before – an aspect of the message – and the Court was not about to embark upon a wide ranging discussion of the nature of freedom of expression on the Internet. Rather, it looked at the history of the legislation which, as it became clear in the decision, addressed the era of the telephone and exchange based communications rather than the multi-platformed Internet. The 2003 legislation addressed the digital paradigm and the Court had this to say;

“The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. Given the submissions by Mr Cooper, we should perhaps add that for those who have the inclination to use “Twitter” for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.”[11]

One wonders if a rights-based interpretation was necessary, given the way in which the Court approached the message. In adopting a context-based approach, it seemed unnecessary to approach the nature of menacing speech from a “freedom of expression” perspective. Given the Court’s approach, such a discussion was not engaged.

What the decision does address in the sub-textual sense is the way in which new technologies may challenge established lines of thought. As I have already stated, the 2003 Act and the use of the term the term “public electronic communciations network” brings the legislation into the digital paradigm. Yet it was necessary to carefully examine the operation of Twitter to ascertain whether it fell within the scope of the Statute and whether there was any difference between what I have suggested may be dynamic as opposed to a latent content. This analysis demonstrates that the medium is just as important as the message.

It must be pointed out that the Court’s findings should not have general application to Twitter as a platform. The reason is that it was considering the “public nature of tweets  and  its assessment of the “public” nature of Twitter “tweets” can only apply to the use of the “public line”. The decision did not address, because it was not relevant, the nature of direct messages. Direct messages are defined by Twitter as “a private message sent via Twitter to one of your followers. You can only send a direct message to a user who is following you; you can only receive direct messages from users you follow.” [12]   Whilst it is possible that direct messages may be retweeted the position is entirely different if a tweet is protected. In such circumstances it cannot be retweeted. [13]  In these respects the “public” nature of Twitter may be modified. In future cases Courts will have to consider not only the content of the message, but the way in which the medium was used.

YouTube Anonymous

Police v Joseph – the New Zealand approach

Police v Joseph[14] was a similar type of case to that of DPP v Chambers within a different statutory setting. Joseph was charged with  a breach of s 307A(l)(b) of the Crimes Act 1961 in that he without lawful justification or reasonable excuse and intending to cause a significant disruption to something that forms part of an infrastructure facility in New Zealand namely New Zealand Government buildings did communicate information that he believes to be about an act namely causing explosions likely to cause major property damage.

The somewhat convoluted provisions of s. 307A read as follows:

Threats of harm to people or property

(1)Every one is liable to imprisonment for a term not exceeding 7 years if, without lawful justification or reasonable excuse, and intending to achieve the effect stated in subsection (2), he or she—

(a) threatens to do an act likely to have 1 or more of the results described in subsection  (3);or

(b) communicates information—

(i) that purports to be about an act likely to have 1 or more of the results described in subsection (3); and

(ii) that he or she believes to be false.

(2)The effect is causing a significant disruption of 1 or more of the following things:

(a) the activities of the civilian population of New Zealand:

(b) something that is or forms part of an infrastructure facility in New Zealand:

(c) civil administration in New Zealand (whether administration undertaken by the Government of New Zealand or by institutions such as local authorities, District Health Boards, or boards of trustees of schools):

(d) commercial activity in New Zealand (whether commercial activity in general or commercial activity of a particular kind).

(3)The results are—

(a) creating a risk to the health of 1 or more people:

(b) causing major property damage:

(c) causing major economic loss to 1 or more persons:

(d) causing major damage to the national economy of New Zealand.

(4) To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that a person has committed an offence against subsection (1).

The Facts

Mr. Joseph, a secondary school student at the time, using his laptop, created a video clip that lasted a little over three minutes and in which by accessing voice software he created messages of threats to the New Zealand Government accompanied by some images that linked the language with terrorism, such as pictures of the aerial attack on the World Trade Centre and images of Osama Bin Laden. It included statements such as:

• We will begin a terror attack – we will be attacking the New Zealand Government- We have targeted all New Zealand Government buildings –

• We have placed large amounts of explosives in hidden locations on all buildings –

• We have targeted all New Zealand Government websites and will take it down-

• We will hack all of New Zealand’s media ·websites-

• We will release all Government secrets that have not been released to Wikileaks or the public-

• We will hurt anyone that gets in our way unless you do what we say.

The clip demanded that the Government repeal or not pass an amendment to the Copyright Act addressing a three strikes regime for copyright infringement by file sharing.  The clip was posted on 6 September 2010 and a deadline was set for 11 September 2010. The clip was attributed to a group known as Anonymous.  The Judge observed that:

“Anonymous is a well known sponsor of a website, the authors and personnel behind it being unknown, which is committed to airing protests and threats of electronic cyber attack and subversion of official and Government internet communications and sites which it perceives is under a threat to its freedom of expression on the internet. Anonymous stands for protection of such perceived rights of free speech and claims that such freedom should apply to internet communications. It is known to have a policy which does not permit bomb threats or rhetoric around violence and physical subversion.”[15]

The clip was posted to YouTube but it was not available to the public by means of a search. It was unlisted and could only be located by a person who was aware of the link to the particular clip. The defendant provided the link to news organisations, to a “fake” John Key[16] Facebook page that he created – the number of links amounting to 21. There was a photograph of John Key’s Auckland house. In his interview with the Police the defendant made complete admissions of every step taken in this entire process and said that his reason for including a John Key link was ….. “so that I can spread the video”.

The clip came to the attention of the Government Communications Security Bureau (GCSB) on 7 September 2010 who passed the information on to the Police Cybercrime Unit to commence an investigation. The deadline of 11 September came and went but by that time the identity of the defendant had been ascertained. An initial communication from the GCSB on the morning of 7 September postulated that the clip could be a “crackpot random threat” and confirmed that its communication was “completely outside the Anonymous MO”.[17]

The defendant was spoken to by the Police on 15 September and made full admissions of his involvement. At the time of the investigation over a hundred visits had been made to the site before it was quickly closed down following the intervention of the GCSB.

The Issue

The primary issue was the intention of the defendant. Section 307A requires proof of an intention, without lawful justification or reasonable excuse, to cause significant disruption to one or more of the four community agencies identified in subsection( 2) by communicating information known to be false which would cause one of the outcomes in subsection (3).

The Judge identified the elements to be proven as:

(a)  that the defendant communicated information that he knew (therefore believed) to be false (1 (b) (ii)). This was information about an attack on Government buildings by use of hidden explosives, attacks on websites, security leaks and harm to persons;

(b)  that the information communicated was about an act likely to create risk to the health of one or more people and/or cause major property damage (3(a) and (b)). Although the charge is expressed as only alleging a result causing major property damage (3(b)), in opening the prosecutor explained that the evidence with the Court’s leave would also be offered as alleging a result that created a risk to the health of one or more people (3(a));

(c)  that the communication was without lawful justification or reasonable excuse;

(d) that when making the communication, the defendant intended to cause significant disruption to something that is or forms part of an infrastructure facility in New Zealand (2(b)).

 The defendant offered as an explanation that the file sharing provisions of the Copyright Act  were an infringement of his right to freedom of expression, a right preserved by s 14 of the New Zealand Bill of Rights Act 1990 which he suggested applied to web and internet communications, but whilst offering this as his reason for what he did, he did not develop it as a defence.

In considering the issue of intent the Court had this to say:

“Did the defendant intend to cause a disruption to an infrastructure facility of New Zealand and if so, did he intend that disruption to be significant? First because there was no disruption to any of the agencies or infrastructure organs randomly and repeatedly mentioned in the clip, there being no evidence that any steps were taken to evacuate buildings or to put people on notice or to search premises etc, it is quite open to the Court to accept that the investigators did not consider any responses were necessary, and that would be consistent with the defendant’s own assertions that the extreme statements that had such violent connotations were only meant to be a “joke”

It was clear to the Court that Mr. Joseph wanted to ensure that his protest did not go unnoticed – that it was not drowned out by the “noise” that pervades the Internet. He chose extreme language and images to make his point, and couched his protest in violent terms although during his interview with the Police he expressed his remorse.

The judge considered the nature and extent of disruption anticipated by the statute. He said:

“I suggest that for our purposes a level of disruption intended would need clearly to be more than de minimis or more than of such little impact that it could be ignored. A test could be- has there been an interruption to the normal flow of things in the routine activity of an infrastructure, that is due to an element of influence that has generated a degree of disorder that requires particular application of attention – that requires a particular level of intensity and focus. If a disruption could be so described then, I expect it could be rightly called “significant”.”[18]

The judge expressed doubt that it was the defendant’s intention to cause such a level of disruption and agreed with the submission on behalf of the defendant that the intention had to be a specific one and did not encompass recklessness. He described the intention of the defendant as having his message seen and observed on the Internet and although his behaviour in uploading the clip to YouTube in an Internet café and using an alias could be seen as pointing to an awareness of unlawful conduct in that the defendant did not want to get caught. However it did not point to proof of the intention to cause disruption of the level anticipated by the statute. It transpired that the defendant was aware that the clip would probably be seen by the authorities and also that he expected that it would be “taken down”.

In addition to his legal assessment of the clip, the Judge also made an “aesthetic” one

“Whilst there might be a gasp (so to speak) of concern and apprehension when listening to and seeing the early parts of the clip, by the time it concluded one would know that it lacked any cohesion or spine of rationale and it was filled with vacuous repetition and confusion. It made quite a low grade impression on the Court and it would be expected I dare say to do likewise to most serious viewers of it…..

The defendant predictably, presented as a bright and typically articulate young man with ease of understanding of things “cyber” and with a level of competence in computer skills that is common for people of his age these days, but his passion, should it be accepted in good faith, to protect freedom of expression on the internet, and his outrage at perceived endeavours to trammel that, was expressed in a fairly immature way and without any ideological conception…

To describe the grotesque threats as being a joke, is trite also – even repugnant, but that does not go so far as to establish beyond reasonable doubt that he had the intention to significantly disrupt an infrastructure”[19]

Commentary

The Joseph case presents some interesting aspects of the use of the medium. Perhaps most significantly the video that was placed on YouTube was not made available for public searching. It was available only to those who were aware of the link. This means that the ability to distribute the message is in the hands of the person uploading the material to YouTube. A person may therefore post something to YouTube that is truly frightening or menacing, but which may never be available to the public. In such a situation the “communication of information” may be far removed from the mischief that the Statute seeks to address. This demonstrates the care with which one must approach the issue of dissemination of information on the various platforms available on the Internet. The utilisation of the medium may have an aggravating or mitigating effect upon the message.

Mr. Joseph went a step further. Instead of making the link available to a select few close friends he distributed the message to a number of “public” organisations, news media among them. Interestingly enough his threat was not published in the mainstream media and it was left to those who assess communications threats – the GCSB – to do something about the message. However, by making the link available to the news media and other organisations it was clear that Mr Joseph wanted to get his message widely published.

Interestingly the “freedom of expression” aspect of the message was not addressed although s. 307A(4) provides a specific exemption for political or industrial action and associated speech. The mere fact of protest does not of itself provide a basis for inferring that an offence against s. 307A(1) has been committed. Of course, in this case the Judge not only needed to consider the motivation for the message as well as its content . But the debate on the Counterterrorism Bill, which contained the proposed s. 307A, makes it clear that freedom of expression issues concerned the legislators.

During the debate on the Counterterrorism Bill[20] Keith Locke MP made the following observation:

“Perhaps the most dangerous change is the proposed new section 307A of the Crimes Act, in clause 7, that could lead to heavy penalties for people threatening to engage in forms of protest action that cause “major economic loss to one or more persons”. Let us consider the current debate over the foreshore and seabed, particularly over consents for marine farming. Various Māori spokespeople have talked about the possibility of taking direct action. Under this provision, if Marlborough Māori even so much as threaten to conduct some protest on the water that might affect the establishment and functioning of a marine farm, they could get up to 7 years in jail. The same applies to groups that threaten to pull out GE food crops planted after the moratorium is lifted.

Trade union strikers could also be hit by this law. Unions often threaten industrial action if negotiations break down. There is a so-called comfort clause, new section 307A(2), which provides that threatening a strike “by itself” is not criminal. But that does not stop threatening a strike from being against the law if it will cause major economic loss. We all know that the aim of strikes is to cause the maximum economic disruption of a workplace in order to get the employer to negotiate more reasonably. Section 307A(2) is clearly a threat to the right of protest and free speech.”[21]

When the Bill went to the Committee of the Whole on 21 October 2003 Mr. Locke raised some concerns about the effect of what was to be come s.307A(4), describing it as a “comfort clause”.

“If someone who is involved in protest action does actually cause the effects I have just described, he or she is still covered, despite this comfort clause. But I have put forward an amendment. If people think that strikes, lockouts, and legitimate protests are protected under this clause, then I have moved an amendment to cut out the two words “by itself” so it would be clear that people involved in strikes, lockouts, industrial action, and other protest action will not be covered by that.” [22]

Dr. Wayne Mapp[23] answered Mr. Locke’s criticism as follows:

“People would have to do two things, in fact, not one. Their actions have to intend the effect of one of these offences: they have to affect the civilian population of New Zealand, not just one person but the entire population or a large chunk thereof; and, they have to do something that would threaten an infrastructure facility—something pretty fundamental. The next thing mentioned in the section is the civil administration of the country, and, finally, the commercial activity. These are global concepts—actions cannot be narrowly focused…..

In essence, two things are required. Firstly, one has to have an “effect”, and, prior to the dinner break, I listed the effects. They are things of widespread significance to New Zealand—that is, affecting our civilian population, the infrastructure facility, civil administration, or commercial activity. These are not individual activities, in my view. They are something of general effect. That is how the words will be interpreted. That is the first test that has to be satisfied—namely, an effect. In addition, a “result” has to be intended. They are: creating a risk to the health of one or more people—admittedly that is narrower, in the sense of numbers; causing major property damage; causing major economic loss to one or more persons; and causing major damage to the national economy of New Zealand. The fact is that those are accumulative requirements—the widespread effect, leading to the result—both of which must be in the contemplation of the person. It is those two things together that would cause the activity to be caught by section 307A.

Then, on top of that, as Mr Locke noted earlier, there is the avoidance provision. So those things are not caught if they are derived from a strike, lockout, industrial action, advocacy, dissent, etc. It is not a complete exemption. Mr Locke has put up a Supplementary Order Paper that would have those as a complete exemption. I believe he is also wrong there. What if the intended outcome of the protest or dissent were this widespread effect, followed with the intended result? Surely one could not be supporting that kind of dissent. After all, one might even argue that Hamas would otherwise be exempted. Yet they conduct terrorist activities on a daily basis, which have these causes, these effects, and these results.”

Clearly the impact of the issue of protest and the threshold that would have to be crossed before protest became behaviour that would be caught by the section was in the mind of the House. It should also be noted that protest, in and of itself, is not the target. There would, as suggested by Dr Mapp, have to be other features of behaviour to engage the section.”

Conclusion

It is unwise to make generalised assertions about communication on a particular platform on the Internet or on the Internet in general. Often the platform will have certain specific characteristics or utilities that a user may employ to limit or enhance the communication of the message. The direct messaging utility in Twitter and the “access by link” utility in YouTube provide a couple of examples. Thus, as is so often the case in the law, context matters[24] and the context of the medium may be as important as the message. Once the medium and its impact has been considered the context of the message must be considered. In both Chambers and Joseph the messages, although described as a joke, were not intended to be taken seriously. This demonstrates the care that must be adopted when addressing the one-dimensional medium of text, unassociated with the other aspects of oral communication such as facial expression, tone, inflexion, body language and other visual aids to communication.[25]

In addition the medium has its own impact. The field of defamation provides an example. Loose talk is common on the internet. Internet users  are far more likely to make derisive or personal comments about other contributors to discussion groups or on blogs and comments pages. This increases the likelihood of defamatory material being produced. The internet, and especially email, encourages a new kind of language that is more clipped, blunt and capable of misinterpretation.[26] Burrows and Cheer[27] warn that words can be coloured by their surroundings and thus may be defamatory or not depending upon the context in which they occur[28] – the question must be asked whether the ordinary, reasonable reader reads messages on a bulletin board in the same way as if it were published in a daily newspaper:[29]

Certainly there is a culture of robust speech on the Internet. In its early days the internet was a place dominated by technophiles, academics and workers in the computer industry who have been described as having a strong collective sentiment towards anarchy, libertarianism and free speech rights. Thus a culture of free and frank speech developed, regulated to a degree by the users themselves. There are many examples of “flaming” or “flame wars” that were abusive and in which libellous comments could be exchanged, but it was part of the culture of the internet and although not actively promoted was at least tolerated.[30]

Both Chambers and Joseph are illustrative of the sometimes hyperbolic communication that characterises some content  on platforms on the Internet. In this respect it may be useful for those investigating and considering laying charges which seem to amount to “harmful digital communication” to consider carefully the overall context of the communication. In Chambers the Court did just that, observing the fact that there was easy identification of Mr Chambers, and the use of double exclamation marks along with the accused’s own explanation.

Within a wider framework the two cases demonstrate some of the underlying enabling qualities of the digital technologies and the Internet. The development of Web 2.0 and the rise of citizen journalism by bloggers, the ways in which user created content can become available to a worldwide network via social media such as Twitter, Facebook, blogs and YouTube pose fresh challenges for those who have to assess threats. I have described some of these qualities elsewhere.[31] Those of participatory information creation and sharing, dynamic information, persistence of information, dissociative enablement and permanent connectedness seem to be applicable in this case. These are qualities underlying the Internet and digital communications systems that are going to pose problems for those upon whom harmful digital communications have an impact, whether as recipients, investigators or decision makers. What is of concern is that the opportunities afforded by the Internet in terms of giving effect to freedom of expression run up against fear and misinterpretation. Chambers and Joseph demonstrate the care that must be taken.


[1] Marshall McLuhan Understanding Media: The Extensions of Man – Critical Edition Terrence Gordon (ed) (Gingko Press, Berkeley CA 2003) p. 17 et seq

[2] I have italicised the relevant parts of the section with which Mr Chambers was charged.

[3] [2012] EWHC 2157 at paras 9 – 10

[4] For further observations about the extent of a Twitter audience, see below especially in the context of a direct message.

[5] Ibid. para. 30

[6] See discussion below

[7] [2012] EWHC 2157 at paras 31 – 33

[8] It has subsequently been reported that notwithstanding advice from the Crown Prosecution Service that prosecuting the appeal may no longer be in the public interest, the Director of Public Prosecutions decided to proceed.

“The CPS even sent Chambers and his solicitor, free-speech campaigner David Allen Green, papers stating that it now agreed that the case should end. However, at the last minute the DPP, former human rights lawyer Keir Starmer, overruled his subordinates, it is alleged.”  Nick Cohen “’Twitter joke’ case only went ahead at insistence of DPP” The Guardian 28 July 2012 http://www.guardian.co.uk/law/2012/jul/29/paul-chambers-twitter-joke-airport (last accessed 29 July 2012)

[9] [2006] 1 WLR 308 (Divisional Court) and [2006] 1 WLR 2223 (House of Lords)

[10] [2012] EWHC 2157 at para 38.

[11] Ibid. para 28. The precise words that Edgar used, in the context of the denoument of the tragedy are;

“The weight of this sad time we must obey;

Speak what we feel, not what we ought to say.” King Lear V iii

[12] Twitter Help Center – How to Post and Delete Direct Messages (DM) https://support.twitter.com/groups/31-twitter-basics/topics/109-tweets-messages/articles/14606-what-is-a-direct-message-dm (last accessed 29 July 2012)

[13] Why can’t some Tweets be retweeted?

If another user’s Tweets are protected, you will not be able to retweet their content. You can see their Tweets in your timeline because they have accepted your follow request, but because they have chosen not to share their Tweets publicly, their Tweets cannot be retweeted by you or anyone else.

If you see the lock iconnext to the user’s name and information on their profile page or on their Tweets, their Tweets are protected and you will not be able to share their Tweets on your timeline through Twitter’s retweet feature. Twitter Help Center “Why Can’t Some Tweets be Retweeted” https://support.twitter.com/articles/77606-faqs-about-retweets-rt (last accessed 29 July 2012)

[14] Unreported District Court Manukau CRI 2011-092-014673 21 June 2012 Thorburn DCJ

[15] Ibid. para 4.

[16] Prime Minister of New Zealand.

[17] Ibid. para  7.

[18] Ibid. para 22

[19] Ibid paras 26, 28-29

[20] This Bill proposed the amendments to the Crimes Act which became the Crimes Amendment Act 2003 and which included s. 307A

[21] Hansard Vol 612 p. 9141

[22] Ibid. p. 9337

[23] Now a Law Commissioner with the New Zealand Law Commission

[24] R v Secretary of State for the Home Department Ex Parte Daly [2001] UKHL 26; [2001] AC 532 per Lord Steyn.

[25] For example the use of the words “Yeah, right” seem to suggest a double or emphasised positive. However, depending upon context the two words can actually mean a negative or disbelief. It is perhaps the only example of where the use of a double positive carries the meaning of a negative. For example see the billboards advertising Tui Beer and which address various social issues https://www.google.co.nz/search?q=tui+billboards&hl=en&prmd=imvns&tbm=isch&tbo=u&source=univ&sa=X&ei=tK0VUPXaE-ytiQfor4DQDA&sqi=2&ved=0CFgQsAQ&biw=1280&bih=905 (last accessed 30 July 2012)

[26] P Quirk “Defamation in Cyberspace and the Corporate Cybersmear” in A Fitzgerald and others (eds) Going Digital 2000 Legal Issues for E-Commerce Software in the Internet (Prospect Media Pty Ltd, St Leonards, 2000) at 298; J Tunstall Better, Faster Email: Getting the most out of email (Allen & Unwin, Sydney, 1999).

[27] J Burrows and U Cheer Media Law in New Zealand (5th ed, LexisNexis, Wellington, 2010) at [2.2.4(b)(v)].

[28] R Tobin “Casenote: O’Brien v Brown” (2001) 1 Butterworths Technology Law Forum 100.

[29] R Tobin “Casenote: O’Brien v Brown” (2001) 1 Butterworths Technology Law Forum 100.

[30] Judge David Harvey internet.law.nz 3rd ed (LexisNexis, Wellington, 2011) p. 603

[31] See “Why Do Jurors Go On-Line” The IT Countrey Justice 27 July 2012 https://theitcountreyjustice.wordpress.com/2012/07/27/why-do-jurors-go-on-line/ (last accessed 30 July 2012). Some of the qualities are:

Persistence

Dynamic Information

Continuing change – the disruptive element

Dissociative enablement

Permissionless innovation

Permanent connectedness

Participatory information creation and sharing

Searchability

Availability and remote access

Retrievability