The culture of idealised individualism

I subscribe to the New Zealand Herald. I like to read it while I am having breakfast. In these days of a Covid 19 lockdown I can read the paper a bit more thoroughly than I might normally before hitting the Auckland gridlock on the way to work.

But one columnist I do enjoy reading is Mr Simon Wilson. He writes clearly and argues well for his point of view, because his columns are, after all, just his opinion. I don’t often agree with him. I find he tends to be a bit preachy, a bit righteous, at times a bit of a high-horsed moralist. Certainly much of his thinking is to the left of centre. He seems to support the leftist Auckland Council and our slightly left of centre Government. And that is fine. This is a democracy and he is entitled to his opinion and he is entitled to express it as I am mine.

In the Herald of 2 April he focussed his sights upon the United States and it was a little difficult to work out whether he was just plain good old Kiwi anti-American or if he deplored the US political and social system. Having read the article several times I think it is the latter and in many respects I agree with him. For whatever reason – and there are many – US society has become polarised into different clusters or belief and opinion to the point that the consensus which was a characteristic of US politics and life a few decades ago has vanished.

However, one thing I must take issue with is his sneering dismissal of individualism. He says

“Then there’s the American culture of idealised individualism. You’re not taking my gun from me and you’re not going to tell me where I can go. Stay safe? Be kind? Don’t make me laugh.”

Before I express my answer let me provide a bit of context.

In 1964 – 65 I was lucky enough to be awarded an American Field Service Scholarship and completed my final year of high school in a little town in Minnesota called Redwood Falls. It was a very interesting experience.

In our English class we were required to write an essay on the subject of “The Challenge of Citizenship”. Those essays that merited it would be entered in the Veterans of Foreign Wars competition known as the Voice of Democracy. Because not only did the piece have to read well – it had to be spoken and presented.

So I wrote my essay and would you believe that it was submitted to the competition and went through the various District and Regional eliminations and I ended up winning the competition for the State of Minnesota which was pretty cool for a Kiwi kid. It also meant that I had a 5 day all expenses paid trip to Washington DC hosted by the VFW and got to go to some extraordinary places and meet some wonderful people.

The speech itself was read into the Congressional Record for Thursday 25 February 1965

I differ with Mr Wilson on his characterisation of individualism. Although he locates his arguement in the US, and grabs the low hanging fruit of firearms, true individualism is more than just that. I identified it as an important element – if not THE element – in the challenge of citizenship. It has to do with our exercise of the rights and privileges of a free society and true individualism runs up against the fuzzy collectivist thinking that characterises much of today’s commentary, including some of that put out by Mr Wilson.

When we get through the current Covid19 crisis with all its unfortuante but necessary interferences with our freedoms, it is to be hoped that the importance of individualism will again surface and achieve the paramountcy it deserves.

The essay/speech follows. I had to re-type it from a tattered copy of the Congressional Record which did not scan that well. It was an interesting experience because the underlying “voice” is the same. I didn’t have to refer to the master text that often. Some of the expression I would change today – the reference to Communists for example – but here it is as it was originally presented:

When St Paul was brought before the Roman Governor, he used those magic words Civis Romanus Sum – I am a Roman citizen and he had a right to appeal to Caesar, which he did.

Today, as in the time of St Paul, one’s citizenship is a thing to be proud of, but saying that one is a citizen of a country and saying that one practices good citizenship are two different things.

Citizenship is not flagwaving patriotism, but for us it is identifying ourselves as those who are entitled to the rights and privileges of free men, and sensing the qualities of our obligations and responses to a community.

Now let us discover what the challenge of one entitled to the rights and privileges of a free man actually involves.

Today we are threatened by forces that threaten to take away our freedom. We all have heard of these over the media of communication, so there is no need for me to reiterate the dangers that face us. Yet we are faced by an equally dangerous enemy within that threatens to take away our most important freedom – the freedom to think as we please, the freedom to make our own decisions and to act on them. All the time we are told what to do, what to buy, how we should do this and how we should do that, and gradually we are allowing other people to do our thinking for us. The time will come when no longer will we make our own decisions, but some “big brother” will tell us what to do and what to think. We will be told who is good and who is bad, whom we shall love and whom we shall hate.

Happily, today we are only on the brink of this horror, but it is, nonetheless, frighteningly close. What we need to do now, at this moment, is to wake up and think for ourselves. When  we do this we must not be affected by prejudice, be it racial, political or religious, and above all we must stick to our decisions once we have made them. If our ideas differ from those of the majority and if we truly and genuinely believe in them, then we must stick to them as did the American colonists more than 175 years ago.

Individualism is a keynote of our society and it must be maintained by sustaining freedom of thought, and it is up to the good citizen to preserve this freedom as well as all the others. By upholding these freedoms when it is perhaps easier to be passive, which are the rights of every citizen, the citizen practices good citizenship.

Yet how many people criticize the individualist for his different ideas; he is reviled, insulted, even called a Communist. This is the wrong attitude to adopt toward those who use this freedom of thought, and it is this which is challenging us today. We must accept this challenge – a challenge which, if we do not accept, will take away our freedoms. To practice good citizenship we must fight for and preserve our freedoms – the freedom to speak as we please; the freedom to worship as we please; the freedom to live without having to worry; and the greatest freedom of them all – freedom to think as we wish. Preserve them, for if we do not, then we do not accept the challenge of citizenship – for these, as we carefully exercise them, become not ours alone but equal rights of others, strengthened like links in a chain.

Challenging Speech

This piece is something of a sequel to the preceding post – “Dangerous Speech” – and addresses some of the issues surrounding freedom of expression including the importance of recognising that the value of freedom of expression lies in its ability to challenge.

Freedom of speech involves the physical act of communicating thoughts and ideas to others.

International instruments, written constitutions and Bills of Rights protect free speech as one of the fundamental rights against State oppression. Freedom of expression is guaranteed by Article 19 of the Universal Declaration of Human Rights. Everyone has the right to freedom of opinion and expression, including the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media, regardless of frontiers. There is a similar right in the International Covenant on Civil and Political Rights and in the European Convention on Human Rights. These articulations of the right are wider than mere speech and recognize the importance of an individual’s thoughts and opinions that underlie expression.

Section 14 of the New Zealand Bill of Rights Act 1990 protects freedom of expression. It guarantees the freedom of expression. It recognizes that there are two aspects to the freedom of expression. One is what could be called the outward flow – the expression of the idea or opinion. The other is the inward flow – the reception of what is expressed. The freedom is not limited to the imparting information. As important is the freedom to seek and receive it.

This is not a comfortable right. It is not meant to be. It is a challenging freedom. It is a freedom that allows challenge.

Free speech does not only allow for the expression of inoffensive, comfortable, uncontentious or unchallenging opinions. Its strength and importance lies in the diversity and contentiousness that it allows.

 One’s commitment to freedom of expression lies in the willingness to allow or tolerate information which is contentious, challenging, radical or even revolutionary. It must be recognized as freedom for the thought we hate – an expression used by Justice Oliver Wendell Holmes in the case of US v Schwimmer. Indeed the whole history of the development of freedom of expression lies in the struggle for the free expression of political or religious ideas which challenged the establishment and suggested a different and sometimes bloody alternative.

Freedom of expression has been justified with three main arguments that have developed over time.

One theory is its role in the discovery of truth – a justification advanced by Milton in Areopagitica and summarised by John Stuart Mill in his essay On Liberty.

“But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it.  If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

There are shortcomings with this justification. The first is the implicit assumption that freedom of expression necessarily leads to the discovery of truth. The second lies in our current understanding of truth and reality in a post truth world.

The second justification lies in the recognition of freedom of expression as an integral part of our right to self determination and self-fulfilment as an individual. Restrictions on what we say, write or express ourselves inhibits our personality, hence our growth and self-knowledge.

Current attitudes to freedom of expression and especially to ideas and opinions that challenge those of the listener or recipient lies within the collectivization of thought and expression usually exemplified through what is referred to as identity politics. This collectivization of thought – the automatic subsuming of individuals into a group based on similar characteristics – has as its most extreme example statements like “we are them”, “I speak for all (insert group or identity” and “they are us” – a form of mass identity and collectivisation of opinion that does not allow for nor may it tolerate dissent. On the other hand, of course, freedom of expression is as much for the benefit of the collective as it is for the individual.

The other side of collectivization of thought and expression is the individualization of opinion – ideas and the expression thereof are an aspect of individual identity – a recognition of the uniqueness of every person as distinct from some collectivist groupthink or mindless uncritical acceptance of an asserted truth. Indeed collectivization of thought and expression – the whole nature of identity politics where individuals are subsumed into some amorphous mass – is contrary to the much vaunted value of diversity in society.

These days, diversity seems to be focused mainly upon the importance of cultural or racial groups within society – a challenge to the groupthink that underlies the homogenous group formed by assimilation. Yet in its most atomized and microcosmic sense diversity lies in the form of the individual possessed of individual values, thoughts and a right to express them, no matter how challenging to the groupthink they might be.

Challenging speech should be embraced as a fundamental aspect of individual – not group – identity. To interfere with the freedom of expression dooms us to the collectivist mindset which is intolerable in a free and open society. It may be that the ideas and their expression range from the banal to the radical and revolutionary. What is in fact more important than the ideas expressed is the fact that they are expressed and that individuals have a right to express them.

The third justification lies within Western concepts of democracy and self-government. Political speech is accorded a high value. The free flow of information and ideas informs political debate. Freedom of expression protects the rights of all citizens to participate in a democracy and the Internet has enhanced that participatory ability allowing everyone to have a say despite modern tendencies to argue “alternative facts” and “fake news”. Freedom of expression can act as a brake on the abuse of power by public officials. It can expose errors made by government and shortcomings in the administration of justice.

Challenging speech may be contentious. It may be argumentative. It may be, at the same time, banal. It may even be insulting or grossly offensive. But if freedom of expression is to have any value it must ensure that the right to express insulting or grossly offensive views is protected. As long as those expressions do not incite hostility or physical violence, such forms of challenging speech must be protected.

Within the context of the cotton wool society within which we live this form of challenging or uncomfortable expression may be described in a number of ways depending upon the perspective of the listener. One such classification may be that of “hate speech” – a difficult term and one which I have rejected in an earlier piece, and one which tells us more about what the listener hates than the reality that the speech may engender hatred, ill will or ill feeling against a particular person or group. True “hate” speech or dangerous speech as I have described it elsewhere advocates physical harm against an individual or group.

Alternatively, instead of taking up the challenge of uncomfortable or challenging speech, and engaging in a debate, the listener refuses to tolerate what has been said and attempts to shut it down by dismissing or describing the idea as racist, offensive or inappropriate – terms that I consider to be veto statements, especially the third which suggests a value judgement but fails to identify what particular value is in issue. Although the use of a veto statement is in itself an aspect of free speech, rather I am of the view that challenging speech should be met with opposing, rational argument. The use of veto statements seems to demonstrate either an unwillingness to attempt such level of engagement or a lack of intellectual capacity to do so. Nevertheless, freedom of expression must allow for this clog on discourse.

One of the joys of living in a liberal democracy is to be able to hear, read and consider different stripes of opinion – and the Internet enhances those opportunities. Why should one do this? Because the only way that one can form ones own opinions, values or beliefs is to consider the views of others – assess them, test them, consider them and from time to time challenge them. Indeed, the ability to engage in a challenging discourse is a time honoured way in which to test ideas. It goes back to the days of Socrates and beyond.

Those with whom I deal, and who wish to advance a particular position, find themselves engaged in a Socratic dialogue. This causes them to consider their position and allows me to test my own first impressions of their arguments. I have often shifted my position 180 degrees after a proposition has been tested in the furnace of vigorous discussion. I also like to challenge my own thinking on certain issues. In this regard I find the views expressed by opinion writers to be most helpful – even those with whom I usually disagree like opinion writers Mike Hosking, Leighton Smith Simon Wilson and Lizzie Marvelly and opinion blogs such as The Standard. But it would be a disservice to them and to myself to refuse to read their columns simply because they wrote them. More important than the person expressing the idea or opinion is the idea or opinion itself. There have been occasions, not often admittedly, when I have changed my position on an issue as a result of what I have read. Had I not allowed myself to be challenged, I would not have had this important opportunity. Freedom of expression enables our ideas, beliefs, prejudices and indeed values to be challenged. There is nothing comfortable about this. But it is certainly healthier than occupying a bubble of received and agreeable wisdom. In such an environment freedom of expression means nothing.

Dangerous Speech – some legislative proposals

Preface

This piece was written in April 2019. I sat on it for a while and then published it on the Social Science Research Network. It has attracted some interest since it was posted and was recently listed on SSRN’s Top Ten download list for LSN: Criminal Offenses & Defenses. As at 21 January a copy had been downloaded 21 times and there have been 180 abstract views.

Of more interest is the fact that a colleague in the United States has used the paper as a teaching aid for his First Amendment teaching course on the case of Terminiello v City of Chicago 337 U.S. 1 (1949). Terminiello held that a “breach of peace” ordinance of the City of Chicago that banned speech which “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance” was unconstitutional under the First and Fourteenth Amendments to the United States Constitution.

My piece, which I have decided to publish on this blog, deals primarily with the position under NZ Law. I had not come across Terminiello but it is interesting to see that it comes largely to a similar conclusion. It is a real thrill that has been found to be useful for teaching purposes.

Abstract

This paper considers steps that can be taken to legislate against hate speech.

 The first issue is the term “hate speech” itself and, in light of the proposals advanced, this emotive and largely meaningless term should be replaced with that of “dangerous speech” which more adequately encapsulates the nature of the harm that the law should address.

The existing criminal provisions relating to what I call communications offences are outlined. Proposals are advanced for an addition to the Crimes Act to fill what appears to be a gap in the communications offences and which should be available to both individuals and groups. A brief discussion then follows about section 61 of the Human Rights Act and section 22 of the Harmful Digital Communications Act. It is suggested that major changes to these pieces of legislation is unnecessary.

Communications offences inevitably involve a tension with the freedom of expression under the New Zealand Bill of Rights Act and the discussion demonstrates that the proposal advanced are a justifiable limitation on freedom of expression, but also emphasises that a diverse society must inevitably contain a diversity of opinion which should be freely expressed.  

 Introduction

The Context

In the early afternoon of 15 March 2019 a gunman armed with semi-automatic military style weapons attacked two mosques in Christchurch where people had gathered to pray. There were 50 deaths. The alleged gunman was apprehended within about 30 minutes of the attacks. It was found that he had live streamed his actions via Facebook. The stream was viewed by a large number of Facebook members and was shared across Internet platforms.

It also transpired that the alleged gunman had sent a copy of his manifesto entitled “The Great Replacement: Towards a New Society” to a number of recipients using Internet based platforms. Copies of both the live stream and the manifesto have been deemed objectionable by the Chief Censor.[1]

In addition it appears that the alleged gunman participated in discussions on Internet platforms such as 4Chan and 8Chan which are known for some of their discussion threads advocating White Supremacy and Islamophobic tropes

The Reaction

There can be no doubt that what was perpetrated in Christchurch amounted to a hate crime. What has followed has been an outpouring of concern primarily at the fact that the stream of the killings was distributed via Facebook and more widely via the Internet.

The response by Facebook has been less than satisfactory although it would appear that in developing their Livestream facility they then were unable to monitor and control the traffic across it – a digital social media equivalent of Frankenstein’s creature.

However, the killings have focused attention on the wider issue of hate speech and the adequacy of the law to deal with this problem.

Whither “Hate” Speech

The problem with the term “hate speech” is that it is difficult, if not impossible, to define.

Any speech that advocates, incites and intends physical harm to another person must attract legal sanction. It is part of the duty of government to protect its citizens from physical harm.

In such a situation, it matters not that the person against whom the speech is directed is a member of a group or not. All citizens, regardless of any specific identifying characteristics are entitled to be protected from physical harm or from those who would advocate or incite it.

Certain speech may cause harm that is not physical. Such harm may be reputational, economic or psychological. The law provides a civil remedy for such harms.

At the other end of the spectrum – ignoring speech that is anodyne – is the speech that prompts the response “I am offended” – what has been described as the veto statement.[2] From an individual perspective this amounts to a perfectly valid statement of opinion. It may not address the particular argument or engage in any meaningful debate. If anything it is a statement of disengagement akin to “I don’t like what I am hearing.”

Veto Statements

The difficulty arises when such a veto statement claims offence to a group identity. Such groups could include the offended woman, the offended homosexual, the offended person of colour or some other categorization based on the characteristics of a particular group. The difficulty with such veto statements – characterizing a comment as “racist” is another form of veto of the argument – is that they legitimize the purely subjective act of taking offence, generally with negative consequences for others.

Should speech be limited, purely because it causes offence? There are many arguments against this proposition. That which protects people’s rights to say things I find objectionable or offensive is precisely what protects my right to object.  Do we want to live in a society that is so lacking in robustness that we are habitually ready to take offence? Do we want our children to be educated or socialized in this way? Do we desire our children to be treated as adults, or our adults to be treated as children? Should our role model be the thin-skinned individual who cries “I am offended” or those such as Mandela, Baldwin or Gandhi who share the theme that although something may be grossly offensive, it is beneath my dignity to take offence? Those who abuse me demean themselves.

It may well be that yet another veto statement is applied to the mix. What right does a white, privileged, middle-class old male – a member of a secure group – have to say this. It is my opinion that the marginalization of the “I’m offended” veto statement is at least to open the door to proper debate and disagreement.

Furthermore, the subjective taking of offence based on group identity ignores the fact that we live in a diverse and cosmopolitan society. The “I’m offended” veto statement discourages diversity and, in particular, diversity of opinion. One of the strengths of our society is its diversity and multi-cultural nature. Within this societal structure are a large number of different opinions. For members of one group to shut down the opinions of another on the basis of mere offence is counter to the diverse society that we celebrate.

The term “hate speech” is itself a veto statement and often an opposing view is labelled as “hate speech”. The problem with this approach seems to be that the listener hates what has been said and therefore considers the proposition must be “hate speech”. This is arrant nonsense. The fact that we may find a proposition hateful to our moral or philosophical sense merely allows us to choose not to listen further. But it does not mean that because I find a point of view hateful that it should be shut down. As Justice Holmes said in US v Schwimmer[3] “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

Our commitment to freedom of expression lies not in allowing others the freedom to say things with which we agree, but in allowing them the right to say things with which we absolutely disagree.

Finally, in considering the nature of the veto statement “I’m offended” or categorizing a comment as “hate speech” where lies the harm. Is anybody hurt? The harm in fact comes in trying to shut down the debate with the use of the veto statement.

Aspects of “Harm”

However, recent thinking has had a tendency to extend the concept of harm suffered by individuals. It is accepted that the law should target physical harm, but should it protect an individual from any sort of harm. Catherine MacKinnon has formulated a view, based on the work of J.L. Austin, that many words or sentiments are essentially indistinguishable from deeds and therefore, sexist or misogynistic language should be regarded as a form of violence.[4] This form of assaultive speech can be extended to be available to any group based of distinguishing characteristics or identity.

The emphasis is upon the subjectivity of the person offended. What offence there may be is in the sphere of feelings. It may follow from this that if I do not feel I have been offended then I have not been offended. If we reverse the proposition only the individual may judge whether or not they have been offended. I would suggest that this element of subjectivity is not the interest of the law.

The problem is that such an extension of potentially harmful speech becomes equated with “hate speech” and virtually encompasses any form of critical dialogue. To conflate offence with actual harm means that any sort of dialogue may be impossible.

To commit an offence of violence is to perform an action with objective, observable detrimental physical consequences, the seriousness of which requires the intervention of the law. To give offence is to perform an action – the making of a statement – the seriousness of which is in part dependant upon another person’s interpretation of it.

An example may be given by looking at Holocaust denial. Those who deny the Holocaust may insult the Jewish people. That may compound the injury that was caused by the event itself. But the insult is not identical to the injury. To suggest otherwise is to invite censorship. The denial of the Holocaust is patently absurd. But it needs to be debated as it was when Deborah Lipstadt challenged the assertions of David Irving. In an action brought by Irving for defamation his claims of Holocaust denial were examined and ultimately ridiculed.[5]

Jeremy Waldron is an advocate for limits on speech. He argues that since the aim of “hate speech” is to compromise the dignity of those at whom it is targeted it should be subject to restrictions.[6] Waldron argues that public order means more than an absence of violence but includes the peaceful order of civil society and a dignitary order of ordinary people interacting with one another in ordinary ways based upon an arms-length respect.

So what does Waldron mean by dignity. He relies upon the case of Beauharnais v Illinois[7] where the US Supreme Court upheld the constitutionality of a law prohibiting any material that portrayed “depravity, criminality, unchastity or lack of virtue of a class of citizens, of any race, colour, creed or religion.” On this basis Waldron suggests that those who attack the basic social standing and reputation of a group should be deemed to have trespassed upon that group’s dignity and be subject to prosecution. “Hate speech”, he argues, should be aimed at preventing attacks on dignity and not merely offensive viewpoints. Using this approach I could say that Christianity is an evil religion but I could not say Christians are evil people.

The problem with Waldron’s “identity” approach is that is that the dignity of the collective is put before the dignity of its individual members. This raises the difficulty of what may be called “groupthink”. If I think of myself primarily as a member of a group I have defined my identity by my affiliation rather than by myself. This group affiliation suggests a certain fatalism, that possibilities are exhausted, perhaps from birth, and that one cannot be changed. This runs directly against Martin Luther King’s famous statement where he rejected identity based on race but preferred an individual assessment.

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

The problem with the proposition that the state should protect its citizens against what Waldron calls “group defamation” is that it runs the risk of its citizens becoming infantalised, that in fact such an approach undermines their individual dignity by assuming that they cannot answer for themselves.

Rather than encouraging people to be thin-skinned, what is required in a world of increasingly intimate diversity is to learn how to be more thick-skinned and to recognize and celebrate the difference that lies in diversity. As Ronald Dworkin put it, no one has a right not to be offended and in fact we should not take offence too readily. In a free society I may be free to feel offended but should not use that offence to interfere with the freedoms of another.

Dangerous Speech

It will be by now apparent that my view is that “hate speech” is a term that should be avoided, although I accept that it is part of the lexicon, whether we like it or not. Perhaps it might be proper to focus upon the type of speech that society should consider to be unacceptable and that warrants the interference of law.

Any interference must be based on reasonableness and demonstrable justification, given that the right of freedom of expression under the Bill of Rights Act is the subject of interference. To warrant such interference I suggest that rather than use the term “hate speech” the threshold for the interference of the law could be termed “dangerous speech” – speech that presents a danger to an individual or group of individuals.

The intentional advocacy or inciting of physical harm may be classified as “dangerous speech” and justifies the intervention of the law. It is non-specific and available both to individuals and the groups identified in the Human Rights Act. In certain circumstances – where there is incitement to or advocacy of actual physical harm, the intervention of the criminal law is justified.

The law also deals with psychological harm of a special type – serious emotional distress. That is a test in the Harmful Digital Communications Act (HDCA). That legislation applies only to online speech. That may be a lesser form of “dangerous speech” but within the context of the provisions of section 22 HDCA such interference is justified. The elements of intention, actual serious emotional distress and the mixed subjective objective test provide safeguards that could be considered to be a proportionate interference with the freedom of expression and would harmonise the remedies presently available for online speech with that in the physical world.

There are a number of other provisions in the law that deal with forms of speech or communication harms. Some of these warrant discussion because they demonstrate the proper themes that the law should address.

Existing Communications Offences – a summary

The law has been ambivalent towards what could be called speech crimes. Earlier this year the crime of blasphemous libel was removed from the statute book. Sedition and offences similar to it were removed in 2008. Criminal libel was removed as long ago as 1993.

The Crimes Act 1961

At the same time the law has recognized that it must turn its face against those who would threaten to commit offences. Thus section 306 criminalises the actions of threatening to kill or do grievous bodily harm to any person or sends or causes to be received a letter or writing threatening to kill of cause grievous bodily harm. The offence requires knowledge of the contents of the communication.

A letter or writing threatening to destroy or damage any property or injure any animal where there is knowledge of the contents of the communication and it is done without lawful justification or excuse and without claim or right is criminalized by section 307.

It will be noted that the type of communication in section 306 may be oral or written but for a threat to damage property the threat must be in writing.

Section 307A is a complicated section.[8] It was added to the Act in 2003 and was part of a number of measures enacted to deal with terrorism after the September 11 2001 tragedy. It has received attention in one case since its enactment – that of Police v Joseph.[9]

Joseph was charged with a breach of s 307A(1)(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 believed to be about an act namely causing explosions likely to cause major property damage.

Mr. Joseph, a secondary school student at the time, created a video clip that lasted a little over three minutes. He used his laptop and sent 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. The message:[10]

  • threatened a terror attack on the New Zealand Government and New Zealand Government buildings.
  • claimed that large amounts of explosives had been placed in hidden locations on all buildings.
  • warned that New Zealand Government websites would be taken down.
  • threatened the hacking of New Zealand’s media websites.
  • threatened to disclose all Government secrets that have not been released to Wikileaks nor the public.
  • warned that obstruction would lead to harm.

The clip demanded that the New Zealand Government repeal or refrain from passing an amendment to the Copyright Act 1994. It was posted on 6 September 2010 and a deadline was set for 11 September 2010. The clip was attributed to the hacktavist group known as Anonymous.

The clip was posted to YouTube. 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 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. 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”.[11]

The site was quickly disabled and Mr. Joseph was spoken to by the Police. He made full admissions of his involvement.

The real issue at the trial was one of intent. The intention had to be a specific one. The Judge found that the intention of the defendant was to have 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 it did not, however, 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”.

The offence prescribed in section 308 does involve communication as well as active behavior. It criminalises the breaking or damaging or the threatening to break or damage any dwelling with a specific intention – to intimidate or to annoy. Annoyance is a relatively low level reaction to the behavior. A specific behavior – the discharging of firearms that alarms or intends to alarm a person in a dwelling house – again with the intention to intimidate or annoy – is provided for in section 308(2).

The Summary Offences Act

The Summary Offences Act contains the offence of intimidation in section 21. Intimidation may be by words or behavior. The “communication” aspect of intimidation is provided in section 21(1) which states:

Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated,—

  • threatens to injure that other person or any member of his or her family, or to damage any of that person’s property;

Thus, there must be a specific intention – to frighten or intimidate – together with a communicative element – the threat to injure the target or a member of his or her family, or damage property.

In some respects section 21 represents a conflation of elements of section 307 and 308 of the Crimes Act together with a lesser harm threatened – that of injury – than appears in section 306 of that Act.

However, there is an additional offence which cannot be overlooked in this discussion and it is that of offensive behavior or language provided in section 4 of the Summary Offences Act.

The language of the section is as follows:

  • Every person is liable to a fine not exceeding $1,000 who,—
  • in or within view of any public place, behaves in an offensive or disorderly manner; or
  • in any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person; or
  • in or within hearing of a public place,—

(i)  uses any threatening or insulting words and is reckless whether any person is alarmed or insulted by those words; or

(ii) addresses any indecent or obscene words to any person.

  • Every person is liable to a fine not exceeding $500 who, in or within hearing of any public place, uses any indecent or obscene words.
  • In determining for the purposes of a prosecution under this section whether any words were indecent or obscene, the court shall have regard to all the circumstances pertaining at the material time, including whether the defendant had reasonable grounds for believing that the person to whom the words were addressed, or any person by whom they might be overheard, would not be offended.
  • It is a defence in a prosecution under subsection (2) if the defendant proves that he had reasonable grounds for believing that his words would not be overheard.

In some respects the consequences of the speech suffered by the auditor (for the essence of the offence relies upon oral communication) resemble those provided in section 61 of the Human Rights Act.

Section 4 was considered by the Supreme Court in the case of Morse v Police.[12] Valerie Morse was convicted in the District Court of behaving in an offensive manner in a public place, after setting fire to the New Zealand flag at the Anzac Day dawn service in Wellington in 2007.

In the District Court, High Court and Court of Appeal offensive behavior was held to mean behaviour capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it in the circumstances. A tendency to disrupt public order was not required to constitute behaviour that was offensive. Notwithstanding the freedom of expression guaranteed by NZBORA, the behavior was held to be offensive within the context of the ANZAC observance.

The Supreme Court held that offensive behavior must be behaviour which gives rise to a disturbance of public order. Although agreed that disturbance of public order is a necessary element of offensive behaviour under s 4(1)(a), the Judges differed as to the meaning of “offensive” behaviour. The majority considered that offensive behaviour must be capable of wounding feelings or arousing real anger, resentment, disgust or outrage, objectively assessed, provided that it is to an extent which impacts on public order and is more than those subjected to it should have to tolerate. Furthermore it will be seen that a mixed subjective\objective test is present in that the anger, resentment, disgust or outrage must be measured objectively – how would a reasonable person in this situation respond.

It is important to note that in addition to the orality or behavioural quality of the communication – Anderson J referred to it as behavioural expression[13] –  it must take place in or within view of a public place. It falls within that part of the Summary Offences Act that is concerned with public order and conduct in public places. Finally, offensive behavior is behavior that does more than merely create offence.

Observations on Communications Offences

In some respects these various offences occupy points on a spectrum. Interestingly, the offence of offensive behavior has the greatest implications for freedom of expression or expressive behavior, in that the test incorporates a subjective one in the part of the observer. But it also carries the lightest penalty, and as a summary offence can be seen to be the least serious on the spectrum. The section could be applied in the case of oral or behavioural expression against individuals or groups based on colour, race, national or ethnic origin, religion, gender, disability or sexual orientation as long as the tests in Morse are met.

At the other end of the spectrum is section 307 dealing with threats to kill or cause grievous bodily harm which carries with it a maximum sentence of 7 years imprisonment. This section is applicable to all persons irrespective of colour, race, national or ethnic origin, religion, gender, disability or sexual orientation as are sections 307, 308, section 21 of the Summary Offences Act and section 22 of the Harmful Digital Communications Act which could all occupy intermediate points on the spectrum based on the elements of the offence and the consequences that may attend upon a conviction.

There are some common themes to sections 306, 307, 308 of the Crimes Act and section 21 of the Summary Offences Act.

First, there is the element of fear that may be caused by the behavior. Even although the issue of intimidation is not specifically an element of the offences under sections 306 and 307, there is a fear that the threat may be carried out.

Secondly there is a specific consequence prescribed – grievous bodily harm or damage to or destruction of property.

Thirdly there is the element of communication or communicative behavior that has the effect of “sending a message”.

These themes assist in the formulation of a speech-based offence that is a justifiable limitation on free speech, that recognizes that there should be some objectively measurable and identifiable harm that flows from the speech, but that does not stifle robust debate in a free and democratic society.

A Possible Solution

There is a change that could be made to the law which would address what appears to be something of a gulf between the type of harm contemplated by section 306 and lesser, yet just as significant harms.

I propose that the following language could cover the advocacy or intentional incitement of actual physical injury against individuals or groups. Injury is a lesser physical harm than grievous bodily harm and fills a gap between serious emotional distress present in the HDCA and the harm contemplated by section 306.

The language of the proposal is technology neutral. It could cover the use of words or communication either orally, in writing, electronically or otherwise. Although I dislike the use of the words “for the avoidance of doubt” in legislation for they imply a deficiency of clarity of language in the first place, there could be a definition of words or communication to include the use of electronic media.

The language of the proposal is as follows:

It is an offence to use words or communication that advocates or intends to incite actual physical injury against an individual or group of individuals based upon, in the case of a group, identifiable particular characteristics of that group

This proposal would achieve a number of objectives. It would capture speech or communications that cause or threaten to cause harm of a lesser nature than grievous bodily harm stated in section 306.

The proposal is based upon ascertaining an identifiable harm caused by the speech or communicative act. This enables the nature of the speech to be crystallised in an objective manner rather than the unclear, imprecise and potentially inconsistent use of the umbrella term “hate speech.”

The proposal would cover speech, words or communication across all media. It would establish a common threshold for words or communication below which an offence would be committed.

The proposal would cover any form of communicative act which was the term used by Anderson J in Morse and which the word “expression” used in section 14 of NZBORA encompasses.

The tension between freedom of expression and the limitations that may be imposed by law is acknowledged. It would probably need to be stated, although it should not be necessary, that in applying the provisions of the section the Court would have to have regard to the provisions of the New Zealand Bill of Rights Act 1990.

Other Legislative Initiatives

The Human Rights Act

There has been consideration of expanding other legislative avenues to address the problem of “dangerous” speech. The first avenue lies in the Human Rights Act which prohibits the incitement of disharmony on the basis of race, ethnicity, colour or national origins. One of the recent criticisms of the legislation is that it does not apply to incitement for reasons of religion, gender, disability or sexual orientation.[14]

Before considering whether such changes need to be made – a different consideration to whether they should be made – it is important to understand how the Human Rights Act works in practice. The Act prohibits a number of discriminatory practices in relation to various activities and services.[15] It also prohibits indirect discrimination which is an effects based form of activity.[16] Victimisation or less favourable treatment based on making certain disclosures is prohibited.[17] Discrimination in advertising along with provisions dealing with sexual or racial harassment are the subject of provisions.[18]

The existing provisions relating to racial disharmony as a form of discrimination and racial harassment are contained in section 61 and 63 of the Act.[19]

There are two tests under section 61. One is an examination of the content of the communication. Is it threatening, abusive or insulting? If that has been established the next test is to consider whether it is:

  1. Likely to excite hostility against or
  2. Bring into contempt

Any group of persons either in or coming to New Zealand on the ground of colour, race or ethnic or national origins.

These provisions could well apply to “dangerous speech”. Is it necessary, therefore, to extend the existing categories in section 61 to include religion, gender, disability or sexual orientation.

Religion

Clearly if one were to add religion, threatening, abusive or insulting language about adherents of the Islamic faith would fall within the first limb of the section 61(1) test. But is it necessary that religion be added? And should this be simply because a religious group was targeted?

The difficulty with including threatening, abusive or insulting language against groups based upon religion means that not only would Islamaphobic “hate speech” be caught, but so too would the anti-Christian, anti-West, anti “Crusader” rhetoric of radical Islamic jihadi groups be caught. Would the recent remarks by Winston Peters condemning the implementation of strict sharia law in Brunei that would allow the stoning of homosexuals and adulterers be considered speech that insults members of a religion?[20]

A further difficulty with religious-based speech is that often there are doctrinal differences that can lead to strong differences of opinion that are strongly voiced. Often the consequences for doctrinal heresy will be identified as having certain consequences in the afterlife. Doctrinal disputes, often expressed in strong terms, have been characteristics of religious discourse for centuries. Indeed the history of the development of the freedom of expression and the freedom of the press was often in the context of religious debate and dissent.

It may well be that to add a category of religion or religious groups will have unintended consequences and have the effect of stifling or chilling debate about religious belief.

An example of the difficulty that may arise with restrictions on religious speech may be demonstrated by the statement “God is dead.” This relatively innocuous statement may be insulting or abusive to members of theist groups who would find a fundamental aspect of their belief system challenged. For some groups such a statement may be an invitation to violence against the speaker. Yet the same statement could be insulting or abusive to atheists as well simply for the reason that for God to be dead presupposes the existence of God which challenges a fundamental aspect of atheist belief.

This example illustrates the danger of placing religious discourse into the unlawful categories of discrimination.

If it were to be determined that religious groups would be added to those covered by section 61, stronger wording relating to the consequences of speech should be applicable to such groups. Instead of merely “exciting hostility against” or “bring into contempt” based upon religious differences perhaps the wording should be “advocating and encouraging physical violence against..” .

This would have the effect of being a much stronger test than exists at present under section 61 and recognizes the importance of religious speech and doctrinal dispute.

Gender, Disability or Sexual Orientation

The Human Rights Act already has provisions relating to services-based discrimination on these additional grounds. The question is whether or not there is any demonstrated need to extend the categories protected under section 61 to these groups.

Under the current section 61 test, any threatening, abusive or insulting language directed towards or based upon gender, disability or sexual orientation could qualify as “hate speech” if the speech was likely to excite hostility against or bring into contempt a group of persons. The difficulty lies not so much with threatening language, which is generally clear and easy to determine, but with language which may be abusive or insulting.

Given the sensitivities that many have and the ease with which many are “offended” it could well be that a softer and less robust approach may be taken to what constitutes abusive or insulting language.

For this reason the test surrounding the effect of such speech needs to be abundantly clear. If the categories protected by section 61 are to be extended there must be a clear causative nexus between the speech and the exciting of hostility or the bringing into contempt. Alternatively the test could be strengthened as suggested above to replace the test of exciting hostility or bringing into contempt with “advocating and encouraging physical violence against..”

It should be observed that section 61 covers groups that fall within the protected categories. Individuals within those groups have remedies available to them under the provisions of the Harmful Digital Communications Act 2015.

The Harmful Digital Communications Act 2015

The first observation that must be made is that the Harmful Digital Communications Act 2015 (HDCA) is an example of Internet Exceptionalism in that it deals only with speech communicated via electronic means. It does not cover speech that may take place in a physical public place, by a paper pamphlet or other form of non-electronic communication.

The justification for such exceptionalism was considered by the Law Commission in the Ministerial Briefing Paper.[21] It was premised upon the fact that digital information is pervasive, its communication is not time limited and can take place at any time – thus extending the reach of the cyber-bully – and it is often shared among groups with consequent impact upon relationships. These are some of the properties of digital communications systems to which I have made reference elsewhere.[22]

A second important feature of the HDCA is that the remedies set out in the legislation are not available to groups. They are available only to individuals. Individuals are defined as “natural persons” and applications for civil remedies can only be made by an “affected individual” who alleges that he or she has suffered or will suffer harm as a result of a digital communication.[23] Under section 22 – the offence section – the victim of an offence is the individual who is the target of a posted digital communication.[24]

The HDCA provides remedies for harmful digital communications. A harmful digital communication is one which

  1. Is a digital communication communicated electronically and includes any text message, writing, photograph, picture, recording, or other matter[25]
  2. Causes harm – that is serious emotional distress

In addition there are ten communications principles[26]. Section 6(2) of the Act requires the Court to take these principles into account in performing functions or exercising powers under the Act.

For the purposes of a discussion about “dangerous speech” principles 2, 3, 8 and 10 are relevant. Principle 10 extends the categories present in section 61 of the Human Rights Act to include those discussed above.

The reason for the difference is that the consequences of a harmful digital communication are more of an individual and personal nature. Harm or serious emotional distress must be caused. This may warrant an application for an order pursuant to section 19 of the Act – what may be described as a civil enforcement order. A precondition to an application for any of the orders pursuant to section 19 is that the matter must be considered by the Approved Agency – presently Netsafe.[27] If Netsafe is unable to resolve the matter, then it is open to the affected individual to apply to the District Court.

The orders that are available are not punitive but remedial in nature. They include an order that the communication be taken down or access to it be disabled; that there be an opportunity for a reply or for an apology; that there be a form of restraining order so that the defendant is prohibited from re-posting the material or encouraging others to do so.

In addition orders may be made against online content hosts requiring them to take material down along with the disclosure of the details and particulars of a subscriber who may have posted a harmful digital communication. Internet Service Providers (described in the legislation as IPAPs) may be required to provide details of an anonymous subscriber to the Court.

It should be noted that the element of intending harm need not be present on the part of the person posting the electronic communication. In such a situation the material is measured against the communications principles along with evidence that the communication has caused serious emotional distress.

Section 22 – Causing harm by posting a digital communication

The issue of intentional causation of harm is covered by section 22 of the Act. A mixed subjective-objective test that is required for an assessment of content. The elements necessary for an offence under section 22 HDCA are as follows:

A person must post a digital communication with a specific intention – that it cause harm to a victim;

It must be proven that the posting of the communication would cause harm to an ordinary reasonable person in the position of the victim;

Finally, the communication must cause harm to the victim.

Harm is defined as serious emotional distress. In addition the Court may take a number of factors into account in determining whether a post may cause harm

  1. the extremity of the language used:
  2. the age and characteristics of the victim:
  3. whether the digital communication was anonymous:
  4. whether the digital communication was repeated:
  5. the extent of circulation of the digital communication:
  6. whether the digital communication is true or false:
  7. the context in which the digital communication appeared.

The requirement that harm be intended as well as caused has been the subject of some criticism. If there has been an intention to cause harm, is it necessary that there be proof that harm was caused? Similarly, surely it is enough that harm was caused even if it were not intended?

As to the first proposition it must be remembered that section 22 criminalises a form of expression. The Law Commission was particularly concerned that the bar should be set high, given the New Zealand Bill of Rights Act 1990 provisions in section 14 regarding freedom of expression. If expression is to be criminalized the consequences of that expression must warrant the involvement of the criminal law and must be accompanied by the requisite mens rea or intention.

As to the second proposition, the unintended causation of harm is covered by the civil enforcement provisions of the legislation. To eliminate the element of intention would make the offence one of strict liability – an outcome reserved primarily for regulatory or public interest types of offence.

The Harmful Digital Communications Act and “Dangerous Speech”

Could the HDCA in its current form be deployed to deal with “dangerous speech”. The first thing to be remembered is that the remedies in the legislation are available to individuals. Thus if there were a post directed towards members of a group, an individual member of that group could consider proceedings.

Would that person be “a victim” within the meaning of section 22? It is important to note that the indefinite article is used rather than the definite one. Conceivably if a post were made about members of a group the collective would be the target of the communication and thus every individual member of that collective could make a complaint and claim to be a target of the communication under section 22(4).

To substantiate the complaint it would be necessary to prove that the communication caused serious emotional distress[28] which may arise from a cumulation of a number of factors.[29] Whether the communication fulfilled the subjective\objective test in section 22(1)(b) would, it is suggested, be clear if the communication amounted to “hate speech”, taking into account the communications principles, along with the factors that should be taken into account in section 22(2)((a) – (g). The issue of intention to cause harm could be discerned either directly or by inference from the nature of the language used in the communication.

In addition it is suggested that the civil remedies would also be available to a member of a group to whom “dangerous speech” was directed. Even although a group may be targeted, an individual member of the group would qualify as an affected individual if serious emotional distress were suffered. A consideration of the communications principles and whether or not the communication was in breach of those principles would be a relatively straightforward matter of interpretation.

The Harmful Digital Communications Act in Action

Although the principal target of the legislation was directed towards cyber-bullying by young people, most of the prosecutions under the Act have been within the context of relationship failures or breakdowns and often have involved the transmission of intimate images or videos – a form of what the English refer to as “revenge porn”. There have been a relatively large number of prosecutions under section 22 – something that was not anticipated by the Law Commission in its Briefing Paper.[30]

Information about the civil enforcement process is difficult to obtain. Although the Act is clear that decisions, including reasons, in proceedings must be published.[31] There are no decisions available on any website to my knowledge.

From my experience there are two issues that arise regarding the civil enforcement process. The first is the way the cases come before the Court. When the legislation was enacted the then Minister of Justice, Judith Collins, considered that the Law Commission recommendation that there be a Communications Tribunal to deal with civil enforcement applications was not necessary and that the jurisdiction under the legislation would form part of the normal civil work of the District Court.

Because of pressures on the District Court, civil work does not receive the highest priority and Harmful Digital Communications applications take their place as part of the ordinary business of the Court. This means that the purpose of the Act in providing a quick and efficient means of redress for victimsis not being fulfilled. [32]  One case involving communications via Facebook in January of 2017 has been the subject of several part-heard hearings and has yet to be concluded. Even if the Harmful Digital Communications Act is not to be deployed to deal with “dangerous speech”, it is suggested that consideration be given to the establishment of a Communications Tribunal as suggested by the Law Communication so that hearings of applications can be fast-tracked.

The second issue surrounding the civil enforcement regime involves that of jurisdiction over off-shore online content hosts such as Facebook, Twitter, Instagram and the like. Although Facebook and Google have been cited as parties and have been served in New Zealand, they do not acknowledge the jurisdiction of the Court but nevertheless indicate a willingness to co-operate with requests made by the Court without submitting to the jurisdiction of the Court.

In my view the provisions of Subpart 3 of Part 6 of the District Court Rules would be applicable. These provisions allow service outside New Zealand as a means of establishing the jurisdiction of the New Zealand Courts. The provisions of Rule 6.23 relating to service without leave are not applicable and, as the law stands, the leave of the Court would have to be sought to serve an offshore online content host. This is a complex process that requires a number of matters to be addressed about a case before leave may be granted. Once leave has been granted there may be a protest to the jurisdiction by the online content host before the issue of jurisdiction could be established.

One possible change to the law might be an amendment to Rule 6.23 allowing service of proceedings under the HDCA without the leave of the Court. There would still be the possibility that there would be a protest to the jurisdiction but if that could be answered it would mean that the Courts would be able to properly make orders against offshore online content hosts.

Are Legislative Changes Necessary?

It will be clear by now that the law relating to “dangerous speech” in New Zealand does not require major widespread change or reform. What changes may be needed are relatively minor and maintain the important balance contained in the existing law between protecting citizens or groups from speech that is truly harmful and ensuring that the democratic right to freedom of expression is preserved.

The Importance of Freedom of Expression

The New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990 (NZBORA) provides at section 14

“Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”

This right is not absolute. It is subject to section 5 which provides “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Section 4 reinforces the concept of Parliamentary supremacy. If a specific piece of legislation conflicts or is inconsistent with NZBORA, the specific piece of legislation prevails. Thus, specific pieces of legislation which impose restrictions or limitations upon freedom of expression – such as the Human Rights Act 1993 and the Harmful Digital Communications Act 2015 – prevail although if an enactment can be given a meaning that is consistent with the rights and freedoms contained in NZBORA, that meaning shall be preferred to any other meaning.[33]

This then provides a test for considering limitations or restrictions on the rights under NZBORA. Limitations must be reasonable and must be demonstrably justified within the context of a free and democratic society.

Thus, when we consider legislation that may impinge upon or limit the freedom of expression the limitation must be

  1. Reasonable
  2. Demonstrably justified
  3. Yet recognizing that we live in a free and democratic society.

The justified limitations test contains within it a very real tension. On the one hand there is a limitation on a freedom. On the other there is a recognition of freedom in that we live in a free and democratic society. I would suggest that although NZBORA does not use this language, the emphasis upon a free and democratic society, and the requirement of reasonableness and demonstrable justification imports an element of necessity. Is the limitation of the freedom necessary?

The problem with freedom of expression is that it is elusive. What sort of limitations on the freedom of expression may be justified?

Freedom of Expression in Practice

The reality with freedom of expression is that it is most tested when we hear things with which we disagree. It is not limited to the comfortable space of agreeable ideas.

Salman Rushdie said that without the freedom to offend the freedom of expression is nothing. Many critics of current debates seem to conflate the freedom to express those ideas with the validity of those ideas, and their judgement on the latter means that they deny the freedom to express them.

The case of Redmond-Bate v DPP[34]  [1999] EWHC Admin 733 was about two women who were arrested for preaching on the steps of a church. Sedley LJ made the following comments:[35]

“I am unable to see any lawful basis for the arrest or therefore the conviction. PC Tennant had done precisely the right thing with the three youths and sent them on their way. There was no suggestion of highway obstruction. Nobody had to stop and listen. If they did so, they were as free to express the view that the preachers should be locked up or silenced as the appellant and her companions were to preach. Mr. Kealy for the prosecutor submitted that if there are two alternative sources of trouble, a constable can properly take steps against either. This is right, but only if both are threatening violence or behaving in a manner that might provoke violence. Mr. Kealy was prepared to accept that blame could not attach for a breach of the peace to a speaker so long as what she said was inoffensive. This will not do. Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy.”

One way of shutting down debate and the freedom of expression is to deny a venue, as we have seen in the unwise decision of Massey University Vice Chancellor Jan Thomas to deny Mr Don Brash a chance to speak on campus. The Auckland City did the same with the recent visit by speakers Lauren Southern and Stefan Molyneux.

Lord Justice Sir Stephen Sedley (who wrote the judgement in Redmond-Bate v DPP above) writing privately, commented on platform denial in this way:

” A great deal of potentially offensive speech takes place in controlled or controllable forums – schools, universities, newspapers, broadcast media – which are able to make and enforce their own rules. For these reasons it may be legitimate to criticise a periodical such as Charlie Hebdo for giving unjustified offence – for incivility, in other words – without for a moment wanting to see it or any similarly pungent periodical penalised or banned. Correspondingly, the “no platform” policies adopted by many tertiary institutions and supported in general by the National Union of Students are intended to protect minorities in the student body from insult or isolation. But the price of this, the stifling of unpopular or abrasive voices, is a high one, and it is arguable that it is healthier for these voices to be heard and challenged. Challenge of course brings its own problems: is it legitimate to shout a speaker down? But these are exactly the margins of civility which institutions need to think about and manage. They are not a justification for taking sides by denying unpopular or abrasive speakers a platform.”[36]

So the upshot of all this is that we should be careful in overreacting in efforts to control, monitor, stifle or censor speech with which we disagree but which may not cross the high threshold of “dangerous speech”. And certainly be careful in trying to hobble the Internet platforms and the ISPs. Because of the global distributed nature of the Internet it would be wrong for anyone to impose their local values upon a world wide communications network. The only justifiable solution would be one that involved international consensus and a recognition of the importance of freedom of expression.

Conclusion

The function of government is to protect its citizens from harm and to hold those who cause harm accountable. By the same token a free exchange of ideas is essential in a healthy and diverse democracy. In such a way diversity of opinion is as essential as the diversity of those who make up the community.

I have posited a solution that recognizes and upholds freedom of expression and yet recognizes that there is a threshold below which untrammeled freedom of expression can cause harm. It is when expression falls below that threshold that the interference of the law is justified,

I have based my proposal upon a term based upon an identifiable and objective consequence – speech which is dangerous – rather than the term “hate speech”. Indeed there are some who suggest that mature democracies should move beyond “hate speech” laws.[37] Ash suggests that it is impossible to reach a conclusive verdict upon the efficacy of “hate speech” laws and suggests that there is scant evidence that mature democracies with extensive hate speech laws manifest any less racism, sexism or other kinds of prejudice than those with few or no such laws.[38] Indeed, it has been suggested that the application of “hate speech” laws has been unpredictable and disproportionate. A further problem with “hate speech” is that they tend to encourage people to take offence rather than learn to live with the fact that there is a diversity of opinions, or ignore it or deal with it by speaking back – preferably with reasoned argument rather than veto statements.

It is for this reason that I have approached the problem from the perspective of objective, identifiable harm rather than wrestling with the very fluid concept of “hate speech.” For that I may be criticized for ducking the issue. The legal solution proposed is a suggested way of confronting the issue rather than ducking it. It preserves freedom of expression as an essential element of a healthy and functioning democracy yet recognizes that there are occasions when individuals and members of groups may be subjected to physical danger arising from forms of expression.

What is essential is that the debate should be conducted in a measured, objective and unemotive manner. Any interference with freedom of expression must be approached with a considerable degree of care. An approach based upon an objectively identifiable danger rather than an emotive concept such as “hate” provides a solution.

[1] Presumably on the grounds that they depict, promote or encourage crime or terrorism or that the publication is injurious to the public good. See the definition of objectionable in the Films Videos and Publications Classification Act 1993

[2] Timothy Garton Ash Free Speech: Ten Principles for a Connected World (Atlantic Books, London 2016) p. 211

[3] US v Schwimmer 279 US 644 (1929)

[4] Daphne Patai Heterophobia: sexual harassment and the future of feminism (Rowman and Littlefield, Lanham 1998).

[5] See Irving v Penguin Books Ltd [2000] EWHC  QB 115.

[6] Jeremy Waldron The Harm in Hate Speech (Harvard University Press, Cambridge 2012 p. 120.

[7] Beauharnais v Illinois 343 US 250 (1952).

[8] Section 307A reads as follows:

307A 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).

[9] [2013] DCR 482. For a full discussion of this case see David Harvey Collisions in the Digital Paradigm: Law and rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) at p. 268 and following.

[10] Police v Joseph above at [2].

[11] Ibid at [7].

[12] [2011] NZSC 45.

[13] Ibid at para [123].

[14] See Human Rights Commission chief legal advisor Janet Bidois quoted in Michelle Duff “Hate crime law review fast-tracked following Christchurch mosque shootings” Stuff 30 March 2019. https://www.stuff.co.nz/national/christchurch-shooting/111661809/hate-crime-law-review-fasttracked-following-christchurch-mosque-shooting

[15] Human Rights Act 1993 sections 21 – 63.

[16] Ibid section 65.

[17] Ibid section 66

[18] Ibid sections 67 and 69.

[19] The provisions of section 61(1) state:

(1)           It shall be unlawful for any person—

(a)           to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or

(b)           to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or

(c)            to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,—

being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

It should be noted that Internet based publication is encompassed by the use of the words “or other electronic communication”.

[20] Derek Cheng “Winston Peters criticizes Brunei for imposing strict Sharia law” NZ Herald 31 March 2019 https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12217917

[21] New Zealand Law Commission Ministerial Briefing Paper Harmful Digital Communications:The adequacy of the current sanctions and remedies. (New Zealand Law Commission, Wellington, August 2012) https://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20MB3.pdf (last accessed 26 April 2019)

[22] See David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet (Hart Publishing, Oxford, 2017) especially at Chapter 2

[23] Harmful Digital Communications Act 2015 section 11.

[24] Harmful Digital Communications Act 2015 section 22(4).

[25] It may also include a consensual or non-consensual intimate video recording

[26] Harmful Digital Communications Act 2015 section 6. These principles are as follows:

Principle 1  A digital communication should not disclose sensitive personal facts about an individual.

Principle 2  A digital communication should not be threatening, intimidating, or menacing.

Principle 3  A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.

Principle 4 A digital communication should not be indecent or obscene.

Principle 5  A digital communication should not be used to harass an individual.

Principle 6  A digital communication should not make a false allegation.

Principle 7  A digital communication should not contain a matter that is published in breach of confidence.

Principle 8  A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.

Principle 9  A digital communication should not incite or encourage an individual to commit suicide.

Principle 10 A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

[27] http://netsafe.org.nz

[28] Harmful Digital Communications Act Section 22(1)(c)

[29] See Police v B [2017] NZHC 526.

[30] For some of the statistics on prosecutions under the Act see Nikki MacDonald “Revenge Porn: Is the Harmful Digital Communications Act Working?” 9 March 2019 https://www.stuff.co.nz/national/crime/110768981/revenge-porn-is-the-harmful-digital-communications-act-working

[31] Harmful Digital Communications Act Section 16(4)

[32] Harmful Digital Communications Act Section 3(b)

[33] See New Zealand Bill of Rights Act section 6. Note also that the Harmful Digital Communications Act provides at section 6 that in performing its functions or exercising powers under the Act the Approved Agency and the Courts must act consistently with the rights and freedoms provided in NZBORA.

[34] [1999] EWHC Admin 733.

[35] Ibid at  para [20].

[36] Stephen Sedley Law and the Whirligig of Time (Hart Publishing, Oxford, 2018) p. 176-177. The emphasis is mine.

[37] For example see Timothy Garton Ash Free Speech: Ten Principles for a Connected World (Atlantic, London 2016) especially at 219 and following.

[38] Ibid.

Do Social Network Providers Require (Further?) Regulation – A Commentary

This is a review and commentary of the Sir Henry Brooke Student Essay Prize winning essay for 2019. The title of the essay topic was “Do Social Network Providers Require (Further?) Regulation

Sir Henry Brooke was a Court of Appeal judge in England. He became a tireless campaigner during retirement on issues including access to justice. His post-judicial renown owed much to his enthusiastic adoption of digital technology although he spear-headed early initiatives for technology in courts and led and was first Chair of the British and Irish Legal Information Institute (BAILII) – a website that provides access to English and Irish case and statute law. Upon his retirement many came to know of him through his blog and tweets. He drafted significant sections of the Bach Commission’s final report on access to justice, and also acted as patron to a number of justice organisations including the Public Law Project, Harrow Law Centre and Prisoners Abroad.

The SCL (Society for Computers and Law) Sir Henry Brooke Student Essay Prize honours his legacy.  For 2019 the designated essay question this year was 2000-2,500 words on the prompt “Do social network providers require (further?) regulation?” the winner was Robert Lewis from the University of Law. His essay considers some of the regulatory responses to social media. His starting point is the events of 15 March 2019 in Christchurch.

The first point that he makes is that

“(h)orrors such as Christchurch should be treated cautiously: they often lead to thoughtless or reflexive responses on the part of the public and politicians alike.”

One of his concerns is the possibility of regulation by outrage, given the apparent lack of accountability of social networking platforms.

He then goes on to examine some examples of legislative and legal responses following 15 March and demonstrates the problem with reflexive responses. He starts with the classification of the live stream footage and the manifesto posted by the alleged shooter. He referred to a warning by the Department of Internal Affairs that those in possession of the material should delete it.

He then examines some of the deeper ramifications of the decision. Classification instantly rendered any New Zealander with the video still in his computer’s memory cache, or in any of his social media streams, knowingly or not, potentially guilty of a criminal offence under s.131 of Films Videos and Publications Classification Act 1993. He comments

“Viewing extracts of  the footage shown on such websites was now illegal in New Zealand, as was the failure to have adequately wiped your hard drive having viewed the footage prior to its classification. A significant proportion of the country’s population was, in effect, presented with a choice: collective self-censorship or criminality.”

Whilst he concedes that the decision may have been an example of civic responsibility, in his opinion it did not make good law. Mr. Lewis points out that the legislation was enacted in 1993 just as the Internet was going commercial. His view is that the law targets film producers, publishers and commercial distributors, pointing out that

“these corporate entities have largely been supplanted by the social network providers who enjoy broad exemptions from the law, which has instead been inverted to criminalise “end users”, namely the public which the law once served to protect.”

He also made observations about the maximum penalties which are minimal against the revenue generated by social media platforms.

He then turned his attention to the case of the arrest of a 22 year old man charged with sharing the objectionable video online. He commented that

“that faced with mass public illegality, and a global corporation with minimal liability, New Zealand authorities may have sought to make an example of a single individual. Again, this cannot be good law.”

Mr. Lewis uses this as a springboard for a discussion about the “safe harbor” provisions of the Communications Decency Act (US) and EU Directive 2000/31/EC, which created the “safe harbour” published or distributed.

Mr Lewis gives a telling example of some of the difficulties encountered by the actions of social media platforms in releasing state secrets and the use of that released information as evidence in unrelated cases. He observes

“The regulatory void occupied by social network providers neatly mirrors another black hole in Britain’s legal system: that of anti-terrorism and state security. The social network providers can be understood as part of the state security apparatus, enjoying similar privileges, and shrouded in the same secrecy. The scale of their complicity in data interception and collection is unknown, as is the scale and level of the online surveillance this apparatus currently performs. The courts have declared its methods unlawful on more than one occasion and may well do so again.”

A theme that becomes clear from his subsequent discussion is that the current situation with apparently unregulated social media networks is evidence of a collision between the applicability of the law designed for a pre-digital environment and the challenges to the expectations of the applicability of the law in the digital paradigm. For example, he observes that

“The newspapers bear legal responsibility for their content. British television broadcasters are even under a duty of impartiality and accuracy. In contrast, social network providers are under no such obligations. The recent US Presidential election illustrates how invidious this is.”

He also takes a tilt at those who describe the Internet as “the Wild West”.

“This is an unfortunate phrase. The “wild west” was lawless: the lands of the American west, prior to their legal annexation by the United States, were without legal systems, and any pre-annexation approximation of one was illegal in and of itself. In contrast, the social network providers reside in highly developed, and highly regulated, economies where they are exempted from certain legal responsibilities. These providers have achieved enormous concentrations of capital and political influence for precisely this reason.”

He concludes with the observation that unlawful behaviour arises from a failure to apply the law as it exists and ends with a challenge:

“ In England, this application – of a millennium-old common law tradition to a modern internet phenomenon such as the social networks – is the true task of the technology lawyer. The alternative is the status quo, a situation where the online publishing industry has convinced lawmakers “that its capacity to distribute harmful material is so vast that it cannot be held responsible for the consequences of its own business model.””

The problem that I have with this essay is that it suggests a number of difficulties but, apart from suggesting that the solution lies in the hands of technology lawyers, no coherent solution is suggested. It cites examples of outdated laws, of the difficulty of retroactive solutions and the mixed blessings and problems accompanying social media platforms. The question really is whether or not the benefits outweigh the disadvantages that these new communications platforms provide. There are a number of factors which should be considered.

First, we must recognize that in essence social media platforms enhance and enable communication and the free exchange of ideas – albeit that they may be banal, maudlin or trivial – which is a value of the democratic tradition.

Secondly, we must recognize and should not resent the fact that social media platforms are able to monetise the mere presence of users of the service. This seems to be done in a number or what may appear to be arcane ways, but they reflect the basic concept of what Robert A. Heinlein called TANSTAFL – there ain’t no such thing as a free lunch. Users should not expect service provided by others to be absolutely free.

Thirdly, we must put aside doctrinaire criticisms of social media platforms as overwhelming big businesses that have global reach. Doing business on the Internet per se involves being in a business with global reach. The Internet extends beyond our traditional Westphalian concepts of borders, sovereignty and jurisdiction.

Fourthly, we must recognize that the Digital Paradigm by its very nature has within it various aspects – I have referred to them elsewhere as properties – that challenge and contradict many of our earlier pre-digital expectations of information and services. In this respect many of our rules which have a basis in underlying qualities of earlier paradigms and the values attaching to them are not fit for purpose. But does this mean that we adapt those rules to the new paradigm and import the values (possibly no longer relevant) underpinning them or should we start all over with a blank slate?

Fifthly, we must recognize that two of the realities in digital communications have been permissionless innovation – a concept that allows a developer to bolt an application on to the backbone – and associated with that innovation, continuous disruptive change.

These are two of the properties I have mentioned above. What we must understand is that if we start to interfere with say permissionless innovation and tie the Internet up with red tape, we may be if not destroying but seriously inhibiting the further development of this communications medium. This solution would, of course, be attractive to totalitarian regimes that do not share democratic values such as freedom of expression

Sixthly, we have to accept that disruptive change in communications methods, behaviours and values is a reality. Although it may be comfortable to yearn for a nostalgic but non-existent pre digital Golden Age, by the time such yearning becomes expressed it is already too late. If we drive focused upon the rear view mirror we are not going to recognize the changes on the road ahead. Thus, the reality of modern communications is that ideas to which we may not have been exposed by monolithic mainstream media are now being made available. Extreme views, which may in another paradigm, have been expressed within a small coterie, are now accessible to all who wish to read or see them. This may be an uncomfortable outcome for many but it does not mean that these views have only just begun to be expressed. They have been around for some time. It is just that the property of exponential dissemination means that these views are now available. And because of the nature of the Internet, many of these views may not in any event be available to all or even searchable, located, as many of them are, away from the gaze of search engines on the Dark Web.

Seventhly, it is only once we understand not only the superficial content layer but the deeper implications of the digital paradigm – McLuhan expressed it as “the medium is the message” can we begin to develop any regulatory strategies that we need to develop.

Eighthly, in developing regulatory strategies we must ask ourselves whether they are NECESSARY. What evil are the policies meant to address. As I have suggested above, the fact that a few social media and digital platforms are multi-national organisations with revenue streams that are greater than the GDP of a small country is not a sufficient basis for regulation per se – unless the regulating authority wishes to maintain its particular power base. But then, who is to say that Westphalian sovereignty has not had its day. Furthermore, it is my clear view that any regulatory activity must be the minimum that is required to address the particular evil. And care must be taken to avoid the “unintended consequences” to which Mr Lewis has referred and some of which I have mentioned above.

Finally, we are faced with an almost insoluble problem when it comes to regulation in the Digital Paradigm. It is this. The legislative and regulatory process is slow although the changes to New Zealand’s firearms legislation post 15 March could be said to have been done with unusual haste. The effect has been that the actions of one person have resulted in relieving a large percentage of the population of their lawfully acquired property. Normally the pace of legislative or regulatory change normally is slow, deliberative and time consuming.

On the other hand, change in the digital paradigm is extremely fast. For example, when I started my PhD thesis in 2004 I contemplated doing something about digital technologies. As it happens I didn’t and looked at the printing press instead. But by the time my PhD was conferred, social media happened. And now legislators are looking at social media as if it was new but by Internet standards it is a mature player. The next big thing is already happening and by the time we have finally worked out what we are going to do about social media, artificial intelligence will be demanding attention. And by the time legislators get their heads around THAT technology in all its multiple permutations, some thing else – perhaps quantum computing – will be with us.

I am not saying therefore that regulating social media should be put in the “too hard” basket but that what regulation there is going to be must be focused, targeted, necessary, limited to a particular evil and done with a full understanding of the implications of the proposed regulatory structures.

Memory Illusions and Cybernannies

A while back I read a couple of very interesting books. One was Dr Julia Shaw’s The Memory Illusion. Dr. Shaw describes herself as a “memory hacker” and has a You Tube presence where she explains a number of the issues that arise in her book.

The other book was The Cyber Effect by Dr Mary Aiken who reminds us on a number of occasions in every chapter that she is a trained cyberpsychologist and cyberbehavioural specialist and who was a consultant for CSI-Cyber which, having watched a few episodes, I abandoned. Regrettably I don’t see that qualification as a recommendation, but that is a subjective view and I put it to one side.

Both books were fascinating. Julia Shaw’s book in my view should be required reading for lawyers and judges. We place a considerable amount of emphasis upon memory assisted by the way in which a witness presents him or herself -what we call demeanour. Demeanour has been well and truly discredited by Robert Fisher QC in an article entitled “The Demeanour Fallacy” [2014] NZ Law Review 575. The issue has already been covered by  Chris Gallavin in a piece entitled “Demeanour Evidence as the backbone of the adversarial process” Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-adversarial-process

A careful reading of The Memory Illusion is rewarding although worrisome. The chapter on false memories, evidence and the way in which investigators may conclude that “where there is smoke there is fire” along with suggestive interviewing techniques is quite disturbing and horrifying at times.

But the book is more than that, although the chapter on false memories, particularly the discussions about memory retrieval techniques, was very interesting. The book examines the nature of memory and how memories develop and shift over time, often in a deceptive way. The book also emphasises how the power of suggestion can influence memory. What does this mean – that everyone is a liar to some degree? Of course not. A liar is a person who tells a falsehood knowing it to be false. Slippery memory, as Sir Edward Coke described it, means that what we are saying we believe to be true even although, objectively it is not.

A skilful cross-examiner knows how to work on memory and highlight its fallibility. If the lawyer can get the witness in a criminal trial to acknowledge that he or she cannot be sure, the battle is pretty well won. But even the most skilful cross-examiner will benefit from a reading of The Memory Illusion. It will add a number of additional arrows to the forensic armoury. For me the book emphasises the risks of determining criminal liability on memory or recalled facts alone. A healthy amount of scepticism and a reluctance to take an account simply and uncritically at face value is a lessor I draw from the book.

The Cyber Effect is about how technology is changing human behaviour. Although Dr Aiken starts out by stating the advantages of the Internet and new communications technologies, I fear that within a few pages the problems start with the suggestion that cyberspace is an actual place. Although Dr Aiken answers unequivocally in the affirmative it clearly is not. I am not sure that it would be helpful to try and define cyberspace – it is many things to many people. The term was coined by William Gibson in his astonishingly insightful Neuromancer and in subsequent books Gibson imagines the network (I use the term generically) as a place. But it isn’t. The Internet is no more and no less than a transport system to which a number of platforms and applications have been bolted. Its purpose –  Communication. But it is communication plus interactivity and it is that upon which Aiken relies to support her argument. If that gives rise to a “place” then may I congratulate her imagination. The printing press – a form of mechanised writing that revolutionised intellectual activity in Early-modern Europe – didn’t create a new “place”. It enabled alternative means of communication. The Printing Press was the first Information Technology. And it was roundly criticised as well.

Although the book purports to explain how new technologies influence human behaviour it doesn’t really offer a convincing argument. I have often quoted the phrase attributed to McLuhan – we shape our tools and thereafter our tools shape us – and I was hoping for a rational expansion of that theory. It was not to be. Instead it was a collection of horror stories about how people and technology have had problems. And so we get stories of kids with technology, the problems of cyberbullying, the issues of on-line relationships, the misnamed Deep Web when she really means the Dark Web – all the familiar tales attributing all sorts of bizarre behaviours to technology – which is correct – and suggesting that this could become the norm.

What Dr Aiken fails to see is that by the time we recognise the problems with the technology it is too late. I assume that Dr Aiken is a Digital Immigrant, and she certainly espouses the cause that our established values are slipping away in the face of an unrelenting onslaught of cyber-bad stuff. But as I say, the changes have already taken place. By the end of the book she makes her position clear (although she misquotes the comments Robert Bolt attributed to Thomas More in A Man for All Seasons which the historical More would never have said). She is pro-social order in cyberspace, even if that means governance or regulation and she makes no apology for that.

Dr Aiken is free to hold her position and to advocate it and she argues her case well in her book. But it is all a bit unrelenting, all a bit tiresome these tales of Internet woe. It is clear that if Dr Aiken had her way the very qualities that distinguish the Digital Paradigm from what has gone before, including continuous disruptive and transformative change and permissionless innovation, will be hobbled and restricted in a Nanny Net.

For another review of The Cyber Effect see here

The Marketplace of Ideas

I read Lizzie Marvelly’s “Words can hurt like sticks and stones” in the Herald for Saturday 8 April with interest. The theme of her argument is that with rights – such as the freedom of speech – come responsibilities. There is no difficulty with that. However, some of the arguments advanced must give cause for pause. What seems to be the substance of the argument is that there is freedom of speech – up to a point.

A recent statement of concern by Professor Paul Moon and a number of other prominent New Zealanders seems to have prompted the article. It is perhaps a little bit disappointing that Ms Marvelly devalues her argument adopting a note of disdain when she refers to this group describing them as a “fusty group of signatories of Moon’s missive – many of whom are long past their student days and unlikely to have faced either online abuse or the dangerous rhetoric of groups like the neo-masculinists or the alt-right.”

Further she seems to be critical the provisions of s. 14 of the New Zealand Bill of Rights Act 1990, suggesting that the freedom of expression – to seek, receive AND impart information – could not have contemplated the democratisation of expression enabled by online platforms.

Of course the history of freedom of expression goes much further back than  1990. And it has been involved with technology. The invention and use of the printing press was as revolutionary for the imparting of ideas as social media is today. In enabled the spread of the radical (and very controversial and unpopular) ideas of Martin Luther that led to the Reformation. And it attracted official interest from the beginning. The expression of dissent, be it religious or political, was severely suppressed in the days of the Tudors, the early and later Stuarts and the Commonwealth in England. The savage treatment visited upon those who expressed unpopular views is well recorded.

The move to a recognition of the freedom of speech came from the experiences of repressive tyrannies both in England and in the American colonies. The First Amendment to the United States Constitution arose as a response to the repressive conduct of the colonial power and to guarantee robust and open debate. Thomas Jefferson referred to the marketplace of ideas which freedom of speech enabled and within which ideas of doubtful or dubious value would fail.

I agree with Ms Marvelly that there are risks associated with the expression of an opinion. The contrary view may be expressed. That is what happens in the market place of ideas. But the marketplace should not be shut down just because some of the ideas may be controversial.  And that is the problem. In the same way that a person has the right to express a point of view, so a potential audience has a right not to listen. They need not even examine what is on offer in the marketplace. But the important thing is that the idea, however controversial – even repugnant – should be expressed and, in accordance with the Bill of Rights Act there is a right to receive those ideas. It is up to the audience to choose whether or not to accept or endorse them.

The real test of one’s commitment to freedom of expression is in being willing to allow the expression of those views with which we do not agree. As Justice Oliver Wendell Holmes said in United States v Schwimmer 279 US 644 (1929) “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” The last phrase is the title of an excellent book which Ms Marvelly may profit from reading.

But the New Zealand Herald became the market place of ideas on this particular topic. Not only did it publish Ms Marvelly’s qualified approach to freedom of expression. It also published (Herald on Sunday 9 April 2017) a more expansive view of the freedom of expression by Heather du Plessis-Allan entitled “Being Offensive is not a Crime” concerned with abrogation of free expression (she calls them shout-downs) and the theme of that article is that there is no right NOT to be offended. Indeed Salman Rushdie, whom Ms du Plessis-Allan quotes at the end of her article said “what is freedom of expression? Without the freedom to offend it ceases to exist.” And then of course there is the article that started it all – “Free Speech Under Threat in NZ Universities” – in the Herald for 4 April 2014.

The abrogation of the freedom of expression, even partially, even if voluntarily assumed, is a burden on liberty. So I guess when I shop in the marketplace of ideas I prefer the more robust approach of Professor Moon and Ms du Plessis-Allan.

But by the same token it is fortunate and we should be grateful that we live in a society where the ideas expressed by Ms Marvelly were and are available for consideration.

Back to the Future – Google Spain and the Restoration of Partial and Practical Obscurity

Arising from the pre-digital paradigm are two concepts that had important implications for privacy. Their continued validity as a foundation for privacy protection has been challenged by the digital paradigm. The terms are practical and partial obscurity which are both descriptive of information accessibility and recollection in the pre-digital paradigm and of a challenge imposed by the digital paradigm, especially for privacy.  The terms, as will become apparent, are interrelated.

Practical obscurity refers to the quality of availability of information which may be of a private or public nature[1].  Such information is usually in hard copy format, may be indexed, is in a central location or locations, is frequently location-dependent in that the information that is in a particular location will refer only to the particular area served by that location, requires interaction with officials or bureaucrats to locate the information and, finally, in terms of accessing the information, requires some knowledge of the particular file within which the information source lies. Practical obscurity means that information is not indexed on key words or key concepts but generally is indexed on the basis of individual files or in relation to a named individual or named location.  Thus, it is necessary to have some prior knowledge of information to enable a search for the appropriate file to be made.

 Partial obscurity addresses information of a private nature which may earlier have been in the public arena, either in a newspaper, television or radio broadcast or some other form of mass media communication whereby the information communicated is, at a later date, recalled in part but where, as the result of the inability of memory to retain all the detail of all of the information that has been received by an individual, has become subsumed.  Thus, a broad sketch of the information renders the details obscure, only leaving the major heads of the information available in memory, hence the term partial obscurity.  To recover particulars of the information will require resort to film, video, radio or newspaper archives, thus bringing into play the concepts of practical obscurity. Partial obscurity may enable information which is subject to practical obscurity to be obtained more readily because some of the informational references enabling the location of the practically obscure information can be provided.

The Digital Paradigm and Digital Information Technologies challenge these concepts. I have written elsewhere about the nature of the underlying properties or qualities of the digital medium that sits beneath the content or the “message”. Peter Winn has made the comment “When the same rules that have been worked out for the world of paper records are applied to electronic records, the result does not preserve the balance worked out between the competing policies in the world of paper records, but dramatically alters that balance.”[2]

A property present in digital technologies and very relevant to this discussion is that of searchability. Digital systems allow the retrieval of information with a search utility that can take place “on the fly” and may produce results that are more comprehensive than a mere index. The level of analysis that may be undertaken may be deeper than mere information drawn from the text itself. Writing styles and the use of language or “stock phrases” may be undertaken, thus allowing a more penetrating and efficient analysis of the text than was possible in print.

The most successful search engine is Google which has been available since 1998.  So pervasive and popular is Google’s presence that modern English has introduced the verb “to Google” which means “To search for information about (a person or thing) using the Google search engine” or “To use the Google search engine to find information on the Internet”.[3] The ability to locate information using search engines returns us to the print based properties of fixity and preservation and also enhances the digital property of “the document that does not die”

A further property presented by digital systems is that of accessibilty. If one has the necessary equipment – a computer, modem\router and an internet connection – information is accessible to an extent not possible in the pre-digital environment. In that earlier paradigm, information was located across a number of separate media. Some had the preservative quality of print. Some, such as television or radio, required personal attendance at a set time. In some cases information may be located in a central repository like a library or archive. These are aspects of partial and practical obscurity

The Internet and convergence reverses the pre-digital activity of information seeking to one of information obtaining. The inquirer need not leave his or her home or office and go to another location where the information may be. The information is delivered via the Internet. As a result of this, with the exception of the time spent locating the information via Google, more time can be spent considering, analysing or following up the information. Although this may be viewed as an aspect of information dissemination, the means of access is revolutionarily different.

Associated with this characteristic of informational activity is the way in which the Internet enhances the immediacy of information. Not only is the inquirer no longer required to leave his or her home of place of work but the information can be delivered at a speed that is limited only by the download speed of an internet connection. Thus information which might have involved a trip to a library, a search through index cards and a perusal of a number of books or articles before the information sought was obtained, now, by means of the Internet may take a few keystrokes and mouse clicks and a few seconds for the information to be presented on screen

This enhances our expectations about the access to and availability of information. We expect the information to be available. If Google can’t locate it, it probably doesn’t exist on-line. If the information is available it should be presented to us in seconds. Although material sought from Wikipedia may be information rich, one of the most common complaints about accessability is the time that it takes to download onto a user’s computer. Yet in the predigital age a multi-contributing information resource (an encyclopedia) could only be located at a library and the time in accessing that information could be measured in hours depending upon the location of the library and the efficiency of the transport system used.

Associated with accessibility of information is the fact that it can be preserved by the user. The video file can be downloaded. The image or the text can be copied. Although this has copyright implications, substantial quantities of content are copied and are preserved by users, and frequently may be employed for other purposes such as inclusion in projects or assignments or academic papers.  The “cut and paste” capabilities of digital systems are well known and frequently employed and are one of the significant consequences of information accessibility that the Internet allows.

The “Google Spain” Decision and the “Right to Be Forgotten”

The decision of the European Court of Justice in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González, has the potential to significantly change the informational landscape enabled by digital technologies. I do not intend to analyse the entire decision but rather focus on one aspect of it – the discussion about the so-called “right to be forgotten.” The restrictions placed on Google and other search engines as opposed to the provider of the particular content demonstrates a significant inconsistency of approach that is concerning.

The complaint by Mr Gonzales was this. When an internet user entered Mr Costeja González’s name in the Google search engine of  he or she would obtain links to two pages of the La Vanguardia’s newspaper, of 19 January and 9 March 1998 respectively  In those publications was an announcement mentioning Mr Costeja González’s name related to a real-estate auction connected with attachment proceedings for the recovery of social security debts.

Mr González requested, first, that La Vanguardia be required either to remove or alter those pages so that the personal data relating to him no longer appeared or to use certain tools made available by search engines in order to protect the data.

Second, he requested that Google Spain or Google Inc. be required to remove or conceal the personal data relating to him so that they ceased to be included in the search results and no longer appeared in the links to La Vanguardia. Mr González stated in this context that the attachment proceedings concerning him had been fully resolved for a number of years and that reference to them was now entirely irrelevant.

The effect of the decision is that the Court was prepared to allow the particular information – the La Vanguardia report – to remain. The Court specifically did not require that material be removed even although the argument advanced in respect of the claim against Google was essentially the same – the attachment proceedings had been fully resolved for a number of years and that reference to them was now entirely irrelevant. What the Court did was to make it very difficult if not almost impossible for a person to locate the information with ease.

The Court’s exploration of the “right to be forgotten”  was collateral to its main analysis about privacy, yet the development of the “right to be forgotten” section was as an aspect of privacy – a form of gloss on fundamental privacy principles. The issue was framed in this way. Should the various statutory and directive provisions be interpreted as enabling Mr Gonzales to require Google to remove, from the list of results displayed following a search made for his name, links to web pages published lawfully by third parties and containing true information relating to him, on the ground that that information may be prejudicial to him or that he wishes it to be ‘forgotten’ after a certain time? It was argued that the “right to be forgotten” was an element of Mr Gonzales’ privacy rights which overrode the legitimate interests of the operator of the search engine and the general interest in freedom of information.

The Court observed that even initially lawful processing of accurate information may, in the course of time, become incompatible with the privacy directive where that information is no longer necessary in the light of the purposes for which it was originally collected or processed. That is so in particular where the purposes appear to be inadequate, irrelevant or no longer as relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.

What the Court is saying is that notwithstanding that information may be accurate or true, it may no longer be sufficiently relevant and as a result be transformed into information which is incompatible with European privacy principles. The original reasons for the collection of the data may, at a later date, no longer pertain. It follows from this that individual privacy requirements may override any public interest that may have been relevant at the time that the information was collected.

In considering requests to remove links it was important to consider whether a data subject like Mr Gonzales had a right that the information relating to him personally should, at a later point in time, no longer be linked to his name by a list of results displayed following a search based on his name. In this connection, the issue of whether or not the information may be prejudicial to the “data subject” need not be considered. The information may be quite neutral in terms of effect. The criterion appears to be one of relevance at a later date.

Furthermore the privacy rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.

One has to wonder about the use of language in this part of the decision. Certainly, the decision is couched in a very formalised and somewhat convoluted style that one would associate with a bureaucrat rather than a judge articulating reasons for a decision. But what does the Court mean when it says “as a rule”? Does it have the vernacular meaning of “usually” or does it mean what it says – that the rule is that individual privacy rights override economic interests of the search engine operator and of the general public in being able to locate information. If the latter interpretation is correct that is a very wide ranging rule indeed.

However, the Court continued, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.

Thus if a person has a public profile, for example in the field of politics, business or entertainment, there may be a higher public interest in having access to information.

Finally the Court looked at the particular circumstances of Mr Gonzales. The information reflected upon Mr Gonzales private life. Its initial publication was some 16 years ago. Presumably the fact of attachment proceedings and a real estate auction for the recovery of social security debts was no longer relevant within the context of Mr Gonzales’ life at the time of the complaint. Thus the Court held that Mr Gonzales had established a right that that information should no longer be linked to his name by means of such a list.

“Accordingly, since in the case in point there do not appear to be particular reasons substantiating a preponderant interest of the public in having, in the context of such a search, access to that information, a matter which is, however, for the referring court to establish, the Gonzales may, require those links to be removed from the list of results.”

There is an interesting comment in this final passage. The ECJ decision is on matters of principle. It defines tests which the referring Court should apply. Thus the referring Court still has to consider on the facts whether there are particular reasons that may substantiate a preponderant public interest in the information, although the ECJ stated that it did not consider such facts to be present.

Matters Arising

There are a number of issues that arise from this decision. The reference to the “right to be forgotten” is made at an early stage in the discussion but the use of the phrase is not continued. It is developed as an aspect of privacy within the context of the continued use of data acquired for a relevant purpose at one point in time, but the relevance of which may not be so crucial at a later point in time. One of the fundamental themes underlying most privacy laws is that of collection and retention of data for a particular purpose. The ECJ has introduced an element of temporal relevance into that theme.

A second issue restates what I said before. The information about the attachment proceedings and real estate sale which Mr Gonzales faced in 1998 was still “at large” on the Internet. In the interests of a consistent approach, an order should have been made taking that information down. It was that information that was Mr Gonzales’ concern. Google was a data processor that made it easy to access that information. So the reference may not appear in a Google search, but the underlying and now “irrelevant” information still remains.

A third issue relates to access to historical information and to primary data. Historians value primary data. Letters, manuscripts, records, reports from times gone by allow us to reconstruct the social setting within which people carried out their daily lives and against which the great events of the powerful and the policy makers took place. One only has to attempt to a research project covering a period say four hundred years ago to understand the huge problems that may be encountered as a result of gaps in information retained largely if not exclusively in manuscript form, most of which is unindexed. A search engine such as Google aids in the retrieval of relevant information. And it is a fact that social historians relay on the “stories” of individuals to illustrate a point or justify an hypothesis. The removal of references to these stories, or the primary data itself will be a sad loss to historians and social science researchers. What is concerning is that it is the “data subject” that is going to determine which the historical archive will contain – at least from an indexing perspective.

A fourth issue presents something of a conundrum. Imagine that A had information published about him 20 years ago regarding certain business activities that may have been controversial. Assume that 20 years later A has put all that behind him and is a respected member of the community and his activities in the past bear no relevance to his present circumstances. Conceivably, following the approach of the ECJ, he might require Google to remove search results to those events from queries on his name. Now assume a year or so later that A once again gets involved in a controversial business activity. Searches on his name would reveal the current controversy, but not the earlier one. His earlier activities would remain under a shroud – at least as far as Google searches are concerned. Yet it could be validly argued that his earlier activities are very relevant in light of his subsequent actions. How do we get that information restored to the Google search results? Does a news media organisation which has its own information resources and thus may have some “institutional memory” of the earlier event go to Google and request restoration of the earlier results?

The example I have given demonstrates how relevance may be a dynamic beast and may be a rather uncertain basis for something as elevated as a right and certainly as a basis for allowing a removal of results from a search engine as a collateral element of a privacy right.

Another interesting conundrum is presented for Mr Gonzales himself. By instituting proceedings he has highlighted the very problem that he wished to have removed from the search results. To make it worse for Mr Gonzales and his desire for the information of his 1998 activities to remain private, the decision of the ECJ has been the subject of wide ranging international comment on the decision. The ECJ makes reference to his earlier difficulties, and given that the timing of those difficulties is a major consideration in the Court’s assessment of relevance, perhaps those activities have taken on a new and striking relevance in the context of the ECJ’s decision. If Mr Gonzales wanted his name and affairs to remain difficult to find his efforts to do so have had the opposite effect, and perhaps his business problems in 1998 have achieved a new and striking relevance in the context of the ECJ’s decision which would eliminate any privacy interest he might have had but for the case.

Conclusion

But there are other aspects of the decision that are more fundamental for the communication of information and the rights to receive and impart information which are aspects of freedom of expression. What the decision does is that it restores the pre-digital concepts of partial and practical obscurity. The right to be forgotten will only be countered with the ability to be remembered, and no less a person than Sir Edward Coke in 1600 described memory as “slippery”. One’s recollection of a person or an event may modify over a period of time. The particular details of an event congeal into a generalised recollection. Often the absence of detail will result in a misinterpretation of the event.

Perhaps the most gloomy observation about the decision is its potential to emasculate the promise of the Internet and one of its greatest strengths – searchability of information –  based upon privacy premises that were developed in the pre-Internet age, and where privacy concerns involved the spectre of totalitarian state mass data collection on every citizen. In many respects the Internet presents a different scenario involving the gathering and availability of data frequently provided by the “data subject” and the properties and the qualities of digital technologies have remoulded our approaches to information and our expectations of it. The values underpinning pre-digital privacy expectations have undergone something of a shift in the “Information Age” although there are occasional outraged outbursts at incidence of state sponsored mass data gathering exploits. One wonders whether the ECJ is tenaciously hanging on to pre-digital paradigm data principles, taking us back to a pre-digital model or practical and partial obscurity in the hope that it will prevail for the future.  Or perhaps in the new Information Age we need to think again about the nature of privacy in light of the underlying qualities and properties of the Digital Paradigm.

 

[1] The term “practical obscurity” was used in the case of US Department of Justice v Reporters Committee for Freedom of the Press. 489 US 749 (1989)

[2] Peter A. Winn, Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information, (2004)79 WASH. L. REV. 307, 315

[3] Oxford English Dictionary