Unfit for Office

What appears to be a difference of opinion between Simon Wilson and Auckland Mayoral Candidate Wayne Brown is more than that. It demonstrates a fundamental difference in the purpose of Government and Governmental organisations.

Brown is reported as saying “Auckland Transport should be told they are there to service the way we live, not change the way we live.”

Wilson, for his part, sees the issue differently and in doing so outlines his ideas about the function of Government. He says of Brown’s comment:

“That’s utterly wrong. Because of the climate crisis, behavioural change is the most fundamental task we face. And because of Covid, we know it’s possible. Consumers have a role and so do corporates. But governments, central and local, must provide the framework and the leadership.

In my view, a politician who doesn’t understand that is unfit for office.”

Simon Wilson is a regular opinion writer and columnist for the New Zealand Herald. He often espouses points of view which could be described as “left of centre”. He is entitled to do that and has the added advantage of having a platform in the shape of New Zealand’s largest daily newspaper.

But by the same token others have the right to disagree with his point of view and to debate it.

It seems to me that Wilson misunderstands the role of Government. His comments about “framework” and “leadership” suggest that people are to be taken often in directions in which they may not want to go, and to work within a governmentally designed framework as they travel to whatever destination or end the government decrees. That sounds to me like government by diktat.

I see the role of government through a different lens. Government and those who participate in it, whether elected or as bureaucrats, are the servants of the people. They are there to fulfil the will of the electorate.

For that reason, before elections, politicians should clearly state what they intend to do if elected by way of a manifesto. In that way their masters, those who elect and appoint them to their governance role, are able to see if those intentions accord with the views or wishes of those who elect them. Once elected, those occupying governance position should not then, as the present Government does, pursue ideological goals or policy objectives which have not been earlier disclosed to the electorate.

Auckland Transport, the target of Mr Brown’s comment, is an unelected body. But this does not give that organization or its executives, the power to do as they like – and they have certainly been doing that in pursuing an ideology that is not in the interests of allowing people to move efficiently about the City. Auckland Transport, a publicly funded Council controlled body, is the servant of the people. It is not the people’s master. Nor is government in any form.

The philosophy of Government that I favour is best expressed in the 1776 Declaration of Independence. We are endowed with certain inalienable rights and among these are life, liberty and the pursuit of happiness. To secure these rights

“Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Clearly from these statements Governments are the servants of the people, and are there to ensure they can exercise their rights to life, liberty and the pursuit of happiness.

This would seem to me to be an admirable basis for Government, so what is it that attracts Mr Wilson to the statist collective Government that will “lead” (translation “order us”) us in a direction within a pre-determined framework.

Sadly the answer would seem to lie in the uniquely “Kiwi” attitude which briefly stated looks to the Government for every solution and is summed up in the statement “The Government must do something”.

This clearly is a complete abdication of responsibility for one’s own life; a surrendering of one’s individuality; a denial of the ability of the individual or group of individuals to develop their own solutions to problems. Sadly it is an attitude that has historical roots and where successive administrations, especially the First Labour Government, took control and instituted nationalized and subsidized industries and projects, thus diluting individual self-help solutions.

My position is that as far as possible Government should serve the people and not the other way round. For people to serve the Government is a step down the road to repression and the end of individualism. For the Government to dictate how individuals should live their lives is no more nor less than totalitarianism. Thus any politician who supports Mr. Wilson’s model does not understand the role of Government and is unfit for office.

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The Consent of the Governed

This post continues the theme developed in “Social Cohesion or Social Conformity” of the importance of the Rule of Law as the most important element of social cohesion and how the Rule of Law can be undermined by the loss of respect for and apparent powerlessness of our established institutions.

As I write this a protest camp is present outside Parliament. It has been there for 12 days and is likely to remain. It seems to be well supported in terms of those attending and in terms of the infrastructure that has developed. There are cooking facilities, recreational facilities and educational facilities for the young who are present.

It isn’t difficult to ascertain what the protest is about. It has been characterized as an anti-vax protest but the message that is coming through is that it is a protest against the effects of mandatory requirements for vaccines. Those who are in the catchment for those mandatory requirements are teachers and health workers so it is no surprise that a number from these professions are present.

Of course the protesters have been demonized. Although comfortable words are spoken about the right to protest, there is condemnation for this one because it has gone too far and in some respects it may well have done. But the anti-protest rhetoric, aligning the protesters with the “far right” has become clear from such “progressives” as Simon Wilson in this piece headlined ”Pandemic, protest, nurses and nutters” and an awesome piece of rolling inferential reasoning from Thomas Coughlan in a piece entitled “Parliament occupation inevitable, but end should also be” where he says

“Given the anti-mandate crowd are only anti-mandate because they’re anti-vaccine, and they’re only anti-vaccine because of conspiracy theories about its provenance and efficacy, there’s also an air of inevitability about the involvement of neo-Nazis and associated far-right conspiracy theorists and cranks with the protest.”

That sort of dismissive commentary overlooks the seriousness with which many of the protesters view the situation. This attitude of dismissiveness has continued from no less a source than the advocate for kindliness – the Prime Minister – and is reflected in many of the statements from other politicians.

Another aspect of the current situation is that it has demonstrated the total powerlessness of our institutions. Initially the Police seemed ready to take action but then pulled back. In essence this has given the protesters carte blanche to continue to develop the site and increase the semi-permanence of their presence. The theory of “policing by consent” – and it can only be a theory – isn’t going to gain any traction with the protesters.

The steps taken by Mr Speaker last weekend in turning on the sprinklers and playing awful music over loudspeakers was infantile to say the least and served only to diminish any respect for his office or for the institution of Parliament.

The public looks on and what do they see. Certainly no positive steps from our politicians who will not engage unless the protesters move on. This is reminiscent of the approach taken to hostage negotiations or a “lay down your arms before we talk about a ceasefire” approach. The Prime Minister dismisses the protest as anti-vax (when clearly it is not only that) and was conspicuous by her absence last weekend when Mr Speaker was playing his part.

Other politicians (apart from David Seymour) seem unwilling to engage and the reasons are opaque. Once again leadership seems to be lacking and our governing institutions suffer from powerlessness, toothlessness and an apparent unwillingness to do anything.

What is extraordinary is that the politicians and those in government are not our masters but our servants. We look to the Government especially to maintain the Rule of Law – another institution that seems to be in difficulty – since it seems that the Rule of Law is engaged on two fronts – the question of how the law deals with a protest that has aspects of unlawfulness and how the Courts may continue to function when the protesters by their actions make the administration of justice almost impossible. No less a person than the Chief Justice has commented on the fact that a jury trial in the High Court at Wellington had to be cancelled.

In addition to the issue of the powerlessness of our institutions or their apparent unwillingness to act is an aspect of constitutional theory expressed by Thomas Jefferson in the Declaration of Independence

Governments are instituted among Men, deriving their just powers from the consent of the governed.

As things stand I wonder if the consent of the governed is as willing as it once was. Do people consent to being governed by institutions that seem powerless or unwilling to maintain the Rule of Law?  Certainly the protesters, anarchic as they may appear, are in fact quite well organized. It seems that the consent consensus that they have is a little more resilient than that of the government. But I don’t think that the majority of New Zealanders would consent to that form of regime.

Or are we headed into something else. William Butler Yeats, the Irish mystic poet writing after the horrors of World War I and the Spanish Flu pandemic wrote in “Second Coming”

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere  

The ceremony of innocence is drowned;

The best lack all conviction, while the worst  

Are full of passionate intensity.

It seems that his words may aptly describe our present situation.

Social Cohesion or Social Conformity?

The recent paper “Sustaining Aotearoa New Zealand as a Cohesive Society”[1] addresses technology as an aspect of and threat to social cohesion. From a wider perspective it questions the assumptions about social cohesion as a supporter or an essential for a liberal democracy.

It puts forward matters that need to be considered in achieving social cohesion. It suggests that social cohesion is breaking down in the face of a fragmentation of values arising from disparate sources but the main one being “misinformation” or “disinformation” disseminated via social media platforms causing a questioning and distrust of the institutions that underpin society.

Social cohesion is seen as a vital element of a resilient liberal democracy. What amounts to a resilient liberal democracy, nor indeed a liberal democracy itself, is not defined but it is assumed that those terms mean a robust political and governmental system where the government governs with the consent of the people and that the system fulfils Lincoln’s Gettysburg definition of government as being of the people, by the people and for the people.

The consent of the governed was (and still is) an essential element of some of the Enlightenment thinking about the nature of government that was expressed by Jefferson in the Declaration of Independence – We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

It is probably within the concept of consent of the governed that social cohesion begins to grip as a supporter of a liberal democracy.

The paper discusses various approaches to defining social cohesion and settles on a wide definition.

The definition depends on

• Sufficient trust and respect between those who are governed and the institutions and individuals they empower to govern them;

• Sufficient trust and respect between all members of a society (which by inference reflects a diverse set of identities, worldviews, values, beliefs, and interests) to foster cooperation for the good of the society as a whole;

• Institutions and structures that promote trust and respect between all members of society; and allowing

• Belonging, inclusion, participation, recognition, and legitimacy to be universally possible.

Therefore the underlying themes of social cohesion are trust, inclusion and respect which result in recognition and thus the legitimacy of the governmental system

This definition is based upon two groups of criteria – the elements of socially cohesive behaviour and a high level of conditions necessary for a socially cohesive society.

The paper then develops matters that should be considered in halting the perceived erosion of social cohesion.

However in its analysis of the decline of social cohesion two elements become clear. The first is that implicit within social cohesion is an assumption that a single world view or set of values is the ideal. To challenge the established view is to undermine social cohesion and the ordered society. To offer an alternative or contrary view is seen not as dissent but as misinformation or disinformation.

In offering this approach to an argument is to employ a form of “veto statement” but worse still it suggests that there is only one correct view which may be described as a “truth”. Indeed the paper focusses upon the nature of information in what it calls the “post-truth” world.

If by disinformation is meant the dissemination of views that are unsupported by evidence or fact but that are presented as factual material rather than opinion based commentary, then the best counter lies in the market-place of ideas rather than any form of censorship. In this respect there should be greater educational focus upon the ability to analyse and think critically. Sadly this is undergoing considerable deterioration in the current education systemwhich seems to focus upon revisionism and anecdote – peoples’ “stories” – rather than objective realities.

There must be cause for concern if the means of dissemination (social media platforms) are seen as the problem because, absent content shifting algorithms, the problem lies within those who post content.[2]

If one were looking for threats to social cohesion, perhaps the problem really lies in the way in which growing centralisation both in national and local government are depriving citizens of the opportunity to discover their own solutions.

A further element that undermines the nature of objective truth is the current tendency to focus upon anecdotal evidence rather than a proper empirical study. We reap what we sow when our analysis of factual information is based upon anecdotes and perceptions of reality than from and empirical analysis of the evidence. We seem to be more concerned with how we “feel” about things rather that what we think of them – thinking being a rational process than involves a level of analysis.

Technology and Social Cohesion

If there is one clear theme that comes through from the paper it is the concern at the influence of technology and especially social media as a disruptive element – or threat – to social cohesion. This is described as “affective polaristion” which is the decline in objective assessment in the liberal democratic system based on citizens choosing between parties that reflect different ideologies, values and worldviews. Objective assessment is replaced by emotion – anger, fear, and hatred of others have emerged in the public square. Of course, this decline in objective assessment can be laid at the feet of the education system, to which reference has been made.

“Affective polarization” is fuelled by the polarising effects of media, technology, and “misinformation”. The paper suggests that a major challenge to social cohesion is the rapid emergence of the relatively ungoverned virtual world. On one hand, the internet has empowered some groups by enhancing communication and knowledge access. On the other, it has provided opportunities to cultivate and disseminate misinformation and disinformation, and to increase polarisation. Freedom of expression has always been accompanied with a certain level of chaos and background noise.

The arrival of powerful and effective ways of anonymously transmitting ad hominem attacks, the paper suggests, has undermined the traditional institutions on which all societies rely to sustain cooperation and respect. The emergence of the Internet of Things, virtual reality, and the metaverse, along with the development of new economies and networks enabled by cryptocurrencies, is rapidly altering the constraints which helped glue societies together.

To blame the Internet – the backbone – is incorrect. This seems to demonstrate a misunderstanding of what “the Internet” is. The Internet is a transport system for data. The Internet is not the problem. Permissive innovation – the ability to bolt platforms on to the Internet without going through a series of red tape or bureaucratic approvals – has enabled the development of the various platforms that allow users to communicate. Thus it is not the Internet but the platforms that are bolted on which form the agency for a certain type of human behaviour.

This fundamental misstatement of the nature of the Internet is something I would not have expected from a paper of this pedigree. I imagine that the rather glib response by the authors would be that they are using the vernacular understanding of the “Internet” but in a paper that condemns “misinformation” with a high level of vehemence I would have thought that more care would have been applied to accuracy of definition.

A problem is seen with the emergence of virtual and manipulated realities in so-called metaverses. The internet has enormously increased access to information, and in that sense can be seen as democratising. However, the information is of variable reliability, and exposure to “misinformation” and “disinformation” is greatly enhanced by millions of users being exposed to both unintentional misunderstanding (often through ignorance) and deliberate misrepresentation by bad actors (including agents of foreign states) Internet based platforms are also empowering in that it allows people to engage in activities of social affirmation online, although I would characterize the role of these platforms of agencies of a certain level of communication.

The gathering into online groups was anticipated by Michael Froomkin who put forward the proposition of Regulatory Arbitrage – that users would migrate to elements that favoured their point of view or perspective. This theory was more related to the types of rule sets that might apply to Internet users and was a matter of jurisdiction although with the rise in social media it seems to be more a matter of congregating with likeminded users.

This should not be seen as unusual. People have long sought out those whose views or beliefs are similar. Gatherings in clubs or other organisations has been a feature of human social existence for some centuries. The communicative properties of Internet based platforms enhances this desire and its fulfilment. The problem, therefore, is not one of technology but of human behaviour.

Concern is expressed at the way in which “disinformation” and “misinformation” are disseminated via Internet platforms. The phenomena of mis/disinformation is recognized as one that has been present for some time. It is not new. But social media, the internet, and algorithm-targeted messaging have taken intentional disinformation to a new level. Thus technology and social media platforms fulfil and agency function rather than a causative feature.

Throughout the paper disinformation and misinformation are used without being defined. The issue that I have is that dissent or the expression of a point of view that is contrary to that of the majority may be characterized or demonized as mis/disinformation. In this way dissent is sidelined or even worse deplatformed or “cancelled”.

Intentional disinformation is referred to and by that I gather that what is being propagated are lies or information that has no factual basis and that the originator disseminates with the intention of misleading. 

Once again this type of behaviour has been with us for some time but the scope of these lies spreads from fraudulent scams to challenges to objectively ascertainable facts.

There is a suggestion that the development of new technologies alters the constraints that glue societies together.  I think that there is once again a failure to recognize that new technologies and especially information and communication technologies may alter behaviours and attitudes – acting as agents for change in values. This is an example of the aphorism attributed to Marshall McLuhan “we shape our tools and thereafter our tools shape us”.

Furthermore the “problems” of Internet-based platforms as is so often the case focusses upon the content of communication rather than the means of communication – the medium is the message; another of McLuhan’s aphorisms. In some respects the horse bolted long ago and it is only now that we are beginning to understand that and come to terms with the new reality that besets us.

To condemn new communications technologies as the cause of the problem and to call for some form of restructuring or regulation is in some respects a mournful cry for a time that has been irretrievably lost and represents a form of conservatism that would anchor us in a societal position where any sort of change is decried. In some respects the calls for reversal of climate change are an attempt to preserve a way of living that may no longer be possible and ironically (because the Greens and those who favour positive steps to reverse climate change consider themselves Progressives) represents another manifestation of what could be called a “yearning conservatism”.

The two examples may be said to suggest a form of technological determinism and in some respects that is acknowledged. In the area of climate change although the effects of human activity have seen an increase in the pace of climate change, the reality of climate change has been with us since before records were kept and are reflected in the geological record as well as the more modern written records.

Climate change is and always has been inevitable and in the past the way that humans have dealt with it is not to reverse reality but adapt to the new circumstances. This may mean that we are no longer able to sustain certain activities to which we have become accustomed. It may mean the abandonment of the ocean view for a form of shelter in higher places. These are the realities for which we should be planning rather than arguing about whether there should be cycle lanes over the harbour bridge or banning fossil fuelled motor vehicles. Such would be a token gesture.

I advance climate change as an example of certain inevitabilities that underlie some aspects of technological change coupled to a degree with aspects of technological determinism. Eisenstein described the printing press as an agent of change and by so doing avoided the deterministic label. But in some respects she was correct. The press was an agency of a change in attitudes. It enabled changes in communications associated behaviours and by so doing enabled changes in a number of areas of human activity. There can be no doubt that the disseminatory powers of print enabled the swift transmission of Luther’s arguments that formed the basis of the Reformation.

Were Luther’s theses a form of sixteenth century misinformation? Is “misinformation” the Twenty-first Century characterization of “heresy”. To the Catholic Church Luther’s theses certainly were. And the new information technology enabled the spread of the ideas that underpinned the theses. The response in many cases was to break up the printing presses to stop the spread of this “heresy”. The Catholic Church professed concern for the souls of the believers but there was no doubt that its response to Luther was as much in the interests of maintaining its position of power.

Thus one wonders whether or not – despite the focus on the importance of “liberal democracy” – social cohesion is just another form of power play – a desire by those with a vested interest in established institutions to maintain those institutions in the interests of maintaining conformity with existing power structures and (im)balances. Thus liberal democracy – as a trope – occupies the position of the soul in a modern secular society – something intangible, lacking coherence and ephemeral that has its own particular value.

As if to support this argument the paper states (P. 3)

(G)overnments need to place the opportunities and challenges of the digital future more centrally and to consider them through the lens of sustaining or undermining social cohesion. Not doing so may threaten democracy itself, seeing it replaced by a more autocratic form of governance. Societies could fracture in ways that undermine their very essence and identity.

This suggests that the only alternative is autocracy yet in many respects we are living in an autocratic system in what could be called “The Covid Autocracy” or “The Covid Despotism”

To sum up this aspect of the discussion – technology in and of itself is not the problem and to propose to “regulate the technology” is not a solution. Nor does the answer lie in reining in the social media companies. The concerns seem to be that they are allowing the dissemination of contrarian content some of which can be dangerous. It seems to me that despite the difficulty of assessing the huge volumes of data that flow through their servers, some social media providers attempt to adopt a responsible attitude to truly harmful content. Much of the problem lies in the assessment of that content. For some “hate speech” is speech that they hate to hear. For others misinformation is a twisting or reinterpretation of existing facts. For others disinformation may be, and often is, downright lies. The responsibility lies with the individual to resolve the problem, and not for some patronising and paternalistic State to proclaim a single and all-embracing truth.

Social Cohesion and Conformity

Underlying the discussion of social cohesion is the theme of conformity. Citizens should conform to understood precepts of social order. Conformity is associated with an element of collectivism which seems to be gaining traction in the Twenty-first Century milieu. The problem with the underlying elements of social cohesion that are discussed in the paper is that individualism is subsumed and individual aspiration is sacrificed on the altar of social cohesion.

Belonging, participation, inclusion, recognition and legitimacy are all seen as elements of social cohesion. However, the focus upon social cohesion as an element supporting a liberal democracy seems to depend up on collectivist approach especially in regard to the communication of information and the spread of views, opinions and interpretations of facts that may be present within a community.

The word freedom has become somewhat devalued of late, sneered at and associated with contrarian or anti-vax sentiments. Yet it is an essential aspect of a liberal democracy. It is for that reason that I point to the importance of the freedoms guaranteed by the New Zealand Bill of Rights Act as well as the freedom to think as we please, the freedom to make our own decisions and to act on them. It is in this respect that I have concerns about social cohesion as it is developed in the paper.

The focus upon contrary points of view disseminated over social media strongly suggests a collectivist conformist approach that is inimical to concepts of individual liberty within a liberal democracy. It is that individualism that sustains innovation and diversity of points of view, that accepts differing manifestations of behaviour as long as there is compliance with the bottom line allowed by the law.

I suggest that the law sets the boundaries for social cohesion. Moral suasion or some ill-defined standard suggests some other way apart from law in which society modifies and monitors behaviour, and disapproves or condemns that which is outside what may be described as “norms accepted by the majority”.

This form of moral coercion masquerading as social cohesion has little to do with life in a free and liberal democracy, and indeed if this is the goal behind the paper – and I earnestly hope that it is not – then the conceptualisation of social cohesion as operating in this way is to be resisted.

Maintaining Social Cohesion

I suggested above that the law sets the boundaries for social cohesion. The paper ignores the fact that there is already in place a means of maintaining a level of social cohesion that is consistent with a liberal democracy and that is the Rule of Law.

The paper suggests that living in an organised society implies a contract of reciprocal behaviour, or a social contract, between citizens and the society’s institutions. We cannot operate outside those bounds and remain functioning and free members of that society. No one, it points out, has absolute free will.

There can be tension around what the bounds are, as we have seen in debates over constraints imposed during the Covid-19 pandemic, and as are more generally reflected in differing preferences across various ideologies and value sets.

In many respects this tension that develops is a good thing because it demonstrates that within the community there are a variety of different points of view about a proposed course of action. If social cohesion in the form of a collective point of view proposes that there should not be a variety of different points of view, then liberal democracy is in difficulty and social cohesion cannot be said to support it – rather it erodes a fundamental aspect of a liberal democracy which involves the right and the opportunity to disagree.

What the paper ignores, or perhaps sidesteps, is the importance of the Rule of Law as an element of the social contract. There seems to be little discussion about the effect of law in fixing the boundaries for acceptable social behaviour.

Without the Rule of Law what is being proposed is some form of “understood” code of behaviour based on the concept of a resilient society that has its foundation in social cohesiveness. I would have thought that a clearly communicated and understood Rule system would establish the metes and bounds of acceptable behaviour.

The New Zealand Bill of Rights Act 1990 clearly defines the rights of individuals vis-à-vis the State. If I were looking for a recipe for social cohesion NZBORA would be the prime ingredient, despite the various exceptions and riders that the legislation contains. What it does contain are clear statements about the freedom of expression, freedom of association, freedom of peaceful assembly, freedom of movement, freedom of thought, conscience, religion or belief, freedom from discrimination, the right not to be deprived of life, nor subjected to torture, nor subjected to medical experimentation and the right to refuse medical treatment. These, it seems to me, must be the essential ingredients of a liberal democracy.

Furthermore, there must be a clear understanding that everything is permitted unless it is prohibited, thus constraining the power of the State and allowing individual citizens a high level of liberty of conduct under the Rule of Law which focusses on the maintenance of internal stability. Otherwise the formula “everything is prohibited unless it is permitted” sows the seeds of an autocratic society based on a top down power structure.

The rather vague focus upon a collective social cohesion contains within it some serious difficulties and the lack of certainty about the scope of social cohesion absent a consideration of an underpinning in existing legal rule sets suggests a possible moral or suasive approach to behaviour that is unclear and uncertain – factors that are inimical to a living in a liberal democracy.

Conclusion

I suggest that the concerns that have been expressed in the paper are overrated. Disagreement and dissent are fundamental aspects of a liberal democracy. Without them essential elements of a liberal democracy cannot exist. To demonise an alternative view with terms like “misinformation” and “disinformation” without addressing the very nature or content of what is proposed is to engage in another form of veto statement or the cancel culture that is used to silence an opposing view. To justify these aspects of censorship as an aspect of social cohesion – although to be fair the report writers do allow for dissent as long as it resolves in an acceptable solution – is to do violence to the freedom of expression as a vital aspect of a liberal democracy.

Social cohesion in the end is another word for conformity – conformity that is not recognised as a bottom line for human behaviour thus justifying the interference of the law – but some form of moral conformity that does not allow for a contending view. And that is a form of totalitarianism and thought control that has no place in a liberal democracy.

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[1] Gluckman P, Bardsley A, Spoonley, P, Royal C, Simon-Kumar N and Chen A University of Auckland Centre for Informed Futures December 2021 https://informedfutures.org/social-cohesion/ (Last accessed 22 December 2021)

[2] See “The Fault, dear Brutus, lies not in social media, but in ourselves” https://theitcountreyjustice.wordpress.com/2021/08/27/the-fault-dear-brutus-is-not-in-social-media-but-in-ourselves/ (Last accessed 27 December 2021)

Liberty, Freedom and the Lessons of History

There is a point of view that suggests that the current rhetoric on “freedom and rights” derives from American conceptions of individualism and individual freedoms. This point of view has been articulated by Nicky Hager who expressed a justifiable concern that many of his associates were being swept up and high-jacked by unsavoury elements whose principles and values were antipathic to theirs.

In his discussion however, he made the following observation about the concept of freedom. In suggesting that there is a Trumpian influence through the rhetoric of many of the protesters he observed that US ideas about freedom meant

“freedom of the individual to do what they like and stuff everyone else. In New Zealand, the dominant values are much more about community and caring for each other. Freedom sounds good, but it’s a slogan for deeply conservative and unattractive ideas that deny or avoid the responsibility we have for others.”

Hayden Thorne makes a similar suggestion within the context of the rhetoric about the rights of the individual to refuse vaccines and keep a jobs.  He argues that this is an import from the United States and goes on to suggest that first it corrupts the importance of American constitutional freedoms and shows a serious misunderstanding of our culture and constitutional structure.

To suggest that the concepts of individual rights and freedoms are an import from the United States is incorrect.

Freedom  – or liberty as I prefer to call it – is not a peculiarly American ideal and historically its concepts extend further back in history than the American Revolution.

Perhaps one of the most articulate and eloquent expressions of the nature of liberty (or freedom) came not from America but from the pen of the English philosopher John Stuart Mill in his classic “On Liberty”.

Mill considered that the tyranny of government needed to be controlled by the liberty of citizens.

 There were two ways in which this came about. Citizens had inherent rights and citizens thereby established constitutional checks on the government which, with the consent of the community, represented its interests. These checks imposed conditions on the governing power, thus preventing its absolute exercise.

In some respects this hearkened back to Enlightenment thinking about the nature of Government expressed by Thomas Jefferson (along with John Adams and Ben Franklin) in the Declaration of Independence

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”

We can see in that statement the emphasis is on individual rights. The duty of Government is to secure or ensure these rights and then powers of the Government to do so derive from the consent of the governed.

However, although these ideas received their best known expression in the Declaration of Independence they were founded upon the writings and thinking of the English philosopher John Locke and in particular his Second Treatise on Government. Locke identified life, liberty and property as the three fundamental rights and that a Government existed, among other things, to promote public good, and to protect the life, liberty, and property of its people.

Thus we can see a thread running through the argument of liberty as an aspect of individual identity which should be protected by and yet from the Government. If a Government fails to ensure the protection of life liberty and the pursuit of happiness, the consent of the governed may be withdrawn and the Government loses its mandate to govern. But Mill was very clear on the extent of government power as it affected the individual

“That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant … Over himself, over his body and mind, the individual is sovereign.”

This did not arise from a concept of natural rights because Mill based his standard on utilitarian principles and arising from that there were three basic liberties. Mill ranked these in the following order:

1. The freedom of thought and emotion. This includes the freedom to act on such thought, such as the freedom of speech
2. The freedom to pursue tastes (provided they do no harm to others), even if they are deemed “immoral”
3. The freedom to unite so long as the involved members are of age, the involved members are not forced, and no harm is done to others

Mill conceded that in certain situations and circumstances  these freedoms can be overridden but in modern and civilized society there was no basis or justification for their removal.

As has been noted, Mill ranked freedom of thought as the most important basic liberty. Opinions ought never to be suppressed. Indeed he recognized that there may be false beliefs, beliefs that are partly true and those what are wholly true. All of these provide some benefit to the common good. He wrote:

First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.

One of the major criticisms of the current “rights” or “freedoms” rhetoric is that it is selfish and self-centred. There are several ripostes to this.

The first is that rights in and of themselves are inherently individualistic. Individuality is by definition the thriving of the human person through higher pleasures as Mill put it. Individuality promotes creativity and diversity and, as a corollary to that, conformity carries with it dangers.

Secondly, the word “selfish” in modern parlance is a term of criticism rather than a term of celebration. The first objective of an individual is to ensure his own survival. Only then can he enjoy the liberties that accompany that survival. “Selfish” is used to describe this but “self-interest” and “self-determination” probably are better encapsulations of these aspects of individual liberty. As opposed to this is altruism.

Altruism is all very well if it is freely assumed as a conscious choice. The problem is that enforced altruism – that it is a moral obligation to live for the sake of others – is a moral obligation that at times is incorporated into law. But there are frequently times when enforced altruism challenges self-interest or requires an individual to accept a lesser enjoyment of life than that they may otherwise achieve by virtue of their own efforts.

In considering, therefore, the nature of liberty, Hager’s comment “freedom of the individual to do what they like and stuff everyone else” – is not only a rather ineloquent albeit incorrect articulation of an aspect of self-interest and self-determination but it is wrong. Hager balances this against what he describes as what he describes as New Zealand values of being more about community and caring for each other. In this way he argues that rights-based rhetoric is inimical to the caring community but it is not. A community is comprised of individuals rather than of a hive-mind.

Each individual enjoys liberty as described by Mill. Within that liberty there is the liberty of choice – the choice to remain aloof from or become involved as John Donne put it “in mankind”. It is my choice to care for my neighbour and to assist my neighbour but not to the detriment of my own existence. Liberty is not for the purpose of selfish indifference which may be the real root of Mr Hager’s complaint.

But liberty ensures that that a person should be left as free to pursue his own interests as long as this does not harm the interests of others. Mill’s system of liberty was intended to bring greater benefit to an individual than physical or emotional coercion. This means that a person may, without fear of sanction, do harm to himself. The only time that a Government should impose a sanction on a person would be for neglecting to fulfill a duty to others (or causing harm to others), not the vice that brought about the neglect.

The difficulty that has arisen lies in the polarization of points of view. For some extraordinary reason those who advocate for liberty are being equated with organisations that have little interest in the true nature of liberty or freedom characterized by Mill or by Enlightenment thought. There is little doubt that some of those organisations are fellow travellers with those who currently advocate for freedom or for liberty but this does not mean that they have high-jacked the theories of liberty nor the practice and reality of liberty.

Rather it seems that certain elements seem to apply a stereotype to those who advocate for freedom that may not be justified and that, like most stereotypes, ignores individual difference and diversity.

This leads me to a few observations on Mr. Thorne’s position. His starting point is that we should learn from history, but he has overlooked the history of the philosophical underpinnings of liberty . That is demonstrated by his assertion that “individual rights dialogue was corrupted by the American right – in particular, the religious right – to protect what it saw as important, at the expense of other groups in society. Debates about abortion and gun control became infected with an emphasis on individual rights.”

I would suggest that the individual rights dialogue referred to by Mr Thorne pre-existed the 1970’s and the rise of the religious right, as I have already demonstrated[1]. That the dialogue started to be used as a justification for elements of various societal debates is neither unusual nor concerning.

Indeed the debate about abortion in the US is between the individual self-determination that a woman has to terminate a pregnancy on the one hand (grounded as Mr Thorne will be aware from his study of Roe v Wade and the cases that preceded it like Griswold v Connecticut not only in individual rights but underpinned by privacy considerations)  and the rights of the unborn child (as an individual) on the other. These tensions are well known and common when the law and differing moral standards collide.

The debate about gun control is grounded upon the various nuanced interpretations of the Second Amendment to the US Constitution and again involves a conflict between rights – one grounded in a constitutional instrument and the other on aspects of individual safety – again a tension between competing interests with which the law is familiar.

I do agree with Mr Thorne that to try and import US Constitutional theory into New Zealand law misunderstands our constitutional arrangements. Unlike the US Constitution and its Amendments, we do not have a “higher law” that can be employed to test the legitimacy of Acts of Parliament. The New Zealand Bill of Rights Act 1990 (BORA)  is more an aspirational piece of legislation than a constitutional one. It argues that in interpreting the law Judges should apply a “Bill of Rights friendly” approach – I know this is a gross oversimplification of the nuances of section 6 BORA and for that I apologise. On the other hand there is a specific provision – section 4 – that prevents a Court from holding that an enactment is invalid because it is inconsistent with the Bill of Rights Act. Thus it is not possible for a New Zealand Court to declare a piece of legislation unconstitutional as the US Supreme Court has been able to do since the early Nineteenth Century.

But that does not mean that the various individual rights of life, liberty and the pursuit of happiness and property have vanished, simply because constitutional arrangements are different. Although BORA may not occupy the supreme position of the US Constitution, it does articulate a number of rights such as freedom of expression (to impart and receive information) in section 14, freedom of movement in section 18, freedom of association in section 17, freedom of peaceable assembly in section 16, freedom of thought, conscience and religion in section 13, the right to refuse to undergo any medical treatment in section 11. These and the other rights contained in BORA (I have cited a brief selection)  are a bottom line. If the Government wishes to enact legislation that is inconsistent with BORA the Attorney-General must advise Parliament – section 7. That advice has rarely prevented inconsistent legislation being enacted but at least the Legislature is put on notice.

Furthermore any existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part – section 28. Thus the rights in BORA are not exclusive.

Another important point about the BORA rights is that they are primarily individual rights and provide a measure against which the acts of the legislature, executive and judiciary may be tested along with the actions of any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law. Thus BORA acts (or should act) as a restraint on Government power which may involve interference with the rights of individuals.

It will be well-known that over the last two years the powers invoked by the Government have infringed upon and have abrogated many of the rights of New Zealand citizens that are contained in the BORA. In fact the exercise of these powers have resulted in a reversal of the principle that everything that is allowed unless it is prohibited to one (during lockdowns) of everything is prohibited unless it is allowed.

It is therefore not unexpected that individuals may feel concerned or upset that their individual rights have been and continue to be infringed, and that they may wish to express themselves and their dissatisfaction. But in doing so they are calling not upon Trumpism or the reinterpretation of rights rhetoric by the American religious right but on a long history of protest against the wielding of arbitrary Government power against individuals that goes back beyond Mill and Locke and indeed as far back as the Glorious Revolution of 1688 and the Petition of Right of 1628.

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[1] I imagine that Mr Thorne is familiar with Rick Perlstein’s tetrology “Before the Storm”, “Nixonland”, “The Invisible Bridge” and “Reaganland”. If he is not I recommend them.

The State in the Time of Covid-19

The first part of this piece was written last year. I was hesitant to
post it and then it seemed that events had overtaken it. In the considerable
amount of time has elapsed New Zealand fell into a state of complacency as far
as the effects of Covid-19 were concerned.  There was even a “travel
bubble” – quarantineless travel – to and from certain parts of Australia.
Then the Delta variant arrived. And that changed everything. I commence this
post with my observations “then” – in May of 2020 and then review the
situation as at “now” – being October 2021. Whether or not, in the
light of recent events, the State is likely ever to get out of the way seems
very unlikely.

 

May 2020

 

Simon Wilson ended his pandemic diary once the lockdown levels and
restrictions had been reduced. He
concluded his diary with some 15 observations which he described as things we
know now that we hardly ever dreamed of before.

Some of his observations are quite reasonable. One of them, however, is the
sort of thing that I would expect from Mr. Wilson’s collectivist and Statist
world-view. At item number 8 he claims “The State Should Not Get Out of the
Way”. To expand on the proposition he suggests “The state is the principal
organising tool for society. The job is not to eviscerate it, but to make it
work better for us.”

That the State should work better for us is something with which most would
agree. It is a pretty clunky and unresponsive beast at the best of times and
the solutions offered are blunt rather than nuanced and often involve, as Mr
Oliver Christiansen found to his dismay, a box ticking approach to what
should be a careful, sympathetic and balanced consideration of factors in the
exercise of a discretion in decision-making.

Certainly the State claimed and exercised extraordinary powers following the
onset of the Covid-19 crisis. The State had to, as Mark Zuckerberg advocated in
another context, move fast and break things. And that is what they did.

One of the things that was “broken” or at least turned on its head was a
basic principle of liberty that we enjoy in a free society. I am not talking
about manifestations of interference with liberties like that of freedom of
movement or the right to refuse medical treatment. Rather I am thinking about
the basic principle that underpins law in a free society which is that everything
is permitted that is not specifically prohibited. This was completely reversed
especially in Alert Levels 3 and 4 to the point where everything was forbidden
unless it was permitted.

This led to another difficulty. Exactly what was permitted? Despite the
existence of a Covid 19 website with some very useful resources, without some
inkling of how the law worked in an emergency situation, the primary materials
were difficult for an ordinary person to work through.

And it is a fundamental aspect of the Rule of Law that the law must be
accessible, intelligible, clear and predictable. That is because – and this is
a second feature of the Rule of Law – the exercise of all powers by the State
must be authorized properly by law.

The problem is that the law lacked precision and its interpretation was
often faulty, summarized in newspapers, which merely reprinted press releases,
or the promulgation or proclamation of the rules – or an interpretation of them
–  came by way of a press conference. Thus, we had vagueness in the
concepts of “staying local”. And how far could one go on a walk for the
purposes of exercise. And if one went too far – and how far was too far – would
one be subject to intervention from enforcement authorities and an even greater
restriction on an already severely restricted liberty.

One interesting aspect of the way in which the powers of the State could be
misinterpreted was in relation to those over the age of 70. It is acknowledged
that those in that cohort were at greater risk of severe consequences if
infected with Covid 19. But they were told to stay at home. By what authority?
There was none. Yet thousands of over-70’s were deprived of work, family
contact and the freedom of movement by this diktat which, as it turns out, was
advisory only and did not have the force of law.

These concerns are not mine alone. They are shared by a number of
individuals and are eloquently articulated by former Attorney-General Mr Chris
Finlayson QC in an op-ed piece entitled Coronavirus:
Lockdown was vague and threatening says former Attorney General.

So what does this have to do with Mr Wilson’s contention that the “State
Should Not Get Out of the Way.” Given the way in which the State has acted, and
the significant interference with civil liberties – for example the freedom
from arbitrary search – that is contained in validly enacted legislation (which
itself was subject to roll-backs and last minute changes) I would contest Mr
Wilson’s reliance upon the State.

I assume that he is referring to the way in which the State has intervened
to address problems within the economy. So it should if only because the damage
to the economy has been solely as a result of State action in the first place.
It is right and proper that assistance and compensation should be provided to
those who have been affected by this extraordinary use of State power. And then
the State should get out of the way and let the people, who have suffered at
its hands, get on with their lives.

It would be fair to ask “what was the Government meant to do” and the vast
majority of the citizenry approved the steps that were taken. But by the same token
in the lead-up to the lockdown there were some very dire predictions of what
might happen if determined steps were not taken. A climate of fear of Covid 19
developed that allowed the public to willingly and complacently accept
significant restrictions on the liberty of the individual.

It may well be when the dust settles that the reality will dawn that
governments in many countries were themselves panicked by the potential
reputational damage to them of health systems being overwhelmed. To avoid that reputational
damage they were prepared to take extreme steps that have had significant
deleterious economic effects as well as trashing the lives of citizens and
their expectations and in doing so seriously infringed civil liberties without
a careful and considered application of clear, intelligible law. This is the
State that Mr. Wilson considers is society’s principal organizing tool.

There can be no doubt that swift and determined action was required to
address the problems posed by Covid 19, but there seems to be a lack of
recognition that the State, or the Government if you prefer, is not our Master.
The State is the servant of the people. Rather than require, demand, order or
dictate – acting as if it were the Master and we were the servants – it should
recognize that in fact the people are the Masters and it is Government that is
the servant of the people.

It should always be remembered that there will be a tension between
authority on the one hand – represented in this case by the State – and liberty
on the other. John Stuart Mill was of the view that the potential tyranny of
government – an ever-present threat – could only be controlled by the
protection of the liberty of the citizenry. This was based upon the
Enlightenment view that liberty was a right – what today we would call a human
right.

This liberty is protected by the establishment of constitutional safeguards.
These safeguards are made with the consent of the governed and provides
limitation upon the exercise of power by the governing body.

The purpose of the power of the State, according to Mill, can only
rightfully be exercised over a member of the community against his will to
prevent harm to others. That the exercise of power may be for his or her own
good is not sufficient. The individual is sovereign determiner of him or her
self, body and mind.

Mr Wilson puts forward a pithy and somewhat reasonless argument for the
State or Big Government which ignores aspects of what the State is meant to do
within Mill’s balance between the purpose of the power of the State and the
rights of the individual.

We have seen what Big Government can do. It is the best course now that
Government or the State with its collectivist and regimented methods step back
and allow individuals to make their way.

October 2021

We are seeing now, as at October 2021, the real power of Big Government. It
seems that consensus has gone out the window. The “Three Waters
Initiative” involving the amalgamation and centralisation of local body
water resources was originally to have been a consensus “buy in”
project by local bodies. Today (27 October) it was announced that it would be
compulsory. 

The approach to vaccination and the restoration of civil liberties provides
an interesting yet concerning approach to the exercise of power. That as many
people as possible should be vaccinated against Covid 19 is plain. I have no
difficulty with that.  But the reasoning for this is as yet not entirely
clear. One would expect that the policy would be driven by altruism, especially
from a Left-leaning Government, But the concern seems to be more about the
ability of the Government to continue to deliver a health system. Some of the
messages tell us that vaccination is important for our own safety and for that
of our families and those around us. I have no difficulty with that. 

It is the follow-up messaging that is of concern. Get vaccinated and we will
return some of your freedoms to you. Given that the State took those freedoms
away in one sweeping act in the first place that is a truly magnanimous
gesture. But the messaging has been going through a number of adaptations – all
of which indicate a growing arrogation of power by the State and a benevolent
attitude towards the exercise of civil liberties. They are no longer rights.
They are privileges.

The most concerning message delivered recently surrounds vaccination, the
use of vaccination passports (or some other form of proof) and the
differentiated (some might call it discriminatory) treatment of those who for whatever
reason are unvaccinated. We have been told that businesses may have an
opportunity to determine whether or not their staff should be vaccinated. And
if that is the case those availing themselves of the benefits of the business
must be vaccinated as well. And those who are unvaccinated will be unable to
access the benefits of the business.

This approach to what in the past were largely looked upon as human rights
now appear to be conditional privileges. If you have a vaccination then you
will be able to enjoy a range of activities that you previously could enjoy as
a a matter of course. And we, as the State will ALLOW you to do that. And if
you are unvaccinated you will be able to purchase food, avail yourself of
health and other government services but all the other rights that you formerly
enjoyed will be denied to you, not on the basis of your race or religion but on
your status as a vaccinated or unvaccinated person.

It reminds me of the Dr Seuss story of the Sneetches, yellow bird-like
creatures , some of whom have a green star on their bellies. At the beginning
of the story, Sneetches with stars discriminate against and shun those without.
Is this sounding familiar? There are other examples from the
“real-life” world that are too awful to record. But like it or not a
two-tier society is being brought into effect by a social democrat government.
Who would have thought it.

The second exercise of power by the State is the “granting” of
added liberties by means of the traffic light system. This proposal is designed
to obviate the need for lockdowns, allow businesses to operate (saving the Government
large sums of money in business support programmes that have developed over the
lockdowns) and allow citizens some movement as far as their liberties and
activities are concerned. Once again, an exercise in magnanimity. The red
setting is the most restrictive. The orange setting allows a little more
liberty. The green setting is as close as we can expect to get to “the way
we were.”

We have been told by our benevolent government that the traffic light system
will come into effect when DHBs have achieved a certain vaccination target.
What we haven’t been told is how long this form of restrictive activity –
because even the green setting contains restrictions – will last. My sense is
that the traffic light settings will be with us indefinitely. It is very
unlikely that a Government as inured to control as the present one is going to
take its hands of the levers of power and allow the full and unrestricted
exercise of civil liberties. 

Of course all the above may be interpreted as an example of Simon Wilson’s covid
shouty blowhardness – ironic that criticism of people exercising their
freedom of expression should be so denigrated by a journalist of all people –
but he is entitled to his opinion as the covid shouty blowhards are to theirs.
But there are a couple of things that need to be remembered.

The first is that those who are elected to Parliament may be our
representatives in the House but they are also, as I have already noted, our servants – something that
seems to have been forgotten over the last 18 months. Edmund
Burke’s description of the role of the MP articulated in 1774 was developed
in a context vastly different from that of today where we have a (largely)
educated electorate and a much more sophisticated communications system – and
indeed society – from that of Eighteenth Century England. It would seem,
however, that his view still haunts the corridors of power.

The second point is that in the absence of an ability to communicate meaningfully
with our representatives and seek explanations from them we rely on the Fourth
Estate to attend to that as our proxies. And associated with that is the duty
on the Fourth Estate to hold our representatives to account and seek out full
and transparent explanations of their actions and policies.

So if demanding a slightly better performance from the Fourth Estate is
shouty blowhardness perhaps Mr Wilson at the moment seems, rather than holding
Government to account and asking the hard questions, to be no more than a
cheer-leader for the State. Ronald Regan expressed a different view when he said “Government is not the solution to our problem; Government is the problem”.

I will conclude by noting that some of the concerns that I have expressed in
this post have been very coherently articulated by Karl du Fresne is his piece “The
Cabal that controls the national conversation”. Du Fresne also wrote a
piece which was published in Spectator Australia and is also available in the
Otago Daily Times entitled “NZ
is being transformed, but not in a good way”. He eloquently expresses a
position in his conclusion which sums the problem up so much better than I can.

“The danger is that most New Zealanders, being
essentially passive, easy-going and good-natured, will ignore the tumult and
just try to get on with lives – until they wake up one morning and realise that
the open, tolerant and fair-minded society they grew up in has irrevocably
changed.”

What is Truth? Misinformation and the Edge of the Infodemic – A Commentary

“And what is ‘truth’? Is truth unchanging law? We both have truths. Are mine the same as yours?”

Jesus Christ Superstar

I have given some thought about releasing this paper. The reason for my hesitation is that it could be misinterpreted as a support piece for misinformation. That is not its purpose. My primary concern arises from what I perceive as a shift towards a State-based determinator for truth and, as a corollary, that any perspective or opinion that does not conform to that “truth” is misinformation. In my view the issue of misinformation is a more nuanced one and this paper argues that the solution to dealing with misinformation should be in the hands of individuals who can make their own evaluations of the validity or otherwise of pieces of information before acting upon the. Some of the suggestions that have been made in the misinformation paper under discussion are extremely reasonable and sensible. What I am concerned about is the intrusion of the State into the area of belief and points of view. Freedom of thought (or conscience) has long been a cornerstone of liberal democracy.

Introduction

Censorship is a controversial issue in a modern democratic and liberal society, although it has taken place in one form or another over the centuries. This has included art censorship from the strategically placed drapes on the magnificent Michelangelo frescoes on the ceiling of the Sistine Chapel to the controversy surrounding the Mapplethorpe photographic exhibition in New Zealand, film censorship from All Quiet on the Western Front^[1] to Baise-Moi^[2] and book censorship such as James Joyce’s masterpiece Ulysses^[3] and more recently in New Zealand with Ted Dawe’s Into the River.^[4]

Censorship challenges freedom of expression by imposing minimum standards of socially acceptable speech on the contemporary community. Under s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights) everyone has the right to freedom of expression; a right as “wide as human thought and imagination”.^[5] Censorship acts as an abrogation of that right, so how is freedom of expression under the Bill of Rights and censorship under the Act to be accommodated? Some guidance is available from the Court of Appeal in the case of Moonen v Film and Literature Board of Review^[6].

Moonen held  that there is  a responsibility on the Classification Office and the Board of Review when carrying out their work to explain how a publication falls into the category of publications that Parliament has deemed objectionable. The Classification Office and the Board of Review must also demonstrate why classifying certain publications as objectionable is a demonstrably justified limitation on freedom of speech. Generally the Moonen approach is followed.

New Media Issues

But lately the Chief Censor, Mr. David Shanks, has been calling for a widening of his brief. At an Otago University conference about ‘Social Media and Democracy’ in March 2021, Mr. Shanks told the conference the way we regulate media is not fit for the future.

“We can be better than this. I think there’s some very obvious moves that we can do here to make the current regulatory system and framework more coherent for a digital environment,” he said.^[7]

The “Misinformation” Study

As part of an overall review of regulatory structures surrounding harmful information dissemination, the Government released a discussion paper on hate speech and at the same time the Chief Censor released a paper entitled “The Edge of the Infodemic: Challenging Misinformation in Aotearoa” which in essence is a survey about how citizens are concerned about misinformation. The internet and social media are identified as key sources – while experts and government are trusted more than news media. 

The Chief Censor says it shows the need for urgent action. But the question must be asked – why? Do we need the government or some government agency to be the arbiter of truth? Are we so uncritical that we cannot discern misinformation from empirically based conclusions?

The concerns about new media are not new. Many of the criticisms of the Internet and social media levelled by the Chief Censor have been articulated in the past.  Speaking of newspapers Thomas Jefferson expressed an acidic concern that editors “fill their newspapers with falsehoods, calumnies and audacities”.^[8]

What is seen as a problem seems to be a difficulty in accepting that as many as there are people there are opinions. One wonders whether the questions properly addressed the issues. The findings of the report must be concerning. New Zealanders tend to distrust online sources of information.

Only 12 percent had high trust in news and information from internet and social media users – and 83 percent think this group frequently spreads misinformation on purpose.

But 79 percent also said they get news or information from social media and also use it to verify information.

The report found New Zealanders have a relatively high level of trust in news and information from scientists, researchers or experts (78 percent) and government agencies and officials (64 percent).

Six out of 10 respondents reported high trust in New Zealand’s news media – a more favourable result than the responses recorded for overseas news media.

But these findings beg the question I have already raised. Are we talking about facts or are we talking about opinions. Even facts can be “spun” to fulfil a particular purpose and can be interpreted in a number of ways. The facts remain the same. The interpretations may differ. And this is important in a vibrant and developing society. The “truth” for one may not be a “truth” for another.

The concerns that the report advances have been derived from an extensive survey that has been conducted. The findings of the survey lead inexorably to the conclusion that “something must be done” and I would suggest that the “something” involves the control or monitoring of information. And it must be of concern that the self and statutorily described^[9] censor is driving this.

So what does the report tell us. I state the findings and my observations in italics follow each one.

First, it is common for New Zealanders to see news and information they think is false or misleading. Opinions differ as to what counts as misinformation, but one topic identified as a source of misinformation surrounds Covid 19. Another concern is that this misinformation is influencing people’s views about things like politics, public health and environmental issues, and many see misinformation as an urgent and serious threat.

What is apparent from this concern is that misinformation is recognised. This would seem to suggest that those who contributed to the survey are still in possession of the reasoning and critical faculties and can distinguish valid information from rubbish. The volume of misinformation may drive a concern but what does it threaten. This question seems to be unanswered.

But arising from this is another more fundamental issue and one that I have already alluded to – what is misinformation. Is it a skewing of facts – something that politicians are skilled in although for them it is called “spin” – or is it a statement of opinion. One wonders how many statements of opinion are taken as fact, especially if the reader or listener or viewer agrees with the opinion.

Secondly New Zealanders tend to distrust online sources of information generally, and this is especially true of social media. Many New Zealanders think social media users and corporations often spread false and misleading information intentionally. At the same time, the internet is the most popular source of news and information, while also being a reference point to verify, fact check or confirm this information.

The first point is a valid one. Do not implicitly trust everything that you see online. With a medium like the Internet – and social media platforms – everyone has a voice. Whereas mainstream media could be selective, had verification duties and are subject to rules about balance and a disciplinary process such as the Broadcasting Standards Authority or the NZ Media Council, social media does not. Thus it follows that statements by individuals on social media platforms should at least be taken with a grain of salt and should be subject to critical scrutiny and verification.

Whether online or offline, most New Zealanders tend to trust information from more traditional sources like government officials, scientists and the New Zealand news media. However, the research shows that people with higher trust in online only sources of information – and who use these sources more often – are more likely to express belief in statements associated with misinformation.

This probably says more about the critical faculties of those who rely on online sources for their information. And this goes to a lack of development of intellectual rigour that goes back to the education system, together with a level of naivete that would suggest that too many people accept anything without question or without careful analysis. It is not the source of the information that is to blame. It is the uncritical stance of the reader that is the problem.

The report then goes on to widen the problem with some rather sweeping generalisations.

Misinformation is widespread and affects everyone. This is true regardless of age, gender, ethnicity or other characteristics.

Subject to defining misinformation (which I discuss below) there is no doubt that all facets of information, true or false are widespread. Does this affect everyone? If what is meant is “does everyone come into contact with misinformation” there is certainly that potential. But if the meaning of the word “affect” is to influence I would have some quibble about the suggestion that misinformation influences everyone. Once again this has more to do with the critical analysis of information, but I consider this conclusion to be overly broad

It’s relatively common for New Zealanders to express belief in at least some ideas that are linked to misinformation – ideas which are not backed by the best available evidence we have.

I would be very interested to see the evidence for this statement and once again it speaks more to the naivete and lack of critical rigour on the part of the audience. And, of course, even a bad idea may be worth consideration if only to analyse it and discard it. The problem I think lies in the use of the word “belief” which suggests something other than an evidence based or empirical conclusion

When people rely on misinformation to make important decisions it can have a harmful impact on the health and safety of our communities. It can also affect us on a personal level, contributing to anxiety, anger, and mistrust.

Agreed. But the issue is the reliance that is placed on misinformation and once again – at risk of repeating myself ad nauseum – much depends upon the critical faculties and analysis employed by the audience. If people choose to make important decisions without properly analysing the source of the evidence supporting those decisions then that is a matter for them.

People often take action themselves in response to misinformation – such as searching different sources to see if information is accurate, looking at more established news sources, or talking about it with people they trust.

New Zealanders also see this as a societal problem that requires more action. They have differing views on who should do this and how. Many think government, news media and experts have the biggest role in dealing with the spread of misinformation, but that individual internet users and social media corporations also have an important role.

Many New Zealanders see the Government as the solution to problems. Rather I agree that responsibility for ascertaining whether content is information or misinformation should the in the hands of the recipient. I agree that individual internet users and social media users have a role – but it is not for the social media corporations to vet content or carry out some moderating activity over content. I base this comment on the fact that Internet based information and indeed the communications paradigm it has introduced means that we must recognise that paradigm shift and consider regulatory solutions in light of it.

What is “Misinformation”?

The problem of “misinformation” and the concerns that are expressed in the report depend very much upon the definition of the term. The Report offers some brief definitions. There is a specific rider to the definitions offered which narrow the concept down to something that is potentially harmful. Other definitions are quite a bit wider.

The Report definitions are as follows:

Misinformation: false information that people didn’t create with the intention to hurt others.

Disinformation: false information created with the intention of harming a person, group, or organisation, or even a country.

Mal-information: true information used with ill intent.

The definitions set out are quite specific and share a similar characteristic and that is that the spread of the information (misinformation, disinformation or mal-information) is accompanied by a specific intention and that is to harm or hurt others[10].

The Report goes on to say

“Misinformation is nothing new, but there are increasing concerns worldwide about the prevalence of misinformation – especially online – and its potential to impact democracy, public health, violent extremism and other matters. We’ve seen how the spread of false and sometimes hostile misinformation and conspiracy theories continue to impact on our whānau and communities during the Covid-19 pandemic, and how extremist talking points and ideology can contribute to real-world violence such as the March 15 attacks in Christchurch.”

Misinformation is defined in the Oxford English dictionary as “false or erroneous information”, and as the report states, the existence of false or erroneous information is nothing new. Falsity implies that the communicator of the information is aware of the falsehood but perpetrates it nonetheless. Erroneous implies error or mistake which lacks the element of wilful deception.

Putting to one side the emotive reference to the March 15 attacks – and there is no evidence that the terrorist was influenced by misinformation – the concern that is expressed is that false, erroneous and sometimes hostile information and conspiracy theories have an impact. As it proceeds the Report seems to lose sight of the qualification that harm must be intended and seems to focus more upon the falsity or error of the information circulated.

Two issues arise from this. The first is that the recipient of information must be critical of the information received and subject it to analysis to determine whether it is “true” or “false”.

The second is that most information disseminated, especially across social medias platforms, is opinion or “point of view” which means that the disseminator is coming from a particular standpoint or is writing with a particular agenda. It would be incorrect for anyone to suggest that the opinion pieces in the New Zealand Herald by columnists such as Simon Wilson, Richard Prebble, Michael Cullen or Mike Hosking are anything else but that. They are interpretations of fact taken from a particular standpoint. It is up to the reader to determine whether first, the facts bare valid and secondly whether the opinion is therefore valid. Finally, if the answer to both questions is in the affirmative there is nothing to compel the reader to accept the opinion. The reader is free to disagree with it.

An associated issue arises and that is the guarantee of the freedom of information contained in section 14 of the New Zealand Bill of Rights Act 1990. The provisions of section 14 are wide. They refer to the imparting and receiving of information – thus widening the usual understanding of freedom of expression to be the imparting of information. It is significant too that section 14 does not qualify the word “information”. There is no suggestion that the information must be true or that it cannot be “misinformation.”

Information is that which informs. To inform someone is to impart learning or instruction, to teach or to impart knowledge of some particular fact or occurrence. The traditional meaning of information suggests an element of factual truth and thus misinformation is erroneous or incorrect information. One interpretation of section 14 is to use the traditional meaning of information which suggests an element of fact based truth. A wider interpretation would include material based on mistaken facts. And then, of course, there is the question of opinion which is a view of one person about a certain set of circumstances.

But in the field of information, misinformation, fact and truth there will always be disputes. Some will be trivial. Others will be significant. Some may be wrong headed. Others may be designed to mislead. Given these varieties of information, what is proposed that we should do about what is referred to in the report as the “infodemic.”

An Internal Inconsistency?

The Infodemic paper contains the following critical acknowledgement.

Misinformation is not in and of itself illegal – and it would be impractical and counterproductive to make it so. It should not be unlawful to express a view or belief that is wrong, or that is contrary to prevailing evidence and opinion.

There are certain types of misinformation with which the law should be involved such as information which promotes criminal or terrorist activity and may fall within the existing ambit of the Films Video and Publications Classification Act, the Human Rights Act or the Crimes Act.

These legal restrictions are perfectly legitimate. They are very limited and are justifiable limitations on the right of freedom of expression guaranteed by section 14 of the New Zealand Bill of Rights Act. But misinformation does not fall within their ambit, nor should it as acknowledged by the Report.

This then raises the issue – what is the problem? Is the raison d’etre for the paper to identify an issue and sound a warning. Or does it go further. The answer, in my opinion, lies in the latter. Realistically the paper recognises that misinformation will never be eliminated nor should it. But in keeping with Mr. Shanks concerns expressed in 2019, the real target for stemming the infodemic lies in dealing with the disseminators – and by that I mean not the individuals who spread misinformation but the digital platforms that enable wide dissemination.

Addressing the Problem

I shall outline the proposals advanced by the Infodemic paper but would offer a note of caution. Some of the proposed solutions are based on existing regulatory or content assessing models. They ignore some of the essential properties of digital systems which make regulation in the Digital Paradigm and completely different exercise from existing regulatory models.

I have discussed the problems of regulation in the Digital Paradigm elsewhere and in some detail[11]. Suffice to say that to engage in any form of content control in the Digital Paradigm is difficult given that the dissemination of content is inextricably entwined with the medium of distribution.

Marshall McLuhan’s aphorism “The Medium is the Message” states the problem, albeit somewhat opaquely. To attempt to control the message one must first understand the medium. This is often overlooked in discussions about regulation in the Digital Paradigm. It is something of an exercise in futility to attempt to apply the models or standards that are applied for what is essentially mainstream media regulation. And to treat online platforms, irrespective of their size and market dominance, in the same way as “analog” or mainstream media platforms ignores the fact that online platforms occupy a paradigmatically different communications space from mainstream media platforms like newspapers, radio and television.

With that cautionary observation I shall consider the proposals in the Infodemic paper.

The report offers five possible avenues for dealing with what it refers to as the Infodemic.

1. Informing and empowering New Zealanders – this solution is expressed in the report as a means by which misinformation about Covid 19 and vaccinations may be countered. Of course, from a general perspective this is a wider issue than just misinformation and conspiracy theories about the pandemic. Many New Zealanders are concerned about the impact of misinformation across a broad range of topics, including the environment and racial tolerance.

Some of this is based on mistrust of accurate sources of information and it is suggested that steps should be taken to help those who are affected by misinformation and conspiracy theories.

This, of course, is based on the assumption that there is an empirical basis which suggests that alternative views are wrong and should not be believed. And this harks back to the quotation at the beginning of this piece. Are my “truths” the same as yours.

The concern that I have about this proposal is the suggestion that there is but one truth, one “authorised version” to which adherence must be given. It may be easy to prove that a Covid vaccine is effective on the basis of scientific analysis and empirical proof. It may be less easy to prove matters which travel in the realms of faith and belief. And the problem with “authorised versions” is that they become of “approved version” with the result that other “truths” may become sidelined and dismissed to the point where they become heretical.

2. Education – this is a solution that I find appealing. Media literacy and critical thinking skills can help us sort fact from fiction and interpret information. These skills can also help build resilience in the community against misinformation.

A central government campaign could reach many people but is unlikely to influence people and communities who already have lower trust in government. And should it come from the government in any event – a government which may have its own political agenda?

Education in schools is also needed to empower and equip our young people to recognise and challenge misinformation. Our education system already aims to provide children and young people with the critical thinking skills necessary to navigate a complex world.

3. Content Moderation and Industry Responsibility – Recent research suggests that misinformation travels through the internet much more rapidly than accurate information. This is one of the realities of internet based information. In the same way that the printing press enabled the increased dissemination of information so the Internet does this in an enhanced and exponential way.

The algorithms that select and promote posts and information on many social media and digital platforms often select information that is ‘high engagement’ – that is, information that attracts more comments, shares and likes. Misinformation can often be high engagement, as it can easily be more sensational, or generate stronger emotions. These algorithms, it should be observed, are also used by mainstream media who use online platforms and accounts for the “ranking” that reports may have on a news website.

Online platforms other than those used by mainstream media who may be subject to the New Zealand Media Council  are not generally subject to the same standards around accuracy, fairness and balance that newspapers, broadcast or other news media are.

However, as I have suggested above, it is a mistake to attribute the responsibilities of mainstream media platforms to online platforms. They are paradigmatically different.

The first point is that content that is broadcast or published in mainstream media goes through an editorial process. Content that is posted on social media does not, nor should it be the duty of the provider of the platform to moderate another person’s content that has been posted.

The second point is that content moderation is a difficult process in the digital paradigm given that essentially social media platforms handle large quantities of data that are later rendered into soe recognisable of comprehensible form. Of course, algorithms can and should be used to trap dangerous content that advocates violent harm or action.

It is suggested that there should be engagement with digital platforms in a co-ordinated way along with industry codes of practice which could result in a consistent set of expectations and approaches in New Zealand.

Once again this suggests a “one truth” solution which creates difficulties is a society with a plurality of opinions.

One suggestion is for users to “call out” and report misinformation, but much depends on how this is done. The development of the “cancel culture” regrettably is intolerant of different strands of opinion and I fear that “calling out” is not the way to go. Rather engagement in rational debate and proposing an alternative would allow for the marketplace of ideas to come into play and separate the wheat from the chaff.[12]

4. Regulation and Policy

Once again the proposal seeks to compare mainstream media with a paradigmatically different information system that is the Internet.

The statement is made as follows:

“While most misinformation is not illegal, much of it would be in breach of industry standards concerning accuracy. Such standards apply to broadcast services (under the Broadcasting Act), print media (under the standards administered by the New Zealand Media Council) and advertising (under the Advertising Standards Authority). Most of the broadcast and industry self-regulatory models were not set up to address the challenges presented by the digital age such as misinformation shared on platforms like Facebook or YouTube.”

Then it is suggested that a consistent regulatory approach across non-digital and digital misinformation alike is needed.

If I understand it correctly what is being suggested is that the regulatory approach applicable to mainstream media, which developed in an entirely different paradigm from digital media, should be applied across the board.

This ignores that fact that most if not all of the content on digital media and especially social media is user generated. In fact social media allows everyone who has an internet connection to have a voice. Whether or not any attention is paid to that voice is another matter. But within a democratic society, this opportunity has never before been available. And if one looks, for example, at an autocratic state such as the Peoples Republic of China with its severe restraints on freedom of expression and its extreme regulation of Internet content, the question must be asked – is that the road that we wish to travel?

5. Research and evaluation -The understanding of what needs to be researched and evaluated is becoming clearer, and this should be an ongoing process. The information environment will continue to rapidly evolve – often in ways no-one can predict. As new evidence emerges, interventions will change as well.

This solution seems to suggest that the reason for research and evaluation is to determine interventions and regulatory responses. This must be something of a concern in light of the comment earlier made that misinformation is not illegal and nor should it be.

Conclusion

There are two major issues that arise from the paper.

There is no doubt that misinformation can be problematical. It is, however, one of the attributes of a society that values diversity of opinions and point of view and that values and celebrates a plurality of beliefs.

Eroding Freedom of Expression?

In some respects it is difficult to discern the target in the misinformation paper. Clearly it has been inspired primarily by the conflicting information that has been swirling around about aspects of the Covid crisis. But there is more including references to the 15 March 2019 terror attacks and the various issues surrounding the introduction of 5G, QAnon and the United States polarised society and conspiracy theories.

But there seems to be a deeper issue and that surrounds calls that have been made to regulate the Internet or at least impose some restraints on the activities of social media platforms. Part of the problem with social media platforms is that they allow for a proliferation of a variety of opinions or interpretations of facts which may be unacceptable to many and downright opposed to the beliefs of others.

Governments and politicians, although they are great users of social media platforms, cannot abide a contrary message to their own. In a democracy such as New Zealand it is something with which they must live although there is little hesitation at nibbling away at the edges of expressions of contrary opinions.

Characterising them as “misinformation” is a start down the road of demonisation of these points of view. At the same time, following the 15 March massacre, the Prime Minister of New Zealand instituted the “Christchurch Call” – an attempt to marshall international support for some form of Internet regulation. No laws have been passed as yet and social media organisations, seeing which way the wind is blowing, have made certain concessions. But it is, in the minds of many, still not enough.

In New Zealand a review of media regulatory structures lies behind the “misinformation” study along with the ill-considered and contradictory proposals about “hate speech”. The assault on freedom of expression or contrarianism is not a frontal one – it is subtle and gradual but it is there nonetheless. It is my opinion that the real target of the “misinformation” study is not “misinformation” but rather the expression of contrary points of view – however misguided they might be. And that is a form of censorship and it is therefore not surprising that this move should come from the Chief Censor.

A Democratic Solution

It would be to tread a dangerous path to place the determination of “good information” and “bad information” in the hands of the government or a government organisation. Only the most extreme examples of misinformation which may do demonstrable harm such as objectionable material or terrorist information should be subject to that level of moderation. To add “misinformation” as a general category without precise definition to the sort of material that is objectionable under the Films, Videos and Publications Classification Act would be a retrograde and dangerous step.

There is already a form of content moderation in place, run through the Department of Internal Affairs which makes a filter available to Internet Service Providers to block certain content.[13]

Of the proposals suggested above it will be apparent that I favour as little interference with online platforms as possible, and I do not support anything more that minimal interference with content that is not demonstrably harmful and am of the view that what people wish to see as a “truth” should be left to the individual to make his or her own judgement.

The problem with “misinformation” has been heightened by the conflicting points of view surrounding the Covid crisis – indeed the paper itself picks up on this by describing the misinformation problem as an “infodemic” – the 2020 US Presidential election and some of the conspiracy theories that have been circulating courtesy of Qanon and the like.

But it is not a problem that warrants government or regulatory interference and indeed it should be noted that the Department of Internal Affairs review of media and online content regulation focusses upon content that is harmful.

Misinformation may misinform but much of it depends upon the reader or listener’s willingness to stand apart and subject the content to critical analysis. The problem, however, is that for many people they believe what they want to believe and their truths may not be those held by their neighbours.

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[1] Chris Watson and Roy Shuker In the Public Good? Censorship in New Zealand (Dunmore Press, Palmerston North, 1998) at 35.

[2] Re Baise-Moi [2005] NZAR 214 (CA).

[3] United States v One Book Called “Ulysses” 5 F Supp 182 (SD NY 1933); United States v One Book Entitled Ulysses by James Joyce (Random House Inc, Claimant) 72 F 2d 705 (2d Cir 1934).

[4] Re Into the River Film and Literature Board of Review, 14 October 2015.

[5] Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [15].

[6] [2002] 2 NZLR 754 (CA)

[7] “Battle Against Online Harm beefs up censor’s power” Media watch 21 March 2021 https://www.rnz.co.nz/national/programmes/mediawatch/audio/2018788055/battle-against-online-harm-beefs-up-censor-s-power

[8] He also stated on another occasion “Were it left to me to decide whether we should have a government without newspapers, or newspaper without government, I should not hesitate a moment to prefer the latter”

[9] Films Videos and Publications Classification Act 1993 section 80(1).

[10] In some respects this resembles the types of actionable digital communication under the Harmful Digital Communications Act 2015. In both the civil and criminal spheres under the act there must be harm which is defined as serious emotional distress. The report does not go into specifics about what is required to hurt or harm others.

[11] See David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age” (Hart Publishing, Oxford 2017) esp. at Chapter 2.

[12] As at the time of writing it should be noted that a comprehensive review of media content regulation in New Zealand was announced by Minister of Internal Affairs, Hon Jan Tinetti, on 8 June 2021. The review is managed by the Department of Internal Affairs, with support from the Ministry for Culture and Heritage. The review aims to create a new modern, flexible and coherent regulatory framework to mitigate the harmful impacts of media content, regardless of how it is delivered.

The framework will still need to protect and enhance important democratic freedoms, including freedom of expression and freedom of the press.

It correctly observes “Our existing regulatory system was designed around a traditional idea of ‘analogue publication’, such as books, magazines and free-to-air TV, and does not have the flexibility to respond to many digital media types. As a result, it addresses harm in a shrinking proportion of the media content consumed by New Zealanders and provides little protection at all for digital media types which pose the greatest risk for harmful content.” See https://www.dia.govt.nz/media-and-online-content-regulation (Last accessed 9 July 2021)

[13] https://www.dia.govt.nz/Censorship-DCEFS (Last Accessed 9 July 2021)