The Crimes Amendment Act 2003 and the Government Communications Security Act 2003 – An Interrelated History

In 1999 the Government introduced the Crimes Amendment Bill (No 6). The Bill contained, among a large number of other changes to the law, provisions relating to computer crimes. The changes proposed seemed reasonable and were designed to address some issues that had been identified by the Law Commission in its 1999 report “Computer Misuse”.

Then a new Government introduced Supplementary Order Paper No 85 which radically changed the landscape not only of computer crime by adding a provision criminalising unauthorised access to computer systems (without associated dishonest acts or intentional damage) but also addressing changes to the provisions of the Crimes Act relating to crimes involving privacy and the circumstances under which law enforcement and intelligence agencies might be exempted from the proposed unauthorised access to computer systems provisions.

In the process the potential for state surveillance, enabled by digital technology, was expanded and it also became necessary and desirable for an organisation that had been involved in intelligence gathering, the GCSB, to have statutory recognition and oversight. While the Legislature followed up on enacting the GCSB Bill – a process that took some two years – the Crimes Amendment Act languished until its enactment in mid-2003.

It has long been my view that had it not been for the addition of the unauthorised access offence in SOP 85, it may not have been necessary for the GCSB to have moved into the picture and indeed it may not have been necessary – at least at that time – for it to have had its own legislation. But in a startling example of the law of unintended consequences that seemed to have been the case.

I decided, since I had a little time on my hands, to have a closer look at the history of the two pieces of legislation and their interrelationship. I based my research on the various Bills, Supplementary Order  Papers, Debates from Hansard and materials and reports I had in my own possession which I gathered at the time. The lack of on-line material from the Government prior to 2003 meant that some of my researches had to follow alternative sources. I should also add that my researches did not include any policy documents so the introduction of the GCSB Bill relies on the statements of Michael Cullen MP in Hansard when the Bill was first read.

I think that it can be inferred from the material that I have put together that the changes proposed by SOP 85 resulted indirectly in the passage of the GCSB Act 2003. Although SOP 85 set out prescriptions whereby the GCSB may be exempted from criminal liability for accessing computer systems (and these were stated as exemptions rather than authorisations) it obviously became necessary for the GCSB to have statutory recognition. The importance of this was pointed out by the Privacy Commissioner Mr Bruce Slane in his submission on the Crimes Amendment Bill (No 6) in December of 2000.

The other related issue was the way in which some of the scope of the powers of the GCSB and other authorities were extended by changes to definitions that allowed digital systems to be included in search and surveillance activities. Further enabling of such activities came into effect with the passage of the Telecommunications Interception Capability Act 2004.

I want to make it clear that in putting together this information and writing it up I am acting, as Christopher Isherwood put it, as  “a camera with its shutter open, quite passive, recording, not thinking.” although I do offer some conclusions on the evidence and raise some questions on the wider issues of the nature of liberty in the Digital Paradigm and whether, with the constant disruptive change that characterises that Paradigm, our understanding of liberty may change from Jefferson’s Enlightment agrarian ideal to something else.

A further point must be made. I have incorporated a number of quotations from Members of Parliament in Hansard. Keith Locke MP features regularly. The use of his speeches or of any other Member should not be taken as an endorsement of the political views of that member or of his or her party. As I said, “I am a camera”.

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The News Media meets New Media – a midpoint in technology driven rule making

The Law Commission Report

In March the Law Commission released its long awaited report “News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age.” The Reports addresses three major issues. The first is to develop and recommend a new regulatory framework for news media that recognises the multitude of disseminatory options available in the digital paradigm. The second is to consider what it refers to as harmful digital communications. In this section, which was the subject of a separate Ministerial Briefing Paper released in August 2012 the Law Commission considered the adequacy of existing sanctions and remedies for what may be called on-line speech harms. The third issue deals with entertainment content. The proposed “dismantling” of the separate regulatory structures for news dissemination leaves “entertainment content”, currently covered by the Broadcasting Standards Authority, out on something of a limb and although there are no set recommendations in this area, the Law Commission has suugested some possible lines of future enquiry

How this came about

The Law Commission commenced investigations into regulatory structures for the news media and other aspects of communicative technologies following a reference by the then Minister of Justice Simon Power who expressed his concerns in this way:

 “It’s a bit of a Wild West out there in cyberspace at the moment, because bloggers and online publishers are not subject to any form of regulation or professional or ethical standards.”

This followed the prosecution and conviction of Cameron Slater for breaching name suppression orders on his “blog” Whale Oil Beef Hooked.”

The terms of reference for the Law Commission were:

    •  How to define “news media” for the purposes of the law;
    • Whether and to what extent the jurisdiction of the Broadcasting Standards Authority and/ or the Press Council should be extended to cover currently unregulated news media and, if so, what legislative changes would be required to achieve this end; and
    • Whether the existing criminal and civil remedies for wrongs such as defamation, harassment, breach of confidence and privacy are effective in the new media environment and if not whether alternative remedies may be available.

In December 2011 The Law Commission presented an Issues Paper for comment. After a wide consultation process which concluded in March 2012 work commenced on the final report. This work was interrupted by concerns about bullying and cyberbullying.  The Minister of Justice, Judith Collins, asked the Law Commission to accelerate its report on this part of the terms of reference. A Cabinet Paper entitled “Harmful Digital Communications: The adequacy of the current sanctions and remedies” was released in August 2012. It appears as an appendix to the “New Media” Report.

The use of multiple technologies by News Media

The Law Commission focussed adopting a regulatory model that would address the way in which the News Media were adapting to and using new digital technologies. No longer were the points of difference between print, radio and television media present, although these media had different regulatory structures and standards. As the spread of the Internet became more pervasive so news media organisations adapted to it, presenting users with a rich mixture of content – text, audio-visual, multimedia – along with some of the other qualities that Internet technologies enabled by way of cross-linking and presentation that could not be achieved in the static disseminatory “one to many” model of the pre-digital environment. In its Issues Paper the Law Commission observed:

Where once newspapers and television were able to marshal their reporting resources around set broadcasting and printing schedules, now the internet enables – and requires – a constant supply of breaking and updated news. Newspaper publishers, with their long lead times between deadlines and distribution had, in the past, specialised in generating original news and analysis: now they must also compete head to head with broadcasters, including social media, in the live or spot news market.

In addition broadcast media was adapting from a strict time-based programming regime to a demand driven one, making content available for view at a time that it suited the viewer or the listener even although the availability of that content may be limited. In addition broadcast news utilised the internet to provide additional “in-depth” or “raw” material as an adjunct to a “formal” news broadcast. In its Issues Paper the Law Commission examined the way in which print, TV and radio were using the web as well as considering what it described as “Web only “News” Media. Examples were given of generalist news sitessuch as Scoop.co.nz, interent.co.nz and NewsRoom.co.nz. On-line aggregators such as those established by search engines such as Yahoo and Google feature as a new phenomenon in that they don’t produce any original content, relying instead on filtering, organising, repackaging and linking to content produced by others,including traditional media organisations.

Apart from what may be considered mainstream news media and various sites associated with it such as public relations and advocacy sites is the development of the Blogosphere and the rise of the citizen journalist, enabled by the democratising qualities of Web 2.0. Blogs vary greatly in terms of professionalism, readershipand influence. At one end of the spectrum are hobbyists who write diary-like entries primarily for the consumption of colleagues, friends or family. At the other, are the bloggers with specialist subject knowledge in areas such as business, politics, law, the media, science and the arts.

The Law Commission observes:

Bloggers typically draw on material from a wide variety of media, integrating the original content on which they are commenting into the body of their work by cutting and pasting excerpts from mainstream media websites (text and video) and linking to other websites or bloggers. It is also common for bloggers to post documents and or links to source material (including, for example, official reports or research) referred to in their blogs.

Although primarily a forum for opinion, bloggers also break news, sometimes strategically. For example, …..blogger Cameron Slater broke a number of news stories which were subsequently carried in the mainstream media.Bloggers, including Cameron Slater, also frequently critique mainstream media and in particular point out when they have been “scooped” by a blogger.

Finally the Law Commission observed that the development of social media as a news disseminating medium, and especially Facebook and Twitter are demonstrative of the way in which new media impacts upon established news media norms. It cannot be overlooked that many established mainstream media sites enable the posting of a news story reference to an individual’s twitter feed with the opportunity for a (brief) comment.

The intersection of the various technologies mean that it is difficult to tell which news media organisation is subject to what regulatory body. Television websites contain text making them similar to but nor subject to the jurisdiction of the Press Council – a voluntary body. Yet the text content is not subject to the jurisdiction of the Broadcasting Standards Authority. Similarly the NZ Herald may include video content from its web-site that would look like a form of broadcast, yet this form of content is not covered by the Press Council.

The problem that has presented itself, especially from the perception of a regulator, is the way that Internet technologies allow the various forms of news dissemination to converge or merge together.

The Theory of Convergence

Media Convergence is not new. In 2000 Time Warner and AOL merged together. It was trumpeted as the first great media convergence, where a content creation company got together with an Internet  service provider thus providing a further means of content delivery and the homogenising of the two concepts where content and delivery into a seamless organisation.

The concept of convergence, especially of media convergence, is still debatable.  For some it is the blending of multiple media forms into one platform for purposes of delivering a dynamic experience. For others it is the merging of mass communication outlets – print, television, radio, the Internet along with portable and interactive technologies through various digital media platforms. It allows mass media professionals to tell stories and present information and entertainment using a variety of media and therefore Converged communication provides multiple tools for storytelling, allowing consumers to select level of interactivity while self-directing content delivery.

Most theorists agree that in general terms convergence means ‘coming together of two or more things’. However a variety of different arguments have been put forward in an attempt to define what exactly is coming together. It may be the coming together of different equipment and tools for producing and distributing news. Alternatively, it could involve the flow of content across multiple media platforms, suggesting that media audiences nowadays play a crucial role in creating and distributing content, and convergence therefore has to be examined in terms of social, as well as technological changes within the society.

Some commentators consider that media convergence should be viewed as cooperation and collaboration between previously unconnected media forms and platforms.  Another view of convergence is the blending of the media, telecommunications and computer industries or, in other words, as the process of blurring the boundaries between different media platforms and uniting them into one digital form.

In some respects this last definition sums up the problem that the Law Commission had. Technology had disrupted the old certainties and had presented the world with a new media distribution model. Providing a regulatory model would have to fit with the technology. There was no way that the new media landscape was going to be reorganised. Whatever changes were going to be made would be driven by technological reality.

Proposals for a unified news media regulatory structure.

There are some fundamental propositions behind the Law Commission’s proposed regulatory scheme.

a) That membership of a regulator should be voluntary

b) That the regulatory body be fully independent of and separate from government and the political process

c) That incentives would encourage membership of the regulatory body

Policy Objectives

The policy objectives of the Law Commissions recommended reforms are to:

a)         To recognise an protect the special status of the news media and to ensure that all entities carrying out the legitimate functions of the 4th estate – irrespective of size or commercial status – are able to access the legal privileges and exemptions available to these publishers;

b)         To ensure that to those who are accorded news media special legal status are held accountable for exercising their powers ethically and responsibility;

c)         To provide citizens with an effective and meaningful means of redress when standards are breached; and

d)         To signal to the public which publishers they can rely upon as sources of news and information.

The Report – A Converged Standards Body

The Law Commission Report contains a total of 34 separate recommendations and are relatively detailed.  The first set of recommendations deal with a new converged standards body, folding the functions of the press council, the Broadcasting Standards Authority and the new formed Online Media Standards Authority (OMSA) into one standards body – the News Media Standards Authority or NMSA.  This would be established to enforce standards across all publishers of news including linear and non-linear broadcasters, web publishers and the print media.

The NMSA – Eligibility for Membership

Eligibility for membership of the NMSA is based upon the broad definition of a news media organisation.  The following criteria are proposed:

a)         Significant element of their publishing activity involves the generation and/or aggregation of news, information and opinion of current value;

b)         They disseminate this information to a public audience; and

c)         Publication is regular and not occasional.  However it excludes two entities from that definition namely online content infrastructure platforms and the office of the clerk of House of Representatives.

This definition ties in with the definition of news media which contains four elements:

a)         A significant proportion of their publishing activities must involve the generation and/or aggregation of news information and opinion of current value;

b)         They disseminate this information to a public audience;

c)         Publication must be regular;

d)         The publisher must be accountable to a code of ethics and a complaints process.

The Nature of Membership

The membership of NMSA should be voluntary and not compulsory.  This is an underlying theme throughout the entire report. In this respect the Law Commission proposal differs significantly from those of Lord Justice Leveson and which are currently under consideration in England and those of the Honourable R Finkelstein QC in Australia, the legislative enactment of which has run into considerable difficulty in the Australian Federal Parliament and has been abandoned for the time being.

Once the NMSA has determined that a person is eligible for membership, membership is based upon contract with the NMSA which includes a complaints process by which members will be bound and the powers of the NMSA with members being bound to comply with the exercise of such powers.  In addition an annual financial contribution is proposed together with the obligation upon members to publicise the NMSAs code of practice or statement of principles, their complaints process and their own complaints handling process.

The NMSA – Advantages of Membership

accountability to an external standards body and membership of it would bring advantages which would be of value to those willing to be subject to its jurisdiction.  Those advantages would include:

a)         Legal exemptions and privileges – only those publishers belonging to the standards body would be eligible for the legal privileges of exemptions currently available to the news media;

b)         Complaints resolution and mediation – the standards body would provide members with a quick and effective mechanism for dealing with complaints which might otherwise end up in costly court action – this could be of particular benefit in defamation and privacy cases;

c)         Public funding only publishers who belong to the standards body would be eligible for funding support from New Zealand on air for the production of news and current affairs and other factual programming – an advantage accruing to primarily radio and television media;

d)         Brand advantage in that membership of the standards body would provide a form of quality assurance and reputational advantage and it is anticipated by the Law Commission that this would become a bench mark to determine who is to access other non-legal media privileges such as access and entry to the parliamentary press gallery, admission to press conferences, access to embargoed releases and the like.

NMSA- Statutory Recognition

Although the NMSA would not be established by a statute it would therefore be indirectly recognised in statutory provisions creating the various news media privileges.  The Law Commission emphasises that the body would be independent of both state and the media industry in its adjudication and governance structures and there should be no Government or industry involvement in appointments to the new body.

The NMSA – Some Thoughts

The constitution and structure of the NMSA is interesting because it is not a statutory body and therefore not under any parliamentary supervision.  This is entirely consistent with the importance with maintaining the independence of the 4th estate together with freedom on the press and freedom of expression rights.

There must be genuine independence of both Government and the news media industry both in relation to the adjudication of complainants and in relation to its governance and management.   Membership, it is suggested, should include a chair person who should be a retired Judge or other respected experienced and well known public figure and appointment would be by the Chief Ombudsmen, thus maintaining a separation from the political process.

The makeup of complaints panel members should be representatives of the public who are not from the media industry but with a minority having industry experience represented of both proprietors and journalists but not including current serving editors.  The need for expertise in new media and digital communications technology is recognised by the fact that one panel member at least should have that quality.

I wonder if that is enough. The reality is that news media are now technology driven. The environment of the digital paradigm is completely different from that which went before to the point of being revolutionary. The technology drives behaviour and as the technology changes, so does behaviour arising from its use. Because we are dealing with communication technologies our use of and responses to the information communicated change, not only in terms of processing but in terms of expectations of information and of those who disseminate and deliver information. What a complaints body will be facing are not merely questions of news media standards against a background of traditional media expectations but an evolving and developing news media as continuing disruptive change – a characteristic of digital communication technologies – changes the media landscape. Although ostensibly the focus of a complaints system will be upon content, underlying the content layer will be ever-evolving communications technologies. The certainty that comes with stability will not longer be present and reliance upon presumptions based upon a static communications system may no longer pertain.

The Code of Practice

One of the important initial functions of the NMSA would be to formulate a code of practice as well as adjudicate complaints about breaches of the code as well as monitoring and reporting on trends and media practice and audience satisfaction and the mediation of disputes about matters which might not otherwise proceed to court.  Importantly the constitution of the NMSA should expressly recognise that the NMSA act in accordance with the guarantee of the freedom of expression in the New Zealand Bill of Rights Act 1990.

The Code of Practice (which is referred to as a code of ethics in s 198 of the Criminal Procedure Act 2011) would set out the standards against which the conduct of the news media is to be judged and which would form the basis of complaints from the public:

a)         The content of the code should be formulated by NMSA with no government influence on its content.  The Law Commission recommendation is that the code might be formulated by an NMSA committee.

 b)         There should be consultation with the industry and with the public in the course of the formulation of the code which should capture, to the fullest extent possible, the traditional tenants of good journalism (including accuracy, correction of error, separation of fact and opinion, fairness to participants, good taste and decency, compliance with the law, the protection of privacy in the interest of children, and principles about news gathering practices) in a way which meets the demands of modern New Zealand society.

 The code should also expressly recognise the guarantee of freedom of expression in the New Zealand Bill of Rights Act as a guiding principle and strive to maintain a balance between this interest and other important interests such as privacy while making clear that the codes principles may be overridden by the public interest in publication.  There should also be guidance on what public interest actually means.  Sub codes would provide for differing public expectations of different publishing mediums and the code should be available on a website for the NMSA which should be reviewed on a regular basis.

Powers of the NMSA

The scope of the jurisdiction of the NMSA would be to enforce standards across all types of news publishers, irrespective of the format or distribution channel.  It would adjudicate complaints relating to news, current affairs, news commentary and contents such as documentaries and factual programming which purports to provide the public with a factual account of real events involving real people.  Membership would be voluntary but it is considered that the privileges and benefits that would attach to membership would counter balance any initial reluctance to become involved with the NMSA.

However the Law Commission recommends that the new body would have a wider range of powers than presently exist in the press council, the Broadcasting Standards Authority or the Advertising Standards Authority.  These powers would include:

a)         A requirement – as at present – to publish an adverse decision in the medium concerned, the regulator having power to direct the prominence and positioning of the publication;

b)         A requirement to take down specified material from the website;

c)         A requirement that incorrect material be corrected;

d)         A requirement that a right of reply be granted to a person;

e)         A requirement to publish an apology and

f)          A censure.  No monetary sanctions by way of fines or compensation are proposed.

NMSA Powers and Technological Reality

Perhaps the most striking new power is the requirement to take down specified material from the website.  This would not only apply to current mainstream media who may sign up to the NMSA but would also include citizen journalists and new media entities who have also joined and are subject to the NMSA.  There are two possible concerns to the concept of take down.  One is that it has a certain Orwellian ring to it in that the material exists on the internet or the website only for as long as it is available to internauts.  Once it is taken down it is as if it had never existed and perhaps this represents a certain ephemeral aspect of information on the internet and the well known difficulty of locating information where there has been the phenomenon of “link rot” or for whatever reason the website host no longer makes the material available.  In a situation involving an NMSA directive the website host would have no choice.

The second difficulty lies in the contradictory adage of information on the internet being “the document that does not die”.  Once information is available on the internet it has a tendency to replicate, become part of a Google cache or be available if not in whole than in part on a Google search.  In addition library archives and other forms of preservation of internet based material such as the internet archive mean that the information may still be available although not directly at the web address at which it was first published.  A dedicated researcher would probably be able to find information even although it had been the subject of take down directive from the NMSA.

A possible third scenario presents where, a disgruntled citizen journalist who has been directed to take down material from a website could leave a page at the web address containing information to the effect that the content that had previously been present at that address had been the subject of a takedown directive from the NMSA and could well contain complaints about censorship or some commentary on the wisdom or otherwise of the decision.  Although this could attract further attention from the NMSA it would be consistent with some behaviours present in citizen journalists blogs and websites.

Managing the Transition to the New Model

As part of the transition process it is proposed that an establishment working party should be set up, chaired by an eminent independent person nominated by the Chief Ombudsmen.  The balance of the working party should be appointed by the chair after consultation with the news media industry and representatives of that industry should be in a minority.  The working party should not exceed 7 members.  The proposal is that the working party should consult widely including with the BSA, the Press Council and OMSA and the working party effectively should attend to an initial implementation of the recommendations including:

a)         Drawing up a constitution of the NMSA both for management and adjudication functions;

b)         Laying down the manner of in criteria for the appointment of panel members of the NMSA and ensuring that the Chief Ombudsmen has an involvement in that process;

c)         Appointing the foundation panel members of the NMSA including foundation members of the complaints panel and appeals panel;

d)         Drawing up a mechanism for industry funding of the NMSA;

e)         Drawing up model forms of contract to be entered into between the NMSA and members of the news media electing to belong to it; and

f)          Advising if necessary on the initial funding contract with the Government to support the NMSAs oversight and monitoring functions.

How this is an example of technology driven rule making.

Introductory

The functional construction of the Internet involves six layers which offer regulatory activity of one form or another.

The Content Layer—the symbols and images that are communicated.

The Application Layer—the programs that use the Internet, e.g. the Web.

The Transport Layer—TCP, which breaks the data into packets.

The Internet Protocol Layer—IP, handles the flow of data over the network.

The Link Layer—the interface between users’ computers and the physical layer.

The Physical Layer—the copper wire, optical cable, wireless devices, routers, etc.

The first thing that should be noted is that what is proposed by the Law Commission is a form of regulation of the content layer of the news media. It is always this layer that attracts the most attention and is, and throughout history has been, the first target of regulation in whatever form it takes – whether it be to enhance the credibility of news media (as this would seem to be) or to engage in censorship.

In some respects the Law Commission embraces both but not in equal measure. Primarily the approach is to ensure that the 4th Estate acts in a responsible manner, and that the doors of 4th Estate advantages and privileges are open to “new media” – the citizen journalists whilst at the same time recognising that membership of the 4th Estate carries with it certain responsibilities – hence the NMSA. But on the other hand the censorship model is present in the suggestion that “take down” orders may be made in respect of on-line content.

In  addition to the content layer of the Internet there are a number of other deeper issues associated with technological change that have brought matters to a head. These may be described as the qualities or “properties” that enable or impact upon human behaviour – generally in ways that we don’t immediately perceive. I have referred to these qualities in other posts and repeat them here for completeness whilst  acknowledging that the development and identification of the qualities of new communications technologies is a work in progress. So far I have managed to identify nine qualities (and there are probably more) which dramatically distinguish digital technologies from those that have gone before and they are

    •  Persistence,
    • Continuing change or what you could refer to as the disruptive element,
    • Dynamic information
    • Dissociative enablement,
    • Permissionless innovation,
    • Availability,
    • Participation
    • Searchability
    • Retrievability.

The effect of this is that our consciousness of the changes that might have taken place in our behaviour or, in the case of information technologies, the way that we communicate, process and deal with information is delayed until the changes have become virtually irrevocable. These changes can impact at the individual level or, collectively, have an impact upon societal institutions. For example, the use of e-mail, Facebook or Skype as a means of communicating with family and friends has the following consequences that immediately spring to mind:

a) the decline of “hard copy” letter writing

b) the rise of informality in written communication

c) the questionable future of a “written documentary record” as a primary source for historians

d) the decline in physical mail items with impacts upon postal services profitability and viability resulting in reduced delivery days and increased cost driven inefficiencies in hard copy mail delivery “services”.

I acknowledge that this is just a brief sketch to illustrate a single issue, and should not be considered a developed argument.

A “Qualities-Based”  Approach to Rule-Making 

Thus the starting point of this discussion is based uopon the premise that new communications technologies contain certain properties which have an impact upon the way in which we react and assess the information that is communicated. Although information may of itself be static, the way in which it may be presented by a particular communications technology affects the way in which we deal with and react to it and may colour our expectations of information

New information technology paradigms subtly influence our perceptions of information, our intellectual approach to information and our use of information. The properties apparent in one paradigm may not be present in another.

A problem arises where we have become inured to the properties of one paradigm and consider that they apply mutatis mutandis to another without recognising that paradigmatic change introduces concepts that are so utterly different from a former paradigm that our responses, reactions to and assumptions about information are invalid.

This is particularly so when it comes to consider regulatory structures and policies which may be applicable to developments that occurred under one paradigm and that may not comfortably translate to a new one

It is suggested that it is necessary to examine the qualities of different information technologies to ascertain whether or not continuing assumptions about the nature of information and its communication are still valid, or whether they must be revisited in the light of the new technology which may have significantly different properties from the old.

It is my contention that when we examine the properties of information communication technologies, such as the printing press, alongside new digital technologies including computer-based and internet accessible information, it becomes necessary to re-evaluate our responses to and our assumptions of information that is available within the digital paradigm.

We should be careful to ensure that our policies are not based on assumptions deriving from the “old technology”. A different set of assumptions based upon information derived from the digital paradigm must be developed that recognise and reflect its properties. A tension necessarily arises between our print paradigm expectations and those that are apparent within the digital paradigm. Yet there remains a path where the core values that have developed within the print paradigm may still be reconciled with information derived from the digital paradigm.

Marshall McLuhan made (among many) two observations pertinent to this discussion. When he said “the medium is the message” – a somewhat obscure remark – he was emphasising that when we deal with communications technologies the content that is delivered is secondary and the way in which the message is delivered is important. He emphasised this rather crudely when he said that the “content” of a medium was a juicy piece of meat carried by the burglar to distract the watchdog of the mind.

This means that people tend to focus on the obvious, which is the content, but in the process, we largely miss the structural changes in our affairs that are introduced subtly, or over long periods of time.

As society’s values, norms and ways of doing things change because of the technology, it is then we realize the social implications of the medium. These range from cultural or religious issues and historical precedents, through interplay with existing conditions, to the secondary or tertiary effects in a cascade of interactions of which we may be unaware. This is reflected in the second comment that McLuhan made – We shape our tools and thereafter our tools shape us. In this case the tools are new communications technologies and they have been and still are changing our behaviours and our expectations of what technology can do – especially in the communication of information.

What the technology has done is that it has dramatically changed many of our previously conceived ideas and understandings of information. Our responses illustrate this. The Minister’s remarks when he made his reference to the Commission provide an example. Putting to one side the emotive references to “the Wild West” which are anachronistic and inaccurate, the subtext of the Minister’s comments amount to the following:

a)      People are doing things with information and information systems that they were unable to do before (or could do, but with difficulty)

b)      Some of these actions challenge the rules and the framework of rules that have been set up to regulate information delivery systems

c)      There must be some way by which the actions which challenge the rules are brought within the existing rule structure or framework

Another way of interpreting proposition (c) is to ask how we can put the future within the constraints of the past. In many respects we find that the behaviour of individuals can be addressed within existing rules. The cases of R v Garrett and Police v Slater are examples.

This position becomes more complex when the focus shifts to what may be termed “institutions” such as the news media. The history of press, radio and television are continuing stories of State involvement with the media to one extent or another, be it at the level of content licensing following the statute of 1662 (print), state ownership and control of radio broadcasting as was the situation up until the early 1970’s or television channel licensing as is the case today. In addition there are the regulatory structures of the Press Council and the Broadcasting Standards Authority.

What must be remembered is that as these new technologies came on stream the State was very swift to attempt to assert some sort of control over their operation and output. In New Zealand it would be cynical to suggest that there is a political motive for this, although the curious situation where the Labour Party, which then favoured state control, supported the passage of the News Media Ownership Bill which would have released the stranglehold of newspaper ownership then present in New Zealand and which Labour perceived was right-wing, gives some support to the suggestion that within the political sub-conscious there is a media control agenda.

Of course, various levels and intensity of control are possible with monolithic, centralised  and capital hungry organisations. In the pre-digital paradigm the costs of setting up a newspaper, radio or TV channel were and still are very high, even without regulatory approval.

The digital paradigm challenges that model. It enables everyone to become a publisher. It is not unexpected that news media should rise to the challenge and we find ourselves in a situation where there is a convergence between broadcast and print media in print media websites, and the use by broadcast media of the various communications protocols enabled by the Internet to provide live streaming of content and content on-demand.

But we must remember that the regulatory structures that have been put in place were all pre-digital and with the monolithic model in mind. And furthermore we must remember that the digital revolution (so called) is in fact evolutionary in effect. It may well be that the on-line convergence models utilised by Mainstream Media (MSM) will not be around in 10 years time – and one need only look at the development of Social Media to understand the difference that internet may prompt in terms of behavioural norms and values. It may well be, for example, that MSM will fulfil a different news provision facility, focussing entirely upon factual information and stepping away from opinion and analysis, leaving that present function of MSM to citizen journalists – some of whom may be endorsed or who may write op-ed pieces on a free lance basis although it is acknowledged that this happens now. A possible future is the fragmentation of MSM into a defined and specialist role – again enabled by the new technologies and possible future protocols that may ride on the backbone of the Internet – although I imagine that it would require a culture shift for some journals to break free of a “tabloid” model and return to a more “intelligent” one.

The question that must be asked over and above the issue of the nature of content regulation – and it must be acknowledged that the Law Commission proposals operate at that level – is whether the model of content regulation is appropriate for the new technology. I consider this to be a valid issue. The model  of control of “acceptable” content be it heresy, treason or pornography has not changed significantly since the Constitutions of Oxford 1407 which were designed to address the Lollard heresy.  The model is labour intensive and has struggled to deal with increasing volumes of content made possible by technology. It was originally designed to censor manuscript materials. It struggled with the volume generated by print. Perhaps societal changes and attitudes about indecent content have liberalised to the extent that a very limited definition of “objectionable” reduces the volume, but, having said that every film needs to be viewed and classified and the censors struggle under the volume of content that is contained in video games.

There are associated issues with the question. If we wish to maintain a content control model or a model that responds to content issues do we wish to maintain a variation of the existing model or should we consider adopting a new one. The current proposals suggest the former and, with the greatest respect, this seems to be a rear-view mirror approach to an upcoming and continuing problem. Rather than make behaviours driven by a new technology an uncomfortable fit with a model from a different paradigm, might it not be preferable to address the new paradigm and design a model that recognises it. This, of course, assumes that there is a justification for regulation in the first place. In this respect one looks at existing law and remedies. It is acknowledged that current legal structures and processes make access to legal remedies and procedures difficult for the majority of the citizenry  – and are certainly not assisted by recent restrictions and cutbacks in legal aid. If the new paradigm continues or increases the occurrence of litigable behaviour then a new model needs to be developed to meet that. In this respect the suggestion of a new Tribunal answers such a need.

This then leaves the issue of the special treatment accorded to MSM and I wonder if the time has come, with the increased opportunities for “citizen journalism” to dispense with special treatment for MSM and make what have been privileges for MSM open to all. I immediately acknowledge that this may sound somewhat “Jeffersonian”, overly democratic or introducing an element of chaos into an otherwise reasonably ordered and moderately predictable environment.

On the other hand in a world where everyone may be a publisher, a possible future is that MSM, at least as we recognise it now, may wither and either pass into history like the scribes in the monasteries or transform into some other form of information dissemination model.

Whilst acknowledging that the suggestion of making MSM privileges open to all is radical it must be remembered that the new paradigm with the various protocols that underlie Twitter, Instant Messaging, SMS and the various other models that will appear (and further change WILL come) radically alter our attitudes, approach to and expectations of information.

Edward Kennedy adapted the words of the Serpent in Shaw’s Back to Methuselah as an epitaph for his brother Robert F Kennedy “Some men see things as they are and say why? I dream things that never were and say why not?” In today’s age of democratisation, continued questioning and challenging of established systems and within an environment of dramatic innovation, New Media adherents may well ask “Why not?” For MSM to have any credibility and respect they will need to have an answer. To say “it has always been this way” simply does not cut it in the digital paradigm because the opportunities that the paradigm offers means that it doesn’t have to be “this way”. 

The Technological Drivers

The enabling powers of the new information technologies have resulted in two major shifts. The first  is the democratisation of content production and the rise of the citizen journalist. New technologies remove the need for physical resources such as volumes of paper upon which to print the message. Disseminative qualities remove the need for a physical distribution network. Internet communicative technologies enable “citizen journalists” to publicise their work. Blog sites enable a form of simple publication with appropriate indexing systems. Search engines assist a readership to find the content sought. Thus, instead of the “one to many” static model of MSM the “citizen journalist” has available a “two-way flow” of content dissemination and notification.

The initial concern of Minister Power was to apply regulatory structures to bloggers. The Law Commission response was more measured, suggesting an opt-in model for “citizen journalists” giving them an opportunity to avail themselves of current advantages enjoyed by the news media. But there can be no doubt that the new technologies available have been the enablers of “citizen journalists” and the presence of “citizen journalists” and the content that they impart has raised the issue of the necessity for and scope of any regulatory structure to govern their activity.

The second enabling qualities of new information technologies has resulted in content convergence which has made the old regulatory structures inoperable or redundant. The Law Commission has proceeded from a starting point not of whether or not in the digital paradigm we need news media regulation. That appears to be a given although the raison d’etre has been repackaged as the incentivised model suggested. In a sense new technologies have changed nothing but have changed everything. One reality is that convergence has presented an opportunity to revisit the whole issue of news media regulation and accountability. The other is that its has been technology that has forced the reconsideration.

It will be interesting to see what happens next, for we have travelled only part of the road.

Note:

The Mosaic Approach to Theory Development or Exemplfication.

In his book “Furies: War in Europe 1450 – 1700” historian Lauro Martines  uses a collection of incidents and mini-tales to illustrate and develop a pattern of the nature of war in Europe during his period, and to develop the common themes that make up this study. He considered that the nature of the subject was so complex and the wars that raged throughout Europe were so diverse, employing new technologies as they became available, that the story could only be told by way of a mosaic rather then what could be considered a “linear” study.

In some respects a study of the way in which new communications technologies and protocols impacts upon law, and the use of law as a means of regulating new communications technology in a paradigm of continuous disruptive changes defies a linear approach and favours a mosaic one. Yet, by the same token, story-telling or developing evidence to support an hypothesis is not unknown in the law. Far from it – it is employed in every evidence based trial for, try as they might, it is almost impossible for lawyers to present a  strictly linear narrative in presenting evidence by way of witnesses unless they recall the witnesses from time to time to address a particular evidential issue. This was employed in the case of R v McDonald and is the exception rather than the rule. But in most cases it is for the lawyers to construct a coherent narrative from the evidence for the benefit of the jury or the fact finder and, in the context of the criminal jury trial, for the Judge to locate that narrative within the fabric of the law and thereby direct the jury accordingly.

I have suggested that a study of the impact of new communications upon the law and the development of legal rules favours this mosaic or “jigsaw” approach. One reason is that the field is one of constant flux where the evidential certainties often change. What an historical reality may justify one day may prove to be overtaken by subsequent events. Yet at the same time these pieces from a recent past may at least illustrate if not a theme at least a part of one, and when located within a wider framework may assist us in reaching some conclusions even although they may he in the nature of informed generalisations or partially supported hypotheses.

i have already written in this field and provided some examples of show technological change in the field of communications technologies impacts upon behaviour and values and challenges existing legal rules. At the same time changes and developments in ICT may drive legal change, although in some respects the changes that are made rather preserve a rule developed in an  earlier paradigm rather than recognise the qualities of the new one, and the behavioural changes that it has boroughs or will bring about. In time I hope to assemble enough pieces of  the mosaic or puzzle to develop a universal theory about the impact of communications technologies on the development of rules. I have no illusion that this will be a formidable task, but every journey starts with one step. I have already taken one or two. This piece represents another.

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

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

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

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

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

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

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

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

A claimant would have to provide evidence of four things:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So what should the Tribunal consider before taking action?

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

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

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

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

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

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

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

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

acting in any other way—

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

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

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

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

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

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

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

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

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

Steven also suggests that

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

And he is very frank about the shortcomings of his proposal

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

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

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

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

The IT Countrey Justice

5 June 2012