Eroding Freedom of Expression

Introduction

There is an ambivalence in New Zealand towards freedom of expression. Freedom of expression is guaranteed in the New Zealand Bill of Rights Act 1990. It guarantees not only the expression of information – the outward flow – but also the receipt of information – the inward flow.

The ambivalence has been growing. Freedom of expression has been pushed to the margins. Although, with a few exceptions, the Government has not actively or outwardly restricted freedom of expression it has nevertheless narrowed the scope of what may be considered acceptable.

The narrowing of scope has been led by the Prime Minister, Ms. Jacinda Ardern. Ms. Ardern is a trained communicator in that she holds a degree of Bachelor of Communication Studies (BCS) in politics and public relations.

Public relations is the practice of managing and disseminating information from an individual or an organization – in her case the Government – to the public in order to influence their perception. Ms. Ardern has done this very successfully. But in managing and disseminating the Government message she has been very careful to ensure that contrary views, criticism and contradiction are pushed to the sideline, so that those views are diminished and devalued and are of no account.

In this piece I trace the trajectory of the erosions of freedom of expression and the growth of ambivalence towards the expression of contrary opinions. I start with the Christchurch Call – perhaps a curious and non-contentious beginning but one that, as it has progressed, has chilling consequences for freedom of expression. I follow with the “sole source of truth” declaration and then embark upon an excursion into the validation of discrimination as an example of the blasé and contemptuous attitude of the Prime Minister to those who chose not to be vaccinated and who, by implication, express a contrarian perspective. I shall conclude with the latest example of Ms. Ardern’s erosion of the freedom of expression when she addressed no lesser a forum than the General Assembly of the United Nations.

 The Christchurch Call

I have written elsewhere about some of the problems with the Christchurch Call. The call to regulate content online is a difficult one as I have pointed out elsewhere.  I see this as a starting point for what appears to be an ambivalence or a relativistic approach towards freedom of expression.

The Christchurch Call is a community of over 120 governments, online service providers, and civil society organisations acting together to eliminate terrorist and violent extremist content online. With that objective there can be little dispute. The difficulty is that extremist content, abhorrent though it might be, should still be allowed a voice as long as it does not advocate imminent harm to people or property. For a discussion of assessing whether expression should be stifled or censored see here.

The Christchurch Call has noble goals but there are a number of concerning features about it.

1. It is government led – the principal drivers for the Call are national governments. Whilst preventing terrorism is necessary for the safety of civil society, such projects may develop “mission creep” and although there is a recognition of the importance of the freedom of expression, “extremism” or “extremist speech” are slippery concepts and depend very much upon the eye of the beholder and the ear of the listener.

• As an example of the issue of “mission creep” the scope of the areas of concern for the Call are expanding to include algorithms, radicalization and gender. The targets of extremism have been expanded to women, LGBTQIA+ communities, youth, and intersectional communities – quite a reach beyond the terrorist lone wolf shooter or bomber and a clear indicator that what the Call is really about is “hate speech.” I have discussed whether “dangerous speech is a better term and how it should be dealt with here and here.

The Call seeks to achieve a “safer Internet” and has enlisted not only national governments but private organisations and some of the tech platforms.

The Call states that

“the future of the internet and the future of our free, open, societies are intertwined. As we look ahead our legacy must be a free, open, secure and interconnected global internet as a force for good, a place where human rights are promoted and upheld and where technology contributes to social mobility and empowerment for all.”

These are laudable goals but the subtext is one of overall control and more importantly overall control of a communications medium. And such control must necessarily impact upon freedom of expression.

The final paragraph of the 2022 Communique issued by Ms Jacinda Ardern and M. Emmanuel Macron is a chilling example of the possible “mission creep” to which reference has already been made.

“Ahead of the Paris Peace Forum, New Zealand, France, and other Call community members with an interest will consider some of these related issues – including disinformation, harassment, abuse, and hatred online, and issues affecting youth – to understand how we might apply what we have learned working on the Christchurch Call, where we can support and engage on related initiatives such as Tech for Democracy, the Summit for Democracy, the Freedom Online Coalition, the Declaration for the Future of the Internet, the Aqaba Process, the Global Partnership for Action on Gender Based Online Harassment and Abuse, the Global Partnership on Artificial Intelligence, and the International Call to Stand up for Children’s Rights Online, and where there is multistakeholder interest in new work programmes separate to the Call.” 

Clearly the Call methodologies and approach are intended to expand to other areas and issues that are distinct and separate from the central goal of terrorism and extremist content that advocates violence.

This may not amount to a direct assault upon freedom of expression but it demonstrates the willingness with which State and Government actors and representatives are prepared to erode and whittle away freedom of expression from the margins. The use of generalized language such as “extremist” without a clear definition means that, as Humpty Dumpty said in Alice Through the Looking-Glass a word “ means just what I choose it to mean—neither more nor less.”

The Single Source of Truth

On 2^nd September 2020 the Prime Minister of New Zealand, Ms Jacinda Ardern said to the Parliament

“I want to send a clear message to the New Zealand public: we will share with you the most up-to-date information daily. You can trust us as a source of that information. You can trust the Director-General of Health. For that information, do feel free to visit at any time—to clarify any rumour you may hear—the covid19.govt.nz website. Otherwise dismiss anything else. We will continue to be your single source of truth. We will provide information frequently. We will share everything we can. Everything else you see – a grain of salt.”

Although this pronouncement was made in the context of information about the COVID-19 pandemic it is clear that it goes much further.

The levels of meaning that can be drawn from this are as follows:

• You don’t need any other information – only ours
• Don’t listen to anyone else on the topic – dismiss anything other than our messaging – take it with a grain of salt
• We are the single source of truth – an echo of Orwell’s Ministry of Truth
• If anyone else expresses a point of view dismiss it (effectively silencing contrary points of view)

This statement discourages any sort of debate, any sort of discourse. Although the freedom of expression protected by the Bill of Rights Act 1990 guarantees the right to impart and receive information, the suggestion that any other person may be able to contribute to the debate is eliminated and the right is negated by the suggestions that no other information is needed apart from that of the State whose pronouncements are “truth” and any dissent should be dismissed.

It is certainly dangerous to the governed in a democracy for any politician, let alone a Prime Minister, to declare that they, or their Government, are a single source of truth.

The Validation of Discrimination

Once the vaccination programme got underway in New Zealand Ms. Ardern endorsed the emergence of a de facto two-tier society.

During a video interview, the PM admitted that the then rules granted vaccinated citizens more freedoms. Asked by a journalist from the New Zealand Herald who asked:

“You’ve basically said, and you probably don’t see it like this, but two different classes of people if you’re vaccinated or unvaccinated. If you’re vaccinated you have all these rights.” Ardern responded enthusiastically, nodding along as she replied: “That is what it is.” She continued:

“If you are still unvaccinated, not only will you be more at risk of catching COVID-19, but many of the freedoms others enjoy will be out of reach. No one wants that to happen but we need to minimize the threat of the virus, which is now mainly spreading amongst unvaccinated people.”

This from a a self-proclaimed believer in the “values of human rights, social justice [and] equality”

What was concerning was that there were many who actually endorsed the two-tier approach, creating division and hostility against those who were unvaccinated or chose not to be. Animus against anti-vaxxers and contrarians began to grow.

Although this may not have a lot to do with freedom of expression the divisiveness that the two-tier approach caused had the effect of marginalizing anyone who expressed a contrary view.

Misinformation and Disinformation

Coincidentally there developed over the pandemic emergency a greater use of two terms – misinformation and disinformation. These became predominantly news media shorthand for any statements that departed from the received wisdom of the government.

Misinformation meant information that misled. Disinformation was false information that the disseminator intended to mislead – in other words lies.  The problem was and still is that those words lack certainty. It seems that they mean what people using them want them to mean and consequently they have taken on a perjorative aspect.

In June 2021 the Classification Office, headed by the then Chief Censor Mr David Shanks, released a paper entitled “The Edge of the Infodemic: Challenging Misinformation in Aotearoa”. It argued that misinformation\disinformation (neither term defined in the paper) was a problem, that it came primarily from Internet based sources, that when people rely on misinformation to make important decisions it can have a harmful impact on the health and safety of communities and can also affect us on a personal level, contributing to anxiety, anger, and mistrust.

It argues that that we should be looking at solutions that work to increase access to good information; lower the volume of misinformation; improve resilience to misinformation; and build levels of trust and social cohesion that can serve as a counter to the more harmful effects.

That this document emerged from the Classifications Office is something of a concern. The Classifications Office is involved in the administration of the Films, Videos and Publications Classification Act 1993. That Act allows for censorship of films, videos, publications, and online content in certain limited and restricted circumstances.

It seemed to be part of a concerted effort on the part of the Classifications Office to expand the scope of censorship and information control currently enjoyed by the Classification Office – another example of “mission creep”.

One of the issues that features in the paper is the importance of social cohesion. At first glance this concept is unremarkable. It suggests societal togetherness in the pursuit of common goals.

The problem is in what lies beneath the term. I would suggest that what it really suggests is conformity not so much in behaviour but in thought. The term implies collective agreement or acceptance of a particular narrative – in this case the sole truth that flows from the State.

Thus any expression of disagreement or dissent is seen not only as an affront to the ”truth” propagated by the State but as an assault or an attempt to erode the monolithic structure of “social cohesiveness” or the complacent conformity that the State requires.

Lest it be thought that I am focusing on a single example – “The Edge of the Infodemic” paper – 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.” [1]

Before that, in October 2019 Mr Shanks claimed that an entirely new media regulator may be required.[2]

At the Otago University Conference were two representatives of the Disinformation Project – the Director, Ms. Kate Hannah and Dr. Sanjana Hattotuwa. The Disinformation Project has been observing and analysing open source, publicly available data related to Covid-19 mis- and disinformation on social media, mainstream media, and in physical and other digital forms of information and knowledge dissemination.

From August 2020, the Project expanded its brief (yet more “mission creep”) beyond Covid-19 to consider mis- and disinformation ecosystems in New Zealand, including the seed and spread of ‘dangerous speech’, hateful expression, and criminal behaviour. The scope of the study involved looking at global trends, themes, narratives, and actors who influence online harms in New Zealand.

Although the Disinformation Project is not a State Actor, its commentary and thrust is directed towards material that is considered harmful because it is contrary to the received wisdom that is a part of the Government message. In this way, perhaps unintentionally, the Disinformation Project becomes complicit in the Government as the sole source of truth narrative.

To further emphasise the role of the Disinformation Project, the focus seems to have shifted from mis/disinformation about COVID-19 issues into the wider political scene. Dr Hattotuwa of the Disinformation project in commenting on the role of Voice for Freedom observed that the group skilfully avoids attempts to regulate mis and disinformation and suggests that Voice for Freedom represents a threat to democracy[3] Clearly from this comment the Disinformation Project is suggesting that there should be some form of regulation of mis or disinformation. In the meantime, as Stephen Judd of Fighting Against Conspiracy Theories Aotearoa (FACT), commenting upon contrarian candidates for local body elections, suggests

“People who hold a set of beliefs about the legitimacy of our institutions, and who are conspiracy theorists and who hide that because they think it would harm their chances of being elected, aren’t operating in good faith.

“So, one of the best things we can do is provide more publicity and exposure to candidates because that ultimately is what leads the public to have a fair view of what they are about.”

Thus we have developing a number of strands that seem to be directed towards suppressing or marginalizing dissent or disagreement. Although the Disinformation Project casts a sinister shadow over the terms, and although the Classification Office may see misinformation and disinformation as having potential objectionable qualities, the reality is that every expression of disagreement or dissent, every expression of a contrary view or opinion, every expression of a challenge to the State message is a part of the normal discourse of society. Disagreement is a fundamental aspect of being human. We all have differing points of view, beliefs, values and standards. And it is part of the democratic tradition that we should be able to express those views.

Of course, associated with that is the fact that those who disagree with us must have the right to express that disagreement. And so the cacophony of debate and the exchange of points of view takes place.

It may be that some points of view are strongly contrarian. Some points of view may be wrong-headed or fly in the fact of reason. But they have a right to be expressed and the speakers have a right to be heard in the same way that those to whom they are speaking have a right not to listen.

The problem is that from the State’s point of view, disagreement and dissent are being treated as inimical to the interests of the State. No longer can dissent be tolerated. It is seen as a weapon of opposition – which it frequently is – but so much so that such opposition is characterized as a war with the State.

One of the justifications for the firm line that has been taken by the State arises from the events of February – March 2022 – the Wellington Protest.

The Wellington Protest

The Wellington Protest and the occupation of the grounds of Parliament House in February-March 2022 represented the culmination of a number of contrarian protests against COVID 19 restrictions that had been taking place over the preceding months. The occupation and its violent end have been well covered in the media and do not need rehearsing here. Many people supporting the protesters drifted on and off the site but once the protest had been dispersed it became a symbol for everything that was bad about mis/disinformation and the expression of contrarian views.

Stuff presented a documentary – Fire and Fury – which represented the protest and those involved in a very unfavourable light. I have already commented on the unbalanced approach taken by the documentary, and that it seems to be an example of agitprop but it demonstrates a lack of tolerance about contrarian speech that seems extraordinary for a news media outlet that should be presenting a more balanced view.

The contrarians would suggest that perhaps aided and assisted by a significant influx of Government money to support mainstream news media and guard against mis/disinformation that Stuff and its opinions have been bought and sold. I could not comment on that for I have no evidence to support such an assertion.

However, from the Stuff perspective, the Wellington Protest and the Fire and Fury documentary has become a weapon with which to beat contrarians. Thus those who were standing for local body positions recently who had attended the Protest were identified without more – no examination of their policies; no opportunity for them to provide an explanation for their actions; no evidence of any sort of balance at all. Yet the article making some of these assertions, together with another which identified those who were and were not successful in local body elections were anything but balanced and afforded the contrarians no opportunity to reply or comment.[4] Perhaps the reason for this is that the authors were wary that to ask for comment meant giving the contrarians a platform.

The Wellington protest added fuel to Ms. Ardern’s approach to freedom of expression. She claimed, without identifying any evidence, that there was foreign influence involved in the misinformation. She said:

As we go through a process of accessing what is it that has allowed the growth of misinformation in this country and how do we address that, we will be at pains to ensure that it never becomes an excuse for the violent acts that have happened.

This provides a backdrop to Ms. Ardern’s speech to the United Nations.

The War on Disagreement

The “war with the State” approach to dissent and to disagreement was epitomized by Ms. Ardern, speaking at the United Nations in September 2022.

At the U.N. General Assembly on Friday, Ms. Ardern announced a new initiative “to help improve research and understanding of how a person’s online experiences are curated by automated processes,” saying the work, done in partnership with companies and non-profits, will be “important in understanding more about mis- and disinformation online – A challenge that we must as leaders address.”

It cannot be co-incidental that there had been a meeting of the Christchurch Call participants in New York shortly before Ms. Ardern’s speech.

In the course of the speech she made reference to the way that contrary speech can inhibit or frustrate progress in the implementation of Government policy.

She asked:

“After all, how do you successfully end a war if people are led to believe the reason for its existence is not only legal but noble? How do you tackle climate change if people do not believe it exists? How do you ensure the human rights of others are upheld, when they are subjected to hateful and dangerous rhetoric and ideology?”

She then moved on the discuss how speech and contrarian speech can be used as a weapon. By characterizing the “weapon-like” qualities of speech she shifts the focus from speech as a means of communicating contentious ideas to speech as a contrarian weapon against established thinking or government objectives.

Of course, this characterization of speech demonizes the speaker. It suggests that rather than a means of resolving difference and reaching consensus – or even recognizing that Government policy may not be the desire of the governed – there is a war between contending ideas. And that implies that at the end of the war there must be a winner. As far as Ms. Ardern is concerned, that winner must be the State.

Such a perspective completely ignores that the fact that governments govern with the consent of the governed. If the majority of the governed do not consent, is it suggested then that they are at war with their government?

She then expanded on the “weapons of war” metaphor, at the same time criticizing those who engage in contrarian speech.

“The weapons may be different but the goals of those who perpetuate them is often the same. To cause chaos and reduce the ability of others to defend themselves. To disband communities. To collapse the collective strength of countries who work together,”

But debate is the answer to contrarian speech. If speech is a weapon that may be used in a disruptive sense, that disruption can be answered by counter speech. At least with speech there is an equality of arms, and Ms. Ardern, as a graduate in communications studies, would be and is well skilled in massaging the message.

But she chose a different path. Without explicitly saying so she suggested that there were methods of countering speech that were other than debate, and clearly the subtext of the remarks that follow is directed towards the suppression of contrarian speech.

“But we have an opportunity here to ensure that these particular weapons of war do not become an established part of warfare. In these times, I am acutely aware of how easy it is to feel disheartened. We are facing many battles on many fronts…But there is cause for optimism. Because for every new weapon we face, there is a new tool to overcome it. For every attempt to push the world into chaos, is a collective conviction to bring us back to order. We have the means; we just need the collective will.”

This is the language of authoritarianism although it is expressed in more mellow terms. Given Ms. Ardern’s communication credentials she is able to make authoritarianism look acceptable. But it is, nevertheless, typical of the mindset of the tyrant.

Ms. Ardern is possessed of a high sense of the righteousness of her cause. She does not debate ideas. She rejects them or refutes the premises of opposition without engaging in debate. She therefore avoids confronting the uncomfortable reality that she may be wrong. And by rejecting and refuting she adopts an air of superiority that views dissent as evil and, because it has become “weaponized” it is too dangerous to allow.

It is perhaps evidence of that sense of righteousness that Ms. Ardern went to the UN and called upon the General Assembly, looking for support for her cause. She called upon the nations present to exercise their collective power to deal with this new weapon of war – contrarian speech.

But deeper than that what Ms. Ardern is talking about is ideas. What she is concerned about, what has been “weaponized” is the way that those ideas have been expressed. Ideas that conform with hers are benign. Ideas that conflict with hers must be stamped out. The days of debate are over.

Her speech focused on the alleged scourge of “mis and disinformation online”.

We must tackle it, she said. She acknowledged some people are concerned that “even the most light touch approaches to disinformation” could come across as being “hostile to the values of free speech”.

She is certainly right there. Her approach is indeed hostile to the values of free speech.

When she moved into the “weapons of war” metaphor she was essentially saying that war is speech. Words wound. Ideas kill.

Politicians and those who support the “official position” and who wring their hands over “misinformation” or “disinformation” are usually just talking about beliefs they don’t like. Mis\disinformation are words that are rendered meaningless by misuse.

Ms. Ardern gave climate-change scepticism as an example of one of those “weapons of war” that can cause “chaos”. “How do you tackle climate change if people do not believe it exists?” she asked.

Those who critique climate-change alarmism, those who call into question the ecolobby’s claims that billions will die and Earth will burn if we don’t drastically cut our carbon emissions, is an entirely legitimate political endeavour, contrarian though it might be. However, in treating it as a species of Flat Earthism, as “disinformation”, the new elites seek to demonise dissenters, to treat people whose views differ to their own as the intellectual equivalent of warmongers.

Activists, whose hype about the end of the world could genuinely be labelled misinformation, are never branded with that shaming word. That’s because misinformation doesn’t really mean misinformation anymore. It means dissent. Deviate from the consensus on anything from climate change to Covid and you run the risk of being labelled an evil disinformant.

Indeed, one of the most striking things about Ms. Ardern’s speech was her claim that if the elites ignore “misinformation”, then “the norms we all value” will be in danger. But for her it is dissent that is the enemy. Ms.Ardern does not want a single voice raised against her.

This is the most common cry of the 21st-century authoritarian – that contrarian speech can have a destabilising and even life-threatening impact, especially if it concerns big crises like climate change or Covid-19.

So “climate deniers” are a threat to the future of the human race and thus may be legitimately silenced. “Lockdown deniers” threaten to encourage the spread of viral infection and thus may be legitimately gagged. The spectre of crisis is cynically used to clamp down on anyone who dissents from the new global consensus.

To see how authoritarian the desire to clamp down on “misinformation” can be, it is worth considering other world leaders who used the platform of the UN to call for tougher controls on speech. Muhammadu Buhari, the ruler of Nigeria, focused on his nation’s “many unsavoury experiences with hate speech and divisive disinformation” and joined the calls for a clampdown on the “scourge of disinformation and misinformation”. Russia’s Foreign Minister, Sergey Lavrov, bemoaned the “disinformation” against his nation. Those supporting Ms. Ardern for standing up to “fake news” are implicitly cheering Buhari and Lavrov, too. They are as one with her when it comes to chasing “misinformation” from the public sphere.

Freedom of expression isn’t only threatened by obvious strongmen – like the rulers of Nigeria or the theocratic leaders of Iran. Ms. Ardern’s UN speech exposed the iron fist of authoritarianism that lurks within the velvet glove of liberal kindness.

Conclusion

In this piece I have mapped a trajectory of gradual erosions of freedom of expression in New Zealand. It is the job of an historian to look at the evidence and interpret it. The evidence in the matter or erosions of freedom of expression in New Zealand starts with the Christchurch Call. The initial target was discrete although the widening of the scope to include extremist speech was modified by the word “violent”.

It was at this time concerns were expressed about “hate speech” although that particular project, signalled by the Government as a matter of concern, appears to be of lesser importance than it was following the events of March 2019 and the Royal Commission Report.

A shift in focus came with the “single source of truth” comments by Ms. Ardern. Although these were outwardly intended to inspire confidence in the truth of the Government messaging, it nevertheless marginalized expressions of contrary opinion and in that respect ramped up the anti-contrarian messaging, consigning it to a “non-truth” category.

The messaging about truth, “non-truth” and the issues of mis and disinformation were picked up by various agencies such as the Disinformation Project and elements of the mainstream news media, reinforcing the Government messaging about the potential damage to Government programmes and policies.

The Wellington Protest fuelled Ms Ardern’s speech at the UN which concludes this discussion and it tells two stories. The first is the chilling of freedom of expression. The second is evidence of the chilling of freedom of expression. International news reports have expressed concern and indeed outrage at Ms. Ardern’s hostile attack on freedom of expression[5]. Has there been such concern expressed here in New Zealand by a news media that is the beneficiary of many millions of Government funding? The rest is silence.

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[1] “Battle Against Online Harm beefs up censor’s power” Mediawatch, 21 March 2021 https://www.rnz.co.nz/

national/programmes/mediawatch/audio/2018788055/battle-against-online-harm-beefs-up-censor-spower

(last accessed 3 July 2022).

[2] https://www.stuff.co.nz/technology/digital-living/116776465/chief-censor-david-shanks-says-an-entirely-new-media-regulator-may-be-needed

[3] Charles Mitchell and Andrew Vance “Around 3000 people are running for council, more than 200 have promoted false information or conspiracies” Stuff 8 October 2022 Around 3000 people are running for council, more than 200 have promoted false information or conspiracies | Stuff.co.nz

[4] Andrea Vance and Charlie Mitchell  Stuff 9 October 2022 https://www.stuff.co.nz/national/politics/local-body-elections/130114188/fewer-than-a-dozen-disinformation-candidates-elected-to-councils

[5] Rita Panahi “’Fake Queen of Empathy’:Ardern’s UN speech described as ‘disturbing, dystopian and dangerous’” Sky News 3 October 2022 https://www.skynews.com.au/opinion/rita-panahi/fake-queen-of-empathy-arderns-un-speech-described-as-disturbing-dystopian-and-dangerous/video/b8a7865217f1325e59884dd9a23b4c7b

The Times view on Jacinda Ardern and Liberty: Unfree Speech  – The Time 3 October 2022 https://www.thetimes.co.uk/article/the-times-view-on-jacinda-ardern-and-liberty-unfree-speech-bqnqzp7mt

“Woke Queen Ardern wages war on free speech” The Australian 3 October 2022 https://www.theaustralian.com.au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww.theaustralian.com.au%2Fcommentary%2Fwoke-queen-arderns-war-on-free-speech%2Fnews-story%2Fb221012efa2dde6ab6e332f5c85626b9&memtype=anonymous&mode=premium&v21=dynamic-groupa-control-noscore&V21spcbehaviour=append

“New Zealand PM Jacinda Ardern condemned for comparing free speech to ‘weapons of war’ at UN” New York Post 29 September 2022 https://nypost.com/2022/09/29/new-zealand-pm-condemned-for-calling-free-speech-weapons-of-war-at-un/

“New Zealand prime minister condemned for calling to regulate free speech as a ‘weapon of war’ at UN” Alexander Hall, Fox News 28 September 2022 https://www.foxnews.com/media/new-zealand-prime-minister-condemned-calling-regulate-free-speech-weapon-war-un

Fire and Fury and….Fear

This is a commentary on a documentary that was released by Stuff and is part of a continuing examination of and commentary on the issue of mis/disinformation. The documentary – Fire and Fury – had the potential to be an informative and useful addition the the material swirling around current concerns about mis/disinformation. Sadly it did not fulfil that potential but rather was caught up in its own pre-determined view of the issue and those participating in it.

As I have earlier observed, I do not generally support the position advocated by those who express contrarian views. At the same time I would not wish their voices to be silenced. An exchange of ideas, although such a hope may be somewhat futile, is far preferable to the alternative which would be a form of censorship.

What follows is my view on the documentary and my reasons for suggesting that it does not fulfil its potential. It is entirely up to the reader whether or not these views find favour.

________________________________________________________________________________________________________

The Stuff documentary “Fire and Fury” is an interesting example of advocacy journalism. One commentator has described it as “agitprop”[1].

Because it originates from a mainstream media source there are certain constraints on its approach. One such constraint is the need for journalistic balance. Yet the introduction to the documentary and its accompanying material on the Stuff website suggests that balance and a portrayal of contesting views, leaving the reader or viewer to come to a conclusion, is not present.

The explanation of the project goes under the heading of opinion. The bias of the piece is clear from the title “Pushing Back Against the Monsters” although one would hope for some journalistic integrity in the piece. This is what it has to say:

You’ll recall the narrative driven (and accepted by many) during the Wellington protest that it was peaceful and had one objective: to end the mandates.

Scratching not too far beneath the surface, though, it was apparent there was an entirely different — and dangerous — agenda.

At Stuff Circuit our role is to investigate matters that are in the public interest, and two things happened around the time of the occupation that got our attention.

First, we saw talk in social media about making the country “ungovernable”. It sounded like a direct threat to democracy. What did it mean? Who were the people saying it and what was their intent?

Second, we started to see extreme violent language, death threats, and the normalising of language not previously used in everyday New Zealand: people talking very publicly about killing authority figures because they didn’t agree with their policies.

We wanted to understand where that had come from and how mainstream it was going; why your auntie or neighbour was putting this stuff on their Facebook page, oblivious and unquestioning as to its origins.

So far, so good. It is clear that this an investigative effort notwithstanding that the position of the authors started to become clear in the second paragraph (not to mention the title) when the suggestion of a “dangerous agenda” is made.

The focus of the documentary becomes clear and this, as described, is perfectly legitimate and clearly in the public interest.

Our focus in Fire and Fury is not the protest itself, but rather the key figures behind it. Who are they, where had they come from, what did they believe? Why were they so keen on the protest, what did they gain from it, and crucially, what do they want to happen next? The documentary explores how they had not come haphazardly to this moment: this seemingly disparate group of key figures is strategically interconnected, stronger together.

However, in the next paragraphs the focus shifts and the conclusions and directions of the documentary become clear. With the perjorative language that is used, it is unlikely that this will be an unbiassed account

Our decision to investigate led to months of being mired in online chat rooms and watching their mass-produced content: the most violent misogyny, racism, religious bigotry, transphobia, homophobia, online stalking and harassment.

And imbued throughout it all, conspiracy theories ranging from the QAnon-driven sinister cabal of paedophiles controlling the world, to the New World Order and the Great Reset Theory. That the pandemic is a guise for world depopulation and the establishment of a tyrannical global government. That the New Zealand government is engaged in democide: the destruction of its own people.

On and on it went. All of it sitting directly alongside and intertwined with disinformation about Covid, vaccines, and the pandemic response, combining to form a vast, dangerous, swirling, nonsensical, paranoid soup of toxicity.

Then there was the question of whether this material should be published. Was it going to give the contrarians (for that is what they are) yet another platform? That issue was dealt with in this way:

Our decision to investigate led to months of being mired in online chat rooms and watching their mass-produced content: the most violent misogyny, racism, religious bigotry, transphobia, homophobia, online stalking and harassment.

And imbued throughout it all, conspiracy theories ranging from the QAnon-driven sinister cabal of paedophiles controlling the world, to the New World Order and the Great Reset Theory. That the pandemic is a guise for world depopulation and the establishment of a tyrannical global government. That the New Zealand government is engaged in democide: the destruction of its own people.

On and on it went. All of it sitting directly alongside and intertwined with disinformation about Covid, vaccines, and the pandemic response, combining to form a vast, dangerous, swirling, nonsensical, paranoid soup of toxicity.

Then there was the question of whether this material should be published. Was it going to give the contrarians (for that is what they are) yet another platform? That issue was dealt with in this way:

But having decided to investigate, the question remained whether we should report what we were seeing. Why risk amplifying inflammatory and harmful material? Why risk making these people more influential than they would otherwise be? (Side note: it’s creepy watching some of them react when they have been in the news. They love it. They get off on it. It makes them feel important. Did we want to facilitate that?)

There were other reasons not to report, not least of which was the personal harassment which would inevitably come our way — as it does to anyone who works in this field — and has been directed at us (including death threats) for previous work. Massey University research of Stuff staff shows two thirds of our colleagues report experiencing actual violence or threats of violence related to their work — a figure far higher than that reported by journalists globally. (You’ll see in Fire and Fury how people have been provoked to hate journalists. There are real world consequences for that.)

The commentary continues with a consideration of not reporting on the findings of the investigation:

And there was one final question: What was the risk of not reporting?

The more we looked at the volume and scope of their material the more it became clear that not covering these people would not make them go away.

The lesson of history suggests that if you let far-right groups have the streets to themselves, they don’t just go home because there’s no one to fight. They’ll find someone to fight, someone to beat up. Any uncontested space, they’ll take over,” is how one journalist summed it up for Data & Society’s advice on reporting on extremists, antagonists, and manipulators.

One of the extraordinary comments in the immediately preceding passage refers to the “lesson of history”. Yet, as I shall demonstrate, a consideration of some of the historical material would suggest that some of the attitudes and approaches by the contrarians was not unique.

This piece is a review of some of the aspects of the Fire and Fury documentary. It is by no means a full review nor is it a critique. Some of the material in the documentary is important and vital – material that citizens should know so that they can be properly informed. But other aspects of the documentary display an absence of balance and almost a paternalistic and patronizing approach to the ability of citizens to make up their own minds.

I shall consider the way in which some of the material is presented, some of the production values underlying the documentary, an overall impression of the documentary and then the way in which history has a best been overlooked or at worst ignored in locating the views of contrarians. I shall discuss the very obvious bias that was displayed towards the end of the documentary and close my discussion with some observations of the impact of alternative (as opposed to mainstream) media on our expectations of information. The conclusion that I reach on the documentary may be surprising and indeed counter-intuitive – I shall leave that to the reader.

The points of view expressed in the production were of two types. The contrarian position was taken from social media posts and other internet-based sources. Significantly there were no interviews with any of the contrarian figures such as Claire Deeks and Chantelle Baker and certainly no discussions with Kelvyn Alps or Damien de Ment. In some respects this is understandable. Given the attitude of the contrarians to the media it is unlikely that they should want to engage. But at the same time those who discussed and critiqued the contrarian approach such as Khylee Quince, Kate Hannah, Ed Coper and others were interviewed and expressed their views in a calm and rational manner.

The way the opposing views were portrayed was interesting. The clips that were taken of the contrarian position were shrill, at times using the language of hyperbole and at other times were emotional and extreme. By contrast those who were interviewed were calm and rational although there were times when subjective views began to creep in.

Another issue arises in the way in which the contrarian position was portrayed. Rather than taking clips from social media platforms and portraying the points of view within that context, often the contrarian position was over-dramatised by superimposing the speaker on the backdrop of a large building, as if they were expressing their views not on a social media platform, but on a large sized electronic advertising billboard. The context became one of a city street scene with the contrarian view echoing through the canyon on buildings as if this was the means by which their views were communicated.

This portrayal misrepresented the medium of communication employed. Certainly it had dramatic effect but it was not a truthful nor realistic portrayal of how the message was communicated. In my view this was carrying creative license too far and again raised questions about the level of balance in the documentary.

The highlight of the documentary was the protest in the grounds of Parliament in March 2022. For some this must have been a disturbing experience to see, the ending was never going to be peaceful, and the violence of the ending cannot in any way be condoned. But once again the documentary used production techniques to lend a highly dramatic backdrop to the event – a backdrop that was not present at the time. Throughout the segment on the Parliamentary protest dark, sonorous, doom-laden music provides a soundtrack, no doubt to heighten the drama of the event. But this was not a drama. Although we are well used to background music in malls and other places, life does not have a musical soundtrack, and in my view to superimpose one – especially one as oppressive and dark as that used in the documentary – is taking a considerable production liberty.

I suppose that the makers of the documentary wanted to emphasise an atmosphere of Gotterdammerung but Richard Wagner’s Siegfried’s Funeral March is positively lyrical in comparison to the Parliamentary protest soundtrack.

Given the various production elements that I have discussed I viewed the piece with growing concern. This clearly was not a balanced objective “put both sides out there” piece of journalism, even although it purported to be that. In essence the writers and producers were paying lip-service (and not a lot of that) to journalistic standards.

During the Parliamentary Protest the journalists involved were on the ground filming and reporting on the event and gathering material which ended up in the documentary. They were challenged by the protesters and the indignant outrage of the journalists, who claimed that they were only doing their jobs, was clearly and unequivocally expressed. I am not sure if this arose from a journalistic attitude of entitlement or ignorance of what they were getting themselves into.

They were reporting on a group of people for whom distrust and scepticism of mainstream media is a significant article of belief. One of the problems in reporting on the contrarian position is that the mainstream media portrayal is largely unfavourable and merely cements in contrarian distrust. Indeed, there is even a point of view in mainstream media that suggests that by reporting on both sides of the protest, a platform is provided to a group that has been banned from Facebook for spreading misinformation.[2]

Another aspect of the problem faced by the media is the fact that the public interest journalism fund provides financial support for public interest journalism. So far, so good. A $55 million fund is available to support New Zealand’s media to continue to produce stories that keep New Zealanders informed and engaged, and support a healthy democracy. Again, so far so good.

The Cabinet paper supporting the fund sets out the difficulties that were faced by mainstream media organisations during the pandemic. But it is in paragraph 5 of the Cabinet paper that one of the objectives of the fund becomes clear. It states “The spread of misinformation related to COVID-19, particularly through social media channels, has sharpened public awareness of the importance of, and reliance on, a strong and independent media sector.”

As is so often the case in the current discussions on misinformation, the term is not defined but it is clear that there is a concern about the expression of contrarian views and that a viable and well-funded mainstream media may provide a counter to contrarian expression. Nothing wrong with a healthy debate, but a shadow is apparent when one considers the optics of the fund. From the contrarian position, the investment of $55 million in sustainable journalism is a means of controlling the message. The view is that of course mainstream media will report the government position favourably, if only to ensure that the cash keeps flowing. Although the presence of the funding may not lead to bias, it is the perception of bias that is the problem.

All of this is further complicated by the fact that the State sees itself as the sole source of truth. As the Prime Minister said to Parliament on 2 September 2020

“I want to send a clear message to the New Zealand public: we will share with you the most up-to-date information daily. You can trust us as a source of that information. You can trust the Director-General of Health. For that information, do feel free to visit at any time—to clarify any rumour you may hear—the covid19.govt.nz website. Otherwise dismiss anything else. We will continue to be your single source of truth. We will provide information frequently. We will share everything we can. Everything else you see – a grain of salt.”[3]

It is little wonder that the contrarians have a perception of bias by mainstream media. The facts can give rise to that inference, and although there is a body of literature to the contrary, in the minds of many, perception is reality. Interestingly enough I understand that Fire and Fury was a beneficiary of that fund. In the minds of the contrarians, QED.

There can be little doubt that mainstream media and its position the arbiters of “truth” has been threatened by the rise of the Internet and social media. In many respects the Internet potentially provides everyone with a platform and in that respect enhances and enables a level of freedom of expression – the reception and dissemination of information – to an extent that society has not seen before. That everyone potentially has a voice is a long sought aspect of democracy.

What follows from this is cacophony and the expression of many and varying viewpoints. Many of these viewpoints are personal opinions only. They may be based on an incomplete or incorrect factual basis but they may, nevertheless, be validly held.

And if some of these views challenge established points of view or perspectives, so be it. To have our viewpoints or opinions challenged is the price we pay for being able to express our viewpoints and challenge those of others.

“Democracy is built on the right to dissent, on the right for people to hold opposing positions. Our societies need freedom of expression to protect us from the worst atrocities that governments can visit on their citizens.”[4]

There are times when a contrarian position will give offence. Salman Rushdie has made a number of comments on the freedom of expression and offence. The starting point is that no one has a right not to be offended. It doesn’t appear in any international instruments on human rights. Rushdie’s view is that

” If you are offended it is your problem, and frankly lots of things offend lots of people.”

Then he locates offence within the context of the freedom of expression

“What is freedom of expression? Without the freedom to offend, it ceases to exist.”

One of the ironies that came out of the Fire and Fury documentary were the expressions of offence on the part of some of commentators including Dean of AUT Law School Khylee Quince who expressed her offence at some of the associations that were developing within the contrarian movement. I would have thought that Ms Quince would have been a little more objective in the expression of her views. Being offended is simply not a good enough argument in my view. Perhaps she should have expressed her disagreement accompanied by reasons.

Underlying the documentary is a concern at the way that social media platforms enable the expression of contrarian positions. Facebook, Twitter, Instagram and other “big tech” platforms have taken steps to address some of the more extreme positions adopted by contrarians but there are other platforms like Telegram and Gab that appear to be quite unregulated and not susceptible to control. These platforms are seen as breeding grounds for disinformation.

Part of the problem about communications technology is the way that it can alter and change our approaches to and our expectations of information. A clear example is in the way that the printing press was an agent of change in the way in which information was communicated and the way that it enabled the expression of contrarian views. Martin Luther’s 97 theses that sparked the Reformation were circulated throughout Germany within two weeks of Luther initiating the debate by pinning his theses to the church door in Wittenberg. His views were as contrarian as they possibly could be and the printing press enabled the dissemination of contrarian points of view and still does.

The underlying properties of internet-based communications technology enable, as I have said, everyone to have a platform and to express a point of view. As I have observed, this is cacophonous but it does mean that people are far more willing to express themselves, often quite pungently, knowing that there may be little consequence visited upon them. The communications technology has enabled this shift in behaviour. The technology enables it.

One of the commentators on Fire and Fury expressed the somewhat interesting point of view that people can be radicalized by over-exposure to extreme ideas. This is an extraordinarily patronizing perspective as well as being a very wide and all-consuming generalization. There can be little support for the view that a whole community is going to become radicalized if they watch Counterspin media too frequently. This does a disservice to the intelligence and common sense of the greater majority of the community.

There are some who have adopted extremist views. Some in the Fire and Fury documentary use extreme language, calling for extreme and violent consequences. How much these people were playing to the camera would need to be assessed and in some cases such expression may be fuelled by highly charged emotions and anger. Although the protest at Parliament ended violently if there had been a true undercurrent of revolutionary violence it would have happened.

We may decry the over-exuberant expression that we see on Internet platforms. Our concerns must be measured against a recognition of the importance of freedom of expression. But regrettably I do not see a return to polite conversation. Communications platforms have been with us for too long and our behaviours have become too ingrained for there to be any likelihood of change. Although this may be seen as a form of technological determinism, it must also be recognized as a reality.

The final point that I would like to make is about the lessons of history, referred to in the opening introduction to the documentary. Was the protest at Parliament that unusual in the overall scheme of things. Was the language of the protesters so extreme. In 1787 in (to our ears) an erudite letter from Thomas Jefferson to William Stephens Smith, Jefferson said

“And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”

This language is probably as extreme as some that was used in March 2022 and yet it is over 200 years old and written at a time when the American Revolution had been successfully achieved.

History is full of similar examples – the French Revolution, the 1830 Revolution in France, the European Revolutions of 1848, the anarchists, Socialists and Bolsheviks of the period leading up to the 1917 Revolution and the student protests in Europe on 1968.

More recently one only has to look at some of the messaging from Al-Quaeda and Islamic State to see that the rhetoric continues. In 2012 protesters erected a mock guillotine to “decapitate” leading politicians as a demonstration against the sale of state assets. In 2014 a musician sang about wanting to kill then then PM and violate his daughter.

In New Zealand certainly in my time some of the so-called radical movements such as the Progressive Youth Movement, Halt All Racist Tours and associated organisations in the mid-sixties, spurred on by perceived societal injustices and taking their lead from similar organisations in other countries, protested and occupied public facilities, but often the radical language of the time was offset by the trending peace, love and flowers of the hippies.

The violence that accompanied the Springbok Tour of 1981 was as bad in its way as the violence at the end of the Parliament Protest, and was just as frightening. But all of this seems to have been forgotten and overlooked by the authors and producers of Fire and Fury. The point I am trying to make is that this is not new.

Interestingly enough, one of the leading lights of the 1960’s protest movement went into politics and was elected Mayor of Waitakere and latterly Invercargill. It is a matter of comment in mainstream media that some of the leading lights of Voices for Democracy and other contrarian groups are putting themselves forward for election in the upcoming local body elections. Some of them have done so before. None of them have so far been elected. Yet there is concern about contrarians exercising their democratic right to stand for election. As I understand it the availability of democratic process does not depend on the quality of your beliefs, although those beliefs may cause rejection by the electorate.

So where does this leave us. Certainly during the early days of the Covid-19 Pandemic the Government was able to prey on public fears of the outbreak of plague and imminent death to justify lockdowns and to enable the acceptance of discriminatory treatment of citizens based on their vaccination status. The initial response was unplanned but necessary. But we are past that now

What the Fire and Fury documentary seeks to do is re-channel that fear to a form of opposition to and distrust of the contrarian movement. But after viewing the documentary I was left with an uncomfortable feeling. In all the talk about the weird conspiracy theories put about by the contrarians perhaps the underlying theme of the documentary is a conspiracy theory itself and it seemed to come from Kate Hannah who is one of the heads of the Disinformation Project. She implies that the real threat to democracy comes from a few people given to euphemistic language who make no secret of their views, who are openly all over social media, making no secret of their views and who are well known to Police and the Security Services. Do we really need to fear this vocal minority.

Perhaps Fire and Fury is an example of a mainstream media-based conspiracy theory based on fear and should be treated as such. Or perhaps it is rather a tale told by an idiot, full of Sound and Fury signifying nothing.

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[1] Graham Adams “Fire and Fury is often funny – unintentionally” The Platform 18 August 2022 https://theplatform.kiwi/opinions/fire-and-fury-is-often-funny-unintentionally (Last accessed 19 August 2022)

[2] Madelaine Chapman “Giving a Voice to Voices for Freedom” The Spinoiff 2 March 2022 https://thespinoff.co.nz/politics/02-03-2022/giving-a-voice-to-voices-for-freedom

[3] Hansard Debates 2 September 2020  Oral Questions – Questions to Ministers – Question 1 https://www.parliament.nz/en/pb/hansard-debates/rhr/document/HansS_20200902_050580000/1-question-no-1-prime-minister

[4] Ben Okri “Authors on the Salman Rushdie attack: ‘A society cannot survive without free speech’” The Guardian 14 August 2022 https://www.theguardian.com/books/2022/aug/14/authors-on-the-salman-rushie-attack-a-society-cannot-survive-without-free-speech

Media Safety? Responding to Tohatoha

On 25 July a new online safety code came into effect. It was drawn up and agreed between a number of online players such as Netsafe, NZTech, Meta (owner of Facebook, Instagram and WhatsApp), Google owner YouTube, Twitch-owner Amazon, Twitter and TikTok.

The Code obliges tech companies to actively reduce harmful content on relevant digital platforms and services in New Zealand as the country grapples with what Netsafe calls a 25 per cent increase in complaints about harmful content over the past year.

It has drawn criticism from InternetNZ and Tohatoha. One of the criticisms is that the Code is very much a work in progress. This cannot be seen as a problem. Any attempt to address harmful content on digital platforms in a dynamic and everchanging environment such as the Internet must be a continuing and developing task that organically morphs to deal with changes in the digital and content ecosystem.

However, there are other concerns surrounding the development of the Safety Code and the way in which it is to be funded and administered, the most concerning being what seems to be a conflict of interest.

As to the development of the Safety Code the concern is that consultation and the process of development was limited. It was conducted primarily through the agency of Netsafe who co-ordinated the development process. Accordingly there seems to have been little input from other agencies such as Tohatoha and InternetNZ, at least until the first draft was released in February 2022. Civil society organisations nor community representatives were not engaged to the same extent. The view is that online safety must be developed with the community at the forefront. The perception is that there was a “coziness” between Netsafe (who will appoint the Administrator) and the corporates.

This criticism is directed primarily at the legitimacy of the Online Safety Code. It suggests quite properly that there should have been wider involvement of the Online Community from the outset rather than being consulted from time to time. The Code would have greater acceptance had it been developed from the ground up with deep involvement by the wider community. Doubtless there were consultations and certainly a draft of the Code was released in February 2022 but that was a call for comment of a developed proposal rather than seeking detailed input on the devising of the proposal itself.

There should have been a greater level of engagement with the wider community in the development of the proposal if only to ensure that there would be consensus on what was ultimately devised and a level of acceptance of the legitimacy of the Code. As matters stand, those who were not deeply involved will be able to stand on the side-lines and criticise as indeed organisations like Tohatoha and InternetNZ are already doing. Given that situation the legitimacy of the Code, at least as far as the wider community is concerned, is questionable.

Another of the criticisms is associated with that of legitimacy and is directed to what is perceived as a conflict of interest.

The key conflict of interest is that NetSafe would be taking funding from the very organisations it is set up to regulate. In addition, the big platforms know that there is a government media regulation review underway. The Code is perceived as an attempt to undermine what should be the public process of the media regulation review which is conducted by Government and any legislation emanating from such review would go through the Select Committee process and the scrutiny of parliament, the media and the general public. The perception is that in developing the review as essentially a non-Government process NetSafe is undermining democratic processes, in collusion with tech platforms.

This criticism has a number of difficulties. Taken to its logical conclusion, it suggests that any form of industry regulation must be government-led. This ignores the various industries and interests that have developed their own methodologies for regulating their own operations in the wider and more public sense. After all, who better to develop a regulatory system than those who have an intimate knowledge of what is to be regulated and who can devise something workable. Involving government would be to add layers of complexity and an absence of specialist knowledge.

But to be fair, this is not the first time that a review of media regulatory structures has been proposed. In 2011 the New Zealand Law Commission released an Issues Paper entitled “The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age”. This was in response to a Government request for a review of the legal and regulatory environment in which New Zealand’s news media and other communicators are operating in the digital era. After a lengthy consultation period which was punctuated by a further paper recommending the enactment of Harmful Digital Communications legislation, in 2013 the final report was released.

What had happened over the lengthy consultation period was that those active in the digital space including mainstream media looked at the regulatory structures that were discussed by the Law Commission in the Issues Paper. There were existing regulatory bodies like the Advertising Standards Authority and the Press Council (which were industry funded and voluntary bodies) and the Broadcasting Standards Authority which was a Government Agency. There were no bodies that dealt specifically with the online space. It was clear to those involved in the dissemination of information online – mainstream media as well as bloggers and the alternative online media – that a regulatory model was on the way. To try and provide an alternative to a government led initiative the Online Media Standards Authority was set up. This was a private organisation, funded by the media itself. Membership was voluntary. It had a complaints process and the Tribunal hearing complaints was chaired by a retired High Court Judge. It dealt with complaints about online media on the same basis as the Press Council dealt with mainstream news organisations.

When the Law Commission report finally came out in 2013 it recommended 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 and the regulatory model proposed by the Law Commission did not come to pass. As it happened OMSA recognised that in some respects its role was redundant, that there was a very low level of work for it and that it should merge with the Press Council which is what happened. The name of the new regulatory body – still voluntary, still funded by the media – is the New Zealand Media Council or NZMC. The members of the Council are drawn from a wide array and the Chair is the Hon Rayner Asher QC, a former High Court and Court of Appeal Judge.

This example demonstrates that there is nothing sinister in organisations establishing and funding their own regulatory structures, even when there is Government interest going on in the background. As I have suggested before, it is often preferable for an industry to regulate itself rather than submit to some “one size fits all” model proposed by Government.

This, then leads to some concerns that I have regarding the critique delivered by Tohatoha and endorsed by a number of other bodies including InternetNZ.

Tohatoha says

“In our view, this is a weak attempt to pre-empt regulation – in New Zealand and overseas – by promoting an industry-led model that avoids the real change and real accountability needed to protect communities, individuals and the health of our democracy, which is being subjected to enormous amounts of disinformation designed to increase hate and destroy social cohesion.”

The statement goes on to say

“We badly need regulation of online content developed through a government-led process. Only government has the legitimacy and resourcing needed to bring together the diverse voices needed to develop a regulatory framework that protects the rights of internet users, including freedom of expression and freedom from hate and harassment.”[1]

These statements must give cause for concern. The first concern is that it suggests that there should be regulation of content on the Internet. The second concern is that this should be through a government-led process. I have already commented on the problems that Government brings to the table in the field of regulation. For Government to be involved in the regulation of news media or indeed any medium that involves the communication of ideas is something that requires a great deal of care. Already Government is involved in a number of areas, such as the enactment of the Films, Videos and Publications Classification Act and the Harmful Digital Communications Act. In addition there is Government involvement in the broadcasting spectrum surrounding the licensing of frequencies under the Radicommunications Act 1989 (and regulations made thereunder) the Telecommunications Act 2001 and the Broadcasting Act 1989.

It seems to me that Tohatoha has overemphasized its advocacy role and overlooked the implications of what it is suggesting. It is clear that by suggesting regulation of content it means a form of control of content. There is another word for this and it is censorship. That a government should lead such regulatory (censorship) process is of even more concern.

Censorship has always been on the side of authoritarianism, conformity, ignorance and the status quo. Advocates for free speech have always been on the side of making societies more democratic, more diverse, more tolerant, more educated and more open to progress.[2]

Finally there is a concern about a loss of social cohesion. By this term what is really meant is a form of coerced conformity and as John Stuart Mill recognized, the most dire threat to freedom comes from social conformity which leads to a shortage of diversity – of inclination, interest, talent and opinion and makes eccentricity a reproach.

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[1] https://www.tohatoha.org.nz/2022/07/statement-on-the-release-of-the-aotearoa-code-of-practice-for-online-safety-and-harms/

[2] Erwin Chemerinsky and Howard Gillman Free Speech on Campus (Yale University Press 2017) p. 27.

Limiting RATs

This post is a form of companion piece to an earlier post “Jacinda’s Labyrinth” which examined some of the legal underpinnings to the management of the COVID pandemic in New Zealand. In this piece I consider the way in which the law has been deployed to manage (or prevent) the use of rapid antigen (RAT) tests

In February 2022 some 30,000 JusChek Rapid Antigen Tests (RAT) were seized by Customs. They had been ordered by Auckland Grammar School and were proposed for school use. It appears that the school was being pro-active in attempting to monitor occurrences of COVID-19 within the school itself. It seems like it was a responsible approach[1].

So why were the tests seized? This was not part of the Government’s “consolidation” (read “sequestration”) of ordered tests. The reason for the seizure was that the tests were banned.

In this post I examine the processes that lie behind the banning of RATs and suggest that the process demonstrates the way in which the Government and the Ministry of Health are determined to maintain strict control of the pandemic and the tools available to counter it.

The starting point must be the COVID-19 Public Health Response Act 2020. There are two important sections – section 9 and section 11. Section 11 gives the Minister the power to make certain Orders. Section 9 sets out the requirements for making such Orders.

Those requirements are:

(a) The Minister must have had regard to advice from the Director-General about—

(i)  the risks of the outbreak or spread of COVID-19; and

(ii)  the nature and extent of measures (whether voluntary or enforceable) that are appropriate to address those risks; and

(b)  the Minister may have had regard to any decision by the Government on the level of public health measures appropriate to respond to those risks and avoid, mitigate, or remedy the effects of the outbreak or spread of COVID-19 (which decision may have taken into account any social, economic, or other factors); and

(ba)  the Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990; and

(c)  the Minister—

(i)  must have consulted the Prime Minister, the Minister of Justice, and the Minister of Health; and

(ii)  may have consulted any other Minister that the Minister (as defined in this Act) thinks fit; and

(d)  before making the order, the Minister must be satisfied that the order is appropriate to achieve the purpose of this Act.

Once there has been compliance with those requirements the Order may be made under section 11. There is nothing in section 11 that provides for a power to make an Order prohibiting the import of certain testing kits. The closest that I can find – and it would require a rather generous interpretation – would be in section 11(1)(a) which provides that the Minister may make an order for the following purpose

•  to require persons to refrain from taking any specified actions or to take any specified actions, or comply with any specified measures, so as to contribute or be likely to contribute to either or both of the following:
•  preventing, containing, reducing, controlling, managing, eliminating, or limiting the risk of the outbreak or spread of COVID-19:
•  avoiding, mitigating, or remedying the actual or potential adverse public health effects of the outbreak of COVID-19 (whether direct or indirect):

The examples contained in section 11(1)(b) do not include importing prohibited items nor providing for an import prohibition. A broad interpretation may be that the Order prevents a specified action (the importation of prohibited items) to avoid actual or potential adverse public health effects of the COVID-19 outbreak.

One further basis for making the Order may be found in section 11(1)(d)

…to require specified actions to be taken, require compliance with any specified measures, or impose specified prohibitions, so as to contribute or be likely to contribute to either or both of the following:

•  preventing, containing, reducing, controlling, managing, eliminating, or limiting the risk of the outbreak or spread of COVID-19:
•  avoiding, mitigating, or remedying the actual or potential adverse public health effects of the outbreak of COVID-19 (whether direct or indirect):

Once again a generous interpretation is required.

Clearly it is envisaged that there can be restrictions on the importation of goods. Section 11(4) provides

“All goods prohibited from import under a COVID-19 order are deemed to be included among goods prohibited from import under section 96 of the Customs and Excise Act 2018, and the provisions of that Act apply to those goods accordingly.”

The COVID-19 Public Health Response (Point-of-Care Tests) Order 2021 came into force on 22 April 2021. The order prohibits a person from importing, manufacturing, supplying, selling, packing, or using a point-of-care test for SARS-CoV-2 or COVID-19 unless the Director-General of Health has:

• authorised the person’s activity; or
• exempted the point-of-care test from the prohibition.

The Order replaces a Notice issued pursuant to section 37 of the Medicines Act 1981. Section 37 gives the Minister the power to prohibit the import of medicines.

The section in full states:

•  The Minister may from time to time, by notice, prohibit the import, manufacture, packing, sale, possession, supply, administration, or other use of medicines of any specified description or medical devices of any specified kind, either absolutely or subject to such conditions as he thinks fit, for any specified period not exceeding 1 year; but he shall not exercise this power more than once in respect of medicines or medical devices so specified.

•  Where the Minister gives a notice under subsection (1), he shall, on the written request of any person, state his reasons for doing so.

•  Every person commits an offence against this Act who contravenes any notice given under subsection (1).

•  A notice under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

By Notice dated 22 April 2020 the Minister of Health prohibited the importation, manufacture, packing, sale, supply or use of any kits and/or other test materials intended for use as point of care testing for COVID-19 infection or for post-infection confirmation using an antigen or antibody detection system unless the particular test kit and/or test materials.

The only exceptions were kits approved by Medsafe and to be used for testing by a specified category of health care professionals.

The Notice expired on 22 April 2020.

It was on that date that the COVID-19 Public Health Response (Point-of-care Tests) Order 2021 came into force. That order provided for a prohibition on the importation, manufacture, supply, sale or use of a point of care test unless the person activity was authorized under clause 8 of the Order or the test was exempt from the prohibition under clause 9.

Clause 9 gives the Director-General of Health the power to exempt any point-of-care tests from the prohibitions contained in the Order. The criteria for exemption are that the Director-General must be satisfied that:

•  the point-of-care test or class of point-of-care tests is sufficiently accurate and reliable so as not to pose a material risk to the public health response to COVID-19; and
•  the exemption is not inconsistent with the purpose of the Act; and
•  the exemption is no broader than is reasonably necessary to address the matters giving rise to it.

The exemptions that have been granted are contained in the New Zealand Gazette and the most recent one is dated 24 February 2022[2]. This exempts a total of 11 Rapid Antigen Tests from the prohibition.

The Notice dated 24 February 2022 replaces another notice published on 4 February 2022 and dated 3 February 2022. In turn that notice approved for exemption 11 RATS.

There is something of a history of Notices under the Point of Care Order. These preceding Orders are dated 28 January 2022, 25 January 2022 and 21 January 2022. These earlier orders related to the authorization of persons who may import RATS or expanding the import and supply of RATs.

If the RATs referred to in the opening of this piece were seized in the first 8 weeks of the year a review of the Orders reveals that the JusChek brand of RATs was not approved for import. However, the JusChek RATs had been approved in Australia by the Therapeutic Goods Administration. It seems curious that RATs that were approved in one jurisdiction are deemed unfit for purpose in another.

There are a number of issues that arise from this unusual situation.

The first is the blanket prohibition on the importation of RATs unless they have been approved. This is not unusual in and of itself but in the context of the COVID pandemic is another example of this Government’s approach to the law which is that everything is prohibited unless it is permitted.

The normal approach is that everything is permitted unless it is prohibited. Once again the Government has turned legal theory on its head.

The second issue lies in the approach of the Government to the use of RATs. Throughout the pandemic the Government and the Health Mandarins have consistently turned their faces from advice that would prove beneficial to the New Zealand public and in the management of the pandemic.

This includes apparently ignoring the report of Sir Brian Roche and Heather Simpson which was made available in September of 2020 but for some inexplicable reason was not released until mid-December 2020. It is claimed that some of the recommendations were implemented or underway but these were difficult to discern.

Then there were the various efforts by Sir Ian Taylor directed to a more nimble and nuanced approach to managing the pandemic. His suggestions were directed towards issues around self-isolation, the use of RATs, alternatives to MIQ and other alternatives. It is clear that his approach does not coincide with Government policy nor indeed the Government narrative to the point that Taylor claimed that he had been asked by the Associate Health Minister to stop writing “bad faith” columns. It seems that anything that is slightly critical of Government policy or that departs from the “party line” is “bad faith”.

The resistance to any form of testing other than the slow and unpleasant PCB test was continuous until the onset of the Omicron variant when it became abundantly clear that the systems in place surrounding PCB testing were quite inadequate to meet the increased demand as a result of the highly infectious new variant. The Director-General of Health had to fall on his sword and apologise for the delays that were being occasioned in the return of PCB test results. Clearly the Government wasn’t responsible, for if it was it would be yet another example of failure to deliver a solution.

Once it became apparent that RAT tests were going to be necessary to keep a track of cases and to (more importantly) allow citizens to find out promptly whether or not they had the disease, things began to move. One only has to look at the flurry of activity as the Director-General started to grant exemptions to the RAT import and use prohibitions which I have detailed above.

The justification for the tardy response has been two-fold. PCB testing is a very accurate way of detecting COVID infections. That is the first justification for staying with the present system. The second reason for the tardy – almost reluctant – response is that RAT tests are not as accurate as the PCB tests.

There might seem to be another reason. PCB testing takes place at testing stations. Those being tested have to check in and provide their details including their health number. The test results can therefore be traced to an individual who may or may not have the disease. And, of course, the tests – managed by the Health Department – provide data that the Department claims is necessary to advise Government as to policy surrounding the pandemic.

RAT testing presents a different scenario and one where the Health Mandarins have no control at all. RAT tests are available over the counter. They can be conducted in the privacy of the home rather than under the surveillance of a PEP clad functionary. And more significantly it is left to the individual as to whether the results are communicated to the authorities. There are a number of reports of people who are NOT reporting a positive test and I imagine that there are a number of reasons.

If I may digress for a moment for the recording of the results of RAT tests may be accomplished through use of the My Covid Record application. Indeed most of the advice about ascertaining information or communicating outcomes specifies an online response.

This requirement is based on a number of assumptions. One is that everyone – and I mean everyone because no one is immune from COVID – has access to an online provider and has the necessary hardware be it a smart phone, laptop or desk top computer by which this access can be accomplished. This is an appalling bourgeois assumption which seems to underpin many aspects of modern communications and seems to be based on the assumption on the part of officials that, because they have access to online systems everyone else may have similar access. Although uptake of the Internet in New Zealand is high that attitude fails to recognize that there is a digital divide in this country where a proportion of the populace do not have access to online systems or are not adept in their use. The provision of an 0800 number assumes that a telephone system will work efficiently but it does not. The system is overburdened and waiting times for pickup are reportedly very long. Yet another piece of bad planning on the part of the Government and its agencies.

Another feature of the individual management of the pandemic – for it is clear that the Government can no longer control the direction of the disease – is the refusal of the Health Mandarins to consider not only a wider variety of RAT tests – such as were sought by the Auckland Grammar School – but also any other form of testing such as saliva testing. I understand that there has been very limited use of saliva testing for COVID – for border workers, health care workers and those in MIQ when it was still required. But saliva testing is not more widely available. Furthermore saliva can be used as a sample for rapid antigen testing. It seems curious that this form of detection is not available.

The slow response to allowing RATs seems to echo the slow response to the introduction of vaccines. It has long been my view that the harshness to the vaccine mandate programme could well have been mitigated by having the unvaccinated undergo a RAT before entering, say, a workplace, and if they test negative all is well. Of course the Health Mandarins say that RATs are inaccurate and that the odd case may slip though but the reality is that RATs are the prime source of detection. Did they suddenly become more accurate? I do not think so. I can understand the reaction of the principal of Auckland Grammar School. In good faith he, no doubt under advice, took steps to ensure health and safety of those for whom he was responsible. The school wanted to be proactive about offering students and staff another layer of protection. His bona fide efforts were thwarted by a punctilious bureaucracy that will admit of no other way than that which it decrees. It seems that it is the Government’s way or the highway when it comes to dealing with COVID. It is yet another example of the failure by the authorities to act reasonably and nimbly in the face of this pandemi

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[1] Covid 19 Omicron outbreak: 30,000 rapid antigen tests seized at borders, high school says situation ‘nonsensical’ NZ Herald 6 March 2022 https://www.nzherald.co.nz/nz/politics/covid-19-omicron-outbreak-30000-rapid-antigen-tests-seized-at-borders-high-school-says-situation-nonsensical/CMAIV2FSHCVEIL44MWU3UENMG4/ (Last accessed 7 March 2022)

[2] https://gazette.govt.nz/notice/id/2022-go587 (Last accessed 7 March 2023)

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)

Digital Content Delivery: “Star Trek: Discovery” and the Digital Paradigm

In the interests of transparency I should disclose that I enjoy reading and watching science fiction. I was lucky enough to be around when the first three seasons of “Star Trek” screened on TV. I enjoyed it then and I have enjoyed all the various developments that have taken place in the Star Trek Universe including the recent series on Prime Video featuring Patrick Stewart as Jean-Luc Picard from “Star Trek: The Next Generation. I don’t think Gene Rodenberry ever imagined ST would be as big as it has become.

I watched the first three series of “Star Trek: Discovery” on Netflix and was impressed with the way that the stories and the characters developed. It was a nice touch to link back to the pilot of the 1960’s series and allow the character of Captain Christopher Pike to develop. I was looking forward to see where Ðiscovery” would “boldly go” (the most famous split infinitive of the twentieth century) on Netflix this week. That was not to be and this post discusses some of the issues surrounding streaming content availability and the outdated delivery strategies that still persist in the minds of many content distributors.

And I am looking forward to seeing Denis Villeneuve’s interpretation of “Dune” – not on a small screen but on as large a screen as possible – one that is big enough to accommodate Shai-halud

Fans of Star Trek – Discovery waited with anticipation for the release of Season 4 scheduled for the second week in November on Netflix which had streamed the three earlier seasons.

In the United States Discovery had streamed exclusively on CBS All Access now known as Paramount +. In a move that surprised Discovery fans worldwide Paramount + removed the rights previously held by Netflix outside of the US. The season – along with the earlier Discovery seasons would show on Paramount + – presently available in the US and some other countries.

This disappointing incident is not the only one as content providers have begun to realise the significance and value of the streaming market. As Netflix propularity increased Disney recovered the streaming rights to its catalogue and launched Disney + in November 2019. Discovery +, HBO Max and Britbox have acted similarly.

This creates a problem for audiences – the consumers to whom content is directed. Rather than having a one stop shop, audiences now have to subscribe to a number of streaming platforms and, of course, pay a separate fee for each one. And in many cases these services are not available worldwide.

This scramble for the streaming content market is another example of the inability of the big content providers to understand that we are no longer in the exclusive market paradigm that was dominated by geographical and staged releases, but in the global digital paradigm.  And this lack of recognition goes back to the early days of the digital paradigm when games and DVD’s contained geoblocking mechanisms, making them unviewable in certain areas of the globe.

There was a way of circumventing the geoblocking code that was in DVDs and the content providers were quick to ensure that the circumvention of technological locks was equated with copyright infringement.

I should point out that what follows is a very simplistic discussion of a very complex and nuanced area of law and should not be taken as a full and authoritative discussion of all the issues and implications.  

Amendments to the New Zealand Copyright Act 1994 adopted a sensible approach to the issue of circumvention of blocking codes which are called technological protection measures (TPM). Unlike the approach in the US which makes any form of circumvention of a TPM unlawful, the New Zealand approach is to look at the purpose of the TPM circumvention. If it is for the purposes of copying the content it is unlawful and is associated with copyright infringement. If, however, it is for the purposes of accessing the content then the TPM can be circumvented.

Although DVDs are somewhat passe the following illustration may assist. DVD distributors would and still do market their products for certain regional zones. Zone 1 is the US, Zone 2 is the UK and Europe and Zone 4 is Australia and New Zealand. DVD players sold in those countries were engineered in such a way as to allow only DVDs for the particular zone to be used on them. That is why, if you purchase a DVD from Amazon you may receive a warning about Zone incompatibility.

Zoning or region coding was devised by the content distributors solely to assist in their market segmentation and distribution arrangements. In some cases DVDs could be released in one zone or region well before release in another. Region or zone coding which limits access and use of a DVD is a TPM.

I purchase a DVD from Amazon that is a Zone 1 DVD – that means it can only be played using a Zone 1 compatible player. I have a Zone 4 DVD player. I have paid for the DVD and should be able to enjoy my purchase. Putting to one side the contractual terms and conditions that may be on the DVD package advising that I can only play the DVD on a Zone 1 player, I am prevented by the TPM from playing the DVD and enjoying the content. No aspect of copyright infringement comes into play in this scenario.

I manage to secure a circumvention device for my player that makes it region free. That means I can play a DVD from any region on my player. The only purpose of the circumvention device is to allow me to do that – it enables me to access the content.

If, however, I obtained a circumvention device that allowed me to unscramble the content scrambling system that prevented copying the content on the DVD and used it to make multiple copies of the DVD then that would be copyright infringement.

The reality of the situation these days is that most DVD players are region free as are some Blu-Ray players. Region coding used to be used by Playstation but Playstation 5 games are not region locked. However, the discussion about region coding serves to illustrate how content distributors engage in market segmentation which is a hangover from the earlier pre-digital movie and TV show distribution models.

The Digital Paradigm has allowed for instantaneous world-wide access to content but the earlier geo-segmented model remains, even with streaming services. The Netflix content that is available in New Zealand is not identical to the content that is available in the US.

Amazon has an interesting streaming model. I subscribe to Prime Video (www.primevideo.com). That allows me to view a wide range of content for a reasonable fee, paid through my Amazon account.

If I access Amazon’s homepage I can get to another flavour of Amazon video content (also labelled as Prime Video). This Prime Video has some content that is not available via my account, even although I may be logged in. In a banner at the top of many of the pages is the message

“Based outside of the U.S.? Some titles might be unavailable in your current location. Go to PrimeVideo.com to see the video catalog available in New Zealand.”

The Prime Video site from the Amazon US webpage also offers a large number of subscription channels including Paramount + and the facility is available to subscribe. The problem is that I cannot do that. But the approach is even more subtle than one that is based on my IP (Internet Protocol) number. It is based on the type of credit card that I use for my Amazon account and that credit card is issued in New Zealand. A message advises me, when I try to subscribe, that

“To subscribe, a U.S. payment method and billing address are required.”

That means that I must have a US issued credit card with a payment address located in the US. And Amazon doesn’t use Paypal.

Now this may suggest that the colour of my money is important and in some respects it is, but if Amazon is happy to accept my New Zealand credit card for purchases and my Prime Video subscription, why aren’t they prepared to accept the same payment method for subscription to one of their channels? Should it matter that I am watching the content from New Zealand?

The ”colour of money” issue is important because it is offered as an answer by content providers to those who tried to circumvent streaming geoblocking by the use of Virtual Private Networks (VPNs) to access content. The VPN effectively disguises the location of the computer or device attempting to access the content and as long as the credit card was valid payment could be made. So the content providers used the payment method to maintain their geoblocking model  adding another layer of difficulty to the access of content.

Of course it is possible to set up a US address and apply for (and obtain) a US credit card but as I have said there are layers of difficulty to that proposition including managing ongoing payments to the credit card provider and the time arrives when it all becomes too complicated and it just isn’t worth the candle.

Maybe it is time to revisit the entire distribution model and recognize something that content providers have been slow to recognize and that is that the Digital Paradigm brings with it paradigmatically different expectations of information and content availability.

In the early days consumers resorted to piracy to obtain content to which they thought they were entitled and which they thought should be free. The file sharing platforms such as Napster, the Pirate Bay, Megaupload and Limewire were shut down over the first decades of the 21^st Century. In New Zealand file sharing was addressed by special provisions of the Copyright Act (Sections 120 – 122U). The last complaint about file sharing was heard in 2015.

One of the reasons why file sharing has fallen off has been that content providers have adopted different business models and users are prepared to pay a reasonable figure for content rather than go through the hassle of Bit Torrent (and other forms of file sharing)  and the security risks to systems posed by unscrupulous copyright infringers. That is not to say that piracy doesn’t occur. It is just a little less obvious and a lot less acceptable than it used to be.

Copyright protection via digital rights management of CDs came to an end when EMI abandoned this form of TPM in 2007. Music in particular became available for very reasonable prices and “song by song” rather than as one song on a CD. Itunes and Spotify have adopted business models that are attractive to consumers including free streaming music from Spotify if one does not object to the occasional intrusive advertising announcement.

Yet video content distributors still do not seem to have adapted to a new model that could continue to maintain and maximise profits. One could complain that there are too many channels, some of them quite specialized.

For example the documentary channel Docplay (www.docplay.com ) had a two part series available entitled “Laurel Canyon: A Place in Time” depicting the Los Angeles music scene in the later 1960’s, an excellent and beautifully made documentary and which I recommend if you enjoy Sixties Californian music. With a little manipulation this series was freely available because Docplay offers 14 days for free. What that means is that a user can access the site for 14 days without paying, but on signing up one has to provide credit card details and the like and if the subscription is not cancelled the payments begin. So the onus is on the user to ensure that the account is cancelled before the 14 days expires. But one of the attractive features about Docplay is that it is not geoblocked – it doesn’t matter where you are or what device you are using to access content.

So the question falls to be answered – if Docplay can do this why not everyone else. And why make some content available to some audiences and not to others. If consumers are prepared to pay the content should be available irrespective of borders. The Digital Paradigm enables this and enhances consumer expectations that this should be so. There seems to be no logic that demands the continuation of the geobased market segmentation model.

Chris Stokel-Walker points out in “Star Trek: Discovery Is Tearing the Streaming World Apart” that

“The average American household accesses eight streaming and video on demand services in a given week, according to data gathered by technology research company Omdia—though that includes free catch-up services and websites like YouTube. In the UK, the average is nearer six to seven, and in mainland Europe, five to six. “For the audience there’s no difference,” says Tony Gunnarsson, principal analyst of TV, video, and advertising at Omdia. “They dip in and out of everything that’s available.” But as major media companies like ViacomCBS, which are racing to catch up to Netflix, attempt to claim space in the streaming industry, it’s only going to get messier for consumers.”

One improvement could be made, and this I draw from the Itunes model. Rather than a subscription payment to a content provider why not introduce a pay per view model. I am not going to watch all of Netflix’ offering. I am going to watch a few programs from Disney+ or Prime Video. Why not fix a reasonable fee to watch a selected program without the necessity for a monthly drain on my credit card.

In the mean time – what has happened to Star Trek Discovery.

Stokel-Walker makes the point

“For Star Trek lovers, keeping up with the universe of content is difficult enough as it is, regardless of where you’re based. While ViacomCBS decided in October 2021 not to renew its streaming licenses for the classic series of the intergalactic show in the United States, international viewers like Leckie are currently still able to watch six separate shows tied to the brand on Netflix. Spin-off shows Picard and Lower Decks, an animated comedy, are available on Amazon Prime Video internationally and Paramount+ in the United States, while kids’ series Prodigy looks likely to land on Paramount+ too. “It’s bonkers,” says Gunnarsson. “A whole range of legacy rights are still active. Right now, this leads to a lot of confusion and frustration for customers, but in the long term these things will be ironed out and you’ll find all the IP for one series within their owner groups’ designated streaming platform.”

And what’s confusing for fans to understand is downright impossible for more casual viewers. Star Trek became such a totemic cultural touchstone because of its enormous viewership, built up at a time when there were far fewer options to choose from on television.”

A partial (and unsatisfactory) solution is available. It depends on the availability of Paramount + or the Pluto SciFi channel

Where Paramount+ is available in Australia, Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Denmark, Dominican Republic, Ecuador, El Salvador, Finland, Guatemala, Honduras, Mexico, Nicaragua, Norway, Panama, Paraguay, Peru, Sweden, Uruguay, and Venezuela, the first two episodes will be available Friday, November 26, with new episodes being released weekly. Star Trek fans in these markets are offered a new membership promotion on Paramount+ for 50% off for the first three months with code STARTREK.*

In Austria, France, Germany, Italy, Spain, Switzerland, and the United Kingdom, Pluto TV, the leading free streaming television service, will drop new episodes at 9pm local time on the Pluto TV Sci-Fi channel each Friday, Saturday and Sunday, with a simulcast running on the Star Trek channel in Austria, Switzerland, and Germany. This will begin with the first two episodes on Friday, November 26.

In the UK, Germany, France, Russia, South Korea and additional select countries, Season 4 is available for purchase on participating digital platforms beginning Friday, November 26.

In the meantime Paramount + is going to launch in Australia. The date set in this report was 11 August but as yet (November 2021) it isn’t available. It could all be so much easier if the content providers would catch up with the Digital Paradigm and its implications. It isn’t just about the simple delivery of content based on an outdated and anachronistic business model from another time. It is about matching consumer expectations and innovating delivery of content. The big entertainment industry has been traditionally slow to recognize that the Digital Paradigm provides fresh opportunities but also requires a willingness to recognize continuing disruptive change.

The fault, dear Brutus, is not in social media/ But in ourselves

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The title of this post is a paraphrase of a couple of lines from “Julius Caesar” Act 1 Scene iii Lines 140 – 141 – apologies to Will Shakespeare of Stratford.

This post is a companion piece to one that I wrote about misinformation and to which reference is made. Lest there be any doubt I am not advocating for misinformation or disinformation. I dislike both. I am concerned with objective fact and reasoned opinion in an effort to ascertain truth and have been all my life.

It is easy – perhaps a soft option – to lay the spread of misinformation at the feet of social media. After all, people post to social media and in a sense the information remains passive until someone else reads it. And therein lies the problem. In my last post I advocated a position based on the employment of common sense and critical faculties – qualities that we all possess.

In this piece I discuss the importance of understanding the medium as a prelude to considering the “responsibility” of social media for the dissemination of misinformation. Exponential dissemination, as I argue, is an essential characteristic of digital communications systems and impacts upon our information expectations

In an earlier post I observed that the target of the concerns about misinformation is “the Internet” – a generalized target that encompasses a world wide communications network. A more recent comment on disinformation attributes its spread to social media.

In a sense, both critiques are correct but they both focus on the content layer rather than upon the medium itself. And it is when we understand the nature of the medium we realise that in many respects it enables many behaviours, some of which are execrable. But the problem is that the cat is out of the bag, the djinni is out of the lamp – which ever metaphor you prefer.

What we are facing are paradigmatically different behaviours in the communications space from anything that has gone before. And because the paradigm is a different one from that to which we are accustomed, we yearn to push back, to return to things “the way they were”. And in saying this we hearken back to an earlier communications paradigm that was, as is the present paradigm, defined and underpinned by the media of communication.

When Marshall McLuhan cryptically said “The Medium is the Message” he was saying that in understanding the impact of the message we must first understand the impact of the medium or media of communication. And although we tend to focus upon what we see and hear – the content layer – the real game changer lies much deeper than that – within the medium itself. It is the medium that enables behaviours and in many respects and as a result of continued use impacts upon the values that validate those behaviours.

Every medium of communication possesses certain properties or affordances that are not immediately obvious. My starting point is the analytical framework developed by the historian Elizabeth Eisenstein in her seminal work The Printing Press as an Agent of Change.^[1] In that work Eisenstein identified a number of qualities present in print technology that differentiated the communication of information in print from that communicated in manuscript. These qualities were not the obvious ones of machine based creation of content but focussed upon the way in which printed material was going to and did impact upon the intellectual activities of educated elites in Early-modern Europe. These qualities were beneath the content layer; not immediately apparent but vital in considering the way in which readers dealt with and related to information and ultimately had an impact upon their expectations of information and how, in turn, they themselves used print to communicate.

Using McLuhan’s suggestion and developing the way in which Eisenstein identified her underlying qualities of print technology, I have identified a number of different qualities^[2], some of which overlap and some of which are complementary.

However, rather than merely identify these qualities I have developed a form of taxonomy or classes of qualities which are occupied by specific exemplars.[3]

For example, I have identified what I call Environmental Qualities. They arise from the context within which digital technologies develop and are descriptive of the nature of change within that context, and some of the underlying factors which drive that change. Because digital technologies primarily involve the development of software tools which operate on relatively standard computing equipment, the capital investment in hardware and manufacturing infrastructure is not present in the development of digital tools, although it certainly is in the development of the hardware that those tools require.

Thus the development of digital software can take place in any one of a number of informal locations where the only requirements are a power supply, a computer and a programmer or programmers. This lack of infrastructural requirements enables the development of software tools which can be deployed via the non-regulated environment of the Internet giving rise to the qualities of permissionless innovation and continuing disruptive change which are discussed in detail.

A second set of qualities I have identified as technical qualities. These are so classified because they underlie some of the technical aspects of the new digital technologies. Some of these qualities are present in a different form in the print paradigm. Eisenstein identified dissemination of content as a quality of print that was not present within the scribal paradigm. I have identified exponential dissemination as an example of a technical quality – the way in which the technology enables not only the spread of content as was enabled by print, but dissemination at a significantly accelerated rate with a greater reach than was enabled by physical dissemination.

Another of the qualities that I identify as a technical one is that of information persistence, summed up in the phrase “the document that does not die.” Once information has been released on to Internet platforms the author or original disseminator loses control of that content. Given the fact that as digital information travels through a multitude of servers, copies are made en route meaning that the information is potentially retrievable even although it may have been removed from its original source.

Other examples of “technical qualities” such as the way in which linear progress through information challenged by navigation via hypertext link in what I call the delinearisation of information; the dynamic nature of information and its malleability in digital format; the way in which seemingly limitless capacity allows for storage of a greater amount of information than was previously considered possible; the apparent non-coherence of digital information and the need for the intermediation of hardware and software to render it intelligible and the problem of obsolescence of information caused by loss arising not from deterioration of the medium but as a result of the unwillingness of software companies to support earlier iterations of software which enabled the creation of an earlier and now inaccessible version of the content. All are aspects of technical qualities that underpin the content of digital information.

The third category of qualities are what I call user associated qualities – qualities that arise in the behaviour of users in response to digital information technologies. Among these user associated qualities is the searchability of digital information and its associated availability and retrievability arising from the development of ever more sophisticated search algorithms and platforms, and the ability of users to participate in the creation of and use of content as a result of the interactive nature of digital technologies, in particular social media.

In some respects aspects of these qualities overlap – they do not stand alone. Indeed the searchability of information presents its own special difficulties. Trying to locate information on the Network has been a problem even before the Internet went commercial. There were search tools such as Gopher in the early days but the advent of sophisticated algorithm driven search tools such as Google have changed the landscape entirely.

Algorithms also select and promote posts and information on social media and associated platforms and frequently select information that is “high engagement”. The algorithms that curate content do so to drive increased engagement. Thus we have a merging of searchability and user participation. The problem is that this imperative of increased engagement seems to attract users who are confused and often gullible and who seek information that confirms their worst fears. For them, social media becomes an echo chamber. But although it is the content that they seek, the availability of the content arises from the inherent qualities of the medium

Thus, all these qualities, cumulatively, have an impact upon our “relationship” with and expectations of information and which have an influence on behaviour.  One form of behaviour is what may be called the online disinhibition effect. This inevitably leads to a consideration of the contentious issue of the effect that new technologies have upon the way that we think. It is suggested that the issue is not so much one of neuroplasticity advanced by Susan Greenfield^[4] or “dumbing down” of attention spans as suggested by Nicholas Carr^[5] but a slightly more nuanced view of the way that the medium and the various delivery systems redefine the use of information which informs the decisions that we make.^[6]

Paradigmatically different ways of information communication and acquisition are going to change the way in which we use and respond to information. And we must recognise that change has happened, that some of our preconceived notions about information and its reliability must change, and that we must adapt our approaches. It is no good trying to hold on to past standards regarding information. They have morphed as a result of the new communications paradigm. It will be interesting to see how the proposed Content Regulatory System Review develops. The target is content, described by McLuhan as akin to  “the juicy piece of meat carried by the burglar to distract the watchdog of the mind” whereas the true target of the review should be the medium and the way that it is changing attitudes to content.

This rather lengthy discussion of the underlying nature of communications systems in the Digital Paradigm is really an introductory to a comment on a piece by Dr Jarrod Gilbert which appeared in the NZ Herald on 23 August.

The article deals with some of the more bizarre manifestations of behaviour and information that seem to beset us. Dr Gilbert acknowledges that this sort of thing is not new but that what is new is the ability for such views to spread quickly and widely – like a contagion as he put it, phraseology that would seem to be apt in these plague-ridden times – but he then lays the responsibility for this at the feet of social media. Social media, he says, provides the oxygen and then proceeds to look for the spark which, if I read him correctly, he attributes to disinformation.

We have to be careful with this word because it can get confused with its close cousin “misinformation”. Just to recap, I have discussed misinformation in an earlier post but it has been defined by the Infodemic Report discussed in that post as  “false information that people didn’t create with the intention to hurt others”. Disinformation, in the same report, has an element of malevolence to it – it is defined as false information created with the intention of harming a person, group, or organisation, or even a country.

The definition in the Oxford English Dictionary is less threatening that that appearing in the report but the dissemination of deliberately false information is common to both. The OED defines disinformation as:

“The dissemination of deliberately false information, esp. when supplied by a government or its agent to a foreign power or to the media, with the intention of influencing the policies or opinions of those who receive it; false information so supplied.”

Dr Gilbert then goes on to consider how bizarre ideas disseminated on social media spread so easily. One aspect is the authoritarian explainer personality whose commentary has an aspect of credibility even although there may be no basis for it. Another is the personality drawn to paranormal thinking or conspiracy theories. Once one conspiracy is believed it becomes easy to believe others.

Having considered the human element and the gullibility of audiences, Dr Gilbert turns his attention to social media and there is no doubt that the use of algorithms, as I have discussed above, enhances engagement which is an essential aspect of the business model of many social media platforms. The association of disinformation and social media is well known and deserves to be highlighted although, as I later suggest in this post, there is a sinister aspect to this within the context of an “authorized truth.” Another feature of social media is that it is not generally viewed as a trusted source of information. In a recent survey two thirds of those questioned expressed low trust in social media. So those about whom Dr Gilbert complains are in a minority and probably prefer the echo chamber that social media affords.

But are social media platforms the problem. I suggest that to say so is to look for the low hanging fruit. The problem is far more nuanced and complex than that. If we look at the underlying properties of the medium we find user participation and exponential dissemination enable the spread of ideas rather than heaping the blame on “social media.” These inherent qualities of digital communications systems would exist despite social media. It is just that social media have managed to “piggy-back” on these characteristics in developing business models.

As the title of this post suggests, with appropriate paraphrasing, the real fault is not with social media but with ourselves. The problems of misinformation and disinformation are not technical issues but are human issues – behavioural issues. It may well be, as I suggest, that behaviours have been modified by the properties of digital communications systems. But in many respects those systems are passive purveyors rather than active influencers. People are influencers, utilizing the enhanced communications opportunities provided by digital systems.

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[1] Elizabeth Eisenstein The Printing Press as an Agent of Change  (Cambridge University Press, Cambridge, 1979) 2 Vols. Reference will be made to the 1 volume 1980 edition; Elizabeth Eisenstein, The Printing Revolution in Early Modern Europe (Cambridge University Press (Canto), Cambridge, 1993).

[2] Eisenstein identified six for print.

[3] I have discussed the qualities or affordances of digital technologies in more detail in my book Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017). The qualities that I identify (and which are summarized above) are:

Environmental Qualities:

                Continuing disruptive change

                Permissionless Innovation

Technical Qualities

                Delinearisation of information

                Information persistence or Endurance

                Dynamic Information

                Volume and capacity

                Exponential dissemination

                The non-coherence of digital information

                Format obsolescence

User Associated Qualities

                Availability, Searchability and Retrievability of Information

                Participation and interactivity

[4] Susan Greenfield “Modern Technology is Changing the Way our Brains Work, Says Neuroscientist” Mail Online, Science and Technology 15 May 2010 http://www.dailymail.co.uk/sciencetech/article-565207/Modern-technology-changing-way-brains-work-says-neuroscientist.html (last accessed 25 July 2016)

[5] Nicholas Carr The Shallows: How the Internet is changing the way we think, read and remember (Atlantic Books, London 2010); Nicholas Carr “Is Google Making Us Stupid: What the Internet is doing to our brains” Atlantic July/August 2008 On line edition http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/ (last accessed 25 July 2016)

[6] For a counter argument to that advanced by Greenfield and Carr see Aleks Krotoski Untangling the Web: What the Internet is doing to you (Faber, London, 2013) especially at pp.35 – 36. For a deeper discussion see Chapter 2 under the heading “The Internet and How we Think.”

[7] New Zealand Bill of Rights Act 1990 section 14.

Lessons Unlearned

The Christchurch Call was a meeting co-hosted by New Zealand’s Prime Minister, Jacinda Ardern and French President, Emmanuel Macron, held in Paris on 15 May 2019. It’s a global call which aims to “bring together countries and tech companies in an attempt to bring to an end the ability to use social media to organise and promote terrorism and violent extremism.”[1]It is intended to be an ongoing process.

This piece was written at the end of last year and for one reason or another – and primarily the Covid-19 crisis – has languished. I post it now as the first anniversary of the Call approaches. The overall context is that of Internet Regulation – content or technology – and the difficulties that presents.

Introduction

The Christchurch Call is not the first attempt to regulate or control Internet based content. It will not be the last. And, despite its aim to reduce or eliminate the use of social media to organize and promote terrorism and violent extremism, it carries within it the seeds of its own downfall. The reason is, like so many efforts before it, the target of the Christchurch Call is content rather than technology.

Calls to regulate content and access to it have been around since the Internet went public.

The Christchurch Call is eerily familiar, not because of what motivated and inspired it, but because it represents an effort by Governments and States to address perceived problems posed by Internet based content.

In 2011 a similar effort was led by then French President Nicholas Sarkozy at the economic summit at Deauville – is it a co-incidence that once again the French are leaders in this present initiative? So what was the Deauville initiative all about?

Deauville May 2011

The Background

In 2011 and 2012 there were renewed calls for greater regulation of the Internet. That these were driven by the events in the Middle East early in 2011 which became known as the “Arab Spring” seems more than coincidental. The “Arab Spring” is a term that refers to anti-government protests that spread across the Middle East. These followed a successful uprising in Tunisia against former leader Zine El Abidine Ben Ali which emboldened similar anti-government protests in a number of Arab countries. The protests were characterised by the extensive use of social media to organise gatherings and spread awareness. There has, however, been some debate about the influence of social media on the political activism of the Arab Spring. Some critics contend that digital technologies and other forms of communication — videos, cellular phones, blogs, photos and SMS messages— have brought about the concept of a “digital democracy” in parts of North Africa affected by the uprisings. Others have claimed that in order to understand the role of social media during the Arab Spring there is context of high rates of unemployment and corrupt political regimes which led to dissent movements within the region. There is certainly evidence of an increased uptake of Internet and social media usage over the period of the events, and during the uprising in Egypt; then President Mubarak’s State Security Investigations Service blocked access to Twitter and Facebook and on 27 January 2011 the Egyptian Government shut down the Internet in Egypt along with SMS messaging.

Sarkozy’s Initiative

In May 2011 at the first e-G8 Forum, before the G8 summit in France, President Nicolas Sarkozy issued a provocative call for stronger Internet regulation. Mr Sarkozy convened a special gathering of global “digerati” in Paris and called the rise of the Internet a “revolution” as significant as the age of exploration and the industrial revolution.

This revolution did not have a flag and Mr Sarkozy acknowledged that the Internet belonged to everyone, citing the Arab Spring as a positive example. However, he warned executives of Google, Facebook, Amazon and eBay who were present:

“The universe you represent is not a parallel universe. Nobody should forget that governments are the only legitimate representatives of the will of the people in our democracies. To forget this is to risk democratic chaos and anarchy.”

Mr Sarkozy was not alone in calling existing laws and regulations inadequate to deal with the challenges of a borderless digital world. Prime Minister David Cameron of Britain stated that he would ask Parliament to review British privacy laws after Twitter users circumvented court orders preventing newspapers from publishing the names of public figures who are suspected of having had extramarital affairs, but he did not go as far as Mr Sarkozy who was pushing for a “civilized Internet” implying wide regulation.

However, the Deauville Communique did not extend as far as Mr Sarkozy may have liked. It affirmed the importance of intellectual property protection, the effective protection of personal data and individual privacy, security of networks, and a crackdown on trafficking in children for sexual exploitation; however it did not advocate state control of the Internet but staked out a role for governments.

Deauville was not an end to the matter. The appetite for Internet regulation by domestic governments had just been whetted. This was demonstrated by the events at the ITU meeting in Dubai in 2012

The ITU meeting in Dubai December 2012

The meeting of the International Telecommunications Union (ITU) in Dubai provided the forum for further consideration of expanded Internet regulation. No less an authority than Vinton Cerf, the co-developer with Robert Kahn of the TCP/IP protocol which was one of the important technologies that made the Internet possible, sounded a warning when he said:

“But today, despite the significant positive impact of the Internet on the world’s economy, this amazing technology stands at a crossroads. The Internet’s success has generated a worrying desire by some countries’ governments to create new international rules that would jeopardize the network’s innovative evolution and its multi-faceted success.

This effort is manifesting itself in the UN General Assembly and at the International Telecommunication Union — the ITU — a United Nations organization that counts 193 countries as its members, each holding one vote. The ITU currently is conducting a review of the international agreements governing telecommunications and it aims to expand its regulatory authority to include the Internet at a treaty summit scheduled for December of this year in Dubai….”

Today, the ITU focuses on telecommunication networks, radio frequency allocation, and infrastructure development. But some powerful member countries saw an opportunity to create regulatory authority over the Internet. In June 2012, the Russian government stated its goal of establishing international control over the Internet through the ITU. Then, in September 2012, the Shanghai Cooperation Organization — which counts China, Russia, Tajikistan, and Uzbekistan among its members — submitted a proposal to the UN General Assembly for an “international Code of Conduct for Information Security.” The organization’s stated goal was to establish government-led “international norms and rules standardizing the behavior of countries concerning information and cyberspace.” Other proposals of a similar character have emerged from India and Brazil. And in an October 2010 meeting in Guadalajara, Mexico, the ITU itself adopted a specific proposal to “increase the role of ITU in Internet governance.”

As a result of these efforts, there was a strong possibility that the ITU would significantly amend the International Telecommunication Regulations — a multilateral treaty last revised in 1988 — in a way that authorizes increased ITU and member state control over the Internet. These proposals, if they had been implemented, would have changed the foundational structure of the Internet that has historically led to unprecedented worldwide innovation and economic growth.

What is the ITU?

The ITU, originally the International Telegraph Union, is a specialised agency of the United Nations and is responsible for issues concerning information and communication technologies. It was originally founded in 1865 and in the past has been concerned with technical communications issues such as standardisation of communications protocols (which was one of its original purposes), the management of the international radio-frequency spectrum and satellite orbit resources and the fostering of sustainable, affordable access to information and communication technology. It took its present name in 1934 and in 1947 became a specialised agency of the United Nations.

The position of the ITU approaching the 2012 meeting in Dubai was that, given the vast changes that had taken place in the world of telecommunications and information technologies, the International Telecommunications Regulations (ITR) that had been revised in 1988 were no longer in keeping with modern developments. Thus, the objective of the 2012 meeting was to revise the ITRs to suit the new age. After a controversial meeting in Dubai in December 2012, the Final Acts of the Conference were published. The controversial issue was that there was a proposal to redefine the Internet as a system of government-controlled, state-supervised networks. The proposal was contained in a leaked document by a group of members including Russia, China, Saudi Arabia, Algeria, Sudan, Egypt and the United Arab Emirates. However, the proposal was withdrawn. But the governance model defined the Internet as an “international conglomeration of interconnected telecommunication networks”, and that “Internet governance shall be effected through the development and application by governments” with member states having “the sovereign right to establish and implement public policy, including international policy, on matters of Internet governance”.

This wide-ranging proposal went well beyond the traditional role of the ITU, and other members such as the United States, European countries, Australia, New Zealand and Japan insisted that the ITU treaty should apply to traditional telecommunications systems. The resolution that won majority support towards the end of the conference stated that the ITU’s leadership should “continue to take the necessary steps for ITU to play an active and constructive role in the multi-stakeholder model of the Internet.”

However, the Treaty did not receive universal acclaim. United States Ambassador Kramer announced that the US would not be signing the new treaty. He was followed by the United Kingdom. Sweden said that it would need to consult with its capital (code in UN-speak for “not signing”). Canada, Poland, the Netherlands, Denmark, Kenya, New Zealand, Costa Rica, and the Czech Republic all made similar statements. In all, 89 countries signed while 55 did not.

From the Conference three different versions of political power vis-à-vis the Internet became clear. Cyber sovereignty states such as Russia, China and Saudi Arabia advocated that the mandate of the ITU be extended to include Internet governance issues. The United States and allied predominantly Western states were of the view that the current multi-stakeholder processes should remain in place. States such as Brazil, South Africa and Egypt rejected the concept of Internet censorship and closed networks but expressed concern at what appeared to be United States dominance of aspects of Internet management.

In 2014 at the NETmundial Conference the multi-stakeholder model was endorsed, recognising that the Internet was a global resource and should be managed in the public interest.

The Impact of International Internet Governance

Issues surrounding Internet Governance are important in this discussion because issues of Internet control will directly impact upon content delivery and will thus have an impact upon freedom of expression in its widest sense. 

Rules surrounding global media governance do not exist. The current model based on localised rule systems and the lack of harmonisation arise from differing cultural and social perceptions as to media content. Although the Internet- based technologies have the means to provide a level of technical regulation such as code itself, digital rights management and internet filtering, and the larger issue of control of the distribution system poses an entirely novel set of issues that have not been encountered by traditional localised print and broadcast systems.

The Internet separates the medium from the message and issues of Internet governance will have a significant impact upon the means and scope of content delivery. From the perspective of media freedom and freedom of expression, Internet governance is a matter that will require close attention. As matters stand at the moment the issue of who rules the channels of communication is a work in progress.

Quite clearly there is a considerable amount of concern about the way in which national governments wish to regulate, or in some way govern and control, the Internet. Although at first glance this may seem to be directed at the content of content passing through a new communications technology, the attempt to regulate through a technological forum such as the ITU clearly demonstrates that governments wish to control not only content but the various transmission and protocol layers of the Internet and possibly even the backbone itself. The Christchurch Call is merely a continuation of that desire by governments to regulate and control the Internet.

Resisting Regulation

The early history of the commercial Internet reveals a calculated effort to ensure that the new technology was not the subject of regulation. The Progress and Freedom Foundation, established in 1993, had an objective of ensuring that, unlike radio or television, the new medium would lie beyond the realm of government regulation. At a meeting in 1994, attended by futurists Alvin Toffler and Esther Dyson along with George Keyworth, President Reagan’s former science adviser, a Magna Carta for the Knowledge Age contended that although the industrial age may have required some form of regulation, the knowledge age did not. If there was to be an industrial policy for the knowledge age, it should focus on removing barriers to competition and massively deregulating the telecommunications and computing industries.

On 8 February 1996 the objectives of the Progress and Freedom Foundation became a reality when President Clinton signed the Telecommunications Act. This legislation effectively deregulated the entire communications industry, allowed for the subsequent consolidation of media companies and prohibiting regulation of the Internet. On the same day, as a statement of disapproval that the US government would even regulate by deregulating, John Perry Barlow released his Declaration of Independence of Cyberspace from the World Economic Forum in Davos, Switzerland.

Small wonder that the United States of America resists attempts at Internet regulation. But the problem is more significant than the will or lack of will to regulate. The problem lies within the technology itself and although efforts such as Deauville, Dubai, the NetMundial Conference and the Christchurch Call may focus on content, this is merely what Marshall McLuhan termed the meat that attracts the lazy dog of the mind. To regulate content requires an understanding and appreciation of some of the deeper aspects or qualities of the new communications technology. Once these are understood, the magnitude of the task becomes apparent and the practicality of effectively achieving regulation of communications runs up against the fundamental values of Western liberal democracies.

Permissionless Innovation

One characteristic of the Digital Paradigm is that of permissionless innovation. No approvals are need for developers to connect an application or a platform to the backbone of the Internet. All that is required is that the application comply with standards set by Internet engineers and essentially these standards ensure that an application will be compatible with Internet protocols.

No licences are required to connect an application. No regulatory approvals are needed. A business plan need not be submitted for bureaucratic fiat. Permissive innovation has been a characteristic of the Internet and it has allowed the Internet to grow. It allowed for the development of the Hypertext Transfer Protocol that allowed for the development of the World Wide Web – the most familiar aspect of the Internet today. It allowed for the development of a myriad of social media platforms. It co-exists with another quality of the Internet which is that of continuing disruptive change – the reality that the environment is not static and does not stand still.

Targetting the most popular social media platforms will only address a part of the problem. Permissionless innovation means that the leading platforms may modify their algorithms to try and capture extreme content but this is a less than subtle solution and is prone to the error of false positives.

Permissionless innovation and the ability to develop and continue to develop other social media platforms brings into play Michael Froomkin’s theory of regulatory arbitrage – where users will migrate to the environment that most suits them. Should the major players so regulate their platforms that desired aspects are no longer available, users may choose to use other platforms which will be more “user friendly” or attuned to their needs.

The question that arises from this aspect of the Digital Paradigm is how one regulates permissive innovation, given its critical position in the development of communications protocols. To constrain it, to tie it up in the red tape that accompanies broadcast licences and the like would strangle technological innovation, evolution and development. To interfere with permissionless innovation would strangle the continuing promise of the Internet as a developing communications medium.

Content Dynamics

An aspect of content on the Internet is what could be termed persistence of information. Once information reaches the Internet it is very difficult to remove it because it may spread through the vast network of computers that comprise the Internet and maybe retained on any one of the by the quality of exponential dissemination discussed below, despite the phenomenon of “link rot.”  It has been summed up in another way by the phrase “the document that does not die.” Although on occasions it may be difficult to locate information, the quality of information persistence means that it will be on the Internet somewhere.  This emphasises the quality of permanence of recorded information that has been a characteristic of that form of information ever since people started putting chisel to stone, wedge to clay or pen to papyrus.  Information persistence means that the information is there but if it has become difficult to locate,and  retrieving it may resemble the digital equivalent of an archaeological expedition, although the spade and trowel are replaced by the search engine.  The fact that information is persistent means that it is capable of location.

In some respects the dynamic nature of information challenges the concept of information persistence because digital content may change.  It could be argued that this seems to be more about the nature of content, but the technology itself underpins and facilitates this quality as it does with many others.

An example of dynamic information may be found in the on-line newspaper which may break a story at 10am, receive information on the topic by midday and by 1pm on the same day have modified the original story.  The static nature of print and the newspaper business model that it enabled meant that the news cycle ran from edition to edition. The dynamic quality of information in the Digital Paradigm means that the news cycle potentially may run on a 24 hour basis, with updates every five minutes.

Similarly, the ability that digital technologies have for contributing dialog on any topic enabled in many communication protocols, primarily as a result of Web 2.0, means that an initial statement may undergo a considerable amount of debate, discussion and dispute, resulting ultimately in change.  This dynamic nature of information challenges the permanence that one may expect from persistence and it is acknowledged immediately that there is a significant tension between the dynamic nature of digital information and the concept of the “document that does not die”.

Part of the dynamic of the digital environment is that information is copied when it is transmitted to a user’s computer.  Thus there is the potential for information to be other than static.  If I receive a digital copy I can make another copy of it or, alternatively, alter it and communicate the new version.  Reliance upon the print medium has been based upon the fact that every copy of a particular edition is identical until the next edition.  In the digital paradigm authors and publishers can control content from minute to minute.

In the digital environment individual users may modify information at a computer terminal to meet whatever need may be required.  In this respect the digital reader becomes something akin to a glossator of the scribal culture, the difference being that the original text vanishes and is replaced with the amended copy.  Thus one may, with reason, validly doubt the validity or authenticity of information as it is transmitted.

Let us assume for the moment that a content moderation policy by a search engine or a social media platform can be developed that will identify extreme content and return a “null” result. These policies will often if not always have identifiable gaps. If the policy relates to breaches of terms of use, how often are these breaches subject to human review which is often more nuanced than an algorithm. Often “coded language” may be used as alternatives to extreme content. Because of the context-specific nature of the coded language and the fact that it is not typically directed at a vulnerable group, targetted posts would in most instances not trigger social media platform content rules even if they were more systematically flagged. In addition the existence of “net centers” that coordinate attacks using hundreds of accounts result in broad dissemination of harmful posts which are harder to remove. Speech that is removed may be reposted using different accounts. Finally, content moderation policies of some social media providers do not provide a means for considering the status of the speaker in evaluating the harmful impact the speech may have, and it is widely recognized in the social science literature that speakers with authority have greater influence on behavior.

Exponential Dissemination

Dissemination was one of the leading qualities of print identified by Elizabeth Eisenstein in her study of the printing press as an agent of change, and it has been a characteristic of all information technologies since. What the internet and digital technologies enable is a form of dissemination that has two elements.

One element is the appearance that information is transmitted instantaneously to both an active (on-line recipient) and a passive (potentially on-line but awaiting) audience. Consider the example of an e-mail. The speed of transmission of emails seems to be instantaneous (in fact it is not) but that enhances our expectations of a prompt response and concern when there is not one. More important, however, is that a matter of interest to one email recipient may mean that the email is forwarded to a number of recipients unknown to the original sender. Instant messaging is so-called because it is instant and a complex piece of information may be made available via a link by Twitter to a group of followers which may then be retweeted to an exponentially larger audience.

The second element deals with what may be called the democratization of information dissemination. This aspect of exponential dissemination exemplifies a fundamental difference between digital information systems and communication media that have gone before. In the past information dissemination has been an expensive business. Publishing, broadcast, record and CD production and the like are capital intensive businesses. It used to (and still does)  cost a large amount of money and required a significant infrastructure to be involved in information gathering and dissemination. There were a few exceptions such as very small scale publishing using duplicators, carbon paper and samizdats but in these cases dissemination was very small. Another aspect of early information communication technologies is that they involved a monolithic centralized communication to a distributed audience. The model essentially was one of “one to many” communication or information flow.

The Internet turns that model on its head. The Internet enables a “many to many” communication or information flow  with the added ability on the part of recipients of information to “republish” or “rebroadcast”. It has been recognized that the Internet allows everyone to become a publisher. No longer is information dissemination centralized and controlled by a large publishing house, a TV or radio station or indeed the State. It is in the hands of users. Indeed, news organizations regularly source material from Facebook, YouTube or from information that is distributed on the Internet by Citizen Journalists. Once the information has been communicated it can “go viral” a term used to describe the phenomenon of exponential dissemination as Internet users share information via e-mail, social networking sites or other Internet information sharing protocols. This in turn exacerbates the earlier quality of Information Persistence or “the document that does not die” in that once information has been subjected to Exponential Dissemination it is almost impossible to retrieve it or eliminate it.

It can be seen from this discussion that dissemination is not limited to the “on-line establishment” of Facebook, Twitter or Instagram, and trying the address the dissemination of extreme content by attacking it through ”established” platforms will not eliminate it – just slow down the dissemination process. It will present and obstruction as in fact on-line censorship is just that – an obstruction to the information flow on the Internet. It was John Gilmore who said The Net interprets censorship as damage and routes around it. Primarily because State-based censorship is based on a centralized model and the dissemination of information of the Internet is based upon a distributed one, effectively what happens on the Internet is content redistribution which is a reflection both of Gilmore’s adage and the quality of exponential dissemination.

The Dark Web

Finally there is the aspect of the Internet known as the Dark Web. If the searchable web comprises 10% of available Internet content there is content that is not amenable to search known as the Deep Web which encompasses sites such as LexisNexis and Westlaw if one seeks and example from the legal sphere.

The Deep Web is not the Dark Web. The Dark Web is altogether different. It is more difficult to reach than the surface or deep web, since it’s only accessible through special browsers such as the Tor browser. The dark web is the unregulated part of the internet. No organization, business or government is in charge of it or able to apply rules. This is exactly the reason why the dark web is commonly associated with illegal practices. It’s impossible to reach the dark web through a ‘normal’ browser, such as Google Chrome or Mozilla Firefox. Even in the Tor browser you won’t be able to find any ‘dark’ websites ending in .com or .org. Instead, URLs usually consist of a random mix of letters and numbers and end in .onion. Moreover, the URLs of websites on the dark net change regularly. If there are difficulties in regulating content via social media platforms, to do so via the Dark Web would be impossible. Yet it is within that environment that most of the extreme content may be found.

Effective Regulation

The Christchurch Call has had some very positive effects. It has drawn attention, yet again, to the problem of dissemination of extreme and terrorist content online. It should be remembered that this is not a new issue and has been in the sights of politicians since Deauville although in New Zealand, as far back as 1993, there were proposals to deal with the problems with the availability of pornography online.

Another positive outcome of the Christchurch Call has been to increase public awareness and corporate acceptance of the necessity for there to be some standards of global good citizenship on the part of large and highly profitable Internet based organisations. It is not enough for a company to have as its guiding light “do no evil” but more is required including steps to ensure that its service are not facilitating the doing of evil by others.

At the moment the Christchurch Call has adopted, at least in public, a velvet glove approach, although it is not hard to imagine that in some of the closed meetings the steel fist has been if not threatened at least uncovered. There are a number of ways that the large conglomerates might be persuaded to toe a more responsible line. One is to introduce the concept of an online duty of care as has been suggested in the United Kingdom. Although this sounds like a comfortable and simple concept, anyone who has spent some time studying the law of torts will understand that the duty of care is a highly nuanced and complex aspect of the law of obligations, and one which will require years of litigation and development before it achieves a satisfactory level of certainty.

Another way to have conglomerates toe the line is to increase the costs of doing business. Although it is in a different sphere – that of e-commerce – the recent requirement by the New Zealand Government upon overseas vendors to impose GST is an example, although I was highlighting this issue 20 years ago. Governments do not have a tendency to move fast although they do have a tendency to break things once the sleeping giant awakes.

Yet these various moves and others like them are really rather superficial and only scratch the surface of the content layer of the Internet. The question must be asked – how serious are the governments of the Christchurch Call in regulating not simply access to content by the means by which content is accessed – the technology.

The lessons of history give us some guidance. The introduction of the printing press into England was followed by 120 years of unsuccessful attempts to control the content of printed material. It was not until the Star Chamber Decrees of 1634 that the Stuart monarchy put in place some serious and far-reaching regulatory requirements to control not what was printed (although that too was the subject of the 1634 provisions) but how it was printed. The way in which the business and process of printing was regulated gave the State unprecedented control not only over content but by the means of production and dissemination of that content. The reaction against this – a process involving some many years – led to our present values that underpin freedom of the press and freedom of expression.

As new communications technologies have been developed the State has interested itself in imposing regulatory requirements. There is no permissionless innovation available in setting up a radio station or television network. The State has had a hand of varying degrees of heaviness throughout the development and availability of both these media. In 1966 there was a tremendous issue about whether or not a ship that was to be the platform for the unlicensed and therefore “pirate” radio station, Radio Hauraki would be allowed to sail. The State unsuccessfully tried to prevent this.

Once upon a time in New Zealand (and still in the United Kingdom) anyone who owned a television set had to pay a broadcasting fee. This ostensibly would be applied to the development of content but is indicative of the level of control that the State exerted. And it was not a form of content regulation. It was regulation that was applied to access to the technology.

More recently we are well aware of the so called “Great Firewall of China” – a massive state sponsored means of controlling the technology to proven access to content. And conglomerates such a Google have found that if they want to do business in China they must play by Chinese rules.

The advocacy of greater technological control has come from Russia, Brazil, India and some of the Arab countries. These States I think understand the import of McLuhan’s paradox of technology and content. The issue is whether or not the Christchurch Call is prepared to take that sort of radical step and proceed to consider technological regulation rather than step carefully around the edges of the problem.

Of course, one reason why at least some Western democracies would not wish to take such an extreme step lies in their reliance upon the Internet themselves as a means of doing business, be it by way of using the Internet for the collection of census data, for providing taxation services or online access to benefits and other government services. Indeed the use of the Internet by politicians who use their own form of argumentative speech has become the norm. Often, however, we find that the level of political debate is as banal and cliched as the platforms that are used to disseminate it. But to put it simply, where would politicians be in the second decade of the 21^st Century without access to Facebook, Twitter or Instagram (or whatever new flavor of platform arises as a result of permissionless innovation).

Conclusion

I think it is safe to say that the Christchurch Call is no more and no less than a very well managed and promoted public relations exercise that is superficial and will have little long term impact. It will go down in history as part of a continuing story that really started with Deauville and continues and will continue to do so.

Only when Governments are prepared to learn and apply the lessons about the Internet and the way that it works will we see effective regulatory steps instituted.

And then, when that occurs, will we realise that democracy and the freedom that we have to hold and express our own opinions is really in trouble.

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[1] Internet NZ “The Christchurch Call: helping important voices be heard” https://internetnz.nz/Christchurch-Call (Last accessed 2 January 2020)

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

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

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

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

The first point that he makes is that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Facebook and the Printing Press

A recent article in the New Zealand Herald cites historian Niall Ferguson as drawing comparisons between the early days of the printing press and the current free wheeling Digital Paradigm. The argument is that we should learn from the lessons of history

There is no comparison between the technologies.

To suggest that the printing press enjoyed the “permissionless innovation” afforded by internet and digital technologies ignores that fact that in England the press was under the control of the Stationers Guild (later Company after 1556) who licensed what printers could print and kept a very close eye on what printers did. Indeed, their control was such that only the Universities of Oxford and Cambridge were the sites of presses outside of London.

Then there was state regulation of printing that took a number of forms. The Royal Stationer – later the Royal Printer – was responsible for printing the King’s view on things – statutes, proclamations and other such. Thomas Cromwell used the press to great effect during the English Reformation. It was he who used preambles in Statutes to identify the “mischief” that the statute was intended to remedy.

After the incorporation of the Stationers (during the reign of Mary I) it was anticipated that the Company would aid the State using its newly granted search powers to root out the printers of heretical tracts. However the power was deployed to root out unlicensed printers who were not members of the Stationers.

There were also many other efforts by the State to regulate content, some more successful than others. The Star Chamber Decrees of 1587 and 1634 were rather dramatic examples. The Decrees were in fact judgments of the Court in cases involving printing disputes.

Just prior to the Civil War that power of Star Chamber was nullified and printers enjoyed considerable freedom and lack of regulation but it did not last once Oliver Cromwell and the Puritans gathered strength.

After the Restoration there was significant regulation both of printers and the content of the Press by means of Licensing Acts the first of which was in 1662 and which was renewed regularly thereafter until 1694. Charles II’s enforcer as far as print was concerned was a phanatick (to use the spelling adopted by Neal Stephenson in his Baroque Quartet) by the name of Roger L’Estrange – a very nasty piece of work both by the standards of his time and ours.

In 1694 the Licensing Acts came to an end, primarily as a result of political strife within a greater context, and until 1710 there was a lack of restriction on printing. This all changed when the focus moved from the printer to the author who should have control of content and the Statute of Anne was the first Copyright Act.

So to say that there is a parallel between Silicon Valley’s freedom to develop platforms and bolt them on to the Internet and the early history of the printing press is wrong. Indeed, the whole structure of the communications technologies is different. The printing press was the technology and essentially books, magazines, pamphlets and papers were the medium. Today the Internet is the communications technology and Facebook, Twitter, blogs etc etc are platforms bolted on to it. The absence of red tape (what I call permissionless innovation) is what has enabled the growth of the Internet and the proliferation of platforms.

The call is for regulation, but regulation of what. Better to have a regulatory plan in place that we can discuss rather than disembodied pleas to “do something”. Perhaps we could turn to history but I think we have moved on from the semi-absolutist model of the Tudors and Stuarts.