Collisions in the Digital Paradigm VII – Answering the Internet

When the TV News show Campbell Live came to an end there was a tremendous amount of angst that condemned the network and saw this as another nail in the coffin of TV News. I wrote a piece about the demise of the show and the reaction, but didn’t push “Publish” and I still haven’t . I wasn’t satisfied with the piece. It didn’t properly capture what I wanted to say. So I left it. Until now. Some recent reading has caused me to revisit the piece and place it within a larger context.

A few weeks ago I came across a book by Ken Auletta entitled “Googled: The End of the World as We Know It. “ First written in 2009 and updated in 2010, despite the dystopian title, it is an interesting history of the Google within the context of other Silicon Valley Startups – and it doesn’t really live up to its title. Buit it does have some very interesting things to say about news media – especially print media – in a time of paradigmatic and disruptive change.

The second book was by Jon Ronson and is entitled “So You’ve Been Publicly Shamed” which looks at shaming, what drives it, how the Internet enhances it and what you can do about it – not using legal tools but “reputation management” facilities. The book is an interesting one because some of the situations it describes arise within the context of a “hivemind” that develops with social media applications. That means that often there is not just one bully, but a whole horde of them. And this poses some interesting issues for a legal tool like the Civil Enforcement regime of the Harmful Digital Communications Act 2015.

The third book is by Andrew Keen and is entitled “The Internet is Not the Answer”. If I were to critique this piece of work fully I would need as much space as the book itself and would find myself fisking every paragraph, and I am not going to do that. Rather I want to look at some of the themes present in Keen’s book and address them and then turn to the TV News theme about which I wrote before.

Lets look at the title. Is he critical of the Internet?  No he is not. He is critical of the way in which entrepreneurs have taken advantage of the quality of permissionless innovation that allows them to bolt applications on to the backbone that is the Internet. Because the Internet is merely the transport layer. It is content neutral. Keen’s critique is directed to those who have exploited permissionless innovation to develop applications, put them on the Internet and make large amounts of money in doing so.

One of his major criticisms is that there is an illusion that underlies the apparent “free” nature of these applications. Google, Facebook, Instagram, Uber all monetise our presence and by gathering data associated with our use of their services. Keen criticises this as “without our permission”. The way in which advertising also funds the apparent “free” nature of these applications is a striking theme in Auletta’s book and one to which he devotes a considerable amount of print.

But is this an “Internet” problem? Does the seat of the problem lie within the transport layer? Of course it doesn’t. But to characterise the Internet as the problem makes for a catchy title, and who is going to let a technical fact get in the way of a good line.

One of the stories that Ronson recounts in his book about shaming is the treatment handed out to Jonah Lehrer, a successful writer of “self-help” books and a drawcard on the speaking circuit. In one of his books Lehrer attributed a quote to Bob Dylan that to a journalist who was a Dylan fan didn’t ring true. And it wasn’t. The uncovering led to further investigations and discoveries that certain facts didn’t stack up. A similar thing happened to Mike Daisey who, shall we say, embellished or transplanted some facts to enhance his one-man show “The Agony and Ecstasy of Steve Jobs.”

Keen is not immune to a bit of misstatement of fact himself. There can be no doubt that Apple outsourced the manufacturing of its products to a Foxconn factory in Shenzen and that the use of unsafe products and unsafe work practices were appalling. Keen himself interviewed Daisey . In his book he cites that interview but overlooks the fact that Daisey manipulated the facts and he was exposed for doing so by Ira Glass on This American Life on 16 March 2012. Keen does not qualify his reference to Daisey. There is no doubt that other investigations revealed that the Shenzen plant was dreadful. I think Keen could have cited a more reliable source than an exposed fact manipulator who excused himself by suggesting that “we have different worldviews on some of these things”.

Another factual problem occurs when Keen, who was once in the Internet music business himself with a startup called Audiocafe, discusses the demise of the recorded music business which was part of his life when he lived in Soho in the 1980’s. He refers particularly to Kim Dotcom whom he describes as New Zealand based. I’m not sure I can excuse him the hyperbole of describing Dotcom as a criminal when he has not yet been convicted of criminal copyright infringement, but he does make the statement that Dotcom’s Megaupload platform generated the legal revenue to enable him to buy is 15 million pound Downton Abbey-style mansion in New Zealand. Clearly Keen is no connoisseur of architecture because there is little resemblance between the Chrisco mansion in Coatesville and Highclere Castle in Hampshire. But the suggestion that Dotcom purchased the house is completely wrong. He rents it.

The third factual problem with which I have some difficulty – but I am prepared to give Keen the benefit of the doubt – lies in his assertion about the demise of the HMV record retail outlet on Oxford St which he suggests closed down in 2014. I assume he means the one located at 363 Oxford St which in fact closed in 2013 but reopened later that year. But if that store did close in 2014 he is incorrect to suggest that an HMV music store is not on Oxford St because there is one at 150 Oxford St nearby to the Oxford Circus tube station. I know. I was there in September last year and made some purchases.

I guess that the problem that I have with three examples of factual spin, misuse or misinterpretation is – how many other errors are there. One is left with an uncomfortable feeling about the veracity of the book.

But it is not just a question of fact checking. If the title doesn’t give the away author’s perspective the first few pages do, and the further one reads, the clearer it becomes that this is not a true objective analysis but something of an hysterical polemic that harks back to a mythical Golden Age. Keen is very quick to use perjorative language to indicate his disapproval. For example, it is clear that he actively dislikes Travis Kalanick, the founder of Uber whom he describes as a “hard-core libertarian” who “paced relentlessly around the Failcon stage as if he’d just strode out of an Ayn Rand novel.” The whole book is critical of what he calls disruptive libertarianism and he even takes John Perry Barlow and the Declaration of Independence of Cyberspace as symptomatic of the problem. He says:

“According to Stanford University historian Fred Turner, the Internet borderless idealism, and its ahistorical disdain for hierarchy and authority, especially the tradition role of government, were inherited from the countercultural ideas of Internet pioneers like WELL founder Stewart Brand and the “Declaration of Independence of Cyberspace” author, John Perry Barlow.”

He decries what he calls the “winner take all” approach to the development of Internet startups, is highly critical of the way in which those who, having developed and managed startups to a successful outcome, use the money that they have made through their creativity, entrepreneurship and most of all risk. He overlooks those realities of business. They made it. They took the risk – a risk I might not have been prepared to take in similar circumstances. Surely they can spend it as they wish. For myself, I am unfamiliar with a sense of envy of a person who is better off that I am, nor do I resent them for it, nor seek to acquire that wealth or part of it by some form of “Robin Hood” wealth redistribution process.

Keen uses the demise of Rochester, New York and its once prime employer Kodak as a metaphor for the demise of traditional manufacturing and employment models and lays much of the blame at the feet of on-line startups like Instagram. According to Keen, Kevin Systrom, who had a deep interest in photography, thought about whether there could be an application that enabled users to manipulate photos by the application of filters to give the pictures a warm fuzzy glow or a sepia tinge.

“He spent the rest of the day lying on a hammock, a bottle of Modelo beer sweating by his side, as he typed away on his laptop researching and designing the first Instagram filter.

And so Instagram and its photos – what Systrom, shamelessly appropriating Kodack’s phrase, calls “Instagram moments – were born”

And so Systrom became what Keen prejoratively describes as “a star of the winner takes all economy.”

There are two major themes that underlie Keen’s book. One is that once upon a time – which is how all good fairy stories start – there was a “good time” when everyone was doing well, people were socially responsible, and where people made and sold tangible products like records and clothes and other things. In this golden age there were no great disparities between rich and poor, there was a certain egalitarianism and a relatively even distribution of wealth. He cites the music industry and photography as examples. Indeed when he speaks of Kodak his nostalgic yearning hearkens back to Kodachrome and the song by Paul Simon, but even before the digital era Kodachrome was falling away in the face of colour prints.

The decline of Kodak is probably far too complex to go into here, and I do not think that it was as simple as Keen would like to imagine. In a nutshell, Kodak did not forsee the way in which the digital camera would supplant film. And this is very strange because Kodak in fact invented the first digital camera. But it did not change its business model and by the time it realised what was happening, it was too late.

Keen expresses not concern but loathing for what he describes as the privileged few who are beginning to isolate and cocoon themselves and their communities in unusual buildings and workspaces and who have used their economic power to exclude others from neighbourhoods or beaches. Given his disparagement of the works of Ayn Rand I am surprised he didn’t draw the comparison with John Galt’s impenetrable and hidden mountain community in Atlas Shrugged.

The second theme lies in the solutions Keen proposes. As I have said the book is a polemic but it is not just directed towards the development of Internet based business models like Google, Uber, Instagram, Facebook and the like. Rather it is directed at free enterprise capitalism, successful entrepreneurship and innovation. By the time I was three-quarters of the way through the book I thought I was reading about America in the time of the Rail Barons, Leland Stanford and J.P. Morgan or the oil tycoons like Getty and Rockefeller and the steel magnates like Andrew Carnegie. Indeed, Keen refers to the lessons of history and these very examples. And the solution he poses?  Let the government do something about it. Government approaches are already happening, he says, in the EU with the development of the Right to be Forgotten and examining some of the consequences behind Uber and AirBnB although to be fair I hardly think that a person’s failure to pay tax on the income from a rented room can be laid at the feet of AirBnB.

The answer, he says, is to use the law and regulation to force the Internet out of its prolonged adolescence. He cites examples like the ECHR decision on the responsibility of website owners to police users’ comments, revenge porn laws in England and California and Piketty’s call for a global tax on plutocrats like Mark Zuckerberg or Larry Page. He then goes on to suggest that there are other methods available that do not involve government – in the form of self-regulatory steps like the decision by credit card companies to work with the Police to stop payment to websites that distribute stolen content as well as steps to cut off the flow of advertising revenue to websites profiting from illegal content. No wonder he doesn’t like Ayn Rand. His proposals are the stuff of a libertarian nightmare.

The funny thing is that Keen believes that external controls on the Internet will not undermine innovation, but suggests that future innovation will require partnering with government in areas such as education and healthcare. But the one of the strengths of the digital paradigm has been the quality of permissionless innovation. You don’t need regulatory approval to bolt an application on to the Internet and see if it attracts an audience. Once regulators step in, red tape inevitably follows.

The final theme that Keen develops, and one that he notes has been lacking since Netscape burst on to the scene as the first of many subsequent “killer apps”, is that of social responsibility – another issue with which he runs head to head with the libertarians. The digital elite has to become accountable for the most traumatic socioeconomic disruption since the industrial revolution. Really? That sounds very much like Dr Floyd Ferris, Dr Robert Stadler and Wesley Mouch from Atlas Shrugged.

I have written elsewhere about the issue of paradigm shifts especially in the area of communications technologies but the theory applies in other fields. Disruption is a fact of life. All new technologies have a disruptive effect. Generally their introduction has been a little more gradual than the pace of change that the digital paradigm allows. Who could have forseen urban sprawl, enabled by the motorcar, in the days when cars were “horseless carriages.” What Keen, and to an extent Nicholas Carr who is also something of an Internet dystopianist, fail to understand is the meaning of a quote that he frequently cites. We shape our buildings and thereafter our buildings shape us. Marshall McLuhan modified it a bit – we shape our tools and thereafter our tools shape us. What Keen wants is for the law to run interference on the way that either tools are shaped or the way in which they are going to shape us. Keen also quotes the famous “the medium is the message” but completely fails to undestand what it means – but I won’t go into that here.

I don’t have a quibble with Keen’s values, although they may be based to a large extent on nostalgia. He is quite entitled to hold them, and good luck to him. What I do quibble with is his unwillingness to understand that paradigmatic change is just that. The change will be revolutionary and although it won’t turn the whole world or society upside down it will change it significantly and the change will be dramatic and at times uncomfortable. Keen may seek comfort in his older past and the communitarian values that were formed within the technological context of those times. But change is inevitable and with those changes are going to come changes in behaviours and ultimately in values that underpin our society.

And this brings me to our understanding of broadcasting and TV news and a reflection of attitudes which, while not so expressed with such vitriol as those of Andrew Keen, nevertheless indicate a lack of understanding of paradigmatic change.

An interesting article appeared in the Sunday Star Times on 7 June 2015 entitled “The War on Seriousness” and posed the question “Was the death of Campbell Live the last nail in the coffin of prime time current affairs TV? Or are we on the brink of brave new ways of telling the stories that matter?” The article is an interesting if somewhat nostalgic piece, longing for the heyday or what it calls “serious” television news which has given way to “fluff over substance” observing  “for a decade the internet has been chewing away at the foundations, gobbling up the advertising revenues that sustain New Zealand’s commercial media, and now the foundations seem to be crumbling. ” As Auletta points out, advertising on the Internet is cheaper than on primetime and it can be more targetted too.

The article seems to have ignored the fact first of the plethora of new communications systems and secondly that public expectations of content have changed as a result of these media changes. It may well be that serious journalism is suffering as a result of this, but serious journalism developed in an entirely different paradigm – that of print – and as new methods of communication of information came along – broadcast radio and radio-with-pictures (TV) so too did journalism adapt.

The common feature between newspapers, radio and TV is that they are based on a monolithic one-to-many distribution system that is seriously challenged by the nature of the distributed many-to-many model that underlies the Internet. Even although TV has an impact that cannot be matched by other mainstream media like radio or newspapers I wonder if it is going a bit far to say that it is unmatched by the information distribution system enabled by the Internet. The immediacy in the living room, the ability to see the “whites of the eyes” (a phrase used by Justice Harrison in Aeromotive v Page when commenting on the value of face-to-face cross-examination) is easily available in content other than a main stream TV broadcast and although it is suggested by Paula Penfold of TV3 that TV is accessible, especially free-to-air, especially in primetime, especially on a major channel, such a statement relies on the assumption that in the twenty-first century people actually want to engage with appointment based news transmissions when other methods of acquiring news content at a time that is convenient are available. As Lord Neuberger said when announcing the UK Supreme Court “video on demand” service on 5 May 2015  “Now justice can be seen to be done at a time which suits you.”The same could apply to the consumption of news content.

Peter Thompson, a lecturer in media studies at Victoria University, is quoted in the article as saying:

“There’s a social contract between the state and the public, and it needs to be mediated. We need a fourth estate that holds these people to account. If the news media aren’t able to reflect the society that we live in such that we can identify our issues, moral concerns, political policies, economic policies, we’re impoverished.”

That may be so with a State broadcaster. But I wonder if the proposition overlooks the nature of commercial television, particularly if the channel is other than publicly owned. Thompson goes on to suggest that the government consider a levy on commercial broadcasters (a sort of “polluter pays” principle), a levy on telecom services such as cell phone and broadband fees, a good old-fashioned public licence fee, or other more complex overseas revenue models. Back to the future with a vengeance!! When all else fails bring in the law and the regulators. Andrew Keen would definitely approve.

Some of us remember the bad old days of compulsory licence fees if one owned a television. Given the dire nature of much of the content on free-to-air TV one wonders whether such a fee would be value for money. Perhaps an argument could be mounted that the state has an obligation to fund a free and independent news service under s. 14 of the New Zealand Bill of Rights Act although such an argument might be a bit of a stretch.

I think the problem seems to be how the Fourth Estate should undertake promulgation of information in the public interest in a new paradigm. To mourn the passage of lack of depth in current affairs and the like is to engage in an unhelpful, rear view mirror exercise in nostalgia. There is no entitlement by mainstream news media to a particular model of news dissemination but complaints by media pundits would suggest that it is so. Rather, news media should look for new opportunities that new communications technologies present. There can be no place for sclerotic communications systems in the face of continuing dynamic, disruptive and transformative change. One should recall (and I don’t want to sound like a determinist but it is hard not to) in this time of revolution and evolution of communications systems, the comment of the Borg –  “resistance is futile”.

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

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

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

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

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

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

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

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

A claimant would have to provide evidence of four things:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So what should the Tribunal consider before taking action?

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

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

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

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

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

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

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

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

acting in any other way—

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

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

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

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

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

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

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

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

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

Steven also suggests that

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

And he is very frank about the shortcomings of his proposal

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

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

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

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

The IT Countrey Justice

5 June 2012