Sleepwalking into digital censorship

Whether deliberately or inadvertently, Minister Judith Collins is focussing attention and media discussion on the cyber bullying aspects of the Government’s recently announced digital censorship proposals (Time’s up for cyber bullies). People are being prompted to think about law changes in relation to teenagers, suicide, lifelong impacts, and victim protection. The result is media campaigns against cyber bullying and horrific stories of abuse. But the proposals are much wider than that.

Cyber bullying is very serious and more needs to be done. As I’ve said previously, I fully support and “welcome effective, proportionate and well targeted steps from the Government.” However, we need to understand that the Government’s proposals cover all types of digital communications causing serious harm. They are not age limited. They are certainly not narrowly targeted at preventing harm to our kids.

When you think about and evaluate the Government’s proposals, go beyond teenagers and suicide. That is the bone we are all paying attention to. Think also about complaints against digital communications prompted by political differences, commercial rivalries, religious extremists, and even that person who writes letters to newspapers everyday complaining about the latest imagined outrage.

Think about free speech and individual freedoms, the hallmark of our society.

Bundled with good moves updating existing laws for the Internet; strengthening anti-bullying efforts by schools; and reducing suicide and grooming is the introduction of a digital censorship regime for all types of serious harm caused by digital communications. It is a clear move to introduce communication standards, and therefore censorship, for all types of digital communications.

Beyond kids

Stephen Price has done a good job in outlining the multiple prerequisites that need to be met before a District Court judge will be able to order a remedy. He, and others, believe that they are collectively a sufficient barrier to digital censorship and harming free speech. However, what seems to be missing in the debate is the width of scenarios in which people can take action against perceived harm. It is not about teenagers alone but anyone unhappy about any digital communication that meets the widest imaginable coverage of the ten communications principles.

Let’s take an example.

I go to the hospital and am distressed to see a child suffering from the effects of Hepatitis B. On Facebook, I post “Should be compulsory for parents to immunise their children in NZ. If parents can’t/won’t immunise child, the Government should.” Later that evening, I post again, “Really upset by parents not immunising their children. Why are these parents putting their kids at risk?”

The parent’s child is not my Facebook ‘friend’ and so the posts are not specifically targeted at him/her. The parent’s attention is drawn to my posts and feels significantly emotionally distressed by an implication that the child had not been immunised and/or a failure of due parental care. The parent is also unhappy that I have misrepresented the right to make an informed decision about immunisation. The parent asserts that I am factually wrong in implying that immunisation is a 100% guarantee against that particular disease.

Does this meet all the requirements for the parent to approach the approved agency? Yes. The parent tells the approved agency that my repeated posts were threatening, intimating and menacing. They caused him/her significant emotional distress. Unhappy that the approved agency doesn’t do anything, the parent takes the case to court.

Now, the District Judge may or may not order remedies including takedown and apology. The point is that the threat of that happening to what I consider to be a reasonable thing to do will prevent New Zealanders from being able to express what they should be able to do in a free society.

This is perhaps a contrived example. As an exercise in understanding, come up with your own examples of ridiculous scenarios where the communications principles (para 54 on page 8 of the Cabinet Paper) could cause significant emotional distress or other harm but are fully within acceptable societal behaviour. The threat of legal action is exactly what digital censorship is all about.

Three months in jail for intentionally causing a friend significant emotional harm by texting that you lost 5 kg last week (when you know that you only lost 4 kg)? Surely not.

Law Commission quite clear

The Law Commission itself had no illusions that its proposals went far beyond the Government’s intended focus on cyber bullying. The Law Commission says its report was in response to the Minister’s rising concerns about the impact of cyber-bullying on young people. However, in its briefing paper (report) to Government, the Law Commission says “… we consider the issue of cyber-bullying within the wider context of harmful digital communication. It is a subset of the type of communication harms we have been asked to address.”

In other words, while the Government wanted to specifically tackle cyber bullying, the Law Commission’s report goes much wider in the name of fast tracking. And while the Minister continues to talk about cyber bullying, the Government is in fact pushing through measures against all types of communication harms.

Imposing wide ranging communication principles on digital communications in the name of protecting kids is a classic red herring for digital censorship.

Time to wake up

It is quite late in the process with Cabinet having already approved the legislative policy. Media and organisations who should be concerned about the bigger issues of digital censorship are instead focussed on teenagers, suicides and the mechanics of the proposed law.

Propelled by the nightmares of cyber bullying, we are sleepwalking into digital censorship as a society.


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