Should there be a law that exclusively targets (harmful) digital communications but not non-digital ones? Over time, I’ve come to accept the logic and need for it, as a part of a larger package of efforts. The medium is the message, the characteristics of digital communications impact society distinctively different than non-digital. It helps that the HDC Bill allows for the non-digital context to be taken into account when determining harm and remedies.
At the same time, I’ve also come to the view that the Approved Agency should only be available to young adults, say for individuals up to 18 or 21 years old.
These are the reasons why I think it’s a good idea to restrict the Approved Agency to only young adults:
1. Original intent
The original political priority and policy intent of the Government was to target cyber-bullying of children. The Law Commission, more out of operational convenience than anything else, responded by fast-tracking the work it was already doing to vastly expand the scope of the proposed law. As its report acknowledged, “… 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.”
Rather than continuing down this path, the Government should pare back the HDC Bill to focus the Approved Agency on its original intent of “cracking down” on cyber-bullying.
The HDC Bill sets out 10 communication principles to guide the civil enforcement regime. I intend to look at these principles in a separate post but clearly they collectively impose a very wide span of restrictions of what people can’t communicate digitally– everything from the serious “menacing” and “incite or encourage another person to commit suicide” to the more hazy “false allegation” and “breach of confidence”.
Many of the concerns about the HDC Bill’s negative impact on human rights can be minimised by focussing the Internet-speed response ambitions of the Approved Agency to young adults. Many of the concerns about the vast span of the communication principles can similarly benefit from focus rather than the ‘boil the ocean’ approach of regulating all digital communications.
3. Differing needs
The HDC Bill defines harm as “serious emotional distress”. Research shows that the causes, nature, impact, and ability to cope with emotional distress varies between young adults and adults. This then also justifies varying civil remedial measures.
For example, a study by Victoria University “”determined the age group at most risk from cyber-bullying to be early high school.” A presentation at VUW by Professor Simone van der Hof on Dutch research emphasised the need to target public policy to protecting vulnerable children and for parents to protect younger children.
4. Approved Agency Bias
It is conceivable that the Approved Agency develops a pro-victim bias over time. This will be natural given the harms that are being caused by digital communications, the very rationale for why the HDC Bill is needed in the first place. Communications by adults often require more complex and more nuanced review, something that is perhaps better for the District Court rather than the Approved Agency.
This change would see adults going directly to the District Court which is still expected to provide quick remedies. It frees up the Approved Agency to focus on young adults exclusively.
Adults still get protection of criminal provisions
The restricted approach above is in respect of civil remedies. Adults will still be able to take steps under current laws and, in addition, criminal complaints against the worst of harmful digital communications under clause 19 (“Causing harm by posting digital communication”). Criminal complains are meant for situations where there is an intent to cause harm and actual harm has arisen. It also specifically includes harm from intimate visual recordings.
Adults also get increased protection from tightening the domestic affairs exemption under section 56 of the Privacy Act.
There is also a fall-back option of initially restricting the Approved Agency to young adults and then, after a review after say 2 or 3 years, re-consider whether its scope should be extended to cover everyone.
[Subsequent posts on the HDC Bill]