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Harmful Digital Communications Bill (Consistent) (Section 14) [2013] NZBORARp 41 (1 November 2013)

Last Updated: 20 April 2019

Harmful Digital Communications Bill

Advice to Attorney-General on the Harmful Digital Communications Bill

1 November 2013 Attorney-General

Harmful Digital Communications Bill (PCO 16465/4.17): Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/206

1. We have considered this Bill for consistency with the New Zealand Bill of Rights Act 1990. We conclude that while the Bill, which proposes new remedies for harmful digital communications, raises issues under the right to freedom of expression affirmed by s 14 of the Bill of Rights Act, it appears to be consistent with the Act.
   
2. In short:
   

2.1 The Bill responds to the 2012 findings of the Law Commission that existing remedies for harmful communication, for example defamation and offences relating to threats, intimidation and vilification, do not effectively address new forms of harm made possible by increasingly accessible and powerful forms of digital communication.

2.2 In light of the Commission’s conclusions, the Bill proposes five direct and indirect

remedial measures:

2.2.1 A complaint procedure, involving negotiation, mediation and persuasion by a public complaints body (cl 8(1)(a)-(c));

2.2.2 Education and public information by that agency (cl 8(1)(e));

2.2.3 Jurisdiction in the District Court to make civil remedial orders, for example to require removal of published material, cessation of particular conduct or publication of corrections or replies, where a complaint has been made and not resolved and where there is found to

have been a serious and/or repeated breach of one or more principles and that breach has caused or is likely to cause harm (cll 11 & 17);

2.2.4 New criminal offences of failure to comply with District Court orders and of intentionally causing harm by posting a digital communication (cll 18 & 19) and additions to existing harassment and other offences to include digital communications (cll 24-32); and

2.2.5 As a self-regulatory mechanism, a qualified immunity from proceedings for online content hosts for hosted communications, provided that the online content host affords a complaint procedure and acts on complaints (cl 20).

2.3 Because, as found by the Law Commission, there is limited current regulation of most electronic communications, these proposals will undoubtedly be controversial. Further, and leaving aside the provision for public education and information, each of these measures raises issues under the right to freedom of expression affirmed by s 14 of the Bill of Rights Act. However:

2.3.1 The two coercive remedies proposed by the Bill – civil orders to be made by the District Court and the new and expanded offence provisions – are engaged only by communication that causes or, in the case of civil orders, is likely to cause harm, defined to mean “serious emotional distress, and does so by breaching one or more of the stated communication principles. It is widely accepted that the freedom of expression may be justifiably limited to prevent harm;

2.3.2 The public complaint procedure excludes investigation of complaints that do not disclose likely harm (cl 8(1)(c)(ii)); and

2.3.3 While the qualified immunity provision does provide an incentive for online content hosts to delete online communications, and so indirectly constrains online expression:
(a) That indirect constraint arises in any case through the capacity of an online content host to control online communications and through the potential liability of a host for those communications; and
(b) While the point has been subject to some debate, the right to freedom of expression has been held not to oblige content hosts to accept or maintain particular communications.

We therefore conclude that the restrictions on expression are justifiable under s 5 of the Bill of Rights Act.

ANALYSIS

Background

3. The Bill proceeds from the Law Commission’s 2012 briefing paper entitled Harmful Digital

Communications: The Adequacy of Current Sanctions and Remedies, prepared as part of its

wider public inquiry into new media. The Commission found that:

3.1 Digital communication is unprecedented in its capacity for instant dissemination of information, ubiquitous access, persistence and accessibility of information and anonymity, and those characteristics have led to novel forms of harm;
3.2 Police complaints, survey information and academic literature indicate increasing, and widespread, public experience of harmful electronic communication, including one in five high school students experiencing some form of electronic bullying or harassment, and of sometimes serious harm caused by such communication; but

3.3 Current legal and other remedies for such harm are insufficient:

3.3.1 While the self-regulation of online conduct – including through online “terms of use” agreements – is important, its overall reliability is limited by power and information asymmetries between participants and variable levels of effectiveness;

3.3.2 The most seriously harmful digital communications will often involve unlawful conduct, such as intimidation or inducement to self-harm or suicide; and

3.3.3 Existing legal mechanisms are limited in their efficacy by a lack of public knowledge and accessibility, speed, limited or uncertain applicability to some harmful electronic communication and other constraints.

The Bill

4. In response, and following Commission recommendations, the Bill first sets out ten “communication principles” in cl 6(1). These include principles that electronic communications should not disclose sensitive personal or other confidential information, that they should not be obscene or offensive, that they should not amount to harassment or incitement of harm and that they should not denigrate a person by reason of race, religion or other personal characteristics.
   
5. The Bill then proposes a range of direct and indirect remedies for digital communication that is in breach of these principles and that causes harm.
   

Public complaints procedure

6. Clauses 7-8 of the Bill provide for a public complaints procedure, which is to be

administered by a designated “Approved Agency”. The agency is to receive, assess, investigate complaints of harmful electronic communications and seek to resolve them through negotiation, mediation and persuasion. Clause 8(1)(c) provides that the agency need not investigate complaints where the complaint is trivial, where the subject-matter is unlikely to cause harm or where investigation is unlikely to uphold or enhance the communication principles. The agency is also, presumably for the avoidance of doubt, required to act consistently with the Bill of Rights Act: see cl 6(2)(ii).

District Court orders

7. Clauses 16 and 17 provide a right to apply to the District Court for interim and final orders relating to digital communications. The orders available include orders that a defendant take down material posted on line, cease the conduct concerned or provide a right of reply or that the online content host disable public access to material, identify the author of an anonymous communication publish a correction or provide a right of reply.
   
8. The District Court orders provided for under cll 16-17 may be made only if :
   

8.1 A complaint has first been made to the Approved Agency and the Agency has had a reasonable opportunity to consider it and decide what action to take (cl 11(1)); and

8.2 The Court is satisfied that there has been a serious breach of one or more of the communication principles and the breach has caused or is likely to have caused harm to a person (cl 11(2)).

9. The Court is again expressly required to act consistently with the rights and freedoms contained in the Bill of Rights Act (cll 6(2)(ii) and 17(5)).
   

New and expanded offence provisions

10. Clause 18 provides for the offence of non-compliance with one of the District Court orders made under the Act. Clause 19 provides for an offence of causing harm by posting a digital communication if the person posts the digital communication with the intention that it causes harm to the victim, posting the communication would cause harm to a reasonable person in the position of the victim and posting the communication causes harm to the victim.
    
11. The Bill also proposes amendments to the Crimes Act 1961 for the offence of aiding and abetting suicide. It also amends the Harassment Act 1997 and the Human Rights Act 1993 so as to clarify their application to digital communications.
    

Qualified immunity for online content hosts contingent on responsiveness to complaints

12. Clause 20, which is termed a “safe harbour” provision, provides a qualified immunity to online content hosts for most forms of civil or criminal liability over hosted content, provided that that host has and acts upon an accessible and effective complaint procedure to delete or disable access to such content.

Issues under the Bill of Rights Act

13. Three broad questions arise under the Bill of Rights Act:
    

13.1 Most directly, the new and expanded remedial mechanisms proposed by the Bill do directly or indirectly constrain digital communications and so necessarily limit the right to freedom of expression affirmed by s 14 of the Act, whether by mandatory orders to remove, amend or otherwise qualify particular communications, less direct measures such as the

disclosure of anonymous users’ identity (cl 17(2)(b)), or through criminal prosecution. It follows that it is necessary to consider whether those various limits are justified under s 5 of the Act.

13.2 The broad terms of the “communication principles” set out in cl 6(1) of the Bill raise a question of whether the constraint on communication is sufficiently clear to constitute a “limitation prescribed by law” in terms of s 5.

13.3 The “safe harbour” provision creates an incentive for online content hosts to delete online communications on receipt of any complaint, indirectly constraining expression through such hosts.

Prevention and redress of harm as a basis for limitation of communication

14. The two coercive mechanisms provided by the Bill – the making of orders by the District Court and the new and amended offence provisions – are both contingent upon the infliction or threat of some form of serious harm.
    
15. There is broad acceptance that while it is not justifiable to limit expression simply because it causes offence, expression may be limited to the extent necessary to avoid or redress serious emotional or other harm or incitement of harm:
    

15.1 The International Covenant on Civil and Political Rights, to which the Bill of Rights Act is in part directed to give effect, provides in art 19(3) that the right to freedom of expression may be restricted to the extent necessary “for respect of the rights or reputations of others” or for the protection of public order or morals; and

15.2 More specifically, serious emotional or other harm has been accepted as a due basis for restriction of expression.

16. Here:

16.1 The District Court may only make an order if a serious or repeated breach of one or more of the stated communication principles has occurred and that breach has caused or is likely to cause harm to a person, in the form of serious emotional distress: see cl 4 and 11(2). The Court must also take account of the content, purpose and wider context of the communication (cl 17(4)).

16.2 Prosecution for non-compliance with an order (cl 18) is possible only where an order has been made, such that there is already a finding of harm under cl 11(2), while prosecution under cl 19 is possible only where a communication is intended to, has and on an objective assessment would cause harm (cl 19(1).

16.3 The other expanded offence provisions, under the Crimes Act, the Harassment Act and the Human Rights Act each relate to the infliction or threat of harm.

17. It follows that these limitations on expression appear justifiable under s 5 of the Bill of Rights Act.
    

Whether “prescribed by law”

18. It is also necessary under s 5 that any restriction on expression and, particularly, restrictions such as subsequent criminal prosecution that arise after the expression has occurred, must be sufficiently foreseeable.
    
19. Under the Bill:
    

19.1 The communication principles stated in s 6(1) are very broad, encompassing for instance not only threats of harm but also false allegations and disclosure of sensitive personal information, the latter regardless of whether there is a countervailing public interest; but

19.2 As above, the effective enforcement of communication principles through District Court orders requires not only breach of one or more communication principles but also harm, in the form of serious emotional distress, and the Court must also consider the context and purpose of the communication concerned; and

19.3 The other offence provisions are not dependent upon the communication principles.

20. It follows that the scope of conduct subject to restriction is sufficiently foreseeable in terms of s 5.

Indirect effect of “safe harbour” provision

21. Last, the safe harbour provision in cl 20, which grants an online content host qualified immunity from most civil or criminal liability on condition of maintaining and acting on a complaints procedure, provides an incentive for content hosts to act on complaints over content as a straightforward self-regulatory and remedial measure.
22. As such, this provision may be seen to create an indirect restriction upon expression, as online content hosts will have a strong incentive to delete hosted communications upon receipt of a complaint so as to avoid any liability. However:
    

22.1 While there has been some debate over the point, the decision of a private provider of communications services to accept or delete communications has been held to fall beyond the Bill of Rights Act; and

22.2 There is an existing incentive upon a content host to refrain from hosting or retaining potentially offensive communications, given the risk of liability, and there is also scope for users to agree upon terms of hosting, for example by indemnifying the content host; and

22.3 There is Court of Appeal authority that a statutory immunity from liability does not engage Bill of Rights obligations because it does not constitute performance of a public function, power or duty conferred or imposed on that person or body by or pursuant to law;

such that no issue of inconsistency arises.

23. It follows that we conclude that the Bill appears to be consistent with the Bill of Rights Act.

Yours sincerely Ben Keith

Crown Counsel

Helen Carrad

Senior Crown Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in

relation to the Bail Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.