A Different View

A Halfing's Take on an Opinion Piece

I don’t think I have ever read an article that requires a comment almost about every paragraph but this offering by  in the NZ Herald for 27 November is one such. I have taken the liberty of reproducing the article (for the purposes of review only) and parsing it (I think the term might by “Fisking”) with my comments which are interspersed in italics..

The author is a lawyer and writes a weekly column in the Herald. For reasons that probably don’t need to be stated I read her work with interest. She brings interesting perspectives to some legal issues. I don’t agree with her all the time but she is – as are we all – entitled to her opinion. That she has an authoritative platform with the Herald gives her a certain status in the commentariat that is not available to many. I felt this present piece could not go unremarked.

I have referred to the author of the Herald article as “the Author”. This is not an exercise in dehumanisation but an effort to focus my comments and critiques on the content of the piece rather than about the person who wrote it

OPINION

If Covid-19 wasn’t enough, we’re faced with widespread socio-economic hardship and inequities, ongoing international conflicts, civil unrest, an imminent environmental crisis, and fears technology will supersede everyone and everything.

A month-long delay to form a government seemed darkly comical in contrast.

Ah yes – but look what it delivered. A detailed coalition agreement that clearly sets out practical programmes that are deliverable. Thomas Cranmer has eloquently set out why the discussions took so long and the hopes for the future.

Misinformation v disinformation

While technology has enhanced access to information and connectivity, albeit in a tapping-away-in-the-dark-by-yourself kind of way, it has come with a very real factual cost.

Putting aside the fact I’ll be out of a job thanks to the advent of AI, I’m referring to the rise of misinformation and disinformation.

I doubt that it will be AI that displaces the Author. Opinion writing is very much and individualistic exercise – something AI is unable to replicate – and it is the individual writer’s voice that gives the piece its value and style is critical. Part of the Author’s style is to drop in little (often irrelevant) asides such as this before she resumes her journalistic journey.

Misinformation refers to misleading information created or disseminated without malicious intent, whereas disinformation describes false content that’s designed to confuse or manipulate audiences. It’s the digital version of a cult, if you like.

I recognise that the Author writes to a word limit and from a very general point of view her definitions of mis/disinformation are correct.

A 2018 Unesco report described disinformation as acts of fraud that should be treated “for what they are”, as a particular category of phoney information.

“Powerful new technology makes the manipulation and fabrication of content simple and social networks dramatically amplify falsehoods peddled by states, populist politicians, and dishonest corporate entities, as they are shared by uncritical publics,” the report said.

This is good – an authoritative source and a direct quote. I would like to have followed up on the UNESCO piece but the referencing was vague and the online version of the article did not contain a link. I may be seen to be pernickety but a more pointed reference would have been helpful

What’s the harm in falsehoods?

Last month, the Disinformation Project released a paper looking at open-source and quantitative data from a range of social media platforms and other content between June and September.

It found racism and white supremacist ideologies had been amplified, normalised, and spread through disinformation across mainstream groups and individuals.

It manifested in the targeting of high-profile wāhine Māori online, the dissemination of Holocaust denial content, and an increase in accessing illegal footage of the Christchurch masjidain attacks, for example. The footage had been distributed more this year than immediately after the attacks in 2019.

It is here that the Author runs into some difficulties. The Disinformation Project was part of the messaging system set up by the Ardern/Hipkins government to counteract any information that was contrary to the accepted Government line. Ardern’s comment about the government being the only source of truth – everything else a grain of salt provides a context.

The Disinformation Project started as a part of Te Punaha Matatini – a research group at Auckland University – that provided evidence based information of Covid-19. The Disinformation Project’s first paper was part of this process.

However, it rapidly became clear that there were problems with the approach of the Disinformation Project. Its brief went beyond Covid and seemed to focus on a number of other issues. It also became clear that the approach that they adopted was that of Critical Theory and indeed the Director of the Project, Kate Hannah, commented some time ago that her approach was a Marxist one.

The Disinformation Project makes sweeping generalisations but does not provide details of its granular data. It is not possible to check or verify any of their conclusions. Their methodology is not objective, but then objectivity is something that Critical Theory rejects, their conclusions are subjective and their means pf expression is emotive.

Amazingly, despite these problems, the Disinformation Project continues to receive funding from  Government sources and is the “go to” resource for the media in search of a headline grabbing soundbite quote. The Disinformation Project delivers in that respect.

My view is that the Disinformation Project is a questionable and unreliable resource. My own commentary on the Project can be found in the following articles.

The What, How and Who of the Disinformation Project

Papers and Media – The Public Face of the Disinformation Project – Part 2A

The Public Face of the Disinformation Project – Part 2B

The Disinformation Project and the Evidence – Methodologies, Analysis and Conclusions

This is despite the Films, Videos, and Publications Classification Amendment Act 2021, which criminalised the livestreaming of objectional videos.

The scope of the Films Videos and Publications Classification Act and enforcement by the Department of Internal Affairs is limited. The suggestion is that footage of the Christchurch Massacre is distributed widely in New Zealand. Those who do so have been brought before the Courts. Offshore distribution is another matter and raises a number of jurisdictional issues which I have discussed here.

Police in riot gear shunted protesters off Parliament's lawn and down to nearby Lambton Quay and Bowen St on March 2 last year, the 23rd day of an occupation in which a range of ideas, including conspiracy theories linked to the Covid-19 pandemic, frequently circulated.

Kantar research in July found 8 per cent of survey respondents believed threatening violence was an acceptable way to achieve change, for example.

There will always be a fringe group in any movement that will advocate extremes. What the comment avoids is how the other 92% viewed the way to effect change. The Parliament protest has become a symbol for the Left for everything that is bad about opposition to the then Government and what should be recognised is that many there were sincere in their beliefs.

While 72 per cent of respondents felt misinformation posed a serious threat to democracy, at least 81 per cent of respondents held at least one factually incorrect belief listed in the survey.

That is a reality about the human condition. None of us are perfect and our opinions may be based on information and commentary from a variety of sources. I suppose it means that 81% of the respondents failed to achieve a 100% mark.

There, of course, is another issue and that is the matter of belief which suggests faith as opposed to an opinion based on empirical analysis. Belief in the resurrection of Christ is a matter of faith, and there would be many Christians who accept it as factually correct. Proving it as factually correct is entirely another matter.

Free speech or hate speech?

Those who wave the “freedom of expression” flag in defence of offensive rhetoric (at best) often forget free speech sits alongside freedom from discrimination and specific hate speech provisions in the Human Rights Act.

Now we come to it. The Author refers to the freedom from discrimination provisions in the Human Rights Act (Sections 36 – 60 Human Rights Act 1993) and to the specific hate speech provisions in the same Act.

The words “hate”, “hatred” or “hate speech” do not appear in the Act. Perhaps what the Author is doing is to use the term as a form of shorthand for the provisions of section 61 and following of the Act which address material “likely to excite hostility against or bring into contempt any group of persons”

The Labour Government pledged sweeping changes to broaden the list of protected groups following the Royal Commission of Inquiry into the mosque terror attacks in 2019.

Former Prime Minister Chris Hipkins canned the reforms altogether earlier this year.

In a statement in February, Human Rights Commissioner Paul Hunt said it was a very sad day that such a straightforward amendment to the legislation had been dropped, instead giving way to “often misinformed and opportunistic political debate”.

It is clear from statements made following the conclusion of the Coalition negotiations that the “hate speech” initiatives are off the table and steps will be taken to ensure freedom of expression at academic establishments. I expect that Paul Hunt will be even more dismayed.

It is concerning that a journalist would impliedly denigrate the freedom of expression in the way that the Author does. As Salman Rushdie said “What is the freedom of expression? Without the freedom to offend, it ceases to exist.” The cry “I’m offended” is one of many veto words employed to shut down robust discussion and debate which is essential in a liberal democracy. There are times when robust discussion can stray into areas prohibited by law, but to demonise freedom of expression because it contains offensive rhetoric is ironic from one who relies on freedom of expression to put forward her view.

Alternative regulation routes

The Harmful Digital Communications Act aims to deter, prevent, and mitigate harm caused to individuals by digital content.

People who’ve suffered serious emotional distress resulting from threatening, grossly offensive, indecent, false, discriminatory, private, or personal content can report it to Netsafe.

Netsafe can’t force the producer of harmful content to remove it, nor can it unmask or identify someone using fake accounts or profiles. Instead, Netsafe uses advice, negotiation, mediation, and persuasion to resolve complaints.

Netsafe can seek an order from the District Court.

Netsafe cannot seek an order from the District Court. The process for obtaining a civil enforcement order under section 19 of the Harmful Digital Communications Act 2015 involves a person complaining of harmful content referring the matter to the Approved Agency (Netsafe). This is made clear in section 12 of the Act. Subsection (1) of section 12 reads:

“An applicant referred to in section 11(1)(a), (b), or (c) may not apply for an order under section 18 or 19 in respect of a digital communication unless the Approved Agency has first received a complaint about the communication and had a reasonable opportunity to assess the complaint and decide what action (if any) to take.”

An applicant under section 11 may be:

(a)    an individual (the affected individual) who alleges that he or she has suffered or will suffer harm as a result of a digital communication:

(b)    a parent or guardian on behalf of the affected individual:

(c)    the professional leader of a registered school or his or her delegate, if the affected individual is a student of that school and consents to the professional leader or delegate bringing the proceedings:

(d)    the Police, if the digital communication constitutes a threat to the safety of an individual.

Netsafe is not included. What Netsafe does is to provide an applicant with a report of its actions in trying to resolve the matter which the applicant must provide when filing an application in Court.

The Author’s comment would fall within her definition of misinformation. I simply say that regrettably and with respect she is mistaken

Failing to comply with an order from the court carries a prison sentence of up to six months or a fine of up to $5000. Police are also mandated under the act, and people could face a two-year prison sentence or a fine of up to $50,000.

What if the content isn’t harmful to an individual per se, such as disinformation that’s designed to manipulate audiences and favour dangerous ideologies over tried and tested pillars of democracy?

So the Author would like to see Disinformation included in the categories of harmful content. The test for harmful content is not that it is untrue or of doubtful validity but that it is causative of serious emotional distress. It is doubtful that Disinformation in and of itself would do that although in these “gentle times” who knows.

Down with ‘fake news’

This year’s Kantar research also revealed 54 per cent of respondents who strongly believed in misinformation had avoided or stopped consuming mainstream media.

AUT research this year found general trust in news declined from 45 per cent in 2022 to 42 per cent. Almost 69 per cent avoided news often, sometimes, or occasionally.

Distrust in the media is complicated as it is fraught.

Declining budgets, increasing demands thanks to the relentlessly fast-paced internet, working conditions, and workforce retention are major issues, sure, but I’d argue the situation is exacerbated by the rise of disinformation.

For example, “fake news” as a slogan is not only misleading, it’s also an oxymoron. The “news” is inexplicably linked to information that’s verified and in the public interest.

A journalist who fails to meet those standards could find themselves without a job (most outlets have codes of ethics) and in breach of Media Council principles and the Broadcasting Act. The Broadcasting Standards Authority may issue an order and a fine of up to $5000, for example.

Correct, although there are other factors that have led to a decline in trust in the media. One of these is the insidious effect that the Public Interest Journalism Fund has had. Although the objectives of the fund were admirable – to support mainstream media during the Covid crisis the criteria for applicants -  which can be found here – imposed certain limitations on journalistic freedom and other sine qua non before funding could be granted.

Giving the provision of funding to New Zealand on Air distanced the allocation of funding from the Government but certainly, despite this, the optics were terrible. Although Mainstream Media would claim journalistic independence the public perception was that by taking Government money, albeit indirectly, they were bought and sold.

Compare this to keyboard warriors spouting misinformation or disinformation with abandon. It’s the wild, wild, west.

This “wild wild west” mantra is the common cry that has been used ever since the continuing disruptive change brought on by the Internet started taking place. Simon Power used the term in 2010 when he charged the Law Commission with the task of investigating “new media”. Plus ca change, c’est la meme chose.

What we have now, looking at it from another perspective, as a result of Internet platforms is the true democratisation of information, the ability of every citizen to become a publisher. No longer is information the freehold of Mainstream Media and it may well be that much of the material that is generated by “keyboard warriors” is opinion rather than misinformation or disinformation.

Democracy by its very nature is a noisy and chaotic system. Would we have it any other way, or would we like to see our every keystroke constrained by some information czar? There are more than sufficient restraints on freedom of expression. We do not need any more.

Instead, the Department of Internal Affairs (DIA) released its Safer Online Service and Media Platform document for public consultation this year. It proposed cracking down on social media giants (and other platforms) through a code of practice and creating a new industry regulator to cover all things media (news included).

This is a flawed discussion document and I have considered it in some detail in an earlier article which can be found here

Will the free-speech-inclined hodgepodge government rise to the occasion? Good grief, I certainly hope so.

By now it will be abundantly clear that I do not share the Author’s hope. Indeed her description of the new coalition as a “free-speech inclined hodgepodge government” makes her position clear.

But in closing let me make the following points:

1.      The Author is entitled to her opinion and is entitled to express it. Other are entitled to read it and consider it. That is the essence of freedom of expression.

2.      I am entitled to my opinion and I am entitled to express it. I may not command 800 words or so in the opinion pages of the Herald and in using an Internet platform I am probably one of those “keyboard warriors” referred to by the Author

3.      My opinion is based on my observations, my beliefs and values and by factual material where such is required. I would hope that such disclosure takes this piece beyond the realm of Disinformation and places it within the realm of counterspeech. One of the values underpinning a democracy is the right to disagree. By such a process issues are made clear, consensus may be reached and if not, then positions are clarified and understood.

4.      I value most highly my freedom of expression. But equally I value the Author’s freedom of expression and would never deny her the right to put her case. I would resist any attempt to do so.  I hope that my position is reciprocated.