Safer Online Services - A Thematic Commentary - Part 1
Part 1 of my submission to the Department of Internal Affairs
In June 2023 the Department of Internal Affairs DIA release a discussion paper entitled “Safer Online Services and Media Platforms”. The paper had been a long time coming. It was expected last year and is the culmination of work that the DIA was doing regarding the regulation of online content.
This work involved an area of law and policy – Internet Regulation - in which I have had an interest since the mid-1990’s and which I taught at the Faculty of Law at Auckland University.
The Discussion Paper called for submissions and after reading the paper I gave some thought as to how I should approach making a submission. As is so often the case with “Government Consultation” often answers to certain questions are sought. Often these questions make certain assumptions or steer the answers in a particular direction. Because that seemed to me to be a rather “loaded” if not simplistic way of obtaining a point of view, I decided to develop a thematic commentary on the Discussion Paper. This commentary would provide a detailed context to the answers that I would provide to the DIA.
I was very dissatisfied with the approach adopted by the DIA and also with the proposals that they made. I was of the view that the wide-ranging changes that they have suggested to the law surrounding censorship and speech regulation was unnecessary and certainly not in keeping with the provisions of the New Zealand Bill of Rights Act 1990.
Accordingly, in addition to the thematic commentary and my answers to the questions posed, I proposed an alternative system that built upon the provisions of the Harmful Digital Communications Act 2015 and suggested some modifications that would go some distance to meeting concerns about the proliferation of harmful content on-line.
I will be publishing a series of five articles in this series. The first three articles in the series comprise the thematic commentary that I have submitted. The fourth article will be the Questions posed and the Answers that I have given. The final article will be the alternative proposal that I have put forward.
The work that is being done by the DIA has been described by InternetNZ as a “once in a generation opportunity to make a safer Internet.” I disagree. It is a once in a generation opportunity to increase censorship of the most paradigmatically different communications system since the development of the printing press. It is because of these concerns that I am making this information available.
Introductory
This commentary addresses some of the issues raised in the Discussion Paper “Safer Online Services and Media Platforms”. I have prepared it as a detailed background to some of the answers that I have made in answer to the questions posed in the Discussion Document and that will be the subject of another post.
Because of the length of the commentary I have divided it into three parts.
In this first part I begin with an overview of some of the issues surrounding rule making in the new information communication paradigm. It cannot necessarily be assumed that old style rules and models will be applicable in a paradigmatically different technical environment. I have dealt with these issues at some length in my book Collisions in the Digital Paradigm – Law and Rulemaking in the Internet Age (Hart Publishing, Oxford 2017).
That is followed by nine separate discussion heads. The first is a high level commentary on the proposals in general. This is followed by a substantive discussion criticizing the absence of a proper and rigorous New Zealand Bill of Rights Act analysis.
In the second part the issue of harmful and on-line safety are the subject of discussion. Essentially the distinction is between an objective or a subjective approach to viewing on-line content and whether the law is capable of providing a remedy for a range of subjective perceptions.
I then move to a commentary on the issue of Codes and the concerns that must follow a model which proposes to regulate on-line content by the provision of Codes which have no legislative scrutiny.
This is followed by a discussion of whether or not a “product liability” model is appropriate for the regulation of content that has within it issues of freedom of expression. It is argued that this model is ill-suited to the approach proposed.
In the third part enforcement models are considered and the discussion demonstrates the unsuitability and uncertainty surrounding a content control model that has Bill of Rights Act implications. Once again the issue of a subjective approach, focusing on a “safe experience” is critiqued.
I discuss in detail social media issues. The main factor in this discussion lies in the problem of asserting extraterritorial jurisdiction over off-shore platforms. The discussion in the Document is less than superficial and is totally unsatisfactory. Given that there are remedies surrounding take down order and their enforceability a far more rigorous analysis is required of this fundamental issue.
I go on to discuss other Bill of Rights Act issues and the supportive and prescriptive approaches that are recommended in the Document. Any content control model must adopt the least restrictive outcome to an interference with freedom of expression and clearly a supportive model is favoured.
Finally I am critical of the way in which it is suggested that the news media be folded in to these proposals and I argue that in fact the news media occupies a unique position in the information landscape irrespective of the mode of content delivery, despite some recent issues surrounding Radio New Zealand have arisen. I argue that the existing mechanisms for news media regulation remain in place.
My answers to the questions(which will appear in another post) should be read in conjunction with the issues that I discuss in detail.
Rulemaking in the Digital Paradigm - problems of regulating in a new paradigm where information expectations have changed.
Are we trying to hold back the flood by these proposals and insulate the populace or allow for the necessary adaptation to take place
What is proposed in the Discussion Document is a content control model. It purports to control content by the use of Codes to regulate the behaviour of platforms in the way in which they deliver content. In many respects what is proposed ignores the realities of a paradigmatically different content delivery system.
New information technology paradigms subtly influence our perceptions of information, our intellectual approach to information and our use of information. The properties apparent in one paradigm may not be present in another.
A problem arises where we have become inured to the properties of one paradigm and consider that they apply mutatis mutandis to another without recognising that paradigmatic change introduces concepts that are so utterly different from a former paradigm that our responses, reactions to and assumptions about information are invalid.
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