Safer Online Services and Platforms -= Questions and Answers

Part 4 of my series on the DIA Paper

These are the questions that were provided in the Safer Online Services Discussion Paper. Because in some cases the questions make assumptions about what is proposed the answers to these questions should be read in conjunction with the commentary contained in the accompanying document headed Safer Online Services – A Thematic Commentary.

Definitions in the proposals

1. What do you think about the way we have defined unsafe and harmful content?

I have suggested that harm should be viewed as a retrospective concept whereas unsafe importing risk of harm should be viewed as a prospective concept. To attempt to define or legislate for a prospective outcomes, especially when perceptions of what is safe or unsafe are intensely subjective and may vary widely, is problematical for the requirement of certainty in the law.

The definition of harmful as “serious emotional distress” as used in the Harmful Digital Communications Act and should be applied in any future developments in this area. The test for assessment of serious emotional distress should be contain two elements – that the harm (serious emotional distress0 was caused to a person and in addition that the material would cause harm to an ordinary reasonable person – a mixed subjective/objective test that would smooth out the possibility of catching idiosyncratic responses.  

2. Does the way we have defined unsafe and harmful content accurately reflect your concerns and/or experiences relating to harmful content?

I have no concerns about unsafe or harmful content nor have I experienced same other than in the context of having to decide whether or not content was harmful within the meaning of the Harmful Digital Communications Act in the course of my judicial duties. The discussion about the proper definition of harmful (as opposed to “unsafe”) is referred to above and in my more detailed commentary.

About our proposed new framework to regulate platforms

3. Have we got the right breakdown of roles and responsibilities between legislation, the regulator and industry?

No. Too much power is vested in the hands of the Regulator to approve or establish Codes and enforce them along with determining whether content falls within the Code.

It would be better if a Code system were to be adopted to have an industry based standard such as the Aotearoa New Zealand Code of Practice for Online Safety and Harms.

In making this observation it should not be assumed that a Code based model meets with my approval or support.

4. Do you agree that government should set high-level safety objectives and minimum expectations that industry must meet through codes of practice.

By legislative enactment subject to Parliamentary scrutiny – terms such as “objectionable” used in the Films, Videos and Publications Classification Act provide an example of the limited approach that I would expect for legislative guidance. The legislation establishes a gateway that must be passed before material may be considered objectionable.

The Legislature should define what is unlawful. That which is not within the definition of unlawful should be permitted. A Regulator or a Code should not engage in “soft lawmaking” to increase the scope of what is and is not permissible.