The Harmful Digital Communications Act 2015 was mentioned in passing in the Safe Online Services Discussion Paper. Yet it answers many of the issues raised by the DIA. In this - the final part of my series on the Discussion Paper - I present my alternative proposal which suggests some changes to the Harmful Digital Communications Act which would focus on actual harm rather than the nebulous concept of “safety” and provide a judicial assessment of what is harmful content rather than some “regulator” or uber-bureaucrat. And behind it all would be a safeguard for the rights of freedom of expression rather than censorship by “soft legislation”
Introduction
An alternative to the sweeping proposals in the Discussion Paper lies in the existing Harmful Digital Communications Act (HDCA).
What follows is a broad sketch of how the HDCA could be deployed to largely meet many of the issues about online harms raised in the Discussion Document. It is by no means a full or comprehensive analysis.
Problems with the HDCA
At present the Act has a number of problems
1. The District Court is empowered to make remedial orders under the civil enforcement regime. The speedy remedies recommended by the Law Commission in the Law Commission’s Ministerial Briefing Paper of August 2012 are not present in this jurisdiction. Applications for HDCA remedies fall foul of the District Court Rules along with judicial availability and allocation of hearing time in the midst of other work
2. The Act makes no provision for extraterritorial jurisdiction. Although orders may be made against online content hosts (the HDCA equivalent of platforms) there is no provision for ensuring that offshore hosts are amenable to the jurisdiction of the HDCA
3. Applications for remedies may be made by individuals alleging harm from electronic communications, a parent or guardian on behalf of an affected individual, a professional leader of a school on behalf of a student if the student consents or the Police if the digital communication constitutes a threat to the safety of an individual. The Coroner may make application for limited orders in respect of communications that contravene the Coroners Act 2006. Netsafe suggests that the pool of complainants should be extended the third parties.
4. There is no provision for applications for remedial orders by groups the members of which may have suffered or may be likely to suffer harm.
5. The definition of a digital communication and an intimate visual recording have been subject to criticism in that there may be some question as to whether or not those definitions may encompass deep fakes.
In terms of online safety or the mitigation of online harms the HDCA provides for most of the remedial measures outlined in the Discussion Paper although there is no mention in the Act of Codes.
Under the proposals I will be making there will still be provision for a Code but the provisions of a Code may be a matter that a decision maker should take into account alongside other statutory criteria. I discuss this below.
The purposes of the HDCA largely conform with the objectives of the Discussion Paper. The purposes are stated in section 3 HDCA as being to:
(a) deter, prevent, and mitigate harm caused to individuals by digital communications; and
(b) provide victims of harmful digital communications with a quick and efficient means of redress.
It is suggested that groups of individuals who share common interests may be included among those who may suffer harm.
A Communications Tribunal
The provision of a quick and efficient means of redress could be achieved by removing the District Court as the Court who may make remedial orders under section 19 HDCA and replacing the Court with a Communications Tribunal as recommended in the Law Commission’s Ministerial Briefing Paper. The justification for such a proposal is clearly articulated in the Ministerial Briefing Paper.
The Cabinet Paper of 21 March 2013 under hand of the then Minister of Justice Judith Collins rejected the Communication Tribunal and observed at para 46 - 47
Rather than setting up a separate Tribunal or panel of judges, I recommend that this specialisation can effectively and efficiently be achieved as a function of the District Court. Existing District Court systems could be adapted to include a new application type. It is envisaged that in assigning cases account would be taken of a particular judge's interest, understanding and expertise in new media law. This would allow greater expertise in the subject matter to be developed over time.
There are the means to deal with urgent priority applications within District Court processes. In addition, requirements about timelines could be specified in the authorising legislation and associated regulations.
This has not come to pass. Although processes are in place to provide preliminary judicial scrutiny of HDCA applications, where a matter requires a hearing there are no provisions to ensure priority.
Apart from being able to deal with complaints under the HDCA in an efficient and timely fashion a Communications Tribunal would have other advantages. These are set out in the Ministerial Briefing Paper but bear repeating because they encompass – in a thematic sense – many of the features of the Regulator proposed in the Discussion Paper.
The advantages are that :
[A] specialist tribunal will be [able to] develop specialist knowledge not just about communications law but also about the developing communications technologies. It would also have the usual advantages of a tribunal over a court in that it could act quickly, informally and relatively inexpensively. It would mitigate the effects of wealth imbalance between the parties.
[The]tribunal would be a less formal machinery than the ordinary court system. It would also be able to build up a body of consistent precedent in its specialist field. Nevertheless there might remain cases where a complainant would prefer to use the Harassment Act route. That might be particularly so where the harassment involves a variety of types of conduct or where the harassment reaches the threshold of criminal harassment.
The District Court would still retain jurisdiction to hear cases involving offences against the HDCA.
The composition of the Tribunal is important. In my commentary on the Discussion Paper I have emphasized the need for proper judicial process in determining any contests under a new regime. The Law Commission Ministerial Briefing Paper recommended (at para 5.48 and following)
The tribunal could be a Judge, or other person of legal experience and standing. It would be important for the job description for the position to include, in addition to expertise in communications law, an understanding of the New Zealand Bill of Rights Act 1990. Understanding and empathy with young people would also be an advantage, for some but by no means all of the cases would involve young participants.
Even more importantly, the tribunal should have an understanding of communications technology. Ideally the tribunal itself should have a degree of expertise in that subject. One of the submitters to our Issues Paper said colloquially that some of people working for the tribunal should be “Gen Y”. “They need to demonstrate that they are well versed in different forms of social media”. However, it might be enough in an appropriate case for the tribunal to sit with an expert technical adviser.
Although each case would be heard by a single tribunal member, as for example is the case in the Disputes Tribunal, there might be a number of persons designated for the role to meet the exigency that would otherwise arise if one appointee was unable to hear a particularly urgent case. We are attracted to the idea of designated District Court judges undertaking the task, because there would then be no need to build a new tribunal structure. The support services would already exist. There is a useful precedent in the Victims’ Special Claims Tribunal set up under the Prisoners’ and Victims’ Claims Act 2005.
A judge or judges designated to sit as the Communication Tribunal would have to have special rostering treatment to prevent a recurrence of the delays experienced in the civil jurisdiction in getting HDCA cases heard. That is an internal matter for the judiciary.
Actual or potential harm
The main thrust of the HDCA is to provide a remedy for actual harm suffered. Thus it is primarily retrospective. The Discussion Paper makes reference to the risk of harm that might be suffered, therefore advancing a prospective model.
As it stands the HDCA provides that those who may bring proceedings for relief (described as affected individuals) may allege that they have suffered or will suffer harm as a result of a digital communication.
The latter phrase brings a prospective element into the mix. It envisages, for example, that a digital communication may have been made that initially has not caused harm but which in the future or over a period of time if allowed to remain will cause harm.
The language that is used imports a high threshold. “Will cause harm” is a higher threshold than “may cause harm”.
Given that a takedown order to prevent prospective harm involves an element of “crystal ball gazing” and risk analysis, it is important to ensure that any interference with the freedom of expression amounts to a reasonable limitation of that freedom.
The difference between this proposal and the directive nature of a Code requiring compliance before posting material is that in the example given there would be clear evidence of a potentially harmful communication which would allow a Tribunal to make an assessment.
Extending the Definition of Digital Communications and Intimate Visual Recordings
The definition of digital communications and intimate visual recordings without consent should be amended to clarify that what is covered includes synthetic or deep fake images where a victim could be identified.
Consideration should also be given to including AI generated material that may be harmful.
Extension to Groups
I have already noted those who may make applications for remedial orders. Individuals only are protected. The Act makes that clear by reference to “affected individual”.
The scope for potential applicants should be expanded to include groups of individuals who may be affected by a harmful communication or that there may be a potential for harm in that an application by a group of affected individuals may allege that a communication will cause harm – as is already present in section 11(1)(a).
Groups need not be limited to those set out in the Human Rights Act but may include any group of individuals who may share a common interest or attribute.
In addition the classes of those who may make an application should be extended to include an individual who may make a complaint who is not the subject of a harmful digital communication.
Once again I anticipate that the communication complained of will have been posted and there may a potential for the communication to cause harm to an individual or group. The “will suffer harm” test should remain as a higher threshold.
Remedies and Tests Under the HDCA
It is suggested that the remedies available under section 19 HDCA will provide sufficient relief for complainants.
Whether or not a complaint should be upheld involves a judicial assessment to determine whether or not there has been a breach of one or more of the Communications Principles set out in section 6 HDCA. It is suggested that this test remain.
The provisions of section 19(5) HDCA set out a number of matters that a Court must take into account in determining whether or not to make an order and the form of the order. It should be noted that section 19(5)(a) refers to “the content of the communication and the level of harm caused or likely to be caused by it” thus emphasizing once again that there is a prospective element that the Court may take into account.
In addition to the matters that the Court may take into account it is suggested that the Court may, in determining whether or not to make an order and the form thereof, take into account the level of compliance or non-compliance with the Aotearoa New Zealand Code of Practice for Online Safety and Harms. The level of compliance mor, as the case may be, non-compliance with the Code provides an additional factor that the Court may take into account. It should not be determinative.
Offences
I have already suggested that the District Court should continue to have jurisdiction for offences under sections 21,22 and 22A HDCA.
Section 21 creates the offence of on-compliance with an order under section 18, 19 or 22B HDCA. However the offence created is silent about the situation where content which is the subject of an order or a takedown agreement negotiated by the Approved Agency reappears at some later date. It should be an offence where an individual or an online content host reposts material that has been the subject of an order or a negotiated takedown agreement.
The Approved Agency
The provisions relating to the Approved Agency and its action should remain. The Ministerial Briefing Paper saw the Approved Agency as providing a filter to ensure that threshold cases should be referred to the Court.
The Approved Agency should remain in place but will require increased funding and resourcing to properly fulfil its duties under a reinvigorated HDCA. In addition to its existing powers the Approved Agency should have an alternative dispute resolution model available. This could mean that in cases that can be resolved by ADR the Court (or Communications Tribunal) would not be troubled. Non-compliance with an ADR outcome would amount to an offence under s. 21.
The Approved Agency should also have an “own motion” power to refer content to the Communications Tribunal for a decision akin to a declaration that content was or was likely to be harmful and therefore should be the subject of an order.
Extraterritoriality
I have addressed at length elsewhere the issue of the problems associated with asserting jurisdiction over an off-shore entity. That discussion The Harmful Digital Communications Act and Offshore Online Platforms may be found here.[1]
The approach and brief rationale for it is this.
One of the purposes of the HDCA is to provide victims of harmful digital communications with a quick and efficient means of redress.
Complicated rules as to service of offshore entities frustrate that purpose.
A possible solution may lie in redefining an “online content host” to read as follows:
online content host, in relation to a digital communication, means the person or entity who carries on business in New Zealand either directly or through a subsidiary and who has control over the part of the electronic retrieval system, such as a website or an online application, on which the communication is posted and accessible by the user.
The Rules relating to service of an offshore online content host could be amended by allowing service without leave of the Court upon an offshore online content host at that entity’s normal or principle place of business.
Concluding Remarks
I acknowledge that this is very much a sketch of possible solutions to the problem of harmful online content. The approach that I have recommended provides the adaptation of an existing model with some extensions and changes to address some perceived shortcomings.
References in the discussion above to a Court encompass the present situation. The remedial powers and jurisdiction would, under my proposed alternative solution be assumed by a Communications Tribunal.
Two important principles underlie this proposal. The first is that the issue of harm or harmful content should apply to content that is in existence at the time of complaint and that the assessment of harm or harmfulness should be an objective one.
Secondly, the body determining this issue and the remedies for it must be judicial employing the rules of natural justice, applying legislatively approved tests (with the exception of code compliance as a factor although the inclusion of this should be the subject of legislative provision) and providing reasons for any conclusion.
Necessarily decisions of the Communications Tribunal should be able to be the subject of an appeal and given that the composition of the Tribunal would include a District Court Judge, such appeals should be to the High Court.
The judicial approach would provide a safeguard to the impact of any determination upon the rights of freedom of expression guaranteed by the New Zealand Bill of Rights Act 1990.
[1] “The Harmful Digital Communications Act and Offshore Online Platforms” https://djhdcj.substack.com/p/the-harmful-digital-communications
This series has been a dense read but much appreciated. I take heart from my belief that as the tumbrils of the Disinformation Project and their ilk rumble ever more loudly, when individuals of your mana speak out you cannot be dismissed as a toxic QAnon conspiracy terrorist as many of us are. Thank you.