I haven't read Andrea Vance's article, due to the paywall, so I can't really comment on it.
However, as someone who has acted and appeared for people under the civil regime, going back to the very first hearing under the civil regime, the current process is not fit for purpose. Yes, it provides the tools to get a partially outcome. However, the process to obtain that outcome can be long, arduous, and often expensive. The outcome itself is relatively toothless. It provides applicants with a choice of spending a lot of money to have posts removed that, by the time they are removed after several sets of orders, will have already caused the maximum level of harm. Removal at that point is practically pointless and a hollow victory. The process itself can continue the harm.
Of course, many of these posts are made with the intent to cause harm. Assuming serious emotional distress is suffered, it should then become a criminal matter. Yet, many police continue to take the view that harm created online is not real. At least the 2022 amendment forced more action when it came to intimate visual material, though the failings of that amendment are another issue.
There is certainly no reason for anyone to post messages of the type being discussed, as there is never any need for personal attacks. If they don't cause harm, as defined, then the legislation allows it as a support to freedom of expression. If they do cause harm, and that was the intent, it needs to be handled under the criminal regime. For someone getting abuse from multiple people, many anonymous, the civil regime does not provide a realistic solution.
I thought that if there was to be a comment on the HDCA it would be from you and I had a fair idea of what would be your approach.
Thanks for engaging - much appreciated. I hope the readership benefits from your remarks and this exchange.
First the civil regime is not intended to be punitive - it is remedial.
Secondly, the criminal aspect under section 22 requires proof of a specific intent to which you allude.
Thirdly, many of the applications that came before me were by pro se litigant - representing themselves. It doesn't always involve lawyers and losts of money although that is an aspect which muct be considered
Fourthly - and it is here that we are in partial agreement about fitness for purpose - there was a flaw in the legislation in that HDCA civil remedy aplications are dealt with by the District Court in itys civil jurisdiction. Because HDCA cases become part of the list of civil cases delays inevitably occur. That said I know that the civil designated Judges do their very best to expedite HDCA matters.
The Ministerial Briefing Paper from which the HDCA evolved recommended a Communications Tribunal - a dedicated, nimble tribunal that could respond quickly. That didn't happen and the speedy response envisaged by the Ministerial Briefing Paper and upon which the effectiveness of the HDCA depends was compromised. The establishment of such a Tribunal would be a positive step rather than pursuing the invasive and censorious approach of the Safer Online Services proposals.
My view is likely to a little biased towards the more complex end of the spectrum, as I'm more likely to be engaged where the situation is complex or extremely harmful.
The civil regime has certainly sped up, with responses from the Court coming in within a few weeks. However, if there is anonymity, then it's orders to the platform (some of whom prefer not to respond to civil matters) then sometimes to the ISP if we then need to rely on IP addresses. If the person is Australian based then the ISP isn't able to respond to a civil request unless it goes through the Australian court. Anonymity is a factor which drags out the process, causing months of stress.
It is also good to see the Court using the Technical Adviser allowance more often. There was always that risk of reminding the Court of that allowance more than once or twice, that it would be suggesting deficincies in knowledge. Certainly not an issue you would have with your technical abilities, but you were a rare person on the bench. The use of a Technical Adviser almost seems the default now, which is great, and would certainly assist someone without representation to navigate the process.
I do certainly agree that it would likely be better that the Law Commission's initial recomendation had been followed, and this was pointed out as a flaw since the legislation was before the House. A certainly isn't a "quick and efficient means of redress" without a way to do that, but it certainly is faster than it used to be, if not yet able to be called quick.
So an improvement, but I do believe a Tribunal would have been a better step, then and now.
The line about falsehood needing to be proved might come from some imprecision of language on my part? Was comparing the use of the HDCA and defamation law in a particular context, but obviously the HDCA, when used for something like a privacy claim, it being true won't remove liability.
I haven't read Andrea Vance's article, due to the paywall, so I can't really comment on it.
However, as someone who has acted and appeared for people under the civil regime, going back to the very first hearing under the civil regime, the current process is not fit for purpose. Yes, it provides the tools to get a partially outcome. However, the process to obtain that outcome can be long, arduous, and often expensive. The outcome itself is relatively toothless. It provides applicants with a choice of spending a lot of money to have posts removed that, by the time they are removed after several sets of orders, will have already caused the maximum level of harm. Removal at that point is practically pointless and a hollow victory. The process itself can continue the harm.
Of course, many of these posts are made with the intent to cause harm. Assuming serious emotional distress is suffered, it should then become a criminal matter. Yet, many police continue to take the view that harm created online is not real. At least the 2022 amendment forced more action when it came to intimate visual material, though the failings of that amendment are another issue.
There is certainly no reason for anyone to post messages of the type being discussed, as there is never any need for personal attacks. If they don't cause harm, as defined, then the legislation allows it as a support to freedom of expression. If they do cause harm, and that was the intent, it needs to be handled under the criminal regime. For someone getting abuse from multiple people, many anonymous, the civil regime does not provide a realistic solution.
Arran
I thought that if there was to be a comment on the HDCA it would be from you and I had a fair idea of what would be your approach.
Thanks for engaging - much appreciated. I hope the readership benefits from your remarks and this exchange.
First the civil regime is not intended to be punitive - it is remedial.
Secondly, the criminal aspect under section 22 requires proof of a specific intent to which you allude.
Thirdly, many of the applications that came before me were by pro se litigant - representing themselves. It doesn't always involve lawyers and losts of money although that is an aspect which muct be considered
Fourthly - and it is here that we are in partial agreement about fitness for purpose - there was a flaw in the legislation in that HDCA civil remedy aplications are dealt with by the District Court in itys civil jurisdiction. Because HDCA cases become part of the list of civil cases delays inevitably occur. That said I know that the civil designated Judges do their very best to expedite HDCA matters.
The Ministerial Briefing Paper from which the HDCA evolved recommended a Communications Tribunal - a dedicated, nimble tribunal that could respond quickly. That didn't happen and the speedy response envisaged by the Ministerial Briefing Paper and upon which the effectiveness of the HDCA depends was compromised. The establishment of such a Tribunal would be a positive step rather than pursuing the invasive and censorious approach of the Safer Online Services proposals.
Thanks again Arran - nice to hear from you.
My view is likely to a little biased towards the more complex end of the spectrum, as I'm more likely to be engaged where the situation is complex or extremely harmful.
The civil regime has certainly sped up, with responses from the Court coming in within a few weeks. However, if there is anonymity, then it's orders to the platform (some of whom prefer not to respond to civil matters) then sometimes to the ISP if we then need to rely on IP addresses. If the person is Australian based then the ISP isn't able to respond to a civil request unless it goes through the Australian court. Anonymity is a factor which drags out the process, causing months of stress.
It is also good to see the Court using the Technical Adviser allowance more often. There was always that risk of reminding the Court of that allowance more than once or twice, that it would be suggesting deficincies in knowledge. Certainly not an issue you would have with your technical abilities, but you were a rare person on the bench. The use of a Technical Adviser almost seems the default now, which is great, and would certainly assist someone without representation to navigate the process.
I do certainly agree that it would likely be better that the Law Commission's initial recomendation had been followed, and this was pointed out as a flaw since the legislation was before the House. A certainly isn't a "quick and efficient means of redress" without a way to do that, but it certainly is faster than it used to be, if not yet able to be called quick.
So an improvement, but I do believe a Tribunal would have been a better step, then and now.
Need to have coffee sometime.
To get around the paywall, just open an incognito tab - The Post's paywall doesn't work on Incognito mode for some reason.
Haha wow, thank you for that. Not sure if that was intentional on their part or not, but will now go and have a read.
The line about falsehood needing to be proved might come from some imprecision of language on my part? Was comparing the use of the HDCA and defamation law in a particular context, but obviously the HDCA, when used for something like a privacy claim, it being true won't remove liability.