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Nethui 2012: Regulating Bad Behaviour Online - Judge D Harvey

Nethui 2012: Regulating Bad Behaviour Online with Judge David Harvey

Live notes of Nethui 2012 content regulation session afternoon 11/07/2012 at the Sky City Convention Center, Auckland, New Zealand.
Nethui is an initiative of InternetNZ
Note: The event was broadcast by live stream and recorded by These notes are subject to further revision. Notes by @Gnat @lancewiggs and helpers. )

Regulating bad behaviour online
With Judge David Harvey


At the end of 2010, as a result of an ‘extravagant comment’ describing the internet as the ‘wild west’ the law commission was given the task of reviewing the existing civil/criminal remedies for breach of privacy/defamation, what alternative remedies should be available.

We’re going to focus on that.
They’ve been referred to in some of these forua as “speech harms”, opening up door to interesting cans of worms.
December last year, the Law Commission releases the issues paper. Submissions were called for and the submission period ended, end of March. Law Commission putting together recommendations paper and submit to govt. But was intensive campaign in NZ Herald which focused on cyberbullying, and new Minister of Justice asked commission to accelerate recommendations regarding misbehaviour online:

1. So alw commission discussed and recommended:
statute book be reviewed so all comms laws cover digital environment
2. new offence re: malicious impersonation
3. Amending harassment act to remove doubt that its provisions covered online activity
4. Extend Telecomms into the digital environment
5. Change Human Rights act to remove doubt about publications likely to incite hostility
6. Consider amending other bits of Bill of Rights to make cyberspace a public space.

Having reviewed, what about enforcement. Communications commissioner, like privacy commissioner, or a tribunal, speedy remedy for online harms. not for trivia. demonstrable harm or likely harm, financial, psychological, humiliation, fear for safety.

What I can say, and I’m authorised to say this, law commission considering combining tribunal and commissioner into one body. facilitating, screening, then refer to tribunal for disposition

Recommendations of Law Commission to the govt are in the process of being completed now. Won’t have opportunity to make more submissions before it’s completed, but law changes should be referred to select committe and that’s where future discussion can take place.

This session looking at bad behaviour online. Law Commission said that existing law does address bad behaviour. First question: what do we understand by “bad behaviour” and what extent are we prepared to see restriction on free speech and expression online? Look at the harms that are occurring and take it from there.

Audience: Back in the days of Usenet, online forums, every other community that existed online, common practice that community established its own standards. I have a problem with this because I see a lot of abuse of the idea of “bad behaviour” to be anything from disagreeing with someone. I see it misapplied liberally these days. Not in favour of harassment, but allowed to have a personal opinion.

Harvey: If you used Usenet, you’ll recall there was some robust discussion.

Audience: That’s where “trolling” came from At that point does community enforcement and banning users become a civil issue?

Havey: You’re suggesting online communities should regulate themselves?

Audience: At what point does say “get out” not enough, become a case for the legal system?

Harvey: Will avoid the second part, go to the first part and ask for some views. Within an environment, a community such as Usenet, that could be fine. But the problem that we’re getting is people setting up web pages that can be used for abuse, going beyond defamation, very hurtful. Bloggers using blogs as means of causing other people distress. People using Twitter and FB as means of upsetting people. Twitter and FaceBook may be examples of your community, but what about blogs and webpages, what community will regulate those? [Audience: ah, yes!] We are looking at a whole range of protocols across the Internet.

Audience: I had a question (relating to publications and books) … … … the difference between hurtful speech and things that are causing people distress. What are facts for one person can be distressing for another. Do we have a definition for what is required? Is it sufficient that something causes someone distress?

Harvey: The answer to your question is yes, and indeed it can be true. It comes under the umbrella of the harassment act. At the moment there’s a two-stage test: there’s something that’s hurtful to me, and I’m disturbed by it. You might say “what? He’s disturbed by it? That’s nothing”. You must look at it from my subjective point of view. Then you must have an objective test: is it reasonable for a person in my circumstances to see it that way. There are circumstances when the truth has given offence.

Audience: Freedom of religion, have two different points of view which are in conflict. Adherents of one belief believes theirs is absolute truth. So does the other. And each believes the other is absolute heresy.

Harvey: Well that’s been going on since.... [laughter from audience] Early Christian church is good example: they excommunicated people. (Like Usenet.)

Audience: They each believe they have a genuine belief, but when communicated that belief is hurtful, and person is genuinely hurt. Whole point of free speech is that you shouldn’t have to limit it when it hurts someone.

Harvey: Oh sure - freedom to express the thought we hate.Oliver Wendell Holmes, “r[..../

Fine balance, difficult one.

David Farrar: Limits of powers. How much can the law do? London young woman cyber-bullied and harassed. She asked “is Wimbledon held in London each year?” 21k people replied to her, derogatory terms of her intelligence. No law going to change this situation.

What law can do - in terms of good power and bad power: Bad power is the talk of a body that’s not a full court having takedown powers. If I hold the opinion that Jamie is a scumbag and say that on my blog, and I’m willing to take the consequences for it, I have hesitation about a body being able to say “you must take that from the Internet”. (and the Streisand effect, it might not work)

Most people worry about reputation. Most common request on my blog is “if you google my name, something someone said about me …” or “something I said, I don’t want employers to see it”. If I’d said Jamie is bankrupt, that’d defamation, and it’s affordable, but it’s futile if people on the Internet have no money. Useful for proposed tribunal commissioner is arbitration and finding fact: what’s proof you’re bankrupt? Company I was part of went bankrupt but was two years after.

If commission made a finding of fact, media would link to it and it’d be high rank on Google. I think the best way to fight bad information is to put out more good information. I hope the Law Commission will look at that.

Jon Brewer: David (Farrar) was talking about false speech that was defamatory, but I’m wondering about false speech in general. Can you touch on the US’s [act] Supreme Court decision saying that false speech is protected speech in the US. How will affect these issues in NZ?

Harvey: Gilmour said the First Amendment is a local ordinance. We have Freedom of Expression right under Bill of Rights Act, freedom to receive and send information. But BoR hedged. Your false information right of speech: well, First Amendment allows a lot of stuff that wouldn’t be allowed in other countries. To give you an example of false speech or irony as speech that caused some difficulty, is case of Queen v Chambers currently under appeal in UK Court of Appeal. Mr Chambers was snowed in, in the Midlands, tweeting that “if they don’t get rid of snow in four days, I’ll blow the f-ing place up”. [Audience Laughter] He wasn’t going to , but authorities took umbrage, prosecuted him, and he’s been fined. Issue of speech: wasn’t threat, he’s not a terrorist, he just wanted to see his girlfriend in Ireland, but that was false speech as well that has been prosecuted. (and they only noticed the tweet 4 bloody days later)

Different rule for different countries. First Amendment on Internet now applies worldwide even if it’s a local ordinance because the false stuff does get out.

Jon Brewer: Much more interested in NZ. Is False speech protected?

Harvey: Depends on whether it’s defamatory. I could broadcast a falsehood: the sun isn’t going to rise today. It’s false, I’ve put it out on Twitter, but so what--no significance. I hate to be a lawyer, but “it depends”. Context is everything. If it is false and going to cause someone harm, reputational or psychological, then there may be remedy available under our law that is not available under US. Imagine that threshold for speech to be harassment is higher under US.

Russell Brown: With Queen v Chambers, (will they) get quickly to situation where tribunal telling high court not to be stupid, that man was obviously joking. Is it going to be able to do that?

Harvey: If the matter was referred to comms tribunal rather than being dealt with by police, then tribunal would deal with it and that’d be the end.

RB: Could tribunal tell police off for prosecuting?

No, courts can’t tell police who to prosecute. They can and will dismiss prosecutions, but they will not prevent them.

Mediation and arbitration. For good players, attempting to get redress locally, is great. Second part: linking means that it’ll rise in weight in google, there are bad sides to that. Santorum’s name is mud now, and that’s bad for him and almost impossible to eradicate. Privatising the innate searchability of all statements true or false: you can pass a statement “that was an incorrect act and should not happen” but withdrawing it from the public eye is very hard. Just as people used to milk money from publishing industry by waiting until book published and then suing for defamation, now might see exorbitant claims for restitution because of the worldwide visibility of the act

Harvey: Proposed by law commission, would have to be threshold for vexatious vs true complaint. That’s why they’ve proposed merged commissioner to the tribunal: would do the vetting and engage in mediation. Mediation is wonderful idea but conditioned by need for goodwill. “Some of the stuff on the blogs makes me doubt that they’re people of good will.”

Martin: Wanted to pick up on what David said earlier about Jamie. Specifically, whether the tribunal should be able to order takedowns. Negative view of takedowns, but properly setup tribunal should be able to. Assume Jamie were a teacher, and your blog said “Jamie sleeps with his students”, as long as that’s up, it’s massively damaging because community says “where there’s smoke there’s fire”. The quicker you can take it down, the less damage it can do. Obviously case for takedowns there.

Marie Shroff (Privacy Commissioner): Law Commissioner should have takedown. Like flatmate who snaps pervy picture and posts onto the internet. Looks to me that you do need takedown to protect ordinary person who is being treated in offensive way. Takedown power the law commission proposed for me would be appealable. Could argue the toss. Have to deal with fact that people feel helpless in face of onslaught and ability of v. offensive material to pervade widely. As Martin says, quick takedown with appeal doesn’t seem to be immediately offensive to free speech.

Harvey: A takedown that is appealable. Are you suggesting that the material is taken down, then if appeal successful, is the material restored? Or that takedown notice is issued, and if notice not appealed, then the material taken down?

Marie Shroff: Thanks, Mr Lawyer. Fast-track it so could be done quickly.

Richard Hulse: I’m on school board of trustees. Lot of conversation is about interactions between consenting adults who are relatively mature. What I see as trustee is students who have been subjected to systematic bullying via social media, sometimes over months and months. Then they appear before the discipline committee because they’re retaliated in the physical. These remedies suitable for intelligent adults who can mediate and discuss. But students don’t want to rat on other students, want to fit in, they want acceptance. Bigger problem with young people, they have no place to go, don’t have adults they can talk to, don’t know how to process abuse which is often personal.

Harvey: The answer is not to say “turn off the phone” or “don’t log on”.

Sean (Auckland Libraries): I want to ask, “how meaningful can a takedown notice be?” I can ask someone to take information off one blog, but can’t guarantee the photo of me taken against my will isn’t mirrored around the Internet.

Harvey: Persistence of information an inherent quality of new communications technology. May have been distributed elsewhere, may be on the Internet Archive for all we know, but effect of takedown notice is that it isn’t immediately available.

Lee: A lot of the bullying that goes on between students can be taken down because it’s on places like Facebook, which have T&C, and who will respond if it is reported. We deal with that a lot. Some of the modelling that we see that happens for students is because adults are so vindictive and nasty online, so as long as you have that, how can we expect young people to behave differently when the model in front of them is often as bad as they’re doing to each other. The ramifications and distress can be huge, for a 14 year old who can’t deal with that kind of persistent bullying that any of us could just shrug off and say “they’re just being an idiot”.

Pamela Jones Harbour: Cyber-bullying was a big issues in the United States, still is, but I’ve noticed that a lot of schools made it #1 priority and it has changed the culture of the students. They know what it is, they know when it happens, and I propose that perhaps consumer education, parent education, student education, to let them know that this is not acceptable. There was a 3-pronged approach in the US: stop, block, and tell. Stop: “you are being bullied”, not ranting back or fighting. You stop, block it, then go tell someone. One approach is to educate students and populace, that it’s not tolerated and not okay.

Harvey: Notwithstanding the 1st amendment, you’ve got a social solution. The approach in this country is “you’ve got something wrong, let’s make a law”.

Pamela Jones Harbour: Sometimes laws are too hot or too cold. Rutgers student who had camera on roommate, who is gay, and roommate committed suicide. He got off with 30 days for community service. Some would say remedy was too cold, others too hot (would put a youngster in jail which wouldn’t be good for a long time).

Chris LaHatte: I think the takedown remedies are very useful as long as you’re in somewhere that ends with .nz. The remedies will be of no use anywhere else in the world. So why solutions proposed are excellent, won’t get rid of problem. Most bloggers use blogspot or one of the others, and none of them are hosted in NZ, so where’s the jurisdiction to order the takedown.

Harvey: There was a case (won’t be a lawyer!)(as if) way back in 1990s when there was a website that was hosted in California, where the administrator of web site was present in NZ. Administrator was ordered to take the offending material down (was a domain name case). That was a case when there was jurisdiction because person who had control of the site was in the country. Do agree, getting Wordpress or Blogspot taken down is difficult. Farrar is here in the country, he can be enjoined to remove the offending material from Wordpress. I think that’s the answer.

Audient: I have direct experience because as my day job, I investigate complaints about things like this. A Canadian businessman said this website had defamatory allegations about his business practices. The person who was posting it did several things which made it virtually impossible: hosted them all on website that was very pro-freedom of speech in the US (US definition). And they gave false whois information.

Harvey: Truly dedicated mis-behaviorist will find a way around it, without question.

Audient: Been making comments about jurisdiction. Where the server is, or some other arbitrary way. But if I met someone on the Internet, I wouldn’t say I met them on a server hosted in California. Internet feels like a place, but there’s no High Court of the Internet, no Governance but that which is vetoed by the US Dept of Commerce. How do I get Internet citizenship? Can we make an Internet where people need to pledge money or like when you rent out a house, you don’t get bond back if you leave it a bad state. $20k bond to join Internet, but if you misbehave, you accept punishment or forfeit money and leave. Notion that if Internet is real place, treat it as one.

Harvey: Internet not a real place, comms system that allows people to behave in a certain way. “We’ve met the enemy, and he is us.” I can have a long discourse about jurisdiction after the session.

Mike O’Donnell: (A little in context of what Pamela said) The proposed institution would be able to develop good relations with big global players. I know from personal experience that my Mum in Temuka will have no ability to get a site taken down, but if other institutions have relationships then can approach and results will be more immediate. Let’s give up perfection for a moment, this is the Internet and it ain’t perfect. We could have a pretty good whack. If anyone here is long in the tooth enough for ELectronic Unsolicited Messages Actually it had a pretty good effect even though just a NZ act. Means if that people like Farrar who send me unsolicited emails, if they don’t have an Unsubscribe at the bottom, I’ll report it. Self-moderation and community would still continue, and line between what’s allowed and what’s not would come from the organisation.

Harvey: The Comms Commission would lock in with Googles and Facebooks.

Geoff Huston, Australia: I see bunch of issues around enforceability. But I see issues around enforceability in many issues of our society, particularly when communication is involved and the parties and the act are in multiple places at once. But that shouldn’t stop communities from expressing their own values of acceptable behaviour for themselves. So you should speak cleanly (sic) about them and how you want them enforced, and within the bounds of your society, enforce them. Don’t worry about corner cases, just worry about what are the core values of your community.

Harvey: You’re seeing legal solution reflecting values rather than anything else. That’s an interesting solution because it gets around the ideas of repression, if we’re going to look at values. One of our values is freedom of expression.

Jay Daley: We have a hierarchy of intervention that we understand in our heads. First, the social contract--our culture, just by being politer (sic) and nicer to people. Second, level of responsible hosting where Google and Facebook attempt to be responsible. Then we get to tribunals and arbitrations. Finally, get to the courts.

It’s in all of our interests to try and do this at the lowest levels of the hierarchy before we get to the higher levels. It’s interesting to recognise that, as we are forced up that by determined people, that’s where jurisdiction becomes more important. That makes it harder because the Internet is a global phenomenon.

Many people who say “you can’t get Google to do this or that” should try. Most companies have been through painful process of recognizing that they have to be responsible, globally, at grassroots level listening to individual people making individual complaints and listen to people making complaints. And they're getting good. We are seeing lots of things being knocked off at the lower levels rather than escalated up the hierarchy.

Harvey: Deal with people who misbehave is one area, dealing with content is another. How do we deal with issue that it’ll be around for a long time unless we do something about it.

Brenda Wallace: I’ve been a target for over a decade by someone who doesn’t want women in open source. A takedown isn’t a remedy in the slightest for this scenario. People who worry about free speech and takedown notices. I’d like to hear more from people who are targets and what would be a good remedy. That comment or tweet going isn’t enough, won’t stop. A takedown isn’t a remedy.

Harvey: What about restraining order preventing person putting tweet out?

Brenda: He lives outside our jurisdiction. My point is that we should talk more about remedies.

Alastair Thompson: Two examples in NZ. Stiassney, which was futile and accomplished little. Currently got Whaleoil vs Bloomfield, who is now suing him for defamation, but equally futile, I suspect, in the final analysis. Distinct problem in law seeking to accomplish futile aims and looking at little ridiculous as a result.

Harvey: *cough* I don’t think I’d better comment about either case; only to say that I think the proposals that the Law Commission is making about a comms tribunal, recognizes some of the difficulties around defamation which is a phenomenally complex and expensive process to go through (quite beyond the reach of most people). And the other issue is the willingness of people to comply with court orders. That’s a fundamental thing: if you don’t comply, there is a contempt remedy. You can be binned for contempt, then go out and do it all over again. There are people who are not happy complying with court orders. In this respect, I think the tribunal will offer a speedy solution and cheap, for people who would find it otherwise impossible to go before a court or the established procedures that we have. Fast-tracked justice.

Lance Wiggs: Following on from Brenda and Alistair. When someone is offshore, can we hold them in contempt? Although it’s toothless because they’re offshore, can we say “you’re not welcome in NZ or if you turn up here, you’ll have this thing thrown at you?” Then throw that across other countries where NZers goes. Do we even want that?

Harvey: Person offshore can be subject to NZ jurisdiction, but it’s complicated. You can. The other thing about extradition is “I’d rather not go there”. [Joke, audience laughs, your humble scribe recognizes the wisdom of the Judge’s choice of career]

Hamish MacEwan: When someone commits a crime, it’s not undoable. Were I to punch David Farrar in the nose, I can’t unpunch his nose. As Brenda points out, takedowns are too late: you’ve all seen me naked in the shower and laughing at me. Can’t reverse an operation with a commission. Can stop it from persisting? Martin Crocker has often said that the problems are because it continues. Can’t undo the crime, so how make people more resilient to it? Geoff’s point that we want to express our cultural values even if they’re unenforceable, but the bullying we see in little children are modeled in Parliament, sporting activities. We’ve seen referees give up the game because they can’t stand (it). We need to be sure about what we want our cultural values to be, but empirically … You talked about NZ Herald campaign about cyberbullying, it’s tragic, and it happens to a very small minority of people but I wish it didn’t. Before we think it only happens to people, my memory is that 60% of Netsafe’s 505 line was from people over the age of 18. Not an issue of protecting the children, it’s protecting us all from bad actors. [yapyap]

Harvey: just to take a point on the arrow of time, if I can use the mechanism: no we can’t undo the punch, can’t bring back the dead, but we can recognise that someone has misbehaved or fallen below the standard or offended against the values, hold them responsible, and call them to account. That’s what it’s about.

MacEwan: Absolutely agree.

Harvey: And it doesn’t undo the punch.

MacEwan: [unintelligible because he’s talking without the mic (and I was drifitng)]

Audience: Sometimes these problems are quite old. Newspapers and newsprint have had to deal with this because you can’t do a takedown on yesterday’s paper. The Internet … to think you can do a takedown, it’s actually amazingly complicated once the search engines have been across you. Look at the remedies to social behaviour, takedowns not a complete remedy. Look at values of community and how people abuse individual trust, those things are important. Takedowns don’t erase the problem. Maybe you should consider where newspapers had to go to, with retractions, directed by their own obvious issues.

Rochelle Furneaux: bullying becoming cyberbullying means we can see it clearly. Before the Internet, there was lots of bullying without the Internet but now you can see what people say about each other on Facebook, easier for community to recognise the problem as it’s not so secret and hidden. Used to be denied, swept under carpet. Can see it now, decide it’s not appropriate, the behaviour can be disapproved of by the rest of the community.

Harvey: One thing about Values, have theory that the law reflects values and values underpin the law, is that with new communications technology and particularly the way we’re going through the pace of change for 20y. Values change and the problem that you have is once you’ve passed the law, you’re freezing the values so that 20 years down the track, you’ve got the same values which are incorporated in the law which may not be recognized by the next generation. That’s one of the problem you have with the law which is like a glacier in its size and bulk and mass and immovability. It moves very very slowly. (Glaciers melt - bad example)

Martin: The thing about takedowns is that you shouldn’t necessarily take powers away from tribunal. Takedown should be one of options available, don’t know whether it should be the go to option. 60% is interesting. Every day a number of people ring Netsafe, and they call because they’ve run out of options. They’ve tried to sort out their defamation or harassment, and been turned away. Yes, 60% of them are adults because much gets resolved in school. Still fair to say that cyberbullying still more common in youth than adults.

Harvey: Colleague made point in harassment case about taking down material on a blog.

Ian: I have 13 and 11 year old grandchildren and computers at my place, concerned about Facebook which asks “are you 12”. Almost all their friends have been given permission to log on by their parents. Anything we can do to strengthen the recommendation of maturity on games and sites.

Harvey: Family issue.

Audience: You mentioned in passing the concerted efforts of a dedicated troublemaker. How would we deal with anonymity.

Harvey: There is a way, one way being through IP numbers. [Groans from audience] There are issues about IP tracking. Because I raise it doesn’t mean I approve.

Lin Nah: Can’t legislate against it, but privacy -- people don’t recognize how much of their data is available online. Hacker just has to hack three or four places, and you’ll realize how much is online. public transportation swiping on: where and when you’ve gone, it’s online so you can see it but that means hackers can get to it. Online loyalty programs, facebook, pinterest … shared IDs, your movements can be tracked. How much of that data are you trusting to corporations that are not working for you?

Harvey: That is a data collection and privacy issue, but also has implications for ways you manage your identity online.

Angela: Teacher at the chalkface, teaching tech at a boys school. Comments go to adult level about defamation and values and then into cyberbullying and then down into children. Really interesting. From the snapshot I get, Netsafe do amazing job and are totally underfunded in comparison with other countries and the millions thrown to them by governments, but resource that educators grab and work with. Educators have to imbue a values system in students of all ages with cyber safety and literacy. Many educators not confident to do that: they can work with tools, but may not have expertise or tools to deal with “what is behind the tools” (values). As educators, we’re trying to keep up with the fact that tools used with expertise by children, but with little wisdom. Reliant on laws coming to back up the values we imbue into the children. Values hugely important; (values underpin laws etc) govt needs to support education in this area into schools and parents; reputation management with youth -- not compulsory in schools, but is embedded in elearning framework that citizenship safety is taught. Teaching youth, they want to talk about Facebook, about the issues. But are there people who can talk them through that from point of wisdom? Not just their peers who talk entertainment and social connect.

Russell Brown: I think we’re in danger of developing magical thinking about takedowns. If I’m moderating an online discussion, I’m the first arbiter. If something is defamatory or offensive, I’ll take it won. By by the time I get there, it’s been crawled by Google. I might annotate to indicate invalid materials. The idea that you can’t respond by taking it down is an invalid one. further action may be required, but a takedown is definitely a valid initial reaction.

Harvey: thanks. Continue the conversation

Thanks to @gnat for these notes


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