On-Line Speech Harms

A Sketch of Issues to be Considered in Legislating for the Digital Paradigm

This is a paper that was presented to the Bullying, Young People and the Law Symposium held under the auspices of the Allanah and Madeline Foundation in Melbourne 18 – 19 July 2013. It was part of a New Zealand contribution to the symposium by Cate Brett of the Law Commission, Martin Cocker of Netsafe and the author. The presentation accompanying this paper may be found here.

Introduction

This paper argues that legislating for behaviour in the digital environment raises unique issues. Whereas legislating for the physical world has certain architectural and physical constraints, such constraints may not be present in the digital space, or may be so paradigmatically different that new considerations need to be employed. This paper considers firstly the qualities and properties of digital technologies that provide challenges for conventional legal processes. It then goes on to consider the New Zealand Law Commission proposals to deal with on-line speech harms and any limitations on the effectiveness of those provisions. It concludes with some thoughts about the application of values developed within one paradigm to those who live in another.

The Digital Paradigm

Mark Prensky, an American educator, spoke of the issues confronting education in the digital paradigm. He suggested that there was a growing culture of people who had grown up knowing nothing but the Internet, digital devices and seeking out information on-line. This group he called “Digital Natives” – those born after 1990. He contrasted this class with “Digital Immigrants” – those who had developed the information seeking and uses before the advent of the Internet. Digital Immigrants used digital communications systems but their thought processes were not as committed to them as Digital Natives. Although they could speak the same language as the Digital Natives, they had a different accent that derived from an earlier information paradigm.

Digital Immigrants have an approach to information that is based upon sequential thinking, single tasking and limited resources to enable communication, all underpinned by the fixity of text. For the Digital Immigrant text represents finality. A book is not to be reworked, and the authority of a text depends upon its finality.[1] Information is presented within textual constraints that originate in the Print Paradigm.

Digital Natives inhabit a different information space. Everything is “multi” – multi-resource, multi-media, multi-tasking, parallel thinking. Information for the Digital Native may in its first instantiation be text but it lacks the fixity of text, relying rather on the dynamic, fluid, shifting qualities of the digital environment. Text does not mean finality. Text is malleable, copyable, moveable and text, like all other forms of information in the digital space, is there to be shared.

In the final analysis, the fundamental differences between Digital Immigrants and Digital Natives can be reduced to one fundamental proposition – it’s all about how we process information. For Digital Natives the information resources are almost without limitation and the Digital Native mind shifts effortlessly between text, web-page hypertext links, YouTube clips, Facebook walls, flikr and Tumblr, the terse, abbreviated tweet or text message and all of it not on a desktop or a laptop but a handheld smartphone.

But there is more to this discussion than the content that media convergence enabled by digital technologies provides.  Content, as McLuhan said, is  “the juicy piece of meat carried by the burglar to distract the watchdog of the mind.” [2] It is as important to understand how it is that digital information technologies work. We need to understand the underlying qualities or properties of digital technologies to understand the way in which they drive our information uses, activities and behaviours. Permit me a brief digression while I offer an example.

Information Technology Properties – The Printing Press

In her seminal work on the printing press – The Printing Press as an Agent of Change – Elisabeth Eisenstein identified six fundamental qualities that the print technology introduced that dramatically challenged the way in which the scribal culture produced texts.   These particular qualities were the enablers that underpinned the distribution of content that enhanced the developing Renaissance, that spread Luther’s ninety-seven arguments around Germany in the space of two weeks from the day that they were nailed on the Church door at Wittenberg, and allowed for the wide communication of scientific information that enabled experiment, comment, development and what we now know as the Scientific Revolution.

And it also happened in my own field the law.  Within 300 years of the introduction of the printing press by Gutenberg the oral-memorial customary- based ever-changing law had to be recorded in a book for it to exist.

It would be fair to remark that Eisenstein’s approach was and still is contentious. But what is important is her identification of the paradigmatic differences between the scribal and print cultures based upon the properties or qualities of the new technologies. These qualities were responsible for the shift in the way that intellectuals and scholars approached information.

There were six features or qualities of print that significantly differentiated the new technology from scribal texts.

a) dissemination

b) standardisation

c) reorganization

d) data collection

e) fixity and preservation

f) amplification and reinforcement.

For example, dissemination of information was increased by printed texts not solely by volume but by way of availability, dispersal to different locations and cost. Dissemination allowed a greater spread of legal material to diverse locations, bringing legal information to a wider audience. The impact upon the accessibility of knowledge was enhanced by the greater availability of texts and, in time, by the development of clearer and more accessible typefaces.

Standardisation of texts, although not as is understood by modern scholars, was enabled by print. Every text from a print run had an identical or standardised content. Every copy had identical pagination and layout along with identical information about the publisher and the date of publication. Standardised content allowed for a standardised discourse. In the scribal process errors could be perpetuated by copying, and frequently in the course of that process additional ones occurred. However, the omission of one word by a compositor was a “standardised” error that did not occur in the scribal culture but that had a different impact and could be “cured” by the insertion of an “errata” note before the book was sold. Yet standardisation itself was not an absolute and the printing of “errata” was not the complete answer to the problem of error. Interaction on the part of the reader was required to insert the “errata” at the correct place in the text.

In certain cases print could not only perpetuate error but it could be used actively to mislead or disseminate falsehood. The doubtful provenance of The Compleate Copyholder attributed to Sir Edward Coke is an example.[3] Standardisation, as a quality of print identified by Eisenstein, must be viewed in light of these qualifications.

Print allowed greater flexibility in the organization and reorganization of material and its presentation. Material was able to be better ordered using print than in manuscript codices. Innovations such as tables, catalogues, indices and cross-referencing material within the text were characteristics of print. Indexing, cross-referencing and ordering of material were seized upon by jurists and law printers.

Print provided an ability to access improved or updated editions with greater ease than in the scribal milieu by the collection, exchange and circulation of data among users, along with the error trapping to which reference has been made. This is not to say that print contained fewer errors than manuscripts. Print accelerated the error making process that was present in the scribal culture. At the same time dissemination made the errors more obvious as they were observed by more readers. Print created networks of correspondents and solicited criticism of each edition. The ability to set up a system of error-trapping, albeit informal, along with corrections in subsequent editions was a significant advantage attributed to print by the philosopher, David Hume, who commented that “The Power which Printing gives us of continually improving and correcting our Works in successive editions appears to me the chief advantage of that art.”[4]

Fixity and preservation are connected with standardisation. Fixity sets a text in place and time. Preservation, especially as a result of large volumes, allows the subsequent availability of that information to a wide audience. Any written record does this, but the volume of material available and the ability to disseminate enhanced the existing properties of the written record. For the lawyer, the property of fixity had a significant impact.

Fixity and the preservative power of print enabled legal edicts to become more available and more irrevocable. In the scribal period Magna Carta was published (proclaimed) bi-annually in every shire. However, by 1237 there was confusion as to which “Charter” was involved. In 1533, by looking at the “Tabula” of Rastell’s Grete Abregement of the Statutys a reader could see how often it had been confirmed in successive Royal statutes. It could no longer be said that the signing of a proclamation or decree was following “immemorial custom”. The printed version fixed “custom” in place and time. In the same way, a printed document could be referred to in the future as providing evidence of an example which a subsequent ruler or judge could adopt and follow. As precedents increased in permanence, the more difficult it was to vary an established “custom”. Thus fixity or preservation may describe a quality inherent in print as well as a further intellectual element that print imposed by its presence.

Although Eisenstein’s work was directed more towards the changing intellectual environment and activity that followed the advent of printing and printed materials, it should not be assumed that printing impacted only upon intellectual elites. Sixteenth and seventeenth century individuals were not as ignorant of their letters as may be thought. There are two aspects of literacy that must be considered. One is the ability to write; the other being the ability to read. Reading was taught before writing and it is likely that more people could read a broadside ballad than could sign their names. Writing was taught to those who remained in school from the ages of seven or eight, whereas reading was taught to those who attended up until the age of six and then were removed from school to join the labour force. Print made information more available to ordinary people who could read.

Another thing that we have got to remember is that media work on two levels. The first is that a medium is a technology that enables communication and the tools that we have to access media content are the associated delivery technologies.

The second level, and this is important is that a medium has an associated set of protocols or social and cultural practices including the values associated with information – that have grown up around the technology. Delivery systems are just machines but the second level generates and dictates behaviour.[5]

Eisenstein’s argument is that when we go beneath the delivery system and look at the qualities or the properties of a new information technology, we are considering what shapes and forms the basis for the changes in behaviour and in social and cultural practices. The qualities of a paradigmatically different information technology fundamentally change the way that we approach and deal with information. In many cases the change will be slow and imperceptible. Adaptation is usually a gradual process. Sometimes subconsciously the changes in the way that we approach information changes our intellectual habits. Textual analysis had been an intellectual activity since information was recorded in textual form. I contend that the development of principles of statutory interpretation, a specialised form of textual analysis, followed Thomas Cromwell’s dissemination and promulgation of the Reformation statutes, complete with preambles, in print.[6]

From all this it would be fair to ask -  what’s the difference? What’s changed? All we’ve got is a bunch of machinery that allows us to do what we have always done which is to read and watch movies and do the same things that we did with radio or the television – the only thing is that it’s all been brought together – there has been a convergence of the various delivery systems.    And on the surface that’s perfectly correct because what you are talking about there is content.  You’re talking about the material that’s delivered rather than looking at the delivery system.

The Medium Is….

Once there is a recognition of the fact that there are properties that underlie an information technology that influence the way in which we address content, and that will govern or moderate information activities,  we begin to understand what Marshall McLuhan meant by his aphorism “The Medium is the Message.” Understanding the medium and the way it governs and moderates information activities allows us to understand the impact of the digital communications technologies – a convergence of everything that has gone before and the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

The Properties of Digital Communications Technologies

Many of the properties that Eisenstein identified for print are present in digital technologies. Every new information technology – and this has been the case from the printing press onwards – has its own particular properties or qualities that significantly differentiate it from other earlier information technologies.

The properties that I identify are not an exclusive list. The identification of the properties or qualities of digital information technologies is very much a work in progress. But these are the ones that occur to me. Some of them have already been reflected in the discussion that has preceded and I give a very brief description of what each property means. A more detailed analysis has yet to be developed.

• Persistence – summed up in the phrase “the document that does not die” – that once information is on the Internet it is more likely than not to remain there.

 Continuing change or what you could refer to as the disruptive element – continuing disruptive change is a characteristic of the digital space – the idea of a “breathing space” between times of accelerated change no longer exists. This quality is linked to “permissionless innovation” below.

 Delinearisation of Information – in essence, the effect of hypertext links that allow and enable thinking to follow other than a strictly logical sequence, but to branch of into related (sometimes tenuously related) areas of information

 Dynamic information – the ability to cut, paste, alter, change and modify text once it has been placed in digital format – exemplified by the ability of on-line newspapers to update stories or significantly alter them as new information comes to hand

 Dissociative enablement,  - the ability to sit behind a screen and say and do things that one would never contemplate face to face or in “meat space”

Permissionless innovation – you don’t need to ask to put a new tool or protocol on the Internet. Sir Tim Berners-Lee didn’t need anyone’s permission to bolt the World Wide Web onto the Internet; nor did Mark Zuckerberg with Facebook, Sergey Brin and Larry Page with Google, Jeff Bezos with Amazon or Jack Dorsey with Twitter. If you build it they will come sums up this quality.

Availability – information comes to the user. The print paradigm localised book based information in a library or a bookshop. The Internet brings directly information into the home.

Participation – this is a very wide concept which includes information and file sharing as well as the ability to comment on blog sites, post photos on Facebook, engage in Twitter exchanges, participate in IRC chatrooms and break new stories via a blog.

Searchability  is related to the next quality but is the first step in the information recovery process – a common feature of the Internet before it went commercial and thereafter has been to make some sense of the vast amount of information that is available. Thus from Gopher to Google the quest for making information available has been a constant, and it enables users to find what they are looking for.

Retrievability – and once the successful search has been carried out, the information is available and can be readily and immediately obtained – associated with information availability above.

This means that the information expectations of Digital Natives have been shaped and moulded by these qualities. Their uses and expectations of what happens in the on-line world are quite different to those of their parents (Digital Immigrants) or those of my generation (Digital Aliens). Thus any solution to on-line problems must be premised upon an understanding of the technology and the way that it shapes behaviours and values underlying those behaviours. The solution must also recognise another McLuhan aphorism – we shape our tools and thereafter our tools shape us.[7]

This of course gives rise to the question of whether or not the internet changes us forever.  Underlying this theory is the concept of neuroplasticity – the ability of the brain to adapt to and learn from new stimuli.   The concept of neuroplasticity was picked up by Nicholas Carr in his book The Shallows: How the Internet is changing the way we think, read and remember.[8]  His book, based upon an earlier article that appeared in the Atlantic, has as it thesis that the internet is responsible for the dumbing down of society based upon the way in which our minds respond both to the wealth of information and its availability.

The neuroplasticity argument is picked up by Susan Greenfield[9] who believes the web is an instant gratification engine, reinforcing behaviours and neuronal connections that are making adults more childlike and kids hungry for information that is presented in a super simplistic way but in fact reduces their understanding of it.  Greenfield is of the view that the web spoon feeds us things to capture our attention. This means we are learning to constantly seek out material that stimulates us and our plastic minds are being rewarded by our “quick click” behaviour.  We want new interactive experiences and we want them now.

This view is disputed by Aleks Krotoski[10] who firstly observed that there is no evidential support for Greenfield’s propositions which pre-suppose that once we used the web we will forever online and never log off again.  According to Greenfield, says Krotoski, we become connected to our computers and other devices in a co-dependent exclusive almost biological way ignoring where how and why we are connecting.  Krotoski, for example, disputes internet addiction, internet use disorder or neurological rewiring.

In some respects Carr and Greenfield are using the “low hanging fruit” of technological fear[11] to advance their propositions.  Krotoski’s rejection of those views is, on the other hand, a little too absolute and in my view the answer lies somewhere in between.  The issue is a little more nuanced than whether or not the Internet is dumbing us down or whether or not there is any evidence of that.

My argument is that the impact of the internet lies in the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

This may not seem to be as significant as Carr’s rewiring or Greenfields neuroplasticity but it is, in my view, just as important.  Our decision making is based upon information.  Although some of our activity could be termed responses to stimuli, or indeed it might be instinctive, most of the stimuli to which we respond can in fact be defined as information – if not all of it.  The information that we obtain when crossing the road comes from our senses and sight and hearing but in many other of our activities we require information upon we which may deliberate and to which we respond in making decision about what we are going to do, buy and so on.

And paradigmatically different ways of information acquisition are going to change the way in which we use and respond to information. There are other changes that are taking place that arise from some of the fundamental qualities that underline new digital communications technologies – and all communication technologies have these particular properties or qualities underlying them and which attach to them; from the printing press through to the wireless through to the radio through to television and into the digital paradigm.  It is just that digital systems are so fundamentally different in the way in which they operate and in their pervasive nature that they usher in a new paradigm.[12]

Looking at Solutions

Thus if we seek a solution to some of the problems that involve Internet-based behaviour we must recognise these qualities and impacts of the digital communications technologies that underlie these behaviours. For example any solution must recognise:

• The time factor – in “internet time” information moves faster than it does in the real world
• Information is dynamic and spreads “virally”
• “Dissociative enablement” means that people are going to behave differently when operating from the apparent anonymity of a private room or space and from behind a computer screen
• Any remedy is going to be partial – given that information on the internet is going to remain in some shape or form (the quality of persistence or “the document that does not die”)
• Normal civil and political rights including a robust recognition of freedom of speech and expression and that the internet is neutral.
• Restrictions on a free and open internet must be minimal.

The New Zealand Solution

The New Zealand solution set out in the Digital Speech Harms paper from the Law Commission takes a two-pronged approach. One involves the creation of a new offence. The other involves a fast-track solution of a civil nature involving the creation of a Communications Tribunal.

A New Offence

The Law Commission considers that causing harm by the use of a communications device should be criminalised. The first thing that must be recognised is that the use of communications device is not criminalised, nor may this be seen as an attempt to regulate the Internet. What is being addressed is a behaviour involving the use of a communications device that causes harm to another.

The proposed language of the offence is as follows:

Causing harm by means of communication device

(1) A person (person A) commits an offence if person A sends or causes to be sent to another person (person B) by means of any communication device a message or other matter that is—

 (a) grossly offensive; or

 (b) of an indecent, obscene, or menacing character; or

 (c) knowingly false.

 (2) The prosecution must establish that—

 (a) person A either—

 (i) intended to cause person B substantial emotional distress; or

 (ii) knew that the message or other matter would cause person B substantial emotional distress; and

 (b) the message or other matter is one that would cause substantial emotional distress to someone in person B’s position; and

 (c) person B in fact saw the message or other matter in any electronic media.

 (3) It is not necessary for the prosecution to establish that the message or other matter was directed specifically at person B.

(4) In determining whether a message or other matter is grossly offensive, the court may take into account any factors it considers relevant, including—

 (a) the extremity of the language used:

 (b) the age and characteristics of the victim:

 (c) whether the message or other matter was anonymous:

 (d) whether the message or other matter was repeated:

 (e) the extent of circulation of the message or other matter:

 (f) whether the message or other matter is true or false:

 (g) the context in which the message or other matter appeared.

 (5) A person who commits an offence against this section is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.

(6) In this section, communication device means a device that enables any message or other matter to be communicated electronically.

The message set out in subsection (1) has to pass a very high threshold. Similarly the intention test in subsection (2) is high and the criteria in subparagraphs (a) – (c) are conjunctive. Each one must be proven to the criminal standard. Subsection (4) sets out matters that a Court may take into account, but these criteria are not exclusive.

One matter that must be taken into account is that the section would have to be interpreted and applied in accordance with the provisions of the New Zealand Bill of Rights Act 1990 (NZBORA). Now the section as it stands criminalises a certain quality of speech, thus engaging a consideration of the freedom of expression right guaranteed by s. 14 of NZBORA. That must take into account issues of a justified limitation upon the freedom of expression right. In my view the application of NZBORA would necessarily result in a very cautious approach by a Court. The evidence of the offending would have to be clear and unequivocal and could not really apply to a trivial matter.

A problem that arises with prosecutions for such an offence is the nature of the legal process which rarely matches “Internet time” and the fact that the section does not allow for the removal of any offending material, thus allowing the persistence of the information. The section addresses the behaviour but the message may still remain, preserved on the Internet.

The Communications Tribunal

The proposal for a Communications Tribunal, and for the powers and remedies that Tribunal may bring to play could well address some of the qualities of the digital environment, and possibly more effectively than a criminal prosecution, which, in my view, would be reserved only for the most extreme cases.

The Communications Tribunal

a) would have a limited jurisdiction

b) could provide limited and specific remedies

c) would deal with content and not criminality

d) would operate “on the papers”

e) would be a remedy of last resort after a filtering process has been carried out by the Approved Agency

Communications Principles

On the face of it, the Communications Tribunal has some significant powers which, at first glimpse, interfere dramatically with freedom of expression. The approach by the Tribunal must be within the context of Communications Principles proposed by the Law Commission. These are:

Principle 1

A communication should not disclose sensitive personal facts about an individual.

Principle 2

A communication should not be threatening, intimidating, or menacing.

Principle 3

A communication should not be grossly offensive to a reasonable person in the complainant’s position.

Principle 4

A communication should not be indecent or obscene.

Principle 5

A communication should not be part of a pattern of conduct that constitutes harassment.

Principle 6

A communication should not make a false allegation.

Principle 7

A communication should not contain a matter that is published in breach of confidence.

Principle 8

A communication should not incite or encourage anyone to send a message to a person with the intention of causing that person harm

Principle 9

A communication should not incite or encourage another person to commit suicide.

Principle 10

A communication should not denigrate a person by reason of his or her colour, race, ethnic or national origins, religion, ethical belief, gender, sexual orientation, or disability.

Matters that the Tribunal Would Have to Consider

In considering an application for relief the Tribunal would have to take into account the following:

(a) the content of the communication, its offensive nature, and the level of harm caused by it:

(b) the purpose of the communicator in communicating it:

(c) the occasion, context, and subject-matter of the communication:

(d) the extent to which the communication has spread beyond the original communicator and recipient:

(e) the age and vulnerability of the complainant:

(f) the truth or falsity of the statement:

(g) the extent to which the communication is of public interest:

(h) the conduct of the defendant, including any attempt by the defendant to minimise the harm caused:

(i) the conduct of the complainant, including the extent to which that conduct has contributed to the harm suffered.

The Law Commission also emphasised that in exercising its functions, the Tribunal should have regard to the important of freedom of expression. Thus an analysis pursuant to the provisions of NZBORA would have to be undertaken.

The Orders that the Tribunal Might Make

(a) an order requiring that material specified in the order be taken down from any electronic media:

(b) an order to cease publishing the same, or substantially similar, communications in the future:

(c) an order not to encourage any other person to engage in similar communications with the complainant:

(d) a declaration that a communication breaches a communication principle:

(e) an order requiring that a factually incorrect statement in a communication be corrected:

(f) an order that the complainant be given a right of reply:

(g) an order to apologise to the complainant:

(h) an order requiring that the author of a particular communication be identified.

These orders or parts of them may apply to the following:

(a) the defendant:

(b) an internet service provider:

(c) a website host:

(d) any other person, if the Tribunal considers that the defendant is encouraging, or has encouraged, the other person to engage in offensive communication towards the complainant.

Transparency would be ensured in that the Tribunal must publish its decisions and the reasons for them. This is necessary because if there are to be interferences with freedom of expression the reasons for such interference and the extent thereof should be published and made known to counter any suggestion of secret interference with freedom of speech.

As proposed the Communications Tribunal would have the following advantages in dealing with on-line speech harms and at the same time recognise some of the disruptive qualities of the digital paradigm:

a)  it would deal only with the most serious types of on-line speech harm, in that the Approved Agency would filter and deal with the majority of complaints.

b) It would provide a relatively swift response which would accord with “internet time” and at least attempt to mitigate some of the damage that could be done if the material in question was or going or was likely to go viral. Having said that, the persistence quality of information on the Internet may well provide an element of frustration, but responding to the source of the speech harm is a significant first step.

c) it would have an “on the papers” hearing which would obviate the need for conducting a full hearing with parties present, and which would have to fit in around other Court work. This said, with modern technology such as Skype it is possible that a “distributed hearing” where the participants would be other than in the Court building may be possible. New Zealand has specific legislation that allows this.[13]

d) it could provide a remedy by way of a take-down order but it should be noted that power would have to be exercised having regard to the freedom of expression provisions in NZBORA, and the correct analysis based on a proportional approach would have to be undertaken.

e) an order of the Tribunal would constitute a Court order which would receive recognition from providers such as Google or Facebook and thereby the removal of offending content could be expedited.

The Present State of the Play

The report has been received by the Minister.

She has indicated that the recommendation for a Communications Tribunal will not be adopted.

The proposed jurisdiction of the Communications Tribunal will be assumed by the District Court

Some of the issues that may arise and should be addressed as the policy develops into a Bill might include

a) lack of specialist expertise in the field of digital communications law on the Bench and the need for specialised training

b) potential procedural delays if Communications complaints are subsumed as part of the normal Court process – a “fast track” may need to be considered

c) variation or possible lack of consistency in the application of principles and the types of orders that may be made

d) whether or not a process may be developed which will take into account the qualities and realities of the digital paradigm and which recognise that the nature of Internet based communication is fundamentally different and potentially far more damaging than conventional bullying “speech”.

One thing is clear and it is that the activities of the Court in this area will be carefully scrutinised by lawyers, free speech advocates, Internet freedom advocates and the community in general.

A Cautionary Conclusion

There are some who follow the view of Edmund Burke – that each generation has a duty to succeeding generations. Because politics amounts to an intergenerational contract between one generation and the next, politicians should feel entrusted with the conservation of the past for future generations.

The problem is this – in a changing communications paradigm should digital immigrants tell digital natives how to live their lives in the digital environment?

The IT Countrey Justice

July 2013