Speech to NetSafe Approved Agency launch eventJustice
Can I start by acknowledging Martin Cocker, chief executive of NetSafe.
I would like to welcome you all to New Zealand’s first conference focused on harmful digital communications.
It’s an important topic and one that matters now more than ever before. Bullying is not a new problem but its reach and its impact have increased considerably in the digital age. I’m sure many of us either have, or know of someone who has, been a victim of online bullying.
In fact, statistics show one in 10 New Zealand adults and one in five secondary students have experienced online harassment.
Notwithstanding the fact that most people’s experiences online will be positive – Internet NZ say 89 per cent of Kiwis believe the positives of using the internet outweigh the negatives – but nearly 70 per cent still say cyber-bullying is a concern for them.
As I said when we were passing the Harmful Digital Communications Act, we have to recognise that in the modern digital world perpetrators are increasingly using social media to bully and hound their victims.
We live in an era where smartphones outnumber people and every day we spend around six hours connected at home or on the go.
The speed at which information spreads and is able to be found can seem frightening – not to mention how spontaneous comments can live on indefinitely.
A single post or tweet can be shared around the world thousands of times and across millions of screens within seconds yet its repercussions can cause lasting damage.
This digital technology means we can connect and interact in new, exciting ways – but unfortunately there’s a dark and sinister side to the internet. And at its worst, this can lead to tragedy.
In 2009, a Rotorua schoolgirl took her own life after receiving what the coroner described as “extraordinarily abusive” text messages.
And in Palmerston North, a 15 year old died in 2013 after being bullied online in the days leading up to her death.
Sadly, these cases weren’t isolated anomalies – for example, What’s Up’s Canterbury hotline for children and teens saw a 70 per cent increase in calls in 2013 where children were in ‘imminent harm’, with cyber-bullying suggested as being a key reason behind this.
So in 2015 the Government acted, and Parliament passed legislation that reflects the digital environment in which we currently live and tackles this problem head on.
Then, at the time the legislation was before Select Committee, the Roast Busters case came to light. Using social media to continue to harass and demean their victims long after the initial attack, the case shocked New Zealanders.
It was an all too familiar example of why harmful digital communication is more worrying and potentially more serious than off-line bullying due to:
- their ease and speed of dissemination
- their potential viral nature
- the persistence of the information and the difficulty of removing it,
- and of course the facility of anonymity
Prior to the passage of the Bill, there were gaps in our laws which didn’t address things like cyber-bullying. These have now been addressed.
During the passage of the legislation, I received criticism that the Bill was simultaneously going too far and at the same time wasn’t needed.
Everything I’ve seen since confirms the Government’s view that this legislation and the tools it creates are absolutely justified.
The first phase of this legislation has been in place since July 2015.
It includes a new criminal offence to help tackle the most serious instances of bullying and harassment by people using digital technology. It’s now illegal to send messages and post material online that deliberately causes a victim serious emotional distress.
It installs a greater level of protection for victims and recognises the distress they can suffer. And it sends a message that the potential consequences of this kind of harassment are too serious to ignore.
The penalties for this offence are a fine of up to $50,000, up to two years jail for an individual, or up to $200,000 for a body corporate.
If someone is charged with the offence, the court will take into account a number of factors when determining if a post causes serious emotional distress. This includes the age of the victim, the context, how widely the material spread, and whether what was said or implied was true or false. The court also weighs up people’s right to freedom of expression.
The new criminal offence is already making a difference.
As of October this year, 89 criminal charges have been laid under the Harmful Digital Communications Act.
As a result of the prosecutions we’ve seen:
- 7 imprisonments ranging from 90 days through to 11 months.
- 3 Home detentions
- 5 community work sentences
- 1 community detention and;
- 1 supervision
One of the most serious cases involved a man who was jailed for sending a disturbing video to a woman over Facebook.
We’ve also seen prison sentences imposed on a man for sending half naked photos of his ex-girlfriend to a shared work email address.
That tells me the law is working to weed out and punish the worst offenders. And it’s protecting victims.
Incitement of suicide
The law also clamps down on bullies who encourage their victims to commit suicide.
This is now illegal, regardless of whether or not the victim attempts or is successful in taking their life.
That’s certainly an improvement from what we had previously, where it was only an offence if the victim committed suicide or tried to.
If convicted, an offender may be sentenced to up to three years in prison.
As I’ve mentioned, the shifting nature of technology has changed how we view these sorts of crimes.
The Harmful Digital Communications Act recognises companies and people shouldn’t necessarily be held responsible for others’ actions. So it includes an optional “safe harbour” provision which limits hosts’ liability for harmful content posted by others, as long as hosts follow a set process for handling complaints.
Under that process, hosts need to make it easy for victims to make a complaint about content they’re hosting. They also have to follow certain steps within certain timeframes.
People can expect to know between 48 hours to 96 hours after making a complaint whether the content will come down. Just how long depends on factors such as whether the host can contact the author of the content; whether the author agrees to the request; and how long the host and author take to see the complaint and act.
These timeframes may seem quite long in the fast-moving world of digital communications, but they aim to balance freedom of expression with reducing harm. There’s also nothing stopping online content hosts from immediately removing content that breaches their terms and conditions.
NetSafe told me that in 2015, they received requests for assistance from just under 1000 New Zealanders who would now fall into this category.
So those are the main features of the first phase of the Act. Later this month, we will enter a new stage that will help and empower even more victims under the second phase of the Act.
This second phase of the Act brings in an Approved Agency and civil court remedies which will play innovative and unique roles in New Zealand’s justice system.
From 21 November, NetSafe will have responsibility for receiving, assessing and investigating complaints about harm caused to individuals by digital communications.
NetSafe will play a key role in reducing the devastating impact of harmful digital communications, by providing a timely and effective service for victims to get help from an independent body.
The free service is available to all people in New Zealand who experience online harassment or cyber-bullying.
NetSafe will advise people on the steps they can take to resolve a problem, as well as investigating and attempting to resolve complaints where harm, which is defined as serious emotional distress, has been caused.
It is also tasked with providing education and advice about online safety and conduct; and liaising with website hosts, internet service providers and other intermediaries to take down content which is clearly offensive.
NetSafe brings to the table a huge amount of experience in addressing many of the issues associated with harmful digital technology. They have a strong body of knowledge and an impressive track record in this area.
They also have the connections and relationships that are vital to successfully implementing this regime and providing the best support to victims. NetSafe has established relationships with companies both in New Zealand and overseas, who they work with to remove or stop the spread of harmful content.
The creation of this role sets a new benchmark for curbing online harassment and intimidation. I’m told they expect to deal with up to approximately 1500 complaints where people are assessed to meet the harm threshold under the Act.
They intend to work swiftly. For most cases, NetSafe will seek to have harmful content removed within a couple of days of receiving a complaint. That will make a huge difference in people’s lives.
The expectation is that when NetSafe contacts someone who has produced something offensive, they will take it down and stop engaging in harmful behaviour.
They will also work with online content hosts to remove harmful content, if not the producer of the content, which breaks their terms and conditions.
But in a few cases that won’t happen. What’s more, NetSafe can only negotiate, mediate and persuade those it works with. When it can’t resolve complaints and disputes, that’s when the next part of the law plays its part.
New Court Orders
Under the Act, the District court will have a new civil process which will provide a speedy, efficient and relatively cheap legal avenue for dealing with serious or repeated harmful digital communications.
The court will deal with cases where it’s alleged someone has or will suffer harm. It will look into whether there’s been a serious breach, a threatened serious breach or a repeated breach of one or more of the 10 communication principles outlined in the Act.
Members of the public will need to go to NetSafe before they can apply to the court.
Police will be able to apply to the court without going through the agency when a communication threatens a person’s safety. The Chief Coroner may also be able to apply for a takedown order about material relating to suicide, if publication is prohibited by the Coroners Act.
And school principals can also apply to the District Court if one of its students is affected, with that student’s consent.
Any order the District Court makes must be complied with and there are strong penalties for not doing so.
Anyone found guilty may be sentenced to up to six months in prison or fined up to $5,000. Companies can be fined of up to $20,000.
The court will consider how people responded to the advice NetSafe provided in an attempt to resolve the complaint in deciding how it will deal with the case.
I want to be clear that the law is about limiting harm, not curbing free speech. There is a requirement within the legislation for the court to weigh up people’s right of freedom of expression, and that’s as it should be.
We want to deter, prevent and mitigate harm caused to people by digital communications, whilst also providing quick and efficient means of redress.
When we look back at the effectiveness of this law change, I hope we will have succeeded in changing behaviour.
Over the next two days you will hear from some of the best local and international experts in this space.
As online and offline activities are more connected than ever before, it’s important that everyone recognises safe and secure online behaviours.
The Harmful Digital Communication Act is just one part of creating positive online experiences. Other things like education and online security tools will help supplement the changes we’ve made to the law.
We’ve tried to future-proof the Act as much as possible – but the speed at which technology changes means keeping up to speed with the latest developments is more important than ever.
Together, we can harness technology’s power to do good, and counter those who use it to do harm.
Thank you for inviting me to talk to you today. I look forward to hearing about the outcomes of the conference and I wish NetSafe all the very best in their new role.