The Law Commission was already putting together its thoughts on the impact of “new” media for the government’s attention, when Justice Minister Judith Collins asked it to fast-track the part of the report dealing with “harmful digital communication”.
Lawcom has issued a Ministerial Briefing and a draft Bill which media – and Law Commission commentators - have characterised as the “cyberbullying Bill”.
The problem of bullying needs to be tackled, but it extends over a far wider realm than the online environment. The Commission, to be fair, does make some recommendations on general anti-bullying programmes in schools. However, “new” technology is disproportionately stigmatised.
Since this initiative sprang from a larger project on “new media” it is easy to see why it was considered in this light; but that pedigree risks imbalance. If we consider the logical Venn diagram of a circle indicating “harmful communication” overlapping with one indicating “digital”, it’s evident that the Commission has been more willing to stray into broader-ranging controls on digital communication than it has been to tackle harmful communication that is not digital.
The report tells the story of a young woman induced while drunk to do things she would normally not have done. The acts were recorded on a mobile phone. She was repeatedly vilified and eventually forced to leave her school and the area. Reading this disgraceful account, it seems plain that 90 percent of what happened was unacceptable “live” behaviour. Digital media were concerned only in making recording and distribution easier. Yet the affair is held up as somehow the fault of technology.
The reasons given for treating digital harm separately from other forms are debatable at best. Digital harm is quickly distributed “all over the world”, says project leader John Burrows QC. However, unless the subject is a celebrity, any comment will quickly outrun the limited group of people motivated to make anything of it.
I recall as a child being brought into ridicule by comments incised into a door at my school.
The group who cared about that was more or less the group who could see the door. If the comment had been on a website the harm would not have been any greater.
It’s easier to take down a website than a door; the school even claimed it didn’t have the budget to expunge the graffiti.
Digital harm is much easier to promulgate anonymously, says Burrows. I don’t know that that contention holds much water either. Journalists frequently encounter word-of-mouth allegations whose source is unknown. Gossip in any medium quickly outruns the threads of reliable attribution.
The best we can do is seek attributable corroboration of the rumour and, of course, ask for comment from the party about whom the allegation is made. Failure to do that is a fault of society, not technology.
And to insist, as the likes of Facebook and Google are starting to, that every comment should be traceable to a real name will risk inhibiting whistleblowers - fair critics of powerful people who would wreak vengeance on a named source. Anonymity has its positive uses.
The draft Bill provides for an order to force the provider of a digital service to disclose the identity of the perpetrator – even at the point when the harm is only alleged. Being unwilling – or unable – to comply puts the provider in the way of a $5000 fine.
As has been demonstrated repeatedly in the worlds of copyright and censorship, people doing something nasty are adept at hiding their traces. To threaten to reveal the source of a harmful rumour will simply drive them to more secure anonymity.
To hold the service provider liable and insist they provide information that may be very difficult to trace is to burden an innocent party.
No doubt if harm is convincingly alleged most providers will remove an offending comment promptly as far as they are able; but a subject of truthful, if embarrassing, information could be pretending distress so as to ensure the material’s removal. That way lies censorship and chilling of speech.
In sum, blaming the intermediary and attacking anonymity could have more negative effects than positive. This proposal needs more thought.