and what this session is about is what
the law can do because there is help at
hand
recently in England The Guardian
newspaper has been running a series of
articles about misbehavior on the
Internet what they’re after is the web
that we want a sort of safe environment
where everybody can get along together
and can interact in a civilized way the
only trouble is that the stories that
those articles tell anything but the web
we want they tell stories of annoyance
threats harassment misconduct of a most
terrible nature and it all falls within
the definition of cyberbullying a kind
of umbrella term that we might use for
these sort of behaviors so what are they
include they can include harassment
those continual unpleasant messages that
are posted on your Facebook page or that
are sent to you at your Twitter address
stalking where you know the person is
present sitting there in the online
environment watching you do what you do
the spreading of rumors which can
destroy your digital shadow or your
online reputation the disclosure of
those facts that it may be okay for your
family to know about but really do you
want them broadcast to the world
exclusion I saw your photograph on your
Facebook page at such-and-such a
restaurant why didn’t you invite me I’m
not going to have anything to do with
you anymore
and that message gets around or the same
with the text messages that go around
the school playground
except for one person who sees another
group sniggering and laughing and
they’re laughing of him or her excluding
we all know about flame wars on the
internet heated exchanges that go
completely out of control and end up in
abuse and defaming and belittling and
mocking and then there are the incidents
of impersonation taking somebody’s
identity identity theft and creating an
entirely different persona for a digital
person and this is really worse than
real-world bullying which is bad enough
because real-world bullying you can walk
away from if you’ve got the courage or
it does stop when you leave work or you
leave the school playground but cyber
bullying is very very insidious indeed
and the reason for that lies within the
very properties of digital technologies
that we are using exponential
dissemination is a term that I use I’m a
lawyer so I try to make it as
complicated as possible
for going viral persistence of
information or the document that doesn’t
die once the information is out there on
the Internet you lose control of it and
of course with your devices your iPad’s
your smartphones and so on and so forth
an extension of your arm it’s always on
24/7 and those particular qualities or
why cyberbullying can be so much more
serious than the real world thing so a
little bit of background history in 2011
New Zealand had a conversation about
cyberbullying there were to be
discussions about this prompted by the
coroner who was concerned about
incidents of suicide and mental health
issues which was seen to be linked to
the cyberbullying problem because they
were being suffered by young people
digital natives Millennials for
a smartphone or a digital device was an
extension of the arm then in 2012 the
New Zealand Herald ran a series of
articles on cyberbullying some of you
may remember them and this led to
investigations and discussions within
government and an investigation by the
law commission and I was involved in a
consultative capacity in that regard
and that all led to the enactment last
year 2015 of the harmful digital
communications Act this Act has very
wide application indeed because it goes
beyond mere social media
it covers all forms of electronic
communication regardless of platform so
it covers every form of communication as
long as it’s electronic and the Act
provides two possible remedies one is a
criminal prosecution and the other is a
civil enforcement order the criminal
prosecution is alive it’s living it’s
now the civil enforcement order which
will enable you to remove content
harmful content is not yet enforce we
hope it’ll be along by the end of the
year and in some respects these two
remedies overlap so let’s talk for a
moment about the criminal prosecution
first thing that’s got to happen of
course is that there’s got to be the
posting that is the placing on online of
a digital communication the perpetrator
has got to do that with the intention of
causing harm and when you look at the
particular post you ask yourself well
would that cause harm to an ordinary
person taking into account the position
of the victim so there’s a mixed sort of
test about it and then finally there
must be actual harm caused by the
electronic communication so what is harm
it’s a word that we use and how I have
used quite a bit so far well serious
emotional distress this is
online communication bullying so there
isn’t going to be a blood nose or back
knuckles or a punch in the arm or
anything like that it’s serious
emotional distress and for lawyers when
you have the word serious that really
means something so what’s been happening
so far there have been 12 prosecutions
under the harmful digital Communications
Act and the sentences that have been
imposed have ranged between supervision
and community work all the way to a
sentence of 11 months imprisonment for a
very serious incident of posting a
harmful digital communication so that’s
the criminal side what about the civil
enforcement order not enforce yet but it
will be and this remedy is as I’ve said
a remedial one it involves the removal
of content no claims for damages no
claims for reparation or anything like
that this deals with the content itself
and how to remove it
and it’s by way of what we call a civil
enforcement order and this involves an
organization called an approved agency
and the first port of call if there is a
desire to remove content on the part of
an affected individual is to go to the
approved agency and that agency has yet
to be appointed and the agency will try
and resolve the matter by way of
negotiation or mediation or discussion
between the affected individual and the
person who’s posted the content the
author in its dealings the approved
agency has to be sure that there has in
fact been harm
remember serious emotional distress plus
a breach of one of 10 communications
principles and the Act sets out 10
communications principles which are no
more and no less than rules for polite
conversation the type of rules that you
would normally associate with a polite
dialogue
now if the approved agency can’t resolve
the matter
then it will proceed through to the
district court and the court may order
that the material be removed or it may
go to the author and say we’re going to
make a restraining order
don’t you post anything more like this
because if you do you will have
committed an offense and furthermore
don’t get all of your mates to post the
similar sort of content either so the
court will have that power the court may
require an apology or it may give to the
affected individual a right of
correction or a right of reply and in
addition the court will have powers to
make orders against online content hosts
suppose for example we have an anonymous
author the online content host may be
the port of call for having the content
removed it may well be that the
anonymous poster can be identified by
asking the internet service provider for
the name of the particular person who is
associated with the IP address at the
time that the content was posted this
piece of legislation was designed to
address cyber bullying but it goes a lot
further than that because serious
emotional harm serious emotional
distress gives the act a very wide scope
indeed so it could be used for court by
corporate entities or it could be used
by individuals for reputational harms
that they may have suffered that are
causing them damage which results in
serious emotional distress serious
emotional distress is the threshold as
things stand at the moment for the civil
side of things help is at hand knit safe
is one organisation in New Zealand that
is very experienced with dealing with
complaints with cyberbullying and they
have a lot of skills in that area and
most other countries around the world
that
don’t have legislation like the harmful
digital Communications Act have
organizations similar to net safe that
will be able to deal with incidents of
cyberbullying now we’ve got to be
reasonable about this
in the same way that the crime of theft
is not going to stop people stealing
stuff a law against cyberbullying isn’t
going to stop cyberbullying or digital
communications that cause harm but what
is important is that there is a remedy
the law will provide a remedy for those
who suffer from cyberbullying the good
thing about it is that victims no longer
have to take it they no longer have to
curl up into a little ball mentally or
physically and hope that it all goes
away they can do something about it they
can bring the perpetrator to account
thanks for listening [Applause]