- Date published:
8:23 am, September 11th, 2015 - 21 comments
Categories: blogs, law, Media, Social issues, social media lolz, the praiseworthy and the pitiful, uncategorized, you couldn't make this shit up - Tags: Harmful Digital Communications Act, Netsafe
As anticipated, what is the first complaint at this site under the Harmful Digital Communications Act 2015? Not from some poor kid being stalked and cyber-bullied by the classmates. But by an adult trying to stifle legitimate criticism and analysis of what they wrote and distributed digitally.
I’m not going to point to the post that the complainant found offensive except to say that it was from 2011, or the complainant, or what they wrote in their complaint. However I will publish the majority of my reply to forestall similar attempts to misuse this Act. Much of this post and the comments related to it will be used to make a page defining the requirements for future complainants.
In essence the complainant had wanted me to remove a post years ago. I refused because I considered both the post and the comments to be a fair opinion rather than being “offensive”. The complainant now considers that the post and comments are covered under Harmful Communications Act passed in July 2nd 2015, but more on the retrospective aspects later..
They also demanded that if I did not take the page down, that I would be required to provide them with the details of the author under section 2(4a) – presumably section 24(1) and (2) something…
As is usual with most people who are lousy with actually reading the legislation, they skipped the sections of the Act that deal with their obligations.
My first response will quoted in sections below.
You have not identified the exact location of the content under s24(3)(c). There are currently nearly 17 thousand posts on site and nearly a million comments. So an exact URL from the site is needed to locate anything.
This refers to the act stating “(3) A notice of complaint must—” .. ” (c) sufficiently enable the specific content to be readily located;”.
One of my most disliked annoyances running this site is that the vexatious complainants are seldom specific about what they are complaining about. What do they expect us to do? Instantly know everything written on the site about their ‘brilliant’ ego?
EVERY post and comment on this site has a unique persistent address. It is easily accessible by clicking a date or right clicking and copying the link. But even if that is beyond people’s abilities, giving the title and date time of a post and the date time and handle of an author does the same thing. People who are actually interested in getting us to review material give us those details. Those who aren’t serious do not.
Similarly (my correction from the email)
You have not quoted the specific content, nor shown why it is unlawful,
notnor why it breaches communication principles and not shown how it caused harm under s24(3)(b).
In the act section 24 (3)(b) says “A notice of complaint must—” .. “state the specific content, and explain why the complainant considers that the specific content—” … “(i) is unlawful; or” .. “(ii) breaches 1 or more communication principles and has caused harm;”.
There is a strong reason why the act was quite specific in this. Vexatious complaints are a pain and such complainants are fond of not being precise. People who are not being vexatious in their complaints go to considerable lengths to point to exactly which sections of post(s) and/or comment(s) they have issues with. They will quote them and state exactly why they have a problem with what they quote. They do not expect content providers to make judgements based on nothing specific. That is unfair to those who make comments and posts. Instead they explain the level of harm.
It doesn’t matter to me who people are or what their politics are. If I can see anything that I think violates legal standards, then it gets torn out of the site and I impose excessive penalties on whoever put us at risk. If I think the balance of harm from our posts in the search engines for individuals is excessive, then I will make it so it doesn’t show up there. This has happened a number of times during the 8 year history of this site for complainants as diverse as Mike Moore to Ian Wishart.
But people who make vague and non-specific allegations really just annoy me. If they cannot do more than say that they find comments and posts “offensive” without defining why, then in all probability they are too damn lazy to look at what the post or comment was actually saying, and why we hadn’t already dealt with it. That was the case with this complainant.
But the section 24 “safe habour” provision has a basic flaw in it.
And you have not stated what personal information I can forward to the author (assuming I can still find him) under s24(3)(d). Merely pointing to the post would reveal personal information like your name and position.
The act says “(3)(d) A notice of complaint must—” … “state whether the complainant consents to personal information that identifies the complainant being released to the author;”. This is a particular problem with this Act for people running sites. If we want to conform to the requirements of section 24(2) requires that we inform the author of the complaint…
(a) the online content host must, as soon as practicable but no later than 48 hours after receiving a notice of complaint,—
(i) provide the author of the specific content with a copy of the notice of complaint, altered to conceal personal information that identifies the complainant if the host has received confirmation that the complainant does not consent to the host providing that information to the author; and<
(ii) notify the author that the author may submit a counter-notice to the host within 48 hours after receiving that notification:
In ANY case that I have ever had to deal with on this site, telling an author of a comment or a post about what was complained about will invariably give away personal information about the complainant. The basic detail required to do a counter-notice like what comment or post is a reference to the post or comment. Since only the “victim” is allowed to make the complaint directly or indirectly by an approved agency, any reference to a post or comment will identify them.
Section 24(3)(d) makes a total arse of Section 24(2) and makes it completely ineffective. It looks like it was written by a legal idiot with no working experience of the net. In my view that makes the whole of section 24 “safe harbour” completely useless unless the “victim” gives explicit consent to pass the URL of the comment or post to the author.
I will be demanding that anyone asking for consideration under it, explicitly states that the post or comment link may be passed to the author before I will even consider looking at section 24. I’d suggest that any author who does not get an effective address of the context of a post/comment from any online content host under section 24 refuses to allow the removal and demands more information to allow them to make an informed decision. Most people on the social net write thousands of words every month. Authors of posts usually write more. Having full context is everything.
And let me tell you that in the political blogs there is strong incentive to not put down or modify posts and comments down simply because people had their egos bruised. Politicians and their servants are walking egos and in a permanent state of bruise. But they also make decisions that affect us all, and especially the effects of choices on taxation and the use of taxation. Public interest demands that they must be held accountable. So must the people who comment or opine on areas that are within the areas of public interest.
Furthermore it is hard to see how this act can retroactively apply to material that was written long before the relevant sections of act came into force on July 2nd this year. That would violate the purpose of the Act in s3. It would also violate section 22 as the content was posted years before the act came into force.
This particular complainant needs to understand one basic legal principle. Legislation is seldom retroactive. If it is, then that is explicit in the Act. But not in this Act.
Section 3 says “The purpose of this Act is to— (a) deter, prevent, and mitigate harm caused to individuals by digital communications; and (b) provide victims of harmful digital communications with a quick and efficient means of redress.”. That is clearly orientated to current and future actions.
And it also states in “22 (1) A person commits an offence if— (a) the person posts a digital communication with the intention that it cause harm to a victim;” (my italics). That is a verb, an action, and certainly not indicative of material posted years ago.
Think about it! There are decades of material on the net. Not to mention that sites like Papers Past are bringing centuries of material online as digital content. Imagine the effect of litigants seeking to get articles in the Auckland Star about our civil war in the 1860s and 1870s removed because they offended some descendant.
Not to mention that I consider that post was justified as opinion under the Bill of Rights, is not unlawful under any laws, and I have told you all of this before. In my view it also does not violate any of the principles under the act.
I would suggest that you talk to an approved agency to prevent you repeating your abysmal ignorance of the contents of the act, however I do not believe one has been appointed yet.
But try NetSafe as they are probably gearing up for handing this act for juveniles. The content of your email makes me think that would be an appropiate legal level for you to start at.
Unsurprisingly, suggesting the complainant might be somewhat juvenile did not impress the complainant. But I’m not that interested in being nice to people who waste my time.
However it is my opinion that this act was to protect juveniles, not adults with bruised egos. It was also clearly that of the MP’s (see second reading) that this Act was meant to be about the young.
That they didn’t write it that way means that it is likely to be mainly used by people like this complainant. Those who have pulled up for their actions, criticised for them, have suffered little harm except to their ego, and are merely going to try to use this act vexatiously to try to salve that.
In my view, Netsafe should not be the only “approved agency” as is likely to happen. Their focus is entirely on kids. Unless I am much mistaken, most of the work from this act will come from adults that Netsafe has no expertise or mission to deal with. Certainly we have few people writing on this site that would be in a demographic that they appear to cater for.
Besides, I like the people in Netsafe doing their specific tasks. I’d hate to put them on the receiving end of my sarcasm when they disturb me at work with a 48 hour deadline talking about legal matters that they don’t understand and with inadequate information for me to make a decision on.
We will need more than one agency because we’re going to get complaints from across the demographic ranges, but with a high proportion being legally illiterate adults. So to make this act credible, we’re going to need a approved adult agency as well, preferably staffed by criminal lawyers and the brighter ex-cops. They’re less likely to waste our time with vague and unsubstantiated accusations that do have not basis in any law. That a complainant’s pride is bruised isn’t a factor in our public debate.
I think that MPs made some serious mistakes in this particular law because they thought it was all going to be about the kiddies. I have news for them. It isn’t and this particular complainant is going to be the start of