Should it be a cyber-bullying offence to be offensive?

I welcome the Law Commission’s cyber-bullying report which contains recommendations for reducing harm. As anyone who has been through it knows, bullying is a horrible experience and in New Zealand we have had some tragic examples leading to suicides.

It’s important that we discuss the problem and come up with solutions that work. The Law Commission’s recommendations include:

  • Creating a new offence targeting digital communication that is grossly offensive or indecent, obscene or menacing, and which causes harm.
  • Amending existing laws to ensure their provisions apply to digital communications. This would include making it an offence to incite a person to commit suicide, whether the person does or not.
  • Establishing a communications tribunal to provide speedy, efficient and cheap access to remedies such as take-down orders and cease-and-desist notices.

On the whole I think the Commission’s recommendations are sound and are a case of extending relevant current laws into the cyber-realm.

However there could be potential problems – particularly with the threshold for an offence. It would be an offence to use a communications device to send a message that causes harm, which can be defined as ‘substantial emotional distress’.

The Commission lists some guidelines but I’d like to see a bit more thinking done here to differentiate between personal abuse and attack, and ideas which are challenging and those which may be distressing. One only needs look at the Pussy Riot trial in Russia where political speech is being silenced under charges that allege the young women activists were ‘offensive.’

19 Comments Posted

  1. true david, we cant kill weed unless we plug out root, punishing or bullying children is not the right way. we should try and find factors affecting the cause. i recently worked with a NGO and they provide consultation to children, if they require they then arrange a talk with parents and make them understand the importance of understanding their child thoughts and feelings. we should participate in such forums and NGO’s

  2. photonz1

    Why should all these harmful criminal activities be illegal normally, with the exception that they are ok if you use one particular form of communication – the internet.

    Those activities are already illegal under the law and using the internet to perpetrate them does not negate their unlawfulness. Otherwise I totally agree, and have given you an uptick. There’s a first time for everything.

  3. Andrew Aitken says “Sorry about a few people’s hurt feelings but we MUST have Internet freedom. It’s just far too important.”

    Nonsense – there is no such thing as freedom.

    Is calling for people to kill others because of their race of religion free speech?
    Is defaming people free speech?
    Is threatening to kill someone free speech?
    Is making threatening phone calls free speech?

    Why should all these harmful criminal activities be illegal normally, with the exception that they are ok if you use one particular form of communication – the internet.

  4. It’s hard enough to regulate bullying. Children’s behavior is a reflection of the home and the way they are parented. Maybe it’s not the children that should be punish, but their gaurdian or parent. How much of the media says violence and bullying is ok? We can lay down as much law possible. Can’t kill a weed unless you get it from the root

  5. Not often that I uptick Andrew Atkin (the comment before he got onto his hobbyhorse of privatisation of schools) but I agree that creating new criminal offences is not the way to deal with cyberbullying.

    There is already so much confusion arising from the case law on what are essential subjective offences such as “offensive language” and “disorderly behaviour” – adding new offences of a similar nature relating to comments made in cyberspace will only add to the confusion.

    Criminal law should be sufficiently clear that people can work out in advance whether a particular action amounts to an offence or not. Laws such as these are not.

  6. …Isn’t it funny how we preach for the principle of freedom of association, but not for the principle of freedom from *forced* association. The latter principle gets opposed (in effect) with anti-discrimination preaching. How dare we isolate people! etc.

  7. Jackal:

    A private, truly autonomous school would empower kids to regulate their own company (as, within reason, they should be able to). This will help to stop bully-type relationships from even beginning in the first place. Not completely – but largely.

    If kids can be empowered to keep well away from other disturbed children then that would go a very long way.

  8. Andrew Atkin

    If we privatised and deregulated schools we would stop the pussy-footing with respect to the bullying issue, real fast.

    You’ve completely lost me there… How exactly would privatising schools stop cyber-bullying? Unless you’re envisioning that private schools would have far reaching powers into the homes of its students and can somehow legally disable bullies from accessing devises, I cannot see how privatising schools would make any difference to the problem at all.

  9. Very encouraging that others are on my side with this.

    Bullying: Any industry whose customer base is protected goes slack. If we privatised and deregulated schools we would stop the pussy-footing with respect to the bullying issue, real fast. You can get rid of bullying by making private monetary interests functionally accountable to it. At least get rid of it at its worst end.

  10. I agree with Andrew, you’re well off the mark here Gareth and the entire report should be mostly thrown out, a’la Simon Power and the Misuse of Drugs review

  11. The Law Commission briefing paper (and, indeed, the media coverage) frames this relatively narrowly as a ‘cyber-bullying’ issue. But it looks to me from the draft bill that there’s a definite risk of mission creep here: the draft bill seems to encompass broader ‘harms’ relating to obscenity, privacy, defamation, and ‘offensive’ communication. So yes, I think this needs to be looked at very carefully to avoid having rather sweeping (and potentially chilling) regulation smuggled in under cover of an easy-sell issue like cyber-bullying.

  12. It feels strange to agree with Andrew, and I have a child who was seriously bullied both in the conventional way and via cellphone (to the point of attempted suicide), but I do agree that closing off the medium of bullying is not actually dealing with the problem.

    Re the cellphone one, I contacted both the police and the cellphone company. The policewoman visited the offender and cautioned them; the company cut off their phone. My daughter changed her cellphone.

    However, the offender then resorted to physical threats and attacks and we had to move the daughter out of that city.

    So, target the offender not the medium of offence.

  13. you definitely have a point Andrew!! My comments related more to the fact that it often goes beyond hurt feelings to destroyed lives. As I said I don’t think legislation will provide a remedy to the essential cause of bullying – just like it hasn’t exactly stopped crime – rather it almost randomly criminalises certain activities. I think we’ve got our hands full with the current generation of sociopaths.

  14. NO. NO. NO.

    The world is full of wankers (I’m one of them). There’s creepy bullying everywhere, in subtle or unsubtle forms. Creating any kind of “hate speech” law WILL lead to a slippery slope all the way to government censorship of the internet. What is bullying is inherently subjective. You are asking for trouble.

    The Internet is the most powerful democratising force for freedom of speech ever created. Tyrannies are terribly common, we still have them today, and the most devastating and vast events of terrorism have come from governments – yesterday and in the present. We need open Internet to help protect ourselves from the next group of sociopathic freaks.

    Sorry about a few people’s hurt feelings but we MUST have Internet freedom. It’s just far too important.

  15. There are many issues that will need to be considered – especially here in NZ where the supreme court said in relation to laws limiting freedom of speech “a sledgehammer must not be used to crack a nut” The high degree of bullying in NZ schools – including primary schools – reflect the wider society and communities that surround them and has been noted in OECD reports. What might start out as a thoughtless and possibly innocent taunt can end in tragedy. Sledgehammers may not be effective with young children. I wonder how any cyber-bullying law will deal with underage cyber-bullies.

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