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INTRODUCTION 1. 2. This is a submission by the ADLSITechnology Law Committee on theHarmfulDigitalCommunicationsBill(theBill). ADLSI is an independent membership organisation for lawyers with a national focus and membership of over 2,600. The Technology LawcommitteeisoneofADLSIs16legalcommittees. In this submission, we make no comment on the policy of or rationalebehindtheBill.Oursubmissionisfocussedontwoareas: a. b. Areas in which the Bill goes beyond, or fails to achieve, its statedpurposeand Uncleardefinitions.


BACKGROUND 4. 5. Thisisabilltohelppreventandmitigatetheeffectsofcyberbullying. The Bills stated purpose (clause 3) is to mitigate harm caused to individuals by digital communications and to provide victims of harmful digital communications with a quick and efficient means of redress. The Bill came about as a result of the Law Commissions reporton new media, andthe August 2012 ministerial briefing paperHarmful Digital Communications:The adequacyofthecurrent sanctionsand remedies (the briefing paper). 1 The briefing paper set out to describe how to adapt our laws to ensuretheyarefitfor purposein thedigitalera. HonChesterBorrows,introducingtheBilltoParliament,said:2
new technologies also present newchallenges.Itis now easier than ever to threaten others, spread destructive rumours, publishinvasive and distressing photographs, and harass people. People are bullied more easily, instantly, and anonymously. Bullying is no longer confined to the classroom or the playground in the lives of young people. A digital age has meant that tormentors can harass their target anywhere, at any time, and the trails of abuse remain in cyberspaceforever.



1 2


The briefing paper notes that harmful digital communications differ fromofflinecounterpartsinthefollowingrespects:3 a. The viral nature of cyberspace and the potential for information to be disseminated instantly to worldwide audiences Theubiquity ofthetechnologywhichmeanscommunications are no longer constrained by time and place but can be accessedanywhere,anytimebyanyone Thepersistenceofinformationdisseminatedelectronically The ease with which digital information can be accessed/searched The facility for anonymouscommunication and the adoption ofmultipleonlinepersonae.


c. d. e. 9. 10.

In this submission we refer to these particular qualities of online communicationastheDifferences. The Bill is therefore designed to plug a gap in our laws the gap where the Differences illuminate inadequacies within our existing legalframework. Below, we outline some ways in which we consider the Bill goes beyond plugging that gap (Part 1). We also suggest some ways in whichthedefinitionscouldbeclarified(Part2).


PART1GOALSANDTHEIRIMPLEMENTATION 12. In thispartwesubmitthattheBillgoesbeyonditsstated purposesin thefollowingthreeways: a. The protection provided by the clause 20 safe harbour provision is too narrow. It does not match the increased content hostliabilityimposed bytheBillwithacorresponding protection. As aresultweconsideritwillhaveachillingeffect ononlinespeech. The threshold for without noticeapplications is too low. The internet makes instant and widespread dissemination of information possible, but not certain. We are concerned the Bill may result in Courts treating Difference (a) the viral nature of cyberspace asa reasonwhyanyapplicationmay bemadeandgrantedwithoutnotice. The Approved Agency is unlikely to have the filtering effect that was intended by the Law Commission. In order to




reduce frivolous or vexatious complaints, the District Court should only consider urgent applications, applications referred to it by the Approved Agency, or matters where the Approved Agency has considered the matter and made a decisionaboutwhataction(ifany)totake. Clause20SafeHarbour 13. Clause 20 is there to ensure service providers (contenthosts)are protected from liability associated with what their users post, under certainconditions. We agree that a provision such as clause20isnecessary.TheBill, as drafted, expandspotentialliabilityinrelationto onlinecontent.The purpose of the Bill is not to impose liability on content hosts, so wherever there is expanded liability, the Bill should include correspondingprotectionsforcontenthosts. The Law Commission accepted that entities which act as conduits or intermediaries should notbe legally liable, inthe firstinstance,for theinnocentdisseminationofcontentcreatedbytheirusers.4 Clause 20 attempts to providethat protection.Itprevents anycivilor criminal proceedings being brought againstanonlinecontenthostin relationtothecontentofadigitalcommunication,unless: a. b. The service provider itself is the author or sponsor of offendingcontent,or The service provider receives a notice of complaint about specific content and does not take steps as soon as reasonably practicable to remove or disable access to the specificcontent.




17. 18.

We consider there to bepotentialdifficultiesaroundthelatteraspect oftheproposeddefence. Firstly, it will encourage the removalof content wheresuchremoval isnotnecessaryordesirable: a. b. c. A content host only obtains protection if it removes the contentonceitknowsaboutit. TheBilldoesnotprovideanyleeway. Thehostmust remove thecontentifitistoobtaintheclause20protection. Thereisnocounternoticeprocedure.Thereisnopointinthe content host using its resources to review the allegedly offending content, or refusing to act on inappropriate complaints, since the only possible outcome from such a


reviewisthatthecontenthostmightexposeitselftoliability. d. Content hosts are likely to remove any content that is the subject of a complaintandthat will be the end of it. There is no incentive or requirement to temporarily disable access to content instead of removing it. There is no penalty for removingcontentthatshouldnothavebeenremoved. There is no requirement to notify the author of allegedly harmful content and no means for redress if the author considers content has wrongfully been removed. Once content is removed, there isno way in which an author can have that content restored, but forthegoodwillofthecontent host. That can cause issues forexample,seethesituation Dave Gorman faced with Flickr.5 There, Flickr received a takedown request underthe AmericanDMCAandactedonit to remove a popular photo ofMrGormans.Therequest was made in error. Following discussion, although Flickr accepted Mr Gorman owned the image, it was unable (or unwilling) to restore the image at its original link, so all the comments that had been posted were lost, and all the links to the image already existing on the internetwerebroken.Mr Gorman uploaded the image again from a backup, but it createdanewfile,withnoviews,linksorcomments.



Secondly, there is no accountability on the part of complainants whenmakinganotificationtocontenthosts.In oursubmission,while the process of making acomplaint should be fast andsimple,there ought to be a disincentivetofilefalseorfrivolouscomplaints.Failure to discourage those complaints will inevitably lead to abuse complainantshavenothingtolosebymakingevenafalsecomplaint. Essentially the section allows for censorship by complaint and effectively short circuits thesupervisorypowersthatareprovidedfor theApprovedAgencyorfortheCourt. Thirdly, the defence could have unintended consequences by effectively creating a defence against infringement in all sorts of situationswhichhadnotbeenanticipated. Forexample,thedefence could have wideranging consequences for liability under the Fair Trading Act 1986, the Trade Marks Act 2002 or the law of passing off. It would also create an additional defence under the law of defamation, separate from the existing defence of innocent dissemination. It maybethatadditionalstatutesneedtobeincluded insubclause(6)suchasthoselistedabove.




For those reasons we submit clause 20 is likely to result in the abuse of the Bill by persons who want to remove content that they finddisagreeable,annoying,orfinanciallydamaging. Recommendations


The Bill should only require a content host to disable access to allegedly harmful content in order to qualify for clause20 protection, andshouldnotincluderemovalofcontentasanoption. The Bill should require content hosts to notify authors of allegedly harmfulcontentassoonasacomplaintismade.


C. Authors of allegedly harmful content should be able to take advantage of a counternotice procedure whereby, upon notification of a complaint, they have a short period of time in which they may issue a counternotice disputing the validity or bona fides of the complaint.Uponreceiptofsuchacounternotice: i. ii. iii. The content host should obtain the protection of clause 20 and The complainant must refer the matter to the approved agency,ortotheDistrictCourt,withinfiveworkingdays The content host must restorethecontentinitsoriginalform andlocationifnosuchreferralismade.

D. The Bill should require any complaint made underclause20(2)(b)(i) to be accompanied by a declaration in accordance with the Oaths and Declarations Act 1957 that the complainant has sufferedharm asaresultofaharmfuldigitalcommunication. E. The Bill should provide a method for authors of content who consider they have been wrongfully subject to actions taken by a contenthostasaresultofclause20toseek: i. ii. Apenaltyagainstthecomplainantand Anorderforreinstatementofthenonharmfulcontent.

WithoutNoticeapplications 23. Clause 13 provides an ability for the Court to consider applications on a without notice basisif itconsiders that appropriate to do so in thecircumstances,havingregardtotheprinciplesofnaturaljustice. We submit that further detail ought to be added to this clause to ensure a fair process which adequately protects and respects the rightsandinterestsofpotentialrespondents.




Firstly, we submit that the Bill should provide more detail on the circumstances in which a without notice application may be made andordersgranted. This is becauseawithoutnoticeapplicationdeprivestherespondent of any say in the matter beforethe Court. By its very nature, it is a departure from the principles of natural justice so therequirement tohaveregardtothoseprinciplesisalmostmeaningless. There are existing examples ofwithoutnoticeapplications,whichdo provide details as to the circumstances in which orders can be made. For example, the Domestic Violence Act 1995 provides that a protection order can be made if the delay would or might entail: (a) a risk of harm or (b) undue hardshiptotheapplicant orachild oftheapplicantsfamily,orboth(s13). Similarly, Rule 7.46 of the High Court Rules restricts the circumstances in which without notice orders may be granted. The Ruleprovidesasfollows: 7.46Determinationofapplicationwithoutnotice (1) (2) (3) The Registrarmustreferanapplicationwithoutnotice toaJudgefordirectionordecision. The Judge, onreceivinganapplicationwithout notice, must determine whetherthe application can properly bedealtwithwithoutnotice. The Judge may determine that an application can properly be dealt with withoutnotice only if the Judge issatisfiedthat (a) requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicantor (b) theapplicationaffectsonlytheapplicantor (c) theapplicationrelatestoaroutinematteror (d) an enactment expressly permits the application to be made without serving notice oftheapplicationor (e) the interests of justice require the application to be determined without serving notice ofthe application. If the Judge determines that the application can properly be dealt with without notice, the Judge may (a) maketheordersoughtintheapplicationor (b) make any other order that the Judge thinks justinthecircumstancesor (c) dismisstheapplication. If the Judge determines that the application cannot






properly be dealt with without notice, the Judge may (a) give directions as to service and adjourn the determination of the application until the application has been served on persons who areaffectedbytheapplicationor (b) if the Judge considers thattheapplicationhas no chance of success, dismiss the application. 29. We submit that the test set out in Rule 7.46(3) provides an appropriate starting point for the circumstances in which an order might be made. If that Rule requires modification to deal with special circumstances relating to the Bill, then those modifications shouldbesetoutratherthanleavingthemattertothecourts. We note that without notice applications under the Bill will be governed (via rule 3.52 of the District Courts Rules 2009) by rule 7.46 of the High Court Rules, although that rule permits an application to circumvent the usual urgency requirements (undue delay or prejudice) and make a without notice application if the enactmentspecificallypermitsit.6 Since the Bill specifically permits without notice applications at clause 13, we do not consider there to be any specific requirement for undue delay or prejudice or any other requirement for urgency at all, except that an applicant might consider it appropriate to makesuchanapplicationinthespecificcircumstances. Difference(a)isrelevanttothismatter:
The viral nature of cyberspace and the potential for informationtobe disseminatedinstantlytoworldwideaudiences.





We accept that theBillmust provide for speedy remedies, and that providing aquickandeffectivewayofobtainingordersplugsagapin existing law. The nature of the internet is such that content can be disseminated instantly, but it does not follow that all content posted online will be disseminated instantly. Not all applications will be urgent. Accordingly we do not acceptthat thethresholdfor obtainingorders without notice should be set as low as it is. Applications could be made and determinedjust as quickly if the High Court Rules test is implemented. Raising the threshold in that manner would not delay



applications. It would onlyassistinensuringthatapplicationsarenot madewithoutnoticeunlesstheyareurgent. Requirementfordisclosure 35. A further point is that applicants seeking without notice interlocutory orders are subject to strict disclosure obligations. This obligation extends to full disclosure of all relevant facts, even if they do not support the application.7 The rationale behind full disclosure is that the Court can take the interests of the respondent into account as bestitcan,evenintheirabsence. The Bill does not specificallyincludearequirementatpresent,butin oursubmissionitshould.


Typesoforders 37. 38. The type of orders that maybe made on without noticeapplications shouldbemorelimitedthanthosethatcanbemadeafterahearing. We submit it would be undesirable for the following orders to be capableofbeingmadeonawithoutnoticebasis: a. An order that a correction, right of reply, or apology be published (the question of truth will not be determined at the withoutnoticestage)8 or An order that the identity of the author of an anonymous communication be released (surely, the author of such a communicationoughttobeheardonthatquestion).9


Reviewoforders 39. Further, there is currently no abilityforanauthorofallegedly harmful content to apply to discharge an order made against them if they consider it to be wrong.Accordingly,wesubmitthatanyordermade withoutnoticeshouldbeinterim,andeither: a. b. 40. Expire after a given time period unless the Court decides, afterahearing,thatitshouldbecomefinalor Automatically become final onlyif no challenge is made to it withinagiventimeperiod.

The Court should only have the powertomaketemporaryorderson a without notice basis. If a without notice order is made, the matter

Rule 7.23, High Court Rules Hughes v WilliamsHC AucklandCIV20094047443, 3December2009McGechanonProcedureat[7.23.03]. 8 Clauses17(1)(d)(f)and17(2)(c)(d). 9 Clause17(2)(b).

should be called again before the Court as soon as the respondent has beenservedandthe interim orders reviewed at that point. This is standard practice for without notice matters intheHighCourtand protects the rights of a respondent while acceptingthatanapplicant may in extraordinary circumstances need to apply to the courts withoutnotice. 41. We submit that theeffect of theBillunder clauses 17(1)(a) and (b) could be similar to a without notice injunction to prevent the publication of defamatory material, material which invades a persons privacy or information which amounts to a breach of confidence. The Courts have developed careful rules around prior restraint of freedom of expression, one of which is the temporary natureofsuchinjunctions. Recommendations F. Clause 13 should deal with the jurisdiction to make without notice applications separately, and refer to rule 7.46 of the High Court Rules. G. The Bill should require full disclosure to be made on any without noticeapplication. H. TheBillshouldprovideforeither: i. Without notice orders to expire after three months unless a Court decides, afterahearing,thattheordershouldbemade permanentor The ability for respondents to without notice orders to file an applicationseekingtodischargetheorder.

ii. I.

Clause 13 should provide that only certain orders may be made withoutnoticetotherespondent,andexclude: i. ii. Any order that a correction, right of reply, or apology be publishedand Any order that the identity of the author of an anonymous communicationbereleased.

UsingtheApprovedAgencyasanEffectiveFilter 42. The Court may not determine any matter unless the Approved Agency has first considered a complaint about the communication and had a reasonable opportunity to consider and decide what action (if any) to take (Clause 11(1)). Only an application by the

PolicemaygostraighttotheDistrictCourt. 43. The LawCommissionviewwasthattheApprovedAgencywouldact as a filter system, get rid of complaints that had no merit and provide a means of nonjudicial resolution. In that way only genuine and serious complaints would get to the District Court. The ApprovedAgencypowersandfunctionsarecontainedinClause8. However, the way the Bill is worded, it is not necessary for the Approved Agency to refer a matter to a District Court, in order to qualify for District Court attention. It is possible foracomplainttobe made to the District Court even if a complainant has gone through the Approved Agency process and is merely dissatisfied with the outcome. Even if the Approved Agency decides to take no further action because the complaint is frivolous, a complainant may continue in the District Court on the basis that the Approved Agency has first considered a complaint about the communication and had a reasonable opportunity to consideranddecidewhataction(ifany)to take. In our view, if the Approved Agency is to be an effective filtering agency, except in cases of urgency (where without notice applications are justified) in order for a compliant to reach the District Court for further action, it should be referred there by the Approved Agency. That would prevent the Court becoming clogged withmeritlesscomplaints. Wesubmitthatthegroundsforreferralshouldbe: a. b. 48. If either party requests and theApproved Agency agrees the matterissuitablefordeterminationbytheCourtor If a decision is made and one party is dissatisfied with the outcome.





Matters should also proceed directly to the Court if a case for urgency is made outperhaps in accordance with our suggestions aboutwithoutnoticeapplicationsabove. Recommendations J. Add to the Approved Agencys functions and powers the ability to recommendtransfertotheDistrictCourt. K. Reword clause 11 to provide that a person may not apply for an orderundersection16or17unless:

i. ii. iii.

Theapplicationismadewithoutnoticeor The Approved Agency has considered the matter and has decidedwhataction(ifany)totakeor Any party has sought and obtained a decision from the Approved Agencythatthematterwouldbe betterdealtwithin theDistrictCourt.

PART2DEFINITIONS 49. In this part we make some suggestions about the definitions of terms used in theBill,withaviewtoensuringthefinalBillisasclear andunambiguousaspossible. Harm: a. b. IntheBill,Harmmeansseriousemotionaldistress. This could well be interpreted in a subjective manner. Later clauses in the Bill apply a mixed subjective objective test alongthelinesofthatprovidedintheHarassmentAct. For example, in Clause 19 provides that an offence is committed if a communication is posted that would cause harm to an ordinaryreasonable person in the position of the victim. If the definition of harm is to remainuntouched,we submit that the standard that should be applied for the assessment of serious emotional distressshould be that of the ordinary reasonable person (objective) in the positionof thevictim(subjective).




Onlinecontenthost: a. We submit that the use of the term over the part of the electronic retrieval system, such as a website, is unnecessarilyspecific,ismodifiedbytheexampleandin fact reverses the information flow and the nature of internet communication. Thetermelectronicretrievalsystemisundefined. Wesuggestthewordingshouldbechangedtoread:
online content host, in relation toa digital communication, means the person who has control over an electronic content dissemination system on which the communication is posted and accessible bya user whether the content was posted there directly by another user or is retrievedasaresultofanautomatedprocess.

b. c.


Intimate visual recording, Posts a digital communication, and victim(clause19): a. b. We submitthe definitionsinclause19(4)shouldbemovedto clause4andapplytothewholeBill. Thecurrentdefinitionofvictimisobtuse:
victim means the person who is the target of the conduct elicitedbytheposteddigitalcommunication.


In oursubmissionthewordstheconductelicitedbytheis confusing. In oursubmissiona victim is a person whoisthe targetofandisharmedbyaposteddigitalcommunication.


Takedown(clause16) a. b. c. Clause 16(1) and (2) enable takedown orders,buttheterm takedownisnotdefined. The Bill should clarify whether it means that content be deleted,asisimpliedbyclause16(2). Clause 16(2) should separate orders to delete content from orders to disable access to content. As discussed above, it may bethatthelatterformoforderisgivenpriorityonwithout noticeapplications.