on line speech harms- melbourne

On-Line Speech HarmsUsing Legal Process

Judge David Harvey

@djhdcj

Blog:www.theitcountreyjustice.wordpress.com

• The environment – paradigmatic change

• Dealing with on-line speech harms – strategy

• Dealing with on-line speech harms - practice

Mark Prensky

Digital Immigrants

Digital Natives

It’s all about how we process information

Digital Technologies give meaning to McLuhan’s comment:

The medium is the message

The impact of the digital communications technologies – a convergence of everything that has gone before - lies in the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

The Properties of Digital Technologies

• Persistence• Continuing disruptive

change• Dynamic information• Delinearisation of

information• Dissociative

enablement

• Permissionless innovation

• Availability• Participation• Searchability• Retrievability

The information expectations of Digital Natives have been shaped and moulded by these qualities.

Their uses and expectations of what happens in the on-line world are quite different to those of their parents (digital immigrants) or those of my generation (digital aliens).

Thus any solution must be premised upon an understanding of the technology and the way that it shapes behaviours and values underlying those behaviours

The solution must also recognise another McLuhan aphorism

Any Solution Must Recognise

The time factor – in “internet time” information moves faster than it does in the real world

Information is dynamic and spreads “virally”

“Dissociative enablement” means that people are going to behave differently when operating from the apparent anonymity of a private room or space and from behind a computer screen

Any remedy is going to be partial – given that information on the internet is going to remain in some shape or form (the quality of persistence or “the document that does not die”)

Normal civil and political rights including a robust recognition of freedom of speech and expression and that the internet is neutral. Restrictions on a free and open internet must be minimal.

Dual Approach

The OffenceThe Communications Tribunal

The Offence

Causing harm by means of a communciations device(a) grossly offensive; or (b) of an indecent, obscene, or menacing character; or (c) knowingly false.

Intention aspects.

Victim must have seen the communication – gossip is not enough

Relevant factors to be taken into account

The Communications Tribunal

Addresses some of the Internet-specific issues

a) it has a limited jurisdictionb) it has limited and specific remediesc) it deals with content and not criminalityd) it operates “on the papers”e) it is a remedy of last resort after a filtering process has been carried out by the Approved Agency

• In exercising its functions, the tribunal must have regard to the importance of freedom of expression.

• Transparency is ensured in that the Tribunal must publish its decisions and the reasons for them.

• Communications principles

Matters to be Taken into Account

(a) the content of the communication, its offensive nature, and the level of harm caused by it:(b) the purpose of the communicator in communicating it:(c) the occasion, context, and subject-matter of the communication:(d) the extent to which the communication has spread beyond the original communicator and recipient:(e) the age and vulnerability of the complainant:(f) the truth or falsity of the statement:(g) the extent to which the communication is of public interest:(h) the conduct of the defendant, including any attempt by the defendant to minimise the harm caused:(i) the conduct of the complainant, including the extent to which that conduct has contributed to the harm suffered.

Orders

(a) A take down order:(b) A future non-publication order(c) Prohibition against encourage others to behave similarly(d) a declaration that a communication breaches a communication principle:(e) correcting a factually incorrect statement(f) right of reply:(g) an apology:(h) author identification.

These orders are a significant intrusion upon freedom of expression

State of the Play

• The report has been received by the Minister.• She has indicated that the recommendation for a

Communications Tribunal will not be adopted.• The proposed jurisdiction of the Communications

Tribunal will be assumed by the District Court

• Matters to be Considered:– a) lack of specialist expertise in the field of digital

communications law– b) potential procedural delays– c) variation or possible lack of consistency in the

application of principles and the types of orders that may be made

The Big Picture

Because politics amounts to an intergenerational contract between one generation and the next, politicians should feel entrusted with the conservation of the past for future generations.Edmund Burke

But should digital immigrants tell digital natives how to live their lives in the digital environment?