Jul 09 2015

New Zealand Ban on “Trolling”

New Zealand recently passed a law designed to outlaw cyberbullying and give victims a measure of protection. The intent of the bill good, and I agree that this problem may need some creative legislative solutions, but I don’t think this bill was well crafted. It further raises all the thorny issues of free speech.

The Telegraph reports:

The bill was introduced after a public outcry over the horrific “Roast Busters” scandal, in which a group of teenage boys from Auckland was accused of sexually assaulting drunk, under age girls and boasting about the acts on social media.

Public outcry is often a problematic motivation for new legislation. It motivates legislators to do something dramatic quickly, which does not lend itself to nuanced law. Of course this is a horrible crime and people should be outraged. The primary crime, however, was the sexual assault. Boasting about the crime later on social media rubbed salt in the wounds, but it would be a mistake to over-react to that aspect of the crime.

I also understanding that, completely separate from this one incident, there are genuine problems with online harassment, stalking, and bullying. Social media give people the opportunity to easily and anonymously harass others. This can escalate to death threats, goading people into harming themselves, mysogyny, racism and other forms of bigotry, and persistent bullying and stalking.

One particularly horrific form of online harassment is so-called revenge porn, where an ex-lover posts explicit photos or videos of someone online. It can then be difficult for the victim to have the photos or videos removed.

I would note that using the term “trolling” as the reporting has done is not accurate. Online harassment and bullying are better terms. But I fear that the confusion over the term “trolling” and the kind of activity that denotes is reflected in the law itself.

Critics of the new law point to the fact that it outlaws what it calls, “harmful digital communications.” These are any communications that cause “harm.” The communications can be factually truthful. The ban carries a punishment of 2-3 years in prison, and fines of up to $50,000 (NZ) for an individual and $200,000 (NZ) for a company.

The core of the problem with this bill is that it broadly defines “harm.” This can include speech deemed, “indecent”, “false” or “used to harass an individual.” Other criticisms include the fact that there is no exemption for journalists, and public and private figures are treated the same.

Because the law itself is vague when it comes to defining key terms like “harm,” “indecent,” and “harass,” that means it will be up to the courts to interpret and apply the law. The first few cases will therefore set the precedent for how this law is to be interpreted.

The risk of laws such as this is that they will have a chilling effect on free speech. The speech that needs protecting is speech that is unpopular, provocative, critical, and that rubs some people the wrong way. Speech that is pleasant and popular usually does not need protecting. I agree with the general legal stance in the US that defers greatly toward protecting free speech.

In this case the fact that speech is online should not water down protections for that speech, which is another criticism of this law.

There does need to be laws to protect people from genuine harassment and bullying, just like there needs to be laws protecting people from real defamation. But as with defamation, the burden of proof should be on the accuser with a high bar of evidence, and the law simultaneously needs to protect the speech of individuals from being silenced by the mere accusation of bullying.

One good rule of thumb is to consider the purpose and effect of specific speech. If the purpose is to advance a position, or criticize another, that advances the free marketplace of ideas (even if you disagree with the opinion being advanced). If the purpose of speech is to silence another through bullying or harassment, that is a form of silencing itself and inhibits the free marketplace of ideas.


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