HUMAN RIGHTS IN CYBERSPACE: SHIFTING THE GOAL POSTS OR BUSINESS AS USUAL?

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1 HUMAN RIGHTS IN CYBERSPACE: SHIFTING THE GOAL POSTS OR BUSINESS AS USUAL? Michael J.V. White 1 Unlike any other medium, the internet enables individuals to seek, receive and impart information and ideas of all kinds instantaneously and inexpensively across national borders. By vastly expanding the capacity of individuals to enjoy their right to freedom of opinion and expression, which is an enabler of other human rights, the internet boosts economic, social and political development, and contributes to the progress of humankind as a whole. 2 Introduction The internet provides unparalleled opportunities for the promotion and advancement of certain rights, such as the right to seek, receive and impart information. However, it also provides an additional medium through which fundamental rights and freedoms can be undermined. The UN Human Rights Council (HRC) has stated that the same rights that people have offline must also be protected online. 3 However, as the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (the Special Rapporteur) acknowledges, the internet can be misused to cause harm to others. 4 For this reason, some believe that the challenges to regulating behaviours online necessitates the development of an overarching framework for the protection of rights and freedoms in cyberspace. This paper considers whether the current human rights framework provides adequate protection for the rights of internet users. Freedom of expression Freedom of expression is a human right which is fundamental to our democratic system. The importance of the right of free speech as the cornerstone of a functioning democracy is widely accepted in law and practice. Lord Steyn described the role of freedom of expression in democratic self-government in the following manner: 5 The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice in the country. Freedom of expression is also fundamental to innovation, enterprise and business. The right to freedom of opinion and expression is set out in Article 19 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). 6 Article 19 of the ICCPR provides that: a) Everyone shall have the right to hold opinion without interference; b) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice; 1

2 c) The exercise of [these] rights carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary for the respect of the rights or reputations of others, for the protection of national security or of public order, or of public health or morals. The UN Human Rights Committee (HR Committee) has stated that freedom of expression: 7 includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others, subject to the provisions in Article 19, paragraph 3, and Article 20. It includes political discourse, commentary on one s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse. It may also include commercial advertising. Permissible limitations Very few human rights are absolute. Most can be restricted in some circumstances. Domestic and international law, while protecting free expression, does reserve the right to limitations under certain circumstances. Article 19(3) of the ICCPR provides that: The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. The HR Committee in its General Comment 34 has emphasised that: 8 when a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself the relation between right and restriction and between norm and exception must not be reversed. Article 19(3) lays down specific conditions and it is only subject to these conditions that restrictions may be imposed. The restrictions must: 9 be provided by law; be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3 such as national security or public health and morals; and conform to the strict tests of necessity and proportionality restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated. The Special Rapporteur has developed a set of principles which are designed to assist in deciding what amounts to a legitimate restriction or limitation of the freedom of expression and what amounts to an abuse of that right. 10 As a general principle, the Rapporteur considers that permissible limitations and restrictions must constitute an exception to the rule and must be kept to the minimum necessary to pursue the legitimate aim of safeguarding other human rights. In this context necessary has been interpreted as meaning that any proposed restriction is pursuant to a legitimate aim, proportionate to that aim and no more restrictive than is required for the achievement of the desired purpose. As the principles state: the relationship between the right and the limitation or restriction or between the rule and the exception must not be reversed. 11 2

3 Legality The requirement for limitations regarding freedom of information and expression to be provided by law is an important guarantee of the rule of law. It includes a formal requirement of legality, that is, that there be a legal basis for any restrictions. It also includes substantive requirements. The HR Committee has noted: 12 For the purposes of paragraph 3, a norm, to be characterized as a law, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not. Permissible purposes In addition to the legality requirement, Article 19(3) requires any limitation on freedom of expression to be necessary for one of a number of purposes: 13 (a) Respect for the rights or reputations of others Freedom of expression may be limited where those limitations can be demonstrated to be necessary for ensuring respect for the rights and reputations of others. In the context of the internet, a range of rights may present possible justifications for such limitations, including: freedom from discrimination; 14 freedom from cruel, inhuman or degrading treatment; 15 and freedom from arbitrary interference with home, family, correspondence or reputation. 16 Freedom from discrimination Article 2(1) of the ICCPR requires parties to ensure the rights contained in that Covenant apply to all individuals without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) 17 is to similar effect. In addition, Article 26 of the ICCPR states that: the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 20 of the ICCPR further states that [a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. 18 The threshold in Article 20 is high. Advocacy of national, racial or religious hatred of itself is not a breach of Article 20 of the ICCPR. Such advocacy only becomes an offence when it constitutes incitement, that is, when the speaker seeks to provoke reactions on the part of the audience and there is a close link between the expression and the resulting risk of discrimination, hostility or violence. 19 The HR Committee has made it clear that Article 20 of the ICCPR is required to be interpreted consistently with Article 19: 20 3

4 Articles 19 and 20 are compatible with and complement each other. The acts that are addressed in Article 20 are all subject to restriction pursuant to Article 19, paragraph 3. As such, a limitation that is justified on the basis of Article 20 must also comply with Article 19, paragraph 3. Freedom from cruel, inhuman and degrading treatment Article 7 of the ICCPR provides that [n]o one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment. The right to be free from the types of ill-treatment listed in Article 7 is not confined to actions affecting people in prison, in detention or in institutional environments; nor is it confined to actions by or on behalf of the state itself. Bullying in particular can be regarded as conduct which could be referred to as cruel, inhuman or degrading. The specific right of children to be free from cruel, inhuman or degrading treatment is recognised in Article 37(a) of the Convention on the Rights of the Child (CRC). The Committee on the Rights of the Child has described cruel inhuman or degrading treatment in relation to children as including treatment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child. 21 Right to privacy, family, home, correspondence, honour and reputation Article 17 of the ICCPR states that: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. The HR Committee has indicated its view that this right is required to be guaranteed against all such interferences and attacks whether they emanate from state authorities or from natural or legal persons. 22 However, the Committee has also observed that [a]s all persons live in society, the protection of privacy is necessarily relative. 23 Balancing the rights to privacy and/or protection of reputation with the rights to freedom of information and expression presents particular challenges. Other considerations Higher levels of restrictions on the right to freedom of expression and information, as engaged by conduct affecting children, may be justifiable only after having regard to the rights of children to special protection under the CRC. Article 24 of the ICCPR states that children are entitled to necessary measures of protection, on the part of their families, society and the state. Reflecting this principle, Article 3(2) of the CRC requires states parties to ensure for children such care and protection as is necessary for their well-being, and take all necessary legislative and administrative measures to achieve this. Article 17 of the CRC goes further. While recognising the importance for children of access to information and material through the mass media, it requires states parties to: Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of Articles 13 [freedom of information and expression] and 18 [recognition of responsibilities of family]. 4

5 (b) Public morals Respect for public morals may also be a permissible justification for restricting the right to freedom of expression and information. In its General Comment No. 34 the HR Committee stated: 24 that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations... for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. Any such limitations must be understood in the light of universality of human rights and the principle of non-discrimination. When considering whether respect for public morals is a justifiable limit on the right to freedom of expression, due regard must be given to the precision of the restriction to ensure it also complies with the requirement that it is provided by law. (c) Public order Article 19(3) permits restrictions aimed at protecting public order (ordre public). Restrictions on promotion of unlawful activity would appear to be permissible under this heading (subject to the requirements of necessity and proportionality being met). The HR Committee has considered this point specifically in relation to counter-terrorism measures such as offences of encouraging, praising or justifying terrorism. 25 Restrictions must be necessary for a permitted purpose Any measure limiting freedom of information and expression must be necessary. The HR Committee concluded that this equates to a requirement that any restrictive measures must conform to the principle of proportionality : 26 [T]hey must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law. The principle of proportionality must also take account of the form of expression at issue as well as the means of its dissemination. For instance, the value placed by the Covenant upon uninhibited expression is particularly high in the circumstances of public debate in a democratic society concerning figures in the public and political domain. More specifically: 27 When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat. Right to privacy Privacy is the right to be free from arbitrary or unlawful interference with privacy, family, home or correspondence. This right is found in both the UDHR and the ICCPR. Article 17 of the ICCPR states that: (1) [n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation (2) [e]veryone has the right to protection of the law against such interference or attacks. 5

6 Despite a widespread recognition of the right to privacy, the specific elements of this right were not fully developed in the above-mentioned instruments. It is therefore useful to consider that right in general before assessing its more specific terms (arbitrary or unlawful interference). The right to privacy is one of the most important rights protected in the ICCPR, especially to the extent that it protects individual personality. Privacy is fundamental in a democracy and essential to human dignity. It reinforces rights to freedom of expression and assembly and is critical to business and innovation. The European Court of Human Rights has ruled regarding the related concept of private life in the European Convention on Human Rights that it is a broad term not susceptible to exhaustive definition. It includes a person s physical and psychological integrity: the guarantee afforded by Article 8 [of the European Convention on Human Rights] is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. 28 Privacy protection is frequently seen as a way of drawing the line as to how far society can intrude into a person s affairs. In broad terms it can be divided into the following areas: Information privacy, which involves the establishment of rules governing the collection and handling of personal data such as credit information and medical records Bodily privacy, which concerns the protection of people s physical selves against invasive procedures such as drug testing and cavity searches Privacy of communications, which covers the security and privacy of mail, telephones, and other forms of communication Territorial privacy, which concerns the setting of limits on intrusion into the domestic and other environments such as the workplace or public space. Interestingly, the ICCPR uses different constructions to begin its various articles such as all peoples, everyone, all citizens. However Article 17 begins with a stronger construction: No one shall be deprived.... Some commentators have found that the phrase [n]o one appears whenever the Covenant seeks to underscore a basic freedom which may not be denied to any person. 29 This seems a sensible interpretation of Article 17, particularly when one considers that no limitation provision was added, and that the rights set out in the article are protected without qualification. However, Manfred Nowak takes a slightly different view. He believes that although Article 17 does not contain a limitation clause allowing for restrictions in the interest of public order, or similar purposes, this is because States did not want to have excessive restrictions on their latitude to determine the limitations on the right. 30 Despite there being no explicit exceptions to Article 17, it is generally accepted that assessing interference that is both lawful and nonarbitrary requires a precise balancing of the circumstances in a given case, paying regard to the principle of proportionality. 31 As a rule of thumb Nowak suggests: 32 In evaluating whether interference with privacy by a State enforcement organ represents a violation of Article 17, it must especially be reviewed whether, in addition to conformity with national law, the specific act of enforcement had a purpose that seems legitimate in the sense of rule of law and, in particular, whether it was reasonable (proportional) in relation to the purpose to be achieved. 6

7 Nowak s position is in line with that of the HR Committee. In 1988, that Committee elaborated on the content of Article 17 in General Comment 16. It stated that any interference authorized by States can only take place on the basis of the law, which itself must comply with the provisions, aims and objectives of the Covenant. 33 The Committee went on to say that the introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provision, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. 34 Access to the information technologies While there is no express right to access information technologies in any of the major international human rights instruments, 35 it has been argued at the international level that such access is critical, particularly in terms of the right to freedom of expression, and in the redressing of structural disadvantage. The Special Rapporteur opines that without internet access which facilitates economic development and the enjoyment of a range of human rights, marginalized groups and developing States remain trapped in a disadvantaged situation. 36 This has been characterised as the digital divide, being the gap between people with effective access to digital and information technologies, in particular the Internet, and those with very limited or no access at all. 37 The Special Rapporteur asserts a positive obligation on states to promote or to facilitate the enjoyment of the right to freedom of expression and the means necessary to exercise this right, including the Internet as a means of overcoming this divide. 38 One academic, Cees Hamelink, agrees arguing that if the right to freedom of expression is interpreted in more than the classical negative sense (that is, as a positive right and not merely as a liberty), it becomes a claim-right. 39 This means a person not only has the right to express opinions, but also, by implication, to the related entitlement to facilities for the exercise of this right. The recognition of freedom of expression as a positive claim-right is particularly important in situations where the voices of some people are systematically excluded. 40 Hamelink further argues that human rights in cyberspace should not only be articulated as individual rights, but also recognised as collective rights. 41 A collective right of access to the internet for communities is critical given that there are certain groups of people who tend to be excluded from full access to the internet. 42 He argues that collective claims can also include the right to development (of communication infrastructures), and a right to the sharing of knowledge and skills resources. 43 It should be noted, however, that full inclusion extends beyond mere access rights, and would include initiatives to build confidence and security in the use of the internet. In practice, this could include governments establishing sustainable multi-purpose community public access points and providing affordable or free internet access to their citizens. 44 7

8 The New Zealand context Freedom of expression Domestically freedom of expression is protected by section 14 of the New Zealand Bill of Rights Act 1990 (BORA). In line with jurisprudence from the HR Committee the BORA contemplates restrictions on these rights where it can be justified in a free and democratic society. 45 In New Zealand, the test for justification under section 5 of the BORA provides some guidance as to when a limitation on the right to freedom of expression or privacy may be justifiable. This test was set out by the Supreme Court in R v Hansen. 46 Any limit on a right must: 47 Privacy (i) serve a sufficiently important objective to justify curtailing the right; (ii) the limiting measure must be rationally connected to its purpose; (iii) impair the right or freedom no more than is reasonably necessary to achieve its purpose; and (iv) be in due proportion to the importance of the objective. The BORA does not contain an overarching right to privacy. Personal privacy is protected to some degree by specific legislation such as the Privacy Act 1993 (the Privacy Act) and the common law tort of privacy. The Privacy Act does not create a right of privacy, nor is its recognition of privacy concerns absolute it applies to the handling of all personal information collected or held by agencies, whether in the public or private sector. Consumer protection on the internet, at least in so far as New Zealand websites are concerned, is met through a requirement for business (and public agencies) to comply with the Privacy Principles, as set out in section 6 of the Privacy Act. These principles set out how information is to be collected, stored and (in certain proscribed circumstances) disclosed. The tort of invasion of privacy has broader coverage and remedies than the Privacy Act. In Hosking v Runting, 48 for example, the Court of Appeal recognised the existence of a tort of wrongful publication of private facts. It set out two fundamental requirements for a successful claim: 49 Access (1) the existence of facts in respect of which there is a reasonable expectation of privacy; and (2) publicity given to those facts that would be considered highly offensive to an objective reasonable person. Internet access to essential services and social networking is important for people to fully interact with their communities. It provides older people with the option to live autonomously in their homes for longer. Similar comments can be made about disabled people and the need to have access to information technology in accessible formats to fully engage in their communities and to live independent lives. This is clearly recognised in the Convention on the Rights of Persons with Disabilities. 50 The Special Rapporteur has reported that internet access has been expressly recognised as a human right in some economically developed states: 51 8

9 For example, the parliament of Estonia passed legislation in 2000 declaring Internet access a basic human right. [52] The constitutional council of France effectively declared Internet access a fundamental right in 2009, and the constitutional court of Costa Rica reached a similar decision in [53] Going a step further, Finland passed a decree in 2009 stating that every Internet connection needs to have a speed of at least one Megabit per second (broadband level). While there have been some calls to embed internet access as a right in New Zealand s domestic legal framework, this has not yet occurred. However, it should be noted that there are a number of initiatives to mitigate current barriers to access including the ultrafast broadband project and the rural broadband project. The international Web Content Accessibility Guidelines (WCAG) provide a comprehensive and authoritative international benchmark for the design of accessible websites. From July 2010, public websites created by all core government departments and ministries have had to meet the New Zealand Government Web Standards 2.0, which are based on the international Web Content Accessibility Guidelines. Government departments and agencies are obliged to assess themselves against these standards once a year. The New Zealand Human Rights Commission has noted that early assessments show that while agencies are aware of the standards and are making efforts to implement them, full compliance is low. Furthermore the WCAG guidelines do not address the needs of people with learning or intellectual disabilities. Regulating offensive behaviour: an exercise in balancing rights Laws seeking to balance rights and responsibilities often distinguish between public and private conduct. However, the rapid development of the internet in terms of its use in daily life has blurred these lines. People are increasingly using the internet for activities that they would perceive to be private communications. However, defamation law, for example, requires only that a person be identified in material which is established to be defamatory, and that the material be published. Publishing can no longer be thought of as restricted to traditionally offline mediums such as newspapers, television, radio broadcasts, books, posters or handbills. Arguably every time anything is posted on the internet it constitutes an act of publication. Internet publication in defamation cases, for example, is no longer unusual. In 2001, the courts ruled on a defamation action involving comments made on an internet news group, awarding the plaintiff $30,000 general damages and $12,000 punitive damages. 52 It has been held that publication in cyberspace is just as much publication as any other form of dissemination. Judge Ross has said: 53 I know of no forum in which an individual has the freedom to say what he likes and in any manner he wishes about another individual citizen with immunity from suit for all consequences. Merely because the publication is being made to cyberspace does not alter this. (a) Limiting the right to freedom of expression A number of potential restrictions on the right to freedom of expression are contemplated by New Zealand laws, including those on sedition, national security, telecommunications, racial hatred, copyright, defamation, perjury, contempt of court, fraud, and censorship in classification and broadcasting. 9

10 For some years the prevailing view was that the right to freedom of expression in section 14 of the BORA had no role to play in interpreting such laws because the whole point of the legislation or statutory provisions was to restrict freedom of expression. Therefore, it was thought, it was only necessary to apply the terms of the statute without further reference to freedom of expression in the BORA. 54 This approach was overturned by the Court of Appeal in Moonen v Film and Literature Board of Review. 55 The appellant had appealed the decision of the Film and Literature Review Board that a book and certain photographs were objectionable in terms of section 3 of the Films Videos and Publications Classifications Act Both the Film and Literature Board of Review and the High Court had concluded that the BORA (and therefore freedom of expression) was not relevant to the decision. The Court of Appeal held that that BORA must be applied to assist on the interpretation of the vague phrases that were, on the facts of that case, critical. The relevant words were promotes or supports or tends to promote or support... the sexual exploitation of children. The court considered that whether something promotes or supports something else will involve deciding the extent to which the first might bring about the second. There are a range of options for deciding whether this is the case, but in reaching a decision the degree of harm has to be balanced against the impact on freedom of expression. (b) Protecting against discrimination The Human Rights Act 1993 (HRA) prohibits unlawful discrimination in New Zealand. The HRA identifies a number of prohibited grounds of discrimination and applies to specified areas of public life (for example, employment, accommodation, education, provision of goods and services). While these areas have been rapidly expanded by the use and application of the internet, enforcement of unlawful discrimination laws is more problematic, raising significant questions of responsibility and locus. Furthermore, with the increasing breadth and scope with which an individual may interact with and over the internet, a number of activities may be inherently public but fall outside the areas of public life identified by the HRA. (c) Harassment and bullying The recent death of long-time cybertroll 56 victim Charlotte Dawson sparked vigorous moral debate about the evils of the internet. The link between online bullying and suicide, especially among young people, has come into the spotlight. There is evidence of similarly cruel acts here in New Zealand, a country with shocking youth suicide rates and high levels of online bullying. NetSafe receives about 60 bullying-related complaints a week. New Zealand has a number of statutes which specifically deal with these issues: Under the Harassment Act 1997 it is a criminal offence to harass another person with intent to cause that other person to fear for their own safety or the safety of a family member. 57 Harassment can occur by making contact with a person, whether by telephone, correspondence or in any other way, or giving offensive material to a person or leaving it where it will be brought to the attention of that person, or acting in any other way that causes the person to fear for their safety. 58 Although most instances of cyberbullying would already be covered by the Harassment Act, significant harm can be 10

11 caused by offensive messages that are not sent directly to the subject this is particularly the case when considering the impact of social media. The Harassment Act clearly did not contemplate this situation. The Telecommunications Act 2001 provides that every person commits an offence who uses, causes or permits to be used any telephone device for the purpose of disturbing, annoying or irritating any person. Telephone device is defined as any terminal device capable of being used for transmitting or receiving any communications over a network designed for the transmission of voice frequency communication. 59 The Telecommunications Act is arguably restricted to traditional telephone devices. The United Kingdom Communications Act 2003, by contrast, makes it an offence to send by means of a public electronic communications network a message that is grossly offensive or of an indecent, obscene or menacing character. 60 Section 216J of the Crimes Act 1961 provides that it is an offence to publish intimate pictures of someone taken covertly without that person s consent. However, that prohibition only applies where the filming itself took place without consent. It does not cover situations where consent was given for a picture to be taken but they were subsequently published without consent. 61 The Films, Videos and Publications Classification Act 1993 also makes it an offence to be party to an objectionable publication. A publication in this context includes electronic transmission whether by way of facsimile transmission, electronic mail or other similar means of communication other than broadcasting. 62 It is an offence under the Crimes Act 1961 to incite a person to commit suicide, if the person in fact commits, or attempts to commit, suicide. 63 Inciting racial disharmony is a separate offence under section 61 of the HRA. Sections 62 and 63 of the same Act make it unlawful to engage in sexual or racial harassment that is repeated (or so significant) that it impacts on the person s employment or access to certain types of services. While sections 62 and 63 seem to be expressed in sufficiently broad terms to cover any form of communication, section 61 is less clear. (d) A case study: section 61 of the Human Rights Act 1993 As set out above, Article 20 of the ICCPR prohibits incitement to discrimination. The principal provision in domestic law, which is intended to address the requirements of Article 20, is section 61 of the HRA. Section 61 applies to both private and public places and reads: (1) It shall be unlawful for any person (a) To publish or distribute written matter which is threatening, abusive or insulting, or to broadcast by means of radio or television words which are threatening, abusive or insulting; or (b) To use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive or insulting; or (c) To use in any place words which are threatening, abusive or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper magazine, or periodical or broadcast by means of radio or television, being matter or words likely to excite hostility against or bring into contempt any group of persons in New Zealand on the ground of colour, race or national or ethnic origins of that group of persons. 11

12 (2) It shall not be a breach of subsection (1) to publish in a newspaper, magazine, or periodical or broadcast by means of radio or television a report relating to the publication or distribution of matter by any person or the broadcast or use of words by any person, if the report of the matter or words accurately conveys the intention of the person who published or distributed the matter or broadcast or used the words. (3) For the purposes of this section, newspaper means a paper containing public news or observations on public news, or consisting wholly or mainly of advertisements, being a newspaper that is published periodically at intervals not exceeding 3 months. publishes or distributes means publishes or distributes to the public at large or to any member or members of the public. written matter includes any writing, sign, visible representation, or sound recording. Section 61 creates an exception for the media allowing it to publish or broadcast a report relating to the publication, distribution, broadcast or use of such matter or words by any person if the report accurately conveys the intention of the person. This is the only exception. Although it is arguable that publication in one form or another on the internet comes under the ambit of section 61, this is not clear and a strong argument could be made (when reading the provision as a whole) that it is confined to traditional print and broadcast media. Furthermore, the threshold is such that the application of section 61 to the internet, where lines between public and private communication are blurred, may be inappropriate in some circumstances. Under section 61, it is not simply a matter of whether comments are offensive. The material must be likely to excite hostility against a group or bring them into contempt by reason of their race, colour, or ethnic or national origin. This requires an objective evaluation of the likely effect of the comment or expression on its audience. It is also dependent on what the Tribunal in Neal v Sunday News described as the threshold question. 64 Namely, which members of New Zealand society should be considered in making the assessment? This can be difficult to determine with any accuracy, and will vary depending on the context in which the comments were made, or the material distributed, as the nature of the audience may dictate its reaction. Assessing the nature of the audience in relation to a publication on the internet, where one post may have being transmitted and re-transmitted by multiple third parties across cyberspace, is even more complex and would seem a somewhat daunting task. Protecting privacy The impact of the internet on privacy raises some significant concern for users ranging from cybercrime and identity theft to surveillance. This paper does not address these wide-ranging issues in detail. However, it is worth considering one issue that has been particularly topical of late surveillance and in particular telecommunications interception capability requirements. Reconciling the balance between national security interests and privacy is not a new issue. However, globalisation and the impact of the internet has significantly changed the communications environment and introduced new and challenging issues. The development and implementation of extensive statutory requirements for telecommunications companies to make their networks wiretap-ready is particularly concerning. These laws enable the interception of communications and reduce the number of parties that must be made aware of 12

13 ongoing surveillance. More troubling, it creates an environment in which more sweeping surveillance is possible than that previously accepted under judicial or administrative warrants. 65 Such laws potentially take communications surveillance out of the realm of judicial authorisation and allow unregulated surveillance, eliminating accountability on the part of the state. Furthermore, these laws can facilitate extra-territorial surveillance the surveillance within a state by other states. This inevitably raises jurisdictional issues and questions of state responsibility. In the New Zealand context the Telecommunications (Interception Capability) Act 2013 (TICS Act) imposes obligations on telecommunications network operators to assist the government on network security matters where they raise a risk to New Zealand s security or economic wellbeing. 66 In return the government will provide information, where appropriate, about network security risks and increase network operators knowledge in this area. 67 The TICS Act places different requirements on network operators, depending on their number of customers. Full interception capability will apply to the bigger network operators like Telecom and Vodafone. Others must be intercept read and intercept accessible. Among the obligations are those allowing for equipment to plug into the network and ensure staff are trained and have acceptable security clearance. Telecom operators are required to consult with the Government Communications Security Bureau (GCSB) when developing new infrastructure and networks so as to lessen the risk of cyber attacks and espionage. The GCSB has oversight over the design and operation of New Zealand s communications networks, and has sweeping powers to veto any decision made by network operators that might impact on security and limit an ability to conduct surveillance as seen fit. Where procedural matters involve classified security information relating to the administration or enforcement of the TICS Act, then at the request of the Attorney-General a court can receive or hear them in the absence of the defendant or the defendant s lawyers. While provision is made for the appointment of special advocates, conducting proceedings in the absence of the defendant raises issues about a breach of rights to natural justice. 68 The HR Committee has made it clear that the right to privacy imposes some positive obligations on the state: 69 Article 17 rights are required to be guaranteed against all interferences and attacks whether they emanate from State authorities or from natural or legal person States are under an obligation to provide adequate legislation to that end. Provision must also be made for everyone effectively to be able to protect himself against any unlawful attacks that do occur and to have an effective remedy against those responsible. Further, under Article 2 of the ICCPR all rights must be respected and ensured and all rights may be thought of as carrying three distinct but inter-related levels of obligation. Rights must be respected by the state itself. They must also be protected, meaning that the state has to put in place legislation and administrative machinery to protect individuals from rights violations, including those emanating from private actors or other state parties. Finally, rights must be fulfilled, meaning they must be promoted and even provided to people. Nowak emphasises that disregard for personal data and secret surveillance measures by private security companies led during the drafting of Article 17 to a certain emphasis on the positive obligation of the States to protect privacy against interference and attacks from 13

14 others. 70 While Nowak notes that several states, including the United States, the United Kingdom and Australia, took the view that the article only offered protection against interference by the state, he notes that the view of these states did not win out. 71 Hence it is the duty of a state to protect people within its territory or under its effective control from unlawful interference with privacy by other states. Domestically laws are often promulgated to this effect. However, lawful interception capability laws, such as the TICS Act, seem to have opened the backdoor to widespread trans-national surveillance. Where a telecommunications provider is required to make its systems accessible to interception, foreign states could use them for their own surveillance purposes. In such circumstances, the state would have failed to protect the right to privacy. Although this may in a formal sense be considered a lawful intrusion (the systems are required to be accessible by virtue the lawful interception capability laws), they would no doubt be arbitrary. Perhaps more troubling, however, is a distinct lack of transparency. States may or may not be aware that other states are accessing their systems to monitor the communications of people within their territory. Even if they do, it is likely that any surveillance would be the subject of a mutual assistance agreement rendering it secret. People will not only have their privacy violated, but in most cases remain unaware of it happening. Given these circumstances it is hard to see how the ICCPR has real teeth in this context. The challenge to law posed by the age of surveillance is immense. The technological, economic and geopolitical changes of the past 20 years have whittled away those rules. The Special Rapporteur has remarked that: 72 previously surveillance was carried out on targeted basis but the internet has changed the context by providing the possibility for carrying out mass surveillance. This is the danger. At a domestic level some states are considering taking action to shut down their networks and prevent unauthorised surveillance within their borders, and the international community is considering ways to limit the breadth and reach of communications surveillance. However, as mentioned, this is a worrying trend and risks significantly impacting on rights to freedom of expression and internet freedom. Where the appropriate balance lies needs reconsideration in the light of modern technology, increased security risks and the role of business. Here the international community has a key role to play in developing an acceptable accountability and scrutiny framework that transcends national politics. Recent developments In 2013, the government introduced the Harmful Digital Communications Bill (the Bill). The aim of the Bill is to make it easier to deal with cyberbullying and harassment. The legislation would make it an offence to send or post harmful messages (punishable by a $2,000 fine or three months jail) and create a specialised enforcement agency to deal with cyberbullying complaints. Inciting someone to commit suicide over the internet would be illegal. This proposed law is potentially world leading. It shows the government s commitment to ensuring the safety of all New Zealanders and to address the changing environment in which individuals can be subject to significant harm. However in my opinion the Bill, in its current 14

15 form, does not address some of the broader protection needs of internet users and could be strengthened. The Bill sets out a series of communication principles. Communication principle 10 states that a digital communication should not denigrate a person on a number of grounds that are also found in the HRA. Although there is no specific mention of the HRA in principle 10, some of the grounds have been included and not others. For example, age, employment status (which is defined as being unemployed or in receipt of a benefit) and political opinion are omitted. Clause 6(2)(b) of the Bill will make it mandatory to act consistently with the rights and freedoms in the BORA. As the right to be free from discrimination in the BORA applies to all the grounds of unlawful discrimination in the HRA, it seems logical to extend principle 10 to those grounds as well. It could, for example, be difficult to explain why a beneficiary who is hounded or criticised in unpleasant terms online for living off the state cannot complain. As part of the civil enforcement regime, there will be a new approved agency which will field initial complaints about harmful digital communication. It will be able to investigate complaints and attempt to resolve them through negotiation, mediation and persuasion. If that is unsuccessful, then a number of people (including the complainant) may apply to the District Court for a civil order. The court can also make a declaration that a communication breaches a communication principle. The Bill also creates two criminal offences of posting digital comments with the intention to cause harm and of inciting suicide. The threshold to access the complaints system requires that someone has suffered harm. Harm is defined as serious emotional harm. This is a subjective test, and one that can be difficult to establish, yet it will be the criterion for entry to the complaints system. The Approved Agency will have the function of assessing the harm caused to the complainant 73 and whether the subject matter or nature of the complaint is likely to cause harm. 74 The Human Rights Commission has noted that it faces a similar difficulty when dealing with sexual and racial harassment under the HRA, even though they are defined more explicitly than what is proposed here. In deciding whether behaviour is detrimental the significance of an incident is determined by how the complainant experiences it. As the Human Rights Tribunal has observed, assessment of whether behaviour had a detrimental effect involves a subjective enquiry into the reaction of the particular plaintiff. 75 The Bill also extends the scope of section 61 (exciting racial disharmony) of the HRA to apply to electronic communications to ensure that the section can be used to prohibit broadcasts by means of any electronic communications if it causes racial disharmony. There are considerable difficulties in implementing section 61 in practice as the material must be assessed to determine the possible effect on the recipients, taking into account matters such as the context in which the comments were made, or the material distributed. 76 Similar difficulties can be anticipated in relation to electronic communications. It is also worth noting that section 61 only applies to race and ethnicity, even though a significant number of complaints relate to other grounds, particularly religious belief and sexual orientation. For example, complaints relating to Muslims cannot be addressed under this provision because technically they do not comprise a race or ethnicity. 15

16 Conclusion The Harmful Digital Communications Bill represents a significant step towards ensuring that New Zealand laws continue to afford protection of fundamental rights in a rapidly changing electronic environment. Also, the development of the tort of wrongful publication of private facts is another step to protect against the publication of private facts in harmful situations in cyberspace. A number of existing New Zealand laws regulating offensive behaviour are based on grounds for restriction referred to in Article 19(3) of the ICCPR. However, in others, such as those relating to censorship and surveillance, questions remain as to whether some of these laws would meet the levels of transparency and proportionality required by Article 19(3). These questions raise broader concerns about censorship and the internet. In particular, the Special Rapporteur notes the use of arbitrary blocking or filtering of content where such mechanisms are used to regulate and censor information on the internet, with multi-layered controls that are often hidden from the public. 77 As the Special Rapporteur points out, excessive censoring can occur where the specific conditions that justify blocking are not established in law or are legislated for in an overly broad and vague manner. 78 In addition, even where justification for blocking exists, blocking measures may constitute a disproportionate means to achieving the purported aim, and content may frequently be blocked without the possibility of judicial or independent review. 79 This situation requires the careful balancing of freedom of expression against other rights and considerations. Furthermore, gaps in the legal framework remain and no doubt more will be identified as technology further develops. Laws and policies need to retain a degree of flexibility to address these changes and remain compliant with New Zealand s international human rights obligations. To be truly effective, a preventative approach must also be undertaken of educating users on cybersafe practices when engaging with information technology. However, evidence suggests that, despite some success, current internet training arrangements require more targeted initiatives to engage some vulnerable groups. Endnotes 1 The views expressed in this article are his own; any errors are his own. 2 Frank La Rue, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, A/HRC/17/27 (2011). 3 The Promotion, Protection and Enjoyment of Human Rights on the Internet, Human Rights Council Resolution 20/8, UN Doc A/HRC/RES/20/8 (2012), para 1. At 4 Supra note i. 5 R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 at 126 (HL). 6 The New Zealand Bill of Rights Act 1990 affirms New Zealand s commitment to the ICCPR and replicates the majority of rights found in the Covenant, making them enforceable domestically. 7 Human Rights Committee, General Comment No. 34, note 4, para 11 (emphasis added). 8 Human Rights Committee, General Comment No. 34, note 4, para Human Rights Committee, General Comment No. 34, note 4, para Supra note i. 11 Ibid. 12 Human Rights Committee, General Comment No. 34, note 4, para