Megan Meier. Phoebe Prince. Tyler Clementi. In New Zealand, Hayley Ann Fenton. The ugly side of the internet has been dragged into the spotlight of late, prompting calls for something to be done about cyberbullying.
The Law Commisison has responded with a ministerial briefing, and says the government should introduce new measures to tackle malicious digital communications.
It's proposing a two-stage mechanism to help bridge the gap between the self-regulatory systems available online and the sanctions and remedies available through the courts. Stage one involves giving statutory recognition and funding to an approved agency, ideally NetSafe, whose function would be to assist the public in resolving problems involving harmful digital communications.
The second stage involves the setting up of a new communications tribunal to deal with serious instances of cyberbullying, and the establishment of a new offence for those 14 and over tailored for digital communication.
News media who are subject to the Broadcasting Standards Authority or the Press Council, would not be subject to the tribunal.
Amendments to the Harassment Act, Human Rights Act, Privacy Act and Crimes Act will be required if all the changes are implemented.
The commission says a specialist communications tribunal would provide "speedy, cheap and efficient relief" outside the traditional court system. It would provide a backstop for other agencies such as NetSafe, and in theory, be recognised by overseas website hosts and ISPs to the point where it would be perceived to have sufficient authority to compel them to remove offensive content.
"It would in effect operate like a mini-harassment court specialising in digital communications. New Zealand already has precedents for such informal methods of dispute resolution in the form of the Tenancy Tribunal, the Human Rights Review Tribunal and the Disputes Tribunal."
Victims, their parents or guardians, and school principals would be entitled to complain to the communications tribunal, and police would have access to the tribunal if there was a threat to a person's safety.
The commission believes sending an offensive message with intent to cause distress should constitute an offence. Communication that is “grossly offensive or of an indecent, obscene or menacing character” could include comments on websites, message boards and blogs, on social networking sites, in emails and in text messages.
"The distinguishing feature of electronic communication is that it has the capacity to spread beyond the original sender and recipient, and envelop the recipient in an environment that is pervasive, insidious and distressing."
Project leader Professor John Burrows said overseas jurisdictions, including the US, Australia and some states in the US were moving to criminalise communication causing serious distress and mental harm.
“We endorse the views expressed by Google and Facebook in their submissions that user empowerment, digital citizenship and self-regulatory solutions must be the first line of defence in tackling harmful communication in cyberspace. But there are significant power and information asymmetries in cyberspace which mean not all are able to harness these new technologies to defend themselves from illegitimate attack."
Schools have a part to play, too, according to the commission's briefing paper.
It's calling for the Ministry of Education to develop an agreed definition of bullying, including cyberbullying, and establishing ongoing data collection systems with standardised methods for defining and measuring both covert and overt forms of bullying.
It also says the National Administrative Guidelines for public schools should include a requirement that a school must implement an effective anti-bullying programme, and that schools should use information and technology contracts to better educate students about their legal rights and responsibilities with respect to communication.
In response to the paper, justice minister Judith Collins said bullying's reach and impact had increased considerably in the digital age.
“Bullying is no longer confined to the classroom or playground – bullies are targeting their victims by cellphone, instant messaging devices and social networking websites.
“We must not underestimate the devastating impact this new form of bullying has particularly on young people – it is contributing to increased truancy, failure at school and emotional problems such as depression, self-harm and suicide.”
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