Joseph Lavell Parker (left) and Beraiah Hales - members of the Roastbuster Facebook group.
"We need look no further than the Roast Busters case, where we had young Kiwi men take to social media to continue to harass and demean their victims far beyond the time and place of the initial attack, and it is happening more and more."
At the second reading of the fundamentally flawed Harmful Digital Communications Bill, Minister of Justice Amy Adams exploited notorious, despicable online behaviour for her cause.
In doing so she deflected attention to the online world for failures in the real world and avoided addressing what the Roast Busters case really highlighted - despicable behaviour offline, bad policing and not using existing laws.
It was through the young men's use of social media - bragging about their sexual exploits - that the Roast Busters case came to light. That in turn highlighted police incompetence and a failure to deal with the real problem - criminal acts.
You'd be forgiven for thinking the young men's behaviour on social media is of more concern, when the far more serious, demeaning offending was happening in the real world. Adams seems to turn a blind eye to the Independent Police Conduct Authority report which had come out a week earlier showing the Police could have, and should have, taken action against the young men and:
• Laid charges under section 134 of the Crimes Act 1961 regarding sexual connection with a young person under the age of 16 years. The IPCA said such a prosecution should have been considered because: "In four of these cases the young women were between two and three years younger than the young men involved. They were vulnerable (due to factors such as their level of intoxication); the extent to which they were willing parties was at best equivocal; and they were subject to sexual acts by more than one young man. The behaviour of the young men was demonstrably unacceptable and required a response."
• Taken alternative action to address the potential offending behaviour of the young men through statutory care and protection interventions by Child, Youth and Family.
"In four of the cases, parents of the young women (having been advised by Police that there was insufficient evidence to proceed) and the secondary school involved in Case 4 made reasonable requests to, or were given an undertaking by, Police to speak to the young men and their parents about the incidents and the behaviour of the young men," said the IPCA. "Police, specifically Officers C, D, and E, failed to do so. This demonstrated a lack of appreciation of the seriousness of the allegations, the previous incidents, and the likelihood that the behaviour would continue."
Adams argues Roast Busters shows why we need new laws to stop cyber-bullying. What it really shows is we need Police and others to use the existing laws and statutory interventions to stop harmful behaviour online and offline. What's really needed is more alignment in how we treat the digital and the physical worlds. Herein lies the fundamental issue - hysteria about potential harm on the online world, when real harm in the offline world goes unchecked. Look at what actually happened.
You'd be forgiven for thinking the young men's behaviour on social media is of more concern, when the far more serious, demeaning offending was happening in the real world.
Facebook immediately took down the offensive Roast Busters bragging videos when it was notified. And when Netsafe got in touch, Facebook also took down several vigilante pages threatening the boys - thereby making sure there was nothing online to inflame the situation more.
That is how it should be when material like this that is so obviously offensive and harmful is posted. To minimise harm the takedown should happen as quickly as possible. Under this new law, the process is likely to take longer because it will involve a "notice-notice-takedown" procedure whereby both the publisher and the author of the harmful material are notified of a complaint.
The Justice and Electoral Committee considering the bill says it's adopted this approach to strike a balance between: "ensuring the quick removal of harmful or illegal content; ensuring unpopular content which was nevertheless not illegal or harmful was not unilaterally removed; preventing frivolous, groundless or trivial complaints; clarifying the liability and obligations of online content hosts; and providing a practical and affordable procedure for everyone involved."
If online bullying is occurring, the last thing you want to do is tell the bully that there's been a complaint, because in many instances that's likely to exacerbate the situation offline.
In the process of trying to please everyone the Committee has ended up with an unworkable process. If online bullying is occurring, the last thing you want to do is tell the bully that there's been a complaint, because in many instances that's likely to exacerbate the situation offline. The first thing you want to do is get the material taken down.
The problem with this Bill is that it's far too broad. Rather than trying to target cyber-bullying, particularly of children, it's trying to be a catch-all for a wide range of bad online behaviour when in many situations it can be dealt with by existing laws. Examples include harassment, defamation and the recent case in New Plymouth when a young man was prosecuted for making an intimate recording and posting in online.
The Bill views technology as the problem rather than the behaviour and fails to recognise existing protections and whether actual offences are being committed. Bad behaviour is bad behaviour - online and offline. Harm is defined as "serious emotional distress".
Quite when this kicks in - that is, when the threshold of such distress occurs - is far from clear. Similarly many of the "communication principles" representing the vision for appropriate online content are also very broad. One of the principles is that a digital communication should not be "grossly offensive to a reasonable person in the position of the affected individual". Another is that a digital communication "should not be indecent or obscene".
The Bill views technology as the problem rather than the behaviour and fails to recognise existing protections and whether actual offences are being committed.
What is missing here are guidelines as to when a prosecution should occur - something the director of public prosecutions in the United Kingdom considered vital to avoid the potential chilling effect of over zealous online prosecutors. "In cases in which a communication might be considered grossly offensive, we must recognise the fundamental right to freedom of expression and only proceed with prosecution when a communication is more than offensive, shocking or disturbing, even if distasteful or painful to those subjected to it."
Significantly, the United Kingdom and Europe, have adopted a much more collaborative, less regulatory approach to the problem of harmful online communications. In those jurisdictions the aim is to get all stakeholders - the private sector, the technology industry and government - to work together.
In its haste to outlaw types of digital communications rather than the behaviour behind them, our government seems set on unnecessarily criminalising our young adults for what at times may be little more than the ignorance of youth - not thinking clearly about consequences and saying the wrong thing in the heat of the moment.
Clearly Roast Busters doesn't fall in that category, but rather than doom all digital communication to regulatory big brother control, the government could do well to look at the Australian approach, which has a much narrower definition of what constitutes cyber-bullying and who needs to be protected.
The recently passed Enhancing Online Safety for Children Act 2015 requires that harmful material "would be likely to have the effect on the Australian child of seriously threatening, seriously intimidating, seriously harassing or seriously humiliating the Australian child."
The government also needs to work much more cooperatively with the companies where this sort of behaviour is likely to occur. With 2.4 million people in New Zealand on Facebook, which actually has pretty good reporting procedures, the government could do well to listen to its submissions on the Bill and its global experience in dealing with the problem.
In policing the online world, co-operation is key. This Bill is out of step with that understanding and needs less haste and more thought.
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