New Netsafe chief executive Brent Carey sat down to talk to the Herald about NetSafety Week 2022 - and recent issues with his own organisation, while retired judge David Harvey, an ICT specialist involved with the creation of the Harmful Digital Communications Act, discussed what went wrong with a recent Netsafe privacy blunder that resulted in a $100,000 payout, and a key mistake made by the Government when the legislation was first passed.
Brent Carey has taken the reins of Netsafe after a dark time for the organisation - which serves as the lead agency for the Harmful Digital Communications Act 2015.
Netsafe has been ordered to pay $100,000 in damages after a ruling that it infringed the rights of three women in a case involving an alleged stalker.
The damages decision, released on March 22, came after long-time CEO Martin Cocker left the internet safety agency in December - mid-way through an investigation into alleged workplace bullying. He was not himself the subject of the allegations.
An employment court hearing scheduled for June, involving alleged bullying, was headed off by a confidential settlement. The staff member concerned told the Herald they were not able to comment, due to the terms of the settlement. Carey would only say that Netsafe now has no employment cases outstanding.
And the announcement of Cocker's departure came on the same day that Netsafe released the draft of its new Code of Practice for Online Safety and Harms - a document that saw advocacy groups raise concerns about its formulation and funding.
Mandy Henk, chief executive of anti-hate speech and misinformation group Tohatoha, saw conflict-of-interest issues, while InternetNZ's Andrew Cushen said the communities affected by the code should have been part of the initial drafting process (the final version of the code was released this morning and - spoiler - Henk is furious).
At least 10 of the agency's 25 staff have left since 2020 amid a funnel of leaks about workplace bullying investigations. One ex-staffer told the Herald that in many cases, their mental health was shot by the time they departed.
With a new chairman (Fletcher Building's Colin James) in place since the New Year, and now a CEO since May, will there be a change in Netsafe's workplace culture?
"A new person obviously brings different ideas and so with that will come culture change as well," Carey says.
Exactly how? The new CEO says it's still taking shape.
"I'm out gathering information. 'I've had a 'staying' interview with everyone that has stayed at Netsafe," Carey says.
He adds, "I'm also putting my structure in place. We've got a new chief customer officer arriving, and a new chief legal adviser. And so then it'll be clear when those roles are filled around what that work programme will look like."
Chief customer officer is a newly-created role, while chief legal adviser has been upgraded to a full-time, in-house position, replacing an eight-hour, outsourced role.
Already, we've seen a shift in tone, at least, with Carey penning a personal letter of apology to the three women involved in the privacy breach case.
Funding boost required?
Carey says reports of cyberbullying to his agency have increased by 25 per cent each year since 2020. Over the same period, Netsafe's budget ($3.94m in 2020, $4.06m in 2022 - with 95 per cent of its funding coming from the Ministry of Education and Ministry of Justice, and the balance from private sources) has been static.
Does Netsafe need 25 per cent more money?
"The volume is not going away. When you're running New Zealand's hate hotline seven days a week, you're going to get all sorts of incidents reported to you. And we are tagging those and making referrals. So certainly, I think there's more funding that could be given to Netsafe to act as a triage model and refer those to the appropriate agencies," Carey says. (Part of NZ's internet safety problem, however, is too many cooks. Cert NZ is also pushing this triage model with its new funding.)
"If the work increases, then the funding has got to increase as well," former District Court Judge David Harvey tells the Herald.
Harvey, who retired from the court in 2016 to become the founding director of Auckland University's Centre for ICT Law, consulted with the Law Commission on the Harmful Digital Communications Act.
Last year, Netsafe fielded a record 4207 reports of digital harm, as complaints jumped by around a quarter.
"I think that is part and parcel of the sort of dislocated society that we're living in at the moment," Harvey says.
"The Covid world that we're living in has created a whole lot of stresses. Part of it, of course, has been, 'Don't come into the office, work from home.' And naturally, as a result of that people are going to be using online services more frequently, both for business and recreation. They're going to engage with social media platforms, as part and parcel of that, and get involved in arguments, some of which escalate and become nasty. So there are going to be more complaints. And I think people are far more sensitive these days as well."
Legal, cultural perspective
Netsafe's previous CEO, Martin Cocker, came to the organisation after various sales, marketing and management roles in the IT industry.
Carey did a law degree at Victoria, graduating in 1999, and had roles with various justice, dispute resolution and public policy roles across the Tasman before returning to NZ in 2017 to join InternetNZ - where until April he headed the Domain Name Commission.
More broadly, In 2020, he completed a leadership programme at Oxford University. And he's also a co-founder of the Carey family company Green Meadows Beef, based in Taranaki. His iwi is Te Āti Awa.
He also sits on the executive of Rainbow Wellington - a role that helps add perspective for Netsafe's annual Netsafety Week, kicking off today, which this week has a "Diversity Matters" theme and events and includes women's networking events, and includes panels and seminars that will discuss keeping LGBTQIA+, Maori and neurologically diverse communities safe online (see the full lineup here).
Will Carey's legal and regulatory experience help?
Henry says Cocker's performance as Netsafe head was one of the key reasons that the non-profit - which had already been operating for more than a decade, in an education role - was selected as the lead agency for the Harmful Digital Communications Act (under National, in 2015, as the original legislation was passed. It was reappointed by Labour in June last year).
'Overly defensive' as 'lines blurred'
With the case that resulted in the $100,000 payout to three women for privacy breaches, Harvey says Netsafe became "overly defensive" and "blurred the lines" of its roles as the case dragged on. (Many of the details of the case are suppressed - but it involved "Mr Z" turning the tables on three women who had accused him of harassment by taking a case against them to Netsafe, then using an abbreviated version of Netsafe's case summary as part of the grounds for action he took against the women in the District Court. The women were not given access to the case summary.)
"The problem, as I see it from the way in which the case unfolded with the Human Rights Review Tribunal [which assessed complaints arising from the District Court action], was that it appeared Netsafe had blurred the lines between its advice-giving and education role, and its statutory duties under the Harmful Digital Communications Act.
"Netsafe needs to be very, very clear in defining the role that it performs as the approved agency. Those lines should not be crossed."
Netsafe's opposition to the defendants' request for discovery revealed, "There were issues they hadn't really thought through sufficiently because of this blurring of the roles," Henry says.
"My view is that I think Mr Z manipulated the process to his own advantage," Harvey says.
"As the civil proceedings went on - they went on for a long time. I think Netsafe just became more and more defensive."
Powers too limited?
The ruling in the case of Mr Z and three women also highlighted Netsafe's very limited powers of investigation as a non-profit, non-government organisation.
Harvey stands by NetSafe's appointment. In fact, he sees it as integral to the legislation that its lead agency is a neutral player, independent of the police, the Department of Internal Affairs and other government agencies.
Carey calls it an "independent umpire" role.
Harvey adds, "The model that was put forward was one to have an approved agency as to serve a number of purposes. One was to see if complaints or concerns could be ironed out by negotiation or mediation between a producer of content and a potential victim, and otherwise to act as a filter system so that the courts wouldn't be flooded with a whole lot of vexatious or pointless applications that had absolutely no merit or substance."
A solution ignored
Cases Netsafe can't resolve get escalated to the District Court.
Here, Harvey does see a real problem.
He says it's crucial that cases of cyber-bullying or harassment are resolved quickly, but the District Court process is slow and drawn out, once you've finally made your way to the front of the queue (various hearings involving the three women took place between 2017 and 2019, and it was not until March this year that the $100,000 payout was ordered).
During the consultation phase for HDCA, Harvey suggested a Communications Tribunal. It would be presided over by a District Court Judge, but follow a Copyright Tribunal-style model of quick turnaround hearings to "provide citizens harmed by digital communications with speedy, efficient and cheap access to remedies such as takedown orders and 'cease and desist' notices".
"We [Harvey and the Law Commission] recommended a communications tribunal and Collins [then Justice Minister Judith Collins], when she got the ministerial briefing paper and referred the matter to Cabinet said, 'No, we don't need a Communications Tribunal. This should go to the District Court [and] become part of the District Court process.' That was a mistake."