In its rushed proposals to stomp out cyber bullying, the Law Commission has blundered in haste.
Instead of refining our existing laws to ensure they reach into cyberspace, it's proposing a whole new offence "causing harm by means of communication device."
No, it doesn't mean causing grievous bodily harm by taking to someone with your iPhone. The proposed offence aims to make it illegal to send "a message or other matter" - whether by text, Twitter, email or Facebook that is "grossly offensive; or of an indecent, obscene, or menacing character; or knowingly false". To make the criminal charge stick you'd also have to show that the sender was out to cause substantial emotional distress to someone else.
In light of the Chief Coroner's call to crack down on "cyber-bullying" because of concern that it can contribute to suicides, you might think that's just the sort of law we need. Ditto for dealing with what happened to celebrity Charlotte Dawson, hospitalised by the tweets of Twitter trolls.
The problem with such an approach is that it isolates bullying of the online kind without dealing with the wider issue of bullying in general whether at school, the home or at work. Bullying, whether it occurs in the virtual or the real world is still bullying. Why make one illegal and not the other?
"We are prepared to accept that a case can be made out for making the very worst of deliberately harmful speech illegal," says Tech Liberty, which has argued against aspects of the proposals. "However, we see no reason why this illegality should only be limited to electronic communications. Surely a poison-pen letter delivered to the letter box can be as harmful as an email or a text message on a phone."
Making separate laws for the internet and the real world ushers in a dangerous precedent and sets up the prospect of two different legal realms. It also doesn't make sense. Illegal harmful speech might be perpetuated in cyberspace, but in the end it's still felt by a real person in the real world. Our laws, such as the Crimes Act, the Summary Offences Act and the Harassment Act are, as the Commission itself points out, are quite capable of addressing new types of harmful communication. "Most of them are phrased in technology-neutral language, and enact basic principles which can do service in the modern world."
The Commission is quite correct to highlight the wider harm electronic communication can perpetuate its capacity to spread beyond the original sender and recipient, "and envelop the recipient in an environment that is pervasive, insidious and distressing".
It's right also to highlight the problem with the reporting tools provided by websites to alert administrators to the presence of offensive content. Just ask any parent who has had to battle Facebook's helpdesk system to try and get harmful material about their child removed, or the perpetrator of the abusive actions stopped. "In the course of our inquiry," says the Commission. "We were made aware of many cases where individuals had battled for months to have highly offensive content, including false Facebook pages, taken down."
But none of this makes the case for a new and separate offence. The flaw in the Commission's logic is exposed in its own argument about actual bullying at schools. The Commission agrees that the Ministry of Education's National Administration Guideline 5 should be amended to make it mandatory for all schools to adopt an anti-bullying programme.
But it stops short of saying what those policies might be and how they might be enforced. Once again there is a discrepancy. Cyber bullying is bad and must be stomped out with new laws, but real bullying at school is not so bad and more research is needed. Parents who have tried in vain to get their child's school to do something about their child being bullied will not be impressed.
The problem with the Commission's formulations stem from its research. Noting there was a paucity of "quantitative national data on cyber-related communication harms," it commissioned an independent study which suggested "as many as one in ten New Zealanders has some personal experience of harmful communication on the internet." Once again its focus is too narrow. How, for example, does that compare with actual bullying at our schools?
Had the Commission opened its eyes to the wider issue of bullying across society, it would have come across research done in 2009 showing that one in 10 workers had been bullied by a colleague over a six month period. One in ten was deemed sufficient to criminalise cyber-bullying yet it's not sufficient to criminalise workplace bullying, which is potentially a much bigger problem.
In the last month there have been news stories about a Burger King staff member who was allegedly punched by her manager, and a senior Auckland Council manager who allegedly verbally abused and bullied staff, leading to $300,000 in confidential settlements.
Bullying is endemic in our society. Why isn't the Commission looking at the bigger picture? Employees who have been bullied by managers know just how difficult it is to take a claim against a manager let alone get anyone in their organisation to take such concerns seriously. Why isn't the Commission calling for mandatory anti-bullying policies in the workplace as well as schools? As Andrea Needham, author of Workplace Bullying: A Costly Business Secret, written in 2004, points out: "The lack of action on workplace bullying ensures that it thrives on denial, misinformation, myth and, most importantly, the silencing of those who try to speak out."
The Commission's lack of consistency between the rules about bullying in the real and online world betrays a lack of clarity in its thinking. "While they are correct that the internet and mobiles phones gives people new ways to indulge in some very old fashioned cruelty and viciousness," says Tech Liberty. "We believe that any new law should concentrate on the harms being done and not the medium used to commit them."
Bullying is not, as the commission would have us believe, a problem that only needs to be addressed online. What's needed are consistent laws and policies that address the harm it causes wherever that occurs.