When good lawyers do nothing: the biggest threat to free speech
Recently we have seen vigorous public debate about whether controversial speakers should be given platforms to express their views and when offensive speech crosses over into hate speech. Much of this debate has taken place on social media. While the internet should give us all the ability to meaningfully express ourselves and critique ideas and opinions, our right to free expression is being ringfenced by corporate interests. Free expression is highly valued by New Zealanders. Are lawmakers and legal practitioners going to allow corporate interests to determine what free expression means in New Zealand?
In 2016 I concluded a thesis, somewhat controversially: New Zealand was headed for a future where most ‘speech’ was expressed and shared online, therefore the right to freedom of that expression would be based entirely on horizontal and contractual relationships. In this future, free expression had evolved absolutely into a consumer right, accountable only to a-territorial online corporate monoliths. Under these conditions, the dominant ideas or opinions that emerge will not be the most objective truth but the most profitable truth.
Weeks later the UK public voted for Brexit and mere months after that Donald Trump was elected President of the United States. These results upset most pollsters and pundits’ predictions and spawned a prolonged and complex intellectual inquiry into why and how they ‘got it so wrong’. It has since emerged that the public debate leading up to these political events was serviced, not by politically-engineered spin or partisan opinion – as one would expect in a fraught political contest – but by outright falsehoods and untruths. Social thinkers want to quantify the spread of the voting public’s encounters with this content, the depth of influence and lay blame accordingly in Russia, Macedonia, Silicon Valley and the mainstream press.
Call it fake news, disinformation or propaganda; whatever term historians settle on, the phenomenon is not ‘new’ nor the results ‘shocking’. What we knew in 2016 and what is patently clear now is the aspirations of demos-by-internet have long since been misplaced. There are strong commercial incentives not only in what appears on a user’s screen but also in monetising users’ own content and utilising users as distribution agents – implicitly or explicitly pushing for users to share content more widely to their own networks. This comes at no cost to the ‘influencer’ and is designed in such a way that purposefully obscures the legal trace (and any liability) back to them. While we know that millions of online profiles and accounts are not attributable to real people, global penetration of the internet is nearly complete and MIT research suggests it’s humans not bots spreading false stories quicker than real ones. What we didn’t know was who would seize upon this opportunity and to what end.
Now the effect these conditions have on voting behaviour has been realised – those unhappy with recent political outcomes have made strong calls for change. Much of what is taking place is not illegal, particularly in jurisdictions where internet companies register their interests. For example, the UK Department of Culture, Media and Sport has since released its interim report recommending legal change: clear legal liability and penalties for harmful content, the ban of micro-targeting for political ads, ethical internet codes, and the auditing and oversight of internet companies. The lawmakers of other countries have already taken steps – at their most censorious, Malaysia has made it a criminal offence to share ‘fake news’
Lack of political leadership
The lack of New Zealand political leadership is cause for concern. The recommendations in Law Commission’s 2013 report The news media meets ‘new media’ were not realised and the National-led Government’s anaemic Digital Convergence Bill has been shelved.
We have little sense of what the new government’s fresh take on online liability for content will be. In the meantime, we have the existing net of New Zealand internet regulation (and better documented by practitioners such as Judge David Harvey) which has threads of various strengths – such as the Harmful Digital Communications Act 2015 and the precedent set by case law: see Murray v Wishart  NZCA 461;  3 NZLR 722. I, like many others, argue a legal framework that assigns liability for speech harms to end users alone is crude and outmoded. Liability needs to be shared and to future-proof our speech rights we need to move towards greater co-regulation of upstream parties; this would involve a mixture of incentives and penalties to allow for oversight of their compliance and enforcement mechanisms, based on public law principles.
Currently, online intermediaries largely escape liability through intentional carve-outs and unintentional gaps in this regulatory net. These carve-outs and gaps engineer deregulation by default; it amounts to a cessation of New Zealand law-making authority, to be swept up by online monoliths who rule by terms of service. Successive attempts to mollify powerful online interests this way have not preserved meaningful public discourse; their definitions of free speech bear little resemblance to New Zealand’s right to freedom of expression and their corporate social responsibility charters are not public interest mandates.
We know that the social value in free speech and preventing speech harm cannot compete with profit margins. And that the online free market cannot correct for any resulting democratic deficit.
However, the success of cases in Europe and the UK, most recently NT1 and NT2 v Google Inc, signal holding online power to account isn’t lofty but a matter of will, good advocacy and a dash of lateral thinking. This should be championed by those in the New Zealand legal community. New Zealand is not immune to the same forces that contributed to the great political catalysts of recent history. Before we have our ‘Brexit moment’, the New Zealand public should be able to rest assured that their right to freedom of expression is robust, intact and being shaped by New Zealanders for New Zealanders. Let’s make the hard calls now, put the necessary safeguards in place and be better custodians of our right to free expression.
Lexie Kirkconnell-Kawana email@example.com is Complaints and Investigations Manager at IMPRESS, the United Kingdom’s independent press regulator. She completed BA and LLB degrees at the University of Auckland and an LLM at Victoria University of Wellington.
Last updated on the 5th October 2018