Trouble in cyberspace

NICK VENTER

OPINION: In the the summer of 1998, a succession of strangers knocked on the door of a 28-year-old Californian woman. They had come, they told her, to act out the rape fantasy she had posted on the internet.

However, the woman had not posted the fantasy. She did not even have access to the internet from her home.

The fantasy was the work of a disgruntled ex-boyfriend who had been impersonating her in chat rooms and on dating sites. Not only did he publicise her name, phone number and address, but he also supplied detailed instructions about what was to happen when she opened the door.

Eventually, he was identified, tracked down and sentenced to six years in jail.

The case highlights the challenges posed to lawmakers by new forms of communication, some of which did not even exist a few years ago.

The man's harassment of the woman was the cyber equivalent of scrawling "for a good time call X" on a toilet wall.

But in the age of the internet, the potential harm is magnified. A malicious message that might once have been seen by a handful of people can now be viewed by millions.

The case is one of several referred to by the Law Commission in a discussion paper released today on the adequacy of the laws dealing with what former justice minister Simon Power termed the "Wild West out there in cyberspace".

Lawmakers everywhere are running to catch up with technology that enables anyone with a computer or a cellphone to become a publisher - a power once reserved for those who controlled printing presses.

Facebook has been credited with inspiring the Arab Spring, and Twitter with inciting the London riots. In New Zealand, the internet has been used to publish the names of individuals whose identities have been suppressed by the courts. Blogger Cameron Slater was last year convicted of eight counts of breaching suppression orders and one of identifying a victim in a sex case.

Media law expert Professor John Burrows, the lead commissioner on the review, welcomes the advances in technology. "Anything which enhances freedom of speech and the diversity of the ways in which it can be done is a good thing," he says. However, there have to be checks and balances.

After a 12-month review, the commission has recommended the creation of a new offence of "maliciously impersonating another person". At present, there is no legal remedy for such activities in New Zealand unless the impersonation constitutes an element of fraud. It has also recommended making it an offence, "in some circumstances" to publish intimate photographs of another person, even when they were taken with the subject's consent, and making incitement to commit suicide an offence - a response to evidence that some recent suicides here have been traced to Facebook pages. "Currently, the law says if you incite suicide, you create an offence if the person actually does it or attempts to do it. We'd like to move back a step to say that the incitement alone should be an offence."

The commission has also recommended the establishment of a single independent media regulator, funded by the industry and the state, to hear complaints against established print and broadcasting organisations and those elements of the new media that want to gain access to the protections and privileges of the media.

Democracies depend upon reliable sources of information to keep the public informed, Prof Burrows says. The law recognises that by giving the established news media special legal status. Reporters are entitled to attend court proceedings from which the public are excluded. They are exempt from the principles of the Privacy Act and some aspects of the Fair Trading Act.

Prof Burrows says there is no reason those privileges should not extend to new communicators such as bloggers. Freedom of expression is the cornerstone of all other democratic freedoms.

However, the quid pro quo for obtaining them is that they must adhere to a code of ethics and become answerable to a complaints body.

Those who do not wish to separate fact from opinion, to correct mistakes and to commit to being accurate, can carry on as they are, he says. People are entitled to express extreme views and they are entitled to be wrong. They simply have to comply with the law.

He admits legislators and enforcement agencies are struggling to keep up with technology and the volume of material, but that is no reason to abandon attempts to enforce the law, he says.

"You can always make an example of people and, if the right cases are picked, it can be a real deterrent to others."

The public has until March 12 to make submissions on the paper to the commission, which will then prepare a report for the Government.

For more information go to lawcom.govt.nz.

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