Call for self-control
29 March, 2018, 12:00 am
THE most anticipated Bill to regulate online space has been presented in Parliament — Online Safety Bill 7/2018.
The Bill comes at a time when gendered cyberbullying, online sexual harassment and revenge porn are making the news. It is also when public officials are filing defamation cases, fake accounts on social media are increasing, the mainstream media is not so free, (overseas) journalists are persecuted, fake news is our new reality and citizen journalism appears to be the future.
Online spaces, specifically social media, need to be self-regulated by the social media corporations. This is in the interest of freedom of expression and speech and, in my opinion, to prevent governments from using regulations and laws to censor information and speech, and to persecute dissenting voices.
Women and children?
Violence, misogyny, bullying and invasion of privacy are not part of freedom of speech or expression. We are in an era where these offences (which are mostly criminalised) are manifest online.
It is not new criminal behaviour, just the context has changed with far wide reaching implications to cause harm. The impersonal nature of interaction, anonymity and quick accessibility exacerbate the issues. However, online platforms largely remain a microcosm of our communities.
So it is these specific acts and behaviour that need to be regulated and criminalised through narrowly and specifically crafted amendments in existing legislations (such as the Crimes Decree) and/or in new legislations.
The Bill is described as “an act to establish the online safety commission for the promotion of online safety, deterrence of harmful electronic communication and for related matters”. The explanatory notes state that ‘in hindsight of the recent increase of reports on harmful online behaviour such as cyberbullying, cyber stalking, internet trolling and exposure to offensive or harmful content, particularly in respect of children”.
Much of the provisions in the draft legislation, it would seem, have been adopted from New Zealand. Unfortunately, I believe not much regard has been given to our context to considerably adapt the law to make it relevant and responsive for us.
In a country where I believe bureaucratic bodies and commissions struggle to effectively and justly deliver services and perform their mandate, another highly bureaucratic body is being set up to fail.
The commission puts burdensome responsibility on the victims and/or their allies in reporting the matter, risking access to justice. It also risks appointments of inapt people whose credibility could be potentially compromised. The commission could become a very useful body if it focused on two mandates. One is public education around responsible online use and awareness on cyberbullying as is mandated in the Bill. In fact there has been hardly, if any mass public education. If we would have started public education 10 years ago we may by now have cultivated a culture of responsible social media users.
The other mandate for the commission should be on immediate redress for victims. In cases of threats and actual leaking of intimate information, most of the victims do not want to go to the police or pursue criminal action because of stigma and social ostracisation (yes, we still shame the girl and women and not the perpetrator that violated the trust or abused their power). The victims just want the threats and blackmail to stop and in such instances, this mandate adds great value in taking quick action without getting the police or the courts involved.
The provisions pertaining to the commission are too broad and if it is for the women and children, then the commission’s powers and functions need to be narrowly defined and limited.
of gendered offences
I believe the Bill dilutes the criminal elements of some of the offences such as revenge porn and online sexual harassment which manifest in the exact same way as violence against women manifest in person. By not putting this offences (also) in the Crimes Decree, we are failing to recognise the gendered and non-consensual nature of the offences stem from gender inequality. An approach where it criminalises and also provides for immediate civil redress like ordering for the image/video/information to be taken down is key to protecting the online safety of girls and women.
The provision in the Bill around penalising corporations needs more clarity. Pornography is legal in New Zealand hence online porn companies that may host say the revenge porn falls in this category and it could also apply to social media companies like Facebook, if New Zealand has the resources to pursue it that far.
The provisions around corporations should be removed.
Freedom of political
The Bill needs to clearly articulate that in promotion of online safety, free speech and expression will also be respected and promoted. In the section, which talks about assessing whether the communication caused harm, the New Zealand legislation contains a stipulation around “whether the communication is in the public interest”.
This has been left out of our draft legislation. To show good faith in adhering to the purported intention and objective of the legislation it is important that this stipulation is added to the Bill. A provision around whether the information falls within the protection of freedom of expression and political opinion needs to also be included.
Many workplaces have already implemented social media policies to curtail and limit freedom of expression, opinion and association beyond working hours, hence further compromising our already fragile political activism and participation.
We need to vehemently protect our freedom of expression and opinion.
Yes, women and children
Women and children are grateful that there are going to be specific laws catering for the specific nature of online sexual and non-consensual offense. However, more assurances need to be captured in the proposed legislation that while protecting women and children, civil and political rights are not compromised in the process and for access to justice to be efficient and less onerous.
Any risks through laws and regulations to limit freedom of expression and opinion, free speech and media freedom, is an area of enormous concern. We need to collectively, and in good faith, find the right balance in policy and legal reform to genuinely protect all the rights of women and children.
* Roshika Deo is a feminist political activist. The views expressed are hers and not of this newspaper