6 Some regulatory challenges

The challenge of finding the appropriate balance between rights is not one which is specific to the Internet.
It is difficult to know if Australian laws that limit freedom of expression in the interests of other rights, or on other permissible grounds, have ‘drawn the line’ appropriately without a comprehensive review of such laws. In New Zealand, a legislative review undertaken by the New Zealand Law Commission indicated that ‘much of the law is expressed in terms of flexible principle which is technology-neutral and which can work perfectly well in the new environment’.[81] But even if these laws cover cyberspace, the question may still remain whether they allow for an appropriate balancing of rights.

From a human rights perspective it is clear that any limitation should be assessed against the criteria specified for permissible limitations in article 19(3) of the ICCPR.

In looking at, for example, the balance between protecting freedom of expression and prohibiting advocacy of racial hatred, some critics have argued that the vilification provisions contained in s 18C of the RDA set the threshold for the limitation on free speech too low.[82] Others argue that to read s 18C in isolation from the exceptions in s 18D fails to recognise that freedom of expression is adequately protected.

While debates will continue as to what is the ‘appropriate balance’ between freedom of speech and other rights, it should be asked, how does cyberspace change the equation – if at all? It is arguable that while the types of behaviours which people engage in online are not new, what has changed is the way these behaviours are manifested online, and consequently the impacts of these behaviours. As the New Zealand Law Commission noted:

For the first time in history, individuals with access to basic technology can now publish, anonymously, and with apparent impunity, to a potentially mass audience. This facility to generate, manipulate and disseminate digital information which can be accessed instantaneously and continuously is producing types of abuse which have no precedent or equivalent in the pre-digital world.[83]

The New Zealand Law Commission summarised the additional regulatory challenges presented by the Internet as:

  • the viral nature of cyberspace and the potential for information to be disseminated instantly to worldwide audiences
  • the ubiquity of the technology which means communications are no longer constrained by time and place but can be accessed anywhere, anytime by anyone
  • the persistence of information disseminated electronically
  • the ease with which digital information can be accessed/searched and
  • the facility for anonymous communication and the adoption of multiple online personae.[84]

These particular features of cyberspace have meant that even where laws are drafted in technology-neutral terms which would cover activities in cyberspace, enforcement challenges exist which in turn raises issues of where to ‘draw the line’. These issues are further compounded by a lack of knowledge of the law and/or about the availability of redress on the part of both victims and enforcement officers.[85] These ‘cyber-enforcement’ challenges are considered in further detail below.

6.2 Permanency

The instant any material is published on the Internet, a ‘snapshot in time’ archive of the material is created and will remain ‘cached’ or stored and potentially accessible via web-searches on a likely permanent basis. This process also means the information is searchable and easily capable of duplication. This feature of the Internet can significantly undermine the utility of a court ordering the removal of material from the Internet.

For example, in 2012 a Deputy Chief Magistrate ordered that material on the Internet relating to man accused of murdering Jill Meagher be removed prior to his trial, as it was deemed to prejudice the administration of justice. The Deputy Chief Magistrate was reported as stating that while it had been argued that an order to suppress material about the suspect was futile given the ‘anarchic nature’ of the Internet, the court had to do its best to protect the administration of justice.[86] The Victorian Court of Appeal has acknowledged that:

As observed by the High Court in Dow Jones v Gutnick once an item is on the internet it is ’available to all and sundry without any geographic restriction’...the immediate accessibility of such information...poses substantial challenges for the administration of justice.[87]

6.3 Ubiquity

Another of the unique characteristics of the Internet is the way it facilitates the instant and global dissemination of information. It is this feature in particular that renders the Internet a powerful tool for freedom of expression, resulting in the Internet being attributed with everything from increasing access to information and ‘facilitating active citizen participation in building democratic societies’,[88] to being the ‘driving force in accelerating progress towards development in its various forms’.[89]

Yet with the advantages that global communication offers, also come disadvantages. This is most clearly illustrated by the problem of online defamation. The global reach and instantaneous nature of the Internet means that the potential repercussions of defamatory statements can be far more damaging to a person’s reputation than statements published ‘off-line’.

The Special Rapporteur argues the opposite view, citing the ability of the individual concerned to ‘exercise his/her right of reply instantly to restore the harm caused’.[90] However, quite apart from the global damage to an individual’s reputation and the variable value of a ‘right to reply’, the issue of permanency and ‘caching’ may mean that a ‘right to reply’ is of limited value if it is not cached in the same places that the original comment appears on the Internet. The effectiveness of ‘take down notices’ is also questionable where material is cached on the Internet.

6.4 Anonymity

A further (and related) issue raised by Internet communications is that of anonymity. The Internet offers users an unprecedented ability to communicate ‘anonymously’ and, if desired, set up multiple ‘personae’ or online identities.[91]

The ability to be anonymous online can have beneficial effects in terms of the realisation of the right to freedom of expression. As the Special Rapporteur states:

throughout history, people’s willingness to engage in debate on controversial subjects in the public sphere has always been linked to possibilities for doing so anonymously. The Internet allows individuals to access information and to engage in public debate without having to reveal their real identities, for example through the use of pseudonyms on message boards and chat forums.[92]

The Special Rapporteur points to instances where certain States have used popular social networking sites such as Facebook to identify and to track the activities of human rights defenders and opposition members.[93] A number of States are also introducing or modifying existing laws in order to increase their power to monitor the activities and content of Internet users without adequate safeguards against abuse (in terms of who is allowed to access personal data, what it can be used for, how it should be stored, and for how long).[94]

However, commentators have also noted that such anonymity can have a ‘disinhibiting effect’ where ‘people end up saying and doing things online that they would never dream of doing face-to-face’.[95] As one academic describes it: ‘people disconnect a little bit and forget that what they are doing is just a continuation of other forms of communication rather than something that is fundamentally different’.[96]

An example of this ‘disconnect’ is clearly highlighted in the recent media controversy over ‘cyber-trolls’ and ‘anonymous abuse’.
The New Zealand Law Commission cited two examples of anonymous abuse. The first involved female students at Yale Law School, who sued those responsible for a sustained campaign of anonymous sexual harassment launched by a group of young males on the college admissions web forum.[97] The female students contended that the postings about them became ‘etched’ into the first page of search engine results on their names, costing them prestigious jobs and infecting their relationships with friends and family.[98]

The second example involved a 45-year-old British woman in the UK who became the target of abusive behaviour after posting supportive comments about an ‘X Factor’ contestant on her Facebook page.[99] Anonymous attackers responded by creating a false profile in her name using her picture to post explicit comments and vilifying her.[100] In a landmark case in June 2012, the High Court granted the woman a disclosure order to compel Facebook to reveal the IP addresses and account details of those responsible for posting the offensive content.[101]

It should be noted that not all so-called ‘cyber-trolls’ engage in abusive behaviour, although they usually maintain anonymity as ‘trolling is a game about identity deception’.[102] Cyber-trolls are diverse in their aims - some may wish to join a group with the intention of swaying opinions and to sow fear, uncertainty and doubt within the group, or more generally simply to provoke an argument.[103] While these behaviours can be annoying and unpleasant, they do not necessarily always amount to conduct which would clearly justify a limitation of the ‘troll’s’ right to freedom of expression.

The HRC has noted that article 19(2) of the ICCPR ‘embraces even expression that may be regarded as deeply offensive, although such expression may be restricted in accordance with the provisions of article 19, paragraph 3 and article 20.’[104] Accordingly, many unpleasant behaviours may be entirely consistent with cyber-trolls’ right to freedom of expression. But where the actions of cyber-trolls contravene domestic laws and/or are a recognised limitation to the right to freedom of expression, the issue of their anonymity becomes challenging in a regulatory sense.

The New Zealand Law Commission identified that anonymous communications on the Internet raised issues for complainants because:

  • the complainant cannot approach the communicator directly to seek redress
  • the complainant may experience particular distress in not knowing where the communications originate from, and
  • the extremity of the communication may be intensified under the cloak of anonymity.[105]

6.5 Issues with law enforcement

The existence of confidentiality agreements between service providers (such as Twitter and Facebook) and users, as well as the potential application of information privacy laws, can hinder the ability of people to access informal solutions in situations where other users have potentially infringed their rights in some way. The New Zealand Law Commission found that while ‘the existing criminal and civil law could deal with many types of harmful digital communications’, problems arise where people are required to initiate formal court proceedings in order to compel disclosure. These problems include:

  • legal processes not operating within ‘internet time’ when information is disseminated virally and globally within minutes
  • the cost of civil proceedings and restrictions on legal aid place access to the civil jurisdiction of the courts beyond the reach of many ordinary citizens – and ‘given the evidential and legal complexities that surround litigation of ‘online’ matters, self-represented litigants face a daunting task’
  • difficulties in bringing a criminal prosecution, primarily because the evidence gathering process can be complex and multi-jurisdictional, and police investigative resources are limited.[106]

A further obstacle to the effective enforcement of laws in relation to behaviour on the Internet is the cross-jurisdictional nature of online ‘publication’. It may be difficult to predict how an Australian court order would or could be enforced on a company or individual based overseas but whose Internet service or site is accessed in Australia.

Given the number of major Internet service providers based in the United States, it is instructive to consider the Yahoo! case in 2000,[107] in which the Paris Superior Court rejected the argument that Yahoo! was protected by the First Amendment because it operated out of the US. The French court relied for jurisdiction on the fact that the effects were felt in France, and accordingly ordered Yahoo! to take all measures to prevent French citizens from accessing auction services for Nazi paraphernalia. Yahoo! were given three months to comply with the order or face a penalty of 100,000 Francs (US$13,300) for every day of non-compliance. Yahoo! subsequently won a motion in the United States District Court, with that Court declaring that the French court’s order could not be enforced as it would contravene the First Amendment of the US Constitution.[108]

The Yahoo! case raises serious doubt about whether Australian court orders regarding behaviour in cyberspace which would involve multiple jurisdictions could be effectively enforced within a country like the United States.

For a discussion of some regional and international initiatives designed to try and address obstacles to the effective enforcement of laws targeting cross-jurisdictional criminal activity over the Internet, see section 7.3 below.

[81] New Zealand Law Commission, Harmful Digital Communications: The adequacy of the current sanctions and remedies, Ministerial Briefing Paper (August 2012), p 78. At http://www.lawcom.govt.nz/project/review-regulatory-gaps-and-new-media/publication/ministerial-briefing/2012/ministerial-briefing-harmful-digital-communications-adequacy-current-sanctions-and-remedies (viewed 28 August 2013).

[82] S Joseph, ‘Free Speech, Racial Intolerance and the Right to Offend – Bolt before the court’ (2011) 36(4) Alternative Law Journal 225, p 226.

[83] New Zealand Law Commission, note 81, p 27.

[84] New Zealand Law Commission, above, p10.

[85] New Zealand Law Commission, above, p 100.

[86] D Fogarty, ‘Suppression order on Bayley background’, The Sydney Morning Herald, 11 October 2012. At http://news.smh.com.au/breaking-news-national/suppression-order-on-bayley-background-20121011-27f3j.html (viewed 28 August 2013).

[87]General Television Corporation Pty Ltd v DPP & Anor [2008] VSCA 49, [70] (citations omitted).

[88] F La Rue, note 9, p 4.

[89]The promotion, protection and enjoyment of human rights on the Internet, note 7, para 2.

[90] F La Rue, note 9, p 8.

[91] New Zealand Law Commission, note 81, p 10.

[92] F La Rue, note 4, p 15.

[93] F La Rue, above.

[94] F La Rue, above.

[95] N Galvin, ‘Just hook it into our veins’, The Sydney Morning Herald, 21 October 2012, http://www.smh.com.au/digital-life/digital-life-news/just-hook-it-into-our-veins-20121018-27s6e.html, (viewed 28 August 2013).

[96] T Leaver, quoted in N Galvin, above.

[97] New Zealand Law Commission, note 81, p 42.

[98] New Zealand Law Commission,above.

[99] New Zealand Law Commission, above.

[100] New Zealand Law Commission, above.

[101] New Zealand Law Commission, above.

[102] J,Donath, ‘Identity and deception in the Virtual Community’ in M Smith and P Kollock (eds), Communities in Cyberspace (1999), p 45.

[103] A Cox, ‘Making Mischief on the Web’, Time Magazine, 16 December 2006, http://www.time.com/time/magazine/article/0,9171,1570701,00.html (viewed 28 August 2013.

[104] Human Rights Committee, General Comment No. 34, note 4, para 11.

[105] New Zealand Law Commission, note 81, p 119.

[106] New Zealand Law Commission, above, p 101 (quoting a submission from Judge D Harvey).

[107]La Ligue Contre La Racisme et L’Antisemitisme (LICRA) and Union Des Etudiants Juifs De France (UEJF) v. Yahoo! Inc. and Yahoo France (20 February 2002). For a general discussion of this case in English, see I Nemes, ‘Regulating Hate Speech in Cyberspace: Issues of Desirability and Efficacy’ (2002) 11(3) Information & Communication Technology Law 193, pp 202-203.

[108]Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 7 November 2001, Case Number C-00–21275 JF, Docket No 17.