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On line speech harms- melbourne


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This is a presentation accompanying a paper delivered to the Bullying, Young People and the Law Symposium in Melbourne 18 - 19 July 2013.

Published in: Technology
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On line speech harms- melbourne

  1. 1. On-Line Speech Harms Using Legal Process Judge David Harvey @djhdcj
  2. 2. • The environment – paradigmatic change • Dealing with on-line speech harms – strategy • Dealing with on-line speech harms - practice
  3. 3. Mark Prensky
  4. 4. Digital Immigrants
  5. 5. Digital Natives
  6. 6. It’s all about how we process information
  7. 7. Digital Technologies give meaning to McLuhan’s comment:
  8. 8. The medium is the message
  9. 9. The impact of the digital communications technologies – a convergence of everything that has gone before - lies in the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.
  10. 10. The Properties of Digital Technologies • Persistence • Continuing disruptive change • Dynamic information • Delinearisation of information • Dissociative enablement • Permissionless innovation • Availability • Participation • Searchability • Retrievability
  11. 11. The information expectations of Digital Natives have been shaped and moulded by these qualities.
  12. 12. Their uses and expectations of what happens in the on-line world are quite different to those of their parents (digital immigrants) or those of my generation (digital aliens).
  13. 13. Thus any solution must be premised upon an understanding of the technology and the way that it shapes behaviours and values underlying those behaviours
  14. 14. The solution must also recognise another McLuhan aphorism
  15. 15. Any Solution Must Recognise
  16. 16. The time factor – in “internet time” information moves faster than it does in the real world
  17. 17. Information is dynamic and spreads “virally”
  18. 18. “Dissociative enablement” means that people are going to behave differently when operating from the apparent anonymity of a private room or space and from behind a computer screen
  19. 19. Any remedy is going to be partial – given that information on the internet is going to remain in some shape or form (the quality of persistence or “the document that does not die”)
  20. 20. Normal civil and political rights including a robust recognition of freedom of speech and expression and that the internet is neutral. Restrictions on a free and open internet must be minimal.
  21. 21. Dual Approach The Offence The Communications Tribunal
  22. 22. The Offence Causing harm by means of a communciations device (a) grossly offensive; or (b) of an indecent, obscene, or menacing character; or (c) knowingly false. Intention aspects. Victim must have seen the communication – gossip is not enough Relevant factors to be taken into account
  23. 23. The Communications Tribunal Addresses some of the Internet-specific issues a) it has a limited jurisdiction b) it has limited and specific remedies c) it deals with content and not criminality d) it operates “on the papers” e) it is a remedy of last resort after a filtering process has been carried out by the Approved Agency
  24. 24. • In exercising its functions, the tribunal must have regard to the importance of freedom of expression. • Transparency is ensured in that the Tribunal must publish its decisions and the reasons for them. • Communications principles
  25. 25. Matters to be Taken into Account (a) the content of the communication, its offensive nature, and the level of harm caused by it: (b) the purpose of the communicator in communicating it: (c) the occasion, context, and subject-matter of the communication: (d) the extent to which the communication has spread beyond the original communicator and recipient: (e) the age and vulnerability of the complainant: (f) the truth or falsity of the statement: (g) the extent to which the communication is of public interest: (h) the conduct of the defendant, including any attempt by the defendant to minimise the harm caused: (i) the conduct of the complainant, including the extent to which that conduct has contributed to the harm suffered.
  26. 26. Orders (a) A take down order: (b) A future non-publication order (c) Prohibition against encourage others to behave similarly (d) a declaration that a communication breaches a communication principle: (e) correcting a factually incorrect statement (f) right of reply: (g) an apology: (h) author identification.
  27. 27. These orders are a significant intrusion upon freedom of expression
  28. 28. State of the Play • The report has been received by the Minister. • She has indicated that the recommendation for a Communications Tribunal will not be adopted. • The proposed jurisdiction of the Communications Tribunal will be assumed by the District Court • Matters to be Considered: – a) lack of specialist expertise in the field of digital communications law – b) potential procedural delays – c) variation or possible lack of consistency in the application of principles and the types of orders that may be made
  29. 29. The Big Picture Because politics amounts to an intergenerational contract between one generation and the next, politicians should feel entrusted with the conservation of the past for future generations. Edmund Burke
  30. 30. But should digital immigrants tell digital natives how to live their lives in the digital environment?