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

1. On-Line Speech Harms
Using Legal Process
Judge David Harvey
@djhdcj
Blog:www.theitcountreyjustice.wordpress.com

2. • The environment – paradigmatic change
• Dealing with on-line speech harms –
strategy
• Dealing with on-line speech harms -
practice

3. Mark Prensky

4. Digital Immigrants

5. Digital Natives

7. It’s all about how we process
information

9. Digital Technologies give meaning to
McLuhan’s comment:

10. The medium is
the message

11. 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.

12. The Properties of Digital
Technologies
• Persistence
• Continuing disruptive
change
• Dynamic information
• Delinearisation of
information
• Dissociative enablement
• Permissionless innovation
• Availability
• Participation
• Searchability
• Retrievability

13. The information expectations of Digital
Natives have been shaped and moulded by
these qualities.

14. 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).

15. Thus any solution must be premised upon
an understanding of the technology and
the way that it shapes behaviours and
values underlying those behaviours

16. The solution must also recognise another
McLuhan aphorism

18. Any Solution Must Recognise

19. The time factor – in “internet time”
information moves faster than it does in
the real world

20. Information is dynamic and spreads
“virally”

21. “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

22. 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”)

23. 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.

24. Dual Approach
The Offence
The Communications Tribunal

25. 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

26. 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

27. • 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

28. 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.

29. 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.

30. These orders are a significant intrusion
upon freedom of expression

31. 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

32. 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

33. But should digital immigrants tell digital
natives how to live their lives in the
digital environment?