ss (d) making contact with that person (whether by telephone, correspondence, or in any other way. )
also (f) acting in any other way
I'm aware that the Courts have been somewhat reluctant to define what 'any other way' might mean. However, common sense is that 'any other way' must have been seen by the legislators as the vehicle by which the communication or threat was made, being simple language to ensure that a harasser wouldn't not be able to say 'I didn't telephone or correspondence with the person or attend their house or work, therefore I could not harass them' as somehow letting types of harassment fall outside the Law. Parliament can never have intended to do that, so they left in specific language but also included a vehicle for harassment to fall outside the specifics into the category of 'any other way.'
None of the above over looks 'correspondence' mentioned in 4 (1) (d.) One not need to consider too deeply that an email is correspondence, and that a message board post or blog is a derivative of correspondence in that it conveys a message by text - particularly so, where it addressed to another individual whether they are named specifically or not. For example a nick name, an offensive term or the reconstruction of a situation that makes it clear to the 'target' that they are the victim of the allegation or threats.
In the last few years there has been little progress with policing cyber space bullying because of what I believe has been a tardiness of mind of lawyers and the Courts to consider the elements of the Harassment Act as contemporary to the electronic age. I am aware of a case where a person threatened and harassed over a trade on Trade Me eventually took an order out against the individual but not against Trade Me. Although the individual was granted a restraining order the 'restrained' person was effectively allowed to continue their behaviour on Trade Me who eventually told the victim that perhaps TM wasn't the place for them. In other words because TM hadn't been named specifically in the order they chose to ignore it even though the harassment continued on TM.
Objectionable as that may be, last year when a director of Trade Me was faced with a application for a restraining order (later withdrawn) Trade Me almost immediately amended it's users rules to specifically prohibit on line harassment. While that measure might have been reluctantly taken the result was the message to not only internet users but also to The Courts that the owner of the largest message board in the country recognised that harassment can take place on line and acted after an application was issued under the 1997 Act. There is further evidence abroad of blog owners appreciating the need to abide by the Harassment Act 1997. When requested for details of board users allegedly using Kiwi Blog as the venue for a cyber attack, owner, David Farrar, acted according to the request in the following way....(altered to protect the 'privacy' of the alleged offenders)
I
e-mailed the contact e-mail addresses for both Morris Minor and hiphip asking if
they would object to their details being released. Morris Minor has asked me not
to, and I’ve decided to respect their privacy and not release it. You may of
course request a court order to reveal details.
The
hiphip user has not responded to two e-mails, which I am taking as not objecting
to the release of their details. The details I have for hiphip
are:
M... S...
...............@mailingaddress.org
The
IP address used is XXXXX,
which is with the Orcon ISP.
Regards
DPF
This being another display of appreciation by site owners to their obligations under the Harassment Act. Farrar went on to submit to the Law Commission recently the following:
'A supporter of David Bain and Joe Karam said commentators who had named him were harassing him and requested their details for a Harassment Act claim. Asked commentators for consent. One refused, one did not reply. Have decided to only release details of the non-reply"
Showing again the 'good faith' of board owners not to have their sites involved in harassment, this is the reason why I blogged earlier in the week that the common Law was recognising that the frontiers of cyber-space were actually no different from print media (whether by telephone, correspondence, or in any other way. ) I wrote that in relation to the apology posted on Trade Me this week to Joe Karam for defamation and other offensive material published on TM in respect of Karam, the apology is a rich sink hole for the quandaries that seem to have beset the minds of those that thought there was no remedy in Law, or that a new Law was needed to prevent cyber space bullying.
In fact Justice Ministers Judith Collins is talking about fast tracking one law recommended by the Law Commission to which David Farrar submitted the comments above when it becomes available. However, in a recognition of the existing Law, and presumably understanding the complexity lawyers and Courts labour under simply stated that the Harassment Act might need to be more specific in terms of cyber-space relevance. For the foregoing reasons I don't agree, particularly because in the common Law of practice, the owners of sites have already advanced to that position either from goodwill or from pressure to understand more fundamentally that a word is a word whether it be written in a letter, uttered over a phone or transported to a receiver in cyberspace. Nevertheless, the Justice Minister is sending out the right message now.
The Act is caught to some degree in a no where place, not prevailing under civil or criminal law but rather a hybrid, user friendly cocktail that has different levels of proof, production and evidence and so on. A particularly good opportunity for people to get their situations to Court for no expense (unless they decide to use a lawyer) and with the gritty reality of the situation able to be presented without the normal legalese tongue.
In a relatively short time several of the larger sites have cleaned up their acts, they have not lost 'customers' or members to any great degree as people have adjusted to the idea that they're responsible for what they say and will be 'found out' and exposed if they transgress into on line harassment or bullying. The Courts have followed that to some degree but I imagine will soon adopt to the ease that the original legislators envisaged to ensure that all perpetrators could be dealt with in a changing society using different communications.
If Karam v Trade Me has shown for all time that defamation does happen on line in NZ, then, in approximately comparative time, also it is being acknowledged that so does harassment and that the Law can be brought to bear. In the case I brought against a TM director, TM's lawyer, Marissa Flowerday, swore in an affidavit the number of letters of complaint that I had made about the on line harassment of Karam and Bain, as though the number was a reflection of me as a serial complainer without a substantial reason to complain, in fact as time has shown the reflection was against TM itself as being a serial defamer and harasser and being unwilling or unable to deal with it. That is the reason they apologised to Karam and came to some financial conclusion with him, something they would not have needed to do had they heeded when I wrote to them outlining the activities of the hate-site members using TM to attack Karam and others. They also would not have needed to have amended their rules in 2011 to specify 'harassment' if they'd simply read the Act and complied. How far off the mark they were then is recorded in a letter to me where they claimed they 'were not susceptible to action under The Harassment Act.) I still wonder what sort of legal appreciation of the law their 'experts' had. Whatever the level, had they simply done what the message board 'Sella,' owned by the NZ Herald, had done when I wrote to them about an influx of hate-siters 'bringing their message' and shut all blogs relating to the topic down, after issuing an on line message, they would not have needed to be dragged to the reality at great financial cost and to the personal cost of those that were harassed on their boards. The later being an issue still yet to be resolved and which TM and others are no doubt hoping will go away.
No comments:
Post a Comment